My friend's grandfather expired last week. He was 71. He was hale and hearty, up to the time when he started having chest pains. He underwent the usual tests, and they found blockage in his heart. He was advised to go for by-pass surgery. The surgery takes about 3 hours, give or take. They took 10 hours for the whole procedure, in her grandpa's case.The recovery period is usually a week. He was in the ICU for almost 20 days. Then, the doctors said he developed an infection, from which he never recovered. Slowly, his kidneys and lungs failed, and eventually, he passed away due to multiple organ failure. We believe that the hospital was negligent and caused the death by not doing the surgery properly. Do we have a case of medical negligence? What elements are needed to make a strong case of medical negligence?
Contributed by Shreyashi:
We need a more detailed set of facts describing the treatment, for building a strong case of medical negligence. The degree of proof required will also vary according to the kind of claim you want to make against the hospital, be it civil or criminal.
Since your friend’s grandfather was an elderly gentleman, and there may have been age-induced complications, you need to be sure as to whether the doctors and/or hospital staff were actually negligent. One of the most important tests to determine whether certain acts amount to medical negligence is the Bolam’s Test. According to this test, a doctor whose actions are in accordance with a practice accepted as proper by a responsible body of medical professionals, is not negligent merely because there exists an opinion to the contrary. The standard is that of an ordinary skilled man exercising and professing to have that special skill. The aforesaid skill need not be of the most superior standard, as long as it is exercised with due care.
In your case, it is the lack of ‘due care’ that needs to be proved. For that, you need to be aware of certain factors such as whether the operation was performed as per an approved procedure, whether the drugs administered to the patient were so done only after checking the possible side-effects, whether the doctor had information about any particular condition which might have caused the patient to react to the medicines/treatment in an adverse way, etc. It is only after such considerations are weighed that you can be sure of the credibility of the case. It should also be kept in mind that if the risks of surgery are small (e.g. 1%), the surgeon does not need to warn the patient or his/her family members of the possible risks.
The standard of proof required will be much higher if you want to file a criminal complaint. The relevant section for this is Section 304A, Indian Penal Code (Causing Death by Negligence). For fixing criminal liability of a doctor, the standard of negligence is not mere inability to take necessary care, attention and skill; it is be so high as can be described as ‘gross negligence’ or ‘recklessness’. This is possible when there is an exhibition of gross lack of competence, inaction and/or wanton indifference for the patient’s safety. This may arise from gross ignorance or gross negligence. Mere error of judgment, accident, inadvertence or some want of adequate care and caution can only give rise to civil liability. The doctor must be proved to either not possess the requisite skill which he professes to possess, or not have exercised the possessed skill with reasonable competence.
Once you are sure of the credibility of your case, various fora are available to you, namely the civil and criminal courts, as well as the consumer protection forum (since the hospital provides the patients with ‘service’, thus making the patient a ‘consumer’).
 Laid down in Bolam v Friern Hospital Management Committee (1957) 2 All ER 118.
 Sidaway v Bethlem Royal Hospital Governers (1985) 1 All ER 643 (HL).
 Suresh Gupta v Govt of NCT of Delhi and Another AIR 2004 SC 4091.
 Jacob Mathew v State of Punjab and another (2005) 6 SCC 1.
The said doctor can be held responsible under:
A) CONSUMER PROTECTION ACT, 1986
B) CIVIL NEGLIGENCE; OR TORT
C) CRIMINAL NEGLIGENCE
A. Remedy under Consumer Protection Act, 1986:
At present the best remedy a patient can get is through a consumer forum petition. By treating medical profession as a service under the Consumer Protection Act it is now easier to get remedy for a negligent act of a doctor, which is timely and inexpensive, when compared to filing a civil or criminal suit or a writ petition. This is a very welcome development, as it ensures a remedy to aggrieved parties within 150 days from the file of complaint. The complaint can be filed under Section 2 of the Consumer Protection Act, 1986 which is concerned with deficiency of the medical service.
B. Criminal Negligence:
One can initiate criminal proceeding of Criminal negligence under Section 337(hurt), Section 338(grievous hurt) and Section 304A(culpable homicide not amounting to murder) of the Indian Penal Code.
In order to prosecute a medical practitioner one has to prove malicious intention or gross negligence i.e., a high degree of negligent conduct. Moreover to start a criminal proceeding against a medical practitioner there has to be a prima facie evidence in the form of a credible opinion from a competent doctor, preferably a government doctor in the same field of medicine supporting the charges of rash and negligent act. The liability of a doctor always depends on the circumstances of a particular case.
So something more than a mere negligence has to be proved in order to prosecute a doctor. In order to establish criminal negligence in diagnosis or treatment on the part of the doctors he has to be proved guilty of such failure as no doctor of ordinary skill would have been guilty of, if he was acting with reasonable care. It is a matter beyond mere compensation. It involves an utter disregard to the life and safety of others and a conduct deserving of punishment where the degree of negligence is much higher than that of a civil negligence case.
C. Remedy under Tort law:
Remedy is also available in tort law. Like all negligence claims under tort law, it requires the satisfaction of three criteria – a duty of care, a breach of duty and damages. However, in the specific context of the medical profession, the components duty of care and standard of care are assessed as per the professional standards of the medical community.