An issue of a paramount importance arose before the Madras High Court in Writ Petition No.2721 of 2017 in the case of Tamil Selvi Vs. The State of Tamil Nadu & others whether the State is liable to pay just & reasonable damages/ compensation on death of a patient due to alleged negligence of the Government Hospital.

The brief facts of the case are that a young girl of eight years of age, suffering from tonsillitis was admitted in a Government Hospital and she developed complications during administering of Anesthesia prior to the proposed surgery where she succumbed and was declared dead. The petitioner has alleged in the petition that the child had died due to sheer negligence on the part of the anesthetist/ attending doctors due to error of Judgment in choosing a wrong drug for giving anesthesia. An enquiry had already been conducted by four member enquiry committee which concluded that there was no medical negligence on the part of the doctors. On the basis of the report and the allied facts, the Court concluded that the anesthetist/ attending doctors did not commit any act of medical negligence.

The High Court vide it's order dated 1st February, 2021 dealt with this issue of grant of compensation even where medical negligence has not been established and held thus:

Neither the petitioner nor her child was at fault. When a patient is admitted in a government hospital for treatment and he/she suffers any injury or death which is not anticipated to occur in the normal course of events, even in the absence of medical negligence, the government is obliged to disburse ex- gratia to the affected party. In the case on hand, liability has to be fastened on the government. Since the institution happens to be the Government institution, the Government of Tamil Nadu will have to necessarily take consequence..... Considering the overall circumstances, I am of the view that the petitioner deserves to be paid a sum of Rs.5.00 lakhs as compensation.

The Honorable High Court has thus granted a sum of Rs. 5.00 lacs as compensation although holding that negligence against doctors could not be proved. The intriguing question which was not dealt with by the Courts in such cases is the veracity of the enquiry report of the team of doctors, who are mostly Government doctors or officials. Such an enquiry in no way can be termed as a fair, just and independent enquiry rather only a ' cover up/formality' enquiry designed to save the fellow doctors. The Government/ Court should have got conducted the enquiry from independent group of doctors under the chairmanship of a Judicial officer/Amicus Curie.

The next question that creeps up is the award of compensation despite negligence not having been proved against the doctors. The grant of Ex- Gratia award by the State in any accident or calamity has been a regular feature of a welfare state like ours. Granting ' Compensation/ Ex Gratia Grant' against such 'accidental' or 'inadvertent' deaths, even when negligence of the attending doctors has not been proved, is indeed a Welcome' move and likely to contain lengthy & unwanted litigations. This judgment is likely to be assailed by the State on the ground that such an award by the Court is likely to set a wrong precedent and open flood gates for lacs of such victims and used as a device by public for grant of compensation in such matters.

The petitioner had argued in the Court that there was error in Judgment in administering a particular drug as anesthesia. In this regard, the case of M/s Spring Meadows Hospital and Anr. v. Harjol Ahluwalia through K.S. Ahluwalia and Anr. (1998)4 SCC 39 is relevant as it clearly held that an error of Judgement is not necessarily negligence. However if a doctor performs an act or administers a drug, which he is neither competent to use nor legally & professionally proficient, then such act constitutes negligence liable to prosecution.

It is relevant to refer to the Apex Court case in Juggankhan v. The State of Madhya Pradesh (1965) 1 SCR 14 wherein the accused, a registered Homoeopath, administered 24 drops of stramonium and a leaf of dhatura to the patient suffering from guinea worm. The accused had not studied the effect of such substances being administered to a human being. The Apex Court exonerated the accused of the charge under Section 302 IPC.

However, on a finding that stramonium and dhatura leaves are poisonous and in no system of medicine, except perhaps Ayurvedic system, the dhatura leaf is given as cure for guinea worm, the act of the accused who prescribed poisonous material without studying their probable effect was held to be a rash and negligent act. The Court observed that the profession of a Homoeopath which the accused claimed to profess did not permit use of the substance administered to the patient nor the accused had knowledge of the effect of such substance being administered and yet he did so.

In this background, the Court drew the inference that the accused being guilty of rash and negligent act. In the opinion of the Court, the principle which emerges is that a doctor who administers a medicine known to or used in a particular branch of medical profession impliedly declares that he has knowledge of that branch of science and if he does not, in fact, possess that knowledge, he is prima facie acting with 'rashness or negligence'.

It would be apposite to refer to the case of Achutrao Haribhau Khaodwa Vs. State of Maharashtra & Ors., (1996) 2 SCC 634 wherein the Apex Court held that: Government Hospitals are vicariously responsible for the acts of its doctors and that the Government is vicariously responsible for the negligent acts of its employees including the ones involved in running of the Hospitals.

Thus the State cannot legally avoid the vicarious liability due to negligence of their medical staff and doctors employed in Government Hospitals. Similarly in the case of N. Nagendra Rao and Company Vs. State of Andhra Pradesh 1994 (6) SCC 205 and State of Maharashtra & Ors. Vs. Kanchanmala Vijay Singh Shrike & Ors. JT 1995 SC 155, the Apex Court has in clear terms held the State is vicariouly liable on account of the negligent acts of its employees.

It is relevant that the negligence of doctors or medical staff give rise to both Civil & Criminal liabilities. In the instant case, the plaintiff has pursued only the civil liability whereas a criminal liability could also have been fastened on the erring doctors and medical staff. Both the liabilities can run together and there is a thin but distinct dividing line between the two. It would be trite to refer that to the case of Jacob Mathew vs. State of Punjab & Anr., (2005) 6 SCC 1­ which laid down the distinction between civil & criminal liability arising out of negligence of the Doctors in performance of their professional duties. The Court held thus:

The fore-quoted statement of law in Andrews has been noted with approval by this Court in Syad Akbar v. State of Karnataka (1980) 1 SCC 30. The Supreme Court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. Their Lordships have opined that there is a marked difference as to the effect of evidence, viz. the proof, in civil and criminal proceedings.

In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

The Apex Court further elaborated the true import of negligence and laid guidelines of the distinction between civil & criminal negligence attributable to professionals and held thus:

In our opinion, the factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree.

Negligence by professionals- 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. 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.

The only assurance which 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 practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence.

This is all what the person approaching the professional can expect. 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 for every professional to possess the highest level of expertise in that branch which he practices.

The Court further explained the true import of the term negligence and observed thus:
A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se.

Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.

Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in charge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.

The Apex Court concluded that if the doctors are subjected to civil & criminal prosecutions, the doctors would not be able to take proper decisions for treatment for impending fear of civil & criminal cases and this would be detrimental to the interest of the patients at large. The Court observed thus:

We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.

The doctors are expected to be more careful while treating patients and only administer/ prescribe medicines they are knowledgeable & competent about and not take unwanted risks & chance. At the same time, the patients should not institute frivolous civil/criminal cases against doctors as they only strive their best but God alone has the final say.

Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]