By Advocate Karan Parihar, Practicing at Rajasthan High Court

The doctors can provide their best medical assistance available at their command but merely because they could not save the patient, that could not be considered to be a case of medical negligence despite the fact that medical protocol administered by them was duly supported by the medical experts of the field.

If an individual is approaching to doctor, they would have a reasonable expectation of care and caution but there could be no assurance of the result. No doctor would assure a full recovery in every case. At the relevant time, only assurance given by implication is that he possessed the requisite skills in the branch of the profession and while undertaking the performance of his task, he would exercise his skills to the best of his ability and with reasonable competence.

Thus, the liability would only come if (a) either a person (doctor) did not possess the requisite skills which he professed to have possessed; or (b) he did not exercise with reasonable competence in given case the skill which he did possess. It was held to be necessary for every professional to possess the highest level of expertise in that branch in which he practices. It was held that simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of the medical professional.

A claim for compensation based on medical negligence is primarily based on the following:

  • The doctor owed a duty of care to the patient
  • There has been a breach in the performance of the duty
  • The breach of the duty has resulted in consequential loss or harm to the patient concerned

Thus to put it simply, medical negligence arises from an act or omission by a medical practitioner, which no reasonably competent and careful medical practitioner would have committed. Therefore a medical practitioner while attending to the patient is expected to adopt reasonably skillful behavior and follow the ordinary skills and practices of the medical profession with ordinary care.

Moreover, it was held that mere deviation from the normal professional practice does not tantamount to negligence. For medical negligence, the Prosecution must prove culpable and gross negligence beyond a reasonable doubt. It must be shown that the medical practitioner failed to do something or did something that no ordinary skilled medical professional would have failed to do or done. A medical practitioner cannot be held guilty merely because he chose an alternative treatment that failed, provided the treatment was accepted by medical science.

In the series of judgments, it has been held that by the Hon’ble Supreme Court and various High Courts that the hospital and doctors are required to exercise sufficient care in treating the patients in all circumstances. However, in an unfortunate case death may occur. It will be necessary that sufficient material on medical evidence should be available before the adjudicating authority to arrive at a conclusion that the death is due to medical negligence. Even death of a patient cannot, on the face of it, be considered to be medical negligence. negligence. Even death of a patient cannot, on the face of it, be considered to be medical negligence.