Medical Negligence During A Pandemic

• Published date: 10 June 2021
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Coronavirus (COVID-19), Trials & Appeals & Compensation, Professional Negligence, Food and Drugs Law, Operational Impacts and Strategy
• Law Firm: King, Stubb & Kasiva
• Author: Mr Raj Dev Singh and Saksham Ahuja

A man need not possess the highest expert skill; it is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. - Mc Nair, J¹

Having lived with the pandemic for more than a year now, it is important to recognize that while it has been a disruptive and challenging time for us, we haven't faced the brunt of it the way the medical fraternity has. While the medical professionals and related staff have worked round-the-clock to manage the crisis, on the other hand there have been reports of mismanagement, patients being denied due care and medical assistance and in certain cases, non-observance of safety protocols; ultimately endangering the lives of both healthcare professionals and patients alike. These issues bring forth the topic of medical negligence and the role played by law and judiciary to curb it. This article discusses medical negligence in the context of Indian legal system in the backdrop of the Covid-19 pandemic.

Understanding Medical Negligence:

The Hon'ble Supreme Court in Jacob Mathew vs. State of Punjab² had observed that:

"Negligence is the breach of 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 use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered to his person or property..."

In simpler terms, negligence is failure to exercise due care resulting in injury. However, in the case of medical negligence, a higher degree of care is expected from the medical professional. Thus, the three-fold test to constitute medical negligence is:

1. Existence of duty to care;
2. Breach or omission of such duty and
3. Suffering from injury consequent to such omission or breach.

Upon fulfilment of the three-fold test, civil or criminal liability (in some cases, both) can be fastened on the medical professional and the hospitals. This brings us to another important question: what standards apply to assess the "duty of care" of the medical professionals?

Standard of Care and Bolam Test:

A simple lack of care or error of judgement is not negligence on the part of any medical professional. So long as the doctor follows protocol amenable to the...