1. A railway passenger was thrown out of a moving train due to the negligence of the defendants.

One of his friends got down, after the train stopped, to look for his friend but then he missed
the footing as there was complete darkness and fell down from a bridge and suffered from
severe injuries. Discuss the liability of railway if any.(5)
MEDICAL NEGLIGENCE
1. In the light of Maharaja Agrasen Hospital and others. v. Rishabh Sharma and others (2020) 6 SCC
501 discuss the development of medical negligence in India under tort law.

Medical Negligence
Commission of mistakes or Negligence within the health profession could result
in minor injuries or even lead to some serious injuries and these mistakes could
even lead to death. Since no one is perfect in this world, a person who is skilled
and has knowledge of a particular subject can also commit mistakes. To err is
human but to replicate the same mistake due to one’s carelessness is
negligence.

The fundamental reason behind medical negligence is that the carelessness of

the doctors or medical professionals are often ascertained in various cases
where reasonable care is not taken during the diagnosis, during operations,
while injecting anesthesia, etc.

Medical negligence definition

We can define ‘Medical negligence’ as the improper or unskilled treatment of a
patient by a medical practitioner. This includes negligence in taking care from a
nurse, physician, surgeon, pharmacist, or any other medical practitioner.
Medical negligence leads to ‘Medical malpractices’ where the victims suffer some
sort of injury from the treatment given by a doctor or any other medical
practitioner or health care professional.

Examples of medical negligence

Some examples of medical negligence are as follows:

 improper administration of medicines.

 performing the wrong or inappropriate type of surgery.
 not giving proper medical advice.
 leaving any foreign object in the body of the patient such as a sponge
or bandage, etc. after the surgery.
What does not come under medical
negligence
A doctor is not liable in all cases where a patient has suffered an injury. He
might have a valid defense that he has not breached the duty of care.

The error of judgment can be of two types:

 An error of judgment – In such cases, it has been recognized that it

doesn’t amount to a breach of duty. Merely because a doctor’s decision
turned out to be wrong, we cannot make him liable for medical
negligence.
 The error of judgment due to negligence – If all the factors were
considered before coming to a decision then it would be called an error
of judgment due to negligence. This amounts to a breach of duty.

Essentials of medical negligence

The term ‘Medical negligence’ consists of two words – medical and
negligence. Negligence is solely the failure to exercise reasonable care. Medical
negligence is no different. It is only that, in case of medical negligence, the
doctor is the defendant.

In an action for negligence, the following essentials are required:

 The defendant owed a duty of care to the plaintiff.

 The defendant made a breach of that duty.
 The plaintiff suffered damage as a consequence of that breach.
A doctor owes certain duties of care to his patients, they are as follows:

 It is his duty to decide whether he wants to undertake the case or not,

 It is his duty to decide what treatment to give and;
 It is his duty to decide the administration of treatment.
If a doctor fails to perform the aforesaid duties it results in breach of duty and
gives a right of action to the patient. A breach of duty is committed by a doctor
when he does not perform the degree of care like a reasonable doctor.
In Kusum Sharma v. Batra Hospital[1], it was held by the Supreme Court that a
doctor often adopts a procedure which involves a higher element of risk, but in
doing so he honestly believes that it will provide greater chances of success for
the patient. If a doctor has taken a higher risk to redeem the patient out of
his/her suffering and it did not yield the desired result, this may not amount to
medical negligence.

In Jasbir Kaur v. State of Punjab[2], a newly born child was found missing from
the bed in a hospital. The child was found bleeding and near the wash-basin of
the bathroom. The hospital authorities argued that the child had been taken
away by a cat which caused the damage to him. The court held that the hospital
authorities were negligent and had not taken due care and precaution. Thus,
awarded the compensation amounting to Rs. 1 lakh.

Standard of care
A standard of care specifies the appropriate treatment and medication
procedure as per the requirements that should be taken into account by a
doctor while providing the treatment to his patients. The care should not be of
the highest degree nor the lowest.

Here, the degree means the level of care an ordinary health care professional,
with the same training and experience, would render in similar circumstances in
the same community. This is the critical question in medical malpractice cases
and if the answer is “no,” and you suffered injury as a result of the poor
treatment, you may file a suit for medical malpractice.

In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole and
Anr.[3], the Supreme Court held that a doctor has certain aforesaid duties and
a breach of any of those duties can make him liable for medical negligence. A
doctor is required to exercise a reasonable degree of care that is set for this
profession.

Duty of care
A duty of care in cases of medical negligence is an obligation on one party
(doctor) to take care to prevent harm being suffered by another (patient).
Generally, doctors owe an obligation to take care of their patients.

There are certain requirements to establish a duty of care. They are as follows:
  A physician is not asked to deal with everyone but when he is taking a
case then he should deal with it with proper care and in accordance
with the set standard of care. A doctor or clinical practitioner
prescribing a patient to seek a provider of an extra health practitioner
is acceptable. However, when there is an emergency, a medical
professional ought to deal with the patient. No health care professional
shall immediately resist dealing with the case unless it is out of the
area of his expertise.
 The physician should never stretch nor reduce the gravity of a patient’s
condition. He will have to make sure that he gives proper treatment to
the patient considering the type of ailment the person is suffering
from.
 A doctor must have patience as he cannot do without it. The
confidentiality of the details of the patient should be kept secret.
However, in a few cases, he can reveal the details if he feels that it is
his duty to do so. For instance, if there is a disease that is spreading
and is dangerous for people then he can make it public and let others
know about it.
 A physician or a doctor is free to choose whom he wants to treat but in
case of emergency he cannot deny dealing with the patient. But after
undertaking a case, the health care professional cannot withdraw from
the case without informing the family members of the sufferer. A
temporarily or fully registered medical practitioner should not
voluntarily commit any act of negligence that deprives his patients of
the standard of care.
 When a physician who deals with a particular problem and has
expertise in that field is unavailable and another physician is sent for
the treatment, the acting doctor is entitled to get his charges but
should ensure the patient’s approval or permission to resign on the
coming of the physician engaged.
.

Res ipsa loquitur

The Latin maxim “res ipsa loquitur” means that “the thing speaks for itself.”

In terms of medical malpractice, it refers to the cases where the doctor’s

treatment was far below the set standards of care under that negligence is
assumed.

The doctrine assumes the following:

  Nature of injury gives the clue that without negligence it could not
have happened.
 There was no involvement of the patient himself in the injury in any
way.
 The injury happened under the circumstances which were under the
supervision and control of the doctor.
It means that by applying the principle the judge has accepted that the
negligence has occurred. After this, the doctor will have to rebut this thing and
if he fails to do so then the patient would be considered as successful in the
case of medical negligence.

How to prove a res ipsa loquitur case?

The injured party must prove that the physician breached the duty of care by
failing to adhere to the set standards of care a doctor must follow. The breach
must be demonstrated by an expert’s attestation. In res ipsa negligence cases
expert declaration about the standard of care is not really required.

In order to prove a res ipsa case, the following must be done:

 It is well known to everyone that if a case seems like it could never

happen without negligence on the part of the doctor then this directly
proves that it falls under the category of res ipsa cases.
 The equipment or manner of treatment that caused the damage was
under the doctor’s control at all times.
 The injury was the one which the injured person couldn’t assume
voluntarily.

Some Examples of Res Ipsa Medical Cases

Some common scenarios of res ipsa cases are given below:

 Leaving some object inside the body of the patient after surgery.
 If a wrong patient gets operated.
 If the wrong part of the patient gets operated.
 BREACH OF DUTY OF CARE

BOLAM TEST;

[PEER REVIEW SYSTEM]

State of Haryana and Others v. Smt. Santra
(2000)
Smt. Santra, poor laborer woman with 7 children, underwent sterilization through a state-run program
in order to avoid a future pregnancy. After the sterilization was performed, Smt. Santra was provided
with a certificate signed by authorized government medical officers and was assured that the procedure
had been successful and she therefore would not become pregnant again. She subsequently became
pregnant and ultimately gave birth to a girl. When she initially contacted doctors at the hospital, she was
told she was not pregnant. However, when the pregnancy became apparent, she was told the
sterilization procedure had not been successful. The procedure had only been done on one fallopian
tube, with the other remaining untouched. Smt. Santra requested an abortion but was told that this
would be dangerous to her life. Smt. Santra filed a civil claim for damages of rupees two lakhs (about
$3,000 USD), citing medical negligence. The district court and the lower appellate court both found that
the procedure performed was not complete, demonstrating negligence on the part of the doctor and
ordered payment of compensation of 54,000 rupees, with 12% interest rate from the date of the
institution of the civil suit until the payment of the compensation.

The State of Haryana then filed an appeal before the Supreme Court contending that the
negligence of the medical officer would not bind the state government and that it would not be
vicariously liable. It further contended that the expenses awarded for bringing up the child could
not have been legally decreed as there was no element of “tort” involved and the respondent had
not suffered a loss which could be compensated with money.

CRITCISM;

 Biasness from the sides of doctors

 Medical organization support the doctors.

This Bolam case has been a matter of sustained criticism. In the later stages, due to the variety of cases
that came in front of the court, the courts had decided to loosen this test so that cases such as the
Bolam’s case can be decided. After the partial failure of this case the courts tried to come up with
innovative and alternative techniques like the concept of reasonability etc. Though the test given in
Bolam’s case is still holding good ground on the given factors, the changing scenario has been taking into
account by the House of Lords. It also hints towards the acceptance of a broader liability regime under
the consumer protection law when it discusses the issue similarity of liability in cases of loss of business
opportunity as a result of deficient advice and medical negligence leading to loss of opportunity to
recover
BOLITHO TEST ORIGINATED