Law of Torts
Medical Negligence: The Duty, the Standard, Bolam and Bolitho, and the Line Between Civil and Criminal Liability
A doctor is judged by the standard of the ordinary competent practitioner professing to have that skill, and not by that of the most eminent member of the profession. The Bolam test protects a practitioner who acted in accordance with a practice accepted as proper by a responsible body of medical opinion, even where others would have taken a different view, and Bolitho adds that the body of opinion must itself withstand logical analysis. India applies both. Jacob Mathew v. State of Punjab adopts Bolam, holds that criminal liability requires gross negligence, and lays down procedural safeguards before a doctor is prosecuted at all.
The three duties, Bolam and Bolitho, the Indian position, and what is not negligence
1. The Duty of Care
- It arises from the undertaking to treat. Once a doctor accepts a patient, whether for reward or gratuitously, he owes a duty of care.
- There is ordinarily no duty to accept a patient, subject to the obligations imposed by professional regulation and, in an emergency, by the courts' insistence that a person in need of immediate care must not be turned away.
- The duty is owed to the patient personally, and in a proper case to those closely affected, as Spring Meadows holds of the parents of an injured child.
- It is a duty of care and not a warranty of cure. A doctor does not guarantee a successful outcome, and a bad result does not establish a breach.
- It continues through the episode of care, including follow up, and ends only when the relationship ends or the patient is properly referred elsewhere.
2. The Three Duties, and a Fourth
1. A duty of care in deciding whether to undertake the case. A practitioner who lacks the competence or the facilities to deal with a condition should decline and refer, and a failure to recognise the limits of his own competence is itself a breach.
2. A duty of care in deciding what treatment to give. The choice must be one that a responsible body of opinion would support, on the material available at the time.
3. A duty of care in the administration of that treatment. This is where the great majority of claims arise, and where res ipsa loquitur is most often invoked.
4. And a fourth, which the modern law has added: a duty to warn of the material risks of the proposed treatment, so that the patient's consent is informed. A failure to warn founds a claim in negligence even where the treatment itself was faultlessly performed.
5. The formulation of the first three comes from the older English authorities and has been adopted in India, notably in Jacob Mathew.
3. The Bolam Test
📖 Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582 Facts The plaintiff, a voluntary patient at a mental hospital, was advised to undergo electro convulsive therapy. He was not given any relaxant drug, and no manual restraint was applied beyond support of his chin and shoulders. He sustained dislocation of both hip joints and fractures of the pelvis. Medical opinion was genuinely divided both on the use of relaxants, which carried risks of their own, and on the desirability of restraint. Held The hospital was not negligent. Ratio McNair J directed the jury that 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. He is not negligent merely because there is a body of opinion that would take a contrary view. Where there are two or more accepted schools of thought, following one of them is not negligence. |
4. The Bolitho Qualification
📖 Bolitho v. City and Hackney Health Authority [1998] AC 232 Facts A two year old child in hospital suffered episodes of acute respiratory difficulty. The doctor was summoned and negligently failed to attend. The child later suffered cardiac arrest and catastrophic brain damage. The doctor gave evidence that even had she attended she would not have intubated, and a body of professional opinion supported that decision. Held The claim failed on causation, but the House of Lords qualified Bolam in terms that have since been treated as the settled position. Ratio The court is not bound to hold a defendant not negligent simply because a body of professional opinion supports his conduct. That body of opinion must itself be capable of withstanding logical analysis, and must demonstrate that its exponents had directed their minds to the comparative risks and benefits and had reached a defensible conclusion. In a rare case a court may conclude that a professional practice is not reasonable or responsible. |
5. The Indian Position
📖 Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 Facts A patient admitted to a hospital had difficulty in breathing. The doctors attended and an oxygen cylinder was connected, which was found to be empty. The patient died. The doctors were prosecuted for causing death by a rash or negligent act. Held The prosecution was not sustainable on the material available, and was quashed. Ratio The Bolam test applies in India. For criminal liability the negligence must be gross, or of a very high degree: the accused must have done something which, in the given facts and circumstances, no medical professional in his ordinary senses and prudence would have done or failed to do. The Court also laid down safeguards: a private complaint should not be entertained unless supported by a credible opinion from another competent doctor; the investigating officer should obtain an independent and competent medical opinion, preferably from a doctor in government service; and a doctor should not be arrested routinely unless it is necessary for furthering the investigation or for collecting evidence. |
- Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480 restated the principles governing medical negligence, and warned that a standard so exacting as to encourage defensive medicine would harm patients rather than protect them.
- Indian Medical Association v. V.P. Shantha, (1995) 6 SCC 651 brought medical services within the consumer legislation, which is dealt with in TORT 042.
6. Civil and Criminal Medical Negligence
Civil | Criminal | |
The degree required | A falling short of the standard of the ordinary competent practitioner | Gross negligence, of a very high degree |
The standard of proof | The balance of probabilities | Beyond reasonable doubt |
Who initiates it | The patient, or in a fatal case his representatives | The State, on complaint or otherwise |
The object | Compensation | Punishment |
The forum | A civil court, or a consumer commission | A criminal court |
The provision | The general law of torts, with the consumer legislation | Section 106 of the Bharatiya Nyaya Sanhita, 2023, carrying forward Section 304A of the Penal Code |
Procedural safeguards | None specific | Those laid down in Jacob Mathew |
Whether both may arise | Yes, on the same facts, and the proceedings are independent |
7. What Is Not Negligence
- An error of judgment, on a question on which competent practitioners might reasonably differ. Not every error is negligent; the question is whether it was one no reasonably competent practitioner would have made.
- A difference of medical opinion. Where two schools of thought exist, following either is not negligence.
- A bad outcome where the treatment was properly chosen and properly given. Medicine does not guarantee results, and the occurrence of a known complication proves nothing.
- Taking a course that turns out badly, where the risks and benefits were weighed and a defensible conclusion reached.
- A failure to achieve the result the patient hoped for, absent any express assurance amounting to a warranty.
- And the courts are explicit that a higher standard would be counterproductive, because a profession practising defensively orders unnecessary tests, refuses difficult cases, and serves patients worse.
8. The Position Stated Shortly
1. A doctor owes a duty of care once he undertakes to treat, and it is a duty of care and not a warranty of cure.
2. The three duties are in deciding whether to undertake the case, in deciding what treatment to give, and in administering it.
3. The modern law adds a fourth, to warn of material risks so that consent is informed.
4. The standard is that of the ordinary competent practitioner professing to have that skill, and not that of the most eminent.
5. Bolam: a doctor is not negligent if he acted in accordance with a practice accepted as proper by a responsible body of medical opinion.
6. Bolitho: that body of opinion must withstand logical analysis, and the court retains the final decision.
7. Jacob Mathew applies Bolam in India, requires gross negligence for criminal liability, and lays down safeguards before a doctor is prosecuted.
8. Criminal negligence requires proof beyond reasonable doubt that no medical professional in his ordinary senses and prudence would have done or omitted what the accused did.
9. Kusum Sharma restates the principles and warns against a standard that would encourage defensive medicine.
10. An error of judgment, a difference of medical opinion, and a bad outcome after properly chosen and administered treatment are none of them negligence.