MEDICAL NEGLIGENCE: Recent Changes with Reference to Baby M.

Case

Law of Torts

Submitted by

Tripti Kejriwal

UID: SF0117056

Year 1 & Semester 1

Faculty in-charge

Monmi Gohain

Assistant Professor of Law of Torts

National Law University, Assam

Guwahati

1
 Table of Contents

Pg.No.

1. INTRODUCTION 3-6
1.1. Literature Review 4
1.2. Aims and Objectives 5
1.3. Scope 5
1.4. Research Questions 6
1.5. Research Methodology 6

2. MEDICAL NEGLIGENCE 7

3. MEDICAL NEGLIGENCE IN INDIA 12

4. BABY M CASE 17

5. CONCLUSION 21

6. BIBLIOGRAPHY 23

2
 CHAPTER 1

INTRODUCTION

“Law is the great civilizing machinery. It liberates the desire to build and subdues the desire
to destroy. And if war can tear us apart, Law can unite us – out of fear, or love or reason, or
all three. Law is the greatest human invention. All the rest, give man mastery over his world.
Law gives him mastery over himself”.1

Winfield has defined negligence as a tort which is the breach of a legal duty to take care
which results in damage, undesired by the defendant to the plaintiff. An act involving the
above ingredients is a negligent act.2

"Negligence is not the act itself, but the fact which defines the character of the act, and makes
it a legal wrong." Negligence is a basis for a wide variety of legal claims in the law of torts.
Medical negligence is often confused for medical malpractice, when in fact; negligence is
only one aspect of a meritorious medical malpractice claim. Negligence can occur at various
stages.

History shows that the perception about Medical negligence has shifted from crime to Tort
approach. In earlier civilization (code of Hammurabi developed by Babylon's King, some 20
Centuries before Christian era) doctor's hands were cut off if the patient died during
operation. Likewise, issue of Medical negligence could be found in Islamic law, Mosaic law,
charaka samhita, Manusmriti, Kautilya's Arthashastra.

Medical negligence was considered more as a crime than as a tort. With the progress of
civilization, medical negligence was increasingly treated as a tort by the judiciary so that the
victim can be provided with damages. As common law evolved in England, the earliest
recorded action against a medical man was mounted in 1374 when a surgeon, J Mort, was
brought before the King's Bench considering his treatment of an injured hand. He was in fact
held not liable, but the court said that if such a patient proved negligence, the court would
provide a remedy.

1
Lyndon B. Johnson, TIME September 24, 1965 page 48.
2
Winfield and Jalou.icz, Tort, 5th , p.4.

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Medical negligence is the failure of a medical practitioner to provide proper care and
attention and exercise those skills which a prudent, qualified person would do under similar
circumstances. It is a commission or omission of an act by a medical professional which
deviates from the accepted standards of practice of the medical community, leading to an
injury to the patient.

It may be defined as a lack of reasonable care and skill on the part of a medical professional
with respect to the patient, be it his history taking, clinical examination, investigation,
diagnosis, and treatment that has resulted in injury, death, or an unfavourable outcome.
Failure to act in accordance with the medical standards in vogue and failure to exercise due
care and diligence are generally deemed to constitute medical negligence.3

Many changes have taken place in recent years in the area of assisted reproduction. One of
the more controversial is surrogate motherhood, which is used primarily when a woman
either is infertile or, for other reasons, cannot or will not bear her own biological child. Her
partner's sperm is artificially inseminated in a "surrogate," who agrees to surrender the child
to the couple at birth. Such surrogates are normally paid.

For childless couples who desperately seek to become parents, surrogacy may seem like a
viable option. However, as the Baby M case shows, such an option may be filled with risk.
The well-publicized struggle between Baby M's biological parents has raised concern about
the legal implications of such an arrangement.

This research project will throw light on the concept of Medical Negligence along with the
recent changes with reference to Baby M Case. This project will trace the development of the
case, examine the findings of the New Jersey courts, and conclude with a discussion of the
legal ramifications of the dispute.

1.1. Literature Review

1) Shweta Thakur and Vikram Singh Jaswal; Medical Negligence In India:

This book covers detailed study of concept and nature of medical negligence. This is a
comprehensive study of legislative provisions regarding medical negligence. It also includes

3
Gupta, Kiran, “The standard of care and proof in medical profession, A shift from Bolam to Bolitho”, XIV-XV
National Capital Law Journal 1(2011-2012).

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a detailed study of law governing medical malpractices in ancient India, British regime and
independent India. Elaborate study if judicial and consumer forum trends in awarding
compensation in medical mishaps has also been made in detail.

2) Tapas Kumar Koley; Medical Negligence and the Law in India:

Medical malpractice, perceived and actual, is among the most hotly debated issues in India
today. Related litigation has been increasing every year.

This book provides a comprehensive and in – depth survey of the law under the CPA, the law
of torts and the Penal Code. Addressing doctors, lawyers and patients, it explains how the law
operates in a country in the context of increasing rights consciousness among the patients and
doctor-patient conflict.

It has helped me a lot to conceptualize medical negligence as an important topic in tort law
with all its colors and moods.

3) Ramaswamy Iyer; The Law of Torts:

This book streamlines the various concepts in the field of law of torts in modern India. It is a
detailed commentary, critically analysing the nuances of this intriguing branch of law, which
is not codified in India and is largely dependent on precedents and caselaws.

The book too contains a lot of information about Medical Negligence and provides a study on
the very nature and concept of negligence. It also gives information regarding medical
negligence in India and the conditions applied and inferences drawn through various cases.

1.2. Aims and Objectives

1) To study the concept of Medical Negligence.

2) To study Medical Negligence in India.

3) To study the case of Baby M.

1.3. Scope

The scope of the research project is limited to the study of Medical Negligence in relation
to the recent changes with reference to the Baby M Case.

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1.4. Research Questions

1) What is the concept of Medical Negligence?

2) What is the nature of Medical Negligence in India?

3) What was the case of Baby M and the recent changes in medical negligence with
reference to the case?

1.5. Research Methodology

In this project, the researcher has adopted Doctrinal type of research. Doctrinal research is
essentially a library –based study, which means that the materials needed by a research
maybe available in libraries, achieves and other databases. The research is totally based on
library and internet sources. Various types of books were used to get the adequate data
essential for this project. The researcher also used computer laboratory to get important data
related to this topic. Help from various websites were also taken.

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 CHAPTER 2

MEDICAL NEGLIGENCE

Negligence is simply the failure to exercise due care. The three ingredients of negligence are
as follows:

 The defendant owes a duty of care to the plaintiff.

 The defendant has breached this duty of car
 The plaintiff has suffered an injury due to this breach

In the words of the Supreme Court “every doctor, at the governmental hospital or elsewhere,
has a professional obligation to extend his services with due expertise for protecting life”
(Parmanand Kataria vs. Union of India4). In situations of lesser grave, such obligation does
not comply.

By present guidelines, a doctor has to constantly update his knowledge and meet the
standards of care expected of him. Knowledge of all the technological advancements is not
obligatory for him, but he has to possess reasonable knowledge. Similarly the degree of care
has been defined in terms of a generalist as well as a specialist physician, and hence it has to
be properly adhered to in practice.

Any act that requires contact with the patient has to be consented by the patient. Doctor has to
follow duty of care.  As per the judicial pronouncements, this duty is to disclose all such
information as would be relevant or necessary for the patient to make a decision.

In order to hold the doctor guilty, a clear breach of duty has to be established by the plaintiff.
If he fails to do so, physician is not liable for any legal action against him. Reasonableness of
a particular action at the time of incidence and the lack of practioner in delivering the degree
of his duty have to be duly substantiated in the eyes of law in order to prove the breach of
duty. Normally, a doctor is held liable for only his acts (other than cases of vicarious
liability).

Medical Negligence is an emotive term: emotive for doctors and for patients. It is the
commission or omission of an act by a medical professional or health care provider, which
deviated from the accepted standards of practice of the medical community, leading to an
4
Medical negligence liability under the consumer protection act: A review of judicial perspective- S.V. Joga
Rao- Indian JUrol. 2009 Jul-Sep; 25(3): 361–371.doi:  10.4103/0970-1591.56205

7
injury to the patient. It may be defined as the lack of reasonable care and skill on the part of a
medical professional or health care provider with respect to the acceptance of a patient, be it
his history taking, clinical examination, investigation, diagnosis and treatment that has
resulted in injury, death, or unfavourable outcome.

A health care provider may misdiagnose a problem, fail to treat the injury or illness properly,
administer the wrong medication, and fail to adequately inform a patient about the risks of a
procedure or about alternative treatments. Medical negligence comprises the majority of
professional negligence lawsuits. This is not to say that medical professionals are more prone
to committing negligence, but that they are the target of more professional negligence
lawsuits.

In order to understand the correct meaning of medical negligence it is essential that we

carefully analyze these components because only after we analyze these components will we
be able to understand the remedies that the law provides us.5

1. Existence of legal duty: Whenever a person approaches another trusting him to possess
certain skill, or special knowledge on a given problem the second party is under an implied
legal duty to exercise due diligence as is expected to act at least in such a manner as is
expected in the ordinary course from his contemporaries. So it is not that the legal duty can
only be contractual and not otherwise. Failure on the part of such a person to do something
which was incumbent so, that which would be just and reasonable tantamount to negligence.
Every time a patient visits a doctor for his ailments he does not enter into any written contract
but there is a contract by implication and any lack of proper care can make the erring doctor
liable for breach of professional duty.

2. Breach of legal duty: There is a certainly a breach of legal duty if the person exercising
the skill does something which an ordinary man would not have done or fails to do that which
an ordinary prudent man would have done in a similar situation. The standards are not
supposed to be of very high degree or otherwise, but just the relative kind, that is expected
from man in the ordinary course of treatment.

3. Damages caused by the breach: The wrong, the injury occasioned by such negligence is
liable to be compensated I n terms of money and the courts apply the well settled principles
5
http://shodhganga.inflibnet.ac.in/bitstream/10603/28314/9/09_chapter%201.pdf

8
for determination of the exact liquidated amount. We must remember that no hard and fast
rule can be laid down for universal application. While awarding compensation, the consumer
forum has to take into account all relevant factors and assess compensation on the basis of
accepted legal principles on moderation. It is for the consumer forum to decide whether the
compensation awarded is reasonable, fair and proper according to the facts and circumstances
of the case.

In terms of medical malpractice tort law, medical negligence is usually the basis for a lawsuit
demanding compensation for an injury caused to a patient by a doctor or other medical
professional. While negligence on its own does not merit a medical malpractice claim, when
the negligence results in undue injury to a patient, a lawsuit may be brought demanding
compensation for all associated damages.

A physician has a duty to diagnose and treat his or her patients using the standard of care of
other similarly trained physicians in that community. If a physician fails to diagnose cancer
when another physician in that community with similar training would have been expected to
diagnose the cancer, that physician may be liable if the delay in diagnosis results in severe
case than if the cancer had been detected and treated at an earlier stage.

The unsatisfactory outcome of medical treatment in itself is insufficient to support an

allegation that the doctor treating a patient was negligent. Then the patient cannot sue his
doctor for medical negligence simply because his illness cannot be cured after a series of
treatments. Medical negligence occurs when a medical provider fails to exercise the kind of
care and prudence that other providers in the same field of medicine provide. Medical
negligence can occur in the form of recklessness, inattentiveness, or an omission. Common
types of malpractice include misdiagnosis, failure to provide proper treatment of a patient's
ailment, administration of the wrong medication, and the failure to inform the patient of the
risks associated with a treatment or with information about alternative treatments. Tort law
governs medical negligence.

Thus, Medical negligence occurs when a doctor, dentist, nurse, surgeon or any other medical
professional performs his job in a way that deviates from the accepted medical standard of
care. In keeping with car accident analogy, if a doctor breaks the rules regarding how to treat
a patient, and does something that is "against the rules", then that doctor has failed to perform
his duty, and is said to be negligent.

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The liability of the person committing the wrong can be of three types depending on the harm
caused by him to the injured person, they are-6
1. Civil liability: As mentioned before, the person who possesses special knowledge and skill
in a field and uses this knowledge to treat the other person then he owes a duty of acre to the
other person. If a wrong is committed by him in this period, then he is liable to pay damages
in the form of compensation to him. In some situation senior doctors or the hospital
authorities can also be vicariously held liable for the wrongs committed by junior doctors.

2. Criminal liability: There may be an occasion when the patient has died after the treatment
and criminal case is filed under section 304A of the IPC of allegedly causing death by rash or
negligent act. The commencement or pendency of criminal trial would not act as bar to
parallel civil proceedings for recovery of money or a consumer complaint nor can the same
be stayed.

But there are large numbers of cases where criminal law and civil laws can run side by side.
The two remedies are not mutually exclusive but clearly co-extensive and essentially differ in
their context and consequence. The object of the criminal law is to punish an offender who
committed the negligence but in civil law the objective is not to punish but to get
compensation from the other person.

COMMON REASONS FOR ALLEGATIONS OF MEDICAL NEGLIGENCE:

1) Surgical Mishaps

2) Casualty and Accident Department

3) Anesthesia

4) Faillure to Attend

5) Failure of communication

6) Drugs and Therapeutic Substance

DEFENCES AVAILABLE TO A MEDICAL PRACTIONER AGAINST

NEGLIGENCE

6
http://www.legalservicesindia.com/article/article/medical-negligence-in-india-944-1.html

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1) He had owned no duty to the patient, i.e. there is no doctor patient relationship.

2) He had discharged his duty according to standard medical practice,

3) It was an error of judgement.

4) It was a therapeutic misadventure.

5) The damages were caused by third party who had treated the patient without his
knowledge or consent.

6) It was contributory negligence.

7) The complaint of negligence was not lodged within two years from the date of alleged
causation of damages.

CHAPTER 3

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 MEDICAL NEGLIGENCE IN INDIA

Medical negligence, now days have become one of the serious issues in India. Our experience
tells us that medical profession, one of the noblest professions, is not immune to negligence
which at times results in death of patient or complete / partial impairment of limbs, or
culminates into another misery. There are instances wherein most incompetent or ill/under
educated doctors, on their volition, have made prey the innocent patients. The magnitude of
negligence or deliberate conduct of the medical professionals has many times led to litigation.

STANDARD OF CARE REQUIRED IN INDIA

There was considerable ambiguity on the standard of care required to be exercised by medical
practitioners in order to discharge possible criminal liability arising out of their acts or
omissions. Section 304-A of the Indian Penal Code, 1860 [IPC] prescribes punishment for
death due to rash or negligent conduct of a person. It is under this section that doctors or
other medical practitioners have generally been proceeded against under criminal law. Even
though there is protection given to accidents caused during performance of lawful acts
[Section 80, IPC] and acts not intended to cause death and done for the person’s benefit by
his consent and in good faith [Section 88, IPC], the fear of criminal liability has been
lingering while performance of their duty even today.7

TESTS USED IN INDIA

In determining the test for medical negligence and prosecution of medical practitioners, the
Supreme Court of India has also issued certain guidelines. What goes to the basis of these
guidelines is that once a criminal investigation begins against a doctor, the loss of reputation
is nearly irreversible. It has also been taken into account that since the nature of work that
doctors perform is one involving public service, it is even more necessary that certain
guidelines be issued in this regard.

1. Government of India along with the Medical Council of India should formulate certain
rules/regulations etc to regulate aspects of negligence in medical practice. While this exercise

7
Medical negligence liability under the consumer protection act: A review of judicial perspective- S.V. Joga
Rao- Indian JUrol. 2009 Jul-Sep; 25(3): 361 371.doi:  10.4103/0970-1591.56205

12
is pending, the following guidelines must be kept in mind while prosecuting medical
practitioners.
2. To make a case against a doctor, a private complainant has to submit evidence of a prima
facie case before the authority taking cognizance of the act. Such authority must also include
credible opinion given by another competent doctor to support his case.
3. The investigating officer must also, independently, obtain an impartial ad unbiased opinion
of a doctor who practices in the same field in the same regard.
4. The doctor concerned should not be arrested like in a regular prosecution. He may be
arrested if there is a fear that the doctor will not make himself available for investigation.

SOME OF THE IMPORTANT CASES INVOLVING MEDICAL NEGLIGENCE:8

 In PoonamVerma v. Ashwin Patel and Ors a doctor registered as medical

practitioner and entitled to practice in Homoeopathy only, prescribed an allopathic
medicine to the patient leading to the death of patient.

 In AchutraoHaribhauKhodwa and Ors. v State of Maharashtra and Ors the

Supreme Court : 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.

 In Dr. Suresh Gupta v. Govt. of NCT of Delhi and Anr stated "Thus a doctor
cannot be held criminally responsible for patient's death unless his negligence or
incompetence showed such disregard for life and safety of his patient as to amount to
a crime against the State.”

 In Shakoor vs. Situ a patient died of idiosyncratic liver reaction after taking nine
doses of a traditional Chinese remedy prescribed by an herbal medicinalist. The skin

8
http://www.legalservicesindia.com/article/article/medical-negligence-in-india-944-1.html

13
 condition from which the patient had been suffering could only be treated by surgery
in orthodox medicine. His widow sued in negligence.

 In Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole a young man aged 20,
met with an accident on the sea beach in a village far away from the city of Pune,
which resulted in the fracture of the femur of his left leg. After some temporary
treatment by a local doctor who tied wooden planks to his leg, he was brought to the
respondent’s hospital for treatment. The respondent had given specific instructions to
his assistant to give 2 proper injection doses of injection of morphia before bringing
the patient to the operation theatre. But the assistant gave the patient only one
injection. The young boy died as the result of shock suffered for not having given the
adequate amount of anesthesia.

 In Sishir Ranjan Saha v. State of Tripura the victim of the road accident was
brought to a hospital. He needed major surgery. The specialist doctor was not
available as he was busy attending to the other patients and did not respond to the call
of emergency. The victim filed a suit in the court claiming compensation.

 In Cassidy v. Ministry of Health the plaintiff went to the doctor to cure his two stiff
fingers. When the doctor operated him and when he was brought out it was seen that
his two fingers were not cured but instead his two other fingers also became stiff. Due
it this he almost couldn’t use his full hand. Hence the plaintiff filed a petition in the
court asking for compensation.

 In Vinitha Ashok v. Lakshmi Hospital132 removal of pregnancy was done without

ultrasonography and uterus of the patient had to be removed. There was expert
evidence to indicate that ultrasonography would not have established ectopic
pregnancy but some text books indicated otherwise. The general practice in the area in
which the doctor practiced was not to have ultrasonography done. Therefore no
negligence was attributed on this ground even if two views could be possible.

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  In Dr. P.N. Rao v. G. Jayaprakasu133 a very promising young boy of 17 was
admitted in a government hospital for removal of tonsils. As a result of the negligence
in the administration of anaesthesia during the operation, the patient became victim of
cerebral anoxia making him dependant on his parents. The anesthetist, the surgeon
and the government were all held liable for damages to the plaintiff.

Several cases in this regard have been dealt by various courts of India and the major decisions
could be tabulated with the following highlights:

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 essential components of negligence are three: 'duty', 'breach' and
'resulting damage'.
2. 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.
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.
4. Negligence which is neither gross nor of a higher degree may provide a ground for
action in civil law but cannot form the basis for prosecution.
5. To prosecute a medical professional for negligence under criminal law it must be
shown that the accused did something or failed to do something which in the given
facts and circumstances no medical professional in his ordinary senses and prudence
would have done or failed to do.
6. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law
especially in cases of torts and helps in determining the onus of proof in actions
relating to negligence.

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7. Cases of medical negligence have to be dealt with a difference. It is not the same as
occupational negligence. Simple lack of proof or error of judgment will not amount to
professional negligence.
8. The only two cases in which such negligence would be attributed are when the
professional did not hold the requisite skill that he professed to have possessed or
non-exercise with reasonable care of the skill possessed.
9. Bolam test would be applicable in India also.
10. Negligence under civil and criminal law is different.
11. Under section 304-A of the Indian Penal Code, the ‘rash or negligent’ conduct must
be ‘gross’ in nature.
12. To make a medical practitioner liable, it has to be shown that the injury resulted was
most likely imminent and that no medical practitioner in his ordinary senses and
prudence would have committed that act or omission.

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 CHAPTER 4

BABY M CASE

Baby M (born March 27, 1986) was the pseudonym used in the case In re Baby M, 537 A.2d
1227, 109 N.J. 396 (N.J. 1988) for the infant whose legal parentage was in question.9

In re Baby M was a custody case that became the first American court ruling on the validity
of surrogacy. William Stern entered into a surrogacy agreement with Mary Beth Whitehead,
whom he and his wife Elizabeth Stern found through a newspaper advertisement. According
to the agreement, Mary Beth Whitehead would be inseminated with William Stern's sperm
(making her a traditional, as opposed to gestational, surrogate), bring the pregnancy to term,
and relinquish her parental rights in favor of William's wife, Elizabeth. After the birth,
however, Mary Beth decided to keep the child. William and Elizabeth Stern then sued to be
recognized as the child's legal parents.

The New Jersey court ruled that the surrogacy contract was invalid according to public
policy, recognized Mary Beth Whitehead as the child's legal mother, and ordered the Family
Court to determine whether Whitehead, as mother, or Stern, as father, should have legal
custody of the infant, using the conventional 'best interests of the child' analysis. Stern was
awarded custody, with Whitehead having visitation rights.

At birth, Mary Beth Whitehead named Baby M. Sara Elizabeth Whitehead. She was later
renamed Melissa Elizabeth Stern, after William Stern was awarded legal custody.

Brief Fact Summary: The Sterns entered into a surrogacy contract with the Whiteheads
whereby Mrs. Whitehead would bear the child of Mr. Stern through artificial insemination
and relinquish custody of the child to the Sterns upon birth. Once the child was born Mrs.
Whitehead found herself unable to part with the child, and sought to retain custody.

Synopsis of Rule of Law: The surrogacy contract is unenforceable due to violation of both
statutory law and public policy. Custody must be determined based upon the best interests of
the child.

9
https://en.wikipedia.org/wiki/Baby_M

17
Facts:

In 1985 William Stern and Mary Beth Whitehead entered into a surrogacy contract stating
that Stern’s wife, Elizabeth, was infertile, that they wanted a child, and Mrs. Whitehead was
willing to provide that child as mother with Mr. Stern as father. Through artificial
insemination using Mr. Stern’s sperm, Mrs. Whitehead would become pregnant. Mrs.
Whitehead would deliver the born child to the Sterns and terminate her maternal rights so that
Mrs. Stern could thereafter adopt the child. Mrs. Whitehead’s husband, Richard, was also a
party to the contract; Mrs. Stern was not. Mr. Whitehead promised to do all acts necessary to
rebut the presumption of paternity. The contract gave Mrs. Stern sole custody in the event of
Mr. Stern’s death. Mr. Stern agreed to pay Mrs. Whitehead $10,000 after the child’s birth, on
its delivery to him. He agreed to pay $7,500 to the Infertility Center of New York (ICNY),
and ICNY arranged for the surrogacy contract. The history of the parties suggests good faith.

However, almost from the moment of birth Mrs. Whitehead realized she could not part with
the child. She nonetheless turned her child over to the Sterns on March 30 at the Whiteheads’
home. Later that evening Mrs. Whitehead was stricken with unbearable sadness. The Sterns,
concerned that she might commit suicide turned the child over to her on her word that she
would return her in a week. It became apparent that Mrs. Whitehead could not return the
child, and Mr. Stern filed a complaint seeking enforcement of the surrogacy contract. An
order in favour of Stern was entered, and the process server, aided by police, entered Mrs.
Whitehead’s home to execute the order. Mr. Whitehead fled with the child. The Whiteheads
fled to Florida with Baby M. Police in Florida forcibly removed the child from her
grandparent’s home and turned the child over to the Sterns.

At trial, the court held that the surrogacy contract was valid, it ordered Mrs. Whitehead’s
parental rights be terminated, that sole custody be granted to Mr. Stern, and immediately
entered an order allowing the adoption of Melissa by Mrs. Stern. The trial court devoted the
major portion of its opinion to the question of the baby’s best interests, finding that specific
performance would not be granted unless that remedy was in the best interests of the child.
On the question of best interests, the Supreme Court agreed substantially with both the trial
court’s analysis and conclusions. However, the Court differed in its review and analysis of
the surrogacy contract.10

10
h ttps://www.casebriefs.com/blog/law/family-law/family-law-keyed-to-weisberg/adoption-and-alternatives-
to-adoption/in-re-baby-m/

18
Held. The surrogacy contract is unenforceable, but the Sterns should retain custody based
upon the best interests of the child. Statutory Provisions. The surrogacy contract conflicts
with:

1) laws prohibiting the use of money in connection with adoptions;

2) law requiring proof of parental unfitness or abandonment before termination of parental

rights is ordered or an adoption is granted; and

3) laws that make surrender of custody and consent to adoption revocable in private
placement adoptions.

Considering issue 1, considerable care was taken to not violate the prohibition. The money
paid to Mrs. Whitehead was stated to be for her services, not for adoption. The payment to
the ICNY was stated to be for legal representation advice, administrative work, and other
services. However, it seems clear that the money was paid and accepted in connection with
an adoption. The prohibition is strong, constituting a high misdemeanor, because baby-selling
potentially results in the exploitation of all parties involved.

Considering issue 2, New Jersey law provides for such termination only where there has been
a voluntary surrender of a child to an approved agency or the Division of Youth and Family
Services (DYFS) accompanied by a formal document acknowledging termination of parental
rights, or where there has been a showing of parental abandonment or unfitness. In this case
termination was obtained by claiming the benefit of contractual provisions. Since the
termination was invalid, the adoption could not properly be granted.

Considering issue 3, the provision stating Mrs. Whitehead agrees to surrender custody and
terminate all parental rights is intended to be an irrevocable consent, as it contains no clause
giving her a right to rescind. The Legislature only provided for one irrevocable consent by
statute, a consent to surrender of custody and placement with an approved agency or with
DYFS. The contract was designed to circumvent state statutes.

Implications of the Case

The case got much of its attention due to the fact that it raised new legal and social questions

19
on parenthood where ‘third party reproduction’ technique is used.
It was a point of debate whether,

“the ability to contract away parental rights tolk a child born to her invoke a basic human
right for a woman to make decisions about her own body, or whether recognizing such a right
would entail too great risks of exploitation.” 11

When the New Jersey Court said that nothing can alter the legal rights of a woman who bears
the child, that somewhat settled the surrogate mother’s status in America. However, it
remained so only till gestational surrogacy came to the forefront with technical and scientific
breakthroughs and led to the establishment of the fact that the surrogate mother had no
relation with the child.

CHAPTER 5

CONCLUSION

11
http://www.surrogatemothers.org/the-baby-m-case-a-peek-into-the-ethical-and-legal-issues-related-to-
surrogacy

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The evolving jurisprudence of medical negligence shows that the courts and the consumer
fora are proactive in protecting the interest of the victims from the unscrupulous doctors’
irresponsible attitude towards a noble profession. It is true that the medical profession has to
an extent become commercialized and there may be some medical practitioners who depart
from their Hippocratic Oath for their selfish ends. However, the entire medical fraternity
cannot be blamed or branded as lacking in integrity or competence just because of some. It
must be remembered that sometimes despite their best efforts the treatment of a doctor might
fail.

Several factors might have contributed to such results. That does not mean that the doctor or
the surgeon must be held to be guilty of medical negligence, unless there is some strong
evidence the courts cannot fasten liability on them. The Courts and Consumer Fora are not
experts in medical science and must not try to substitute their own views over that of medical
specialists.

Indian society is experiencing a growing awareness regarding rights of consumers of medical

services. This trend is clearly discernible from the litigation concerning medical professional
or the establishment of liability, claiming redressal for the suffering due to medical
negligence, vitiated consent, and breach of confidentiality arising out of the doctor-patient
relationship. The patient-centered initiative of rights protection is required to be appreciated
in the economic context of the rapid decline of State spending and massive private investment
in the sphere of the health care system and the Supreme Court’s efforts to Constitutionalize
right to health as a fundamental right.12

The Government is under an obligation to protect the health of the people because there is a
close nexus between health and the quality of life of a person. There are various provisions
under the Constitution which deal with the health of the public at large.

The founding fathers of the Indian Constitution rightly inserted Directive Principles of State
Policy with a view to protect the health of the public at large. As of now, the adjudicating
process with regard to liability of medical professionals, be it in a consumer forum or a
regular civil or criminal court, follows common law principles relating to negligence, vitiated
consent and breach of confidentiality.

12
Ramaswamy Iyer; The Law of Torts; LexisNexis Butterworths Wadhwa; Nagpur, Tenth edition, 2007

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However, it is equally essential to note that the protection of right of patients shall not be at
the cost of professional integrity and autonomy. There is definitely a need for striking a
delicate balance. Otherwise, the consequences would be inexplicable. In the context of
obtaining the redresssal, there is a deserving need for a two-pronged approach. On the one
hand, the desirable direction points towards identification of minimum reasonable standards
in the light of the social, economical, and cultural context that would facilitate the
adjudicators to decide issues of professional liability on an objective basis.

The judicial approach shows the nature of adjudication of medical negligence liability on the
one hand and on the other, it does not clarify as to how prima facie medical negligence could
be established? There is uncertainty regarding expert evidence before the Consumer Fora. It
is necessary that some legislative intervention or guidelines issued by the Government,
Central or the State in consultation with the Medical Council of India regarding expert
evidence rather than leaving it with the adjudicatory fora.

Another important consideration which should be kept in mind is the possibility of getting
adverse popularity and sometimes unfair criticism to the Hospital and a Medical Practitioner
in case of an alleged complaint of medical negligence. In many situations, the allegation may
be sporadic and without even ascertaining the reality. Much damage would have been done
by the time a decision is arrived at by the adjudicating body. If it reaches the conclusion that
there is no medical negligence, then what is the remedy to the aggrieved Medical Practitioner
or the Hospital?

Hence, the media and publicity through media may be subject to some restriction. As in the
case of the restrictions on publicity of the details of a victim in offences against women, there
should be some legislative prohibition against giving publicity to the incident pointing fingers
at a Hospital or a Doctor. In any case, it must be remembered that, probably with some rare
exceptions, the Hospitals and/or Doctors are instrumentalities serving human society.

BIBLIOGRAPHY

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 Tapas Kumar Koley; Medical Negligence and the Law in India, Oxford University
Press, New Delhi, 2010

 Shweta Thakur and Vikram Singh Jaswal; Medical Negligence In India

 Ramaswamy Iyer; The Law of Torts; LexisNexis Butterworths Wadhwa; Nagpur,

Tenth edition, 2007

 Medical negligence liability under the consumer protection act: A review of judicial
perspective- S.V. Joga Rao- Indian JUrol. 2009 Jul-Sep; 25(3): 361
371.doi:  10.4103/0970-1591.56205

 Lyndon B. Johnson, TIME September 24, 1965

 Winfield and Jalou.icz, Tort, 5th edition

 http://shodhganga.inflibnet.ac.in/bitstream/10603/28314/9/09_chapter%201.pdf

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