Medical Negligence Cases Law Firm in Delhi

It is one thing to say that when two views are possible and when Doctor performing the surgery adopts one view, the same cannot be a basis for fixing the medical negligence, on the ground that he ought to have followed the other. However, in a case where an act was done by a Doctor which he is otherwise not supposed to do and such an act was done in a negligent manner resulting in a substantial injury to the patient, then he cannot escape the liability. When a Doctor who performs a surgery is in possession of certain facts and the factum of the surgery has not been disputed, coupled with the fact that, the complications have arisen in pursuant to the surgery not correctly done then the onus is on him to prove that

negligence is not on his part. When the accident is such that in the ordinary course of action it is not likely to happen if the person incharge has not taken proper care then, the consequential liability will be on him.

Criminal Medical Negligence is governed by Section 304A of the Indian Penal Code. Section 304-A of the Indian Penal Code reads as under:- "304-A. Causing death by negligence.- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable

homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." Essential ingredients of Section 304-A are as under:- (i) Death of a person

(ii) Death was caused by accused during any rash or negligence act. (iii) Act does not amount to culpable homicide. And to prove negligence under Criminal Law, the prosecution must prove:

(i) The existence of duty.

(ii)A breach of the duty causing death.

(iii) The breach of the duty must be characterized as gross negligence.

[See R. v. Prentice and R v. Adomako: [1993] 4 All ER 935] The question in the instant case would be whether the Respondents are guilty of criminal negligence. Criminal negligence is the failure to exercise duty with reasonable and proper care and employing precautions guarding against injury to the public generally or to any individual in particular. It is, however, well settled that so far as the negligence alleged to have been caused by medical practitioner is concerned, to constitute negligence, simple lack of care or an error of judgment is not sufficient. Negligence must be of a gross or a very high degree to amount to Criminal Negligence. Medical science is a complex science. Before an inference of medical negligence is drawn, the court must hold not only existence of negligence but also omission or commission on his part upon going into the depth of the working of the professional as also the nature of the job. The cause of death should be direct or proximate. A distinction must be borne in mind between civil action and the criminal action.

(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ‘duty’, ‘breach’ and ‘resulting damage’.

(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the 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 merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light 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 particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have 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 competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

(4) The test for determining medical negligence as laid down in Bolam’s case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India