This is the single most important thing to understand before spending years on a claim. Medicine is not a guarantee, and the law does not treat an unsuccessful outcome as proof of fault.
The three elements
- Duty of care. Usually easy, since it arises from the doctor-patient relationship.
- Breach of the standard of care. The standard is that of an ordinary, reasonably competent practitioner exercising ordinary skill in that field. It is not the standard of the most eminent specialist available.
- Causation and damage. The breach must have caused the injury. This is where most claims fail, because the patient was often already seriously ill.
The governing authorities
Bolam v. Friern Hospital, adopted in India, holds that a doctor is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical opinion, even if others would have acted differently. Jacob Mathew v. State of Punjab (2005) applied this and added an important protection: for criminal liability, the negligence must be of a very high degree, gross or reckless, and a private complaint against a doctor should not be entertained without a credible opinion from another competent doctor.
Courts repeatedly distinguish between an error of judgement made in good faith while exercising reasonable skill, and a failure to exercise reasonable skill at all. Where two respectable schools of medical opinion exist, choosing one of them is not negligence. Deviating from both, without explanation, may be.
Where claims do succeed
- Retained instruments or swabs after surgery, and wrong-site or wrong-patient procedures. These attract res ipsa loquitur, the thing speaks for itself, shifting the burden to the hospital
- Operating without informed consent, or performing a procedure materially different from the one consented to
- Failure to investigate or refer where the symptoms plainly required it
- Administering a drug the records show the patient was known to be allergic to
- Vicarious liability of the hospital for its staff, and for failures of equipment, infection control and staffing
What you will need
The complete medical records, and an expert medical opinion from a practitioner in the same speciality saying what the standard required and how it was breached. Without that opinion, a claim is very difficult, and obtaining it should be the first step rather than the last.