Difference Between

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Professional

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Misconduct

&

Negligence

�Malpraxis/ Malpractice Professional Negligence)�

• Failure to exercise reasonable degree of care and skill or wilful negligence of a medical practitioner in the treatment of a patient so as to lead to his bodily injury or death.
• Doctor is not liable for honest mistakes or mere error of judgement in making diagnosis or prescribing a treatment.

Professional Negligence

• Onus of proving negligence lies with plaintiff (Patient)
• The injury must be directly traceable to the alleged want of due care and skill
• Negligence unproductive of damage gives no right for action.
• Skill of an average doctor is expected

Civil Negligence

• Patient brings an action for damages in civil court against the physician.
• Suit must be filed within 2 years from the date of alleged negligence
• and once a decision is taken, the case cannot be reopened in any other court.
• Standard of care required varies according to the qualification of the physician,- House surgeon, GP, Specialist. Super-specialist

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Criminal negligence

• Is that conduct of the medical practitioner, which results in prosecution by the state in order to protect the community and punish the wrong doer
• Dr Charged U/S-304A IPC
• who ever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment up to 2 years or with fine or with both.

Sec.304 IPC(Culpable homicide)�

• 304. Punishment for culpable homicide not amounting to murder.
• Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment or a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

Criminal negligence

• Examples
• Gross mismanagement of delivery especially under influence of alcohol or other narcotics.
• Grossly incompetent administration of general anaesthetic
• Administration of wrong substance in to eye causing loss of vision
• Amputation of wrong limb or finger or operation on wrong patient or part
• Leaving instruments or swabs in the body cavity during operation
• Performing criminal abortion
• Performing operation while drunk or drugged resulting in to death

The doctrine of Res Ipsa Loquitur

• The thing speaks for itself.
• 1)     The nature of injury suggests by common knowledge or expert evidence that without negligence it does not occur.
• 2)     The Plaintiff cannot contribute to his own injury.
• 3)     The physician was in exclusive control of instrumentations.

The doctrine of Res Ipsa Loquitur

• Some Examples
• Prescribing an overdose of medicine producing ill effect.
• Giving poisonous medicine carelessly
• Leaving cotton swab or instruments etc. in body cavities during operations
• Prolonged splinting causing loss of use of limb.
• Failure to give A.T.S. / Toxoid in cases of injury
• Burn from hot water bottles, X-ray etc.
• Mismatched blood transfusion

To Avoid Charge of Negligence

• Keep pace with progress in science
• Do not write non-academic degrees
• Don't wrongly claim foreign training or specialist status
• Restrict your practice to the field of training and level received
• Not to promise cure
• Advise hospitalisation in serious cases

To Avoid Charge of Negligence

• Do not prescribe treatment without Clinical examination
• Confirm your diagnosis by investigation
• Consult other colleagues in complicated cases.
• Provide text book management
• Condition of patient to be regularly recorded
• Take informed consent from proper person before operation or special procedure
• Prescribe cheap drugs unless indicated otherwise

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To Avoid Charge of Negligence

• Anaesthesia- An accepted agent used after examining patient, his urine etc.
• Personally verify record with the Patient before surgical procedure.
• Advise immunisation against tetanus where ever indicated
• Post operative care is his legal responsibility
• Give timely warning in serious cases
• Take medical liability insurance
• Prescribe as per patient’s wish as far as O.K.

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Contributory Negligence

• It is the conduct on the part of the patient, which has helped to produce the harm of which complaint is made.
• Physicians take this plea when they are charged for civil malpraxis.
• This is no ground in criminal cases.
• Burden of proof lies on the physician
• Contributory negligence is taken into consideration by courts in awarding damage to the Plaintiff.
• Contributory negligence must be concurrent with that of doctor’s act of negligence to be a good defence.

Duty of Patient

• To submit to all customary and necessary physical examination and investigations
• To exercise ordinary care in matter of co-operation with doctor.
• To follow reasonable and necessary treatment
• To continue such treatment for such time as may be reasonably required
• To inform the doctor if there is any marked change in his condition, which may necessitate a change in treatment.

Consumer Courts

• The remedy under the Consumer Protection Act is an alternative in addition to that already available to the aggrieved persons/consumers by way of civil suit.
• In the complaint/appeal/petition submitted under the Act, a consumer is not required to pay any court fees but only a nominal fee.
• Decisions are to be given in time bound fashion
• Proceedings are informal. The petitioner can argue his own case

Consumer Protection Act (CPA) / (COPRA)�

• Cases are filed without paying court fee
• Legal procedure is informal
• Does not apply to State/ Central Govt. hospitals
• It does not apply to a doctor/ hospital providing Completely free service to all patients.
• But it will apply if an individual patient was treated free even to that patient.
• Case can be filed against a doctor even if he was not negligent
• Case can be filed even though there is no damage to the patient

COPRA Courts & Their Powers

• District Courts
• Headed by a person of rank of District Judge
• Claims are filed up to 50 Lac
• State Court
• Headed by a person of the rank of High Court Judge
• Claims up to 2 Crore are filed
• Court of appeal from decision of district court
• National Court
• Headed by a person of rank of Supreme Court Judge
• Claim of more than 2 Crore
• Court of appeal from state court decisions

Protection of Indian Penal Code

• Sec 80, 81, 87, 88, 89,92, and 312 of IPC empowers a doctor to examine , treat, operate, amputate , castrate or abort a patient; IF DONE IN GOOD FAITH AND WITH CONSENT.
• Sec 93 protects doctors from any charge if communication of truth to the patient has resulted in to harm if it was done in the interest of the patient

CHECKS ON MEDICAL PRACTITIONERS

• Sec. 52 IPC:- Nothing is said to be done or believed in " good faith" which is done or believed without due care and attention.
• Sec. 90 IPC:- Consent invalid
• if given under fear of injury
• under misconception of fact
• consent of an insane
• consent of intoxicated
• consent of child under 12 yrs.

Sir Edward Hall Alderson

10/9/1787 -27/1/1857

THE REASONABLE MAN TEST

Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.- 1856

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Bolam Test of Negligence 1957

• “A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise you might get men today saying: “I do not believe in anaesthetics. I do not believe in antiseptics. I am going to continue to do my surgery in the way it was done in the eighteenth century.” That clearly would be wrong.” Judge McNair J 

Bolam Test of Negligence

• The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgement. 1985 Lord Scarman

The Supreme Court in Laxman v. Trimbak �Bolam Principle Clarified

• A person who holds himself out ready to give medical advice and treatment
• Impliedly undertakes that he is possessed of skill and knowledge for the purpose.
• A duty of care in deciding whether to undertake the case,
• A duty of care in deciding what treatment to give
• 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.
• Neither the very highest nor very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.”

Dr Rogers v Whitaker 1992

• Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient was given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends on medical standards or practices.

Achutrao Haribhau Khodwa v. State of Maharashtra [AIR 1996 SC 2377]

• The very nature of the profession is such that there may be more than one course of treatment
• Negligence can not be attributed on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution.
• Medical opinion may differ, but as long as a doctor acts in a manner which is acceptable to the medical profession it would be difficult to hold him to be guilty of negligence even if the patient dies or suffers a permanent ailment,."

Poonam Verma Vs Ashwin Patel and Others 1996

• The definition of negligence involves the following constituents :-
• (1) a legal duty to exercise due care;
• (2) breach of the duty; and
• (3) consequently damages
• The breach of duty may be occasioned either by not doing something which a reasonable man, under a given set of circumstances would do, or, by doing some act which a reasonable prudent man would not do.

• It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art and need not possess the highest expert skill.
• Negligence has many manifestations - it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or negligence per se, which is defined in Black's Law Dictionary as under

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Black’s Medical Dictionary

• 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 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

Prescribing AYUSH Drugs Negligence Per Se

• Relying upon this definition, the court held that a person who does not have knowledge of a particular System of Medicine but practices in that System is a quack and a mere pretender to medical knowledge or�skill, or to put it differently, a charlatan, and is guilty of negligence per se.

Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia & Anr., �(1998) 4 SCC 39 at 47

• Gross medical mistake will always result in a finding of negligence.
• Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability.
• 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

Jacob Mathew Vs. State of Punjab (2005)6 SCC 1,

• Now what is reasonable and what is unreasonable is a matter on which even experts may disagree. Also, they may disagree on what is a high level of care and what is a low level of care.
• simple negligence may result only in civil liability, but gross negligence or recklessness may result in criminal liability as well. For civil liability only damages can be imposed by the Court but for criminal liability the Doctor can also be sent to jail (apart from damages which may be imposed on him in a civil suit or by the Consumer Fora). However, what is simple negligence and what is gross negligence may be a matter of dispute even among experts.

• While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter productive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation.
• Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient.

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A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation.

A doctor accused of rashness or negligence, may not be

arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.

Montgomery v Lanarkshire Health Board’2015

• The ‘Montgomery’ case has raised the standard of ‘Reasonable Man Test’ by shifting the focus on ‘reasonable patient’ rather than ‘reasonable doctor’.
• The law defines material risk as either a risk to which a reasonable person in the patient's position would be likely to attach significance or a risk that a doctor knows or should reasonably know is perceived to be of significance by this particular patient.

Prudent Patient Test

• GMC :- ‘Patient-centred clinical approach’
• You should do your best to understand the patients’ views and preferences about any proposed investigation or treatment, and adverse outcomes they are most concerned about. You must not make assumptions about a patient's understanding of risk or the importance they attach to different outcomes.
• The Australian Medical Council  
• Communication with patients and encouraging patients to be responsible for managing their own health is a good medical practice
• This is invariably followed in USA

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Dr. Kunal Saha vs Dr. Sukumar Mukherjee & Others

• Current practices, infrastructure, paramedical and other staff, hygiene and sterility should be observed strictly.
• Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence.
• Patient had rashes all over her body and this being the case of dermatology, he should have referred her to a dermatologist. Instead, he prescribed depomedrol for the next 3 days on his assumption that it was a case of vasculitis
• No doctor has the right to use a drug beyond the maximum recommended dose.

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• Further vital signs of a patient such as temperature, pulse, intake-output and blood pressure were not monitored. All these factors are considered to be the very basic necessary amenities to be provided to any patient, who is critically ill.
• Lifesaving supportive therapy including IV fluids/electrolyte replacement, dressing of skin wounds and close monitoring of the infection and blood tests performed regularly to detect the degree of infection was not provided
• If a claim is made by a doctor that he is a specialist and ultimately in turns out that he is not, deficiency in medical services would be presumed

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• It is a common experience that when a patient goes to a private clinic, he goes by the reputation of the clinic and with the hope that proper care will be taken by the hospital authorities. It is not possible for the patient to know which doctor will treat him. When a patient is admitted to a private clinic/hospital, it is the hospital/clinic which engages the doctors for treatment. They charge fees for the services rendered by them and they are supposed to bestow the best care.

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• In cases of medical negligence, the judges find it extremely difficult to decide on the quantum of compensation. It has not yet been finally settled as to what should be the method used for determining compensation in cases of medical negligence. The multiplier method – followed typically in motor accident cases – provides certainty but does not often end up in arriving at ‘just and adequate compensation’. Hence, the courts rarely follow it in cases of medical negligence.
• In the present case Dr. Saha appealed against the award by Consumer Court to Supreme court which finally on October 24, 2013, awarded a little more than Rs. 6 crores plus interest.

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10/08/2022