Medical Negligence in the times of COVID-19

“In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution……The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. – Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.

The COVID-19 pandemic has affected the entire world and is showing no signs of dying away. We have to learn to live with this pestilent virus until treatments and vaccination for COVID-19 come into the picture. The healthcare system is the focus of attention. Healthcare professionals are being appreciated for their efforts as they are risking their lives for the well-being of the patients. The health professionals are being applauded and hailed as Corona Warriors, which is very appropriate, keeping in mind their efforts in the present precarious situation.

A major problem during the present times is medical negligence. There have been numerous reports of medical negligence, and the reports that patients have been refused medical services. There are also reports of violations of the Standard Operating Procedures (SOPs), for handling, managing, and transporting the COVID-19 patients. Recently, in the case of Srabani Chatterjee & Anr. v. State of West Bengal & Ors., WP No. 5930/2020,the Calcutta High Court directed the State Government to conduct an autopsy on the body of an 18-year old boy, suspected to have suffered from COVID-19 and allegedly denied appropriate medical treatment. There are several reasons for the sudden increase of cases involving medical negligence which are, lack of infrastructural facilities followed by mushrooming of healthcare providers, a tremendous burden on the healthcare system, breach of duty resulting in gross negligence, etc.

Negligence, in a nutshell, has three essential ingredients: duty, breach, and resulting damage. A medical practitioner has to discharge his duties with a reasonable degree of care, skill, and knowledge, at all times. In this pandemic, doctors are duty-bound to prevent the spread of COVID-19 in the hospitals, implement the SOPs with consistent and conscientious regularity, and provide appropriate medical services to the patients. Our health professionals are indeed putting their best foot forward while discharging duties but the reports of medical negligence disturb all of us.

The National Medical Commission which replaced the Medical Council of India, via the National Medical Commission Act, 2019, for the development and regulation of medical education, profession and institutions, is yet to be established, as the recommendations for some of the posts are still being thought about by the Ministry of Health and Family Welfare, Government of India. The Medical Council of India has not been able to effectively enforce the procedures with regard to treatments, and eventually, patients have been compelled to knock the doors of the courts of law.

Every act of a doctor cannot be called a criminal act. If death takes place due to an unintentional accident which cannot be termed as gross, only civil liability may arise. A doctor, under tortious or civil negligence, if proved, may be asked to pay compensation and damages and under criminal negligence, Section 304A of the Indian Penal Code, 1860 will come into the picture. Section 304A is reproduced below: –

“304A. Causing death by negligence. —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.”

Criminal complaints are also filed under Sections 336, 337, and, 338 of the Indian Penal Code, 1860. Bolam test, customarily, is applied to determine the standard undertaken by a doctor of reasonable competence with due care, in consonance with his qualifications. Bingham, L.J. in Eckersley v. Binnie [(1988) 18 Con LR 1] summarised the Bolam test propounded in Bolam Friern Hospital Management Committee [(1957) 1 WLR 582: (1957) 2 All ER 118 (QBD)] in the following words:

“From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet.”

Healthcare professionals, normally seek recourse to Sections 80 and 88 of the Indian Penal Code, 1860, professing that in surgeries, accidents cannot be ruled out but such a defence will only come into play when care and caution have been exercised properly. The highest level of culpability is required for holding a health professional liable for the acts constituting criminal negligence. In the case of Maharaja Agrasen Hospital v. Master Rishabh Sharma, Civil Appeal No. 6619 Of 2016, the Supreme Court held that a hospital is vicariously liable for the medical negligence committed by its doctors. Also, it was observed that in a complaint of medical negligence, the burden is on the complainant to prove breach of duty, injury, and causation. The injury must be sufficiently proximate to the medical practitioner’s breach of duty. The Supreme Court, in a catena of judgments, has held that the standard which has to be applied for determining whether the health or medical professional charged of medical negligence, has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in the profession.

Therefore, due to the inadequate medical infrastructure and surge in the cases of medical negligence, the Judiciary has a vital role to play to address the problems of the aggrieved citizens.

Reasonable skills need to be applied by the medical professionals because in the field of medicine numerous modes and manners for treatment are possible. During pandemic times, medical professionals need to follow the SOPs in letter and spirit, provide medical services to the COVID-19 patients, ensure that sufficient ventilators and oxygen cylinders are available, by working in sync with the Government. Due to the absence of vaccine, the remedies available for the COVID-19 patients are the experience and wisdom of the doctors. Time is ripe for the regulating bodies to strictly bring into action the protocols needed vis-à-vis treatments of patients, develop infrastructure, organize workshops for sharpening the skills and expertise of the doctors so as to keep pace with the evolution of medical science, and devise a comprehensive mechanism for dealing sternly with the medical professionals for their wrongdoings. Fast Track Courts can also be set up for the expeditious disposal of the cases involving medical negligence. The National Medical Commission has to be constituted immediately to develop as well as regulate the medical profession. Undoubtedly, the healthcare professionals are doing a fabulous job but they also need to ensure that their efforts are not marred by acts of negligence. In the words of Justice McNair: –

“Where you get a situation, which involves the use of some special skill or competence, then the test 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 skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”

Muneeb Rashid Malik is a final-year law student at Lloyd Law College, Delhi (NCR). Views are personal.