If that be so, why 60% of surgeries are medically unjustified in the world?

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1 MEDICAL NEGLIGENCE Y. SRINIVASA RAO, * "Sharire Jharjharibhute Vyadhigraste Kalevare Aushadham Jahnavitoyam Vaidyo Narayano Harih " This shloka avows that ''if the body (sharira) suffers from a disease, medicine is like the ''sacred water'' of the Ganga and the Physician/doctor is ''Narayana'' himself''. Thus, the people of India believe that a doctor (vaidyudu) is God(Narayana). If that be so, why 60% of surgeries are medically unjustified in the world? An estimated 7.5 million unnecessary medical and surgical procedures are performed each year 1. Women are also habitually subjected to Caesarean operations, despite they do not really need. With an estimated 920,000 Cesarean births performed each year, the Cesarean now-a-days became the '' most common major surgery in America'' and it is four times more likely a woman will give birth via Cesrean operations today than it was in 1970, according to The Medical Racket by Martin L.Gross. No doubt, the Cesarean has become the '' most common major surgery in India also. The best example of a serious crime that may be committed by negligence is manslaughter. It means homicide that does not amount to the crime of murder yet is nevertheless neither accidental nor lawful. Recently, the highest compensation ordered by our Hon'ble Supreme Court in a medical negligence case (Nizam Institute Of Medical Sciences vs Prasanth S. Dhananka &Amp; Ors 2 ), a techie who found himself paralyzed waist down after a surgeon damaged his spinal chord during an operation to remove a tumour in the chest, was awarded Rs 1 crore in damages by the Hon'ble Supreme Court of India. This case is one of the best examples of Medical Negligence. Before starting discussion about medical negligence, it is appropriate to know about the word '' negligence''. MEANING OF NEGLIGENCE: '' Carelessness amounting to the culpable breach of a duty: failure to do something that a reasonable man (i.e. an average responsible citizen) would do, or doing something that a reasonable man would not do. In cases of professional negligence, involving someone with a special skill, that person is expected to show the skill of an average member of his profession 3.'' KINDS OF NEGLIGENCE: Negligence has many manifestations- it may be 1) Active negligence; 2) Contributory negligence; 3) Collateral negligence; 4) Comparative negligence; 5) Concurrent negligence; 6) Gross negligence,; 7) Continued negligence; 8) Criminal negligence; 9) Hazardous negligence; 10) Active and Passive negligence, 11) Willful or reckless negligence or negligence per se. NEGLIGENCE PER SE: Negligence per se:- Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding * M.A (English)., B.Ed., LL.M (Topper), y.srinu.judge@gmail.com 1. ''Death by Medicine'' by Gary Null, Ph.D 2. In the Hon'ble Supreme Court of India Civil Appeal No 4119 of1999 and Civil Appeal No of 2000 filed by the complainant, Prasanth S. Dhananka 3. Oxford Dictionary of Law, Third Edition, at page 263

2 circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes" 4. MEDICAL NEGLIGENCE: Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anesthetic will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitur can be applied. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing of his duties properly. We are indicating these principles since in the case in hand certain arguments had been advanced in this regard, which will be dealt with while answering the questions posed by us 5. Broad principles under medical negligence as tort have been laid down in the celebrated case of Jacob Mathew Vs State of Punjab and amp; Another (2005) 6 SCC Page 1 6. The Hon'ble Apex Court further held that ''the test for determining medical 4. Defined in Black's Law Dictionary 5. Spring Meadows Hospital & Another vs Harjol Ahluwalia & Anr., (1998) 4 SCC 39 at The broad principles under which medical negligence as a tort have to be evaluated, have been laid down in the celebrated case of Jacob Mathew Vs State of Punjab and amp; Another (2005) 6 SCC Page 1. In this judgment, it has been observed that the complexity of the human body, and the uncertainty involved in medical procedures is of such great magnitude that it is impossible for a doctor to guarantee a successful result and the only assurance that he "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 practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence." The Bench also approved the opinion of McNair,J in (Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118 (QBD), in the following words: "[W]here you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence because has not got this special skill. 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." (Charlesworth & Percy, ibid., para 8.02) The Bench finally concluded its opinion as follows: "We sum up our conclusions as under: (1) Negligence is the breach of a duty caused by 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 and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: "duty", "breach" and "resulting damage".

3 negligence as laid down in Bolam case, (1957) 2 All ER 118 (QBD) holds good in its applicability in India.''. It is apt to say that INDIAN MEDICAL ASSOCIATION's Case is a land mark ruling as to Medical Profession is concerned. Owing to this ruling, Medical Profession was brought under purview of Section 2 (1) (o) of Consumer Protection Act,1986. Therefore, it is very essential to know conclusions given in this ruling. In ''Indian Medical Association Vs. V.P. Shantha and Others 7, the Hon'ble Supreme Court held that (1) Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, (2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the 39 equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. (3) A professional may be held liable for negligence on one of the 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 possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam case (1957) 2 All ER 118 (QBD)holds good in its applicability in India AIR 550, 1995 SCC (6) 651,1996 AIR 550, 1995 SCC (6) 651, JT 1995 (8) 119, 1995 SCALE (6)273 (DATE OF JUDGMENT13/11/1995)

4 both medicinal and surgical, would fall within the ambit of 'service' as defined in Section 2(1) (o) of the Act. (2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act. (3) A 'contract of personal service' has to be distinguished from a 'contract for personal services'. In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a 'contract of personal service'. Such service is service rendered under a `contract for personal services' and is not covered by exclusionary clause of the definition of 'service' contained in Section 2(1) (o) of the Act. (4) The expression 'contract of personal service' in Section 2(1) (o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of 'service' as defined in Section 2(1) (o) of the Act. (5) Service rendered free of charge by a medical practitioner attached to a hospital/nursing home or a medical officer employed in a hospital/nursing home where such services are rendered free of charge to everybody, would not be "service" as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position. (6) Service rendered at a non-government hospital/nursing home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service - is outside the purview of the expression 'service' as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position. (7) Service rendered at a non-government hospital/nursing home where charges are required to be paid by the persons availing such services falls within the purview of the expression 'service' as defined in Section 2(1) (o) of the Act. (8) Service rendered at a non-government hospital/nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression 'service' as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be "service" and the recipient a "consumer" under the Act.

5 (9) Service rendered at a Government hospital/health centre/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service - is outside the purview of the expression 'service' as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position. (10) Service rendered at a Government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression 'service' as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be "service" and the recipient a "consumer" under the Act. (11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care where under the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of 'service' as defined in Section 2(1) (o) of the Act. (12) Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute 'service' under Section 2(1) (o) of the Act. A THREE-TIER STRUCTURE FOR THE REDRESSAL OF CONSUMER GRIEVANCES:- The Act sets up a three-tier structure for the redressal of consumer grievances. At the lowest level, i.e., the District level, is the Consumer Disputes Redressal Forum known as `the District Forum'; at the next higher level, i.e., the State level, is the Consumer Disputes Redressal Commission known as `the State Commission' and at the highest level is the National Commission. [Section 9]. The jurisdiction of these three Consumer Disputes Redressal Agencies is based on the pecuniary limit of the claim made by the complainant. An appellees to the State Commission against an order made by the District Forum [Section 15] and an appeal lies to the National Commission against an order made by the State Commission on a complaint filed before it or in an appeal against the order passed by the District Forum. [Section 19]. The State Commission can exercise revisional powers on grounds similar to those contained in Section 115 CPC in relation to a consumer dispute pending before or decided by a District Forum [Section 17(b)] and the National Commission has similar revisional jurisdiction in respect of a consumer dispute pending before or decided by a State Commission. [Section 21(b)]. Further, there is a

6 provision for appeal to this Court from an order made by the National Commission on a complaint or on an appeal against the order of a State Commission. [Section 23]8. A THREE-TIER STRUCTURE-TABLE THE SUPREME COURT OF INDIA - FINAL APPEAL THE NATIONAL COMMISSION (An appeal lies to the National Commission against an order made by the State Commission on a complaint filed before it or in an appeal against the order passed by the District Forum. [Section 19]); Original Jurisdiction over Rs 20 lakhs (and the National Commission has revisional jurisdiction in respect of a consumer dispute pending before or decided by a State Commission. [Section 21(b)].) The State level, is the Consumer Disputes Redressal Commission known as `the State Commission' Appellate Authority for District Forum SUO MOTO Revision; (An appeal lies to the State Commission against an order made by the District Forum [Section 15]) Original Jurisdiction over Rs. 5 lakhs up to Rs. 20 lakhs (The State Commission can exercise revisional powers on grounds similar to those contained in Section 115 CPC in relation to a consumer dispute pending before or decided by a District Forum [Section 17(b)] ) The District level, is the Consumer Disputes Redressal Forum known as `the District Forum' -- Original Jurisdiction up to Rs. 5 lakhs Under Consumer Protection Act, 1986, a claim to be filed within 2 years from the date of occurrence of the cause of action. the parties themselves can present their case without help of a lawyer No court fee is required AIR 550,

7 Consumer forum shall adjudicate the complaint within 90 days from the date of notice by opposite party; However, it will be 150 days, if it requires any analysis or testing of commodities 9. OTHER LEGAL REMEDIES FOR AGGRIEVED PATIENTS: An aggrieved patient can approach Civil Court for monetary compensation. That too, legal remedies generally comes under the purview of the Law of Torts, Section 357 of Criminal Procedure Code,1973, and also under section 1 (A) of the Fatal Accidents Act,1855. Public Interest Litigation (PIL) is one the best remedies to an aggrieved patient. Monopolies and Restrictive Trade Practices Commission (MRTP) which looks into the disputes come under MRTP Act,1969. Sections 52, 80, 81, 83, 88, 90, 91, 92, 304-A, 337, 338 of Indian Penal Code,1860 are also relevant as to Medical Negligence. In addition to that Indian Medical Council Act, 1956 regulates the medical profession by constituting Medical Council of India (popularly known as MCI) and also State Medical Councils. It is to be noted that the said Act also authorizes Medical Council of India to prescribe Code of Ethics and standards of Medical professional conduct and etiquette. If any Medical Practiner violates those standards, it amounts misconduct. Furthermore, State Medical Council is empowered to take disciplinary action against such Medical Practitioners who violate standards of Medical professional conduct and etiquette. RELATED CASE-LAW: -In the case of Bolam Vs Friern Hospital Managment Committee 10, observed that "... where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. 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 at the risk of being found negligent. It is well-established law that it is sufficient if he exercise the ordinary skill of an ordinary competent man exercising that particular art.'' - Harjot Ahluwalia [Minor] Vs Spring Meadows and Another 11 which was upheld by the Hon'ble Supreme Court of India { Civil Appeal No.7708 of 1997 with Civil Appeal No.7858 of 1997 { I (1998) CPJ 1 (SC)}. The Apex Court in their judgment while upholding our order have also dealt with the question of compensation to be awarded in favour of the parents of the minor child for their acute mental agony and lifelong care and attention on the minor child. In the aforesaid case the Hon'ble Apex Court held that the parents of the child having hired the services of the hospital, are also the consumers 9. (according to the Consumer Protection Rules, 1987) 10. [(1957) 2 All ER 11. { II (1997) CPJ 98 (NC)}

8 within the meaning of section 2 (1)(d)(ii) and that they would also be entitled to award of compensation due to negligence of the Ops to the Complainant 12. In Kurban Hussein Mohamedalli Rangawalla v State of Maharastra "To impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non. 13 " In Juggankhan v The State of Madhya Pradesh 14, 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 poisonous contents of the leaf of dhatura, were not satisfactorily established by the prosecution. This Court (the Hon'ble Supreme 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. It would be seen that the profession of a Homoeopath which the accused claimed to profess did not permit use of the substance administered to the patient. The accused had no knowledge of the effect of such substance being administered and yet he did so. In this background, the inference of the accused being guilty of rash and negligent act was drawn against him. On observation of this, The Hon'ble Supreme Court opines as ''In our opinion, 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.''. In Dr Laxman Balakrishna Joshi Vs Dr Trimbak Bapu Godbole & Another 15 was a case under Fatal Accidents Act, ''... The duties which a doctor owes to his patients came up for consideration. The Court held that a person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to be given or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a 12. This case was observed in '' Nizam Institute Of Medical... vs Prasanth S. Dhananka &Amp; Others'' 13. In Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra (1965) 2 SCR 622, while dealing with Section 304A of IPC, the statement of law by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap 4 Bom LR 679, was cited. 14. (1965) 1 SCR (1969) 1 SCR 206

9 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 the particular circumstances of each case is what the law requires. The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. In this case, the death of patient was caused due to shock resulting from reduction of the fracture attempted by doctor without taking the elementary caution of giving anaesthetic to the patient. The doctor was held guilty of negligence and liability for damages in civil law.'' In Poonam Verma vs Ashwin Patel and others 16, a doctor registered as medical practitioner and entitled to practice in Homoeopathy only, prescribed an allopathic medicine to the patient. The patient died. The doctor was held to be negligent and liable to compensate the wife of the deceased for the death of her husband on the ground that the doctor who was entitled to practice in homoeopathy only, was under a statutory duty not to enter the field of any other system of medicine and since he trespassed into a prohibited field and prescribed the allopathic medicine to the patient causing the death, his conduct amounted to negligence per se actionable in civil law 17.'' 18 In Achutrao Haribhau Khodwa and Other vs State of Maharastra and Orthers, the Hon'ble Supreme Court noticed that in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. It was a case where a mop was left inside the lady patient's abdomen during an operation. Peritonitis developed which led to a second surgery being performed on her, but she could not survive. Liability for negligence was fastened on the surgeon because no valid explanation was forthcoming for the mop having been left inside the abdomen of the lady. The doctrine of res ipsa loquitur was held applicable 'in a case like this'. SOME OTHER IMPORTANT CASE -LAW: 1. Nizam Institute Of Medical Sciences Vs Prasanth S. Dhananka &Amp;Others Samira Kohli v. Dr Prabha Manchanda 20 3.Indian Medical Association v. V P Shantha 21 J 16. (1996) 4 SCC Dr. Laxman Balkrishna Joshi's case was followed. 18. (1996) 2 SCC ( this case was decided on14 May, 2009) 20. (2008) 2 SCC 1.

10 4. Suresh Gupta (Dr) v. Govt. of NCT of Delhi Shivaji Gendeo Chavan v. Chief Director, Wanless Hospital & another. 6.. Binitha v Lakshmi Hospital ayantilal Govindalal Parmar v. Managing Trustee & Others Subh Lata v. Christian MedicaL College Dr. Anita Prashar Vs. Preeti Kochar and Anr Kalyani Dutta v. Tirath Ram hosp., decided Dr. Suresh Gupta's case Whitehouse v. Jordan 28, 13. Maynard v. West Midlands Regional Health Authority, Sidaway v. Gethlem Royal Hospital, Chin Keow v. Govt. of Malaysia, Blyth vs. Birmingham Waterworks Co., 32 : 17. Bridges vs Directors etc. of N. L. Ry Governor-General in Council vs Mt. Saliman Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia & Anr A.S. Mittal v. State of U.P., 36 CONCLUSION: It is apt to reminisce that in 1793, in the great yellow fever epidemic in Philadelphia, the world famous Dr. Benjamin Rush saw well over a thousand patients, bearing the cure he d invented. Having tremendous confidence and courage, he strode into their evilsmelling houses and sat on their vomit-soaked beds and smiled and said, You have 21. (1995) 6 SCC (2004) 6 SCC (2001) 8 SCC (1) CPJ CCJ III (2005) CPJ 638, 27. (2004) 6 SCC (1981) 1 All ER 267 (HL) 29. (1985) 1 All ER 635 (HL); 30. (1985) 1 All ER 643 (HL); 31. (1967) 1 WLR 813 (PC) 32. (1856) 11 Exch ( ) HL 213 : 34. (1949) ILR 27 Pat (1998) 4 SCC AIR 1989 SC 1570

11 nothing but a yellow fever''. Probably they might have thought he was God. No doubt, it is true that a good doctor is always God to the people.