PROFESSIONAL AND MEDICAL NEGLIGENCE

The Apex Court in Jacob Mathew v. State of Punjab

explained :
"Any reasonable man entering into a profession
which 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 to possess shall be exercised
and exercised with reasonable degree of care and
caution. He does not assure his client of the result.
A lawyer does not tell his client that the client shall
PROFESSIONAL AND MEDICAL NEGLIGENCE
…A surgeon cannot and does not guarantee that
the result of surgery would invariably be beneficial,
much less to the extent of 100% for the person
operated on. The only assurance with such a
professional can give or can be understood to have
given by implication is that he is possessed of the
requisite skill in that branch of profession which he
is practicing and while undertaking the
performance of the task entrusted to him he would
be exercising his skill with reasonable competence.
PROFESSIONAL AND MEDICAL NEGLIGENCE
…Judged by this standard, a professional may be
held liable for negligence on one of 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 necessary
PROFESSIONAL AND MEDICAL NEGLIGENCE
This case also referred to one of the landmark
decisions in the area of medical negligence – Bolam
v. Friern Hospital Management Committee, wherein
Me Nair J. observed :
“Where you get a situation which involves the use
of some special skill or competence, then the test as
to whether there has been negligence or not is not
the test of the man on the top of a Clapham
omnibus, because he has not got this special skill…
PROFESSIONAL AND MEDICAL NEGLIGENCE
The test is the standard of the ordinary skilled man
exercising and professing to have that special
skill… A man need not possess the highest expert
skill; it is well established law that it is sufficient if
he exercises the ordinary skill of an ordinary
competent man exercising that particular art.”
PROFESSIONAL AND MEDICAL NEGLIGENCE
After a review of various authorities, Bingham L.J.
in Eckersley v. Binnie summarized the Bolam test in
the following words:
“From these general statements it follows that
• a professional man should command the corpus
of knowledge which forms part of the
professional equipment of the ordinary member
of his profession.
• He should not lag behind other ordinary
assiduous and intelligent members of his
PROFESSIONAL AND MEDICAL NEGLIGENCE
• He should have such an awareness as an
ordinarily competent practitioner would have of
the deficiencies in his knowledge and the
limitations on his skill.
• He should be alert to the hazards and risks in
any professional task he undertakes to the extent
that other ordinarily competent members of the
profession would be alert.
PROFESSIONAL AND MEDICAL NEGLIGENCE
• He must bring to any professional task he
undertakes no less expertise, skill and care than
other ordinarily competent members of his
profession would bring, but need bring no more.
• The standard is that of the reasonable average.
• The law does not require of a professional man
that he be a paragon combining the qualities of
polymath and prophet.
PROFESSIONAL AND MEDICAL NEGLIGENCE
What happens when the doctor uses a particular
method or technique for diagnosis or treatment,
and the patient alleges that the very use of such
technique was negligent (rather than a good
technique being used negligently)?
The Bolam Test
If a doctor who is accused of negligence presents
expert opinion to the effect that he "has acted in
accordance with a practice accepted as proper by a
responsible body of medical men skilled in that
PROFESSIONAL AND MEDICAL NEGLIGENCE
But is it enough then, that whatever doctor
presents as expert evidence of the acceptability of
his technique is accepted by court as conclusive
proof for absence of negligence?
The Bolam Test did not intend the doctor's expert's
evidence to be conclusive of the question of breach,
but that is certainly how it came to be interpreted
and, on that basis, it was judicially criticised on
several counts.
PROFESSIONAL AND MEDICAL NEGLIGENCE
It was said to be "over protective and deferential"
toward doctors.
It had the potential to be satisfied "by the
production of a dubious expert whose professional
views existed at the fringe of medical
consciousness".
There was a perception that the medical profession
was "above the law", that the Bolam test deprived
courts of the opportunity of “precipitating changes
where required in professional standards”.
PROFESSIONAL AND MEDICAL NEGLIGENCE
It was said that “professions may adopt
unreasonable practices.”
Practices may develop in professions ... not because
they serve the interest of the clients, but because
they protect the interests or convenience of
members of the profession.
More dramatically, there was a view that Bolam
did not necessarily protect the community against
unsafe medical practices, and that more judicial
safeguards for the public were required.
PROFESSIONAL AND MEDICAL NEGLIGENCE
In Bolitho v. City and Hackney these numerous
concerns were explicitly addressed.
Lord Browne-Wilkinson (with whom the other
members of the House agreed) stated that:
“in cases of diagnosis and treatment there are cases
where, despite a body of professional opinion
sanctioning the defendant's conduct, the defendant
can properly be held liable for negligence ... that is
because, in some cases, it cannot be demonstrated
to the judge's satisfaction that the body of opinion
PROFESSIONAL AND MEDICAL NEGLIGENCE
In the vast majority of cases the fact that
distinguished experts in the field are of a particular
opinion will demonstrate the reasonableness of that
opinion...But if, in a rare case, it can be
demonstrated that the professional opinion is not
capable of withstanding logical analysis, the judge
is entitled to hold that the body of opinion is not
reasonable or responsible.”
PROFESSIONAL AND MEDICAL NEGLIGENCE
It is to be noted that a person is not negligent
merely because there is a body of opinion who
would take a contrary view – and the Bolitho test is
only to be applied to those circumstances in which
a body of medical opinion "cannot be logically
supported at all".
PROFESSIONAL AND MEDICAL NEGLIGENCE
Bolam test as modified by Bolitho test apply to a
wide field of the liability of a doctor namely;
• Liability in respect of diagnosis
• Duty to warn patient of risks inherent in
treatment
• Liability in respect of operating upon or giving
treatment involving physical force to a patient
who is unable to give his consent, and
• liability in respect of treatment.
PROFESSIONAL AND MEDICAL NEGLIGENCE
Patients incapable of giving consent
At common law, a doctor cannot lawfully operate
on a adult person of sound mind (or any other
treatment involving physical force) without the
consent – or else the tort of trespass to person is
considered to have been committed.

But what about patients not capable of giving

consent?
PROFESSIONAL AND MEDICAL NEGLIGENCE
In India,
Samira Kohli v. Prabha Manchanda has laid down the
law with respect to medical negligence and
liability:
1. The doctor has to seek and secure consent of the
patient before commencing a treatment. The
consent has to be real and valid (the patient should
have capacity to consent), should be voluntary and
should be based on adequate information
concerning the nature of treatment procedure.
PROFESSIONAL AND MEDICAL NEGLIGENCE
2. Adequate information should be provided to the
patient that should enable the patient to make a
balanced judgement. Doctor should disclose:
• Nature and procedure of treatment and its
purpose, benefits and effects
• alternatives if any available
• an outline of substantial risk
• adverse consequence of refusing treatment
• No need to explain remote or theoretical risk
involved which may frighten the patient
PROFESSIONAL AND MEDICAL NEGLIGENCE
3. Consent given only for diagnostic procedure
cannot be considered as consent for therapeutic
treatment. Consent for specific treatment will not
be valid for conducting some other treatment
procedure.
However, unauthorized additional surgery which
may be beneficial to the patient or save
considerable time and expense of the patient is no
ground for a tort of negligence, assault or battery
committed by doctors.
PROFESSIONAL AND MEDICAL NEGLIGENCE
4. There may be common consent for diagnostic
and operational procedure and additional surgery.
5. Nature and extent of information to be
furnished by doctor need not be of high degree but
should be of extent which is acceptable to normal
and proper medical men skilled and experienced in
that particular field. It will depend on physical and
mental condition of patient, nature of treatment,
risk of consequence attached to the treatment.
PROFESSIONAL AND MEDICAL NEGLIGENCE
What if the consent is to remove life support
system when there is no chance of recovery?

What if in a case like this, the patient is incapable of

giving consent?

Airdale NHS Trust v Bland

What about Euthanasia? – Gian Kaur v State

PROFESSIONAL AND MEDICAL NEGLIGENCE
Martin F. D’Souza v Mohd Ishfaq
Supreme Court issued guidelines to the legal
authorities hearing medical negligence cases to first
obtain a report from committee of competent
medical professionals about the prima facie issue of
negligence before issuing notice to the doctor
implicated in the case, to avoid undue harassment
of doctors.
PROFESSIONAL AND MEDICAL NEGLIGENCE
Deviation from normal practice is held not
necessarily evidence of negligence. To establish
liability on that basis it must be shown :
(1) that there is a usual and normal practice;

(2) that the defendant has not adopted it; and

(3) that the course in fact adopted is one no

professional man of ordinary skill would have
taken had he been acting with ordinary care.
This applies to all professions.
PROFESSIONAL AND MEDICAL NEGLIGENCE
A comparative assessments of risk involved and
the potential benefits from the risk must be
undertaken to understand the negligence in the
case.

Maynard v Midlands Regional Health Authority

Comparative assessment involving Tuberculosis

and Hodgkins disease.
PROFESSIONAL AND MEDICAL NEGLIGENCE
Poonam Verma v. Ashwin Patel
A doctor registered as medical practitioner and
entitled to practice in Homoepathy only, prescribed
an allopathic medicine to the patient.
As a result the patient died. The doctor was held to
be negligent and liable to compensate the wife of
the deceased for the death of her husband.
The doctor who was entitled to practice in
homoeopathy only, was held under a statutory
duty not to enter the field of any other system of
PROFESSIONAL AND MEDICAL NEGLIGENCE
Since he trespassed into a prohibited field and
prescribed the allopathic medicine to the patient
causing the death, his conduct held amounted to
negligence per se actionable in civil law.
PROFESSIONAL AND MEDICAL NEGLIGENCE
If the specialist doctor does not care to attend to a
patient admitted in the emergency ward of a
hospital and the patient dies, the doctor would be
liable to pay compensation.
In Sishir Rajan Saha v. The State of Tripura, the
petitioner's son, Ashim Saha while coming from
Agartala to Udaipur on scooter met with an
accident.
He was admitted to the emergency ward of the
G.B. Hospital, Agartala.
PROFESSIONAL AND MEDICAL NEGLIGENCE
The Senior Specialist Doctor, Dr. P. Roy was not
available in the hospital. He was repeatedly called
to attend to the patient. He was busy attending to
his private patients and did not bother to come to
the hospital to attend to the accident victim.
Ashim Saha succumbed to his injuries.
Dr. P. Roy was held liable to pay Rs. 1,25,000 as
compensation for the death of the deceased.