"Don't practice until you get it right. Practice until you can't get it wrong."

Accepted Practice: A Defense, Not an Alibi

In most medical negligence complaints in India, the defendant doctor gets away with little more than an affidavit asserting "I did as per accepted medical practice." No expert evidence is required to back that up. The interpretation of law regarding accepted medical practice is favorable to the medical professional and relatively weak in protecting patients who have been carelessly injured in the course of treatment or diagnosis.

This is not the fault of the Bolam Test itself. It is the reluctance of the courts to set a truly objective standard of care, settling instead for a bare plea of "standard" or "accepted" or "widespread" medical practice — a plea that survives widely because it is profitable to the medical profession to keep it alive. Intelligent and creative people are always finding new ways to do wrong, and negligence cannot be excused on the ground that others practice the same kind of negligence.

Key Takeaways

• An affidavit asserting "accepted medical practice" is often enough to end a case in India — with no expert evidence required to support it.
• Since last two decades, procedures like caesarean, hysterectomy, angiography, stenting, and laparoscopic surgery have risen 15–20% a year — a rate explainable only by unindicated, unnecessary procedures performed for money.
• The UK itself corrected course: Bolitho (1997) demanded that expert opinion survive logical scrutiny; Montgomery (2015) replaced "doctor knows best" with genuine patient autonomy.
• The defense of accepted practice should survive three separate tests: was it chosen for the patient's benefit, was informed consent genuinely taken, and can the doctor explain why it failed.
• Accepted practice is relevant to the standard of care. It should never be treated as conclusive.

A Steep Rise That Cannot Be Coincidental

Since the last two decades there has been a sharp and steep rise in certain procedures or operations — caesarean, hysterectomy, angiography, stenting, laparoscopic surgeries, and the like. According to authentic reports, the rise is around 15 to 20% a year.

That can be explained only by saying that these procedures were unindicated and unnecessary, and performed for greed of money. Mostly they were carried out under the Rashtriya Swasthya Bima Yojana and other government healthcare schemes, or under Mediclaim insurance. The medical profession has made unnecessary procedures and operations widespread — changing medical norms and parameters, and dressing them up as "accepted practice," which is costly also.

Therefore, the courts should first determine whether the practice the defendant claims is accepted was really indicated in this particular patient — or not.

The Bolam Trap and How the UK Escaped It

"Get your facts first, then you can distort them as you please." — Mark Twain

Our courts follow the old Bolam Test: if the doctor has treated the patient according to one of the accepted medical practices, he cannot be held negligent. Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118 laid down that a doctor is not negligent if his conduct is in line with a practice accepted as proper by a responsible body of medical opinion — even if another responsible body disagrees.

The UK itself corrected course twice since:

• Bolitho (1997) 4 All ER 771 — 'Accepted practice' must be rightly so accepted; expert opinion must survive logical scrutiny, not merely exist.
• Montgomery [2015] UKSC 11 — replaced "doctor knows best" with genuine patient autonomy in matters of consent.

India has not caught up with either correction. The defense of using an accepted practice must be scrutinized from several angles before it is allowed to succeed.

Three Tests the Defense Should Have to Pass

1. Why this practice, and for whose benefit?

Accepted medical practice does not mean the doctor can go for any of them by tossing a coin — tails for method "A," heads for method "B."

There are many accepted ways to travel from Mumbai to Goa — by air, by rail, by road, by sea, or even on foot. The travel agent has to advise the customer of the route after considering time, budget, and availability. He should explain each of them. He cannot suggest any of them as per his wish, or based on the size of his commission.

In simple words, the treatment suggested must be in the real interest of the patient and his family. That is exactly why a treatment advised to a wealthy man should not be advised blindly to his driver also.

2. Was informed consent genuinely taken?

The doctor has to take the 'informed consent' of the patient before inducing the proposed treatment or performing an invasive procedure or operation. That means the doctor must:

• Inform the patient about all the accepted practices available.
• Disclose the benefits and risks involved in each of them.
• Explain the cost of the whole treatment — lifelong medicine, radiation and chemotherapy, changing of implants, and so on.
• Explain the reason for proposing a particular line of treatment, such as conservative versus operative.

The burden, therefore, is on the doctor to establish that what he really administered was one of the accepted medical practices, proposed by him in the sole interest of the patient, and consented to by the patient.

3. If it was truly accepted, why did it fail?

Any medical practice comes after many years of research and experiment. Only if it gives successful results does it become the 'accepted' medical practice — if not, it is discarded.

• In almost every case, the fact is that the treatment given by the doctor had failed, or resulted in complications or death.
• Mostly it happens within the four walls of the ICU, the labor room, the operation theatre, the cath-lab.
• What the doctor proposed strongly, and performed, went wrong.

The burden therefore rests on the doctor to prove two things: that he had adopted an accepted medical practice, and why it failed.

It is always argued that there are a thousand reasons for failure as per medical literature. Even if this argument is totally accepted, it is for the doctor — as the skilled and expert service provider — to explain the particular reason, out of those thousand, that applied in this patient.

Conclusion

Accepted practice is relevant in determining the standard of care, but it should never be conclusive. Often the unreasonableness of a defendant's conduct is so clear that reasonable minds could not even differ on the question. Errors which occur with the best of intentions still constitute negligence, if they result from a failure to use reasonable care.

Indian courts remain reluctant to set a truly objective standard of care. The defense of accepted practice must be evaluated critically — a widespread practice is not enough. As the saying goes: if you tell a lie big enough and keep repeating it, people will eventually come to believe it.

About the Author

Dr. Mahendra K. Joshi, M.S. (General Surgery), LL.M. (Criminology), M.A.S.L.M.E. (USA)
Ex. Member, State Consumer Commission — Gujarat
[email protected] | +91 98790 94226