October 2, 2022

Medical Negligence III- Bolam Test and the extent of its application in India

 

Bolam Test

The test with regard to the negligence of a doctor was laid down in Bolam Vs. Friern Hospital Management Committee ( [1957] 1 WLR 582 ).

It was to the effect that a doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medicalmen skilled in that particular art.

This principle in Bolam’s case has been accepted by the House of Lords in England as applicable to diagnosis and treatment. (See Sidaway Vs. Board of Governors of Bethlem Roval Hospital ( [1985] A.C. 871 at 881 )

Dealing with the question of negligence, the High Court of Australia in Rogers Vs. Whitaker ( [1993] 109 A.L.R. has held that the question is not whether the doctor’s conduct accords with the practice of a medical profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court to decide and the duty of deciding it cannot be delegated to any profession or group in the community.

It would, therefore, appear that the Australian High Court has taken a somewhat different view than the principle enunciated in Bolam’s case.

Position in India

Dr.Laxman Balkrishan Joshi Vs. Dr. Trimbak Bapu Godbole

This Court has had an occasion to go into this question in the case of Dr.Laxman Balkrishan Joshi Vs. Dr. Trimbak Bapu Godbole and Anr. (AIR 1969 SC 128 ).

In that case the High Court had held that the death of the son of the claimant was due to the shock resulting from reduction of the patient’s fracture attempted by the doctor without taking the elementary caution of giving anaesthetic. In this context, with reference to the duties of the doctors to the patient, the court, in appeal, observed as follows:

The duties which a doctor owes to his patient are clear. 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. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding whether treatment to give or a duty of care in the administration of that treatment.

A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a 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.”

A.S. Mittal and Ors. vs. State of U.P. and Ors. (AIR 1989 SC 1570)

The above principle was again applied by the court in the case of A.S. Mittal and Ors. vs. State of U.P. and Ors. (AIR 1989 SC 1570).

In that case irreparable damage had been done to the eyes of some of the patients who were operated upon at an eye camp. Though this Court refrained from deciding, in that particular case, whether the doctors were negligent, it observed

A mistake by a medical practitioner which no reasonably competent and a careful practitioner would have committed is a negligent one.”

The Court also took note that the law recognizes the dangers which are inherent in surgical operations and that mistakes will occur, on occasions, despite the exercise of reasonable skill and care. The Court further quoted Street on Torts (1983) (7th Edn.) wherein it was stated that the doctrine of res ipso loquitur was attracted:

“…. Where an unexplained accident occurs from a thing under the control of the defendant, and medical or other expert evidence shows that such accidents would not happen if proper care were used, there is at least evidence of negligence for a jury.”

Indian Medical Association Vs. V.P. Shantha and Ors

Reference can also be made of Indian Medical Association Vs. V.P. Shantha and Ors. (1995) 6 SCC 651).

The question which arose in this case was whether the Consumer Protection Act, 1986, applied to medical practitioners, hospitals and nursing homes. It was held in this case that medical practitioners were not immune from a claim for damages on the ground of negligence.

The Court also approved a passage from Jackson & Powell on Professional Negligence and held that

“the approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services.”

Achutrao Haribhau Khodwa vs State of Maharashtra; 1996 SCC (2) 634, JT 1996 (2) 624

Above mentioned cases were also referred in the present case. This case was filed when due to negligence of doctor, a mop (towel) was left in the body of the woman who went through the operation of sterilization after delivering a child. Due to the negligence of the doctor, the woman died even after the second operation when mop was wiped out form her body.

The court while holding liable to the doctors who conducted the first operation, said that,

“The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence 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 with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.

In cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable. As held in Laxman’s case (supra) by this Court a medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor.”

Reference

Achutrao Haribhau Khodwa vs State of Maharashtra; 1996 SCC (2) 634, JT 1996 (2) 624