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Science & Practice Saturday & Sunday, 13–14 September 2014 S everal definitions for med- ical negligence exist. Baron Anderson defined “negli- gence” in the course of the famous caseofBlythv.BirminghamWater- works Company (1856) as “The omission to do something which a reasonable man, guided upon those considerations which ordi- narily regulate the conduct of hu- man affairs, would do, or doing something which a prudent and reasonable man would not do. The defendants might have been li- able for negligence, if, uninten- tionally, they omitted to do that which a reasonable person would have done, or did that which a per- son taking reasonable precau- tions would not have done.”1 The operative word in the defini- tion is “reasonable”. This sets the benchmark in determining “stan- dardofcare”,thebreachofwhichis thequintessenceofnegligence.We therefore understand that, for an act to be considered negligent, a doctor, who owed a certain stan- dard of care, must have not main- tained that standard or there must have been an injury resulting from the lack of care. (The injury should be compensable.) There should also be a connection (proximity) between the negligent act and the resultant injury. In fact, for an act to be consid- ered a medical negligence, it must fulfil all four criteria mentioned above. In understanding negli- gence, one must also grapple with the exceptions to negligence. A re- view of decided cases shows that some of the situations mentioned below do not fall under medical negligence. For example, absence of informed consent in an emer- gency or patient dissatisfaction with progress of treatment or even charging excessively are not con- sidered negligence.2 A professional standard of care is generally that standard of care or skill that is determined by a body of professionals on behalf of the med- ical profession. It does not have to be of the highest level though. It is here that the term “reasonable care” is exercised. The test of the standard has traditionally been the Bolam test,3 which is used to deter- mine scientific validity and accom- modates two or more deferring opinions in the treatment of a par- ticular condition. In this context, one must also deal with two important aspects of treatment or care, customary prac- tice and accepted practice. Cus- tomary practice may be a common practice. However, if it is not vali- dated by science, it is not recog- nised in law. Accepted practice is generally an evidence-based prac- tice and is accepted in law. For ex- ample, many people do not use rubber dams during root canal treatment. It may be a customary practice, but it is wrong. Using rub- ber dams is, however, an accepted practice even if it is not applied uni- versally. In the event of accidental ingestionofaninstrument,onlythe accepted practice will prevail. Contributory negligence is a mitigating clause in liability for negligence. If the patient has con- tributed to an undesirable out- come, the defendant doctor can claim exemption from negligence, for example, if a patient has not taken a prescription as instructed. LIABILITY FOR NEGLIGENCE A doctor, dentist or hospital charged with negligence can be li- able under three broad areas. The liability of a doctor arises not when the patient has suffered any injury, but when the injury has resulted owing to the conduct of the doctor, which has fallen below that of rea- sonable care. In other words, the doctor is not liable for every injury suffered by a patient. He or she is li- able for only those that are a conse- quence of a breach of his or her duty.4 The liability may be civil (torts), criminal or statutory. In India, there is yet another lia- bility as a result of medical services being brought within the ambit of the Consumer Protection Act (1986). This was the result of a pro- longed legal battle in IMA v. VP Shantha (1995),5 which finally de- cided that medical service was clearly within the definition of serv- ice envisaged under the Consumer Protection Act, which is a quasi-ju- dicial legal premise to render swift justice in the event of a deficiency ofservice.Itgenerallycomesunder civil or tort liability. If charged with civil liability, the defendant is made to compensate the complainant with liquidated damages, which may be simple or exemplary as decided by the judge (or juries in many parts of the world). Some instances of negligence may invite punitive actions under criminal law and may include im- prisonment, fines or both. How- ever, in India, there are decided cases, as in Jacob Mathew v. State of Punjab [2005],6 in which strict guidelines have been laid down for criminal action against doctors. They cannot be arrested for death or disability caused during treat- ment unless a medical board deter- mines that the negligent act was in- deed criminal in nature. The rele- vant sections in the Indian Penal Code are Sections 337, 338 and 304A (a rash and negligent act causing simple injury, grievous in- jury or death, respectively).7 Like several other countries, In- dia has statutory bodies in the form of its medical council and dental council, which can institute en- quiries into negligent acts by med- ical or dental persons who are reg- istered under these bodies. They canprescribepunitiveaction,rang- ing from removing the doctor’s name from the register to imposing retraining before being permitted to return to practice. It is important for doctors and dentists to be aware of medical negligence so that they can take adequate care to prevent unnecessary litigation. Notmeetingstandardsofcare MedicalanddentalnegligenceinIndiadiscussed.ByDrGeorgePaul 8 www.fdiworldental.org Annual World Dental Congress 22 - 25 September 2015 - Bangkok Thailand FDI 2015BANGKOK www.fdi2015bangkok.org www.fdiworldental.org AD Dr George Paul maintains a private practice limited to oral and maxillo- facial surgery inTamilnadu in India. On Saturday afternoon, he will be presenting a workshop on the medico-legal aspects of dentistry as part of the FDI 2014 scientific programme. A complete list of ref- erences is available from the pub- lisher.the line. “Acceptedpracticeisgenerallyan evidence-basedpractice...” ©Andresr/Shutterstock.com