The matter of negligence is a serious concern in the medical field as it deals with human life. The grossness and degree of medical negligence assumes significance in deciding whether it’s merely a tort or a negligence punishable as a crime.
The Courts in India apply uniform principles when dealing with lawyers, doctors or architects as professionals who profess specialized skills in their field of commercial activity.
In an ordinary course of life what happens when a man reaches out to a professional with a problem? The assurance is that the professional knows the way out of the problem, for he possesses the desired skills and knows how to use them in a given situation with a reasonable degree of care and caution.
No professional can assure his client of the result. A lawyer cannot tell his client that the client will win the case in all circumstances. A physician cannot assure the patient of full recovery. A surgeon cannot guarantee that the result of surgery will be beneficial, much less to the extent of 100%.
The only assurance, which a professional can give is that he is possessed of the requisite skills and when entrusted with performance of the task, will exercise the skills with reasonable competence. This is all that a person approaching a professional can expect.
Judged by this standard, a professional may be held liable for negligence in one of the two situations; one, when he doesn’t possess the requisite skills that he professes, or two, doesn’t exercise them with reasonable competence in a given case.
But the truth is that no two professionals are of equal skill. It’s not necessary for every professional to possess the highest level of expertise in that branch of science that he practices.
So the real question then is what’s the acceptable standard? It’s well settled in English law that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is judged by the lowest standard that would be regarded as acceptable.
Where a case involves use of special skills or competence, the test as to whether there is a negligence or not is the standard of the ordinary skilled man exercising and professing to have that skill. A man need not possess the highest expert skill. It is well established law that it is sufficient to exercise the ordinary skill of an ordinarily competent man who exercises that particular art.
Coming to Medical science, what then is expected of a medical professional? Halsbury's Laws of England deals with the question of the degree of skill and care required by a medical practitioner. It says that the practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires.
A person is not liable in negligence because someone else of greater skill and knowledge prescribes a different treatment or operates in a different way. One is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical professionals.
An event that leads to an undesirable result in medical domain is uncalled for but does happen at times when a professional applies his skills to solve one’s problem but ends up on the hard rock of negligence with a grossly wrong outcome.
Sunil Kumar Kalra
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Mr. Sunil Kumar Kalra, BA, LLB (Delhi University) is a practicing Advocate in the Supreme Court of India, New Delhi