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Above: NCRDC building in New Delhi/Photo: Anil Shakya

In a case where a couple lost their baby girl after she was given wrong injection, the National Consumer Disputes Redressal Commission holds that a doctor is “vicariously liable” for the team that assists him

 By Dr. KK Aggarwal

A doctor is vicariously liable for the negligence committed by members of his team which was assisting in the treatment, the National Consumer Disputes Redressal Commission (NCDRC) held recently while dismissing an appeal. This decision is in tune with the Medical Council of India’s ethics regulation which says, “In the case of running of a nursing home by a physician and employing assistants to help him/her, the ultimate responsibility rests on the physician.”

Also by virtue of the doctrine of vicarious liability, an employer is liable for an employee’s negligent actions if they were committed in the course or scope of the employee’s employment or are closely connected with what the employee is authorised by the employer to do. Also the liability can be respondeat superior, which means “let the master answer.” When respondeat superior applies, an employer will be liable for an employee’s negligent actions or omissions that occur during the course and scope of the employee’s employment. This means that the employee must be performing duties for the employer at the time of the negligence for the employer to be held liable under respondeat superior. So if in a doctor’s team, the junior is doing the work of senior, then it is assumed that the senior is doing that work.

The NCDRC verdict came in a case regarding the death of a three year old child named Arshiyai in 2004, while undergoing treatment for cancer at Mohan Dai Owal Cancer Treatment and Research Foundation Hospital, Ludhiana, under the supervision of Dr Raman Arora.

Referring to the SC decision in Smt. Savita Garg Vs. Director, National Heart (2004) 8 SCC 56, the NCDRC held that the onus is on the hospital and the doctor to explain the exact line of treatment rendered which resulted in the incident. In the instant case, there is no explanation forthcoming as to why the patient, who had substantially improved after three cycles that Chemotherapy had shown complete deterioration after 05.07.2004, the NCDRC said.

It further said : “Having regard to what the Supreme Court has laid down about ‘ Duty of Care’ to be followed by medical professionals, viewed from any angle it cannot be construed that ‘ Duty of Care’ of the treating Doctor/ head of the department, who is, in this case, has written the ‘Protocol’, ‘ Ends’ with giving the Prescription. At the cost of repetition, we are of the considered view that the Doctor is vicariously liable for the acts of his team which assists him in every sphere in rendering treatment to the Patient,” the Commission added.

Based on the decision of Supreme Court in Achutrao Haribhau Khodwa vs. State of Maharashtra & Ors., 1996 (2) SCC 634, the Hospital was also held vicariously liable for the acts of the Doctors.

The judgment also said that the state government is vicariously liable for negligence of its employees “Even if it be assumed that it is the second operation performed by Dr. Divan which led to the peritonitis, as has been deposed to by Dr. Purandare, the fact still remains that but for the leaving of the mop inside the peritonial cavity, it would not have been necessary to have the second operation. Assuming even that the second operation was done negligently or that there was lack of adequate care after the operation which led to peritonitis, the fact remains that Dr. Divan was an employee of respondent no.1 and the State must be held to be variously liable for the negligent acts of its employees working in the said hospital.”, it said. Once death by negligence in the hospital is established, as in the case here, the State would be liable to pay the damages. In our opinion, therefore, the High Court clearly fell in error in reversing the judgment of the trial court and in dismissing the appellants’ suit.”

However negligence as a Crime is not covered and has to be dealt with person in fault. Negligence under tort is determined on the extent of the loss caused whereas negligence under criminal law is dependent on the degree or amount of negligence. Courts have repeatedly held that the burden of proving criminal negligence rests heavily on the person claiming it. Criminal law requires a guilty mind. If there is a guilty mind, a practitioner will be liable in any case.

But if, under the criminal law, rashness and recklessness amount to crime, then also a very high degree of rashness would be required to prove charges of criminal negligence against a medical practitioner. The element of criminality is introduced not only by a guilty mind, but by the practitioner having run the risk of doing something with recklessness and indifference to the consequences. This negligence or rashness or must be ‘gross’ in nature.

In the Jacob Mathew case the apex court has said: “In the case, the patient, a young man with no history of any heart ailment, was subjected to an operation performed by Dr. Suresh Gupta for nasal deformity. The operation was neither complicated nor serious. The patient died. On investigation, the cause of death was found to be “not introducing a cuffed endotracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage”. The Bench formed an opinion that this act attributed to the doctor, even if accepted to be true, could be described as an act of negligence as there was lack of due care and precaution. But, the Court categorically held “for this act of negligence he may be liable in tort, his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable”.

“In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences.”

Lord Atkin in his speech in Andrews v. Director of Public Prosecutions, [1937] A.C. 576, stated, “Simple lack of care such as will constitute civil liability is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established.” Lord Porter said in his speech in the same case “A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability.”.

Apart from criminal negligence vicarious liability also will not be held if it can be proven that the assistant in question has not followed the instructions correctly or did any action wilfully and wrongfully and disobeyed the orders.

The writer is President, Heart Care Foundation of India, and President-elect, Confederation of Medical Associations of Asia and Oceania

 

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