A professional in any field is deemed to possess essential knowledge and skill needed for the purpose and owes a duty of care in the conduct of his duties towards their client. Medical negligence is understood as the breach of such standard of care by a medical practitioner which resulted in subsequent injuries to the patient, which otherwise would not have taken.

This standard of care is a degree higher than that the ordinary care because a medical practitioner is expected to be proficient as far as medical treatment is concerned and is thus recontextualized as that of the standard of comparable professional practice.[1]The test for determining Medical Negligence was put forth in Bolam v. Friern Hospital Management Committee[2], widely known as the Bolam Test.

Elements Of Medical Negligence

Duty of care - An early case of Donoghue v Stevenson[3] established the concept of duty of care' in 1932, where it was held that there happens to be a general obligation to take certain amount of reasonable care to prevent any kind of foreseeable harm to a 'neighbour.' In this case, the plaintiff bought a bottle of ginger beer manufactured by the defendants and consumed a portion of the bottle's contents until she found the dead remnants of a snail towards the end of the bottle.

After consumption, the consequence was that the lady suffered from severe gastroenteritis, and a claim for compensation was filed against the manufacturer. It was determined that the manufacturers failed to exercise reasonable care expected in the production process they owed to a neighbour.

A 'neighbour' here is defined as 'someone who may fairly be viewed as intimately and immediately impacted by an act.' This very duty of care is owed to those whom the manufacturers intend to consume their goods. The existence of this duty of care is contingent upon reasonable foresight, directness, and a variety of other complicated criteria. In medical negligence, the medical practitioner need not possess the utmost expert proficiency at the profession, it's adequate if he practices the ordinary skill of an ordinary man who is competent in performing that given art.

Breach of duty-This is formed in cases when a doctor's practice has failed to satisfy a suitable level of prudence. When it comes to tort claims, the standard of the 'reasonable man,' often known as an ordinary person put in the same circumstances, is adopted in most instances. However, in the case of a suspected violation of professional responsibility, the criterion of similar professional practice is construed as the standard of comparable professional practice.

This breach of duty takes place when a duty of care was established and standards were set and the doctor somehow violates that vey duty. The most important thing to be observed is that there was expectation of a certain standard and then actions of the doctor are identified and then breach of duty is established.

Harm caused due to the breach of duty–For establishing a cause it must be proved that the damage would not have happened if the doctor had not taken an action or failed to take an action. In this regard, the plaintiff must demonstrate a direct relationship between the alleged misconduct and the harm thus suffered. Therefore, to establish this element the patient needs to first successfully prove that that the breach contributed significantly to the harm caused or the damage was only a mere negligence rather than from another source.

The principle of 'res ipsa loquitur' (which means "the thing speaks for itself") is applied when there is no explanation which is reasonable enough for a phenomenon to establish this element. Such a circumstance is often attracted by cases where harm is caused due to medical practitioner's failure to exercise certain amount of duty or omission of such nature while discharging their duties with respect to their patients. In such cases, causation is presumed to have been proved unless the defendant can demonstrate that there is another logical explanation for the injury.

Bolam Test

The key issue in medical litigation is whether a doctor has met the required standard of care as per the law or not. This anticipated standard expected is of 'reasonable care.' All the facts surrounding a specific case must be considered, and the inherent variability in medical practise must be balanced against the patient's interests. The court utilises the Bolam test[4] to determine this standard.

In the aforementioned case, John Hector Bolam (the plaintiff) was diagnosed with clinical depression and thus was consulted to come in for Electro-Convulsive Therapy (ECT). He beforehand was not cautioned about the possibility of fracture prior to the surgery, nor was he physically restrained or given anaesthesia. During the surgery, his pelvis was fractured. Therefore he alleged that the doctor who was treating him was negligent in not alerting him of the possible danger or providing him with muscle relaxation.

However, it was determined that the alleged negligence could not be properly established because evidence suggested that at that very time, administering muscle relaxation was not a standard practice due to differing opinions on the relative merits of muscle relaxation and the increased risks associated with using a relaxant. Thus, the defendant hospital was no made liable.

This particular thing follows that if there's a medical practice and it is backed by a responsible group of medical practitioners, then the same test stands satisfied and that that practitioner has met with the professional standard of care.[5] This case brought to light the importance of medical experts' evidence in determining negligence. The Judge, Mc Nair, L.J., categorically emphasised that it was not the discretion of the judge to determine the medical professionals to decide the medical dispute and that it was upon the medical professionals to decide if negligent treatment had taken place.

The Modern Day Use Of Bolam Test

The Bolam Test is still in use today, and medical witnesses must testify as to whether or not they believe negligent treatment has taken place based on their professional knowledge and expertise. The same is reflected in India. In the case of Suresh Gupta vs. NCT of Delhi[6] the doctor was held liable according to S.304A of IPC[7] using Bolam Test and reiterated this idea that the test of medical negligence holds good in India.

The court in its judgement held that one of the prerequisite to be held liable under 304A of IPC is that there should be gross negligence but, in this case, there was a mere omission of a duty and subsequently the care which cannot be a ground to hold the appellant criminally liable, instead there can be civil liability. Though there was carelessness on the part of the appellant but it cannot be described as gross. Here degree of negligence played a vital role and subsequently appellant-doctor was absolved of the liability.

So, the court relied on standards of negligence here. In another case of Jacob Mathew vs. State of Punjab[8], the Supreme Court of India had made use of the Bolam Test and ruled that the Bolam rule may be used to evaluate whether a medical practitioner was negligent and declared that the rule would apply in India.

Here the appellant-doctor was charged u/s. 304A of IPC[9] but the court laid that for a private person to be liable under the same there has to be prima facie evidence of omission of a duty and subsequent negligence. It shall only be after successfully proving the same that the liability and subsequent arrest should be determined. Here there was nothing as such that could be proved thus the doctor was absolved of his liability under 304A of IPC on the basis of Bolam Test.

Why Bolam Test Is An Inadequate Parameter

The Bolam test, ever since its inception, has invited a deluge of criticisms about its applicability and probable misuse. One such fine argument rests in the fact that the test fails to draw a line between 'what is done' and 'what ought to be done'. The negligence in the conduct of an act shall always be gauged against what ought to be taken care of.[10]

An act which is not negligent as per the views of the normal standard of care might be negligent if that standard falls below the requisite standard of professional care. The Bolam test emphasises on 'what is done' to determine negligence and set the standards of care. This permits the medical practitioners to put forth for themselves a standard of care which is legal and is garnered by a 'responsible body of medical professionals.'

This attracted another such criticism that it is unethical that the opinion of a group of medical professionals determine the negligence of a medical practitioner. This could provide the practitioners an opportunity to maintain their own interests rather than that of the patient and in turn absolves them of any liability. It can also be viewed in juxtaposition with the rights of the patient.

The consent of the patient plays a crucial role in the medical profession, the test eludes this aspect and works upon the aspect of the 'best interest' of the patient. In the same case it should be the court that determines what shall fall within the 'best interests' of the patient and not a peer group of medical practitioners. Critics have often emphasized upon the need for establishment of proper set of standards by courts instead of resting the same on a peer of authoritative professionals.

With medical negligence cases rising day by day, the Bolam Test cannot be considerate as it is not reasonable enough to determine medical negligence and subsequently the respondent is denied quick relief. Logical basis and subsequent analysis too cannot be determined. This Bolam test seems as if it has exceeded the borders of diagnosis and the subsequent treatment, as well as the bounds of medicine, thus widening the doctor's position to that of a moral arbiter.[11]

Recent Developments
In a recent case of Dr Harish Kumar Khurana vs Joginder Singh & Others[12], the plaintiff's wife was detected of having a stone in her right kidney in the appellant's hospital. She was recommended for a surgery but she had to once again visit the hospital to find that both her kidneys had a stone but her right kidney was in an adverse condition. Surgery was performed by the appellant after obtaining consent and it was informed by him that both the kidneys couldn't be operated at the same time due to the adversity.

So, the left kidney was operated first and it was successful. After few days right kidney was operated and when she was administered injections, her health deteriorated and she suffered a cardiac arrest and after few days she died. The plaintiff now filed the case of medical negligence against the appellant. After many hearings, it was decided that second surgery was not an emergency to be conducted few days after first surgery and appellant-doctor breached the duty of care and standards therein which existed between appellant and respondent and was liable for medical negligence thus failing the Bolam test. The NCDRC also referred to the Doctrine of Res Ipsa Loquitor[13] to infer that the appellant was negligent.

Conclusion
The Bolam test encapsulates the idea that a medical practitioner is not liable for medical negligence if he/she has acted according to the opinion of a responsible group of professionals. This notion excludes any sort of judicial intervention to the extent of determining negligence. Over the due course of time, the test has granted ample powers in the hands of medical practitioners and snatched away the adjudicating powers of the courts in medical professions.

This norm shall be alleviated and a new method of approach shall be adopted where courts play a crucial role and the verdict is given as per the prevailing notions of society. It is high time that the general practice should shift away from the 'accepted practice' of Bolam test into a more logical test of 'expected practice', which in current times is known as the Bolitho test[14]. But the job does not end here.

Judgment should always be delivered on a logical and a rational basis, the judiciary should always thrive to work in the direction that is in accordance with the best interest of the aggrieved. The existence of such an irrational test provides evidence of the ineffective machinery and it should be a wake-up call for the responsible body.

End-Notes:

1. Continuing Education in Anaesthesia Critical Care & Pain, "Duty of care and medical negligence", Volume 11, Issue 4, August 2011.
2. Bolam v Friern Hospital Management Committee, (1957) 1 WLR 582.
3. Donoghue v Stevenson, (1932) AC 562.
4. Bolam v Friern Hospital Management Committee, (1957) 1 WLR 582.
5. Samanta A, Samanta J, Legal standard of care: A shift from the traditional Bolam test, (2003) 3 Clin Med (Lond), 443
6. Dr Suresh Gupta v Govt of NCT of Delhi, AIR (2004) SC 4091.
7. 304A of IPC states Causing death by negligence -Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
8. Jacob Mathew v State Of Punjab, (2005) 6 SCC 1.
9. n 7.
10. Montrose A, Is negligence an ethical or sociological concept? (1958) 21 Med LR, 259.
11. Teff H, The standard of care in medical negligence – moving on from Bolam? (1998) 18 OJLS, 473.
12. Harish Kumar Khurana v Joginder Singh & Others, (2021) SCC OnLine SC 673.
13. Res Ipsa Loquitor states the thing speaks for itself.
14. Bolitho v. City and Hackney Health Authority, (1998)AC 232.

Written By: Satya Narayan Pradhan and Sruti Patra.