Negligence

"In the matter of professional liability professions differ from other occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control."

Supreme Court in Indian Medical Association vs. V.P. Shantha & Others.

The development of the law of negligence for the medical profession has been turbulent since the early part of this century. Old rules did not satisfy social necessities and social opinion. In a series of decisions in England from 1932 onward, the courts evolved the tort of negligence as an independent and vigorous wrong and extended the liability for negligence to professional men and to public authorities. Initially there was a difference between a negligent act and a negligent statement, viz. a difference between what you did carelessly and what you said carelessly. Damages could be recovered for a negligent act but not for a negligent statement. No one could bring an action for a negligent statement for he had to show either fraud or a warranty and a negligent statement was neither. Now, medical men would be liable for both negligent acts and negligent statements. The Supreme Court in Indian Medical Association versus V.P. Shantha and Others has stated- "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." (emphasis added). Hospitals too were initially not liable for the acts of its professional staff. In England that was changed in Gold versus Essex County Council wherein a little girl was awarded damages for radiation burns on her face for the negligent administration, by the radiologist of the hospital, X-ray therapy for warts on the face. This was followed by Cassidy versus Ministry of Health where a man was awarded damages for negligent treatment by the hospital staff for two stiff fingers (In this case the man came out of the hospital with four stiff fingers). The reasoning given by the court was that the hospital was liable since they employed the staff, had chosen them for the task of treatment and had in their hands the ultimate sanction-the power of dismissal. The patient who entered the hospital, the court reasoned, had no choice in the selection of the doctor or the treatment offered to him. The Supreme Court in Indian Medical Association versus V.P. Shantha and Others has commented-"Where, then, does the doctor stand today in society? To some extent, he is a servant of the public, a public which is widely (though not always well) informed on medical matters. Society is conditioned to distrust paternalism and the modern medical practitioner has little wish to be paternalistic. The new talk is of 'producers and consumers' and the concept that 'he who pays the piper calls the tune' is established both within the profession and its relationship with patients. The competent patient's inalienable rights to understand his treatment and to accept or refuse it are now well established." Further -"Consumerism is now firmly established in medical practice- and this has been encouraged on a wide scale by government in the United Kingdom through introduction of "charters'. Complaint is central to this ethos- and the notion that blame must be attributed and compensated has a high priority." (Mason & McCall Smith: Law and Medical Ethics, 4th Edn).

Negligence then is culpable carelessness- conduct which involves an unreasonably great risk of causing harm to another. Negligence excludes wrongful intention since negligence and wrongful intent are mutually exclusive. No result which is due to carelessness can have also been intended. Nothing which was intended can have been due to carelessness. Carelessness is not culpable, or a ground of legal liability except in those cases in which the law has imposed a duty of carefulness. Carefulness depends upon the degree of skill and knowledge which a professional professes and is expected to have. The law demands not that which is possible, but that which is reasonable in view of the magnitude of the risk. The degree of care demanded by the law would vary in different professions and even within the same profession many variables affect the expectations of courts. It is not sufficient to say that the medical practitioner acted in good faith to the best of his judgment and belief. The question in every case would be whether the medical practitioner in fact attained the degree of due care established by law. Alderson B. defined negligence- "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." Lord Wright said- "In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing." The American Restatement of Torts defines it as "Conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm."

Analysis of the concept of negligence brings out features which have evolved with passing time to its present day concept. It was Holmes who said- " The featureless generality, that the defendant was bound to use such care as a prudent man would do under the circumstances, ought to be continually giving to the specific one, that he was bound to use this or that precaution". The original meaning of the reasonable man as a 'man who traveled on a Clapham omnibus' or as 'the man in the street' or in the words of an American author as the 'man who takes the magazines at home and in the evening pushes the lawn mower in his shirt sleeves' has given place to the man described by Greer L.J. "God forbid that the standard of manners should be taken from the man on the Clapham omnibus".

When the concept of negligence is extended to professional people such as an architect or a doctor the words of Lord Wright and Holmes find a new meaning. The test of a man on the Clapham omnibus is unreal. It is expected that a professional person show a fair, reasonable and competent degree of skill. Reasonable however refers not to the average standard but to the standard the jury or the judge think ought to have been observed in the particular case. The Supreme Court in Laxman Balkrishna Joshi versus Trimbak Bapu Godbole & Anr, 1969 (1) SCR 206 echoed its feeling holding that "The medical 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." (emphasis supplied). Again, the Supreme Court, quoting McNair in Bolam versus Friern Hospital Managing Committee said "But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus because he has not got this special skill. The test is the standard of the ordinary skill a man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art." (emphasis supplied)

To compare the law as it then was and what it is today the leading case on the subject is Roe versus Minister of Health (1954, 2 Q.B. 66). A patient was injected a spinal anesthetic by a specialist anesthetist with nupercainal which was sealed in a colored ampoule. These ampoules were stored in phenol to maintain sterility on the outside of the ampoules. However due to hair line cracks which could not be detected phenol seeped into the ampoules contaminating the nupercainal which caused permanent paralysis in two patients from waist down. The cracks in the ampoules could not be detected by ordinary visual or tactile examination. This was a risk which was first drawn to the attention of the profession in 1951: it would not have been appreciated by an ordinary anesthetist in 1947. Lord Denning M.R. said in that case " We must not condemn as negligence that which is only a misadventure." However in the same case it was also pointed out that- "Nowadays it would be negligence not to realize the danger, but it was not then." (Per Denning L.J. [1954] 2 Q.B. 66, 68)

For over 30 years the standard of care in England has been that of the ordinary skilled person exercising and professing to have that special skill, and a doctor or surgeon was not to held negligent if he acted in accordance with the practice accepted at that time as proper by a responsible body of medical opinion, notwithstanding that other doctors adopted different practices. The Bolam test has been approved by the House of Lords in relation to diagnosis and treatment. "The law imposes the duty of care: but the standard is a matter of medical judgment." (Bolam v. Friern Barnet Hospital Management Committee [1957] 1 W.L.R. 582).

In England (as in India) there are no degrees of negligence though some authorities did differentiate between gross negligence (culpa lata) from slight negligence (culpa levis) These distinctions were based partly upon Roman law and partly upon the misunderstanding of it. The distinctions are no longer used by courts and a single standard of negligence is used.

Sometimes in medical cases the patient comes to harm because of his refusal to follow advice of the medical practitioner which proximately contributes to his injuries. This doctrine of contributory negligence (the patient carelessness contributing to the harm) may bar the patient from recovering damages or may reduce the damages to reflect the comparative negligence of each party. In order for contributory negligence to be relevant, both the patient's and medical practitioner' negligence must have been causes in fact and proximate causes of the harm. What is the standard to be adopted to judge the contributory negligence of the plaintiff-patient ? Generally a competent adult may be contributorily negligent when his conduct falls short of that degree of care that society expects a reasonable person for his own safety. The standard applicable to children and the mentally impaired would be different from that applied to a competent adult.

References

1. Fitzgerald PJ: Salmond on Jurisprudence, Twelfth Edition, Tripathi, Bombay, 1966.
2. King JH Jr.: The Law of Medical Malpractice, Second Edition, West Publishing Co., St. Paul, Minn. 1986.
3. Heuston RFV and Buckley RA: Salmond and Heuston on the Law of Torts, Twentieth Edition, Universal Book Traders, 1992.
4. Roe v. Ministry of Health (1954) 2 Q.B. 66.
5. Denning Lord, M.R.: The Discipline of Law, Aditya Books Private Limited, New Delhi, 1993.

"In the ordinary case, the law will not assist an innocent plaintiff at the expense of an innocent defendant."

Pashman J. in Anderson vs. Somberg

The res ipsa loquitur doctrine (the thing speaks for itself) continues to be troublesome for the courts in medical malpractice cases. Does the res ipsa loquitur doctrine, or the application of medical negligence per se (negligence on the face of it), to a medical case, obviate the need for any supporting expert medical testimony? The Secretary's Commission on Medical Malpractice appointed in 1973 in U.S.A. gave its report on the doctrine and found that the doctrine in its classical sense performs a useful purpose in common law, but that it should be applied differently in medical malpractice cases than in other types of tort litigation.

With increasing number of cases being filed against medical practitioners and hospitals after passing of The Consumer Protection Act, 1986 it is a debatable point whether Indian Courts would readily apply the doctrine in view of the procedure followed by the court under the Act. Section 13 of the Act, deals with the procedure on receipt of complaints. Sub-section (4) of Section 13 runs as follows:

For the purpose of this section, the District Forum shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters, namely:-

1. the summoning and enforcing attendance of any defendant or witness and examining the witness on oath;
2. the discovery and production of any document or other material object producible as evidence;
3. the reception of evidence on affidavits;
4. the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
5. issuing of any commission for the examination of any witness; and
6. any other matter which may be prescribed.

Though the power of summoning and enforcing attendance of any defendant or witness and examining the witness on oath exists with the District Forum, the State Commission and the National Commission under Section 13 (4) (i), the power is seldom used due to delays likely to occur. This delay would defeat the very purpose of the Consumer Protection Act whose object is speedy redressal of complaints of consumers. This reluctance of the forums to use power available under Section 13 (4) (i) and reliance upon the reception of evidence on affidavits under Section 13 (4) (iii) was one the many reasons of resistance of the medical profession and hospitals to be included within the purview of the Consumer Protection Act.

The doctrine of res ipsa loquitur assumes special importance to the medical profession if the forums will use it in cases of medical malpractice to meet the main objective of the Act. i.e. speedy justice to the consumer. Or, will the Courts adopt a more cautious approach, by allowing witnesses to be examined and cross-examined thereby leading to inevitable delay and thus defeating the main object of the Act ?

In the tort of negligence the burden of proof of negligence is upon the person who alleges negligence and, to establish a case, the complainant must prove negligence against the medical practitioner affirmatively, by adducing reasonable evidence of it. As a rule the mere proof that an accident has happened, the cause of which is unknown, is not evidence of negligence. In special circumstances, however, the mere fact that an accident has happened may be prima facie evidence of negligence, casting upon the party charged with it the onus of proving the contrary, for owing to the nature of the accident it would be inequitable for the plaintiff to prove negligence. The doctrine of res ipsa loquitur is thus an exception to the general rule that the person who asserts negligence must prove the same. The evidence of failure to use due care must ordinarily be direct but in some situations, negligence may be proved by circumstantial evidence. In its inception, the doctrine was nothing more than a reasonable conclusion, from the circumstances of an unusual accident, that it was probably the defendants fault. The doctrine was first stated by Erle, C.J. in 1865 in Scott v. London & St. Katherine Docks Co. Prosser has said that the doctrine may be used where the accident is of a kind which ordinarily does not occur in the absence of negligence, the apparent cause of the accident being within the control of the defendant and the plaintiff could not have contributed to it. The Courts have added a fourth condition to the above three- that the evidence as to the true explanation of the event must be more readily accessible to the defendant than to the plaintiff. The Supreme Court of India observed that "The maxim does not embody any rule of substantive law, nor a rule of evidence. It is perhaps not a rule of any kind but simply the caption to an argument on the evidence- the maxim is only a convenient label to apply to a set of circumstances in which the plaintiff proves a case so as to call for a rebuttal from the defendant without having to allege and prove any specific act or omission on the part of the defendant. The principle function of the maxim is to prevent injustice which would result if the plaintiff were invariably compelled to prove the precise cause of the accident and that the defendant was responsible for it, even when the facts in the matter are at the outset unknown to the plaintiff and often within the knowledge of the defendant alone". Usually most Courts hold that the doctrine creates an inference of negligence. In a few states of the U.S.A. the doctrine is treated as a presumption of negligence, requiring a directed verdict for the plaintiff if the defendant offers no evidence. In most states of the U.S.A. the defendant must introduce evidence to overcome the doctrine, and, if believed will permit the judge to say that it was probable that the defendant was not negligent. In the U.S.A. the Courts have become more willing to apply the doctrine if they believe the laymen on the jury are capable of deciding that the event would not have occurred without negligence. The usual example is a case in which a foreign body is left within the patients body during surgery. Sometimes, however, the plaintiff does present expert testimony to the effect that the exact cause of the injury is unknown or cannot be determined, but that, in the opinion of the expert, negligence was necessarily present in order to cause the result complained. This presentation of expert testimony is known as "conditional res ipsa loquitur". In England, difficulty has arisen where negligence is alleged against doctors, for it has been said that as a judge can have no personal knowledge of "the ordinary course of things" in e.g. a complex abdominal operation, the maxim cannot apply in such cases. But, the better view is that, properly understood, the maxim may be of help even when the exercise of professional skill is under consideration. In both U.S.A. and U.K. however, the inference that the defendant is negligent by applying res ipsa loquitur may be rebutted by the defendant by:-

1. by proving some specific cause for the accident for which he was not responsible;
2. by proving that he was not in fact negligent;
3. by giving a reasonable explanation that the happening of the accident was as consistent with the absence of negligence as it was with the presence of it;
4. by proving that it is an incident which happens without any body's negligence;
5. by proving that the plaintiff could have avoided the incident by using reasonable care and skill; or
6. by proving that the act or incident was due to some factor beyond ones control, that is, it was due to an act of God.

In a case in which the operation of the principle contained in the maxim res ipsa loquitur has been properly invoked the primary and fundamental effect is that the plaintiff cannot be simply defeated by a plea of no case to answer, so that if he has been non-suited by a trial judge, a new trail will be ordered on appeal. The secondary effect is the mere happening of the accident affords "reasonable evidence, in the absence of explanation by the defendant", that it was due to the defendants negligence. Hence if the defendant gives no evidence, a judgment for the plaintiff will stand. A prudent defendant will feel obliged to offer an "explanation" for the course of events which led to the plaintiff to take action against the defendant. What is the nature of onus which rests upon the defendant in such cases? Firstly, it is settled that the defendant is entitled to succeed even though he cannot explain exactly how the accident happened if he establishes that there was no lack of reasonable care on his part though it may be difficult for him to show that he took reasonable care if the disaster was caused by a latent defect. Plaintiffs may also attempt to rely on res ipsa loquitur rulings in actions against hospitals where equipment, instruments, or hospital premises were alleged to have been defective. Secondly, difficulty arises when the defendant is still unable to explain the accident and his conduct is open to more than one interpretation. On the one hand the Privy Council in Ng Chun Pui v. Lee Chuen Tat (1988) emphasized that there is not, even where res ipsa loquitur, any legal presumption of negligence which would effect the putting of the legal burden of disproving negligence on the defendant. Therefore, if the defendant produces a reasonable explanation, equally consistent with negligence and no negligence, the burden of proving the affirmative, that the defendant was negligent and that his negligence caused the accident, still remains with the plaintiff. The scales which have been tipped in the plaintiffs favor by the doctrine of res ipsa loquitur would be once more in the balance, and the plaintiff would have to begin again and prove negligence in the usual way. On the other hand the Privy Council and The House of Lords have held, that the onus of disproving negligence lies on the defendant. The defendant must not show only that there were several hypothetical causes consistent with an absence of negligence, but, he must go further and show either that the accident was due to a specific cause which was not due to his negligence, or that he used all reasonable care in the matter. Much of the confusion is due to a failure to appreciate that cases where res ipsa loquitur applies may vary enormously in strength, significance and cogency of the res proved or admitted. The most eminent judges have been divided on the question whether an inference of negligence could properly be drawn from the facts proved or admitted. Lord Denning in Roe v. Minister of Health said "One final word. These two men have suffered such terrible consequences that it is a natural feeling that they should be compensated. But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure". Again, Lord Denning in Hatcher v. Black said "Before I consider the individual facts, I ought to explain to you the law on this matter of negligence against doctors and hospitals. Mr. Marven Everett sought to liken the case against the hospital to a motor car accident or to an accident in a factory. That is the wrong approach. In the case of an accident on the road, there ought not to be any accident if everyone used proper care; and the same applies in a factory; but in a hospital, when a person who is ill goes in for treatment, there is always some risk, no matter what care is used. Every surgical operation involves risk. It would be wrong, and, indeed bad law, to say that simply because a misadventure or mishap occurred, the hospital and the doctors are thereby liable".

The scenario in the U.S.A. is to apply the res ipsa loquitur doctrine too readily. In England, the tendency is to use the doctrine sparingly. What would Indian Courts do ?

On the one hand is to deliver speedy justice under the Consumer Protection Act thus fulfilling a social need while on the other is justice to the individual doctor or to hospitals sued by the consumer. How will Indian judges solve this conundrum? How will he balance these conflicting interests? Will he be a Judge whose duty is to inquire not only into the matter but also into the circumstances of the matter, or, will he be a Judge who only will vindicate the policy of the Act ?

References

1. Res Ipsa Loquitur: JAMA, Aug. 7, 1972, Vol. 221, No. 6, pp. 633
2. Res Ipsa Loquitur: JAMA, Sept. 11, 1972, Vol.221, No. 11, pp. 1329
3. Roe versus Minister of Health & Another:, QB 1954 C.A. 87
4. Law of Torts: Edited by Heuston RFV and Buckley RA, Twentieth Edition, Sweet & Maxwell, 1992.
5. Law, Medicine and Forensic Science: Edited by Curran WJ & Shapiro ED, Third Edition, Little Brown & Company, 1982.

" It is common knowledge that the intention of a man will not be probed, for the devil does not know a man's intention."

-Brian, C.J.

He who commits a wrong is said to be liable or responsible for it. The wrong may be in the form of an act or an omission. The essential distinction between crimes and civil wrongs is that crimes are considered public wrongs which are a breach and violation of public rights and duties which affect the whole community and is distinguished by the harsher term crime or misdemeanor whereas civil wrongs are considered violations of rights which belong to the individual and are termed civil injuries.

Remedy for the wrong may thus be civil or criminal . However, there are some wrongs for which the remedy may be both civil and criminal (defamation, negligence and some other wrongs). Under the criminal law, liability is always penal. In penal liability, the purpose of the law, is, or includes punishment of the wrongdoer. Under civil liability, the law leaves the victim to sue for compensation, by way of damages. Negligence is one of the wrongs for which the law gives a remedy both under the civil law and the criminal law.

It is important for a medical practitioner to remember that there can be no civil action for negligence if the negligent act or omission has not been attended by an injury to any person; but bare negligence involving the risk of injury is punishable criminally, though nobody is actually hurt by it. (emphasis supplied). Example a patient is operated upon in an operation theater without oxygen being available; the medical practitioner would be liable under the criminal law even though oxygen may not have been needed by the patient. The mere act of exposing the patient to the risk of personal safety or life is enough to bring criminal negligence into play.

From a practical view point, the importance of distinguishing whether negligence is civil or criminal lies in the fact that action for redress to a patient against a medical practitioner would lie under different systems of justice. Civil justice is administered by one set of courts (civil courts, and now, in consumer forums) whereas criminal justice is administered in a somewhat different set of courts (Magistrate's of the First Class). Civil proceedings, if successful, result in a judgment for payment of compensation whereas criminal proceedings, if successful, result in punishment which include imprisonment, fine, or both. Thus the basic objective of criminal proceedings is punishment and the usual goal of civil proceedings is non-punitive (compensatory).

The general condition of penal liability is indicated by the Latin maxim- Actus non facit reum, nisi mens sit rea- the act alone does not amount to guilt; it must be accompanied by a guilty mind (mens rea). Thus two conditions need to be fulfilled before penal responsibility can be rightly imposed. The one is the doing of some act (read act/omission) by the person held to be liable. The other is the mens rea or guilty mind with which the act is done. Thus, before the law can justly punish a criminal act, an inquiry must be made into the mental attitude of the doer for although the act may have been objectively wrongful, the mind of the doer may have been innocent. The mental attitude of the medical practitioner would thus have to concur with the wrongful act before he could be prosecuted successfully under the criminal law .

To attribute mens rea to a wrongful act it is necessary that the act be done either willfully or recklessly. Where the act is willful, mens rea is easy to attribute to the wrongful act since the mind has acted in concert with the wrongful act. A reckless act (read negligently or rashly) is one where the person is responsible for consequences foreseen as the certain or highly probable outcome of his act. However there are two qualifications- Firstly, criminal law may include provisions penalizing negligence even though this may result from mere inadvertence. Secondly, the law may create offenses of strict liability. We are concerned with the first qualification since the Indian Penal Code creates this liability.

This liability under the Indian Penal Code is created on the assumption of foreseeability of consequences which could result from a wrongful act. Thus if a medical practitioner, does an act which he did not intend or even foresee, but which a reasonable medical practitioner would have foreseen under similar circumstances as likely to cause death, he would be held guilty of the wrongful act. Here foreseen and foreseeable consequences are put on the same footing as consequences which are intended.

Section 304-A of the Indian Penal Code and Sections 336, 337 and 338 are the only section under the criminal law which deals with professional negligence-the short title of Section 304-A reads 'Causing death by negligence'. The complete section is: "Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both".

The provisions of the section would come into play only when death occurs. No injury short of death would make a medical practitioner liable under this section. Also, the provision comes into effect when there in no intention to cause death, and no knowledge that the act done in all probability would cause death (culpable homicide). When the act is in its nature criminal, the section has no application. The section does not apply when death has resulted from some supervening event which could not have been anticipated, but will only apply when death is the result of the rash or negligent act as its direct or proximate cause.

Sections 336, 337 and 338 deal with an act endangering life or safety of others, hurt caused by act endangering life or personal safety of others and grievous hurt by act endangering life or personal safety of others. The three sections use the term rash or negligent act. Here the mere act becomes punishable even though no injury is caused to a patient under Section 336. Section 337 and 338 come into play when hurt or grievous hurt is caused by the act in question.

Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury but without intention to cause injury or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Example a medical practitioner performing termination of pregnancy in its sixth month. Here the medical practitioner is aware (knowledge) or should be aware that termination of pregnancy in its sixth month is dangerous but still performs termination though he may not intend to cause death of the patient or have the requisite knowledge that death would probably be caused.

Criminal negligence is the gross or culpable neglect or failure to exercise that reasonable or proper care and precaution to guard against injury which, was the imperative duty of the professional to adopt. Example a medical practitioner conducts termination of an eight week pregnancy but does so without adequate training or with unsterilized instruments. Here the medical practitioner has not exercised the caution incumbent upon him to undertake termination only after adequate training in the procedure and only with sterilized instruments in an adequately equipped set up.

As between rashness and negligence, rashness is a graver offense.

Death or injury should have been the direct result of a rash or negligent act and that act must be the direct and proximate cause without the intervention of another's negligence. It must be the causa causans and not the causa sine qua non (some preceding link but for which the causa causans, that is, the immediate cause could not have been operative). Example a compounder prepared a mixture and dispensed it to eight persons suffering from fever believing it to be quinine but which in reality was strychnine and seven out of the eight persons died due to strychnine poisoning the compounder was convicted under Section 304-A. Similarly a native physician performed an eye operation without sterilizing the instruments and the eye was permanently damaged he was held guilty under Section 337.

The doctrine of contributory negligence (where the patient contributes, by his own act/omission, to death) does not come into play in criminal liability. Thus a medical practitioner would become liable for a negligent act under the criminal law whether or not the patient contributed to his own death. Compare with civil action where a patient may not be able to bring a suit against a medical practitioner for damages where he contributed to the negligent act of the medical practitioner, or, in case he does succeed to bring an action and is successful in his claim, the quantum of damages would be reduced proportionately to the extent the patient contributes to the harm resulting from the negligent act of the medical practitioner (vide infra).

Similarly it is believed that doctrine of res ipsa loquitur ( the thing speaks for itself) has no application in a criminal case. But this is doubtful. Example a surgeon leaves a sponge in the abdominal cavity following an operation and the patient dies of peritonitis. It is evident that in such a case the presence of a sponge in the abdomen speaks for itself (since leaving a sponge in the abdominal cavity is not a normal or usual occurrence after an abdominal operation) and if it is proved that the sponge directly contributed to death (causa causans) the doctrine would come into play.

Having considered the substantive law on criminal negligence, it would, in the interest of continuity, to deal with the procedure under the system of criminal justice. Just as the Civil Procedure Code deals with procedure in civil cases, the Code of Criminal Procedure deals with criminal cases.

A criminal action against a medical practitioner generally begins by a complaint being filed against him by relatives, friends or a social activist, though the police can initiate suo motu proceedings. On being informed about death or injury due to alleged negligence (F.I.R.- First Information Report) the police begin investigation into the incident. The first information itself does not constitute substantive evidence and the medical practitioner can use this first information to corroborate or contradict the maker of it later in the trial. The police will generally not arrest a medical practitioner on the basis of first information report but may do so when any pressure groups insist on this. The police respect medical professionals and wait for further evidence based on autopsy report, chemical analysis of the blood, semen etc. before proceeding to arrest a medical practitioner.

Sections 304-A ,336, 337 and 338 of the Indian Penal Code are classified under the Code of Criminal Procedure in the First Schedule as an offense affecting the human body, cognizable, bailable and triable by a magistrate of the first class in case of Section 304-A and triable by any magistrate when the offense is under Section 336, 337 and 338.

A cognizable offense means an offense for, and cognizable case means a case in which a police officer, may in accordance with the First Schedule of the Code of Criminal Procedure or under any other law for the time being in force, arrest without warrant. Thus in a cognizable offense the police may hold investigation on the information provided to it irrespective of any order of a Court. Courts have no control in such cases over the investigation, or over the action of the police in holding such investigation. The practical fall out for a medical practitioner is not to spend time, money and energy in rushing to a court at this investigative stage but to co-operate with the police in doing their duty of investigating the complaint.

Since an offense under Section 304-A 336, 337 and 338 is bailable the question of applying for 'anticipatory bail' under Section 438 of the Code of Criminal Procedure does not arise and a medical practitioner need not spend efforts to secure this direction from a court apprehending his arrest. Even if a petition is made to a Court for 'anticipatory bail' the petition would be dismissed since an offense under Section 304-A, 336, 337 and 338 is bailable without the need for any direction from a court.

In the event the police does arrest a medical practitioner (before or after investigation is complete) the medical practitioner can ask for bail even without calling an advocate. Bail means release of a person from legal custody. Bail in its fundamental concept is a security for a persons appearance to answer a charge against him at a specified time and place. Section 436 of the Code of Criminal Procedure deals with bail. Bail in bailable offenses is imperative and no police officer or court (with certain exceptions-which need not concern a medical practitioner- where death has occurred due to alleged negligence) can deny a medical practitioner this statutory right. A police officer may even discharge a medical practitioner on his executing a bond without sureties for his later appearance in investigation. A medical practitioner must however comply with the conditions of the bail-bond as regards the time and place of attendance for investigation into the complaint.

On completion of investigation, the police may find no evidence against a medical practitioner. However, relatives, friends or social activists may proceed to take the matter to a criminal court and a magistrate may then issue process against a medical practitioner. A quaint question arises? Can a magistrate issue process against a medical practitioner when police investigations do not find evidence against him? A magistrate to appear fair will probably issue process unless there is overwhelming evidence to the contrary.

During trial, the person who has complained (through the police- since in theory an offense defined under the Indian Penal Code is a crime against the State) will start prosecution and lead evidence in the form of witnesses and documents. Afterwards, the accused (the medical practitioner) is permitted to bring evidence in his favour. Both sides are permitted to cross-examine witnesses. Medical practitioners (and the public generally) believe that one party can spring a surprise over the opponent by bringing in evidence without showing it or informing the other side. This is entirely erroneous. No party to any proceeding in a law court can be taken by surprise. This is the essence of neutral adjudication to obtain justice. Medical practitioners should also remember that in a civil suit or complaint the complainant need only show a preponderance of evidence in his (complainant's) favour (or against the medical practitioner) to obtain a decision in his favour whereas in a criminal action the prosecution (complainant) has to show evidence beyond a reasonable doubt against the accused (the medical practitioner) to obtain conviction. Thus to obtain conviction against a medical practitioner a person would need to have evidence which is of greater weight in the eye of the law than in a civil matter. This is of fundamental importance. In a civil action, damages- compensation in terms of money is given to the aggrieved party, if he is successful in his claim. It is uncommon for the court to levy punitive or exemplary damages against the defendant. In a criminal action on the other hand the accused is punished by fine and/or imprisonment. Rarely is compensation given to the aggrieved party, though the trend appears to be changing. The main reason why evidence beyond a reasonable doubt is required against an accused in a criminal action is that punishment may include deprivation of liberty of a person by imprisonment. Also a convicted person faces other deprivations. Example a medical practitioner may lose his license to practice for a period of time or a consultant may be debarred from attending a hospital. Other disabilities to a convicted person is difficulty in obtaining a passport for travel purposes or to get a visa to visit a foreign country.

References

1. Cecil Turner JW: Kenny's Outlines of Criminal Law, 19th Edition, Cambridge University Press, 1966
2. Fitzgerald PJ: Salmond on Jurisprudence, Twelfth Edition, Sweet & Maxwell, London, 1966.
3. Hidayatullah M & Deb R.: Ratanlal & Dhirajlal-The Indian Penal Code, 26th Edition, Wadhwa and Company Pvt. LTD, 1987.
4. Hidayatullah M & Sathe SP: Ratanlal & Dhirajlal-The Code of Criminal Procedure, 13th Edition, Wadhwa and Company Pvt. Ltd., 1987
5. Derham DP: A Textbook of Jurisprudence by Paton GW, Fourth Edition, The English Language Book Society, 1972.

The Standard of Care

" What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not".

- Justice Holmes

Carelessness may exist in any degree as compared to intention which, either does or does not exist and in which there can no question of any degree. The degree of carelessness varies directly with the risk to which the other person is exposed by the act in question. It is thus necessary to know what degree of carelessness is required to constitute culpable negligence. It is here that the standard of care which the law adopts for a particular act or for a profession that is the concern of the courts in determining the degree of carelessness with which the professional is charged with. He who will exercise any trade or profession must bring to the exercise of it such measure of skill and knowledge as will suffice for reasonable efficiency , and he who has less than this practices at his own risk. The ignorant physician who kills his patient, is legally responsible, not because he is ignorant or unskillful but because, being unskillful and ignorant, he ventures to undertake a case which calls for qualities which he does not possess. It is said that "no man is bound in law to be a good surgeon, but all men are bound not to act as a surgeon until he is good and capable as such."

In medical malpractice litigation, negligence is the predominant theory of liability. Negligence is defined as conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. This uniform standard laid down by law is judged by objective criteria. The standard is that of a reasonable professional under like circumstances. Under English law the courts do not recognize different degrees of negligence. The sole standard is the care that would be shown in the circumstances by a reasonable careful person, and the sole form of negligence is a failure to use this amount of care.

A patient- plaintiff in order to recover damages in medical malpractice from the doctor-defendant must establish the following elements-

1. that a duty of care was owed by the physician to the patient;
2. that the physician violated the applicable standard of care;
3. that the patient suffered a compensable injury;
4. that such injury was caused in fact and proximately caused by the substandard conduct of the physician.

   With few exceptions the burden of proving each of the four elements is on the patient-plaintiff.

   Members of the medical profession are expected to exercise skill and knowledge which they profess to have beyond that of ordinary individuals. However, this skill and knowledge is to be judged by criteria and standards determined by the profession itself. It is only when the skill and knowledge falls below the established standard is the medical practitioner guilty of being negligent.

   Analysis of standard of care involves the following questions:

1. How should one define professional standard of conduct? Is it the customary practice of other members of the medical profession?
2. What weight should be given to professional standards in identifying the standard of care.
3. Is expert testimony required to establish appropriate standard of care?
4. How should disagreement between two schools of thought be treated in malpractice suits?
5. What is the difference in the standard of care applicable to physicians and the standard of care applicable to hospitals?

A physician is under a duty to use that degree of care and skill which is expected of a reasonable competent practitioner in the same class to which he belongs, acting in the same or similar circumstances. The standard should be established by the medical profession and not by lay courts. The evidence may include the elements of locality, availability of facilities, specialization or general practice, proximity of specialists and special facilities as well as other relevant considerations.

Nature and Effects of Professional Standards

Must the practice be of customary standard or must it adhere to acceptable standard ?
Generally professional standard is judged by the customary or usual practice of members, emphasizing their typical conduct. Custom is relevant in determining the standard of care because it illustrates what is feasible and suggests a body of knowledge of which the medical practitioner should be aware. However, it also warns of the possibility of far reaching consequences if a higher standard is required. Acceptance of customary standard has been criticized since incentive to adopt better practice might be lost if customary practice were deemed conclusive evidence of the standard of care.

An alternative to the customary practice approach is to define standards in terms of acceptable practice. This would mean that acceptable practice is what a reasonably competent member of the profession, practicing in the same specialty, under similar circumstances would do. The reasonable expectations and collective sense of members of the profession as to what constitutes sound medicine would be the controlling factor. In practical terms this would mean that members of the profession would be required to up-date themselves with scientific advances taking place in various fields and adhere to a higher standard of care rather than hide behind the veil of customary practice. Medical agencies using continuing medical education programs would go a long way in bridging the gap between customary and acceptable standard of care. An American court held-"The skill, diligence, knowledge, means and methods are not those ordinarily or generally or customarily exercised or employed, but those are reasonably exercised or applied. Negligence cannot be excused on the ground that others practice the same kind of negligence."

What is the weight to be attached to professional standards?
Most courts seem to treat professional standard as conclusively establishing the standard of care for negligence and do not take upon themselves to lay down standards. Some courts however hold that conformity to a standard is only evidence of due care. This is due to most courts relying upon customary practice standard rather than acceptable practice standard.

Expert testimony requirement
Expert testimony is generally required to establish professional negligence. This testimony must establish the applicable professional standard and that the medical practitioners alleged conduct departed from that standard. Whether an expert is competent to testify is a matter for the court to determine. In India this has attained special significance since the passing of the Consumer Protection Act, 1986. One of the main objective of the Act is quick relief to the consumer. Accordingly, courts often take evidence by means of affidavits without recording testimony of experts and without an opportunity of cross-examination, since this would consume time and delay, what it visualizes as justice. Expert testimony would lose much of its credibility if reliance is made on affidavits alone since it not enough for the expert merely to testify what he personally would have done but to establish the applicable professional standard and that the medical practitioner charged with negligence departed from that standard which resulted in harm to the complainant. This can hardly be done by affidavits alone and would require recording of detailed evidence especially in complex issues. The Supreme Court in Indian Medical Association versus V.P. Shantha and Others has suggested that in such complex cases, which requires recording of evidence of experts, the consumer forum should refer the complainant to seek his remedy in the civil court instead of the consumer tribunals.

Differences between two schools
This is an enlargement of the expert testimony which may establish that more than one method of treatment exists for the same condition. A doctor will not be held liable if he followed one method of treatment over another if the method employed by him meet other requirement of standard conduct and if the method used did not expose the patient to unreasonable risk of harm. What is an unreasonable risk of harm would vary in each case.

Standard of care applicable to hospitals
The same standard of care is applicable to hospitals as to individual physicians with the difference that the basis of liability of hospitals is based on corporate liability. The hospital is directly responsible for the maintenance of an acceptable standard of care of patients and cannot escape liability even when no fee is charged for services rendered unless every patient is treated free of charge. This has been laid down by the Supreme Court in Indian Medical Association versus V.P. Shantha and Others. Also, the hospital will be responsible for acts of negligence of its staff and cannot evade responsibility that it had no control over their method of work. This applies equally to nursing staff and senior doctors who undertake treatment in the hospital.

Frames of Reference for determining Standard of Care

1. Term of Act or Omission
   For purposes of negligence, a defendants conduct is to be evaluated in terms of professional standards as they existed at the time of the alleged wrongful conduct. To judge the standard with later advances would be unfair and against the traditional notions of fault-based liability.
2. Defendants situation
   The alleged wrongful conduct must be judged according to the defendants situation. Obviously, in a non-clinical setting the level of expertise will be lower than in a setting with specialized facilities. Similarly, treatment given in an emergency setting would be judged differently from treatment given in a non-emergency setting.
3. Geographic frame of reference
   Courts have defined the standard of care of the medical profession with reference to the practice in a limited geographical setting. Obviously, the standard of care will differ in a district from the standard of care available in a city. Indian courts have not so far defined this so called strict locality rule. The strict locality rule proved objectionable in America because of its potential effect of insulating pockets of substandard practice and of limiting the pool of available expert witnesses. The courts in America have moved forward by holding that the standard of care should be based in the same or similar locality rather than on the strict locality rule.
4. Error in judgment
   Lord Denning M.R. in Whitehouse v. Jordan & Anr. (1980) 1 Al. E.R. 650 had observed-" We must say, and say firmly, that, in a professional man, an error of judgment is not negligent.". This statement was not, however, approved by the House of Lords.

   In a complex field like medicine there is seldom complete agreement on a proper therapeutic approach for a particular medical problem. In the surgical field especially there are numerous techniques, each having their adherents. To pick out the most satisfactory would be difficult for a surgeon let alone the law courts. Although this pluralism may sometime reflect regional variation more often it transcends geographic differences.

   The error in judgment doctrine emphasizes three concepts which are related. First, before a doctor can be held liable the plaintiff must prove that the medical practitioners conduct was negligent i.e. that the conduct did not conform to the applicable standard of care. Second, the basic premise of fault-based liability that a physician should not be held liable merely because of an unfavorable result and third it reaffirms the physicians right to choose among reasonable acceptable therapeutic approaches even though in retrospect the choice turns out to have been the less beneficial one. This, in other words would mean an error in judgment. Errors in judgment would constitute negligence if they result from failure to use reasonable care. Thus if a physician fails to conduct the required or appropriate tests to secure a factual basis for his decision the error in judgment concept will afford no protection.

5. Average or reasonably competent practitioner?
   Some courts in America have defined professional standards in terms of an average practitioner in the professional class to which the defendant belongs. Other courts have preferred to use as a guide the more sensible reasonably competent physician. The latter guideline seems to be the better since the average formulation has the fallacy that those with less than average skill may still come within the class of competent and qualified.

   The Supreme Court has held in Laxman Balkrishna Joshi versus Bapu Trimbak Godbole and Another, 1969 (1) SCR 206, that "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."

References

1. King JH Jr.: The Law of Medical Malpractice, Second Edition, West Publishing Co. St. Paul, Minn., 1986.
2. Curran WJ and Shapiro ED: Law, Medicine and Forensic Science, Third Edition, Little, Brown and Company, Boston and Toronto, 1982.
3. Fitzgerald PJ: Salmond on Jurisprudence, Twelfth Edition, Tripathi, Bombay 1966.
4. Heuston RFV and Buckley RA: Salmond and Heuston on the Law of Torts, Twentieth Edition, Universal Book Traders, 1992.

Duties of a Physician towards patients and non-patients

"Immunity from suit was enjoyed by certain professions on the grounds of public interest. Medical practitioners do not enjoy any immunity and they can be sued in contract or tort on the ground that they have failed to exercise reasonable skill and care."

Supreme Court in Indian Medical Association vs. V.P. Shantha & Others.

A duty is an act which one ought to do. Not to do a duty would be a wrong. The act of duty may be a positive one or a negative one. In the latter, not doing an act when one ought to constitutes a wrong.. Duties, like wrongs are of two kinds, being either moral or legal. In professional practice there is a third kind-namely ethical. When the law recognizes an act or non-act as a duty, it commonly enforces its performance, or punishes disregard of it. For the physician, legal duties are laid down in the Indian Medical Council Act (Central statute) and various State Medical Council Acts (State statute). Ethical duties are laid down in a code-The Indian Medical Council-Code of Medical Ethics. Clause 10 and clause 13 of the Code of Medical Ethics relate to " Obligations to the Sick " and " The patient must not be neglected " respectively.

The concept of duty involves two elements. First, there is the question whether the doctor has a duty to act at all for the benefit of the patient. Second, once the duty to act arises, the inquiry will consist about the nature of the duty. The first question involves the existence of duty whereas the second involves the standard of care to be adopted in the discharge of that duty.

Duty- When does it arise and when does it end ?
When a doctor does any affirmative act that creates a risk of harm to a patient, a duty of care arises, and thereafter the doctor is required to exercise reasonable care to protect the patient from harm. Thus, once a doctor undertakes to treat a patient he is under a duty to take reasonable care not to harm the patient. What is reasonable care is a matter of fact and will vary from case to case according to the standard of care required of the medical practitioner. A doctor who has not agreed or undertaken to render care to a patient and who is otherwise not subject to the orders of others regarding acceptance of patients generally owes no duty to enter into a professional relationship. A medical practitioner in the employ of a hospital would be bound to treat a patient unless his employer orders him otherwise. However, in Parmanand Katara versus Union of India (A.I.R. 1989 SC 2039) Justice Misra and Oza stated " Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/delay the discharge, the paramount obligation being cast upon members of the medical profession". This comment however related to providing emergency care to accident victims in public or private hospitals in an action brought in public interest. The Supreme Court reiterated the duties of a doctor in Laxman Balkrishna Joshi versus Trimbak Bapu Godbole & Another 1969 (1) SCR 206 by observing "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 what treatment to give and a duty of care in the administration of that treatment."

Sources for creation of a duty

1. Duty based on consensual professional relationship.
   The most common basis for creation of a physician-patient relationship is a simple contract. When a physician agrees, that in exchange for a fee, he will treat an individual, an express contract is created. An implied contract-is one that the courts will infer from the circumstances- such as the commencement of treatment with the consent of the patient and with expectation of compensation for the physician. The contract is not looked upon as a service contract unless the doctor charges a specific fee for a specific result.
2. Duty based upon an undertaking to render medical care.
   There are some situations that may not fit in the contract model. A service even given gratis without any promise or expectation of receiving a fee would create a situation where a duty of care is imposed on the physician on the " Undertaking theory ". The undertaking theory is based on the principal of tort liability wherein a physician who undertakes to treat a patient is liable to the patient should the patient suffer harm due to the negligent act or omission of the physician.
3. Other sources of duty.
   A duty may be based on a contractual obligation to a third party. This situation will arise when parents pay for the treatment of their child. Third part liability can also be based on the undertaking theory if the physicians conduct proceeds far enough to constitute an undertaking to perform.
4. Multiple health care providers.
   This duty of care arises when a patient is looked after by many doctors. Each one of the attending physicians owes a duty to the patient and all may become liable to him jointly or severally depending upon the circumstances of each case. Here it is the duty of a doctor who disagrees with the line of treatment being adopted to tell the patient his view, or alternatively remove himself from the case, after giving adequate notice to both the patient and other doctors concerned.

Duration of the duty and abandonment

Having established a relationship a physician is not entitled to terminate the relationship or fail to attend the patient unless he gives reasonable advance notice. What constitutes reasonable notice depends upon the condition of the patient and the availability or other suitable medical care. A relationship between the patient and the doctor comes to an end if the patient has discharged the physician or has otherwise terminated the relationship. Alternatively an emergency or other circumstances occur that justifies a failure on the part of the physician to attend the patient. A doctor, knowing about his non-availability after a period of time to treat the patient, would be liable to the patient if he fails to attend. Under some circumstances, a physician may not be able to terminate the relationship even after giving reasonable advance notice. Example a physician has agreed to perform surgery and then decides not to do so, the patient may have an action for breach of contract.

When a physician-patient relationship is unilaterally terminated without reasonable notice or justification, it is said that the physician has abandoned the patient. Abandonment involves a conscious absence of reasonable notice. A physician is liable to the patient for abandonment should the patient suffer harm.

Incapacity of the physician that was not reasonably anticipated and which prevents the physician from giving timely notice should prevent liability of the physician. However, when the patient merely fails to pay or does not co-operate in the treatment will not relieve the physician, who, without reasonable notice, abandons or negligently fails to attend the patient.

>Scope of dutyA private practitioner may choose to limit the conduct of his practice with respect to such matters as clinic hours, house calls and after hours visits to the home of his patient. A physician may also limit the type of practice. The physician should inform his patients of them in advance unless the same is already known.

Duty in non-therapeutic relationships and services

A physician may owe a duty of care to someone even though the physician contracts with or is paid by someone else. Examples include examination of insurance applicants; of claimants for personal injury, disability and medical benefits; of applicants for employment and of prospective employees. Here, the physician would be liable if he negligently actively injures the examinee and also for acts of omission - example a physician fails to diagnose a treatable disease. The practical fallout is on physicians who are examiners for Life Insurance, Corporations and other Government and non-Government agencies who use their services for various purposes. An examining physician is also expected to exercise reasonable care with respect to accuracy of any tests and findings actually communicated to the examinee. Failure to accurately report on laboratory tests would make the physician liable both to the examinee and to the person who has paid for the examinee.

Potential duty and liability to non-patients

An important issue to determine is the liability of the physician to a non-patient who may sustain injury due to negligent misdiagnosis of a patients condition, where a third party is injured due to unintentional act of the patient. Example a physician may be liable if he negligently failed to diagnose epilepsy and to warn the patient of possible fainting and the patient thereafter lost control of his vehicle and injured the pedestrian-plaintiff. There is thus a duty to protect others by warning the patient about the effects of prescribed medication on his ability to operate a motor vehicle. Similarly, a physician would be liable to a non-patient if he fails to notify communicable disease to public officials when he is required to do so. A non-patient child gets meningitis from an infected classmate whose physician had failed to notify public officials of his patients meningitis the physician would be liable to the non-patient.

References

1. King JH Jr.: The Law of Medical Malpractice, Second Edition, West Publishing Co., St. Paul, Minn. 1986.
2. Fitzgerald PJ.: Salmond on Jurisprudence, Twelfth Edition, Tripathi, Bombay, 1966.
3. Laxman Balkrishna Joshi versus Bapu Trimbak Godbole & Anr.: 1969 (1) SCR 206.

Rights of a Physician

"All rights are the creation of the law."

-Jeremy Bentham

Rights are enjoyed through the control exercised by the law over the acts of others on behalf of the person in whom the right is vested. A right therefore is a legally protected interest. Interests are things which are to a mans advantage i.e. a physician has an interest in his reputation. To say that a physician has an interest in his reputation means it to his advantage to enjoy a good name. The interest that the physician has is thus lawfully protected and if the interest is violated the physician could take recourse to legal proceedings for the protection of that interest. In its strict sense a right has a co-relative duty. Thus when a physician undertakes or contracts to treat a patient, the patient is under a duty to reimburse the physician for the service performed. A right must however be understood in a wider term to include liberty, power or immunity which a physician has vis a vis patients and non-patients. Thus a physician has the liberty to refuse to undertake treatment of a patient under certain circumstances. Likewise a physician has a power to recover money due to him from a patient for service performed. Similarly, a physician has an immunity not to disclose a patients illness to another unless compelled under a law for the time being in force.

Rights, like wrongs and duties are either moral or legal. A moral right (read-ethical) is an interest recognized and protected by a rule of morality (read-rule of ethics). A legal right on the other hand, is an interest recognized and protected by a rule of law.

The Medical Council of India has laid down a Code of Medical Ethics under Section 3 of the Indian Medical Council Act, 1956 and approved by the Government of India where, at the time of registration as a doctor, each applicant shall be given a copy of a declaration by the registrar of the concerned council and the applicant shall read and agree to abide by the same. A list of ten promises follow which the doctor shall promise solemnly, freely and upon his honor.

The Code of Medical Ethics is based upon the Hippocratic Oath laid down in 2000 B.C. What may be ethically incorrect may not be legally wrong. If an act or omission is ethically incorrect but not legally wrong no redress is available to the potential plaintiff-patient and the physician, besides professional reprobation, and disciplinary action by the Medical Council of India and/or State Councils need not fear a legal proceeding. Most times all that is done by the council is a warning is issued. A physician is liable for disciplinary action under the Indian Medical Council Act, 1956 and relevant State Medical Council Acts only under circumstances of adultery or improper association with a patient, conviction by a court of law for offenses involving moral turpitude, giving of a certificate, notification, report or document which is untrue, misleading or improper in relation to matters mentioned in clause 3 (i) of the Code of Medical Ethics, contravening provisions of the Drugs Act, selling scheduled poison and few other related matters.

The right to refuse treatment
Clause 10 of the Code of Medical Ethics relates to obligations to the sick and says "Though a physician is not bound to treat each and everyone for his services except in emergencies, for the sake of humanity and the noble traditions of the profession, he should not only be ever ready to respond to calls of the sick and the injured, but should be mindful of the high character of his mission and the responsibility he incurs in the discharge of his professional duties. In his ministrations, he should never forget that the health and the lives of those entrusted to his care depend upon his skill and attention. A physician should endeavor to add to the comfort of the sick by making his visits at the hour indicated to the patients". Analysis of the clause brings out an important right of the physician viz. that a physician is not bound to treat each and everyone seeking his services except in an emergency. Even in an emergency no sanction is attached should the physician refuse to treat a patient. However, an appeal is made to the physician for the sake of humanity, the noble traditions of the profession and the high character of his mission. This appeal is only a moral or ethical appeal and not a legal one since a physician cannot be sued in a court of law if he refuses to treat a patient even in an emergency (though the Motor Vehicles Act attaches a sanction for refusing treatment to an accident victim).

Clause 13 of the Code of Medical Ethics titled "The patient must not be neglected" says "A physician is free to choose whom he will serve. He should however, respond to any request for assistance in an emergency or whenever temperate public opinion expects the service. Once having undertaken a case the physician should not neglect the patient, nor should he withdraw from the case without giving notice to the patient, his relatives or his responsible friends sufficiently long in advance of his withdrawal to allow them to secure another medical attendant. No provisionally or fully registered medical practitioner shall willfully commit an act of negligence that may deprive his patient or patients from necessary medical care". Analysis of the clause once again brings out the right of the physician to choose whom he will serve. The clause only says that the physician 'should' respond when called in an emergency or when temperate public opinion expects his service. The word 'should' in a legal context may express a duty, obligation or likelihood. Analysis of the three meanings show that had the purpose of the Code of Medical Ethics been to express duty of the physician in an emergency it would have used the word 'shall' instead of 'should'. The word 'shall' expresses a command rather than a wish and had the word 'shall' been used it would have meant a duty of the physician to attend the patient in an emergency or when temperate public opinion expected his service and failure to so would result in legal action.

As a general rule the common law did not place upon a person the affirmative duty to render aid to another in peril. However, a person who nevertheless undertook to give assistance, assumed a legal duty to act with reasonable care. Failure to use reasonable care, regardless of humanitarian motives, would subject the physician to tort liability. Physicians are therefore reluctant to offer help even in an emergency especially when the emergency relates to traffic accidents and incidents which involve the police. The State of California, in 1959, became the first state in U.S.A. to enact Good Samaritan legislation altering the common law rights and obligations in medical malpractice area. The section read- "No person licensed under this chapter, who in good faith renders emergency care at the scene of an emergency, shall be liable for any civil damages as a result of any act or omission by such person rendering the emergency care". Similar legislation's need to enacted in India if society expects physicians to render emergency care without incurring liability.

It must be reiterated that right to refuse treatment is available only to individual practitioners. Physicians working in Government hospitals cannot refuse to accept and treat a patient. Private hospitals have a choice. Physicians in employment of private hospitals cannot refuse to accept and treat patients unless specifically directed by those in control of the hospital. In America, there is a legislatively imposed obligation on general hospitals, both private and public, to offer emergency care to the public. In some states this has been interpreted to mean even when the patient is a foreign citizen. Sadly, there is no legislation on this point in India.

The right to be reimbursed for services
A physician may either 'undertake' to treat a patient or treat a patient under contract. In either case the physician has the right to be reimbursed for the service rendered to the patient. The Code of Medical Ethics says that "No physician must exhibit publicly the scale of fees but there is no objection to the same being put in the physician's consulting or waiting room". There is hardly a physician who displays charges either in the consulting or waiting room. In fact charges vary from city to city, locality to locality and even from physician to physician in the same locality. The Code does not prescribe any standard of charges nor does it say that charges must be reasonable. Charges for service is individualized except in hospitals where charges are fixed for certain class of rooms and negotiable for the rest. A question arises, whether the physician should specify charges before he undertakes to treat a patient ? Or is a patient expected to ask about fees before he allows the physician to treat him ? Does the rule of caveat emptor (let the buyer beware) apply in the relationship between a patient and a physician since it the patient who seeks out a physician for obtaining relief ? There is yet no statutory or case law on the subject in India. A demand and supply situation exists today.

The right to withhold information
A physician-patient relationship is fiduciary and requires confidentiality. The physician is not expected to divulge information about his patient. This right to withhold information is not absolute since a physician may be required to inform health authorities about certain diseases in the larger interests of society. Also a physician may be required to give information in the interest of justice by a court of law. Police authorities cannot force information from a physician about his patient except when ordered in a court by a judge or magistrate to assist the cause of justice.

The right to retain medical documents
This is a vexed question and needs to be addressed. Does a physician or a hospital have the right to retain documents which contain information relating to the patient ? There is one view which holds that since information contained in a document is privileged the physician/hospital has the right to retain such document. A contrary view holds that since the information, though privileged, may be needed by the patient for future reference it should be given when specifically sought. It is submitted that information, though privileged, is about the patient who seeks the document. The same cannot be withheld since there cannot be a privilege against a person who seeks information about himself contained in a document. A physician or hospital may retain a photocopy of the document given to the patient Alternately, the patient could be supplied with a photocopy of the document sought while retaining the original with the physician/hospital. A similar approach should be adopted regarding X-ray plates and other information about a patient. A physician/hospital is bound to disclose information when ordered by a court or agencies concerned in the administration of justice.

The right to reputation
There is no other right as dear to a physician as the right to a good name. Recent events in the country have led to cascading effect eroding the reputation of the profession at large and of individuals in particular. The passage of the Consumer Protection Act, 1986 gave rise to an avalanche of cases, much of it publicized by the press giving only one side of the story- the patient's.

Defamation (the opposite of name or reputation) is broadly defined as "the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally". The usual form of publication is writing or printing. Writing though is not essential. Permanence of publication is the essence-defamatory statements on the sound track of a film may constitute defamation. Defamation is a tort as well as a crime. This means that a physician can recover damages in a civil suit from a person who has defamed him or prosecute the person in a criminal court, and if successful, cause the offender to be punished.

Newspapers which publish false or defamatory statements are liable for an action by the physician. However, newspapers are protected to an extent by freedom of speech clause under Article 19 (1) (a) of the Indian Constitution. They may comment fairly on statement of fact as well as give an opinion in the interest of the public. What is fair comment varies from case to case. Of course if the statement of fact is true, the concerned physician can have no cause for action.

If a physician whose name appears in a newspaper feels he has been defamed he may write to the editor explaining his side of the story. The editor, in such cases, is bound to carry the explanation in the newspaper. Failure to do so can thereafter make the newspaper liable to civil/criminal action.

References

1. Fitzgerald PJ.: Salmond on Jurisprudence, Twelfth Edition, Tripathi, Bombay 1966.
2. Kaushal AK. :Edited by Arora M., Medical Negligence and Legal Remedies, Universal Book Traders, 1995.

Stop Press

The Bombay High Court in a recent decision given by Chief Justice M.B. Shah and Justice A.V. Savant have ruled that when a patient or his relative demands from the hospital or the doctor, copies of the case records, it is necessary for the hospital authorities and doctors concerned to furnish such copies. The judges held that the provisions of the Maharashtra Medical Council Act, 1965 and the rules framed thereunder in 1967, provided for the same.

The judges went on to say " The hospital and doctors may be justified in demanding necessary charges for supplying copies of such documents to the patient or his relatives. We, therefore, direct the Maharashtra Medical Council to issue necessary circulars in this regard." (Indian Express dated January 20, 1996)