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SPECIAL ASSIGNMENT OF CRITICAL THINKING ESSAY(SACE)

SUPPLEMENTARY EXAMINATION, DECEMBER- 2020

SUBJECT: POLITICAL SCIENCE (MAJOR)

Submitted By:
Simran Dhaner
Semester – III
Section – C
Roll No. – 156

HIDAYATULLAH NATIONAL LAW UNIVERSITY

NAVA RAIPUR, CHHATTISGARH

Date of Submission: 30/01/2021

 SYNOPSIS
INTRODUCTION:.......................................................................................................................................................1
ELUCIDATION OF THE STATEMENT:................................................................................................................2
NEGLIGENCE :...........................................................................................................................................................3
MEANING:..................................................................................................................................................................3
INGREDIENTS OF NEGLIGENCE:...............................................................................................................................3
Duty of Care:........................................................................................................................................................3
Remoteness of Damage:........................................................................................................................................3
Breach of Duty:.....................................................................................................................................................3
Damage to the plaintiff:........................................................................................................................................4
CONCEPTUALISATION OF MEDICAL NEGLIGENCE:...................................................................................4
WHAT IS MEDICAL NEGLIGENCE?..........................................................................................................................4
MEDICAL PROFESSIONAL’S DUTIES:.......................................................................................................................4
Duty to Attend a Patient:......................................................................................................................................4
Duty to Care:........................................................................................................................................................5
Duty of Secrecy:....................................................................................................................................................5
STANDARD OF CARE AND SAFEGUARDS: A LEGAL PERSPECTIVE:.......................................................................5
The Bolam Test-....................................................................................................................................................5
Res Ipsa Loquitur-.................................................................................................................................................6
Judicial Pronouncements-....................................................................................................................................6
COVID-19 VIS-À-VIS MEDICAL NEGLIGENCE: A CRITICAL ANALYSIS..................................................7
SHORTFALL OF PERSONAL PROTECTIVE EQUIPMENT:..........................................................................................7
LACK OF EXPERTISE:...............................................................................................................................................8
LACK OF MEDICAL PROFESSIONALS:......................................................................................................................8
VIOLENCE AGAINST HEALTHCARE WORKERS-......................................................................................................8
LACK OF INFRASTRUCTURE-....................................................................................................................................8
LACK OF PROPER IMPLEMENTATION SYSTEM-.......................................................................................................8
CASES DURING COVID-19:.....................................................................................................................................8
JUDICIAL IMMUNITY TO MEDICAL PROFESSIONALS DURING COVID-19:.............................................................9
CONCLUSION:............................................................................................................................................................9

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Introduction:

A professional is a person who knows the expertise in a particular field like doctor, lawyer,
bankers. Sometimes, when a professional does not perform his or her duty it pertains to
professional negligence. Further if a doctor or a paramedic fails to render their 100% of their
skill that leads us to medical negligence. However, a professional is not liable for the breach of
contract but for the inadequate application of his or her skill in a particular task.

During this time when the outbreak of COvid-19 is at its peak, it puts a crucial responsibility on
the Medical Professionals. Managing in such a rough situation with nearly no knowledge and
protocol to lead, the medical professionals are the only ones who can fight this war to win
against this virus.

Elucidation of the Statement:

Lord Denning MR in Greaves & co. vs. Baynham Meikle & Partners1, stated that “the law does
not usually imply a warranty that he will achieve the desired result, but only a term that he will
use is reasonable care and skill. The surgeon does not warrant that he will cure the patient nor
does the solicitor warrants that he will win the case.” He pointed out the difference between a
professional and a contractor. What he meant was that a professional is not liable for the breach
of a contract but for negligence in performing the duties. The essential that can be carved out has
been laid down below:

Duty to exert reasonable care and skill: A duty of care is to act with a standard of care
and skill while dealing with a client. A professional has to exercise reasonable care and skill. A
professional is a person who is an expert in a particular field. Doctors, lawyers, architect are all
called as professionals. A professional can only be held liable for not giving his or her hundred
percent in a particular job they are specialized at. For instance, an advocate cannot give surety
that he or she will win the case but he guarantee to use his or her skill and knowledge at best.

In Jagdish Ram and Ors v. State of Himachal Pradesh 2, the Court said that it is hereby decided
that technical experts such as legal practitioners, physicians, architects and others, as specialists
1
(1975) 1 WLR 1095 CA.
2
2008, ACJ 433-

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and skilled in their respective fields, are included in the negligence statutes. Any role or job
involving an experience is a specialty that is included.

Negligence :

Meaning:
In general dialect negligence means carelessness. In legal aspect it means inability to exert a
standard of care which a rational individual should have used in a particular situation. It results
in causing injury to an individual.

Negligence is the breach of a legal duty to take care which results in damage, undesired by the
defendant to the plaintiff.3

Ingredients of Negligence:

Duty of Care:
It is crucial that the defendant shall have a duty to take care towards the plaintiff. In Grant v.
Australian Knitting Mills,4 the defendant was held liable for not maintaining a standard of care
by not washing the clothes to remove excess sulphate.

Furthermore, the meaning of the term duty was extended to include the neighbours it was held on
Donoghue v. Stevenson.5

Remoteness of Damage:
It is important that the defendant owes a duty of care towards the plaintiff. The damage to the
plaintiff shall not be remote enough. In Bourhill v. Young6, it was held that the defendant owed
no duty of care towards the plaintiff as the cause for her nervous shock was too remote.

3
Winfield and Jolowicz on Tort, Ninth Edition, 1971, p. 45
4
1935 AC 85.
5
1932 AC 562.
6
1943 AC 92.

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Breach of Duty:
The plaintiff in order to claim the remedy must proof that there was a breach of duty and the
same caused damage to him or her. In Municipal Corporation of Delhi v. Subhagwanti, 7the
building collapsed causing death of persons. The municipal corporation was held liable for the
failure to take care of an old building.

Damage to the plaintiff:

The damage caused to the plaintiff can be of any type. By damaging his or property. Trashing the
reputation. Harm to the body of the plaintiff. For any loss caused to the plaintiff. In Achutrao
Haribhau Khodwa v. State of Maharashtra, 8 the doctor negligently left a cotton swab inside the
body of the plaintiff and was held liable for causing harm to the physical body.

Conceptualisation of Medical Negligence:

What is Medical Negligence?

Medical negligence is an inadequate or unqualified treatment by a physician to a patient. This

entails neglect by a nurse, doctor, surgeon, pharmacist, or some other medical professional
taking care of them. It is a failure to comply with the accepted standards regarding the treatment
of a patient by a doctor or a medical professional. It is established that the medical professional
has a responsibility to ensure that he holds the required skill set for performing the task and to
ensure a reasonable care.9

For Instance- following a patient's serious operation, he is vulnerable to being infected with
many illnesses for reasons like blood loss, fatigue or high drug dosage. The doctor is required to
provide standard treatment in due course in relation to such infectious diseases. If a doctor
should not do so due to a certain infection that can cause a lot of damage or even death in
adverse situations, a medical error or a malpractice was claimed to have been carried out by the
doctor.

Medical Professional’s Duties:

7
AIR 1966 SC 1750.
8
(1996) 2 SCC 634.
9
R.K. BANGIA, THE LAW OF TORTS, ( 24TH ED., 2018)

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Duty to Attend a Patient:
Medicine is a profession in which a physician has the required capability and expertise to do so
and is obligated to perform a rational care obligation in dealing with the patient. A medical
professional cannot be held liable if his or her negligence is not proven.

If the physician or medical practitioner is absent from the emergency or supervision of a patient

and the patient dies or becomes the victim of consequences that would have been prevented by
the doctor with proper attention, the physician could be liable under medical negligence. In
Sishir Rajan Saha vs. State of Tripura, 10 the judges opined that if the doctors don’t ay attention
to the patients and as a result of that the patients suffers or dies, the doctor can be held liable
under medical negligence.

Duty to Care:
A medical professional owes a duty of care towards every patient in the hospital. His or her duty
is not limited to that but is extended to deciding the best treatment for the patient, administration
of the same to the patient. In  Jasbir Kaur v. State of Punjab,11 the court held the hospital
authorities negligent in their services as they lacked substantial care to keep a new born child
safe.

Duty of Secrecy:
In Dr. Tokugha V. Apollo Hospital Enterprises Ltd,12 the plaintiff pleaded that the doctor has
violated the fiduciary bond between them. To which the court held that if the disclosure of the
patient’s health information is to protect the public interest it is termed as an exception.

Standard of Care and Safeguards: A Legal Perspective:

The Bolam Test-

The assessment is the benchmark for the ordinary skillful individual who has the particular skill
and professes it. In Bolam v. Friern Hospital Management Committee, 13 if a doctor acts
diligently and the same is approved by a group of responsible persons skilled in that field then
the doctor is not negligent simply because a group says he or she is. In this case, the jury laid
down this test to state that every time a medical professional don’t have to exercise the highest
10
AIR 2002 Gau 102.
11
 AIR 1995 P H 278.
12
AIR 1999 SC 495.
13
(1957) 1 WLR 582.

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skill, ordinary skill competent enough in the eyes of an ordinary will suffice. The test includes
the accountability of a doctor is to the extent of operating or rendering treatment to a person who
is able to give his or her consent, liability as regards to diagnosis etc.

Eckersley v. Binnie,14 The assertion is that a doctor has the expertise that constitutes the sector of
his profession. He should be aware of innovations contemporary as a typical qualified
professional in his branch would possess. He needs to consider the risks associated with his
professional role.

Res Ipsa Loquitur-

It literally means that things speaks for itself. It must be well known, when deciding on the
responsibility to the doctor, that negligence should be a breach of proper care which should have
been maintained by an ordinary practitioner.15 A medical professional is considered to be liable if
he has exclusive control over something causing the injury, but there is no particular proof of
negligence, and the accident would not have taken place without negligence. A doctor is not a
patient's insurer, the patient's failure to treat would be not incompetence, but carelessness which
would cause a patient's adverse condition.

In Gian Chand vs Vinod Kumar Sharma16, it was held that despite the need for instant care to be
granted to a patient resulting in harm to the patient's wellbeing, the patient's change from one
ward to another was held responsible for neglect by the physician or administrator of a hospital.
The shifting from one ward to another was enough to proof Res Ipsa Loquitur.

In Aparna Dutta V. Apollo Hospital Enterprises Ltd., Madras17, the doctor left an alien object in
the abdomen of the plaintiff. This was the case of Res Ipsa Loquitur and the defendant was held
liable for the same.

Judicial Pronouncements-
The cases listed below are some Indian judicial precedents:
In the case of Jacob Mathew .V. State of Punjab18, the Supreme Court ruled that physicians are
obligated to take crucial choices in certain cases. Often circumstances lead them to risk things
14
1988) 18 Con. LR 1.
15
Lydia Kerketta, Medical Negligence: A Specific Tort, Legal Services India, (Jan.21.2021, 08:06 AM)
http://www.legalservicesindia.com/article/1898/Medical-Negligence:-A-Specific-Tort.html.
16
AIR 2008 HP 97.
17
AIR 2000 Mad. 340.
18
AIR 2005 SC 3180.

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because they are more likely to succeed in that decision. And there are certain situations where
the probability and the likelihood of failure are lower. The decision would then rely on the facts
and conditions in the case.

In Juggan Khan v. State of Madhya Pradesh 19, the court held that it is negligent to prescribe
medicines that are piousness without proper assessment and knowledge of the same.

In another case of Spring Meadows Hospital and another v Harjol Ahluwalia, 20 the court held
the doctor and nurse liable for injecting high dose medicines to a child which resulted in a
cardiac arrest.

In A.S. Mittal & Ors vs State Of U.P. & Ors, 21 the court held doctor liable for using normal
saline which resulted in damaging the eye of 84 patients who got operated in an eye camp.

Covid-19 Vis-à-vis Medical Negligence: A Critical Analysis

The pandemic COVID-19 has taken the health sector to the fore. On the other hand, allegations
of patients being refused medical treatment, as well as failure to respect security Measures,
which put both healthcare personnel and patients at risk of life, have been made. On the other
hand, skilled medical staff are being praised as "Corona Warriors." 22 The number of healthcare
professionals with insufficient infrastructure is rapidly spreading, and part of the cases of
medical negligence are increasing because of the lack of awareness and skills of the medical
professionals. However, they face many challenges while dealing with the corona patients.

Shortfall of Personal Protective Equipment:

The healthcare institutions are dealing with the problem of lack of medical equipment. During
this pandemic, face masks, respirators, gowns are all necessary so that the people working in the
frontline shall be protected as well as the people around them.

19
1965 AIR 831.
20
(1998) 4 SCC 39.
21
1989 SCR (3) 241.
22
Suveer Gaur, COVID-19 and Medical Negligence: The need for comprehensive guidelines, Bar and Bench
(Jan.21.2021, 11:45 AM) https://www.barandbench.com/columns/covid-19-and-medical-negligence

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Lack of Expertise:
This pandemic is new to all. The proper treatment regarding the virus is still not found. The
medical professionals are trying their best to contain the virus. The legal professionals are facing
the same problem. The lack of knowledge with respect to the virus makes it tough on the part of
the judges to pass a decree.

Lack of Medical Professionals:

Many doctors and nurses are reluctant to come to even treat non-covid patients. Some of them
cannot put their families to risk and some are reluctant to work for prolonged working hours.

Violence against Healthcare Workers-

The healthcare workers are not treated with respect in hospitals and public. It ultimately hampers
and becomes a hindrance to work efficiently.

Lack of infrastructure-
With the number of cases increasing day by day the beds in the hospitals and isolation centers
are occupied. The lack of beds in the covid-19 hospitals makes it difficult to work and cure the
patients.

Lack of proper implementation system-

Inadequacy in a proper protocol at national level is a hindrance to the functioning efficiently. The
judicial system is rendering inconsistent decisions on medical negligence cases during Covid-19.

Cases during Covid-19:

In Malay Kumar Ganguly v. Sukumar Mukherjee,23 the court decreed that the failure to use
proper skill in a treatment would be considered as medical negligence. There have been
increased number of cases of wrong diagnosis during this pandemic. In Vinod Jain v. Santokba
Durlabhji Hospital,24 the court held that there was no deviation from the standard procedure and
hence, the same does not amounts to medical negligence. The court gave contradictory decisions
while handling cases pertaining to medical negligence.

23
AIR 2010 SC 1162.
24
(2019) 12 SCC 229.

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Supreme Court in the matter of Martin F D'Souza v Mohd. Ishfaq25 held that “The standard of
care has to be judged in the light of knowledge available at the time of the incident and not at the
date of the trial. Also, where the charge of negligence is of failure to use some particular
equipment, the charge would fail if the equipment was not generally available at that point of
time.”

Judicial Immunity to Medical Professionals during Covid-19:

Desperate times call for desperate measures and there is a need to make an unprecedented
decision to tackle this situation. Health practitioners, such as doctors, paramedics, etc., are
endangering their daily lives to treat corona-positive patients. At times medical students and
retired doctors are also expected to do their job at the end of the year. It would be unfair and
unethical to sue healthforce workers for medical negligence. Therefore, in such situations,
doctors must be given exemption from medical neglect.

Conclusion:

The judiciary is the only symbol of hope to resolve the true concerns of people who are
aggrieved by the lack of adequate medical facilities and by growing instances of medical
negligence, in light of an uncertainty generated by the COVID-19 pandemic. The Supreme Court
will take the appropriate steps to protect public faith and hope.

Keeping in mind the words of Lord Denning, and implementing the same during this widespread
global pandemic it would be unfair to sue a medical professional if the patient passed away. The
reasoning behind it is that there is almost no expertise regarding this virus.

It would be morally and fundamentally wrong to prosecute a medical professional if he or she

has exercised due care and diligence to treat the corona positive patient. They should be granted
judicial immunity when they are treating the patients with proper skill and care.

25
(2009) 3 SCC 1.

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References:

 KIM FRANKLIN AND SUSAN LINDSEY, Back to basics law: what is the legal

difference between a professional and a contractor?, Architects Journal,
https://www.architectsjournal.co.uk/archive/back-to-basics-law-what-is-the-legal-
difference-between-a-professional-and-a-contractor.
Greaves and Co (Contractors) Ltd v Baynham Meikle and Partners: CA 1975,
https://swarb.co.uk/greaves-and-co-contractors-ltd-v-baynham-meikle-and-partners-ca-
1975/.
 Kieran Duignan, Chloe Bradbury, Covid-19 and medical negligence litigation: Immunity
for healthcare professionals?, Sage Journal,
https://journals.sagepub.com/doi/full/10.1177/0025817220935892.
 Lydia Kerketta, Medical Negligence: A Specific Tort, Legal Services India,
http://www.legalservicesindia.com/article/1898/Medical-Negligence:-A-Specific-
Tort.html.
 Suveer Gaur, COVID-19 and Medical Negligence: The need for comprehensive
guidelines, Bar and Bench, https://www.barandbench.com/columns/covid-19-and-
medical-negligence.

 Karthikeyan P Iyengar, Vijay Kumar Jain Raju Vaishya, Current situation with doctors
and healthcare workers during COVID-19 pandemic in India, post Graduate Medical
Journal, https://pmj.bmj.com/content/early/2020/08/18/postgradmedj-2020-138496

, 

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