Doctor's Duty of Care

7/31/2019 Doctor's Duty of Care

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P ROJECT R EPORT

O N

L AW OF T ORTS

D OCTOR S DUTY OF CARE

RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW

IIT KHARAGPUR

2011

SUBMITTED BY:

ISHA SURI

11IP60023

LL.B 1ST SEMESTER


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Doctors Duty of Care

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T ABLE OF C ONTENTS

INTRODUCTION ........................................................................................................................................ 3

DUTY OF CARE ........................................................................................................................................... 5 AUTONOMY OF MEDICAL PROFESSIONALS: ......... ........... .......... ........... .......... ........... .......... .......... 8

LAWS ON MEDICAL NEGLIGENCE ....................................................................................................10

UK: .........................................................................................................................................................10

US: .........................................................................................................................................................11

INDIA : .....................................................................................................................................................11

CONCLUSION ............................................................................................................................................15

BIBLIOGRAPHY .......................................................................................................................................16


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I NTRODUCTION From too much zeal for the new, contempt for the old; from putting knowledge before

wisdom; science before art: cleverness before commonsense; from treating patients as

cases and for making cure of disease more grievous than the endurance thereof: good

Lord deliver us

Robert Hutchinson 1

Inherent sickness and mortality of human beings makes the job of health care

professionals, especially doctors, highly complex. Furthermore, an increase in awareness

among patients has brought medical profession under the scrutiny of public as well as the

judiciary. The duty of any doctor is to act with reasonable professional care and skill,

expected from someone holding that position. This standard is to be applied in the light of

medical knowledge as it was at the time, not in the light of any later developments 2.

In tort law, a duty of care is a legal obligation imposed on an individual requiring that

they adhere to a standard of reasonable care while performing any acts that could

foreseeably harm others. It is the first element that must be established to proceed with an

action in negligence 3.

Negligence is the breach of duty caused by the 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 or reasonable man would

not do. Negligence becomes actionable on account of injury resulting from the act or

omission amounting to negligence attributable to the person sued. According to the

definition, negligence should comprise duty, breach and resulting damage 4.

1 A.Ghosh, Whose Life Is It, Any Way? The Times of India, Sept. 11, 2004, at p.112 Roe v Minister of Health [1954] 2 QB 663 Caparo Industries plc v. Dickman [1990] 2 AC 6054 Dr. R.K. Bangia, Law of Torts (Allahbad Law Agency, 22 nd edition 2010)


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When a medical practitioner attends to his patient, he owes to him the following duties of

care 5:

1. A duty of care in deciding whether to undertake the case;

2. A duty of care in deciding what treatment to give; and

3. A duty of care in the administration of the treatment.

The objective of this paper is to explain the scope of a docto rs duty of care towards his

patients and understand its evolution thorough certain recent developments.

5 Dr. L.B. Joshi v. Dr. T.B. Godbole , AIR 1989 P.&H. 183, at 185


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D UTY OF C ARE

In an action for negligence, the first step is to consider whether the defendant owed the

plaintiff a duty of care. Duty of care has two branches, those duties recognized by the lawand those inferred by the circumstances. In cases where no duty of care has been imposed

by law the test of the foreseeable claimant is used; whereby the duty is not owed to the

world at large, but only to an individual within the scope of the risk created, that is to the

foreseeable victim.

In the law of negligence, professionals such as doctors, lawyers and architects are

categorized separately as people practicing these professions are required to possess some

special skill. This concept of professional negligence is drawn from the Supreme Courts

decision in the case of Jacob Mathew v. State of Punjab 6 , wherein it was explained:

Any reasonable man entering into a profession which require s 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 posses 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 win the case in all circumstances. A

physician would not assure the patient of full recovery in every case. 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.

Medical negligence is considered separately from medical malpractice, which

encompasses not only the former, but also intentional or negligent acts, including breach

of confidentiality and fiduciary doctor-patient relationships 7. Sir William Blackstone was

the first to use the phrase medical negligence in 1768 when he wrote about how trust is

broken between patient and the practitioner and tends to the pati ents destruction. 8

The doctor must bring to his task a reasonable degree of skill and knowledge and mustexercise a reasonable degree of care. Neither the very highest nor a very low degree of

care and competence judged in the light of particular circumstances of each case is what

6 AIR 2005 SC 31807 Bhavna Patel, Medical Negligence And Res Ipsa Loquitur in South Africa, December 20088 Healy J. Medical Negligence and Common Law Perspective, London: Sweet and Maxwell, 1999


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the law requires 9. The Supreme Court in Achutrao Haribhau v. State of Maharashtra 10

laid down the law as follows : The skill of medical practitioners differs from doctor to

doctor. The very 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 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 guilty of

negligence .11

Under English law as laid down in Bolams case a doctor, who acts in accordance with apractice accepted as proper by a responsible body of medical men, is not negligent

merely because there is a body of opinion that takes a contrary view. 12 In Bolams case, 13

MC Nair, J., in his summing upto jury observed: 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. 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. There may be one or more perfectly

proper standards, and if he conforms with one of these proper standards, then he is not

negligent. 14 The above test has been repeatedly approved by the House of Lords. 15 This

test has also been approvingly referred to by the Supreme Court in the case of Jacob

Mathew v. State of Punjab. 16 The test covers the entire field of liability of a doctor namely

9 Dr. Laxman v. Dr. Trimbak, [1969] 1 SCR 20610 AIR 1996 SC 2377

11 Ibid.12 Bolam v. Friern Hospital Management Committee, [1957] 2 ER 11813 Ibid.14 Ibid.15 Whitehouse v. Jordan, [1981] 1 All ER 267 (HL), p.277; Maynard v. West Midlands Regional Health

Authority, [1985] 1 All ER 635 (HL), pp. 637, 638; Roe v Minister of Health, [1954] 2 QB 66; Also seeChin Keow v. Government of Malaysia, [1967] 1 WLR 813 (PC)16 Ibid, refer footnote no 6, p.5


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liability in respect of diagnosis, 17 liability in respect of a doctors duty to warn his patient

of risks inherent in treatment; 18liability in respect of operating upon or giving treatment

involving physical force to a patient who is unable to give his consent; 19 and liability in

respect of treatment. 20

The professional opinion relied upon by the defendant in cases of diagnosis and treatment

must be reasonable or responsible. If it is not so demonstrated to the satisfaction of the

court, the defendant can properly be held liable despite a body of professional opinion

sanctioning the defendants conduct through such cases would be rare. It was so held by

the House of Lords in Bolitho v. City and Hackney Health Authority. 21 The House of

Lords held that there would have to be a logical basis for the opinion not to intubate. This

would involve a weighing of risks against benefit in order to achieve a defensible

conclusion. This means that a judge will be entitled to choose between two bodies of expert opinion and to reject an opinion which is 'logically indefensible'. This has been

interpreted as being a situation where the Court sets the law not the profession. However,

Lord Browne-Wilkinson held that the court would hold a practice that was in conformity

with a sound body of expert opinion to be negligent only in "a rare case". On the facts, it

was decided that not intubating the child in the particular circumstances at hand was not a

negligent way to take, even though the expert opinion on the matter was divided.

17 Maynard v. Midlands Regional Health Authority, [1985] 1 All ER 63518 Sidaway v. Bethlem Royal Hospital Governors, [1985] 1 All ER 64319 F. v. West Berkshire Health Authority, [1989] 2 All ER 545 (HL)20 White House v. Jordan, [1981] 1 All ER 26721 [1997] 4 All ER 771 (HL)


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A UTONOMY OF MEDICAL PROFESSIONALS

Autonomy implies the ability to govern oneself in the best possible way. In Kantian

theory it is th e power to set ones own rules to conduct its duties. 22 But there is a

difference between autonomy of the will and autonomy of action. 23 It is mandatory for a

medical professional to know the difference between the two. However, a patient may

lose his/her freedom of thinking or decision-making if he/she is suffering from dementia,

hypoxia, hysteria, drugs and other such factors and may thereby lose his/her capacity to

act prudently. The autonomy of a doctor is limited by forces which are external to the

will and beyond the control of man and these limitations may vary from time to time and

from situation to situation.

The following basic criteria need to be applied in order to determine the justification foran action:

I. It must be sufficiently informed;

II. It must be based on adequate and broad-based deliberations;

III. It must be not be based on internal or external coercion, and

IV. It must be in consonance or harmonious with an enduring world view. 24

Furthermore, the information supplied to a patient must be easy for him/ her to

understand and therefore technical details which are difficult for a patient to comprehend

will not be termed as informing a patient. I t has been aptly said: Further, health care

professionals should make sure that such information is truly comprehended.

Comprehension means more than merely the ability to parrot facts. True understanding,

in addition to an essential cognitive part, includes understanding on an emotional as well

as, where possible, an experimental plane. It must include some understanding by the

health care professional of what the diagnosis or condition means to patients: not just

what it is scientifically, but what it connotes to and for patients: how it will be seen to

22 E.H. Loewy, Textbook of Health Care Ethics , at p.71 (2004)23 Ibid.24 M.A. Lee, L. Ganzini, Depression in the Elderly: Effect on Patient Attitudes Towards Life-SustainingTherapy , 40 J. Am. Geriatr Soc. 983-88 (1992)


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impact on their daily lives and what it means emotionally for them, given their personal

worldviews. 25

25 Ibid, refer footnote no.22 at p.83


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L AWS ON M EDICAL N EGLIGENCE

Owing to an increase in the awareness levels of the patients, negligence in the medical

world has assumed great importance in relation to the medical malpractices suits in

various countries in Asia, Europe, USA and India. In the area of patient-doctorrelationship two important models dominate viz. one is based on paternalism and other is

founded on the doctrine of informed consent. According to Dworkins standard

definition of paternalism means interference with a persons liberty of action justified by

reasons referring exclusively to the welfare, good, happiness, needs, interests or values of

person coerced 26 Such definition may serve the needs of patients but it does not serve the

whole concept of welfare of the patients. Feinberg advocates a division in the definition

of paternalism, one that preaches how to prevent harm and the other how to ensure the

patients good. 27

UK:

The UK has followed the paternalistic model of physician-patient relationship ever since

its inception. 28 This has been well emphasized in the modern English law through the

famous Bolam principle, 29 which states that a doctor is not liable in negligence when he

acted in accordance with a practice accepted as proper by a responsible body of medical

men, skilled in the particular art. Most courts in the UK recognize the use of res ipsa

loquitur doctrine, which then creates an inference for negligence. The most common

application of doctrine is in cases where a swab, sponge or a piece of instrument was left

inside the patient s body following surgery.

26 G.Dworkin, Paternalism, 56 Monist,64-84 (1972)27 J.Feinberg, Legal Paternalism, 1 Cen J. Phil. 105-124 [1971]28 Chapman, Physicians Law and Ethics, (1984)29 Supra, note 12


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US:

In the United States, the doctor-patient relationship is based on the doctrine of informed

consent. 30As per the doctrine of informed consent, a patient must be supplied with all

the necessary information about the nature of treatment, risks involved and the feasiblealternatives, so as to enable him/her to make a rational and intelligent choice whether to

proceed with treatment or surgery or not. In case informed consent of the patient

concerned is not obtained, then the physician would face tortuous liability.

India:

From the time of Lord Denning until now it has been held in several judgments that a

charge of professional negligence against a doctor stood on a different footing from a

charge of negligence against the driver of a motor car. The burden of proof is

correspondingly greater on the person who alleges negligence against a doctor.

The Supreme Court in its landmark judgment in the case of Indian Medical Association v.

V.P. Shantha and others 31 has held that patients aggrieved by any deficiency in

treatment, from both private clinics and Govt. hospitals are entitled to seek damages

under the Consumer Protection Act. As a result of this judgment, medical profession has

been brought under the Section 2(1) (o) of CPA, 1986 and also, it has included the

following categories of doctors/hospitals under this Section:

I. All medical / dental practitioners doing independent medical / dental practice

unless rendering only free service.

II. Private hospitals charging all patients.

III. All hospitals having free as well as paying patients and all the paying and free

category patients receiving treatment in such hospitals.

30 Schloendroff v. Society of New York Hospital , 211 N.Y. 125 N.E. 92, 93 (1914) (as per Justice Cardoz)31 AIR 1996 SC 500


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However, it exempts those hospitals and medical practitioners which offer free service to

all its patients.

Nonetheless, it is pertinent to note that there are divergent opinions in judgments of

Supreme Court in deciding the negligence of a doctor while treating a patient. The issue

of what amounts to medical negligence and when can a doctor be said to be negligent and

the standard of care that a doctor is expected to meet in his practice has been the topic of

a number of landmark judgments of the Judiciary. The issues relating to civil liabilities of

medical practitioners have assumed greater significance in recent times, largely due to the

commercialization of the medical profession. The Supreme Court in A.S. Mittal v. State

of U.P. 32 held that a mistake by a medical practitioner which no reasonably competent

and careful practitioner would have committed is negligent one. A m edical practitioner

can be said to be reasonably competent and careful when he adopts the ordinary skills

and normal practices of the profession. Law does not expect very high or very low

standard from a person who renders professional services.

While deciding cases of medical negligence, the apex court of this country has followed

liberal approach in some cases and the strict liability rule in some other cases. The

approach followed by the Indian judiciary has been described as Two lines of judicial

authorities on medical negligence liability in India by B.B.Pande. He opined that in

India in respect of claims for medical negligence the judicial rulings of the SupremeCourt of India and o f the State High Courts can be put in two distinct lines. The first line,

that favors a limited liability based on ordinary professional standard as laid down in

Bolam s case, t he second line that favors expanding the sphere of medical professions

liability and demanding a higher duty of care towards the patient and his relatives,

particularly where medical expertise is provided on a commercial basis. 33

32 AIR 1989 SC 157033 B.B. Pande , Why Indian Patients do not Deserve the Highest Expert Skills from Doctors?


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The Supreme Court while adopting a liberal approach, has approved the rule of

ordinary skilled professional standard of care laid down in Bolam s case in Dr. Suresh

Gupta v. Govt. of N.C.T of Delhi 34, State of Punjab v. Shiv Ram 35 and Jacob Matthew

v. Union of India 36

cases. These cases are some of the instances where the court haspreferred to follow liberal approach in the matters of medical negligence. In Jacob

Matthew v. Union of India 37 the Supreme Court held that no sensible professional would

intentionally commit an act or omission which would result in harm or injury to the

patient since the professional reputation of the professional would be at stake.

In the case of Martin F. DSouza v. Mohd. Ishaq, 38 the Supreme Court has once again

approving the Bolam rule held that judges are not experts in medical science, rather they

are lay men. This itself often makes it somewhat difficult for them to decide cases

relating to medical negligence While doctors who cause death or agony due to medical

negligence should certainly be penalized, it must also be remembered that like all

professionals doctors too can make errors of judgment but if they are punished for this no

doctor can practice his vocation with equanimity. Indiscriminative proceedings and

decisions against doctors are counterproductive and serve society no good. They inhibit

the free exercise of judgment by a professional in a particular situation. And the

Supreme Court has further directed that, whenever a complaint received against a doctor

or hospital by the consumer fora or by the Criminal Court then before issuing notice to

the doctor or hospital against whom the complaint was made the consumer fora or

Criminal Court should first refer the matter to a competent doctor or committee of

doctors, specialized in the field relating to which the medical negligence is attributed and

only after that doctor or committee reports that there is prima facie case of medical

negligence should notice be then issued to the concerned doctor or hospital. This is

necessary to avoid harassment to doctors who may not be ultimately found to be

negligent.

34 [2004] 6 SCC 42235 [2005] 7 SCC 136 Supra, note 637 Ibid.38 [2009] 3 SCC 1


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On the other hand the Supreme Court has taken stringent action in some medical

negligence cases following higher duty of care rule . In cases involving grave

professional negligence, such as failure on part on the part of the doctor to inform or

warn the patient about the risks involved in the treatment the court has not followed the

rule laid down in Bolam s case. Additionally, the Supreme Court has applied the doctrine

of res ipsa loquitur in certain cases where negligence. Dr. Khusaldas Pammandas v.

State of M.P 39, Achutrao Haribhau Khodwa v. State of Maharashtra 40, and Spring

Meadows Hospitals v. Harjot Ahluwalia 41 are some illustrative cases where the Supreme

Court has applied the higher duty of care rule in deciding the negligence of the doctors.

In a historic judgment in Nizams Institute of Medical Sciences v. Prasanth

S. Dhananka 42 the Supreme Court held that moreover, in a case involving medical

negligence, once the initial burden has been discharged by the complainant by making

out a case of negligence on the part of the hospital or doctor concerned, the onus then

shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the

Court that there was no lack of care or diligence. In this case the Court awarded

Rs.1crore as compensation to the victim of medical negligence.

In the case of V.Kishan Rao v. Nikhil Super Specialty Hospital 43 , it was held by the

Supreme Court there cannot be a mechanical or straitjacket approach that each and every

medical negligence case must be referred to experts for evidence and declared that the

judgment rendered in Martin F.DSouza v.M ohd. Ishfaq 44 is per incuriam. The

consequence of the judgment in this case 45 is that now the Consumer Fora in the country

need not necessarily refer the cases of medical negligence to expert committee before

issuing the notice to the doctor or hospital accused of medical negligence and the

problems arising from the directions given in the Martin F. Dsouza 46 case will be put to

an end.

39 AIR 1960 MP 5040 Supra, note 1041 [1998] 4 SCC 3942 [2009] 6 SCC 143 [2010] 5 SCC 1344 Supra, note 3545 Ibid, refer footnote 4046 Ibid, refer footnote 41


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B IBLIOGRAPHY

Books and Journals Referred :

Andrew Grubb, The Law of Tort (LexisNexis, 2nd edition).

Dr. R.K. Bangia, Law of Torts (Allahbad Law Agency, 22nd edition 2010).

Mark Lunney, Ken Oliphant, Tort Law Text and Materials(Oxford University

Press)

Ratanlal and Dhirajlal , Law of torts (Eastern Book Company,26 th edition 2010)

E.H. Loewy , Textbook of Health Care Ethics

Bhavna Patel, Medical Negligence And Res Ipsa Loquitur in South Africa, December 2008

Healy J. Medical Negligence and Common Law Perspective , London: Sweet andMaxwell, 1999

M.A. Lee, L. Ganzini, Depression in the Elderly: Effect on Patient AttitudesTowards Life-Sustaining Therapy , 40 J. Am. Geriatr Soc.

G.Dworkin, Paternalism, 56 Monist (1972)

J.Feinberg, Legal Paternalism , (1971)

Chapman, Physicians Law and Ethics, (1984)

Caselaws :

Roe v Minister of Health, [1954] 2 QB 66

Caparo Industries plc v. Dickman [1990] 2 AC 605

Dr. L.B. Joshi v. Dr. T.B. Godbole , AIR 1989 P.&H. 183, at 185 Jacob Mathew v. State of Punjab, AIR 2005 SC 3180

Dr. Laxman v. Dr. Trimbak, [1969] 1 SCR 206

Achutrao Haribhau v. State of Maharashtra, AIR 1996 SC 2377

Bolam v. Friern Hospital Management Committee, [1957] 2 ER 118


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Whitehouse v. Jordan, [1981] 1 All ER 267 (HL)

Maynard v. West Midlands Regional Health Authority, [1985] 1 All ER 635 (HL)

Chin Keow v. Government of Malaysia, [1967] 1 WLR 813 (PC)

Maynard v. Midlands Regional Health Authority, [1985] 1 All ER 635

Sidaway v. Bethlem Royal Hospital Governors, [1985] 1 All ER 643

F. v. West Berkshire Health Authority, [1989] 2 All ER 545 (HL)

White House v. Jordan, [1981] 1 All ER 267

Bolitho v. City and Hackney Health Authority, [1997] 4 All ER 771 (HL)

Schloendroff v. Society of New York Hospital , 211 N.Y. 125 N.E. 92, 93 (1914)

Indian Medical Association v. V.P. Shantha and others, AIR 1996 SC 500

A.S. Mittal v. State of U.P., AIR 1989 SC 1570

Dr. Suresh Gupta v. Govt. of N.C.T of Delhi, [2004] 6 SCC 422

State of Punjab v. Shiv Ram, [2005] 7 SCC 1

Martin F. DSouza v. Mohd. Ishaq, [2009] 3 SCC 1

Dr. Khusaldas Pammandas v. State of M.P, AIR 1960 MP 50 Spring Meadows Hospitals v. Harjot Ahluwalia, [1998] 4 SCC 39

Nizams Institute of Medical Sciences v. Prasanth S. Dhananka, [2009] 6 SCC 1

V.Kishan Rao v. Nikhil Super Specialty Hospital, [2010] 5 SCC 13

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