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DR. RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW

LAW OF TORTS:

MEDICAL AND PROFESSIONAL

NEGLIGENCE
Submitted To: Submitted By:

Prof. Mr. R.K. Yadav Tushar Chaudhary

Asst. Professor (Law of Torts) 1st Semester

Dr. Ram Manohar Lohiya National Roll No: 153

Law University, Lucknow Section: B

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TABLE OF CONTENTS

Acknowledgement

3
Introduction

.4
Negligence as a

tort4
Negligence as a

crime5
Negligence by

Professional.5
Duty in Medical

Profession..6
Doctors duty of

care..6
Medical Professionals in Criminal

law.7
Cases

9-12
Conclusion

...13
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Bibliography

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AKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to my guide (Assistant
Professor Mr. R.K. Yadav) for his exemplary guidance, monitoring and constant encouragement
throughout the course of this thesis. The blessing, help and guidance given by him time to time
shall carry me a long way in the journey of life on which I am about to embark.

I would like to express my gratitude towards my parents & members of Dr. Ram Manohar
Lohiya National Law University for their kind co-operation and encouragement which help me
in completion of this project.

I would like to express my special gratitude and thanks to all those people who gave me attention
and their valuable time.

My thanks and appreciations also go to my seniors and classmates in developing the project and
people who have willingly helped me out with their abilities.

TUSHAR CHAUDHARY
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B.A.LL.B (1ST SEMESTER)

ROLL NO. 153

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INTRODUCTION
Professional negligence is a subset of the general rules on negligence to cover the situation in
which the defendant has represented him or herself as having more than average skills and abilities.
The usual rules rely on establishing that a duty of care is owed by the defendant to the claimant, and
that the defendant is in breach of that duty. The standard test of breach is whether the defendant has
matched the abilities of a reasonable person. But, by virtue of the services they give, professional
people hold themselves out as having more than average abilities. This specialised set of rules
determines the standards against which to measure the legal quality of the services actually
delivered by those who claim to be among the best in their fields of expertise.

NEGLIGENCE AS A TORT
Negligence is the breach of duty of care caused by the omission to do something which a reasonable
man, guided by those considerations which ordinarily regulate the conduct of human affairs would
do, or doing something which a prudent and reasonable man would not do .

The essential components of negligence, as recognised, are three:

1) The existence of duty of care, which is owed by the defendant to the complainant.
2) The failure to attain that standard of care, prescribed by the law, thereby committing a
breach of such duty.
3) Damage, which is both causally connected with such breach and recognized by the law, has
been suffered by the complainant.

NEGLIGENCE - AS A CRIME
The term negligence is used for the purpose of fastening the defendant with the liability under the
Civil Law and, at times, under the Criminal Law. It is contended on the behalf of respondents that in
both the jurisdictions, negligence is negligence , and no difference could be drawn between
negligence under civil law and negligence under criminal law.

NEGLIGENCE BY PROFESSIONAL
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In the law of negligence, professionals such as lawyers, doctors, architects. In the category are
some persons professing some special skills. Any task which is required to be performed with a
special skill would generally be admitted or undertaken to be performed only if the person
possesses the requisite skill for performing that task. The apex court in Jacob Mathew v. State of
Punjab, explained:

Any reasonable man entering into a profession which require a particular level of learning to be
called a professional of that branch , impliedly assures the person dealing with him that the skill
which he professes to possess shall be exercised with reasonable degree of care and caution . He
does not assure his client of the result. A lawyer does not tell his client that the client shall win the
case in all circumstances. A physician would not assure the patient of full recovery in every case.

A professional may be held liable for negligence on one of the two findings:

Either he was not possessed of the requisite skill which he professed to have possessed, or, he did
not exercise, with reasonable competence in the given case the skill he did not possess.

The standard to be applied for judging, weather 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 possible for every professional to possess the highest level of expertise or skill in that
branch which he practises. A highly skilled professional may be possessed of better qualities, but
that cannot be made the basis or the yardstick for judging the performance of the professional
proceeded against on indictment of negligence.

DUTY IN MEDICAL PROFESSION

A person engaged in some particular profession is supposed to have the requisite knowledge and
skill needed for the purpose and he has a duty to exercise reasonable degree of care in the conduct
of his duties. The standard of care needed in a particular case depends on the professional skill
expected from the persons belonging to a particular class. A surgeon or anaesthetist will be judged
by the standard of an average practitioner of class to which he belongs or holds himself out to
belong. In the case of specialists, a higher degree of skill is needed.1

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DOCTORS DUTY OF CARE

When a medical practitioner attends to his patient, he owes him the following duties of care :

1) A duty of care in deciding whether to undertake the case;

2) A duty of care in deciding what treatment to give; and
3) A duty of care in the administration of the treatment

A breach of any of the above mentioned duties gives a right for action for negligence to the patient.

MEDICAL PROFESSIONALS IN CRIMINAL LAW

The criminal law has invariably placed the medical professionals on pedestals different from
ordinary mortals. The Indian penal court enacted as far back as in the year 1860 set out a few vocal
examples. Section 88 intended to cause death, done by consent in good faith for persons benefit.
Section 92 provides for exemption for acts done in good faith for the benefit of a person without his
consent though the acts cause harm to a person and that person has not consented to suffer such
harm. These are four exceptions listed in the section 92 saves from criminality certain
communications made in good faith. To these provisions are appended the following illustrations:-

Section 88 A, a surgeon, knowing that particular operation is likely to cause death of Z,

who suffers under a painful complaint , but not intending to cause Zs death and intending in good
faith, Zs benefit , performs that operation on Z, with Zs consent. A has committed no offence.

Section 92 Z is thrown from his horse, and is insensible .A, a surgeon finds that Z needs to
be trepanned. A, not intending Zs death, but in good faith, for Zs benefit, performs the trepan
before Z recovers his power of judging for himself. A has committed no offence.

Basis of liability of professional negligence in tort is negligence, unless negligence is

established, primary liability cannot be fastened on medical practitioners.
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In John Oni v. The king2, duly qualified medical practitioner gave to his patient the injection of
Sobita. However, what was administered was an overdose of Sobita, as a result, the patient died. In
action against the doctor, accused of manslaughter, reckless and negligent act, their lordship of the
Privy Council held:

1) That a doctor is not criminally responsible for a patients death unless his negligence or
incompetence went beyond a mere matter of compensation between subjects and showed
such disregard for life and safety of others as to amount to a crime against the state.

2) That the degree of negligence required is that it should be gross, and that neither a jury
nor a court can transform negligence of a lesser degree into gross negligence merely by
giving it that appellation.
..There is a difference in kind between the
negligence which gives a right to compensation and the negligence which is a crime.

3) It is impossible to define culpable or criminal negligence and it is not possible to make

the distinction between actionable negligence and criminal negligence intelligible except
by means of illustrations drawn from actual judicial opinion.
........The most favourite view of the conduct of an accused
medical man has to be taken, for it would be most fatal to the efficiency of the medical
profession if no one could administer medicine without a halter round his neck.

CASES
BOLAM V FRIERN HOSPITAL MANAGEMENT COMMITTEE3

2 Citation AIR 1943 PC 72

3Citation [1957] 1 WRL 538

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Facts

Mr Bolam was a voluntary patient at mental health institution run by the Friern Hospital
Management Committee. He agreed to undergo electro-convulsive therapy. He was not given
any muscle relaxant, and his body was not restrained during the procedure. He flailed about
violently before the procedure was stopped, and he suffered some serious injuries, including
fractures of the acetabula. He sued the Committee for compensation. He argued they were negligent
for (1) not issuing relaxants (2) not restraining him (3) not warning him about the risks involved.

Judgement-

The Honourable Court referred the decision, Wherein Mc. Nair J. Observed:

Where you get a situation which involves the use of some special skill or competence, then the test
as to whether there has been negligence or not is not the test of man on top of a Clapham omnibus,
because he has not got this special skill. The test is the standard of 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.

HEDLEY BYRNE & Co. Ltd v. HELLER & PARTNERS Ltd.4

Facts

4 Citation [1964] AC 465

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Hedley Byrne were a firm of advertising agents. A customer, Easipower Ltd, put in a large order.
Hedley Byrne wanted to check their financial position, and credit-worthiness, and subsequently
asked their bank, National Provincial Bank, to get a report from Easipowers bank, Heller &
Partners Ltd., who replied in a letter that was headed, without responsibility on the part of this
bank"

It said that Easipower was, "considered good for its ordinary business engagements".

The letter was sent for free. Easipower went into liquidation and Hedley Byrne lost 17,000 on
contracts. Hedley Byrne sued Heller & Partners for negligence, claiming that the information was
given negligently and was misleading. Heller & Partners argued there was no duty of care owed
regarding the statements, and in any case liability was excluded.

Judgement

Lord Morris passed in his decision that "I consider that it follows and that it should now be regarded
as settled that if someone possessing special skill undertakes, quite irrespective of contract, to apply
that skill for the assistance of another person who relies upon such skill, a duty of care will arise.
The fact that the service is to be given by means of or by the instrumentality of words can make no
difference. Furthermore, if in a sphere in which a person is so placed that others could reasonably
rely upon his judgment or his skill or upon his ability to make careful inquiry, a person takes it
upon himself to give information or advice to, or allows his information or advice to be passed on
to, another person who, as he knows or should know, will place reliance upon it, then a duty of care
will arise".

...in Lord Morris's judgment, the bank in the present case, by the words which they employed,
effectively disclaimed any assumption of a duty of care. They stated that they only responded to the
inquiry on the basis that their reply was without responsibility. If the inquirers chose to receive

and act upon the reply they cannot disregard the definite terms upon which it was given. They
cannot accept a reply given with a stipulation and then reject the stipulation. Furthermore, within
accepted principles... the words employed were apt to exclude any liability for negligence.
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THAKE V. MAURICE5

5Citation [1986] QB 644

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Facts -

Mr. Thake was a railway guard and they were not financially comfortable with five children already
(two grown up), living in a three bedroom council house. Mrs. Thake wanted to be sterilised, but
the NHS waiting list was long and they could not afford to go private. Their doctor suggested Mr.
Thake have a vasectomy and arranged for them to see Mr Maurice. He did not advise Mrs. Thake
that there was a small chance that after a vasectomy there could be recanalization and Mr. Thake
would become fertile again. Mrs Thake ignored the signs of pregnancy because she thought it had
worked, and then only realised when she was five months pregnant. She wanted an abortion, but it
was too late. A healthy child was born called Samantha. They sued in contract and tort for
damages.

Judgement

That was said in the context of treatment or an operation designed to cure, not in the context of
anything in the nature of an amputation. The facts of the present case are obviously extremely
unusual, but I do not see why the judge's and my conclusion on these unusual facts should be
viewed by surgeons with alarm, as mentioned by the judge. If the defendant had given his usual
warning, the objective analysis of what he conveyed would have been quite different, and it is also
to be noted that in the second consent form referred to by French J in his judgment in Eyre v
Measday (unreported), 3 July 1984, the wording included the following:

The purpose of the operation is to render me sterile and, although it is nearly 100 per cent.
Successful, I appreciate that this cannot be guaranteed. It may not be possible to reverse the
operation.

Accordingly, I would uphold the judges conclusion that the plaintiffs succeed in their claim that the
revival of Mr. Thakes fertility gave rise to a breach of contract on the part of the defendant.

CONCLUSION
A person engaged in any profession is supposed to have the requisite knowledge and skill needed
for the purpose and he has a duty to exercise reasonable degree. There have been many cases in
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India where a doctor fails to perform his duty well or an advocate doesnt pursue case of his client
and does not give necessary information to the client.

Also law of tort not so popular in the country, many loopholes have developed regarding the law of
professional and medical negligence.

Even after a clear act of negligence from the side of a doctor, engineer or an advocate (the
professionals) easily escape from the hands of law because section 88 and section 92 of Indian
penal court (I.P.C.) covers them. A special care is expected from an expertise person. Hence the law
regarding professional negligence needs to be engineered.

BIBLIOGRAPHY:

1. Books:

(a) Law of torts by Dr. R. K. Bangia

(b) Law of torts by Ratanlal And Dhirajlal

2. Websites:

(a) www.manupatra.com

(b) www.wikipedia.com

(c) www.indiankanoon.com

(d) www.scconline.com