Anaesthesiology and the law

Abstract

Introduction Services provided by Anaesthesiologists have been the subject matter of judicial review time and again. The Consumer Disputes Redressal Commissions/Forums have laid down decisively what is and what is not 'deficiency' in the services provided by an Anaesthesiologist.

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INDIAN JOURNAL OF ANAESTHESIA, FEBRUARY 2005
MEDICO LEGAL FORUM
20
Indian J. Anaesth. 2005; 49 (1) : 20-23
1.M.D., D.A. Medicolegal Consultant
Mumbai
Correspond to :
E-mail : drgnshenoy@yahoo.com
(Accepted for publication on 20-1-2005)
ANAESTHESIOLOGY AND THE LAW
Dr. Gayatri Gopinath Shenoy
Introduction
Services provided by Anaesthesiologists have been
the subject matter of judicial review time and again. The
Consumer Disputes Redressal Commissions/Forums have
laid down decisively what is and what is not ‘deficiency’
in the services provided by an Anaesthesiologist.
Section 2(1)(o) of the Consumer Protection Act 1986
defines the word service. ‘Service’ means service of any
description which is made available to potential users and
includes the provision of facilities in connection with
banking, financing, insurance, transport, processing, supply
of electrical or other energy, board or lodging or both,
housing construction, entertainment, amusement or purveying
of news or other information but does not include the
rendering of any service free of charge or under a contract
of personal service.1 The Supreme Court has held that the
services provided by the medical fraternity falls within the
ambit of the word ‘service’ as defined by Section 2(1)(o) of
the Consumer Protection Act 1986.2
The word ‘deficiency’ has been defined by Section
2(1)(g) of the Consumer Protection Act 1986. “Deficiency”
means any fault, imperfection, short coming or inadequacy
in the quality, nature and manner of performance, which is
required to be maintained by or under any law for the time
being in force or has been undertaken to be performed by
a person in pursuance of a contract or otherwise in relation
to any service.1 Thus, sub-standard services provided by an
Anaesthesiologist are actionable.
Negligence and rashness
Negligence and rashness on the part of an
Anaesthesiologist, whilst treating a patient, is considered
by the Courts as ‘deficiency in services’. Negligence is the
opposite of diligence. An act is said to be performed
negligently when it is performed without due diligence.
That is to say, that the standard of care exhibited whilst
performing the act was below par. When an act is undertaken
without the requisite care and caution, the act is labeled
as a ‘rash’ act. Negligence and rashness usually go hand-
in-hand and in general denotes carelessness.
In India, as in England, it is well settled that
medical malpractice cases are governed by the general
principles of the law of Torts. Before the enforcement of
the Consumer Protection Act, medical negligence was
inevitably governed by the law of Torts. Alderson B defined
negligence as: “Negligence is the omission to do something
which a reasonable man, guided upon those considerations
which regulate the conduct of human affairs would do, or
doing something which a prudent and reasonable man would
not do.”3 Salmond in his authoritative treatise on the Law
of Torts referred to this definition.4
Negligence has many manifestations - it may be
active negligence, collateral negligence, comparative
negligence, concurrent negligence, continued negligence,
criminal negligence, gross negligence, hazardous negligence,
active and passive negligence, willful or reckless negligence,
administrative negligence or negligence ‘per se’.6 It is also
observed that where a person is guilty of negligence per se,
no further proof is needed.7
An action for negligence proceeds upon the idea of
a ‘duty’ or an ‘obligation’ on the part of the Anaesthesiologist
to use the required care and caution. Breech of this duty
may result in an injury to a patient. There cannot, therefore,
be a liability for negligence unless there is a breach of
some duty. Hence, no case of actionable negligence will
arise unless the ‘duty to be careful’ exists. Negligence is
simply neglect of some care which the doctor is bound by
law to exercise towards his patients.
An Anaesthesiologist not accompanying a patient,
being transferred (for an anaesthesiology problem), from
the operation theatre to a tertiary care center amounts to
deficiency in services.6
Contributory negligence
Contributory negligence is negligence in not avoiding
the consequence arising from the negligence of the doctor,
when means and opportunity are afforded to do so. It is the
non-exercise by the patient of such ordinary care, diligence,
and skill so as to avoid the consequence of the doctor’s
negligence. Not informing an Anaesthesiologist of an existing
endocrinal disorder which can lead to problems during
induction, amounts to contributory negligence.
Duty of care and standard of care
An Anaesthesiologist cannot be sued for negligence
unless he has violated some ‘duty to take care’. The violation
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SHENOY : ANAESTHESIOLOGY AND LAW21
of this duty must inflict some damage to the person to
whom this duty is owed.
An Anaesthesiologist has to evince reasonable degree
of skill and knowledge and must exercise a reasonable
degree of care while practicing his profession. He cannot
be expected to apply the ideal or the highest degree of skill
and care while handling a case.7
The duty of an Anaesthesiologist is based on the fact
that he is handling a human being and is likely to cause
physical damage unless proper care and skill is applied. An
Anaesthesiologist who induces a case is presumably giving
an undertaking that he possesses the required skill and
knowledge for that purpose. He is duty bound in two respects
viz., he owes a primary duty of care in deciding whether
he should undertake the case and after having undertaken
the case the next duty is cast on him, the duty of care in
the administration of the treatment wherein he should use
diligence, care, knowledge and caution. His failure to
perform either of the above two duties, if proved, will offer
reasonable and valid ground to fasten negligence on him.8
He need not be expected to possess the highest or a very
high standard nor should he have a very low standard.9 Law
requires fair and reasonable standard of care and competence.
Every Anaesthesiologist who enters into the medical
profession thus has a duty to act with a reasonable degree
of care and skill.
An Anaesthesiologist need not possess the highest
expert skill at the risk of being found negligent. It is well
established law that it is sufficient if he exercises ordinary
skill of an ordinary Anaesthesiologist exercising that
particular art.10 An Anaesthesiologist who professes to have
some special skill (cardiac anaesthesia, paediatric
anaesthesia, pain relief by nerve blocks) is judged not by
the standards of an ordinary Anaesthesiologist but by much
higher standards. The test here will be the standard of a
skilled Anaesthesiologist exercising and professing to have
that special skill.
The prudent man is the man who has acquired the
skill to do the act which he undertakes. If a man has not
acquired the skill to do a particular act he undertakes,
then he is imprudent, however careful he may be, and
however great may his skill be in other things. The degree
of care which an Anaesthesiologist is required to use in a
particular situation varies with the obviousness of the risk.
If the danger of injuring a person by the pursuance of a
certain line of treatment is great, great care is necessary.
If the danger is slight, only a slight amount of care is
required. Thus, Anaesthesiologist must not act in such a
way as to cause injury to his patients. The care that will
be required of him will be the care that an ordinary
prudent Anaesthesiologist is bound to exercise. But,
Anaesthesiologists who profess to have special skills, or
who have voluntarily undertaken a higher degree of duty,
are bound to exercise more care than an ordinary prudent
Anaesthesiologist.
The court will not expect an Anaesthesiologist
working in extreme conditions to achieve the same results
as his colleague operating within the confines of a hospital
and will not judge his conduct too harshly simply because,
with hindsight, a different course would have been adopted
had the situation not been an emergency. In case of
emergency, the Anaesthesiologist conducting a case has
wider discretion about the treatment. Where the
operation is a race against time, the court will make greater
allowance for mistakes on the part of the Anaesthesiologist
or his assistants taking into consideration the ‘Risk Benefit
Test’
Accepted practices and procedures
An Anaesthesiologist 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. Accepted practice means practice
accepted as proper by the Anaesthesiologist’s peers. If the
Anaesthesiologist has complied with this practice then that
is strong evidence that he is not negligent, if he does not
then it is likely he will be negligent.8 Not taking consent
for per rectal insertion of diclofenic suppositories is
considered as deficiency in services.11
Deviation from accepted practices
An Anaesthesiologist may be held liable in
negligence when he departs from accepted practices.
Departure from approved practices is in itself not
negligence. If an Anaesthesiologist departs from the
approved practice, and he is able to justify his actions
he will not be negligent, but if he cannot justify his departure
from the accepted practice, the patient should have little
difficulty in establishing negligence.12 The negligent
performance of an approved practice will also constitute a
departure.
Accidents; misadventures; mishaps
Courts have held that it would be wrong, and indeed
bad law, to say that simply because a misadventure or
mishap occurred, the hospital and the doctors are thereby
liable. It would be disastrous to the community if it were
so.13
An Anaesthesiologist is not an insurer; he does not
warrant that his treatment will succeed or that he will
perform a cure.

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INDIAN JOURNAL OF ANAESTHESIA, FEBRUARY 2005 22
Naturally he will not be liable if, a treatment which
in ordinary circumstances would be sound, has unforeseen
results. The standard of care which the law requires is not
insurance against accident slips. It is not every slip or
mistake that imports negligence. Law recognizes the
dangers, which are inherent in induction and maintenance
of anaesthesia. Mistakes will occur on occasions despite
the exercise of reasonable skill and care.14
Error of judgment
An error of judgment does not of itself amount to
negligence.15 Law allows errors of judgment which do not
by themselves amount to negligence. The House of Lords
in England held that some errors of judgment may be
negligence and some may not. The error of judgment
committed by an Anaesthesiologist may or may not be
indicative of negligence, but the proper test to be applied
is whether he abided by the standards laid down by his
peers (Bolam’s Test).
The courts have held “No human being is infallible
and in the present state of science even the most eminent
specialist may be at fault in detecting the true nature of the
diseased condition. A practitioner can only be liable in this
respect if his diagnosis is so palpably wrong as to prove
negligence, that is to say, if his mistake is of such a nature
as to imply absence of reasonable skill and care on his
part, regard being had to the ordinary level of skill in the
practitioner.”16
With regard to junior Anaesthesiologist inexperience
is no defense. He must meet the standard of care expected
of his rank and status.11
Inherent risks of treatment
Every anaesthesiological procedure has its own risk
factors. Just because one of these factors becomes manifest
does not mean that the Anaesthesiologist is negligent and
his services defective. He can be held negligent only when
the standard of care exhibited by him falls below the standards
expected of a reasonable prudent Anaesthesiologist practicing
under the circumstances he is placed in.13
Choice of treatment – discretion
Many anaesthesiological problems can be managed
or treated in more than one ways. Anaesthesiologists have
the discretion to choose the line of treatment they wish to
adopt and can be faulted for the same only if their choice
is ‘palpably wrong’ and or dangerous to the patient.
When there are two genuinely responsible schools of thought
about the management of a clinical situation, the Courts
could do no greater disservice to the community or the
advancement of medical science than to place the hall-
mark of legality upon one form of treatment.17 An
Anaesthesiologist is not liable for taking one choice out of
two or for favouring one school rather than another.18 He
is only liable when he falls below the standard of a
reasonably competent practitioner in his field. In the realm
of diagnosis and treatment there is ample scope of genuine
difference of opinion and one Anaesthesiologist clearly is
not negligent merely because his conclusion differs from
that of other professional men, nor because he has displayed
less skill or knowledge than others would have shown. If an
Anaesthesiologist has followed a course of treatment or
procedures accepted by and followed by a responsible
section of the profession, he would not be guilty of
negligence even if another section of the profession does
not subscribe to that practice and follow a different
course.19 An Anaesthesiologist has discretion in choosing
the treatment which he proposes to give to the patient and
such discretion is wider in cases of emergency, but he must
bring to his task a reasonable degree of skill and knowledge
and must exercise a reasonable degree of care according to
the circumstances of each case.20
Guarantee and warranty
Law does not expect Anaesthesiologists to guarantee
the end results of their services. In any treatment, it is
never claimed by the Anaesthesiologists that every person
who receives the treatment must and should be benefited by
the same. This is because the benefit of a particular type
of therapy or anaesthesia or a nerve block depends upon a
number of factors which are beyond the control of the
Anaesthesiologist.
One type of treatment may not be suitable to one but
may be ideal to another. A patient may respond to one
medicine, another may not respond to the same. Merely
because the patient was not relieved from the pain, one
cannot jump to the conclusion that the therapy is bad or
that the Anaesthesiologist has not given proper treatment.
If everyone has to be benefited by medicine sciences, then
nobody will die of disease.
Vicarious liability
Liability which is incurred for, or instead of, another
can be defined as vicarious liability. Every person is
responsible for his own acts or omissions but there are
circumstances where for the acts committed by a person,
the liability comes to lie, not on that person, but on someone
else. A master is liable for the acts or omissions of his
servant and the principal is accountable for the acts of his

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SHENOY : ANAESTHESIOLOGY AND LAW 23
agent. The hospital authorities are responsible for the whole
of their staff, not only for the nurses and the doctors but
also for the anaesthetist and the surgeons. It does not matter
whether they are permanent or temporary, resident or
visiting, whole-time or part-time. The hospital authority is
responsible for all of them. The reason is because even if
they are not servants, they are the agents of the hospital to
give the treatment. The only exception is the case of
consultants and anaesthetists selected and employed by the
patient himself.21
Deficiencies in statutory requirements
To practice medicine without proper registration with
the State Medical Council or the Medical Council of India
would violate express provisions of law.22 So also employing
staff that is unqualified will violate the provisions of the
Indian Medical Council (Professional conduct, Etiquette and
Ethics) Regulations, 2002. Institutions where surgeries are
performed under anaesthesia must also be registered with
the Appropriate Authority under the laws for the time being
in force. Ratios of judge-made laws or ‘precedents’ are
also applicable and binding on Anaesthesiologists and
violation of the same also constitutes and offence that is
actionable.
Lord Justice Denning explained the law on the subject
of negligence against doctors and hospitals in the following
words: “Before I consider the individual facts, I ought to
explain to you the law on this matter of negligence against
doctors and hospitals. Mr. Marvan Evertt sought to liken
the case against a hospital to a motor car accident or to
an accident in a factory. That is the wrong approach. In the
case of accident on the road, there ought not to be any
accident if everyone used proper care; and the same applies
in a factory; but in a hospital when a person who is ill goes
in for treatment, there is always some risk, no matter what
care is used. Every surgical operation involves risks. It
would be wrong, and indeed bad law, to say that simply
because a misadventure or mishap occurred, the hospital
and the doctors are thereby liable. It would be disastrous
to the community if it were so. It would mean that a doctor
examining a patient or a surgeon operating at a table instead
of getting on with his work, would be for ever looking over
shoulder to see if someone was coming up with a dagger;
for an action for negligence against a doctor is for him like
unto a dagger. His professional reputation is as dear to him
as his body, perhaps more so, and an action for negligence
can wound his reputation as severely as a dagger can his
body. You must not, therefore, find him negligent simply
because something happens to go wrong; if, for instance,
one of the risk inherent in an operation actually takes place
or some complication ensues which lessens or takes away
the benefits that were hoped for, or if in a matter of
opinion he makes an error of judgment. You should only
find him guilty of negligence when he falls short of the
standard of a reasonably skilful medical man”.13
References
1. Consumer Protection Act 1986
2. Indian Medical Council (Professional conduct, Etiquette and
Ethics) Regulations, 2002.
3. Blyth v Birmingham Co. (1856) 11 Exch 781 784.
4. Salmond, Law of Torts.
5. Poonam Verma v Ashwin Patel and Ors. Supreme Court Civil
Appeal No. 8856 of 1994. Decided on 10th May, 1996.
6. Mr. Sakil Mohammed Vakil Khan Complainant versus
Dr. Miss Perin Irani and others Opp. Parties 1999 (2) CPR
515 State Consumer Disputes Redressal Commission,
Maharashtra: Bombay
7. Complaint No. 219 of 1995 Decided on 1-2-1999
8. Rex v Bateman (1925) 94 LKJ p. 791.
9. A. S. Mittal v State of U.P. AIR 1989 SC 1570.
10. Bolam v Friern Hospital Management Committee (1957) 2
All ER 118.
11. Gopinath Shenoy, Gayatri G. Shenoy. Anaesthesiology and the
Law of Medical Negligence Dr. Gopinath Shenoy and Dr.
Gayatri G. Shenoy Ritanjan Publications 2002.
12. Hepworth v Kerr (1995) 6 Med LR 139.
13. Hatcher v Black (1954) Times, 2nd July.
14. Nathan, P C and Barrowclough, A R. Medical Negligence
(1957).
15. Whitehouse v Jordan (1981) 1 WLR 246.
16. Mitchel v Dicksen 1954 APPD 519.
17. Moore v Lewisham Group Hospital Management Committee
(1959) Times 5, February.
18. Hucks v Cole and Anr. (1968) 118 NLJ 469.
19. A. S. Mittal v State of U.P. AIR 1989 SC 1570.
20. Laxman B. Joshi v Trimbak Bapu Godbole and Anr. 1969 (1)
SCR 206.
21. Roe v Minister of Health and Anr. Court of Appeal. (1954)
2 QB 66.
22. Indian Medical Council (Professional conduct, Etiquette and
Ethics) Regulations, 2002.