MEDICINE AND TORT

Submitted by:

Faculty in charge:

Mr. Sachin Sharma

NATIONAL LAW UNIVERSITY

31ST OCTOBER, 2016

 ABSTRACT

This research paper deals with the various aspects of medicine in context with law of torts. This
paper will deal with negligence in the medical profession and how law helps to solve the tussle
between legal and medical parameters of negligence. The research paper also includes other
aspects such as doctor patient relationship, increasing number of fake doctors, effects of treating
a wrong patient,medical experiments on human bodies etc. The researcher has also done a
critical analysis on the landmark case for medical negligence Jacob Mathew V. State of Punjab.
 INTRODUCTION
Medicine is one of the most important factor in our lives. It is the science and practice of the
diagnosis, treatment, and prevention of disease. Medicine heals, but also kills. World Health
Organisation believes that one in every 10 hospital admissions leads to an adverse event and one
in 300 admissions to death. Thus Medical profession is losing its aura of sanctity with rising
cases of medical negligence.1

The relation between a doctor and a patient is considered to be a sanctimonious one. The doctors
take the Hippocratic Oath in order to pledge their duties for the well being of the patients.
Despite prudence and care, medical professionals commit errors such as wrong treatment and
incorrect diagnosis in their day to day practice. These errors in the medical profession can lead to
serious legal actions. In the legal parlance, this is known as Medical negligence.
Doctors owe a duty of care to their patients. Once a doctor agrees to treat his patient, he owes a
duty of care towards him. On the side of the patient if any harm is caused, he has to show some
actual damage caused to him due to the negligence on the part of the doctor. Proof of injury may
include-
a) Physical effects

b) Emotional effects

This research paper also deals with other aspects of medicine such as Increasing number of fake
doctors who have no knowledge in this field and has taken up the profession through illegal
means. Such doctors are a threat to human life.

Duplicate Medicine and its effect on healthcare is another problem that is being faced. Medicine
dealers manufacture duplicate medicine with the help of doctors and thus is has a adverse effect
on human health.

Medicine is a field that is gaining fast growing popularity in today’s accident-prone world. In
this fast moving world increase in diseases and accidents is a common thing. This paper also
includes research on tort reform and accidental death.

The researcher will try to expand and explore beyond the basic issues of medicine by taking into
account issues like effects of treating the wrong patient, Medical experiments on human bodies,
diffusion of diagnostic technology. The researcher will also take into account the basic
established cases under this tort and try to analyse and interpret it for better understanding.
1
www.timesofindia.com
Medical negligence is a fast growing individual field in law. With increasing medical
malpractices, the number of laws governing it has also increased. Thus, there is a bright scope in
future in this field books and articles has been referred in this research paper.

MEDICAL NEGLIGENCE
"Negligence is the breach of a duty 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.” Actionable
negligence consists in the neglect of the use of ordinary care or skill towards a person to whom
the defendant owes the duty of observing ordina’ry care and skill, by which neglect the plaintiff
has suffered injury to his person or property.... The definition involves three constituents of
negligence:
(1) A legal duty to exercise due care on the part of the party complained of towards the party
complaining the former's conduct within the scope of the duty;
(2) Breach of the said duty; and
(3) Consequential damage.
Cause of action for negligence arises only when damage occurs; for, damage is a necessary
ingredient of this tort.2

Medicalnegligence-
A person who alleges negligent medical malpractice must prove four elements:
(1) a duty of care was owed by the physician; (2) the
physician violated the applicable standard of care; (3) the person suffered a compensable inj
ury; and (4) the injury was caused in fact and
proximately caused by the substandard conduct. The burden of proving these elements is on t
he plaintiff in a malpractice lawsuit.3

Negligence as tort

According to Charles worth & Percy on Negligence (Tenth Edition, 2001), in current forensic
speech, negligence has three meanings. They are: (i) a state of mind, in which it is opposed to
intention; (ii) careless conduct; and (iii) the breach of duty to take care that is imposed by either
common or statute law. All three meanings are applicable in different circumstances but any one
of them does not necessarily exclude the other meanings. (Para 1.01) The essential components
of negligence, as recognized, are three: "duty", "breach" and "resulting damage", that is to say:-
1. The existence of a duty to take 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; and 3. Damage, which is both causally connected with such breach and recognized by
the law, has been suffered by the complainant. (Para 1.23)4
2
Ratanlal & Dhirajlal, twenty-fourth edition 2002, edited by justice G.P. Singh
3
http://legal-dictionary.thefreedictionary.com/Medical+negligence

4
Koley Tapas Kumar. Medical negligence and the law in India, duties, responsibilities and rights, Oxford University
Press.
Increasing value of laws against medical negligence

Medical negligence is gaining rapid popularity in contemporary world. It is an offence happening

highly on a daily basis. With the number of literary rates increasing and education among
children and women spreading, people are getting conscious about their rights. Not only urban,
but now-a-days, rural development and increasing education has made even the villagers
conscious about their rights hence making it difficult for the skilled educated doctors to fool
them.

In India, in the last few decades, due to increase in education and spread of media and
communication, awareness among people about the rights guaranteed by the Constitution of
India has led to an increment. This has brought the medical professionals under the inspection of
both the public and courts thus leading to increasing problems faced by Indian medical
professions.

Tussle between medical and legal aspects of negligence

Medical and Negligence are two different words originating from two different fields. While
medicine is a profession filled with complexities, law is a wholly different profession filled with
logic and discretion. The joining of these two words leads to a lot many issues and confusions
both on the part of the medical practitioners and judiciary.

Though civil laws governing medical malpractices were in force over fifty decades now, medical
practitioners never paid heed to the laws because of the lack of stringency in them. However, the
introduction of Consumer Protection Act led to a drastic turnover in the field. People started
learning about their own rights and that they could heal their grievances in the consumer forums.
As a result, aggrieved patients started filing cases of medical negligence in consumer forums
throughout the country.

The coming of consumer forums led to a speedy system for solving the problems of the
aggrieved patients, leaving the so called skilled and competent practitioners anxious. They
started to take the judiciary as an “unnecessary interference” in their arena. They believed that
the judiciary having no knowledge about medical field and the complications involved in it were
not the correct people to decide what is right and what is wrong for them.

The conflict between medicine and law is a recent thing in India and an early and speedy
solution is required. With both the judiciary and medical professionals blaming each other, the
actual problem lies elsewhere. Firstly, the medical practitioners do not take laws governing
medical negligence seriously. Secondly, illegal and unethical professional misconduct is rising
with every passing day. These malpractices are now of common knowledge to all which has
resulted in people losing their trust in this profession.

DOCTOR-PATIENT RELATIONSHIP

Doctor, the man with skill and competence are consulted by patients. In the process, a fiduciary
relationship between them is formed. A doctor owes certain duties to the patient, namely a duty
of care in deciding whether to undertake the case or not, is the problem an issue of his field. If it
is a problem of his field, how to conduct the operation, with what practices and methods and then
conduct it with utmost care and precaution. A breach of any of these duties will lead to an action
for negligence by the patient. The doctor must keep up to the standards of care.

Standard of care- standard of care is what is reasonable to be expected from the ordinarily
competent practitioner of his class. The standard of care which the law requires is not insurance
against accidental slips, it is such a degree of care as a normally skilful man of the profession
may reasonably be expected to exercise in the actual circumstances of the case in question. It is
not every slip or mistake which imports negligence.5

Every surgeon takes responsibility of what he injects or how he operates a patient’s body. The
doctor has to take certain steps with precaution before operating a patient and if he is negligent in
doing so, he will be liable.

3.1 CHANGE IN DOCTOR PATIENT RELATIONSHIP

The doctor-patient relationship has undergone great change in recent years. Earlier, doctors were
placed at the highest position in the society, they were considered as “Gods” and their advices
were accepted undoubtedly by patients. In contemporary world, however, the old notion of
“doctor knows the best” no longer exists. Before opting for any surgery, patients first consult two
three doctors and then opt for what the majority says. A difference in opinion regarding
treatment often leads to confusion in the minds of patients and they, without concrete knowledge,
in case of any mishap goes to the court of law to sue doctors. Suspicion and distrust crept in the
minds of the patients and a doctor is no longer considered the “God”, which has led to
deterioration of the doctor-patient relationship.

DUPLICATE MEDICAL RECORDS

What are duplicate medical records and overlays?

5
Pandey J.N. Law of Torts with consumer protection act and motor vehicle act, Central Law Publications
Duplicate medical records and overlays are created as a result of patient identification errors. A
duplicate medical record occurs when a single patient is associated with more than one medical
record. Oftentimes, duplicate medical records are partial duplicates that only capture a portion of
a patient's medical history. An overlay occurs when one patient's record is overwritten with data
from another patient's record, creating a combined, inaccurate record. 
Why are duplicate medical records and overlays critical issues?
Patient matching problems pose significant dangers for patients because, if patients are treated
based on incomplete or inaccurate knowledge about their medical history or profile, serious
errors and complications can ensue. For example, a duplicate medical record may not include the
correct information about a patient's blood type, allergies, or their diagnostic, medication, or
family histories. Similarly, overlays include inaccurate information about patients’ medical
histories because they merge information from separate individuals into a single patient record.
The imprecision of these medical records can cause unnecessary and costly duplicate testing,
ineffective treatments, unintended medication interactions, and inappropriate care that can harm
patients. Duplicate medical records can also negatively impact communications between
healthcare providers and their patients: duplicate medical records are associated with a higher
risk of missing important laboratory results and a higher likelihood that patients are subjected to
unnecessary testing.
How are duplicate medical records and overlays created? 
Patient matching errors are an inevitable byproduct of healthcare’s increasingly complicated
technology environment. Many healthcare organisations use multiple systems for clinical,
administrative, and specialty services, which increase the likelihood of patient matching errors,
duplicate medical records, and overlays. In addition to the complexities of healthcare’s IT
infrastructures, many duplicate medical record errors can be traced back to small errors and
inconsistencies introduced in patient registration processes6. A study conducted at Johns Hopkins
Hospital revealed that 92 percent of the errors resulting in duplicate medical records were caused
by inpatient registration mistakes. Human error is the most common culprit and cause of these
mistakes. Simple mistakes, like misspelling a patient's name, mistyping their Social Security
Number, or using inconsistent acronyms or abbreviations (such as Mrs. vs. Ms., or Street vs. St.)
can easily create duplicate medical records for a single patient, or merge multiple records
together, resulting in impartial and inconsistent medical histories and information. Another major
cause of patient matching problems is inconsistent naming practices. For example, a single
patient could be recorded as Maria Garcia, Maria L. Garcia, Maria de Lopez Garcia, and Maria
Garcia Williams. Pinpointing individual patients becomes even more difficult when multiple
patients share the same name and other identifying information. In such cases, the risk of
overlays can be particularly high. 

DUPLICATE MEDICINES AND ITS EFFECT ON HEALTHCARE

6
http://edition.cnn.com/2012/06/09/health/medical-mistakes/
Counterfeit drugs comprise an increasing percentage of the US drug market and even a larger
percentage in less developed countries. Counterfeit drugs involve both lifesaving and lifestyle
drugs.
The objective is to review the health and economic consequences of counterfeit drugs on the US
public and on the healthcare system as a whole.
This comprehensive review of the literature encompassed a search of Google Scholar, and
ProQuest using the keywords “counterfeit drugs,” “counterfeit medicines,” “fake drugs,” and
“fake medicines.” A search of the various FiercePharma daily newsletter series on the healthcare
market was also conducted.
The issue of counterfeit drugs has been growing in importance in the United States, with the
supply of these counterfeit drugs coming from all over the world. Innovation is important to
economic growth and US competitiveness in the global marketplace, and intellectual property
protections provide the ability for society to prosper from innovation. Especially important in
terms of innovation in healthcare are the pharmaceutical and biopharmaceutical industries 7. In
addition to taking income from consumers and drug companies, counterfeit drugs also pose
health hazards to patients, including death. The case of bevacizumab (Avastin) is presented as
one recent example. Internet pharmacies, which are often the source of counterfeit drugs, often
falsely portray themselves as Canadian, to enhance their consumer acceptance. Adding to the
problems are drug shortages, which facilitate access for counterfeits. A long and convoluted
supply chain also facilitates counterfeits. In addition, the wholesale market involving numerous
firms is a convenient target for counterfeit drugs. Trafficking in counterfeits can be extremely
profitable; detection of counterfeits is difficult, and the penalties are modest.
Counterfeit drugs pose a public health hazard, waste consumer income, and reduce the incentive
to engage in research and development and innovation. Stronger state licensure supervision of
drug suppliers would be helpful. Technological approaches, such as the Radio Frequency
Identification devices, should also be considered. Finally, counterfeit drugs may raise concerns
among consumers about safety and reduce patient medication adherence.

EFFECTS OF TREATING THE WRONG PATIENT

7
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4105729/
Treating a wrong patient is a civil wrong. Hospital authorities should be careful in treating any
patient. The main reason behind committing such wrong is mainly that the hospital staff fails to
verify the identity of the patient. The hospital authorities must verify the patients with similar
names and not get confused among them. This can be done only if the hospital authorities ensure
proper care and not make the mistake of getting confused among the patients. One should make
sure that before every procedure in the hospital the staff checks the entire name of the patient,
date of birth and barcode on the wrist of the patient. If your identity gets mixed up with someone
else's, you can get the wrong medications or even the wrong surgery. Most hospitals now give
patients a wristband with your full name, date of birth and a unique barcode. Make sure this is
checked and verified before every medical procedure.

INCREASING NUMBER OF FAKE DOCTORS

Increasing number of fake doctors is another problem which is common. Inspite of not being a
doctor but treating a patient falsely is civil wrong. The main reason is that con artists pretend to
be doctors and in order to earn money they do not think about the health of the patients. The
consequence of increasing number of fake doctors is that the medical treatments backfire. The
patient is already sick and instead of getting better his health becomes progressively worse. And
after that if somehow the patient realizes he or she has been treated wrong, the real doctors also
cannot do much and the patient ends up loosing his life. Prevention for this would be before
getting treated by any doctor in any hospital the patient should check that the doctor is licensed
and not fake. The doctor should not hesitate to prove to any patient that his identity is not fake.

TORT REFORMS AND ACCIDENTAL DEATHS

Theory suggests that tort reform could have two possible impacts on accidents. Reforms could
increase accidents as tortfeasors internalize less of the cost of externalities and have less
incentive to reduce the risk of accidents. Alternatively, tort reforms could decrease accidents as
lower expected liability costs result in lower prices, enabling consumers to buy more risk-
reducing products such as medicines, safety equipment, and medical services, and could result in
consumers increasing precautions to avoid accidents8. These effects are tested by examining the
relationship between tort reform and non-motor-vehicle accidental death rates. We find that non-
economic damage caps, a higher evidence standard for punitive damages, product liability
reform, and prejudgment interest reform are associated with fewer accidental deaths, while
reforms to the collateral source rule are associated with increased deaths.

SURGICAL SOUVENIRS

8
http://www.columbia.edu/~dnc2101/research/Accidental_Deaths_and_Tort_Reforms_Carvell.pdf
Surgical tools or other objects are left inside people after surgery far more often than you'd like
to think. This is often the result of surgical staff failing to count, or miscounting, equipment
during the procedure. Unexpected pain, fever and swelling after surgery are all indications that
you could have a surgical tool still inside you.

 Surgical sponges, which can fill up with blood and resemble bodily tissues, are by far the most
common item left behind, but incidents involving clamps, retractors, electrodes and other objects
have also been reported. If you have an emergency surgery, your likelihood of being impacted by
an object left behind increases by 900 percent, and by 400 percent if unexpected changes occur
during the procedure. Being overweight or obese also increases the risk.
Before heading in to surgery, alert your surgeon and attendants that you are aware of this issue,
and ask them to be especially careful. Also make sure counts of surgical equipment are routine at
the institution where the surgery is being performed.

The main cause of this is surgical staff miscounts (or fails to count) equipment used inside a
patient during an operation. The prevention to be taken is If you have unexpected pain, fever or
swelling after surgery, ask if you might have a surgical instrument inside you.

Jacob Mathew v. State of Punjab (the landmark case for medical negligence) 9

9
http://indiankanoon.org/doc/871062/
Facts of the case : Ashok Kumar Sharma, the respondent filed a suit against the doctors Jacob
Mathew and Allen Joshep for the death of his ailing father due to negligence on the part of the
doctors. On 15-2-1995, Jiwan Lal, the father of the respondent, suffering from cancer at terminal
stage was admitted to CMC Hospital, Ludhiana. On 22-02-1995 at around 11 p.m. Jiwan Lal
faced difficulty in breathing. Vijay Sharma, the appellant’s younger brother who was present
there at that time called the nurse who in turned called for doctors. For about 20-25 minutes no
doctor came after which Dr. Jacob Mathew and Dr. Allen Joshep came to the room, Dr. Jacob
Mathew being the appellant. An oxygen cylinder was brought but it only increased the breathing
problem. The patient tried to get up but the doctors did not let him. The oxygen cylinder used
was then found to be empty. Vijay Sharma rushed to other room to bring a cylinder but there was
no arrangement to make the gas cylinder functional and in between about 5-7 minutes were
wasted. In the meanwhile, another doctor came and declared the patient dead.

Pertinent questions to be raised before passing judgements

a) Whether the doctor concerned possesses those skills as an ordinary medical practitioner
would possess in that field at that point of time.
b) Whether the doctor adopted that practice to operate the patient that any other ordinary
prudent doctor would adopt.

Judgements

Statutory rules of Executive Instructions should be incorporated by the Government and State
Executives with consultation with medical practitioner. Till that was done, the judgment was
given to frame guidelines for future to protect the prosecution of the doctors from offences
related to criminal rashness and criminal negligence.

A private complaint will not be entertained until supported by prima facie evidence and support
of a medical practitioner for charge of negligence against the accused doctor.

The investing officer should before proceeding against the accused doctor, take opinion from a
well qualified medical practitioner, preferably from Government Service, specialised in the same
area as the accused doctor and would give impartial and unbiased opinion in regard to the facts
of the case.

A doctor should not be routinely arrested unless it is so that without his arrest the proceedings
will be disturbed and collection of evidence will be hindered.

The above judgment gives relief to the medical profession. However, no immunity is conferred-
The judges have left to the Central and State Governments to give rules and regulations, as in
India it is a state subject. These guidelines prescribe opinion from a proper Government doctor
before proceeding against a doctor. The accused doctor can present his defence by obtaining
from expert of choice after the case is charge sheeted and the case comes before the court for
examination.10

Interpretations-

In the above stated case, two sides can be perceived.

Since this is a case of medical negligence and about a person’s life and death, not even trivial
things should be ignored.

In the case, the complainant filed a suit against the doctor for negligence and rashness by not
providing adequate facilities as much as a hospital should.

Firstly, when the patient was brought to the hospital, there were no doctors in duty to take care of
the patient. For around 20-25 minutes the aling man was left without any treatment. Secondly,
even after the doctors came, they provided the wrong treatment by giving him an empty oxygen
cylinder mask. Thirdly, there was no back up for the wrong. It took around 5-7 minutes for them
to arrange another mask and even after that the hospital did not have proper sytem in mplace for
the cylinder to be connected and used further.

Therefore, the doctors committed the act of omission and negligence according to the researcher
and hence should be held liable.

Looking from a different perspective, it can be said that as the doctor’s profession is a noble one
and he is placed at the highest pedestrail, he would not take any action that would harm his
patients. Once a doctor is under arrest, his reputation is in stake. This would certainly affect his
career. Therefore, before taking any action against him, proper investigation should be done.
Moreover, judges and the investigating officers are not medically qualified so as to justify their
action. The opinion of well-qualified medical practitioner should thus be considered before
taking any action.

Moreover, the ailing man was already very sick and at his terminal stage of cancer. The facr that
his death was nearing was already known to their family. The doctors had already told that the
operation would not make anything better and his life was now dependend on God’s will.

Thus, if seen this way, the doctors should not be held liable.

CONCLUSION

The aim of this research paper was to understand and explain the concept of medicine and torts.

10
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3579074/
The researcher’s observation in the topic is that medical negligence is a very vast arena. It can
come under both tort and crime. In the research paper, the researcher has tried to see medical
negligence from the perspective of tort law. The researcher has tried to give a gist of the history
of medical negligence and how can it be perceived from the view of tort and from crime.

The relationship between doctor and patient is a very pure one. Doctors are considered as “gods”
in our society. The noble relation between doctor and patient is also covered in the research
paper. Doctor patient relationship is a highly approaching topic in contemporary world and
changes, both positive and negative, are occurring in this field. The position of doctors is
degrading day by day in today’s corrupted world and patients are losing their trust in this
profession.

Medicine heals, but also kills. World Health Organisation believes that one in every 10 hospital
admissions leads to an adverse event and one in 300 admissions to death.Although there is no
concrete Indian data available on this topic, WHO lists it among top 10 killers in the worldWhile
a British National Health System survey in 2009 reported that 15% of its patients were
misdiagnose, an American study published in the Journal of American Medical Association in
2000 quantified this problem most effectively.It is said that there are 2000 deaths every year
from unnecessary surgery, 7000 deat5hs from medication errors, 20000 from other errors of
negligence in hospitals. Approximately, 225000 deaths occur every year in the US due to
unintentional medical errors. Different medical mistakes like treating the wrong patient, increase
number of fake doctors, surgical souvenirs,tort reforms and accidental deaths,duplicate medicine
and its effects on healthcare, duplicate medixal reports have been discussed in the project.

The researcher has also tried to interpret the future of this field and how could these problems be
tackled in coming days.

Lastly, a case study on the landmark case of medical negligence, Jacob Mathew v. State of
Punjab, has been taken into account. Its facts and judgements along with interpretations from the
researcher’s point of view have been discussed.