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.
Please click here to read the full article by Arjun Krishnamoorthy, published in Mondaq.
Arjun is part of the Life Sciences, Healthcare and Pharma practice, with a focus on commercial contract advising (including service agreements, franchising agreements, and employment and consultancy contracts), M&A, regulatory compliances, data protection, and real estate matters.