1.
THE ACTIONS OF THE DEFENDANT AMOUNTED TO MEDICAL
NEGLIGENCE
Negligence is an offense under tort, IPC, Indian Contracts Act, Consumer Protection Act and
many more. Medical Negligence basically is the misconduct by a medical practitioner or
doctor by not providing enough care resulting in breach of their duties and harming the
patients which are their consumers. A professional is deemed to be an expert in that field at
least; a patient getting treated under any doctor surely expects to get healed and at least
expects the doctor to be careful while performing his duties.
The Hon’ble Supreme Court of India in Kusum Sharma v. Batra Hospital1 said that
negligence is the breach of a duty to do something which a reasonable man guided by those
considerations which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do.
Essentials of negligence required to prove the liability of the defendant2 -
a. A legal duty to take care.
b. Breach of the said duty.
c. Damage to the plaintiff as a result of breach of duty.
1.1 Existence of Duty of Care by the Defendant
The existence of duty of care is an essential before a person can be held liable in negligence.3
In order to determine whether there is a duty of care, most of the recent cases rely on the
basic test established by the judgment of Caparo Industries Plc v. Dickman4 . According to
the judgment of Caparo, a duty of care may be imposed on, if the following three
requirements are satisfied.
1
(2010) 3 SCC 480
2
Poonam Verma v. Ashwin Patel, (1996) 4 SCC 332
3
Jeet Kumari Poddar v. Chittagang Engineering and Electrical Supply Co. Ltd., (1946) ILR 2 Cal 433;
Madhaya Pradesh Road Transport Corporation v. Basanti Bai, 1971 ACJ 328; United India Insurance Co. Ltd.
v. Union of India, (2011) 4 ALD 465.
4
(1990) 1 All ER 568
1.1.1 Defendant, bearing in mind the kind of harm involved, must be able to
foresee the damage.
First requirement is satisfied if it must be reasonably foreseeable for defendant to occur the
damage on plaintiff. There are two points to consider whether defendant must be able to
foresee, bearing the kind of harm involved. For establishing the reasonable foreseeability,
two elements are to be satisfied:
(1) Defendant must foresee that the damage is to be caused to a particular complainant
rather than just to people in general. In other words, defendant must foresee that
complainant is part of a category of people who might be affected by the conducts of
defendant5.
(2) The duty must relate to a particular kind of harm which defendant could reasonably
foresee as arising from its actions.6
It is evident from the facts of the case that the defendant failed to fulfil the above mentioned
requirements. He knew the risk that was posed by the method of administration of the
medication yet he went ahead with the same. This action of his is the primary reason for the
heart attack and the consequent death of the complainant’s mother.
1.1.2 There must be a Relationship of Proximately between the parties.
Second requirement of Caparo test is the existence of proximate relationship between the
parties. In many cases, proximity and foreseeability are treated as coextensive and even
interdependent. Thus, when defendant must be able to foresee the damage suffered by
plaintiff, the proximity is very likely to be satisfied. In addition, proximity means “a measure
of control over and responsibility for the potentially dangerous situation”7.
Thus, duty of care is owed only to persons who are closely and directly affected by one’s act
that it is reasonable for one of them in contemplation. In the present case also, the defendant
provided services to the complainant. Therefore, there existed between the complainant and
the defendant such relation as it rendered just and reasonable that the liability in negligence
may be imposed.
5
Haley v. London Electricity Board, (1964)3 All ER 185
6
Supra 4
7
Sutradhar v. Natural Environment Research Council, (2006) 4 All ER 490
As between the defendant and the plaintiff there is sufficient relationship of proximity such
that in reasonable contemplation of the former, carelessness on its part caused damage to the
latter, in which prima facie duty of care arises.8
1.1.3 It must be Fair, Just and Reasonable in the circumstances for a duty of
case to be imposed on Defendant.
Third requirement of Caparo test is that it was fair, just, and reasonable that Defendant owed
a duty of care. However, this requirement usually overlaps with the previous two. The
relationship between the complainant and the defendant is such that in justice and fairness
that defendant like a reasonable man ought to have kept the in contemplation while doing the
act of which complaint is made.
1.2 Breach of Duty
In this case, the complainant believes that the defendant breached a duty of care which he
owed to the plaintiff by causing the death of the complainant’s mother. It is to be seen
whether the defendant omitted to do something which a reasonable and prudent man, guided
by those considerations which ordinarily regulate the conduct of human affairs would have
done.9
In other words, defendant intended to cause damage to complainant which an ordinary person
should have avoided. Defendant did not satisfy the standard of not only careful person but
also an ordinary person. Therefore, defendant breached a duty of care which it owed to
complainant.
1.3 Consequent Damage
In this case, complainant believes that the conduct of defendant has caused damages to him.
For making the defendant liable, it must be shown that the particular acts of the defendant
constituted the cause of the damages suffered by complainant. Two requirements need to be
satisfied to establish the existence of causation. Firstly, the conduct of the defendant was the
cause in fact. Secondly, defendant is responsible for the probable consequence.
1.3.1 Cause in Fact: the damages suffered by complainant would not have
occurred „but for‟ the conduct of defendant.
8
State of Maharashtra v. Dhanajay Bhagat, (2010) 2 AIR Bom R 583
9
Blyth v. Birmingham Waterworks Company, (1856) 11Ex 781, p. 457
First requirement is that the conduct of the defendant was a necessary condition of damages
suffered by complainant. In this case, the defendant had failed to take into account the ill
effects the procedure of taking the medication would have on the patient. Due to the intake of
milk and ghee which are substances known to have high saturated fats and whose
consumption is advised against to heart patients along with the prescribed medication upon
the direction of the defendant led to the heart attack and subsequently, death of the plaintiff’s
mother. Therefore, except for the conduct of the defendant, there seems to be no reason why
the complainant’s mother died. It is highly probable that the complainant’s loss would not
have occurred but for the conduct of the defendant.
1.3.2 Probable Consequence: Defendant is responsible for the probable
consequences of the conduct of defendant.
Second requirement is that the conduct of the defendant was the main cause of the damage
suffered by plaintiff. In this case, the defendant was under an obligation to provide proper
care and treatment to the deceased. He failed to do so despite being fully aware of the
patient’s persisting heart condition. When the defendant was made aware of the side effects
that were being suffered by the patient i.e. restlessness and heaviness in the heart along with
an increase in her blood pressure, he advised the patient to continue with the medication and
consult with him again in a week. The side effects of the medication appeared within 15 days
on its administration which indicates that it was extremely poor prescription of medication by
the defendant. He should have asked the patient to discontinue the medication and consult
with a competent medical practitioner specialised in the field of heart diseases. This conduct
is expected out of a prudent, reasonable person and more so from a person who practices the
profession of medicine.
It is well known that a doctor owes a duty of care to his patient. This duty can either be a
contractual duty or a duty arising out of tort law. In some cases, however, though a doctor-
patient relationship is not established, the courts have imposed a duty upon the doctor. In the
words of the Supreme Court “every doctor, at the governmental hospital or elsewhere, has a
professional obligation to extend his services with due expertise for protecting life.”10
The duty owed by a doctor towards his patient, in the words of the Supreme Court is to
“bring to his task a reasonable degree of skill and knowledge” and to exercise “a reasonable
10
Parmanand Kataria v. Union of India, AIR 1989 SC 2039
degree of care.”11 He has to ensure that he confers a reasonable degree of care and
competence.
The liability of a doctor arises not when the patient has suffered any injury, but when the
injury has resulted due to the conduct of the doctor, which has fallen below that of reasonable
care. In order to establish the breach of duty, the burden on the plaintiff would be to first
show what is considered as reasonable under those circumstances and then that the conduct of
the doctor was below this degree.
In the case at hand, it is evident from the facts of the case that Dr. Ram Kishore had been
apprised of the persisting heart condition of the deceased. The defendant prescribed her
medication which had to be taken with milk and ghee, two substances which are high in
saturated fats and bad for heart disease patients. Furthermore, the exception of skimmed milk
was made but no alternative for ghee was provided which contains butyric acid which is
extremely harmful for the heart. Therefore, it can safely be concluded that the possibility of
side effects arising from such blatant ignorance of the deceased’s coronary heart disease was
much higher than the possibility of her recovering from paralysis.
Therefore, the Defendant should be liable in the tort of negligence for damage suffered by
Complainant.
2. FAILURE TO COMPLY WITH PRESCRIBED MEDICAL ETHICAL
STANDARDS INDICATE NEGLIGENCE OF THE DEFENDANT
The method of administration of the prescribed medication by the defendant is evidence of
the fact that he neglected the reasonable degree of care he was to provide to the patient. As
per the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations,
2002,
Entry 2.4:- The Patient must not be neglected:
A physician is free to choose whom he will serve. He should, however, respond to any
request for his assistance in an emergency. Once having undertaken a case, the physician
11
Laxman v. Trimback, AIR 1969 SC 128
should not neglect the patient, nor should he withdraw from the case without giving adequate
notice to the patient and his family.12
The facts of the case are clear in the respect of the neglect of the defendant towards the
deceased. The defendant completely disregarded the poor heart condition of the patient and in
a bid to cure her paralysis, he told her to consume products that are strictly advised against to
patients suffering from heart ailments. He neglected his duty to provide a reasonable degree
of care while handling a matter of such delicacy and high risks as is expected out of a person
of his profession and competence. His failure to take due measure of the gravity of the
situation is what led to the death of the plaintiff’s mother.
Entry 6.1 Advertising:
6.1.1 Soliciting of patients directly or indirectly, by a physician, by a group of physicians or
by institutions or organisations is unethical. A physician shall not make use of him / her (or
his / her name) as subject of any form or manner of advertising or publicity through any
mode either alone or in conjunction with others which is of such a character as to invite
attention to him or to his professional position, skill, qualification, achievements, attainments,
specialities, appointments, associations, affiliations or honours and/or of such character as
would ordinarily result in his self-aggrandizement.13
The defendant has evident indifference towards the rules requiring him to not advertise his
professional skills and achievements as is prescribed by the above mentioned medical
regulation. The defendant advertised the same through The Tribune whereby he mentions that
he has the ability to cure paralysis. This advertisement was not only misleading but
devastating for the plaintiff as it was on the basis of this advertisement and the success stories
posted by people on his Facebook page that the plaintiff took his mother i.e. the deceased to
the defendant in hopes of curing her paralysis. The plaintiff had placed immense faith in the
defendant who completely wrecked the same with his negligent behaviour.
Therefore, it is humbly submitted that the defendant is liable for the death of the plaintiff’s
mother due to his negligent conduct in providing treatment and medication to her while being
entirely aware of her persisting health conditions.
12
Code of Ethics Regulations, 2002, (AMENDED UPTO DECEMBER 2010) (Published in Part III, Section 4
of the Gazette of India, dated 6th April,2002), Ayurveda Medical Association of India, http://www.ayurveda-
amai.org/resources/medical-ethics/ , visited on 19 August 2018
13
Ibid
THE PRINCIPLE OF RES IPSA LOQUITOR IS APPLICABLE WITH RESPECT TO
THE FACTS OF THE CASE
Res Ipsa Loquitur is a maxim, the application of which shifts the burden of proof on the
defendant. Generally, in a case it is the plaintiff who has to provide evidence to prove the
defendant’s negligence. There is however, a change when this maxim is used. The burden of
proof shifts to the defendant. There is a presumption of negligence on part of the defendant
and it is up to him to prove his non-liability and that it was not his act which caused the
plaintiff’s injury. The defendant leads the evidence.
According to the Black’s Law Dictionary the maxim is defined as the doctrine providing that,
in some circumstances, the mere fact of an accidents occurrence raises an inference of
negligence so as to establish a prima facie (at first sight) case. It is a symbol for the rule that
the fact of the occurrence of an injury taken with the surrounding circumstances may permit
an inference or raise a presumption of negligence, or make out a plaintiff’s prima facie case
and present a question of fact for defendant to meet with an explanation. It is merely a short
way of saying that the circumstances attendant on the accident are of such a nature to justify a
jury in light of common sense and past experience in inferring that the accident was probably
the result of the defendant’s negligence, in the absence of explanation or other evidence
which the jury believes.14
The principle of res ipsa loquitur was first put forward by Baron Pollock in Byrne v.
Boadle15, an 1863 English case. Byrne was struck by a barrel of flour falling from a second-
story window. The court's presumption was that a barrel of flour falling out of a second-story
window is itself sufficient evidence of negligence.
The patient need not prove negligence in case where the rule of res ipsa loquitur applies,
which means "the thing or fact speaks for itself". The rule is applied when the following
conditions are satisfied:
1. that in the absence of negligence the injury would not have occurred ordinarily;
2. that the doctor had exclusive control over the injury producing instrument or treatment;
3. that the patient was 'not guilty of contributory negligence.
14
Shailender Raj Goswami, “A Critical Analysis of Res Ipsa Loquitur with reference to Case Laws,”
http://www.legalserviceindia.com/articles/Res_Ipsa_Loquitur.htm, visited on 19 August, 2018
15
159 Eng.Rep. 299
Some of the examples are: (1) Failure to give anti-tetanic serum in cases of injury causing
tetanus. (2) Burns from application of hot water bottles or from X-ray therapy. (3) Prescribing
an overdose of medicine producing ill-effects. (4) Giving poisonous medicine carelessly. (5)
Breaking of needles, (6) Blood transfusion misadventure. (7) Failure to remove the swabs
during operation which may lead to complications or cause death. (8) Loss of use of hand due
to prolonged splinting.16
In Dr Laxman Balakrishna Joshi v. Dr Trimbak Bapu Godbole & Anr.17 it was held that a
person who holds himself out ready to give medical advice and treatment impliedly
undertakes that he is possessed of skill and knowledge for that 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 be given or a duty of care in
the administration of that treatment. A breach of any of those duties gives a right of action for
negligence to the patient.
In Spring Meadows Hospital v. Harjol Ahluwalia18 the Court was dealing with the case of
medical negligence and held that in cases of gross medical negligence the principle of res
ipsa loquitur can be applied.
The matter at hand and the facts are clear and showcase how grossly negligent that actions of
the defendant were. The medication and procedure for their administration prescribed by the
defendant were the sole cause for the death of the plaintiff’s mother. He was clearly
unaffected by the prevailing heart condition of the patient, not realising that due to the
existence of the same, this case posed high risks and required to be dealt with the utmost care
and precaution. He treated the patient in a regular manner and furthermore, required her to
consume products that posed a risk to her health due to her heart condition.
Thus, it is the humble submission that the negligence of the defendant is further established
by the application of the principle of res ipsa loquitor as the facts are clearly indicative of the
lack of due reasonable care that was required to be tendered to the patient by the defendant
which ultimately led to her demise due to a massive heart attack.
16
“MEDICAL NEGLIGENCE & COMPENSATION,”
http://shodhganga.inflibnet.ac.in/bitstream/10603/130522/13/13_chapter%206.pdf, visited on 19 August, 2018
17
AIR 1969 SC, 128
18
(1998) 4 SCC 39
