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Indian Express
10 February, 2010
Krishnadas Rajagopal
New Delhi, India

MEDICAL NEGLIGENCE ‘Doctor who performs duty, shows skil and competence, not guilty’
The Guidelines
PROVIDING relief to doctors from unhappy patientsandtheirfamilies who harass them with accusations of medical negligence, the Supreme Court today ruled that a “simple lack of care or an error of judgement or an accident” does not amount to negligence in the medical profession.

“It would not be conducive to the efficiency of the medical profession if a doctor is to administer medicine with a halter around his neck,” said a division bench of Justices Dalveer Bhandari and H S Bedi.

Noting that doctors inevitably become the first human casualty for patients or their families dejected by an unsuccessful course of treatment, the bench said that “a surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end–dose of medicine to his patient”.

With this judgment, the Supreme Court defined, for thefirsttime,theterm“medical negligence”, making it evenmoredifficulttoinitiate criminal action against doctorsfortreatmentgoneawry, even in cases involving death of patients.

“Negligence in the context of medical profession necessarily calls for a treatment with a difference. A simple lack of care, an error of judgement or an accident, is not proof of negligence on the part of a medical professional. Treatment skills differ from doctor to doctor,” the bench said.

A medical professional, thebenchclarified,cannotbe hauled up on the criminal chargeofmedicalnegligence “so long as the doctor followed a practice acceptable to the medical profession of that day”.

“He cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused doctor followed,” the bench ruled.

To prosecute a medical professional for criminal negligence “it must be shown that the accused doctor did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do”.

As an afterthought, the bench clarified that “we should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence.”

The judgment was passed while dismissing an appeal filed by Kusum Sharma, a Delhi resident who sought a compensation of Rs 45 lakh from Dr Batra Hospital for alleged negligence which caused the death of her husband in 1990.

Kusum’s husband, R K Sharma, Senior Operations Manager with the Indian Oil Corporation, was operated upon for adrenal cancer at the hospital. He later died of other medical complications.

Dismissing the appeal, the court said “medicine is not an exact science involving precision and every surgical operation involves uncalculated risks“. In the present case, the court observed that “merely because a complication had ensued, it does not mean that the hospital or the doctor was guilty of negligence“.

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