Arjun Krishnamoorthy, Principal Associate, J Sagar Associates highlights the judgments made by Supreme Court of India on medical negligence and shares his views on the same
Recently, the Supreme Court of India (“Court”), in Bombay Hospital & Medical Research Centre v Asha Jaiswal and others, held that the mere unavailability of an operating theatre would not be deemed tantamount to negligence on the part of the concerned medical professionals or hospital. This judgment of the Court may be limited to the facts of the instant case, which I will not be discussing in detail.
Rather, my focus is the Court’s constant reference to the Bolam test. This test, laid down by McNair J in Bolam v Friern Hospital Management Committee in 1957, attempts to specify the appropriate standard of care expected from a medical professional. The judge, in his direction to the jury, had noted that the ‘man on the Clapham omnibus’ test could not be applied when determining whether a medical professional is guilty of negligence; rather, 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 skilled in that particular art. Medical negligence could not be proven even if one medical professional could be found who would adopt the same standard of care..
The Bolam test held sway for 40 years, until 1997, when Lord Browne-Wilkinson, in Bolitho v City and Hackney Health Authority, held that doctors could not be judges in their own case, and that only courts could be arbiters of reasonable care.
Around the same time, the Court declared that medical professionals in India could be held liable for deficiency in service under the Consumer Protection Act, 1986, if the consumer fora adopted the test laid down by the Court in 1969 in Laxman Balkrishna Joshi v Trimbak Bapu Godbole, namely, that a doctor is duty-bound to treat a patient with a reasonable degree of skill, care, and knowledge. Of course, the ‘reasonable care’ was to be in accordance with the Bolam test.
From 1996 up to November 30, 2021, when the judgment was passed in Bombay Hospital & Medical Research Centre, it is my belief that the Court seems to have regretted their aforementioned 1996 decision in VP Shantha. Furthermore, similar to the Court’s direction during the 1980s and 1990s (following their infamous decision of 1976 in ADM Jabalpur), the Court, from then on, attempted to minimize the fear that the said decision may have aroused among the medical fraternity.
Meanwhile, in England, and other common law jurisdictions, the decision in Bolitho seemed to herald a new dawn in medical negligence cases. Moving away from Bolam, the courts in England took a new approach when, in 2004, in Chester v Afshar, they adopted the ‘reasonable patient’ test, till, finally in 2015, the Supreme Court of England and Wales gave a death blow to the Bolam test in Montgomery v Lanarkshire Health Board.
Earlier, in 2005, in Jacob Mathew v State of Punjab, the Court continued to apply the Bolam test, averring that the simple lack of care or an error of judgment are not proof of negligence on the part of a medical professional.
The Court appeared to have a watershed moment in 2019 when, in Arun Kumar Manglik v Chirayu Health and Medicare Private Limited, it affirmed that the standard of care as enunciated in Bolam must evolve in consonance with its subsequent interpretation by English and Indian courts. One could make allowance if the leaning was towards the Court finally moving away from Bolam, especially as the English courts had four years previously ruled that Bolam was no longer good law.
The Court, however, appears to have opted for its dogged persistence of adopting the Bolam test; this is in sync with their observation in 2008 in Samira Kohli v Prabha Manchanda of giving due importance to the prevailing health, literacy, and poverty conditions in India, which justify that the doctor-centric approach continues to be adopted.
This is evident from the judgments in Vinod Jain v Santokba Durlabhji Memorial Hospital in 2019; Harish Kumar Khurana v. Joginder Singh in 2021; and, most recently, in Bombay Hospital & Medical Research Centre. The common thread through these judgments is the Court’s observation that medical negligence could not be concluded merely based on legal principles, and that therefore the Bolam test would continue to be the defining benchmark.
To conclude, Brazier and Miola wrote, in their seminal article in the Medical Law Review (“ Bye-Bye Bolam”, Spring 2000), about a possible medical litigation revolution after Bolitho. The Court, however, seems to prefer Lennon-McCartney and don’t know why one should say goodbye, instead of hello!. Rather than evolving in consonance with, the Court may be regressing when they continue to adopt the Bolam test. One may well ask whether another Puttuswamy (to the extent that finally ADM Jabalpur was declared bad law) is required for the Court to move away from its firm belief in the Bolam test; and whether India needs to rethink its stance on the continued adoption of the Bolam test.
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