By Ms. HariniYadav. D
Amidst the global pandemic, the access to health care is being abused by few medical facilities, therefore, it is important to understand the concept of “medical negligence”. Generally, an act or omission (failure to act) by a medical professional that deviates from the accepted medical standard of care constitutes medical negligence.
The concept of first dealt in the case of Donoghue v Stevenson,wherein Lord Atkin recognised a general duty to take reasonable care to avoid foreseeable injury to a ‘neighbour’. In this case, a woman drank ginger beer from a bottle until she found a decomposed snail at the bottom. Subsequently, the woman fell ill and a case was brought against the ginger beer manufacturers for compensation. Lord Atkin held that the company producing the ginger beer had been negligent as they failed to ensure the woman’s safety during the manufacturing process, even though the ginger beer was bought by the victim’s friend. It was substantiated that a general duty of care was owed to a neighbour. In this case, it did not matter who had bought the beer, since it was justifiable to consider that anyone who drank the beer would have suffered the same repercussions and could therefore be considered under the ‘neighbour’ principle.[i]
3.TEST OF NEGLIGENCE
After the Donoghue case, a three-fold test evolved to determine the negligence in a particular case.
(i) A person is owing a duty of care.
(ii) A breach if that duty of care is established.
(iii) As a direct result of that breach, legally recognized harm has been caused. Therefore, all the three conditions must be fulfilled to constitute negligence.
It is well-established that a doctor owes a duty of care to his patient. This duty can either arise out of a contract or a tort law. Even if, the doctor-patient relationship is not established, the courts have imposed a duty upon the doctor to take reasonable care. The Supreme Court of India has held that “every doctor, at the governmental hospital or elsewhere, has a professional obligation to extend his services with due expertise for protecting life”.[ii]
There are two major tests to determine medical negligence, they are: -
(a) The Bolam test.
(b) The Bolitho qualification to that test.
• Bolam test
In Bolam v FriernHospital Management Committee, the Court prescribed that, in identifying whether a defendant has fallen below the required standard of care, regard must be shown to responsible medical opinion, and to the fact that reasonable doctors may differ. A practitioner who acts in conformity with an accepted current practice is not negligent “merely because there is a body of opinion which would take a contrary view.”[iii] Differences of opinion and practice exist, and will always exist, in the medical as in other fields. As far as the law of negligence is concerned the medical profession is in a privileged position because it is acknowledged that a medical opinion may differ. If a medical practitioner was found to have adhered to the general practise of a particular body of medical opinion, then he/she will not be liable for any injurious consequence despite the existence of another medical practice that would have chosen a different course which could or would have produced a better result. Therefore, it is adequate if a doctor, surgeon, midwife or nurse observes a practice adopted by a recognised body of medical opinion.
• Bolitho Test
In Bolitho v City and Hackney Health Authority, it was established that a doctor could be held responsible for negligence in respect of diagnosis and treatment despite a body of professional opinion sanctioning his conduct where it had not been demonstrated to the judge's satisfaction that the body of opinion relied on was reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field were of a particular opinion would demonstrate the reasonableness of that opinion. However, in a rare case, if it could be demonstrated that the professional opinion was not capable of withstanding logical analysis, the judge would be entitled to hold that the body of opinion was not reasonable or responsible. Accordingly, the final deciding authority as to whether there has been professional negligence is the court and not the medical profession. It is for the court to decide whether the requisite logical basis for a defendant's expert medical opinion is absent. [iv]
So in a dispute involving medical negligence there is a two-step procedure to determine the question of alleged tort:
(a) Whether the medical practitioner acted in accordance with a practice accepted as proper for an ordinarily competent medical practitioner by a responsible body of medical opinion; and
(b) If “yes”, whether the practice survives Bolitho judicial scrutiny as being “responsible” or “logical”.
Therefore, for any medical negligence case to sustain, the Bolam or the Bolitho test should be satisfied. It is also pertinent to note that the Bolam test can be easily satisfied by the medical expert as the defendant needs to prove that he/she followed the procedure of a medical body whereas it difficult to substantiate the Bolitho test, wherein the defendant should satisfy the Court that the procedure followed by him/her is indeed logical and rational, thereby increasing the burden on the medical professionals rather than the victim Therefore, it is the opinion of the author that the Bolitho test must be adopted as a general practise to determine the cases of medical negligence by the Indian Courts.
[i] Donoghue v Stevenson 1932 A.C. 562. [ii] Parmanand Kataria vs. Union of India A.I.R. 1989 S.C. 2039. [iii] Bolam v Friern Hospital Management Committee  2 All. E.R. 118 (India). [iv] Bolitho v City and Hackney Health Authority  4 All. E.R. 771(India).