"An ambiguous law is a dangerous one because it allows for the concept to be misused, neglected or worse, weaponised." -- Aysha Taryam

Judicial scrutiny of a medical treatment or management of a disease episode for negligence is based on legal principles, postulates or fictions evolved by the learned legal luminaries. Lack of medical knowledge has necessitated the application of the legal fictions to judge negligence in medical management of a case. These are, however, to be applied on the basis of medical evidence. The medical science has grown and advanced to a level that was unimaginable just 25 years back. The legal principles, however, remains basically the same, except for the semantic variations introduced by each subsequent judicial forum. There is urgent need to suitably modify the applicability of these age old legal fictions to judge medical negligence.

This is what their Lordships on the Three Judge Bench in Jacob Mathew vs State Of Punjab & Anr on 5 August, 2005, stated:-

"Negligence as a tort. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well-stated in the Law of Torts, Ratanlal & Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P. Singh). It is stated (at p.441-442) "Negligence is the breach of a 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 and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.
The definition involves three constituents of 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 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 necessary ingredient of this tort."

The essential components of negligence, as recognized, are three: "duty", "breach" and "resulting damage", that is to say:

1. the existence of a duty to take care, which is owed by the defendant to the complainant;
2. the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and
3. damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant.

The elaborate exposition of negligence law in Jacob Mathew, however, failed to erase the ambiguity in the espoused legal principles, as pointed out in subsequent two Judge Bench in Martin F. D' Souza vs Mohd. Ishfaq on 17 February, 2009

"30. The general principles on this subject have been lucidly and elaborately explained in the three Judge Bench decision of this Court in Jacob Mathew vs. State of Punjab and Anr. (2005) 6 SCC 1. However, difficulties arise in the application of those general principles to specific cases.

31. For instance, in para 41 of the aforesaid decision it was observed :

"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 low degree of care and competence is what the law requires."

32. Now what is reasonable and what is unreasonable is a matter on which even experts may disagree. Also, they may disagree on what is a high level of care and what is a low level of care.

33. To give another example, in paragraph 12 to 16 of Jacob Mathew's case (Supra), it has been stated that simple negligence may result only in civil liability, but gross negligence or recklessness may result in criminal liability as well. For civil liability only damages can be imposed by the Court but for criminal liability the Doctor can also be sent to jail (apart from damages which may be imposed on him in a civil suit or by the Consumer Fora). However, what is simple negligence and what is gross negligence may be a matter of dispute even among experts.

34. The law, like medicine, is an inexact science. One cannot predict with certainty an outcome of many cases. It depends on the particular facts and circumstances of the case, 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 need to be understood."

This two Judge Bench, inspite of their elaborate and eloquent deliberation, added little to the clarity of the legal principles when applied to complex medical cases.

Take for instance the basic legal principle 'Duty of Care'.

Duty is well defined as legal obligation of a licensed medical professional, to attend on and treat a patient, when approached.

However the same is not true of Care.

The care or level of care, scope of care like medical skill, is an intangible postulate. To be verified objectively it has to be in, assessable tangible format.
Care or scope of care to a medical man, is, timely fulfillment of diagnostic and therapeutic medical needs of an individual for a particular disease episode. This means that a patient must be examined, duly diagnosed, his medical needs assessed, and interventions to meet those medical needs done in due time.

Catering to the diagnostic and therapeutic needs of the patient are the two criteria of care. This can be objectively verified only from the patient record that is faithfully maintained as per the guidelines. Medical record is the record of the acts or conduct of the treating physician apropos that particular patient. It should not be assessed on the basis of subjective notion of the judicial officer. Verification of a faithfully maintained medical record, detailing the treatment given is the proof positive of that the physician has cared for the patient.

A Deficiencies and error of judgment will invariably be pointed out, retrospectively, by more experienced medical experts since medical skills are part of a learning curve that continues throughout one's professional life and comprise innumerable learning points.

Deficiency in care is not carelessness, and hence, not negligence. Deficiency is not delinquency.

A faithfully maintained treatment record of the patient shows the good faith of the doctor. A record of what he did and honestly believed to be appropriate for the medical needs of the patient.

The other legal principle is of 'competence'. How would a physician evidence before a court of law that he was professionally competent? And that he acted with due competence?

Competence in a particular medical act is defined as the possession of adequate knowledge concerning the said medical act carried and adequate skill in its execution.

The basic degree of Bachelor of Medicine and Bachelor of Surgery (MB BS) is awarded after a candidate's knowledge of the subject and possession of basic skills is assessed by competent medical examiners and who are, as a result of this assessment, satisfied that the candidate possesses the requisite knowledge and skill commensurate with the degree.

A doctor has to register his MBBS degree with the Medical Council to get a license that certifies that the doctor possesses basic medical knowledge and surgical skills to practice medicine.

For specialization and super specialization, an MBBS doctor, possessing basic skills, has to undergo training as specified by the Medical Council to acquire knowledge and skill commensurate with the higher degree or diploma to be awarded. The acquired specialty or the super specialty diploma, MD, MS, MCh etc, has then to be registered with the Medical Council to be licensed to practice in the field of their certified expertise. Licensing is certifying their competence to practice as specialists. Verification of license is the only way a doctor can prove that he is competent, and the only objective basis on which courts can ascertain competence.

Level of care is another ill-defined piece of legal fiction that is applied through the arguably antiquated, outdated and outlandish Bolam Test (What a person of ordinary prudence would do). "Level of care" does not translate to quality of care. In terms of diagnosis, monitoring and therapy, level of care is facility- dependent. As the level of diagnostic, monitoring and therapeutic facilities rises, so does the level of care.
  What can and should be evaluated are how the physician appropriately or prudently used the facilities that were available to him. Level of care is context- specific and these high tech facilities are not universally available. Besides, the availability or use of such facilities are not, by themselves, indices of quality care inasmuch as they may have been inducted (and exploited) by greedy facility providers principally for profit.

Thus, the requisite knowledge, skill and level of expertise cannot not be subjectively assessed. All the judiciary can do is to verify that the physician in question is in possession of verifiable certification by the Medical Council to practise in his professed field of medicine.

Caution. This again, as a general postulate, is an abstract, intangible proposition. Caution is anticipation of possible adverse consequences of a particular intervention and the preparedness to prevent and deal with them. Exercising caution is an integral part of acquired skills be they surgical (while operating) of non-surgical. Caution is imparted as a part of training and is developed by practice as part of a life-long learning experience.

Verification of a duly executed informed consent, detailing the possible adverse consequences, is proof positive that the physician was conscious and aware of the adverse consequences and had communicated to the patient that he will take care of it to the best of his ability.

It is submitted that once the competence of medical professional and the consent for intervention is verified, a medical professional should be given the benefit of good faith as provided in law (IPC Sec 88 and other related 'Exemption Clauses') and should be out of the purview of the consumer fora. He should be prosecuted for malafide acts only.

Sec 3(22) of the General Clauses Act 1897

A thing shall be deemed to be done in "good faith" where it is in fact done honestly, whether it is done negligently or not.

Sec.80 IPC. Accident in doing a lawful act. - Nothing is an offence which done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.

IPC 88. Act not intended to cause death, done by consent in good faith for person's benefit.

Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely cause to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm.

The statutory provisions thus provide a medical man exemption from the liability if the medical intervention is done with due consent and for the benefit of the person, provided of course, that there is no evidence to doubt or question about the beneficial intent. In case of malafide intent, or act beyond the scope of his expertise (jurisdiction), benefit of good faith will not be available to a medical person, as is not available to the judicial officer.

Frivolous negligence claims and perverse medical negligence judgments based on ill-applied legal fictions, without cogent medical findings, has greatly corroded the faith of public in the medical profession. It is high time that credence to 'good faith' doctrine is given and recognized to restore public faith in practitioners of modern medicine.

Written By: Dr.Shri Gopal Kabra, MBBS,LLB,MSc,MS (Anatomy),MS(Gen.Sutgery)
15, Vijaya Nagar, D-block, Malviya Nagar, Jaipur-302017
Ph no: 8003516198