SYNOPSIS

ON

ANALYSIS OF MEDICAL NEGLIGENCE: CASES OF CUTTACK

HOSPITALS

NATIONAL LAW UNIVERSITY, ODISHA

PREPARED BY:

SUDIPTO KONER
KIRTI ANSHIKA

DATE OF SUBMISSION:

? AUGUST 2016
 TABLE OF CASES

Sl. Name of the Case Citation

No.
1. Kamalini Biswal I (2002) ACC 629
Vs.
State of Orissa, through Secretary,
Deptt. of Health and Ors.
2. Manika Roy and Ors. II (2016) CPJ 348(NC)
Vs.
B.L. Chitlangra and Ors.
3. Dr. Prasanta Kumar Sahoo II(2002)CPJ106(NC)
Vs.
Kuntala Debi
4. Rinmayee Biswal II(2015)ACC346(Ori.)
Vs.
Sk. Arfan and Another
5. Ch. Narayan Murty & Anr. II(2012)CPJ579(NC)
Vs.
Christian Hospital For Women and
Children & Anr.
6. Sk. Abdul Ahad OJC. No. 8819 (2000)
Vs.
State of Orissa and others.
7. Dauda Khan and Ors. II(2008)CPJ95(SY)
Vs.
Ispat General Hospital and Ors.
8. Jyoshna Rani Ghosh and Ors. III(2013)CPJ150(NC)
Vs.
Sanjukta Curatives (Nursing
Home)
 INTRODUCTION

Medical profession is one of the most noble and prestigious professions in the world. A doctor is
equivalent to a god for a patient. There exists a fiduciary relationship between the doctor and the
patient. They are the people who bring our health on the right track and cure us from our
problems or diseases. So they are people of repute and are highly revered in the society. They
delve into the intricacies of the subject matter to gain better knowledge of their profession as it
will be beneficial for the prospect of mankind. But often, a time arises when the hero doesn’t
always remain the hero but becomes the villain instead and here the subject matter of our topic
crops up which is about the deficiency of services rendered by doctors but for this research topic,
it will be limited only to the medical negligence cases in Cuttack, Odisha. Doctors need to be
engrossed in their work and they are expected to be always accurate in every work they do. It is
solely due to the reason that when they give advice to a patient on his/her health issues, they
cannot make a gamble by giving incorrect or futile advice, perform anything incorrect or
improper in the process of doing surgery, because it can put one’s life at stake. But on the
contrary, there are several cases of medical negligence and this paper is a comprehensive study
on the cases of medical negligence documented in the city of Cuttack.

Based on the common law system of negligence, the medical professional has the freedom of
choice in selecting the treatment which he intends to administer to the patient and such freedom
is amplified in cases of emergency, but he must have an accepted degree of skill, care and
knowledge, based on the circumstances in each case.1 A medical professional who consents to
bestow medical advice and treatment, implies that he/she possesses that skill and knowledge for
such purpose. Then when the patient seeks advice, the medical professional owes certain duties:
(a) a duty of care in determining whether to accept the case, (b) a duty of care in selecting what
treatment to give, and (c) a duty of care in the execution of that treatment.2

Medical negligence occurs when there is failure on the part of the medical practitioner to provide
appropriate care and attention and employ those skills which a rational and competent person
would do under like circumstances.3 It is the execution or non-execution of an act by a medical
professional which does not conform to the recognized standards of practice of the medical
profession, causing harm to the patient or even death.4 It may be put in this way that when there
is a deficiency of reasonable skill and care by the medical professional on behalf of the patient,
be it the attending to the patient, documentation of the patient’s history, the clinical assessment,
inquiry, advice and communication, diagnosis and treatment; or absolute non-attendance to the

1
Jacob Mathew v. State of Punjab, (2005) 6 SCC 1(Manupatra)
2
Caparo Industries plc v. Dickman(1990) 2 AC 605.
3
Singh, Jagdish and Bhushan, Vishwa, “Medical Negligence and Compensation”, 2nd Edition, 1999, pp. 86
4
Tetali, “The Importance of Patient Privacy During a Clinical Examination”, Indian Journal of Medical Ethics,
April-June 2007, URL= http: //www.ijme.in/152 co65.html (Viewed on 03/08/2016).
patient; that has culminated in an injury, disability, death or other undesired outcomes. Failure to
act in conformity with the medical standards in practice and failure to apply due care and
diligence are generally considered to constitute medical negligence.5

It is apparent that one cannot assume that he/she is in safe hands of his/her doctor. So medical
professionals can be held responsible for the omission to attend to the patient(s) in emergency
cases or accidents as it is duty of the professional to attend the patients in times of emergency but
they should be competent to undertake the task they are about to perform.6 Also, there is
negligence when a junior doctor or the nurse/receptionist fails to bring the patient to the doctor
(in time). Sometimes, there is omission on part of the doctor to document the medical history of
the patient in full, like previous cases of tuberculosis, weakness of the eye etc.7 Quite often, it
occurs that doctors write the prescription in illegible handwriting which cannot be deciphered by
the patients or the chemists, paving the way for drug dose miscalculation or even wrong drugs,
injections administered on the wrong places of the body or for wrong diseases.8 Most
importantly, there will also be negligence on part of the doctor if the doctor gives wrong advice
to the patient or there is miscommunication between the doctor and the patient. Let us analyze
the different kinds of negligence common in the medical profession:

 Active negligence: This type of negligence occurs due to deficiency of proper knowledge and
training. For instance, doctor may give injection at wrong site.9
 Passive negligence: This type of negligence occurs when there is omission on part of the
doctor to perform an act. For instance, doctor giving injection without checking the previous
instances of allergy.10
 Collateral (Contributory) negligence: This is a valid defence for the doctor because it is the
case when the patient has disregarded/ ignored the doctor’s advice; therefore the patient has
contributed to his/her injury.11
 Concurrent negligence: For instance, the mistake of giving wrong injection can be made by
two or more doctors.12
 Continued negligence: This is the worst kind of negligence as in this type of negligence, the
medical professional intentionally leaves or abandons the patient as they have the knowledge
that they have committed a negligent act/omission.13
 Gross negligence: This type of negligence is very dangerous in which doctors tend to leave a
foreign body (usually after surgery, like surgical knives, scissors etc.).14

5
Gupta, Kiran, “The standard of care and proof in medical profession, A shift from Bolam to Bolitho”,
XIV-XV, National Capital Law Journal, (2011-2012), Article 1.
6
Singh, Jagdish and Bhushan, Vishwa, “Medical Negligence and Compensation”, 2nd Edition, 1999, pp. 70.
7
Ibid.
8
Ibid pp. 74
9
Joshi, Mahendra K., A-Z Medical Law, 1st Edition, 2nd October 2000, pp. 46.
10
Ibid.
11
Singh, Jagdish and Bhushan, Vishwa, “Medical Negligence and Compensation”, 2nd Edition, 1999, pp. 80.
12
Joshi, Mahendra K., A-Z Medical Law, 1st Edition, 2nd October 2000, pp. 47.
13
Ibid.
 Hazardous negligence: This type of negligence occurs when the doctor(s) do not possess
adequate expertise of utilizing the surgical instruments and thus it may occur that they use
unsterile instruments, which in turn, causes harm or infection to the patient.15
 Wilful negligence: It is also a very dangerous type of negligence in which doctors
deliberately do certain things that leads to harm/injury to the patient.16
 Reckless negligence: In this kind of negligence, doctors tend to undertake high risks in the
process of operation, perform some reckless acts, and thereby resulting in harm to the
patient.17
 Negligence Per se: To be exact, it is the infringement of any codified rule/statute, the doctor
was not concerned while doing acts deemed illegal by law, and was negligent while
performing the task the doctor had undertaken.18

Another fact to be taken into account is the association of the Medical profession with Indian
Penal Code, Tort, Indian Contract Act 1872 and Consumer Protection Act, 1986. To analyze the
importance of the medical services with respect to the Consumer Protection Act, 1986, we
should check the interpretation of the term ‘services’ in the act in which we can relate to the
activity for which a certain (rational) allowance is taken. The clauses of negligence or deficiency
in service are also applied for cases related to the medical profession. Also, there is the
compensation clause of the Act which awards the plaintiff monetary compensation deemed equal
to the injury/harm suffered by them. Let us see the various sections mentioned in the Indian
Penal Code which deal with the various acts of negligence committed by medical professionals:

 Section 269: It deals with a negligent act by which an infection of a dangerous disease can
take someone’s life.19
 Section 270: It deals with a malignant act by which an infection of a dangerous disease can
take someone’s life.20
 Section 274: It talks about drug adulteration.21
 Section 275: It deals with the sale of adulterated drugs.22
 Section 276: It deals with the sale of drugs sold as different drugs or different preparations.23
 Section 284: It deals with the negligent behaviour of doctors regarding poisonous
substances.24

14
Ibid.
15
Ibid.
16
Ibid.
17
Ibid.
18
Ibid.
19
Chaudhari, AP and Aggarwal, Anil, “Medical Profession and the Consumer Protection Act”, 1st edition, 1998, pp.
270.
20
Ibid.
21
Ibid.
22
Ibid pp. 271
23
Ibid.
24
Chaudhari, AP and Aggarwal, Anil, “Medical Profession and the Consumer Protection Act”, 1st edition, 1998,
pp. 271.
 Section 287: It deals with the negligent behaviour of doctors regarding operation of
machines.25
 Section 304-A: It deals with a negligent act which causes death of a person.26
 Section 312: It deals with a negligent act which causes a miscarriage of a woman.27
 Section 313: It deals with a negligent act which causes a miscarriage of a woman without that
woman’s consent.28
 Section 314: It deals with the death of the plaintiff when the doctor was causing miscarriage
of a baby.29
 Section 315: It deals about killing of a baby inside a womb or after birth with intention.30
 Section 316: It deals with culpable homicide which is the result of causing death of unborn
child.31
 Section 317: It leaves with the very responsibility of the parents that they cannot leave a child
under the age of 12 years.32
 Section 318: It deals with the act of concealing the birth of a baby by disposing its dead
body.33

So, by now, we know that a doctor may become the villain but there’s always a remedy if our
case is strong.

25
Ibid.
26
Ibid pp. 272
27
Ibid.
28
Ibid.
29
Ibid.
30
Ibid pp. 273
31
Ibid.
32
Ibid
33
Ibid.
 STATEMENT OF PROBLEM

The relationship between a doctor and his patient is fiduciary, it is considered sacrosanct in
India. A Doctor is equivalent to “God”. But of late, incidents of negligence in the medical
profession are on the rise. The problem occurs in establishing liability, whether there was
negligence on part of the doctor or not is a hypothetical question, which is difficult to determine.
There is always a scope for back-up treatment but that does not imply that the doctor was
negligent for administering the previous treatment. For instance, a person who passes away due
to a (wrong) treatment may not be the beneficiary to receive compensation and his/her legal heirs
land in hot water. Further, the doctor will always try to take no chances and demand more
procedures to evade any case of liability, which in turn, would mount a burden on the economy.
The current legal framework is not adequately equipped to assist and protect both the doctors and
patients’ interests without compromising on the standard of healthcare or mounting pressure on
the economy.

The usual behaviour of the sellers of medical care is different from that of businessmen, because
medical care is a commodity which shows its actual effect on humans. Due to this reason, the
consumer cannot verify/test the product before consuming it, and hence the medical market has
the inbuilt faculty of trust ingrained in it.

The treatment in has a risk and absolute success is not guaranteed even if the doctor applies
reasonable/ standard level of care. Causation problems persist, due to the fact that the human
body can react differently and absurdly to certain treatments. Thus, a doctor cannot always
guarantee the success of his treatment and should not be held accountable for every bad or
unsatisfactory treatment result.

The doctor-patient relationship is dominated by one-sided knowledge. First, the patient as a

person not having prerequisite medical knowledge has difficulty to gain insight in the treatment
of the medical professional. It is tough for the patient to track the chain of causation. Since in
hospitals, a medical team of doctors, nurses, assistants etc. is associated in the treatment, it is
difficult to comprehend who had a part in the malpractice and to what extent.

Thus, the injury could have several reasons. For instance, when the patient is under anesthesia or
is unconscious, he/she will not be able to determine who contributed to what extent to his injury.
Furthermore, due to the multifaceted hierarchical organization of a hospital, the problem surfaces
that the patient may not be aware of the names of the persons and who is accountable to whom.

Second, the reality that most medical knowledge is technically complex is further impaired by
the fact that many illnesses/diseases do not reoccur; hence the cost of gaining the information is
extremely high for every patient. It can be said that the best way a patient could become fully
enlightened would be by becoming a doctor, which is too unlikely a situation.
Third, only the doctor himself/herself can have an effect on his/her own level of care, it is up to
the doctor, whereas the patient has no effect on the conduct of the doctor, he has to bank on the
knowledge and the qualification of the doctor. As a result of the lopsided information in medical
care, the patient will face hindrance in proving that the doctor to be negligent in his/her acts, i.e.
violating the standard skills and practices of the medical profession.

OBJECTIVES
In this project, I aim to analyze the medical negligence cases in Cuttack, Odisha and its causes.
Foremost, it is of utmost importance to determine the characteristic features of the medical
services in Cuttack. Secondly, the legal framework and its impact over the years through a study
of cases will be analyzed. Further the awareness of available remedies and the possible ways to
make the system more efficient will tried to be put forward.

RESEARCH QUESTIONS
1. What are the various causes that lead to medical negligence at the level of doctor/paramedical
staff/hospital authorities in Cuttack?
2. What should be done to maintain to balance the interests of both the patient and the doctor?
3. What happens to the victims in medical negligence cases and what remedy do they have?
4. How does the doctor respond to a medical negligence case and what are the steps he takes?

RESEARCH METHODOLOGY

The research methodology for this project is a doctrinal method of study. Information is sourced
from books, articles, journals etc. The dissertation shall follow a definite scheme of action,
wherein it would first define the topic, after which it would delve into the various aspects of the
topic, while at the same time critically analyzing the relevant aspects.
 HYPOTHESIS

A human being perfect is unlikely. Even a celebrated medical specialist could commit a mistake
in identifying or diagnosing the true nature of a disease. A doctor can be held liable for
negligence only if one can ascertain that he/she is guilty of omission that no doctor with adequate
skills would be guilty of if exercising reasonable care. An error in judgment comprises
negligence only if a reasonably competent professional with the standard skills that the defendant
professes to have, and exercising due care, would not have committed the same
mistake/omission.

CHAPTERISATION

1. Introduction: This chapter will introduce the topic.

2. Case studies and analysis: Various medical negligence cases in Cuttack will be studied here.
3. Incentives to mitigate the present issues: This chapter will ponder over various present issues
(in the economic perspective) in the system of the medical profession and introduce better
alternatives.
4. Medical Malpractice Insurance: This chapter will deal with the insurance that protects
medical professionals from financial crisis if a case is filed against him/her.
5. Suggestions to existing problems
6. Conclusion
 BIBLIOGRAPHY

 Books:

1. Chaudhari, AP and Aggarwal, Anil, Medical Profession and the Consumer Protection Act,
1st edition, 1998.
2. Joshi, Mahendra K., A-Z Medical Law, 1st Edition, 2nd October 2000.
3. Singh, Jagdish and Bhushan, Vishwa, Medical Negligence and Compensation, 2nd Edition,
1999.
4. Chaudhari, AP and Aggarwal, Anil, Medical Profession and the Consumer Protection Act,
1st edition, 1998.
5. Srivastava, Lily, Law & Medicine, 2nd Edition, Universal Publishing, 2013.
6. Kumar, Niraj, Medical Profession and the Consumer Protection, Bharat Law House, 2012.
7. Thorpe, Edgar and Thorpe, Showick, The Pearson Current Events and Digest 2012-13,
Amendments Proposed in Consumer Protection ACT to Facilitate Faster Disposal of Cases,
Pearson Education India, 2011.
8. Rogers, WVH, Winfield and Jolowicz on Tort, Sweet & Maxwell, 18th Edition, 2010.

 Articles:

1. Gupta, Kiran, “The standard of care and proof in medical profession, A shift from Bolam to
Bolitho”, XIV-XV, National Capital Law Journal, (2011-2012), Article 1.
2. Tetali, “The Importance of Patient Privacy During a Clinical Examination”, Indian Journal of
Medical Ethics, April-June 2007, URL= http: //www.ijme.in/152 co65.html (Viewed on
03/08/2016).
3. Sen, Binayak, “Securing the right to health for all in India”, The Lancet, Early Online
Publication, URL= http://www.binayaksen.net/2011/01/binayaks-paper-in-the-lancet-special/
(Viewed on 04/08/16).
4. White, Chapin and Hagen, Stuart, Congressional Budget Office, “Medical Malpractice Tort
Limits and Health Care Spending - Background Paper”, 2006, URL=
http://www.cbo.gov/ftpdocs/71xx/doc7174/04-28- Medical Malpractice.pdf (Viewed on
04/08/2016).
5. Cooter, Robert D. and Porat, Ariel, “Liability Externalities and Mandatory Choices: Should
Doctors Pay Less?”, Journal of Tort Law (University of Chicago Law & Economics, Olin
Working Paper No. 313), Vol. 1, 2006, URL= http://
papers.ssrn.com/sol3/papers.cfm?abstract_id=946489. (Viewed on 04/08/2016).
6. Saha, Kunal, “Indian Medical Council (Amendment) Bill, 2013: No prescription for a
corruption-free healthcare system”, India Medical Times (An AalaTimes media venture),
2013 URL= http://www.indiamedicaltimes.com /2013/09/06/guest-article-indian-medical-
 council-amendments-bill-2013-no-prescription-for-a-corruption-free-healthcare-system-by-
dr-kunal-saha/ (Viewed on 04/08/2016).
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Neurol, 2009, URL= http://www.ncbi.nlm.nih.gov/pmc/articles /PMC2812745 (Viewed on
04/08/2016).