Decoding Medical negligence through the lens of Bolam Test

Introduction

We often read about cases in newspapers and magazines where the patients have to go through immense suffering due to doctor’s carelessness in treating the patient. Such cases are medical negligence cases. Medical negligence frequently exacerbates a patient’s initial condition by causing further problems and injuries, which raises the patient’s insurance costs as well as other hospital expenses like admission fees and additional therapy sessions.

In some severe cases medical negligence leads to death of the patient. In Indian context medical negligence is a punishable offence under the Indian Penal Code, 1860.  Medical negligence is the worst type of conduct by a medical professional because  patients and doctors share a fiduciary relationship and  patients expect doctors to save the life of others or at the least act with caution and care  and not make it worse. Cases of medical negligence are witnessed every day, which causes pain, agony, and suffering to the patient, and to reduce such misconduct, the judiciary has often come up with various tests and the law has also prescribed various standards. One such test which was introduced by the judiciary is the Bolam test founded after the landmark case Bolam v. Friern Hospital Management Committee.^[1] The Bolam Test is based on the premise of determining whether the actions of the medic are in line with the actions of other medics who are in their position.

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Medical Negligence in India

Medical negligence is the term used to describe a healthcare provider’s or practitioner’s breach of duty of care that causes harm, injury, or in severe circumstances, death to a patient. Medical negligence laws in India have been implemented to guarantee that patients receive proper care and recompense for any harm caused by medical personnel, as these situations often result in significant suffering for the consumer. In India, complaints involving medical malpractice are usually filed as civil lawsuits in the relevant court, seeking damages. If a patient dies as a result of a healthcare professional’s negligence, in certain situations, criminal charges may also be brought against them.

The Indian Penal Code, 1860, the Consumer Protection Act, 2019, several rulings from the Supreme Court and High Courts, and published recommendations regulate medical negligence.

Jacob Mathew Case

Guidelines issued by Supreme Court in the case of Jacob Mathew v. State Of Punjab & Anr. (2005):

• If the person filing the complaint does not present the court with preliminary proof of the accused doctor’s negligence, the complaint will not be considered.
• Before filing charges against the accused physician, the designated investigating officer is required to confer with a government-employed physician who has undergone Bolam’s exam and is qualified to provide an unbiased and impartial assessment.
• The accused physician may not be regularly detained unless it is deemed necessary for more investigation, or until the investigating officer determines that the physician is unwilling to appear in court and may be arrested.

Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 200

Guidelines for medical practitioners to adhere to are also provided by the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. The obligations of medical professionals are outlined in these rules, which include the necessity to retain medical records, have patients’ informed permission, and follow medical ethics.

Indian Penal Code, 1860

• The Indian Penal Code’s Section 304A addresses death caused by negligence. In the event that a medical professional’s negligence results in a patient’s death, they may be subject to a fine, two years in jail, or both.
• The Indian Penal Code, Section 337, addresses causing harm by putting one’s life or personal safety in peril. A medical professional faces up to six months in jail, a fine, or both if their negligence puts a patient’s life or safety in danger. 
• The Indian Penal Code, Section 338, addresses grievous pain caused by actions that jeopardize life or personal safety. A medical professional faces up to two years in prison, a fine, or both if their negligence results in the patient suffering serious injuries.

The Consumer Protection Act

The Act of 2019 Protecting Consumers Patients can submit complaints under this statute against medical providers and demand damages for medical malpractice:

Who is a Consumer?

According to section 2 (7) of the  Consumer Protection Act, 2019, the consumer is the one who:

1. Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. Hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

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When can a complaint about medical negligence be filed?

In the following cases a complaint about medical negligence can be filed:

• The liability of a doctor arises only when the patient has suffered an injury due to his reckless or negligent conduct which was not appropriate according to the set standards of the medical profession.
• He is liable only for those consequences which resulted from a breach of his duties.
• The plaintiff must prove the breach of duty and causation.
• In case there is no breach then neither the doctor nor the hospital authorities can be made liable.
• If the possible causes of an injury is the negligence of a third party, an accident, etc. then it must be proved that the doctor’s negligence was the most probable cause of the injury to discharge the burden of proof on the patient (plaintiff).
• Sometimes“‘res ipsa loquitur”’which means“the thing speaks for itself” comes into play. In such cases, it can be clearly seen that the doctor was negligent in performing his duties. This discharges the burden of proving negligence on the plaintiff.
• Normally a person is liable for his own acts but when the concept of vicarious liability comes into play when a doctor can be held liable for the acts of other persons who are responsible for the injury caused to the plaintiff.

Who can be a complainant?

Section 2 (5) of the Consumer protection act. 2019  states a complainant can be :—

1. a consumer; or
2. any voluntary consumer association registered under any law for the time being in force; or
3. The Central Government or any State Government; or
4. The Central Authority; or
5. One or more consumers, where there are numerous consumers having the same interest; or
6. In case of death of a consumer, his legal heir or legal representative; or
7. In case of a consumer being a minor, his parent or legal guardian;

Essentials to establish negligence

• Duty of Care: If the doctor owed a duty of care towards the patient or person who has suffered mental and physical injury, then the doctor is guilty of medical negligence and shall be expelled to practice further.
• Breach of Duty: The second factor is the establishment of the fact that despite the doctor owing a duty of care towards the patient, the former failed to fulfil such duty and has breached in fulfilling his duty towards his/her profession.
• Causing of injury: It must be established that a doctor owed a duty of care towards the patient and he/she failed in fulfilling his duty and such failure has resulted in injury or death to the patient.

The Bolam Test

After the Bolam v. Friern Hospital Management Committee case in 1957, the Bolam Test was first put into use. The case concerned an event that occurred in the hospital where Mr. Bolam, the patient, underwent Electro Convulsive Therapy (ECT), resulting in significant fractures. Mr. Bolam contended that his physician was careless for three reasons:

1. There had been no muscle relaxation prior to the treatment starting.
2. Mr. Bolam was not restrained at any point during the process.
3. Mr. Bolam was not informed of the procedure’s possible hazards.

The case ultimately failed because it was decided that the physician had acted in accordance with the accepted medical practices at the time, and patients had not been routinely informed of all the minor hazards associated with the treatment. As a result, the legal system created and employed the Bolam Test to gauge medical malpractice.

The Bolam Test is predicated on evaluating whether the medic’s behaviors are consistent with those of other medics in their situation; as such, it may vary depending on factors such as the medic’s level of experience.

In essence, the Bolam test is an evaluation conducted by peers for medical professionals. They must be able to demonstrate that any other medical professional in their situation would have taken the same action and produced the same results. A case would be dismissed under certain situations.

Although the Bolam Test is a good way to set out the principles around the idea of a duty of care and the potential existence of medical negligence, it can be a somewhat grey area and sometimes difficult for medical professionals to be certain that what they are doing is correct.

To help guarantee that medical personnel protect themselves and their patients, an increasing number of organizations, including the National Institute for Health and Care Excellence, or NICE, are issuing comprehensive sets of guidelines about best practices and the duty of care.

The 1957 case of Bolam v. Friern Hospital Management Committee provides for the rule that determines the proper standard of reasonable care in cases of negligence involving competent professionals, such as doctors. In cases when the accused has professed to possess above-average skills and abilities, this examination demands standards that must align with a responsible body of opinion, regardless of the opinions of others that may differ. Stated differently, the Bolam test asserts that “a physician is not careless if he meets the standard of a responsible body of medical opinion.”

A peer review of a medical professional’s activities is called the Bolam test. The Test determines if the actions of a practitioner align with the actions of a significant number of other qualified professionals in the same field.

The other medical professionals might nevertheless find that the course of therapy or degree of care was appropriate even though they would have taken a different course of action. All medical practitioners, including doctors, nurses, dentists and surgeons, have a legal duty of care towards their patients.

When the actions of a professional may have exacerbated someone’s condition or caused them to become ill, then a medical negligence claim may be brought against them. The Bolam test is then used to establish whether they have breached their duty of care.

Today bodies like NICE (National Institute for Health and Care Excellence) have set out comprehensive guidelines on duty of care and best practice. This means that if a medical professional has satisfied the Bolam test, they may still be found to have failed in their duty of care if they have not followed NICE recommendations.

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Conclusion

With the increasing complexities in Medical negligence cases, the standards and rules regarding medical negligence are getting introduced to rescue the patient from such situations. Bolam test is one such standard test. These tests should be kept in consideration while deciding a claim for medical negligence. Medical practitioners should take inspiration from existing laws and strive to avoid any such mishaps. Even though the Bolam Test offers a benchmark for assessing medical negligence, it’s critical to understand that these instances can be complicated and call for careful evaluation of a number of different factors.

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^[1] Bolam v Friern Hospital Management Committee [1957] 1 WLR 582