Although, it is an obligation of the medical practitioners to follow the code of ethics, the number of unethical practices has increased drastically and hence, it has become essential to analyze whether the act committed out of negligence and the liability that arises out of it. Health care workers can be made liable under the Consumer Protection Act, 1986, tort and criminal law. In the recent years we have witnessed an incline towards the commercialization in the medical field like never before. This has also led to an increase in the unethical acts being performed by the doctors in order to gain monetary benefits.

Medical negligence can be defined as misconduct by a medical practitioner or a doctor which results in breach of their duties and the harm caused to the patients. It is a breach of a legal duty to care. It is a medical malpractice which is improper, unskilled or negligent in the treatment of a patient by the physician, dentist, pharmacist or any other health care professional. The ingredients for negligence include:

• The offender owes a duty of care to the complainant;
• The offender breached this duty of care and
• The complainant has experienced an injury due to the offender’s breach.

India is recording a whopping 5.2 million injuries each year due to medical errors and adverse events. Of these biggest sources are mishaps from medications, hospital acquired infections and blood clots that develops in legs from being immobilized in the hospital. A landmark report by an Indian doctor from Harvard School of Public health (HSPH) has concluded that more than 43 million people are injured worldwide each year due to unsafe medical care. Approximately 3 million years of healthy life are lost in India each year due to these injuries.

Article 21 and 34 of the Constitution helps victims of medical negligence can seek remedy and ensure proper healthcare facilities are being provided to them. Article 21 guarantees right to life and personal liberty to every citizen of the country and right to health is an integral part of right to life. It is the responsibility of the State to ensure that healthcare facilities are being provided to the citizens. Article 32 provides the right to Constitutional remedies and means that the person has a right to approach the High Court or the Supreme Court to protect their fundamental rights. Hence, a suit can be filed under Article 32.

The Supreme Court in Paschim Banga Khet Mazdoor Samity and Ors. Vs.State of West Bengal and Ors. 1996discussed whether the non-availability of facilities for treatment of serious injuries sustained by ‘X’ in various Government hospitals resulted in denial of fundamental right guaranteed under Article 2. It was held by the Supreme Court that Article 21 of the Constitution imposes obligation on the State to safeguard the right to life of every person. Any failure on part of the Government hospital to provide timely medical treatment to person in need results in violation of right to life guaranteed under Article 21 will amount to breach of said right of ‘X’ as he denied of treatment in various Government hospitals even though his condition was very serious and he needed immediate medical attention. The State cannot avoid its responsibility for such denial and hence, ‘X’ entitled to award of adequate compensation.

The determination of the professional duty of a healthcare providers had been laid down by the Supreme Court of India in Dr. LaxmanBalakishna Joshi v. Dr. Trimbak Babu Godbole and Anr., 1968 –

“A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.”

According to the Minister of State for Health and Family Welfare Ashwini Kumar Choubey, in 2017, 69 cases of medical negligence were awarded punishment by the Medical Council of India (MCI). This formed 44\\% of the cases referred to MCI by the state medical councils. In 2018, 28\\% or 40 cases referred to MCI by state medical councils awarded punishments to doctors and in until June 2019, 46\\% or 28 doctors were punished by MCI for medical negligence.

Reasonable care can be defined as the extent of concern and caution and ordinary person would take under a similar circumstance. The patient needs to show that in a case of negligence, no reasonable doctor, acting in a similar circumstance would act in that manner. To assess such situations, Bolam’s test is usually applied to see whether the act committed by the doctor was reasonable given the situation.

In the case of Bolam v. Friern Hospital Management Committee (1954) it was stated that “……….where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.”

Lord McNair said : “……….I myself would prefer to put it this way : A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men in that particular art”.

The ratio of Bolam’s case is that it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical professionals exercising an ordinary degree of professional skill. The fact that the respondent charged with negligence acted in accordance with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used.

In the case of Jasbir Kaur v. State of Punjab, a newly born baby went missing and was found bleeding near the wash-basic of the bathroom. The hospital authorities argued that the child was taken away by a cat. The court held that the hospital authorities were negligent and had not taken due care and precaution. Thus, awarded the compensation amounting to Rs. 1 lakh.

A doctor may not be liable in all the cases and may also have a valid defense that he has not breached the duty of care. The error of judgement can be of two types, error of judgement where the doctor’s decision turned out to be wrong and it has been recognized that it does not amount to a breach of duty and error of judgement due to negligence where all the factors were considered before the doctor came to a decision, this would amount to breach of duty.

In the case of C.P Sreekumar (Dr.), MS (Ortho) v. S. Ramanujamthe court dealt with a medical negligence case in which the respondent was injured while going on a bicycle. He sustained severe injuries and a hairline fracture of the neck. On considering the various options available the doctor chose to perform hemiarthroplasty instead of internal fixation procedure. The surgery was performed the next day. The respondent filed a case against the doctor for not adopting the internal fixation procedure for the injury. The Supreme Court held that the appellant’s decision for choosing hemiarthroplasty for the person who is 42 years of age was not unacceptable as to make it a case of medical negligence.

In Jacob Mathew .V. State of Punjab, the Supreme Court held that in some cases doctors are bound to take make difficult choices. Sometimes situations make them go for things involving greater risk because of higher chances of success in taking that decision. And there are some cases in which there is lesser risk involved and higher chances of failure. So, the decision will depend upon the facts and circumstances of the case.

With the recent rise and spread of the coronavirus across the globe, there are instances where due to the lack in the number of healthcare workers, countries have been forced to provide treatment to a patient with Covid-19 from a doctor or a nurse who is acting outside their usual speciality and in case of an injury in such cases, the question which arises is can we still apply Bolam’s test for breach of duty? Courts will need to assess ‘Covid-19’ specialists with a different approach since the Bolam test may no longer be applicable to Covid-19 related claims.

Healthcare providers around the world are facing hardships while treating the rising number of patient affected by Covid-19. In Italy, 20\\% of responding health-care workers were infected, and some have died. As the pandemic accelerates, access to personal protective equipment (PPE) for health workers is a key concern. Medical staffs are prioritised in many countries, but PPE shortages have been described in the most affected facilities. Some of the medical staffs are waiting for equipment while already seeing patients who may be infected or are supplied with equipment that might not meet requirements. Health-care systems globally could be operating at more than maximum capacity for many months. But health-care workers, unlike ventilators or wards, cannot be urgently manufactured or run at 100\\% occupancy for long periods. It is vital that governments see workers not simply as pawns to be deployed, but as human individuals. In the global response, the safety of health-care workers must be ensured.

Merely because a medical professional chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. We must also remember the times when the medical professionals need to be protected from complainant who misuse criminal process and pressurize medical professional and hospitals to extract compensation. It is on the judiciary to differentiate such malicious cases and provide a safety net for the medical professionals.

It is also difficult to predict the certainty the outcome of cases and Judges need to rely on the testimonies of other medical professionals. At the same time, if medical professionals get penalized for every error of judgement, they may not be able to serve the society and so the Judges need to analyse every case differently. The Supreme Court has rendered various landmark judgments with regards to informed consent, prima facie evidence and the guidelines for the criminal prosecution of doctors.

Judicial decisions use the Bolam’s test or analyse the higher duty of care which is to be given to the patients by medical professionals. There is also a need to raise awareness in rural areas where the patients get exploited due to their lack of awareness and fail to seek the required remedy.

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