PROJECT REPORT ON LAW OF TORTS

DOCTORS DUTY OF CARE

RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW IIT KHARAGPUR 2011

SUBMITTED BY:

ISHA SURI 11IP60023 LL.B 1ST SEMESTER

Doctors Duty of Care

TABLE OF CONTENTS

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

Doctors Duty of Care

INTRODUCTION
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 Hutchinson1

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 developments2. 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 negligence3. 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 damage4.

1
2

A.Ghosh, Whose Life Is It, Any Way? The Times of India, Sept. 11, 2004, at p.11 Roe v Minister of Health [1954] 2 QB 66 3 Caparo Industries plc v. Dickman [1990] 2 AC 605 4 Dr. R.K. Bangia, Law of Torts (Allahbad Law Agency, 22nd edition 2010)

Doctors Duty of Care When a medical practitioner attends to his patient, he owes to him the following duties of care5: 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 doctors duty of care towards his patients and understand its evolution thorough certain recent developments.

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

Doctors Duty of Care

DUTY OF CARE
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 law and 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 Punjab6, wherein it was explained: 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 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 relationships7. 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 patients destruction.8 The doctor 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 judged in the light of particular circumstances of each case is what

6 7

AIR 2005 SC 3180 Bhavna Patel, Medical Negligence And Res Ipsa Loquitur in South Africa, December 2008 8 Healy J. Medical Negligence and Common Law Perspective, London: Sweet and Maxwell, 1999

Doctors Duty of Care the law requires9. The Supreme Court in Achutrao Haribhau v. State of Maharashtra10 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 a practice 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.16The test covers the entire field of liability of a doctor namely

Dr. Laxman v. Dr. Trimbak, [1969] 1 SCR 206 AIR 1996 SC 2377 11 Ibid. 12 Bolam v. Friern Hospital Management Committee, [1957] 2 ER 118 13 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 see Chin Keow v. Government of Malaysia, [1967] 1 WLR 813 (PC) 16 Ibid, refer footnote no 6, p.5
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Doctors Duty of Care 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 18

Maynard v. Midlands Regional Health Authority, [1985] 1 All ER 635 Sidaway v. Bethlem Royal Hospital Governors, [1985] 1 All ER 643 19 F. v. West Berkshire Health Authority, [1989] 2 All ER 545 (HL) 20 White House v. Jordan, [1981] 1 All ER 267 21 [1997] 4 All ER 771 (HL)

Doctors Duty of Care

AUTONOMY OF MEDICAL PROFESSIONALS

Autonomy implies the ability to govern oneself in the best possible way. In Kantian theory it is the 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 for an action: I. II. III. IV. It must be sufficiently informed; It must be based on adequate and broad-based deliberations; It must be not be based on internal or external coercion, and 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. It 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 23

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

Doctors Duty of Care 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

Doctors Duty of Care

LAWS ON MEDICAL NEGLIGENCE

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-doctor relationship 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 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 26

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 patients body following surgery.

26 27

G.Dworkin, Paternalism,56 Monist,64-84 (1972) 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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Doctors Duty of Care

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 feasible alternatives, 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. III. Private hospitals charging all patients. All hospitals having free as well as paying patients and all the paying and free category patients receiving treatment in such hospitals.

30 31

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

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Doctors Duty of Care 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.
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held that a mistake by a medical practitioner which no reasonably competent

and careful practitioner would have committed is negligent one. A medical 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 Supreme Court 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 Bolams case, the 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 33

AIR 1989 SC 1570 B.B. Pande , Why Indian Patients do not Deserve the Highest Expert Skills from Doctors?

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Doctors Duty of Care The Supreme Court while adopting a liberal approach, has approved the rule of ordinary skilled professional standard of care laid down in Bolams case in Dr. Suresh Gupta v. Govt. of N.C.T of Delhi , State of Punjab v. Shiv Ram v. Union of India
36 34 35

and Jacob Matthew

cases. These cases are some of the instances where the court has
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preferred to follow liberal approach in the matters of medical negligence. In Jacob Matthew v. Union of India 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,
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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 35

[2004] 6 SCC 422 [2005] 7 SCC 1 36 Supra, note 6 37 Ibid. 38 [2009] 3 SCC 1

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Doctors Duty of Care 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 Bolams 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 Maharashtra40, and Spring

41

Meadows Hospitals v. Harjot Ahluwalia

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
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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
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Rs.1crore as compensation to the victim of medical negligence. In the case of V.Kishan Rao v. Nikhil Super Specialty Hospital , 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.Mohd. Ishfaq is per incuriam. The consequence of the judgment in this case
45 44

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 an end.
39 40

46

case will be put to

AIR 1960 MP 50 Supra, note 10 41 [1998] 4 SCC 39 42 [2009] 6 SCC 1 43 [2010] 5 SCC 13 44 Supra, note 35 45 Ibid, refer footnote 40 46 Ibid, refer footnote 41

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Doctors Duty of Care

Conclusion
Commercialization of medicine as a profession has led to drastic changes in the cordial doctor-patient relationship enjoyed in India. Though rapid advancements in medical science and technology have proved to be efficacious tools for the doctors in the better diagnosis and treatment of the patients, they have equally become tools for the commercial exploitation of the patients. The development of law pertaining to professional misconduct and negligence is far from satisfactory. The legislations are not adequate and do not cover the entire field of medical negligence. In a situation where medical services are commercialized applying the rule of ordinary skilled professional standard of care laid down in Bolams case in establishing medical negligence may not do proper justice to the aggrieved patients and their family. The landmark judgement in the case of Indian Medical Association v. V.P. Shantha & others47 has brought treatment provided by doctors within the ambit of service as defined under the Consumer Protection Act, 1986. Since then a large number of cases have been heard by the Consumer Fora on medical negligence. In recent times, exemplary damages have been awarded by the countrys judiciary to victims and their families. For instance, The National Consumer Disputes Redressal Commission (NCDRC) has awarded a compensation of Rs. 1. 77 crore towards medical negligence against Advanced Medicare Research Institute (AMRI) hospital, Kolkata and three doctors for causing the death of Anuradha Saha, wife of Kunal Saha, a U.S.-based Indian doctor in 1998.48 These recent developments are a sign of welcome change in the field of medical negligence. I would like to conclude by quoting Chief Justice K.G. Balakrishnan in his address at National Seminar on the Human Right to Health that the the right to health cannot be conceived of as a traditional right enforceable against the State. Instead, it has to be formulated and acknowledged as a positive right at a global level one which all of us have an interest in protecting and advancing.

47 48

Supra, note 31 As reported in The Hindu, Oct.22, 2011, can be accessed at http://www.thehindu.com /news/states/otherstates/article2562916.ece, last accessed on Nov.1, 2011

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Doctors Duty of Care

BIBLIOGRAPHY
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,26th 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 and Maxwell, 1999 M.A. Lee, L. Ganzini, Depression in the Elderly: Effect on Patient Attitudes Towards 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 16

Doctors Duty of Care 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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