Author Name:   kiruthikadhanapal@legalserviceindia.com

Test of Medical Negligence with the concept of reasonable man and prudence and the Bolam test followed by the Indian Courts and the Bolitho test the need of the Hour.

Test of Medical Negligence

HEALTH and happiness go together. Happiness is a vain dream if health is absent. The Shruthis (holy scriptures) declare that health is very basic quality for man, since without it he cannot realize any of the four goals of life, right doing, right desiring, right earning and final release. A sound mind needs a sound body; the one reacts on the other. Doctors are, really speaking, the most important class of sevaks. When seva is rendered with love, intelligence and earnestness, it leads persons nearer and nearer to Divinity, for it draws unto itself the Grace of God. This is the reason why the scriptures elevate the vaidhya (doctor) to the status of God. "Vaidhyo Naaraayano Harih"---"The doctor is Naaraayana (God), He is Hari." He is Hari, the remover or destroyer, since he destroys hurdle on the path of man to saadhana (spiritual discipline). Doctor is a word, when heard by anyone can immediately develop respect in the heart. It is the noblest profession in all the professions available throughout the world.

Being a doctor is having the responsibilities more, than the privilege. Doctor is considered as a highly responsible person because he can save a life of human being, when the patient is in critical condition. Doctors have the highest responsibilities over the life of the patient. There are many critical situations, when doctor play the most important role in saving life of the patient. It is the most demanding profession throughout the globe. The profession is just of helping the community, rather than what you can get from the community.

Since no man is perfect in this world, it is evident that a person who is skilled and has knowledge over a particular subject can also commit mistakes during his practice. Such mistakes in the medical profession may lead to minor injuries or some serious kinds of injuries and sometimes these kinds of mistakes may even cause death. In such situations there arises a need for a remedy to the injured people so that justice is upheld and this gave rise to the concept of medical negligence.

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

In medical negligence litigation, a key step is for the claimant to prove that the physician failed to meet the required standard of care. The traditional test in law in such cases remains the Bolam test which states that a doctor is not negligent if what he has done would be endorsed by a responsible body of medical opinion in the relevant specialty at the material time.

The Bolam test has been followed for a long time in India, the principle being used and applied in cases like Suresh Gupta. But the question that still remains is whether India needs to adopt the new test to satisfy the requirements of stricter medical negligence laws and meet the needs of increasing negligence litigation.

Negligence

Dictionary meaning of term ‘Negligence’ is ‘Lack of Proper Care’. As defined by Baron Alderson negligence means: “Omission to do something which a reasonable man guided by those consideration which regulate conduct of human affairs would do, or doing something which a reasonable man would not do”.

In jurisprudence no distinction may be drawn between negligence under civil and criminal law but degree of negligence is high to fasten the liability under criminal laws, essential element of mens rea cannot be discarded while fixing the liability in criminal case. Lord Atkin in his speech in Andrews vs. Director of Public Prosecutions stated “simple lack of care will constitute a civil liability is not enough; for purposes of criminal law there are degrees of negligence, and very high degree of negligence is required to proved before felony is established”.

Constituents For Negligence

(1) a legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of duty;
(2) Breach of the same duty; and
(3) Consequential damages.

In the landmark Bolam case, it was held that: “In the ordinary case which does not involve any special skill, negligence in law means a failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that 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”.

Reasonable Man
It has been held by the courts that the test of reasonableness is that of the ‘ordinary man’ or also 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 the street. He is the ordinary man.” The courts used to judge the conduct of any defendant by comparing it with that of the hypothetical ordinary man. As a legal fiction,[6] the "reasonable person" is not an average person or a typical person. Instead, the "reasonable person" is a composite of a relevant community's judgment as to how a typical member of said community should behave in situations that might pose a threat of harm (through action or inaction) to the public.

Professional
According to the English language, a professional is a person doing or practising something as a full-time occupation or for payment or to a make a living; and that person knows the special conventions, forms of politeness, etc. associated with a certain profession.

Rupert M. Jackson and John L. Powell observed in Indian Medical Association vs. V.P. Shanta that occupations which are regarded as professions have 4 characteristics, they are:
(1) the nature of the work which is skilled and specialized and a substantial part is mental than manual;
(2) to commitment to moral principles which go beyond the general duty of honesty and a wider duty to community which may transcend the duty to a particular client or patient;
(3) professional association which regulates admission and seeks to uphold the standards of the profession through professional codes on matters of conduct and ethics; and
(4) high status in the community.

Negligence by Professionals

The Supreme Court of India discussed the conduct of professionals and what may amount to negligence by professionals in Jacob Mathew’s case: “In the law of negligence, professionals such as lawyers, doctors, architects and others are 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 would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. 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”.

The Bolam case very clearly distinguished between the negligence by an ordinary man and negligence by a professional in the following words: “But 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. 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.”

Finally, while dealing with negligence the Supreme Court made the following observations: A professional may be held liable for negligence when

a) He was not possessed of the requisite skill which he professed to have possessed; [and/ or]
b) 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.

Medical Negligence

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. 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.

Medical negligence is the act or omission in treatment of a patient by a medical profession, which deviates from the accepted medical standard of care. It occurs when a doctor, dentist, nurse, surgeon or any other medical professional performs their job in a way that deviates from the accepted medical standard of care (more on that later) ie, if a doctor breaks the rules regarding how to treat a patient, and does something that is "against the rules", then that doctor has failed to perform his duty, and is said to be negligent.

Components of Medical Negligence

Winfield stated that a negligent act comprises of three main components. They are-
# Existence of legal duty ·
# Breach of legal duty.
# Damage caused by the breach

1. Existence of legal duty: whenever a person approaches another trusting him to possess certain skill, or special knowledge on a given problem the second party is under an implied legal duty to exercise due diligence as is expected to act at least in such a manner as is expected in the ordinary course from his contemporaries. So it is not that the legal duty can only be contractual and not otherwise. Failure on the part of such a person to do something which was incumbent so, that which would be just and reasonable tantamount to negligence

2. Breach of legal duty: there is a certainly a breach of legal duty if the person exercising the skill does something which an ordinary man would not have done or fails to do that which an ordinary prudent man would have done in a similar situation. The standards are not supposed to be of very high degree or otherwise, but just the relative kind, that is expected from man in the ordinary course of treatment.

3. Damages caused by the breach: the wrong, the injury occasioned by such negligence is liable to be compensated In terms of money and the courts apply the well settled principles for determination of the exact liquidated amount. We must remember that no hard and fast rule can be laid down for universal application. While awarding compensation, the consumer forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles on moderation. It is for the consumer forum to decide whether the compensation awarded is reasonable, fair and proper according to the facts and circumstances of the case.

This is the ordinary legal meaning of negligence. But for professionals such as medical practitioners an additional perspective is added through a test known as the Bolam test which is the accepted test in India. In the Bolam case, the court held that: “In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if he conforms with one of those proper standards, then he is not negligent”.

To prosecute a medical professional for negligence under criminal law it must be shown 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 of such a nature that the injury which resulted was most likely imminent.

Degree of Negligence

The most important criterion is the degree of negligence required to prosecute them under the charge of criminal negligence, which should be gross or even high degree. The jurisprudential concept of negligence differs in civil and criminal law. Negligence which is neither gross nor of a high degree may provide a ground for action in civil law but cannot form the basis for prosecution in criminal law. The Delhi High Court laid down in 2005 that in civil law, there are three degrees of negligence:

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

High degree of negligence is necessary to prove the charge of criminal negligence u/s 304-A IPC. For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be as high as can be described as “gross negligence”. It is not merely a lack of necessary care, attention and skill.

The Supreme Court held that “Thus, when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man can’t be termed as ‘Criminal’. It can be termed ‘Criminal’ only when the medical man exhibits as gross lack of competence or inaction and wanton indifference to his patient’s safety and which is found to have arisen from gross ignorance or gross negligence”.

Gross Negligence

Gross negligence is commonly defined as “the failure to exercise even the slightest amount of care”. It often involves the deliberate disregard of another person’s safety. A person who is found guilty of gross negligence usually knows, or should have known of the danger involved in the conduct they performed. Gross negligence usually involves unintentional acts, but they can border on intentional conduct due to the reckless nature of the activity.

Some examples of gross negligence include:
1. A doctor amputating the wrong limb of a patient.
2. A surgeon leaving a foreign object inside the body of a patient (such as a medical sponge or bandage).
3. A driver speeding in a parking lot where several pedestrians are walking.
4. A caregiver neglecting to give an elderly person food or water for several days.


In Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia & Anr., the Apex Court has specifically laid down the following principles for holding doctors negligent: “Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitur can be applied.”

When Liability Arises
The liability of a doctor arises not when the patient has suffered any injury, but when the injury has resulted due to the conduct of the doctor, which has fallen below that of reasonable care. Hence, once the existence of a duty has been established, the plaintiff must still prove the breach of duty and the causation. In case there is no breach or the breach did not cause the damage, the doctor will not be liable. In order to show the breach of duty, the burden on the plaintiff would be to first show what is considered as reasonable under those circumstances and then that the conduct of the doctor was below this degree. However, in some cases like a swab left over the abdomen of a patient or the leg amputated instead of being put in a cast to treat the fracture, the principle of ‘res ipsa loquitur’ (meaning thereby ‘the thing speaks for itself’) might come into play. The following are the necessary conditions of this principle.

1. Complete control rests with the doctor

2. It is the general experience of mankind that the accident in question does not happen without negligence. When this principle is applied, the burden is on the doctor/defendant to explain how the incident could have occurred without negligence. In the absence of any such explanation, liability of the doctor arises.

Normally, a doctor is held liable for only his acts (other than cases of vicarious liability). However, in some cases, a doctor can be held liable for the acts of another person which injures the patient. The need for such a liability may arise when the person committing the act may not owe a duty of care at all to the patient or that in committing the act he has not breached any duty. A typical example of a case where such a situation may arise is in the case of a surgery. If a junior doctor is involved as part of the team, then his duty, as far as the exercise of the specialist skill is concerned, is to seek the advice or help of a senior doctor. He will have discharged his duty once he does this and will not be liable even if he actually commits the act which causes the injury. In such a case, it is the duty of the senior doctor to have advised him properly. If he did not do so, then he would be the one responsible for the injury caused to the patient, though he did not commit the act.

Duty of Care
The word ‘duty’ connotes the relationship between one party and another, imposing on the one an obligation for the benefit of that other to take reasonable care. The duties, which a doctor owes to his patient, are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed with skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties.

1. A duty of care in deciding whether to undertake the case.
2. A duty of care in deciding what treatment to give.
3. A duty of care in the administration of that treatment.

Standard of Care
There was considerable ambiguity on the standard of care required to be exercised by medical practitioners in order to discharge possible criminal liability arising out of their acts or omissions. It is now a settled principle of law that a medical practitioner will bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor the very lowest degree of care and competence judged in the light of circumstances in each case is what the law requires.

Reasonable degree of care and skill means that the degree of care and competence that an “ordinary competent member of the profession who professes to have those skills would exercise in the circumstance in question.” At this stage, it may be necessary to note the distinction between the standard of care and the degree of care. The standard of care is a constant and remains the same in all cases. It is the requirement that the conduct of the doctor be reasonable and need not necessarily conform to the highest degree of care or the lowest degree of care possible. The degree of care is a variable and depends on the circumstance. It is used to refer to what actually amounts to reasonableness in a given situation.

On this aspect, it would be worthwhile to refer to the enunciation from Halsbury’s Laws of England. “With regard to degree of skill and care required by the doctors, it has been stated as under in Dr.Laxman Balakrishna Joshi Vs. Dr.Trimbak Bapu Godbole, “The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Failure to use due skill in diagnosis with the result that wrong treatment is given is negligence. Neither the very highest nor a very low degree of care and competence.”

Test Used To Determine The Liability

Indian courts have conformed to the test aid down in the Bolam case and have adhered to the same in all medical negligence litigation. It was a test whereby the defendants conduct is tested against the normal usage of his professional calling. This test is one that is applied to all kinds of negligence and not only medical negligence. There are three criteria’s that have to be fulfilled for the test to show a positive result, they are-
a. It must be proved that the there is a usual and normal practice
b. It must be proved that the defender has not adopted that practice
c. It must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care.[this is the most important criteria of the test out of the other three.]

Indian Cases Where Bolam Test Being Followed
In India, Bolam test has broadly been accepted as the general rule. In Achutrao Haribhau Khodwa vs. State of Maharastra, this Court held : "The skill of medical practitioners differs from doctor to doctor. The nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence..In cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable."

In Poonam Verma v. Ashwin Patel and Ors., a doctor registered as medical practitioner and entitled to practice in Homoeopathy only, prescribed an allopathic medicine to the patient. 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 on the ground that the doctor who was entitled to practice in homoeopathy only, was under a statutory duty not to enter the field of any other system of medicine and since he trespassed into a prohibited field and prescribed the allopathic medicine to the patient causing the death, his conduct amounted to negligence per se actionable in civil law. Dr. Laxman Balkrishna Joshi’s case, (supra) was followed. Vide para 16, the test for determining whether there was negligence on the part of a medical practitioner as laid down in Bolam’s case (supra) was cited and approved.

In State of Harvana and Ors. v. Smt. Santra, also Bolam’s test has been approved. This case too refers to liability for compensation under civil law for failure of sterilization operation performed by a surgeon.

The Court in Dr. Suresh Gupta Vs. Government of NCT of Delhi held that the test for determining medical negligence as laid down in Bolam's case holds good in its applicability in India.

Criticism on Bolam Test In England

This Bolam case has been a matter of sustained criticism. In the later stages, due to the variety of cases that came in front of the court, the courts had decided to loosen this test so that cases such as the Bolam’s case can be decided. After the partial failure of this case the courts tried to come up with innovative and alternative techniques like the concept of reasonability etc. Though the test given in Bolam’s case is still holding good ground on the given factors, the changing scenario has been taking into account by the House of Lords. It also hints towards the acceptance of a broader liability regime under the consumer protection law when it discusses the issue similarity of liability in cases of loss of business opportunity as a result of deficient advice and medical negligence leading to loss of opportunity to recover.

The Doctrinal Shift In England

The House of Lords ruling in Bolitho signalled a shift away from Bolam. It was no longer enough for the standard of care proclaimed by a defendant doctor to be endorsed by a responsible body of peers. In minority judgment comments in Bolitho, it was emphasised that the word "responsible" in the traditional formulation of the Bolam test meant that responsible practice is that which withstands the scrutiny of "logical analysis" from a judicial perspective.

The clinical practice, however prevalent within the medical profession, would perhaps be unlikely to withstand logical scrutiny if that practice is contrary to a clear consensus emerging from the evidence base. In his opinion delivered in the Bolitho case, Lord Browne-Wilkinson indicated that experts should direct their minds to the question of comparative risks and benefits in order to reach a defensible conclusion on the matter in question. A clinical conclusion which does not have risk analysis at its heart is not likely to be deemed a responsible conclusion.

Bolitho has called attention to this issue and will therefore take effect not only in determining the logical basis of the course of action offered by the defendant, but also by engaging more forcefully in assessing risk analysis. Properly considered clinical guidelines will similarly weigh the risks and benefits. This consonance with doctrinal changes may be a further factor for evidence-based guidelines to play a greater part in medical litigation proceedings.

Bolitho In India

The Bolitho test has been mentioned in the Indian Supreme Court on only two occasions. It was stated in Samira Kohli v Prabha, where the court clearly pointed out that "A beginning has been made in Bolitho v City and Hackney and Pearce v United Bristol Healthcare. We have however, consciously preferred the 'real consent’ concept evolved in Bolam." Similar was the case in Vinitha Ashol v Lakshmi Hospital where the court did not look into the test at all. In Vinitha Ashok vs. Lakshmi Hospital, this Court after referring to Bolam, Sidaway and Achutrao, clarified: "A doctor will be liable for negligence in respect of diagnosis and treatment in spite of a body of professional opinion approving his conduct where it has not been established to the court's satisfaction that such opinion relied on is reasonable or responsible. If it can be demonstrated that the professional opinion is not capable of withstanding the logical analysis, the court would be entitled to hold that the body of opinion is not reasonable or responsible”.

Why Bolitho Should Be Adopted

Unfortunately, medical negligence occurs every day in Indian hospitals and there are believed to be almost a million such occurrences every year. Around one in 10 patients are believed to suffer further as a result of their treatment in hospital and a proportion of these people will go on to claim personal injury compensation through a medical negligence claim.

The Bolitho test makes it possible to get quick relief as it increases the burden on the medical practitioner and thus leaves more scope for compensation. Unlike the Bolam test, the Bolitho test says that the court should not accept a defence argument as being "reasonable", "respectable" or "responsible" without first assessing whether such opinion is susceptible to logical analysis. However, where there is a body of medical opinion which represents itself as "reasonable", "respectable" or "responsible" it will be rare for the court to be able to hold such opinion to be other than represented. The Bolitho ruling means that testimony for the medical professional who is alleged to have carried out the medical negligence can be found to be unreasonable, although this will only happen in a very small number of cases.

Conclusion
Looking at the increasing amount of litigation for medical negligence in consumer forums in India, it is high time that the Indian courts adopt the same model and implement it in the larger interests of the public.
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# M. C. Gupta, What is Medical Negligence, www.indmedica.com, 18-08-2013.
# Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582.
# Suresh Gupta (Dr) v. Govt. of NCT of Delhi (2004) 6 SCC 422.
# Samira Kohli v. Dr Prabha Manchanda (2008) 2 SCC 1.
# Bolam v. Friern Hospital Management Committee, Queen’s Bench Division, 1957, Date of decision – 26 February 1957, Citation: [1957] 1 W.L.R. 582 = [1957] 2 All E.R. 118.
# Bedder v Director of Public Prosecutions, 1 WLR 1119 (1954)
# Oxford Advanced Learner’s Dictionary of Current English, A. S. Hornby.
# Indian Medical Association vs V P Santha. AIR 1996 SC 550.
# Jacob Mathew vs. State of Punjab, Supreme Court of India, August 5, 2005, Citation: 2005 (6) SCC 1 = AIR 2005 SC 3180
# Subrahmanyam B. V., Modi’s: Medical Jurisprudence & Toxicology, 22nd edition, 2004, publisher: LexisNexis Butterworths, pp 704.
# “Fresh Rules in Negligence Arrests”, The Times of India, August 23, 2003, www.thetimesofindia.com,18-08-2013.
# Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia & Anr., (1998) 4 SCC 39 at 47
# “Doc not Criminally Liable if Patient Dies”, Hindustan Times, August 6, 04, www.hindustantimes.com,
# 18-08-2013.
# S.V.Joga Roa,Medical Negligence vis - à - vis Medical Profession in Changing Scenario, www.ijme.in,18-08-2013.
# Halsbury’s Laws of England, 4th Edt, Vol.30, pr.36, p.36.
# 1996 (2) SCC 634.
# (1996) 4 SCC 332.
# Dr. Laxman Balakrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128.
# (2000) 5 SCC 182.
# (2004) 6 SCC 422.
# Samira Kohli v. Dr Prabha Manchanda (2008) 2 SCC 1.
# Brazier M, Miola J. Bye-Bye Bolam: a medical litigation revolution? Med Law Rev. 2000;8(1): 85-114.
# Foster C. Bolam: consolidation and clarification. Health Care Risk Report. 1998 Apr;4(5): 5.
# (2008) 2 SCC 1.
# Samanta A, Samanta J. Legal standard of care:a shift from the traditional Bolam test. Clin Med. 2003; 3(5): 443-6.
# 2001 (8) SCC 731.

The  author can be reached at: kiruthikadhanapal@legalserviceindia.com

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