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Report No. 196

Civil Liabilit.- Torts:

So far as civil liability of the doctors under the law of torts is concerned, the position as per the discussion in the previous chapters, is as follows:

(a) Where the competent patient who is afflicted by serious disease, refuses treatment after being duly informed about all aspects of the disease and treatment, the doctor is bound to obey the same and withhold or withdraw treatment. There is no duty to start or continue treatment, if a properly informed patient refuses to receive medical treatment. If death ensues on account of the doctor obeying the patient's refusal, then there is no cause of action to sue the doctor for negligence, seeking damages.

(b) Where the patient is incompetent, either being a minor or person of unsound mind or is, on account of the pain and suffering or on account of his being in a persistent vegetative state, unable to take decisions as to whether he would or would not have medical treatment, the doctor has to take a decision in the best interests of the patient based upon an informed body of medical opinion of experts. In that case, as he is acting in good faith, his action in withholding or withdrawing medical treatment is protected and he is not liable in tort for damages.

(c) In the case of competent patient who has not taken an informed decision, the doctor's action taken in the best interests of the patient is lawful and what we said under (b) equally applies here.

The civil liability of doctors in torts is discussed in several decisions of the Supreme Court but suffice it to refer to the recent decision of the Supreme Court in Jacob Mathew: 2005 (6) SCC page 1, State of Punjab vs. Shiv Ram: 2005(7) SCC 1 and State of Haryana vs. Raj Rani: 2005(7) SCC 22. The Supreme Court accepted the principles laid down in Bolam: 1957 (1) WLR 582 and the law is stated in Halsbury's Laws of England (4th Ed, Vol 30, para 35) as follows) so far as civil liability under the law of torts is concerned:

"The practitioner must bring to his task 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 competenc.- judged in the light of the particular circumstances of each case,- is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed a different treatment or operated in a different way; nor is he guilty of negligence if he has acted accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.

Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis, it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken, had he been acting with ordinary care"

The Supreme Court in Jacob Mathew also stated something as to civil liability which is particularly relevant in the present context. It stated (p. 21 SCC):

"The usual practice prevalent nowadays is to obtain the consent of the patient or of the person-in-charge of the patient if the patient is not in a position to give consent before adopting a procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was failure"

Summary:

In the light of the above principles, the decision of a doctor to withhold or withdraw life saving treatment based upon the view of an expert body of medical mean the particular field is therefore not actionable in tort.



Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) Back




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