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Tuesday, February 23, 2010

‘Deviation from normal practice not medical negligence’

J. Venkatesan
New Delhi: As long as doctors have performed their duties and exercised an ordinary degree of professional skill and competence they cannot be held guilty of negligence, the Supreme Court held on Wednesday. Laying down a set of principles, a Bench said, “Mere deviation from normal professional practice is not necessarily evidence of negligence.”

The Bench of Justice Dalveer Bhandari and Justice H. S. Bedi said: “A doctor faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally.”

Writing the judgment, Justice Bhandari said that in complicated cases doctors had to take a chance even if the rate of survival was low. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.

The Bench said: “A medical practitioner would be liable only where his conduct fell below the standards of a reasonably competent practitioner in his field. In the realm of diagnosis and treatment, there is scope for a genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of the other professional doctor.

“The medical professional is often called upon to adopt a procedure which involves a higher element of risk, but which he honestly believes as providing greater chances of success for the patient than a procedure involving a lesser risk but higher chances of failure. Just because a professional, looking at the gravity of illness, has taken a higher element of risk to redeem the patient out of his/her suffering which [however] did not yield the desired result, [it] may not amount to negligence.”

Further, “Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him is acceptable to the medical profession. It is the bounden duty and obligation of civil society to ensure that medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear.”

“The aforementioned principles must be kept in view while deciding cases of medical negligence. 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 negligence,” said the Court.

In the instant case, Kusum Sharma and others challenged a National Consumer Disputes Redressal Commission order rejecting their plea for a compensation of Rs. 45 lakh from the Batra Hospital and Medical Research Centre in the Capital for the death of her husband R.K. Sharma after a surgery. It was alleged that Sharma died of medical negligence. The Bench said, “The Commission was justified in dismissing the complaint of the appellants. No interference is called for. The appeal being devoid of any merit is dismissed.”

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