Dr MC Gupta discusses 4 important tips for doctors to avoid medical negligence claims and lawsuits, illustrating a few important cases supporting each. 

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1— What is medical negligence?

ANSWER:

As regards medical negligence, the legal position has been described in the leading case Bolam v. Friern Hospital Management Committee (1957) 2 All ER, wherein judge Mc Nair J. has stated as follows:

"………….. 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."

"Counsel for the plaintiff put it in this way, that in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if a medical man conforms with one of those proper standards then he is not negligent. "

"A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion."

[NOTE—The above principle is often called Bolam’s Law. It has been relied upon in many Supreme Court judgments.]

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2—What is the single most important thing that helps a doctor who is accused of medical negligence?

The single most important thing that can save a doctor is DOCUMENTATION. In simple words, documentation means properly kept outdoor/indoor medical records in black and white. The quality of medical records is often poor and sketchy.

i)—I have come across cases where a hospital carried out a Caesarean section but there was not a single word in the case sheet regarding operation notes.

ii)—In a delivery case associated with PPH and death, where delivery was conducted by an MS (Gynae), and where there were detailed delivery notes, the body was taken by the police for post-mortem. The Forensic Medicine specialist phoned the doctor to pay up money, else the PM report would go against her. The doctor did not pay. The PM report said—“A piece of placenta found in the uterus”.

NOTE—The delivery notes did state that the placenta was delivered. Had the notes stated—“Complete placenta was delivered”, the false PM report could not have been written. This was a case in the Delhi State Consumer Commission.

iii)—A fine of Rs.10 lakh was imposed upon the Apollo Hospital, Delhi, for tampering with records and for not producing complete records before the NCDRC. Para 70 of the judgment is reproduced below:

“70. It has also proved that the OPs indulged in unethical medical practices and professional misconduct like tampering of medical records to the maximum extent. OP had not issued an entire medical record to the patient. Made false submission before this commission on 27.10.2007, that “Whatever record of treatment was available with the hospital, has already been filed and the hospital is not having other records”, but produced original records of a child at belated stage of proceedings in this case i.e. on 20.11.2014. The conduct of OP was to mislead the commission on the pretext of one and other. It is not acceptable to us, that OP issued CTG to the patient, but it was the duty of the hospital to preserve CTG tracings. Thus OP did not follow the standard of medical practice, not maintained medical records. Therefore, we further impose a punitive cost of Rs.10 lacs on the OP-1.”

[DR. (MRS.) INDU SHARMA v. INDRAPRASTHA APOLLO HOSPITAL, NC, decided on 22 Apr 2015]

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3—What is the importance of consent?

It is surprising how often medical and surgical procedures are conducted upon a patient without his or her informed consent. Carrying out any procedure or treatment without the consent of the patient, even in his own interest, is against law. The consent must come from the patient himself. There is no provision for valid substitute consent except when the patient is incapable of giving consent for reasons such as being minor or being of unsound mind. The concept of consent has been dealt with at length by the Supreme Court in the Samira Kohli case. Here a senior gynaecologist took the patient to OT for endoscopy. (The consent was only for endoscopy.) The patient (an unmarried lady, already engaged) came out of the OT minus her uterus, ovaries and Fallopian tubes.

Samira Kohli v. Dr. Prabha Manchanda & Anr. decided on 16/01/2008, SC 2008 AIR 1385

In a case where I am currently arguing for the complainant (the husband of the deceased), a general surgeon had performed a hysterectomy upon a patient who complained of mild bleeding. In addition, the surgeon also removed her appendix even though there was no need or consent for the same. The patient died. The surgeon is in the dock.

The consent should not be only in the form of a printed paper on which somebody signs from the patient’s side. It should, in addition, have a few words in the person’s own handwriting saying that he has read and understood what is printed above and that he has been explained the nature of disease/treatment etc. and the possible alternative approaches and the possible risks etc.

As regards blood transfusion, it has been held that consent is needed only once and not before each and every transfusion.

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4—Do not practice outside your speciality

It is axiomatic that a medical practitioner should practise medicine only in the field in which he holds the necessary qualifications and experience etc. The following examples are illustrative:

i)— The first example is that of the surgeon mentioned above who performed a hysterectomy. The State Medical Council as well as a medical board at the local medical college have already given their finding that the surgeon should not have assumed the role of a gynaecologist.

NOTE—It is true that when there is an emergency, a surgeon may perform a hysterectomy / caesarean section to save a life. However, this does not mean that he would be permitted to perform such procedures on a routine basis.

ii)—A gynaecologist once telephoned me to ask my opinion as to whether she could perform a gall bladder surgery.

iii)—I was once informed that a gynaecologist in a private/corporate hospital used to perform breast cancer surgery.

iv)—The Supreme Court has held that a person who practices outside the field in which he is licensed to practice commits negligence per se. The following is reproduced from:

Poonam Verma v Ashwin Patel and others (1996) 4SCC332]--

41. A person who does not have knowledge of a particular system of medicine but practices in that system is a quack and a mere pretender to medical knowledge or skill, or to put it differently, a charlatan.

42. Where a person is guilty of negligence per se, no further proof is needed…………..”

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Disclaimer- The views and opinions expressed in this article are those of the author's and do not necessarily reflect the official policy or position of M3 India.

Content from the writer has been directly replicated on the website. No edits have been made.

This article was originally published on 12 July 2021

The writer, Dr. MC Gupta is a practising lawyer specialising in medical negligence cases. He also has an MD Medicine from AIIMS, Delhi where he also worked as a faculty member for 18 years, later working another 10 years as a Professor and Dean at National Institute of Health and Family Welfare, New Delhi, before pursuing law.