We are eye surgeons must be aware as to what action or inaction constitutes a legal medical negligence.
It is akin to knowing your rights as a doctor and duties as a health caregiver.
Doing a manual SICS surgery instead of a phacoemulsification does amount to negligence.
Having an anesthetist in the OR is not stated in any book or the AIOS guidelines to be mandatory.
So operating a cataract surgery without anesthetist should not be made a case of negligence unless it is a high risk case where presence of anesthetist is warranted.
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2010(2) Bom.C.R. 599 (SUPREME COURT) Before: Bhandari Dalveer & Bedi Harjit Singh, J.J.Kusum Sharma & ors. – Appellants
Versus
Batra Hospital & Medical Research Centre & ors. – Respondents
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Civil Appeal No. 1385 of 2001, decided on 10-2-2010
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| Supreme Court directed the Principles of Law: |
| I. |
Negligence is the breach of a duty exercised by omission to do something which a reasonable doctor would do, or doing something which a prudent and reasonable doctor would not do.
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| II. |
Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
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| III. |
The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
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| IV. |
A medical practitioner would be liable only where his conduct falls below that of the standards of a reasonably competent practitioner in the realm of diagnosis and treatment. There is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
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| V. |
The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional, looking to the gravity of illness, has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
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| Also, it was decided in the case of Dr. N.T. Subramaniyam and Another V/s. Dr. B. Krishnarao & Another — 1986–96 NC & SC.
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| A doctor can be held guilty of medical negligence only when he falls short of the standard of reasonable medical care. A doctor cannot be found negligent merely because in a matter of opinion he made an error of judgment.It is also well settled that when there are genuinely two responsible schools of thoughts about the management of a clinical situation, then to place the hallmark of legality upon one form or treatment is not negligence. |
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The Supreme Court in the case of Dr. Suresh Gupta v/s Government of NCT of Delhi (2004) (6) SCC. 4442, held that “for every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment.”
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Conclusion
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The doctor will not be held responsible under negligence if the treatment is as per standard text books and/or accepted professional practice and still, the patient suffers loss or injury.
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The doctor will not be held responsible under negligence “merely because a complication has occurred.”
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