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Consumer, Medical Profession and

Negligence: Analysis
Introduction
Recently everyone must have heard about Dr. Conrad Murray who was
sentenced for 4 years maximum sentenced allowed under law being
charged for involuntary manslaughter of Michael Jackson on the basis of
medical negligence.
Public awareness of medical negligence in India is growing. Hospital
managements are increasingly facing complaints regarding the facilities,
standards of professional competence, and the appropriateness of their
therapeutic and diagnostic methods. After the Consumer Protection Act,
1986, has come into force some patients have filed legal cases against
doctors, have established that the doctors were negligent in their medical
service, and have claimed and received compensation. As a result, a
number of legal decisions have been made on what constitutes negligence
and what is required to prove it.

Nature of Medical Negligence
The standard to be applied for judging, whether the person charged has been
negligent or not, would be that of an ordinary competent person exercising
ordinary skill in that profession. It is not necessary for every professional to
possess the highest level of expertise in that branch which he practices. Where a
profession embraces a range of views as to what is an acceptable standard of
conduct, the competence of the professional is to be judged by the lowest
standard that would be regarded as acceptable. 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; it is well established law that it is
sufficient if he exercises the ordinary skill of an ordinary competent man
exercising that particular art.

Essentials to prove liability
To establish liability it must be shown
(1) that there is a usual and normal practice;
(2) that the defendant has not adopted it; and
(3) that the course in fact adopted is one no professional man of ordinary
skill would have taken had he been acting with ordinary care.
A medical practitioner cannot be held liable simply because things went
wrong from mischance or misadventure or through an error of judgment
in choosing one reasonable course of treatment in preference of another.
A medical practitioner would be liable only where his conduct fell below
that of the standards of a reasonably competent practitioner in his field.
At least three weighty considerations can be pointed out which any forum
trying the issue of medical negligence in any jurisdiction must keep in
mind. These are:
(i) that legal and disciplinary procedures should be properly
founded on firm, moral and scientific grounds;
(ii) that patients will be better served if the real causes of harm
are properly identified and appropriately acted upon; and
(iii) that many incidents involve a contribution from more than
one person, and the tendency is to blame the last identifiable
element in the chain of causation the person holding the
'smoking gun'. Thus, to establish a medical negligence, the
abovementioned position must be kept in mind.
Indian Medical Association v. VP Shantha AIR 1996 SC
550
The question of medical negligence has been discussed extensively in this
case where besides bringing services by the doctors within the purview of
the Consumer Protection Act, the Court held in that case, the case of
malpractice in India cannot be compared with that in the United Kingdom
and the United States, where the damages for negligence have deterred
people from entering into the profession and has resulted in extremely
high fees for the patients. This is because the doctors pass on their high
insurance costs to their patients.
The Court also held that doctors can be held liable for professional
negligence even though they are governed by their own association and
that a rational approach needed to be established to balance the interests
of the doctor as well as the patient. This is because there cannot be a
definitive success rate and at the same time the patient must be
protected from negligence on part of the doctor. Thus it was held that he
must possess some minimum competence and would be liable both in
contract as well as tort.

Related Cases
 State of Haryana vs. Smt. Santra (2000) 5 SCC 182:: AIR 2000 SC
3335
 Indian Medical Association vs V P Santha. AIR 1996 SC 550
 Dr Janak Kantimathi Nathan vs Murlidhar Eknath Masane 2002 (2)
CPR 138.
 Poonam Verma vs Ashwin Patel (1996) 4 SCC 332