4. General practices
4.1. Defenses For The Doctor
4.2. Contributing Negligence
4.3. Volenti Non Fit Injuria
4.4. Illegality
4.5. Doctrine of Calculated Risk
4.6. Error of Judgment.
4.7. Misadventure
4. General practices:
If a doctor conforms to the general practice an injury still occurs. He may not be liable, as he had taken reasonable care49. As it has been mentioned earlier, general practice is used to determine the degree of care in a given circumstances. Thus reasonableness is the standard and the general practice is the degree of care required
4.1. Defenses For The Doctor
The doctors can follow the following issues to save them form the liabilities of negligence .In Bangladesh, the doctors can be protected under section 82 of the Penal Code, 1860, but in such cases the burden of proof lies on the defendant i.e., the doctor. Section 103 of the Evidence Act, 1872, imposes an obligation on the part of a person who wants to proof a particular fact and section 105 of the same Act as provides that if anybody wants to get the benefit of the General Exceptions in the Penal Code, 1860 he has to proof that fact.50
The doctors can discontinue the treatment in some cases like when the patient wants to change the doctor; the patient is using medicines other than those prescribed by him, when the patient does not follow his instructions about diet/medicine, when another practitioner is also attending the patient.
This is not always possible that a medical practitioner will understand everything. Something the situation may require hi making consultation with specialists. One can consult with the specialists when the case is obscure and difficult and has taken a serious turn, when an operation or special treatment endangering the life is to be undertaken, when an operation affecting vitally the intellectual or generative functions is to be performed on a patient who has received serious injuries in criminal assault, when an operation of mutilating or destructive nature is to be performed, when a women on whom criminal abortion has already been performed, sought his advice for treatment ,in case of suspected poisoning especially homicidal ,when the equipment or facilities of a physician are inadequate, in an emergency.
4.2 Contributing Negligence:
Contributory negligence is defined as concurrent negligence by the patient and the doctor, which has caused delayed recovery or harm to the patient .In other words, it is any unreasonable conduct or negligence on the part of the patient, which is the cause of the harm, complained of, although the doctor was also negligent. Failure to give the doctor an accurate medical history, failure to cooperate with his doctor in carrying out all reasonable and proper instructions, refusal of taking the suggested treatment, leaving the hospital against the advice of the physician, failure to seek further medical assistance if symptoms persist can be the some examples of contributory negligence.
The question of contributory negligence arises, when the patient does not follow the instructions of the doctor and thereby causes further harm or injury to himself or delayed recovery. in such cases the patient loses his right in whole or in part to claim damages form the doctor. Contributory negligence is a good defiance for the doctor in civil cases but not in criminal cases. The burden of providing such negligence rests entirely on the doctor.
The doctrine of contributory negligence does not apply to criminal liability, that is, where the death of person is caused partly by the negligence of the accused and party by his own negligence. If the accused is charged with contributing to the death the deceased negligence by his negligence, it does not matter whether the deceased was deaf, or drunk or negligent, or in part contributed to his death51.
There is a Latin maxim “Nemo contra factum suum venire protest means “no one can come against his own deed. The plaintiff cannot shout compensation form the doctor if the doctor acts on the statement of the patient, and has no reason to disbelieve the same, he is to deemed to be negligent .In Satish Chandra Shukla vs. Union of India 1987,52 the appellant –plaintiff got himself operated upon for sterilization for getting money by falsely stating that he was married and had two female children. The father of the appellant pleaded that the appellant was of unsound mind and was not capable of consenting to the operation, and that the respondents should be liable for performing the vasectomy operation of a unmarried person. The court found that when the plaintiff went for the operation. There was nothing to indicate form his conduct or behavior that he was mentally ill, rather he showed proper understanding of the things. Under the circumstances, it was held that there was no negligence on the part of the medical authorities in performing the said operation, and they were, therefore, not liable for the same.
4.3 Volenti non fit injuria:
The doctrine “Volenti non fit injuria” is another defense a doctor can utilize to escape his liability. The doctrine says that if anyone does anything with free content52 where he has knowledge of the risk that may arise out of that act and suffers an injury. This is what the doctors take the signature of the patient or his guardian before performing an operation and escape liability.
4.4 Illegality
Another defense available for the doctor is based on the Latin maxim ex turpi causa non-oritur action. The defense tends to be raised where the parties are fellow criminals and the activity is dangerous as well as illegal, i.e., in case where elements of both consent and contributory negligence are also present. In such cases, the doctor is not bound to maintain professional secrecy.
4.5 Dodtrine of Calculated Risk:
Doctrine of calculated risk states that the doctrine res ipsa loquitur should not be applied when the injury complained is of a nature that may occur even though reasonable care has been employed. It is an important defense to any malpractice defandent, who can produce expert evidence or statistic demonstrating that the accepted method of treatment employed posed unavoidable risks.
An example, in UK, Termination of Pregnancies in UK are performed under the legal under umbrella of Abortion Act, 1967, as amended by the Human Fertilization and Embryology Act ,1990.In an operation of termination of pregnancies two doctors need to decide in good faith that one or more of the following five conditions apply and complete Form HSAI :the five conditions are
(a) The continuance of the pregnancy would involve risk to the life of the pregnant women greater than if the pregnancy were terminated.
(b) The termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman.
(c ) The pregnancy has not exceed its 24th week and the continuance of the pregnancy would involve risk ,greater than if the pregnancy were terminated of injury to the physical or mental health of the existing child(ren) of the family to the pregnant woman.
(d ) There is substantial risk that if the child were born it would suffer form such physical or mental abnormalities as to be seriously handicapped.
If a doctor abides by the above-mentioned conditions he can escape his liability. In Bangladesh also, the doctors can follow these conditions to save them form the liability even though we do not have such provision of law.
4.6 Error of Judgment:
Sometimes the decision taken by a doctor as regards the treatment of a patient appears to be wrong, even though he had taken due care by conducting the required tests .Such cases will be treated ,as mere error of judgment and the doctor would not be held liable for the injuries caused thereby. It would be important to note that an error of judgment to be excused in law must necessarily be an honest one.53 In Hoglin vs.Brown 482 p.2d 458,wash 1971., there were signs of fibroid tumor in a thirty-year-old woman’s uterus. Two pregnancy tests were also conducted but both prove negative. During a subsequent hysterectomy it was found that she was indeed pregnant due to which she miscarried and then sued. The physician was held was held not liable as the diagnosis was reasonable, and conducted with due care, even though incorrect due to an error of judgment .The pervasive element of human infallibility on the part of medical practitioners, and complexities and uncertainties of human body have created basis for excluding an error of judgment form the arena of medical negligence.
4.7 Misadventure:
Misadventure is sometimes described as the inevitable hazards of practices54. The Essential difference between an error of judgment and misadventure is that in the later the injury to the patient is caused by an unintentional or accidental act.55
In the words of the Lords Dening, “ We should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong… We must insist on due care of the patient at every point if time. But we must not condemn as negligence that which is only a misadventure56. The fact of the case was that a patient suffered paralysis due to the crack at anesthesia injection bottle through which other liquid has speed in. Such a crack in the injection bottle had, till now not being found in any other case and it was a hairline crack, which could not be detected by the naked eye.
49 .Rao Joga V.S.Dr. (1999)Op.cit p.11.
50 Jalal Din VS. crown,5DLR (WP)58.
52 1987 A.C.J.628.
52 Section 14 of the Contract Act, 1872 , says that consent is free when it is not caused by coercion, undue influence, fraud, misrepresentation, mistake.
53 Damayanti S.”What is Medical Negligence ?What are the Standard of Care Principles”op.cit.,p44
54 Mason J.K and Smith Mc Call R.A Law and Medical Ethics, ButterOrths, London (1991) p 212
55 Dr. Reddy Narayan KS The Essentials Of Forensic Medicine and Toxicology, op cit p31
56 Roc vs. Ministry of Health (1954) 2 All ER 131
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