DUTY AND STANDARD OF CARE

AND LIABILITY OF HEALTH CARE

PROFESSIONALS

Ajit Singh Parihar 565

Dheeraj Aseri 569
Sanket Gandhi 473
 Introduction
 The service which medical professionals render to us is the
noblest. Aryans embodied the rule that, Vidyo narayano harihi
(which means doctors are equivalent to Lord Vishnu).
 Healthcare in India features a universal health care system
run by the constituent states and territories of India.
 The National Health Policy was endorsed by the Parliament
of India in 1983 and updated in 2002. The interpretation of
“standard of care” in research has generated a lot of
controversy among researchers
 The health service has been under the purview of the
Consumer Protection Act, 1986 and subsequently the
commercialization of the health sector has had adverse
effects on doctor and patient relationship.
 It's a common observation that medical
practitioners, hospitals are being attacked by
family members of patient for alleged medical
negligence. The doctor- patient relationship is
one of the most unique and privileged based on
mutual trust and faith. But presently there is a
great decline in the doctor-patient relationship.
The reason may be communication gap between
them, commercialization of health services,
raising expectations from doctors or increased
consumer awareness.
 Medical profession is governed by code of medical ethics and
etiquettes laid down by Medical Council of India. Although
they are for internal self-regulations of the profession, it is an
obligation on the part of the professionals to fulfil certain rights,
expectations of the patients. But there has been fast spreading
misconduct amongst the medical professionals .The unethical
practice has gone to a level where the basic purpose of medical
profession that is service to humanity fails. Few unethical
practices like fee sharing, or cut practice, particularly
prescribing a company’s medicine, selling of body parts etc. for
personal monitory gains are openly discussed among them but
they never come up to the surface due to lack of concrete proof.
To err is human nature but mistakes of medical professional
which may result in death of a person or permanent impairment
can be particularly costly but the law does not aim to punish
doctors for all their mistakes, but only to those which are
committed out of negligence. Mistakes occur but which occurs
from carelessness and negligence cannot be let off.
 Patient’s rights:

 Despite variations in local legislation and administration of

patients' rights, it is important in the case of genomics, as with any
other medical intervention that patients receive treatment
consistent with the dignity and respect they are owed as human
beings. This means providing, at minimum, equitable access to
quality medical care, ensuring patients’ privacy and the
confidentiality of their medical information, informing patients and
obtaining their consent before employing a medical intervention,
and providing a safe clinical environment. Formalized in 1948, the
Universal Declaration of Human Rights recognizes “the inherent
dignity” and the “equal and unalienable rights of all members of
the human family”. It is on the basis of this concept of the person,
and the fundamental dignity and equality of all human beings, that
the notion of patient rights was developed.
 Doctor-Patient confidentiality:

 The concept of "doctor-patient confidentiality" derives from

English Common Law and is codified in many states' statutes. It is
based on ethics, not law, and goes at least as far back as the Roman
Hippocratic Oath taken by physicians. The Oath of Hippocrates,
traditionally sworn to by newly licensed physicians, includes the
promise that "Whatever, in connection with my professional
service, or not in connection with it, I see or hear, in the life of men,
which ought not to be spoken of abroad, I will not divulge, as
reckoning that all such should be kept secret." Doctor-patient
confidentiality stems from the special relationship created when a
prospective patient seeks the advice, care, and/or treatment of a
physician. It is based upon the general principle that individuals
seeking medical help or advice should not be hindered or inhibited
by fear that their medical concerns or conditions will be disclosed
to others.
 Protection to the medical practitioners:

 Stringently, the duties of care for medical

professionals are:–
 • Deciding whether to undertake the case,

 • What treatment to give, and

 • Duty of care in administration of that

treatment.
Nevertheless, a simple lack of care, an error of
judgment or an accident is not a proof of
negligence on the part of medical professional.
 In case of Bolam v. Friern hospital management committee, the test
for establishing medical negligence was set. “The doctor is
required to exercise the ordinary skill of a competent doctor in his
field. He must exercise this skill in accordance with a reasonable
body of medical opinion skilled in the area of medicine.”
 The court noticed that in the case of doctors being subjected to
criminal prosecution are on the rise; such prosecutions are filed
by private complainants or by the police on an FIR lodged and
cognizance taken. The criminal process once initiated, subjects to
the medical professional to serious embarrassment and
harassment. He has to seek bail to escape arrest, which may or
may not be granted to him. At the end he may be exonerated by
acquittal or discharge, but the loss he has suffered in his
reputation cannot be compensated by any standard.
 The judgment given by the Honourable
Supreme Court of India, consisting three
judges bench, in October 2005 in Jacob Mathew
case, ruled that doctors should not be held
criminally responsible unless there is prima
facie evidence before the court in the form of a
credible opinion from another competent
doctor, preferably a Government doctor in the
same field of medicine, supporting the charges
of rash and negligent act.
 The Supreme Court in the case of Jacob Mathew v. State
of Punjab held that extreme care and caution should
be exercised while initiating criminal proceedings
against medical practitioners for alleged medical
negligence and drew up elaborate safeguards for
them, including avoiding arrest unless it was
inevitable. Drawing elaborately from established
provisions of law and practice, the Bench ruled that
this was necessary for, the service which medical
profession renders to human being is probably the
noblest of all and hence there is a need for protecting
doctors from unjust prosecutions.
 In the Court's words, the complexities of the human
body and medical science were too easily
understood. For a medical accident of failure, the
responsibility may be with the medical practitioner
and equally it may not. Ideals about the medical
practice, according to the Court, may be far
different from the realities. The Court agreed with
the views of noted men of medicine that the effect
of encouraging frivolous cases against doctors will
have a distorting effect on doctor-patient relations
and will not benefit the patient in the long run.
Liability of health care professionals in case of
emergencies:

 In a recent Supreme Court judgment in the case of

Kusum Sharma & Ors. v. Batra Hospital and Medical
Research Centre & Ors., the court said that the medicine
is not an exact science involving precision and every
surgical operation involves uncalculated risks and
merely because a complication had ensued, it does not
mean that the hospital or the doctor was guilty of
negligence. A medical practitioner is not expected to
achieve success in every case that he treats. The duty
of the Doctor like that of other professional men is to
exercise reasonable skill and care. The test is the
standard of the ordinary skilled man.
 The court also referred to Lord Justice Denning‘s
observation in the landmark case of Roe and
Woolley v. Minister of Health in which he said
that. Medical science has conferred great benefits
on mankind but these benefits are attended by
unavoidable risks. Every surgical operation is
attended by risks. We cannot take the benefits
without taking the risks. Every advance in
technique is also attended by risks. Doctors, like
the rest of us, have to learn by experience; and
experience often teaches in a hard way."
 Also In a celebrated and often cited judgment in
Bolam v. Friern Hospital Management Committee, Lord
Justice McNair observed that a doctor is not
negligent, if he is acting in accordance with a practice
accepted as proper by a reasonable body of medical
men skilled in that particular art, merely because
there is a body of such opinion that takes a contrary
view. The direction that, where there are two
different schools of medical practice, both having
recognition among practitioners, it is not negligent
for a practitioner to follow one in preference to the
other.
 Similarly in Jacob Mathew case, the court said that in complicated
emergency cases, doctors have to take chances even if the rate of
survival is very low. Higher the acuteness in emergency and
higher the complication, more are the chances of error of
judgment by the professionals. The court went on to say that the
health care professional should be held liable if his act is
negligent. The job of the professional is to make life safer. But, at
the same time courts have to be extremely careful to ensure that
unnecessarily professionals are not harassed, else they will not
be able to carry out their professional duties without fear.
 The court in this case also analysed section 304A of Indian Penal
Code. The court said that it was a hanging sword on the doctors
working both in Govt. Hospitals as well as the private sector.
 In the case of Dr. Suresh Gupta v. Govt. Of NCT of
Delhi & Anr., the Hon'ble Judges had clarified that
for ordinary negligence the doctors could not be held
criminally responsible deserving criminal
prosecution. This historic judgment has clearly
defined the role of professionals, namely doctors and
their involvement and liability towards Section 304-
A IPC. , this is amply clear that Section 304A IPC can
be made applicable to the doctors theoretically but
the doctors can feel secure in doing usual medical
practice without any fear or apprehension of being
victimized on trivial grounds.
 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. A doctor faced with an emergency ordinarily
tries his best to redeem the patient out of his suffering. He does not gain
anything by acting with negligence or by omitting to do an act. Obviously,
therefore, it will be for the complainant to clearly make out a case of
negligence before a medical practitioner is charged with or proceeded against
criminally. A surgeon with shaky hands under fear of legal action cannot
perform a successful operation and a quivering physician cannot administer
the end-dose of medicine to his patient. The Apex Court while dealing with
'criminal medical negligence' observed that Indiscriminate prosecution of
medical professionals for criminal negligence is counter-productive and does
no service or good to society.
 Discretion being the better part of valour, a
medical professional would feel better advised
to leave a terminal patient to his own fate in the
case of emergency where the chance of success
may be 10% (or so), rather than taking the risk
of making a last ditch effort towards saving the
subject and facing a criminal prosecution if his
effort fails. Such timidity forced upon a doctor
would be a disservice to society."
 Conclusion

 The doctor-patient relationship, based on earned trust and responsibility, is

worthy of nurture in a caring healthcare system and should be considered
at least as important as any technological advancements. Is there a position
of stability that can ensure patient rights while encouraging
 Medical scientific advancement and care and fostering the doctor-patient
relationship, These two apparently stark choices are comprised of difficult
and problematic issues requiring careful consideration and prudent policy
decisions.
 In the light of Judgment pronounced by the honourable Supreme Court in
various above mentioned cases it can be concluded that the Supreme Court
provides necessary protection, not the license to kill. The cases very clearly
deal with the pros and cons of the concept of Medical Negligence, in both
civil and criminal aspects. Definitely these recent landmark judgments will
bring harmonious relationship between doctor and patients and false
frivolous cases would be lessened as a consequence there off.