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medical Negligence: Law and Interpretation

Abstract

Negligence by doctors has to be determined by judges who are not trained in medicalscience. They rely on experts’ opinion and decide on the basis of basic principles ofreasonableness and prudence. This brings into a lot of subjectivity into the decision and theeffort is to reduce it and have certain objective criteria. This may sound simple but istremendously difficult as medical profession evolves and experimentation helps in itsevolution. Thus, there is a constant tussle between the established procedures and innovativemethods. But, innovation simply for the sake of being different, without any reason is notacceptable. And, these issues make it extremely challenging to decide negligence by doctors.The paper examines the concept of negligence in medical profession in the light ofinterpretation of law by the Supreme Court of India and the idea of the ‘reasonable man’.

Keywords: Courts, Doctors, Hospitals, Medical negligence, Law, Reasonable man
                                                                                                                                                                           

 Medical Negligence: Law and Interpretation

Introduction

For a patient, the doctor is like God. And, the God is infallible. But that is what the patientthinks. In reality, doctors are human beings. And, to err is human. Doctors may commit amistake. Doctors may be negligent. The support staff may be careless. Two acts ofnegligence may give rise to a much bigger problem. It may be due to gross negligence.Anything is possible. In such a scenario, it is critical to determine who was negligent, andunder what circumstances.

In a country committed to the rule of law, such matters are taken to the court and judges aresupposed to decide. However, negligence by doctors is difficult to be determined by judges asthey are not trained in medical science. Their decisions are based on experts’ opinion. Judgesapply the basic principles of law in conjunction with the law of the land to make a decision.Reasonableness and prudence are the guiding factors.

We would like to go through these principles in the light of some court judgments and try tounderstand as to what is expected from a doctor as a reasonable person. As these issues are atthe core of medical profession and hospitals are directly affected by new interpretation of anexisting law regarding medical professionals, it is pertinent to deal with them at theindividual level of the doctor, and also at the employer’s level i.e., hospital.

 Negligence

It is very difficult to define negligence, however, the concept has been accepted injurisprudence. The authoritative text on the subject in India is the ‘Law of Torts’ by Ratanlaland Dhirajlal.2 Negligence has been discussed as:

Negligence is the breach of a duty caused by the omission to do something which areasonable man, guided by those considerations which ordinarily regulate the conductof human affairs would do, or doing something which a prudent and reasonable manwould not do. Actionable negligence consists in the neglect of the use of ordinary careor skill towards a person to whom the defendant owes the duty of observing ordinarycare and skill, by which neglect the plaintiff has suffered injury to his person orproperty.

The definition involves three constituents of negligence:

(1) A legal duty to exercise due care on the part of the party complained of towardsthe party complaining the former's conduct within the scope of the duty;
(2) breach of the said duty; and
(3) consequential damage.

Cause of action for negligence arises only when damage occurs; for, damage is a necessaryingredient of this tort. Thus, the essential components of negligence are three: 'duty', 'breach'and 'resulting damage'.

In the landmark Bolam case3, it was held that:

In the ordinary case which does not involve any special skill, negligence in law meansa failure to do some act which a reasonable man in the circumstances would do, or thedoing of some act which a reasonable man in the circumstances would not do; and ifthat failure or the doing of that act results in injury, then there is a cause of action.

Thus, the understanding of negligence hinges on the ‘reasonable man’. Let us try tounderstand who this ‘reasonable man’ is.

 The ‘Reasonable Man’

It has been held by the courts that the test of reasonableness is that of the ‘ordinary man’ oralso called as the ‘reasonable man’. In Bolam case, it was discussed that:

In an ordinary case it is generally said you judge it by the action of the man in thestreet. He is the ordinary man. In one case it has been said you judge it by the conductor the man on the top of a Clap ham omnibus. He is the ordinary man.

Why the mention of ‘Clapham omnibus’? The Bolam judgment was pronounced in 1957 andClapham, at that time, was a nondescript south London suburb. It represented “ordinary”London. Omnibus was used at that time for the public bus. Thus, “the man on the top of aClapham omnibus” was a hypothetical person, who was reasonably educated and intelligentbut was a non-specialist.

The courts used to judge the conduct of any defendant by comparing it with that of thehypothetical ordinary man.

Professional

According to the English language, a professional is a person doing or practising somethingas a full-time occupation or for payment or to a make a living; and that person knows thespecial conventions, forms of politeness, etc. associated with a certain profession.Professional is contrasted with amateur – a person who does something for pleasure and notfor payment.4

 Negligence by professionals

The Supreme Court of India discussed the conduct of professionals and what may amount tonegligence by professionals in Jacob Mathew’s case5:

In the law of negligence, professionals such as lawyers, doctors, architects and othersare included in the category of persons professing some special skill or skilled persons

generally. Any task which is required to be performed with a special skill wouldgenerally be admitted or undertaken to be performed only if the person possesses therequisite skill for performing that task. Any reasonable man entering into a professionwhich requires a particular level of learning to be called a professional of that branch,impliedly assures the person dealing with him that the skill which he professes topossess shall be exercised and exercised with reasonable degree of care andcaution….

He does not assure his client of the result…A physician would not assure the patientof full recovery in every case. A surgeon cannot and does not guarantee that the resultof surgery would invariably be beneficial, much less to the extent of 100% for theperson operated on…

…Judged by this standard, a professional may be held liable for negligence on one oftwo findings: either he was not possessed of the requisite skill which he professed tohave possessed, or, he did not exercise, with reasonable competence in the given case,the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competentperson exercising ordinary skill in that profession. It is not necessary for everyprofessional to possess the highest level of expertise in that branch which he practices.

…A highly skilled professional may be possessed of better qualities, but that cannotbe made the basis or the yardstick for judging the performance of the professionalproceeded against on indictment of negligence.

The Bolam case very clearly distinguished between the negligence by an ordinary man andnegligence by a professional in the following words:

But where you get a situation which involves the use of some special skill orcompetence, then the test as to whether there has been negligence or not is not the testof the man on the top of a Clapham omnibus, because he has not got this special skill.The test is the standard of the ordinary skilled man exercising and professing to havethat special skill. A man need not possess the highest expert skill; it is well establishedlaw that it is sufficient if he exercises the ordinary skill of an ordinary competent manexercising that particular art.

 Negligence by Medical Professionals

In Jacob Mathew case, the Supreme Court of India has gone into details of what is themeaning of negligence by medical professionals.

Negligence in the context of medical profession necessarily calls for a treatment witha difference. To infer rashness or negligence on the part of a professional, in particulara doctor, additional considerations apply.

A case of occupational negligence is different from one of professional negligence. Asimple lack of care, an error of judgment or an accident, is not proof of negligence onthe part of a medical professional. So long as a doctor follows a practice acceptable to

the medical profession of that day, he cannot be held liable for negligence merelybecause a better alternative course or method of treatment was also available orsimply because a more skilled doctor would not have chosen to follow or resort to thatpractice or procedure which the accused followed.

When it comes to the failure of taking precautions what has to be seen is whetherthose precautions were taken which the ordinary experience of men has found to besufficient; a failure to use special or extraordinary precautions which might haveprevented the particular happening cannot be the standard for judging the allegednegligence.

So also, the standard of care, while assessing the practice as adopted, is judged in thelight of knowledge available at the time of the incident, and not at the date of trial.Similarly, when the charge of negligence arises out of failure to use some particularequipment, the charge would fail if the equipment was not generally available at thatparticular time (that is, the time of the incident) at which it is suggested it should havebeen used.

In the Bolam case, the court held that:

… In the case of a medical man, negligence means failure to act in accordance withthe standards of reasonably competent medical men at the time. That is a perfectlyaccurate statement, as long as it is remembered that there may be one or moreperfectly proper standards; and if he conforms with one of those proper standards,then he is not negligent.

… He is not guilty of negligence if he has acted in accordance with a practiceaccepted as proper by a responsible body of medical men skilled in that particular art.… A man is not negligent, if he is acting in accordance with such a practice, merelybecause there is a body of opinion who would take a contrary view.

At the same time, that does not mean that a medical man can obstinately and pigheadedlycarry on with some old technique if it has been proved to be contrary towhat is really substantially the whole of informed medical opinion. Otherwise youmight get men today saying:

“I do not believe in anaesthetics. I do not believe in antiseptics. I am going tocontinue to do my surgery in the way it was done in the eighteenth century.”

That clearly would be wrong.

 Degree of Negligence

The Delhi High Court laid down in 2005 that in civil law, there are three degrees ofnegligence6:

(i) lata culpa, gross neglect
(ii) levis culpa, ordinary neglect, and
(iii) levissima culpa, slight neglect.

Every act of negligence by the doctor shall not attract punishment. Slight neglect will surelynot be punishable and ordinary neglect, as the name suggests, is also not to be punished. If weclub these two, we get two categories: negligence for which the doctor shall be liable and thatnegligence for which the doctor shall not be liable. In most of the cases, the dividing lineshall be quite clear, however, the problem is in those cases where the dividing line is thin. Inall such cases we fall back upon the test laid down in Bolam case and which has been upheldin Jacob Mathew case.

Before we proceed further, let us have a look at the facts of the above mentioned two cases:Bolam and Jacob Mathew.

John Hector Bolam suffered from depression and was treated at the Friern Hospital in 1954by E.C.T. (electro-convulsive therapy). He was not given any relaxant drug, however, nurseswere present on either side of the couch to prevent him from falling off. When he consentedfor the treatment, the hospital did not warm him of the risks, particularly that he would begiven the treatment without relaxant drugs. He sustained fractures during the treatment andsued the hospital and claimed damages for negligence. Experts opined that there were twopractices accepted by them: treatment with relaxant drugs and treatment without relaxantdrugs. Regarding the warning also, there were two practices prevalent: to give the warning tothe patients and also to give the warning only when the patients ask about the risks. The courtconcluded that the doctors and the hospital were not negligent.

 Jacob Mathew Case

In this case a patient was admitted to CMC Hospital, Ludhiana. He felt difficulty inbreathing. No doctor turned up for about 20-25 minutes. Later two doctors – Dr. JacobMathew and Dr. Allen Joseph – came and an oxygen cylinder was brought and connected tothe mouth of the patient. Surprisingly, the breathing problem increased further. The patienttried to get up. The medical staff asked him to remain in bed. Unfortunately, the oxygencylinder was found to be empty. Another cylinder was brought. However, by that time the patient had died. The matter against doctors, hospital staff and hospital went up to the Supreme Court of India. The court discussed the matter in great detail and analysed the aspectof negligence from different perspectives – civil, criminal, torts, by professionals, etc. It washeld that there was no case of criminal rashness or negligence.

Civil or Criminal Liability

The liability of the doctor shall be civil or criminal or both. One of the essential elements incriminal law is mens rea – the guilty mind or an evil intention. The question arises as towhether in cases of medical negligence – whether slight, ordinary or gross – is there any criminal liability? As mens rea is essential, it is difficult to argue that the doctor had a guilty mind and was negligent intentionally. This has been the main argument in most of the casesin which the decision was to decide about the criminal liability. For instance, in
Jacob Mathew, neither the doctor nor any other hospital staff intentionally connected theempty cylinder. Similarly, in Bolam, the doctors or the hospital did not want to do somethingwrong intentionally. At no point of time, they had a guilty mind.

In Dr. Suresh Gupta’s Case7 – Supreme Court of India, 2004 – the court held that the legalposition was quite clear and well settled that whenever a patient died due to medicalnegligence, the doctor was liable in civil law for paying the compensation. Only when the negligence was so gross and his act was so reckless as to endanger the life of the patient,criminal law for offence under section 304A of Indian Penal Code, 1860 will apply.

The section is as follows:304A – Causing death by negligence – Whoever causes the death of any person bydoing any rash or negligent act not amounting to culpable homicide shall be punishedwith imprisonment of either description for a term which may extend to two years, orwith fine, or with both.

Certain other sections which are relevant for this topic are as follows:

Section 80 - Accident in doing a lawful Act – Nothing is an offence which is done byaccident or misfortune, and without any criminal intention or knowledge in the doingof a lawful act in a lawful manner by lawful means and with proper care and caution.

Section 88 - Act not unintended to cause death, done by consent in good faith forperson’s benefit – Nothing, which is not intended to cause death, is an offence byreason of any harm which it may cause, or be intended by the doer to cause, or beknown by the doer to be likely to cause, to any person for whose benefit it is done ingood faith, and who has given a consent, whether express or implied, to suffer thatharm, or to take the risk of that harm.

Interestingly the illustration along with this section refers to an act of a surgeon. It isas follows:

A, a surgeon, knowing that a particular operation is likely to cause the death of Z,who suffers under a painful complaint, but not intending to cause Z’s death, andintending, in good faith Z’s benefit, performs that operation on Z, with Z’s consent. Ahas committed no offence.

The court held that the negligence has to be “gross negligence” or “recklessness” for fixingcriminal liability on a doctor. The standard of negligence is much higher as compared to whatis relevant in civil liability cases. It is not simply lack of normal care. It has to be gross lackof competence or inaction and wanton indifference to the patient’s safety. The court said“…where a patient’s death results merely from error of judgment or an accident, no criminalliability should be attached to it. Mere inadvertence or some degree of want of adequate careand caution might create civil liability but would not suffice to hold him criminally liable.”

In Jacob Mathew, the court held that:

The moral culpability of recklessness is not located in a desire to cause harm. Itresides in the proximity of the reckless state of mind to the state of mind present whenthere is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, andindeed the actor may hope that they do not occur, but this hope nevertheless fails toinhibit the taking of the risk. Certain types of violation, called optimizing violations,may be motivated by thrill-seeking. These are clearly reckless.

The Supreme Court in Jacob Mathew made it very clear as to when a medical professionalcan be prosecuted under criminal law for negligence. In the words of the court:

To prosecute a medical professional for negligence under criminal law it must beshown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be ofsuch a nature that the injury which resulted was most likely imminent.

Martin D’Souza’s Case8

This is a case regarding kidney transplant and medicines being administered post-operationwherein there is a dispute about the medicine itself and the dosage. In 1991, the patient whowas suffering from chronic renal failure went to Nanavati Hospital, Mumbai for kidneytransplant. He was undergoing haemodialysis twice a week. Later he got his kidney transplantdone at Prince Aly Khan Hospital. During his treatment at Nanavati Hospital he did notcomplain of deafness. At Nanavati Hospital he was prescribed Amikacin of 500 m.g. twice aday for 14 days. Much later, the patient filed a complaint at the National Consumer Dispute Redressal Commission, New Delhi and claimed compensation of Rs. 12 lakhs as his hearing had been affected. He complained that the dosage of Amikacin was excessive and caused hearing loss. The matter finally went to the Supreme Court. Almost all earlier cases pertaining to medical negligence have been discussed by the Supreme Court in the instant case and it was held that the doctor and the hospital were not negligent.

Interestingly, this case very strongly defended the position of doctors vis-à-vis the patients.The court has made an interesting observation:

The law, like medicine, is an inexact science. One cannot predict with certainty anoutcome of many cases. It depends on the particular facts and circumstances of thecase, and also the personal notions of the Judge concerned who is hearing the case.However, the broad and general legal principles relating to medical negligence needto be understood.

Difficulties in application of Mathew guidelines

The Supreme Court observed that there were difficulties in the application of principles aslaid down in Jacob Mathew’s case. For instance:

1. “The practitioner must bring to his task a reasonable degree of skill and knowledge,and must exercise a reasonable degree of care. Neither the very highest nor a very lowdegree of care and competence is what the law requires.” (as per Jacob Mathew’s case)

The court observed that it is a matter of individual understanding as to what isreasonable and what is unreasonable. Even experts may disagree on certain issues.They may also disagree on what is a high level of care and what is a low level of care.

2. The Jacob Mathew case said that “simple” negligence may result only in civilliability, but “gross” negligence or recklessness may result in criminal liability. Now,what is simple negligence and what is gross negligence may not be so easy to redetermined. Experts may not agree on this because the dividing line between the twois quite thin.

Judges as lay men

Thus, Martin D’Souza’s judgment held that it was very difficult or rather impossible tounderstand, and therefore, define as to what is “reasonable” and what is “simple” and what is“gross”. At one place, the court observed:

Judges are not experts in medical science, rather they are lay men. This itself often makesit somewhat difficult for them to decide cases relating to medical negligence.

In short, the Martin D’Souza judgment is like a confession by the judges that in cases ofmedical negligence, the judges are ill-equipped to make any decision and that too on the fineraspects of “simple” or “gross” negligence.

Police and Harassment of Doctors

An interesting order passed by the Supreme Court in this case was a warning given to policeofficials not to arrest or harass doctors unless the facts clearly come within the parameterslaid down in Jacob Mathew’s case. Even a threat was given to the policemen that if they didnot follow these orders they themselves have to face legal action.

Consumer Courts

Another interesting order was to all the consumer forums – district, state and national – andthe criminal courts, that before issuing notice to a doctor or a hospital, against whom thecomplaint was made, the consumer forum or the criminal court must first refer the matter to acommittee of doctors and only when the committee reports of a prima facie case of medical negligence, the notice should be issued.

Critique

These two orders were rather surprising because this would have created hurdles in theworking of the consumer courts, criminal courts as well as police. As per the law laid downin the Consumer Protection Act, there is no provision for a committee of doctors to first give a prima facie report. It is agreed that in the last 10-15 years there has been a lot of harassment of doctors and hospitals, however it does not mean that the pendulum should swing to theother end. A balance has to be achieved and this is what precisely has been done by anotherbench of the Supreme Court in Kishan Rao’s case in March 2010.

Kishan Rao’s case 9

Kishan Rao got his wife admitted to Nikhil Super Speciality Hospital in Hyderabad as shewas suffering from fever and complaining of chill. She was not given any treatment formalaria. Instead she was being treated for typhoid. She did not respond to the treatment. In avery precarious condition, she was shifted to Yashoda hospital where she died due to cardiorespiratory arrest and malaria. Kishan Rao filed a case in the District Forum and soughtcompensation for the negligence of the Nikhil hospital. The hospital delayed filing the casesheet. Finally, the District Forum decided in favour of Kishan Rao. Hospital appealed in theState Commission, which overturned the decision of the District forum on the ground thatthere was no expert opinion to the effect that the treatment given by the hospital was wrongor the hospital was negligent. National Commission upheld this decision.

Kishan Rao appealed in the Supreme Court, which observed that the case was notcomplicated which required expert opinion as evidence. It was a simple case of wrongtreatment. The patient complained of intermittent fever and chill and was being treated fortyphoid instead of malaria.

The court held that it was not bound by the earlier decision of the same court in MartinD’Souza’s case as that judgment was per incuriam regarding the directions for expert opinionis concerned. The court held that it was not necessary in all cases to seek expert opinionbefore proceeding with the matter. For simple and obvious cases, the consumer courts were free to proceed without seeking expert opinion and the instant case fell in such a category.

In Martin D’Souza the court did not follow the distinction, as laid down in Jacob Mathewcase, regarding criminal prosecution and seeking compensation under Consumer ProtectionAct. Thus, the guidelines, as laid down in Martin D’Souza, regarding expert opinion beforeproceeding with any case do not hold good in consumer protection cases and that too whichare quite obvious and straightforward. Moreover, the consumer protection law has beenenacted to expedite the entire process and the idea of expert opinion at the outset shall defeatthe very purpose of the law. Hence the guidelines, as far as expert opinion before issuingnotice, are concerned need not be followed.

Finally, the Supreme Court allowed the appeal and ordered Nikhil hospital to pay the amountto Kishan Rao as ordered by the District Forum.

Critique

This is a very bold judgment in which a bench (equivalent size to the bench of MartinD’Souza’s case – both two judges, and one judge common) held that the above mentionedobservations of Martin D’Souza’s case were per incuriam.

It was held in A.R. Antulay v. R.S. Nayak, reported in (1988) 2 SCC 602 that per incuriamare those decisions, which are made in ignorance or forgetfulness of some inconsistentstatutory provision or of some authority binding on the court concerned, so that in such casessome part of the decision or some step in the reasoning on which it is based, is found, on thatcount to be demonstrably wrong.

The court held that it was not bound by the directions given in D’Souza’s case and expertevidence from a committee was not required.

This is really unfortunate that contradictory judgments are being pronounced by benches ofequal size in the Supreme Court. Common man is unable to comprehend as to what is theinterpretation of law. Which judgment should a person follow: the earlier judgment or thelatter? In case he does not follow the earlier one, is he going to be punished for contempt ofcourt and in case he follows the earlier judgment will it not be a mockery of the proceduraland substantive law as laid down by the legislature. The matter should be decided by a largerbench of the Supreme Court so that there is certainty and the doctors as well as the patientsare absolutely clear about the provisions of law.

Minor Marghesh Case10

Marghesh, a minor, was admitted in Dr. Mehta’s hospital with the complaint of loosemotions. He was injected glucose saline through his right shoulder and later through the leftfoot, which swelled and turned black upto the knee. He was taken to another hospital wherethe doctor amputated the left leg below the knee as he had developed gangrene. Marghesh,through his father, filed a complaint in the State Commission and claimed compensation forthe negligence of Dr. Mehta. It was allowed. Dr. Mehta appealed in the NationalCommission, where it was allowed on the basis of expert opinion of another doctor that therecould be ten other reasons for gangrene. Marghesh appealed in the Supreme Court, whichtook strong objection to the National Commission’s decision based on the solitary ground ofan expert opinion and did not pay any attention to Dr. Mehta’s conduct during theproceedings. Dr. Mehta did not produce the case papers for six long years and did notproduce a very important key doctor, who was involved in the treatment, as a witness. TheSupreme Court allowed the appeal with the observation that the National Commission shouldhave been much more diligent and cautious.

This judgment gives in a nutshell, most of the recent cases decided by the Supreme Court. Itis more to do with the way the National Commission functions and also a missive as to howthe consumer courts need to exercise discretion. The facts of the case very clearly tell us thatthe patient was not brought in a precarious condition to Dr. Mehta’s hospital and thetreatment given resulted in amputation of the left leg. There was no apparent reason for thisto happen and hence, Dr. Mehta and his hospital are prima facie liable. However, theSupreme Court remanded the matter to the National Commission to be finally decided in aspeedy manner.

Duty

The idea of negligence can be understood only when there is clarity about the duty of thedoctor, assisting staff and the hospital as a whole. In several cases, there is a problem ofoverlapping duties and thus, it becomes difficult to draw a line between the duty of A and B.In any case, the doctor is under an obligation and is directly liable for the acts performed byhim. For the assisting staff, it is the duty of the hospital and the person himself. Both have ajoint and several liability. Thus, it is advisable to have clear-cut duties laid down for differentpersons. But, in practice, this is not so easy. It cannot be done perfectly. The choice is to trydoing it in an imperfect manner or not doing it at all. Prudence says that there can be anendevour to put in black and white the duties of different persons working in a hospital. Itprovides a basic framework, which helps in deciding matters in situations of confusion andfailure.

General Practitioner vs. Specialist

A number of problems arise when a general practitioner tries to treat a patient who requiresservices of a specialist or a super-specialist. On the other hand, there may be problems also insituation when the general practitioner could have treated a patient, however, forms anopinion that he cannot do anything and the patient must be taken to a specialist. In such cases,time may be a crucial factor and by the time the patient is taken to a specialist, it may be toolate. In both the abovementioned situations, it is to be seen that the general practitioner has avery critical role to play in the treatment of a patient. Agreed that the general practitioner isnot supposed to know everything, however, it is expected that he must guide the patientproperly to the best of his ability. He has to exercise his discretion so that the patient gets thebest, at that place and at that time, taking into account the distance of the nearest specialist,his availability and the condition of the patient. Thus, a lot depends on the first doctor towhom the patient is taken for treatment. There can be no hard and fast rules to be followed,however, the doctor must make a decision in the context of the facts and circumstances.Common sense of a trained medical expert – not of a layman – is the guiding factor.

Risk and adventure

A problem often seen is the experimentation mode of some doctors. As they might have beenpractising as a doctor for a very long time, they have experience and on the basis of thatexperience they would like to deviate from the standard set practice and procedure followedby others. There is nothing wrong per se. The only problem is when it becomes anunnecessary experimentation. Risk taking just for adventure is not acceptable. Thus, if adoctor can perform a difficult surgery in candle light – because there is no electricityconnection – it does not make sense that he insists performing surgery in candle light whenthere is power available. Thus, the level of expertise expected is that of the ‘person havingordinary skills in the art’ and the conduct expected is that of a reasonable and prudent person.

Protocol

the patients with the well-settled methods. Assumptions taken while giving such a treatmentshould also be documented. Also, the practicing doctor need not follow it blindly.Commonsense of an expert – trained medical practitioner – must be exercised. In case there isa failure to exercise commonsense, it is a case of negligence. As a layman, let us take anexample. A standard procedure discusses about a treatment for certain disease prevalent in avery cold place. Now, before administering that treatment to a patient with that disease whorecently travelled from a very cold place to a hot place, the doctor has to take into accountthat the place where is treatment currently will be given is a hot place. As common sense – ofa layman – tells us, the patient cannot, of course, be expected to cover himself with blanketsand drink lot of warm fluids. The common sense of an expert has to add on to the commonsense of a layman. Thus, the guidelines provide a certain direction and guidance to achieveand end. In no case the guidelines should become an end in themselves.

Paper work

Law requires evidence and documentary evidence in the form of case papers has to bemeticulously prepared. The duty of the doctor is to treat the patient, however, it is alsoimportant to document the treatment given and at times the reason why such treatment hasbeen given. The matters reach a court after several months and years and by that time theonly thing on which the parties can rely in the court is the case file. The oral evidence ofdoctors and other staff also adds to the evidence, however, the documentary evidence alwaysgets precedence, until and unless proved to be forged. It is also important to havetransparency in the system and give a copy of all the papers, reports, films, etc. to the patient.In such a case the confidence of a patient in the hospital and its system increases. There are,however, some doctors and hospitals who try to keep the patient in the dark. The oft-repeatedphrase is, “do you have trust in me?” The patient is almost at the mercy of the doctor.

Electronic Records

An important improvement in the paper work has been in the shape of electronic records,which allow easy storage and retrieval. At the same time, several copies can easily be made.There is also minimal chance of errors creeping in as most of the items are to be selectedfrom a drop-box. The issue of bad handwriting, very common complaint with doctors, is alsoeasily taken care of. All new hospitals work with local network of computers and do nottransfer papers from one place to another. There is also no chance of losing a paper.

Conclusion

There are two possibilities in cases of negligence – either it is negligence of the doctor or it isnegligence of the staff. There may be a possibility of negligence, both of the doctor and thestaff. In most of the cases, it will be a case of joint and several liability, and both the doctorand the hospital will be liable. The division of liability between the two of them will bedecided according to the understanding between the two. As far as determining negligence isconsidered, courts have to depend on the advice of experts, except in cases of blatantviolation of protocol and doing things which are considered to be unreasonable andimprudent. The level of subjectivity in such decisions is quite high and the purpose of law tobe certain and specific is defeated to a large extent. Recent decisions are a good step in thedirection of making this murky area a bit tidy, however, a lot needs to be done by the courtsin the shape of clearer judgments so that the layman can benefit. As of now, the judgments leave a lot of room for discretion, which at times may be exercised by different persons,including doctors and judicial officers, in an undesirable manner. The law on the subjectneeds to be more precise and certain. That will surely give a better understanding about the“reasonable man”.

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