Team Code: JNMC 413 Jacob Mathew v. State of Punjab and another, (2005) ee - Inquiry Reports - [MEDICAL NEGLIGENCE] - [Section ¢ - Medical Neg! ne dical Negl [1957]IWLR 582, Jacob IPC, Bolam vs. Friern Hospital Management Comn Mathew v. State of Punjab and another, (2005) 6 SCC 1, Martina F. D Souza v. Mohd. Ishfaq. (2009) 3 SCC 1] - The court analyzed the inquiry reports and expert opinions to determine the medical negligence of the respondent. The court referred to the principles established in the Bolam case and Jacob Mathew case to define negligence by professionals and issued guidelines for the prosecution of doctors for offences of criminal rashness or criminal negligence. The court found no negligence on the part of respondent and quashed the FIR against him: Essential ingredients of Section 304A of IPC 1. The Act leads to the death of a person 2. The death must be done due to negligent or rash acts by the accused. 3. The act shall not amount to culpable homicide » Mens rea ( Intention ) - The element of mens rea must be proven for negligence to be considered a criminal offense. In terms of carelessness, mens rea in criminal law is determined by recklessness. Recklessness and moral responsibility are not rooted in a wish to do damage. It resides in the proximity of the reckless state of mind and the mental state that exists when harm is intended. Putting this in another way, it seems that the possible outcomes are not taken into consideration. Fact of the Case: Jeevan Lal Sharma was admitted to a private ward in a CWC Hospital, which was situated in Ludhiana. On February 22, 1995, the patient suffered from breathing problems. Vijay Sharma, who was the older brother of the informant was present there and after seeing his father in pain, he called the nurse and doctor, but even after calling them, no one arrived there for about 20-25 minutes. After 25 minutes, two doctors visited the patient room, named Jacob Mathew and Allen Joseph. Afier coming there, he immediately ordered the oxygen gas cylinder to be connected to the mouth of the patient. However, after doing so, the patient started to feel more problems because it was found that the oxygen gas cylinder was empty, and after searching all over, it was discovered that there was no other gas cylinder present in the hospital. Vijay Sharma started searching for another gas cylinder, but after 7 minutes, the doctors confirmed that the patient was dead. The younger son of the late Jeevan Lal Sharma, Ashok Kumar Sharma, filed an FIR under Section 304A of the IPC, read with Section 34 of the IPC. According to the FIR, it has been further stated that the informant’s father’s death was brought on by the negligence of the doctors, and nurses and the lack of availability of the oxygen gas cylinder in the hospital. ‘The main reason for the death was the negligence in fixing an empty oxygen gas cylinder to the mouth of the patient, which caused problems in breathing and, as aTeam Code: JNMC 413 - negligence of The informant mentioned that the negligene patient stopped breathing completely ; aril ane ATE Rena afier receiving the dead body from the he hospital management led to the death of his father. and hospital. he sent it to his village for final cremation. ‘ase was made under On the basis of the statement of Ashok Kumar Sharma in the FIR. a case a a a a A Sections 304A and 34 of the IPC. and the investigation was started thereafter. The charge made by the judicial magistrate of the First class of Ludhiana. Both the doctors who were the accused in this case filed a revision petition against the order of the first-class judicial magistrate of Ludhiana before the session judge of Ludhiana, which was later dismissed by the learned session judge On the charges having been filed against the doctors and dismissed by the learned Session Judge, the accused doctors moved to the Hon'ble High Court of Punjab under 482 of the Cr.P.C. with a prayer to quash all the proceedings against both of them. Before the High Court, it was argued that throughout the voluminous records that made up the police’s challan filed against the accused, there was not a single specific accusation of an act of commission or omission against both of the accused doctors. Finding of the Court: The court analyzed the inquiry reports and expert opinions and found no negligence on the part of respondent. The court referred to the principles established in the Bolam case and Jacob Mathew case to define negligence by professionals and issued guidelines for the prosecution of doctors for offenses of criminal rashness or criminal negligence. The court found no negligence ‘on the part of respondent and quashed the FIR against him. JUDGMENT : ‘The case was brought before the Hon'ble Supreme Court, where a two-judge bench was formed. Both judges cited a decision, which was also given by a two-judge bench in the case of Dy Suresh Gupta v. Government of NCT of Delhi. 2004), They were not quite convinced that the position stated in that case was correct. They declared in an order dated 9 September 2004, that they thought the case should be heard by the three-judge’s bench, As a result, the hearing for that matter was fixed before the three-judge bench. The Hon’ble Supreme Court issued certain guidelines, which are to be followed when there is any medical negligence in the matter, The bench said that it was crucial to clarify that it does not mean that doctors cannot face consequences for acts of negligence or recklessness. The goal is to emphasise that, for the good of society, eare and caution are essential. Doctors need to be shielded from unjust or unfounded Punishment since they give some of the highest services to humanity. Criminal procedures are sometimes used by complainants to coerce medical providers into paying them unjustly or without cause, Malicious acts like these need to be stopped.Team Code: NMC 413 t : the Government of India It was further observed that the Medical Council of India should advise the Gove e jons or statutory rules and the State Government on'developing and releasing executive instructions or sts{ul01) i er, The Court suggested the that_includedetiledsanstnibione in order to Golvelthise matter: (he COMM SIEs aise prosecution of doctors for erimes ards are created. A trustworthy accusation of recklessness or establishment of some rules for future instances involving the including criminal negligence or recklessness until such stand assessment from another licensed doctor supporting the carelessness on the part of the accused doctor is a sufficient kind of prima facie evidence that the court should consider before accepting a private complaint Further, the court said, prior to taking any further action against the physician who accused of carelessness or recklessness, the investigating officer ought to get an unbiased qualified medical opinion, preferably from a government doctor who has a proactive mind in the relevant medical field. Based on the information gathered from the inquiry, the doctor (Jacob Mathews) is supposed to offer a fair and objective assessment. It is not appropriate for a doctor who has been charged with recklessness or carelessness to be habitually arrested for that reason alone. The doctor should not be arrested unless it is required to be protected by the investigation gather evidence, or is useless. There is a good reason to think that the doctor will be able to escape prosecution if they are not detained. The court determined that they were convinced by the argument made before them. It was said that even if they assume that all the claims made by the complainant in the complaint are true then also it does not form a case of criminal negligence or even recklessness on the part of the accused-appellant. The complainant has taken the non-availability of oxygen gas cylinders as the main cause of death, noting that the doctors who are accused were not qualified doctors to treat the patient they agreed to trea According to the complaint made, this was a situation where the non-availability of an oxygen gas cylinder, which might be due to the failure on the part of the hospital to provide one or because the cylinder was found empty, was the main issue. In this case, it was possible that the hospital might be held liable for civil liability but the accused doctor cannot be held liable and be prosecuted under Section 304A and Section 34 of the Indian Penal Code which is based on the BOLAM's test. Therefore, the charge framed under Section 304 and Section 34 of the Indian Penal Code on the accused medical professionals was dismissed. BOLAM Test: This test was laid down in the case of Bolam vy. Friern Hospital Management Commintee, (1957). In 1954, John Hector Bolam underwent Electroconvulsive Therapy (ECT) to cure his clinical depression. The medical community gave different views regarding the best ways to reduce the hazards of ECT-induced convulsions. As a result of the ineffectiveness of the physical restraint, Bolam suffered a pelvic fracture. In court, he argued that the hospital had been careless and the doctor had violated the standard of care when providing treatment. This case serves as the locus classicus for developing the legal standard of care that doctors are supposed to provide. Mr. Justice MeNair gave the jury the crucial instructions that laid the groundwork for this historic case.Team Code: INMIC 413 become a fundamental This test, which originated from BOLAM’s situation, has extended to lards by which component of legal evaluations of medical negligence and has shaped the stand doctors are held accountable for the care they give to their patients. SUPREME COURT OF INDIA AJAY RASTOGI, ABHAY S. OKA, JJ. Dr. (Mrs.) Chanda Rani Akhouri & Ors. - Appellants VERSUS: Dr. M.A. Methusethupathi & Ors. - Respondents Civil Appeal No(s).6507 of 2009 Decided on: 20-04-2022 (A) Torts — Medical Negligence ~ Medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another — In practice of medicine, there could be varying approaches of treatment — There could be genuine difference of opinion ~ However, while adopting a course of treatment, duty cast upon medical practitioner is that he must ensure that medical protocol being followed by him is to the best of his skill and with competence at his command ~ At the given time, medical practitioner would be liable only where his conduct fell below that of standards of a reasonably competent practitioner in his field — Term “negligence” has no defined boundaries and if any medical negligence is there, whether it is pre or post- operative medical care or in follow-up care, at any point of time by treating doctors or anyone else, it is always open to be considered by Courts/Commission taking note of exposition of law laid down by Apex Court. (B) Medical negligence — Death of patient due to post operative medical negligence — Complaint dismissed by National Commission — Respondent Doctors had disclosed their qualifications and their medical expertise in field of nephrology and surgery in kidney transplantation has not been doubted by appellants ~ It is also not the case of appellants that patient was not medically treated by well-qualified doctors at the time when kidney transplant surgery was undertaken — As per case sheet of patient, doctors have treated patient to the best of their medical knowledge and administered best medical care which was possible - Although complaint of patient which remained persistent could not be ruled out despite medically approved drugs being administered to him and if patient could not be finally saved, that in itself could not be considered to be a case of post operative medical negligence — Doctors are expected to take reasonable care, but no professional can assure that patient will come back home after overcoming crisis — At the same time, no evidence has come on record at behest of appellants which, in any manner, could demonstrate that it was a case of post-operative medical negligence or follow-up care on part of treating doctors — National Commission has not committed any manifest error in arriving to a conclusion that in post operative medical negligence or follow up care, there was no negligence being committed by respondents which may be a foundation for entertaining complaint filed by appellants ~ Appeal dismissed,Team Code: JNMC 413 Facts of the case Demise of husband of appellant no.1 after his long illness on 3rd February, 1996 has resulted initiation of the legal proceedings at the instance of appellant no.1 along with her chee sal bona fide belief that the cause of death of her late husband was post operative medica negligence and follow-up care, National Consumer Disputes Redressal Commission, affet appreciating the material on record, including the evidence led by the parties. arrived Rk 2 conclusion that it was not a case of post-operative medical negligence as being alleee ' a he appellants and dismissed the complaint by judgment impugned dated 21st July, 2009 which is the subject matter of appeal filed at the instance of the appellants under Section 23 of the Consumer Protection Act, 1986, Findings of Court: The appellant made a very candid statement before Court that she wants now to sum up the matter and what she has lost is, in no manner, recoverable and compensation even if awarded by this Court is not going to be of any solace to her at this point of time. We realize the pain of losing her husband and the trauma she has suffered, but that cannot translate into a legal remedy. JUDGMENT: It was held by the Hon’ble Supreme Court that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. Rastogi, J. 17. The Commission, after taking into consideration the pleadings so also the evidence on record arrived to conclusion that the patient Naveen Kant was under the hands of the expert team of doctors and possible medical care at the command of the doctors was fully administered to him and after being discharged from the hospital on 24th November, 1995, still thereafter he was continued to be under treatment and merely because the expert team of doctors could not save him after his prolonged illness and he died on 3rd February, 1996 that in itself could not be considered to be a case of post operative medical negligence and in consequence thereto dismissed the complaint filed at the instance of the appellants under judgment impugned dated 2st July, 2009. 18. It is not disputed by counsel for the appellants that the kidney transplantation of the patient on 12th November, 1995 was successful and they had complained but the complaint is only in reference to post operational medical negligence as the respondents have failed to discharge their statutory duty of eare and medical protocols subsumed thereunder, including follow up care and that according to the appellants is a medical negligence on the part of the respondents inTeam Code: INMC 413 extending treatment to the patient Naveen Kant and being the case of post operative they have lost their patient on 3rd February, 1996. The doctors can provide their best medical assistance available at their command but merely because they could not save the patient. that could not be considered to be a case of post operative medical negligence despite the fact that medical protocol administered by them was duly supported by the two medical experts of the field who appeared on behalf of the respondents, Dr. S. Sundar and Dr. Arun Kumar, and nothing elicits from the cross-examination made by the appellants. In the given circumstances, the findings which has been returned by the Commission needs no further interference by this Court. We have heard learned counsel for both the parties and with their assistance perused the material placed on record. In order to appreciate the opinion of the Commission, it will be apposite to take note of the legal principles which would apply in.the case of medical negligence. 23. In the case of medical negligence. this Court in Jacob Mathew v. State of Punjab and Another, (2005) 6 SCC 1 dealt with the law of medical negligence in respect of professionals professing some special skills. Thus, any individual approaching such a skilled person would have a reasonable expectation under the duty of care and caution but there could be no assurance of the result. No doctor would assure a full recovery in every case. At the relevant time, only assurance given by implication is that he possessed the requisite skills in the branch of the profession and while undertaking the performance of his task, he would exercise his skills to the best of his ability and with reasonable competence. Thus, the liability would only come if (a) either a person (doctor) did not possess the requisite skills which he professed to have possessed: or (b) he did not exercise with reasonable competence in given case the skill which he did possess. It was held to be necessary for every professional to possess the highest level of expertise in that branch in which he practices. It was held that simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of the medical professional. This Court held as under: “48. 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”. (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Team Code: INMC 413 \ dloctor follows a practice acceptable to the medic. pie mere treatment was also available profession of that day, he can held liable for negligenc \d liable for negligence ly because a better alternative course or method of v 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 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 (4) The test for determining medical negligence as laid down in Bolam case (1957) 2 All ER 118 (QBD). WLR at p. 586] holds good in its applicability in India (8) Res ipsa loguitur is only a rule of evidence and operates in the domain of civil law. specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has. if at all. a limited application in trial on a charge of criminal negligence.” 24. The term “negligence” has been defined in Halsbury Laws of England (Fourth Edition) para 34 and as settled in Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others, (2010) 3 SCC 480 as under: “45. According to Halsbury’s Laws of England, 4th Edn., Vol. 26 pp. 17-18, the definition of negligence is as under: “22. Negligence.-Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give: and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.” 25. In para 89 of the judgment in Kusum Sharma (supra), the tests of medical negligence while deciding whether the medical professional is guilty of medical negligence, varied tested principles have to be kept in view, this Court held as under: “89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well-known principles must be kept in view:Team Code: JNMC 413 |. Negligence is the breach of a duty exercised 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. i Il. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment III, The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conelusion differs from that of other professional doctor. VI. 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. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. 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. VIII. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck. IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension. X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurising the medical professionals/hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.Team Code: JNMC 413 XI. The medical profes a Olessionals are entitle vet duties with reasonable skill Renee broteetion so and competence interest and welfare of the patients have to be pa long as they perform their and in the interest of the patients. The aramount for the medical professionals.” 26, Ina psi judgment in Dr. Harish Kumar Khurana v, Joginder Singh and Others. ; this Court held that the hospital and doctors are required to exercise sufficient care in ret the patients in all Circumstances. However, in an unfortunate case death may occur. It necessa eee ’ I il bene that sufficient material on medical evidence should be available before the adjudicating authority to arrive at a conclusion that the death is due to medical negligence. Even death of a patient cannot, on the € of it, be considered to be medical negligence. 32. On the contrary, the two experts who have deposed on behalf of the respondents, Dr. S Sundar and Dr. Arun Kumar are admittedly experts of the field. At the same time. the respondents ~ OP Nos.1, 2 and 5 are indeed expert doctors and qualified Nephrologists and this fact has been admitted by the appellants that the patient was under treatment of the best medical professionals and qualified Nephrologists, but those treating doctors could not save the patient Naveen Kant, that in itself could not be considered to be a case of post operative medical negligence which was the main grievance of the appellants before the Commission. 33. After going through the findings which have been returned by the Commission in the order impugned, we see no reason to differ with the view expressed by the Commission keeping in mind the tests enunciated above. Taking note of the fact that treating doctors, OP Nos.1, 2 and 5 are medical experts in the field of nephrology and so far as OP No.6 hospital where the patient was admitted for transplantation was duly registered under the Act, 1994 and all post operative medical care protocol available at the command of the respondents was administered to the patient, still his physical condition deteriorated and finally he could not be saved. which is really unfortunate, but there cannot be a legal recourse to what is being acceptable to the destiny. 36. Before parting, we would like to observe that when the matter was finally heard and concluded, appellant no.1 was present in Court and we made a request as to whether she is still interested to get the final judicial verdict on the issue which has been raised at her instance at one stage by instituting a complaint before the Commission. The appellant made a very candid statement before the Court that she wants now to sum up the matter and what she has lost is, in no manner, recoverable and compensation even if awarded by this Court is not going to be of any solace to her at this point of time. We realize the pain of losing her husband and the trauma she has suffered, but that cannot translate into a legal remedy. 37. Accordingly, we do not find any fault in the reasoning of the Commission, as a result, the appeal is without substance and deserves to be dismissed. 38. The appeal is accordingly dismissed. No costs. 39, All pending application(s) shall stand disposed of.Team Code: JNMC 413 Article hups:/Avww.lawgazette.co.uk/doctors-not-liabl supr ourt- confirms/5118377.article Rae Doctors do not owe a f care y duty of care to their patients’ families to protect them against psychiatric illness that might be caused fi i ig ‘aused from witnessin; f 2 the death ed ones. the eme Court ruled in a majorioy weno 2 th of loved ones, the Supreme Court rul The judgment South Afri es (Appellant) Davies (Respondent) v Bridgend County Borough Council (Appellant Sharp Corp Ltd (Respondent) v Viterra BV (previously known as Glencore Agriculture BV) (Appellant) ). (Argentum Exploration Ltd (Respondent) v Republic of ~heard together by Lord Lloyod-Jones, Lord Briggs, Lord Hamblen. Lord | gatt. Lord Richards where the cl: imants sought compensation for psychiatric illnesses caused by seeing the death of a close relative in distressing cireumstances. In each case. the death w. caused by the doctor or health authority’s negligence. as allegedly [All three cases were dismissed by a majority of six to one. Lord Leggatt and Lady Rose, with whom Lord Briggs, Lord Sales, and Lord Richards agreed, tee “The common law does not recognize one person as having any legally compensable aerpest in the physical well-being of another. The law affords compensation to the vietim but not intettpcrs who suffer harm in consequence of the vietim’s injuries or death, however severely affected they may be.” n It states that a doctor who treats 4 patient does not enter into a doctor-patient relationship with tha member of the patient's family. The judges addthat the responsibilities of a medical Practitioner do not extend 10 protecting members of the patients family from exposure to prrtmmatic. experiences. “To impose such « responsibility on hospitals and doctors would go tevond what, inthe eurtent state of our society, is reasonably regarded as the nature and scope of their role.” Society has not yet reached a point where the experience of witnessing the death of a close family member ‘is something from which @ person can reasonably expect to be shielded by the medical profession’. Dismissing the appeals, the judges said no one could hear about the events experienced by the claimants ‘without being moved by the terrible distress caused to them by the sudden deaths...and the shocking circumstances in which those deaths occurred