Indian Pediatrics 2001; 38: 488-495
The last few decades have seen many ups and downs in medical sciences. Some of these are positive changes like scientific and technical advances, increasing longevity, decreasing mortality, morbidity and overall improvement in quality of life. At the same time there are some negative changes such as decreasing standard of medical education, decreasing values and morality and commercialization and corporate culture in management of patients(1). These changes have an important impact on doctor-patient relationship. This relationship is usually of fiduciary (that of mutual trust) nature. A doctor should treat the patient to the best of his knowledge, skill, care and judgement. In todayís situation this relationship is strained resulting in increasing number of legal problems. Bringing the doctors under the ambit of Consumer Protection Act (CPA) has further marginalized this relationship. The legal cases of medical negligence are rising because of the ease with which cases can be launched in consumer court.
Medical negligence is an act of commission or an act of omission which a prudent doctor of average skill, knowledge and experience would not do. The essentials of negligence(2) are, four "D"s: (i) there is duty towards patients; (ii) there is deficiency in duty towards patients; (iii) this directly results in; and (iv) damage which may be physical, mental or financial loss to patient or relatives.
As soon as a doctor accepts to treat the patient (except in emergency situation), the duty starts. There is no duty if the patient is turned away by the doctor. For example, a doctor is called to attend a patient (who is not under his care) but the doctor refuses to go. In this case there is no negligence as there is no acceptance. The idea of negligence and duty are strictly correlative.
The duty starts irrespective of financial considerations. The concept of fee is more important in CPA. If the patient is not charged fee then a litigation may not be possible under CPA for example, in government hospitals. This may not be an absolute prerequisite for medical negligence since a civil/criminal negligence can occur even if a patient is treated without any fees. The relationship starts even if the doctor has not directly communicated with the patient, for example, Pathologist, Biochemist, Anesthetist, etc. The factors which decide the relationship are willingness to examine, to diagnose and to treat the case irrespective of the payment for such service. However, a doctor-patient relationship does not establish automatically in the following situations: (A) Medico-legal cases: (i) For assessment of injuries; (ii) For assessment of drunkenness; (iii) Cases of sexual offence; and (iv) Evaluation of disability for compensation; and (B) Examination for insurance purposes.
Once the doctor starts caring for the patient, the standard of care must be of average skill, knowledge and experience equal to what a prudent doctor should have, which is neither too high nor too low but only average. According to Justice Denning, it would be a great disservice to community at large; if we impose liabilities on doctors, for each and every thing that happens to go wrong(3). Standard of care is not a subject of law but a subject of medical judgement. There should be foresee-ability of averting complications in a given situation.
The standard of care is also proportional to duty undertaken, i.e., a pediatrician is expected to provide a better care as compared to a general practitioner while managing a child. If the doctor commits any deficiency in his duty, he may be liable for his act.
The deficiency in duty must be "Causa causans", i.e., direct and proximate cause for injury or damage. The cause must be foreseeable and not too remote. For example, if a child of acute gastroenteritis is under treatment and he develops encephalitis, this is not negligence. But if this child develops severe dehydration then it may be a negligence.
The damage can be measured in terms of: (a) additional financial expenses for treat- ment of complication resulting as a consequence of negligence; (b) loss due to absence from work; (c) decreased life expectancy; (d) loss of organ or limb; and (e) death of the patient who could be a wage earner for the family.
Rashness is undertaking any act which is beyond oneís competence. No prudent man in similar circumstances would have done this act. Rashness is part of negligence. For example, a pediatrician managing a case of myocardial infarction or doing surgeries or dressing a punctured wound without assessing how much internal damage is present.
The doctrine of res ipsa loguitur means "things speak for themselves". The doctor is personally or vicariously liable for the negligent act. In such cases, damage is so obvious that there is no need for any proof of negligence. For example, operating on wrong eye, limb or patient; retained sponges or forceps after surgery; and doing exchange transfusion on wrong baby. In one Canadian study(4), it was observed that res ipsa loquitur was pleaded in only 37 out of 142 cases, it was applied in only 14 cases and defendants were found liable in only 10 of these cases.
Sometimes if the act of commission or omission is so rash that it results in death or serious injury to the patient then it may amount to criminal negligence. In such cases the situation is much more difficult to tackle as compared to civil negligence.
Negligence can result either due to an act of commission (which a prudent man shouldnít do) or an act of omission (which a prudent man must do). According to objective theory of negligence(5) there is carelessness in approach towards the patient and the act of commission results in injury to the patient. Following are the some of the example of acts of commission(6):
According to subjective theory, negligence is a mental attitude of undue indifference. The doctor is indifferent to the consequences of his act of omission thus causing damage to the patient. The acts of omission can be as follows: (i) Failure to attend to patient; (ii) Failure to examine and investigate carefully (iii) Failure to obtain proper consent for any procedure or intervention; (iv) Failure to give standard treat-ment; (v) Failure to take proper precautions while giving injections; (vi) Failure to advise hospitalization; and (viii) Abandoning treat-ment without making alternative arrange-ments. A doctor should handle only those cases which are within the limit of his knowledge, skill and experience. It is better to refer the case to a proper consultant or a hospital after giving primary treatment. If a doctor has to abandon the treatment under unavoidable circum-stances, he must make alternative arrangement of a qualified consultant or shift the patient to a properly equipped center.
Sometimes the unexpected results may not be only due to negligence of the doctor but also due to negligence of patients or relatives. This is known as contributory negligence. Examples include: (a) Not coming for follow-up as per the advice of doctor; (b) Failure to follow the instructions given by the treating doctor; (c) Investigations advised by the doctor are not done by the patient; (d) Patient fails to take advice of a specialist (for example, in case of acute abdomen or head injury, the Pediatrician has referred to a surgeon but the patient fails to take such a consultation); and (e) patient leaves the hospital against medical advice. The liability for the damage in such cases is suitably divided between the doctor, patients and relatives. The burden of proof of contributory negligence on the part of patient is on doctors.
Negligence is difficult to prove. Burden of proof is on patients or relatives (according to law, compailnant should prove that the proximate cause of injury is negligence by doctor). But in following cases the onus of proof may be on doctors (Jagdish Singh, personal communication): (i) If the patient is in operation theatre or intensive care where relatives or attendants have no access; (ii) If the doctor has raised a plea, i.e., suppose a patient of hydro-pneumothorax is admitted. The patient is not taken for surgery and dies of respiratory failure. The doctor pleads that surgery was not done as patient or relatives didnít given consent. In this case doctor has to prove that consent was refused (hence it should always be in writing whether the consent is given or refused); and (iii) In cases of res ipsa loquitur.
In the following situations it is not negligence and hence the doctor may not be held liable:
(i) Difference of opinion: If there are two accepted schools of thought, any particular method may be adopted by the doctor in the patient.
Bolamís Test: In a case (Bolam vs. Friern) Hospital Management Committee in UK, the following principles were derived: If there are two accepted schools of thoughts, for any treatment, doctor may use any one of them. If some complications occur due to particular method (accepted school of thought) the doctor canít be held responsible only on the ground that why he didnít use the other method(8). This is known as Bolamís principle. In this particular case, electroconvulsive therapy was given without muscle relaxant and the patient developed a fracture of jaw. In those days two schools of thought were accepted; that electroconvulsive therapy can be given with or even without muscle relaxant. Hence, negligence was not held.
(ii) Wrong diagnosis in spite of diligence: Sometimes it is very difficult to differentiate between some of the common and similar presentations of diseases like partially treated pyogenic meningitis, tubercular meningitis and encephalitis. In such cases, if the doctor has taken all the care but still complications occur due to improper diagnosis, then this is not negligence.
(iii) Accidents: Sometimes some accident may occur during hospital stay like breaking of needle or instruments not working. It is not negligence if such accidents are detected, attended and managed within reasonable time.
(iv) Unexpected results: According to Sir Williams Osler (a USA Physician), medicine is a "science of uncertainty and art of probability"(6). All persons in community do not acquire all diseases. There is always a probability of acquiring a disease. Some acquire the disease while others do not, inspite of being exposed in an equal amount. Every individual has different body response not only to disease but also to treatment. Hence there is uncertainty in every case. Hence we talk of "most probable diagnosis" and "most probable outcome" of a disease. A doctor canít be held negligent only because there was unexpected outcome.
Whenever there is allegation of negligence, the following defenses may be pleaded by the doctor:
The cases of negligence against doctors are rising. In an analysis of 202 cases done by Dr. Jagdish Singh (Personal communication), 6 cases (about 3%) were against Pediatricians. Out of the 183 decided cases in this study, negligence was held in 52 (28.4%) cases. In an analysis of about 4054 cases of liability claims between 1991-1996 in Puerto Rico, 3506 cases were closed against physicians or institutions and payment was issued in 1272 (36.3%) cases(9). In another study conducted in California, 375 physicians were disciplined for 465 offences: the most frequent(34%) cause was negligence or incompetence(10). Members of medical profession are constantly under the spotlight of media scrutiny though they enjoy a significant degree of cultural and social authority in the press(11).
It is said that "An ounce of prevention is better than a pound of cure". So it is better that we take precautions to prevent the cases of negligence rather than fighting them out in the court of law. The following steps may be helpful in avoiding cases of negligence:
The Medical Council of India is concerned with standard of medical education, while the state Medical Councils deal with the complaints of negligence against doctors. It was expected that the councils will be effective in providing cheap and quick justice. The councils have power to punish the doctors by giving warnings, suspending their registrations (temporarily or permanently) but they canít order compensation to the patient. It is desirable that Medical Council Act be updated so as to give more powers to decide patientís complaints.
Now-a-days the doctor-patient relationship is under constant strain. The doctors must be aware of the pros and cons of day-to-day medical practice. We must communicate and behave properly with the patient and their relatives. Records must be properly main-tained. The best way is to avoid legal cases by having grievance redressal forum and medico-legal cells, preferably in the hospital premises itself.
We are grateful to Professors P. Chaturvedi and K.Y. Vilhekar for the constant constructive criticism provided in drafting this article. We are also thankful to Dr. Janki N. Borkar for help in drafting this manuscript.