LAW MANTRATHINK BEYOND OTHERS

(National Monthly Journal, I.S.S.N 2321-6417)

SURGERY OR SAVAGERY: MEDICAL NEGLIGENCE IN INDIA
Abhishek Dixit
1

The nurse sleep sweetly, hired to watch the sick, whom, snoring, she disturbs.
Eugene victor debs
2

ABSTRACT
Medical malpractice, perceived and actual, is among the most hotly debated issues in India
today. The number of medical negligence lawsuits is increasing day by day in India, and
threat of litigation has increased significantly after the supreme court of India brought the
medical profession under the purviews of consumer protection act, 1986. Unfortunately the
doctors are not aware about the laws related to it. The frivolous suits are also increasing
making the doctor work under the fear of litigation.
Are the laws related to medical negligence in India being used by the patients as a tool to
destroy the profession or carrier of the practitioner by filling frivolous suits? Do the laws
related to medical negligence require some review or revision? What can we do to prevent
frivolous medical negligence suits? These are some questions which will be answered in the
research paper.
The article is divided in to three parts. In the first part the article give you a brief overview of
the general aspects of medical negligence. In this part the author also discusses the history of
medical negligence in the world emphasising on India. The second part will deal with the
laws in India related to medical negligence. The civil law importantly Consumer Protection
Act, 1986 provisions related to medical negligence is discussed in details which also include
the latest judgements of the apex court and of various high courts. In the third part, the article
contains some suggestion so as to decrease the number of medical negligence cases in India.

1
3
nd
year BALLB student, Dr. RML National Law University, Lucknow
2
Speech in Cleveland, Ohio II, Sept, 1918
INTRODUCTION
The treatment of a disease pertaining to men is a very dicey occupation as it is accompanied
by a high degree of mortality and morbidity. In previous years, doctors were basically
worried about the lives of their patients, but now they are also worried about their legal
consequences of their failure. There is always an expectation from the doctor and the hospital
where the patient has taken admission, that he would be provided the best medical treatment,
but it cannot be expected that in every case, the doctor will cure the patient. Of course there
are black sheep among medicos with commercial outlook.
There is commercialization of each and every sector in India which affects the medical
service as well. Gradually the concept of service for free turned in to service for fee and now
the focus is on profit and not on service. Now the facilities are available in different qualities
if you have money you get the best services in the big hospitals and if you dont have money
then you have to go to government hospital as if purchasing an electronic product or any
luxury item. Life and good health have become the commodities which can be bought for a
price.
The standard of doctors are decreasing day by day, the knowledge, the skill required to
become a doctor has become very less, the duration of course has been decreased to make the
course lucrative and attract more student towards it. The mushrooming of private medical
college is been increasing day by day which lowers the quality of education. Lack of good
professors is a black hole engulfing the skill of the doctors. In India the teaching profession is
seen as the worst profession nobody wants to join making the scarcity of good professors.
Trust between the doctors and patients have been decreased which ultimately affect the
patients and the patients will always suffer due to this mistrust. The hospitals are now turning
into corporate hospitals; they are now became as a part of business and not service. There is a
competition between the hospitals to provide better services and they are now not less than
five star hotels in there infrastructure, for which they charge a lot of money, which can only
be utilized by the creamy layer of the society. The Hippocratic Oath taken by the doctors at
the threshold of professional carrier, has in the present era has gone in background and the
commercial interest has eclipsed all service spirit and words of the oath.
It is also settles that all things which has occurred to the patients during treatment by the
doctor cannot be covered to give rise of any liability under law as it would make doctors
apprehensive of liability under law, and would not take enough of initiation in treatment of
the patient. Lord justice Denning in Roe v. Ministry of health said , We should be doing a
disservice to the community at large if we were to impose liability for everything that
happens to go wrong....We must insist on due care of the patients at every point but we must
not condemn as negligence that which is only a misadventure.
What is Negligence?
Want of attention to what ought to be done or looked after; lack of proper care in doing
something; omission to-do something which a reasonable man, guided upon the consideration
which ordinarily regulate the conduct of human affairs, would do, or doing something which
a prudent and reasonable man would not do
3

There may be cases which do not raise such complicated questions and the deficiency in
service may be due to obvious faults which can be easily established such as removal of the
wrong limb or the performance of an operation on the wrong patient or giving injection of a
drug to which the patient is allergic without looking into the out-patient card containing the
warning as in Chin Keow v. Govt. of Malaysia
4
, or use of wrong gas during the course of an
anaesthetic or leaving inside the patient swabs or other items of operating equipment after
surgery, one often reads about such incidents in the newspapers. The test of medical
negligence which was laid down in Bolam vs. Friern Hospital Management Committee
5
has
been accepted by this Court as laying down correct tests in cases of medical negligence.
Negligence is an easy word for everyone in medical profession. Every complication, deaths
never come under negligence. Human body and the diseases respond differently in different
people to various diseases, respond differently to same disease in different people. The
response of the drugs varies from person to person and disease to disease. Anything may
happen between cup and lip. Human physiology differs at different times sometimes with
sudden changes and complications or sudden death without any appropriate reason. If any
doctor tries his or her best to tackle the complications perfectly and sincerely and if patient
dies in spite of best efforts it can never be negligence. If any doctor does not treat timely and

3
Legal glossary, Indian government, law and justice ministry, 2001.
4
1967 (1) WLR 813(PC)
5
1957 (2) All ER 118
properly with the basic knowledge of one's calibre it can be treated as negligence. Supreme
Court had clearly defined the meaning of negligence time and again.
Increasing frequency of surgical errors and adverse events during the hospital stay has led to
a four-fold rise in medical negligence cases over the last five years. Around 1,500-2,000 such
cases are pending in various consumer redressal forums in the state, and relatives of most
victims are spending endless days shuttling between court rooms, hoping that the guilty
would be punished. In fact, World Health Organisation data shows that one out of 10 patients
is harmed in hospitals in developed nations, but the incidence is 20 times greater in
developing nations like India. Data from International Society for Quality in Healthcare
reveals that the percentage of hospital acquired infections in best of the private hospitals in
the state ranged between 7-8%, the figure varied from 15 to 25% in other private and public
hospitals
6
.
HISTORY OF MEDICAL NEGLIGENCE
The concept of medical negligence has been recognised for over four thousand years. The
Babylonian king Hammurabi promulgated a law which provide that a physician whose
patient loses an eye as a result of surgery should himself lose his hand. Ancient Egyptian and
Roman law punished the physicians with banishment or death for malpractice.
7

The first recorded medical negligence suit under English law was filed in 1374. The case
involved an action brought before the Kings Bench against a surgeon, J. Mort, where the
plaintiff sustained an injury in his hand as a result of alleged wrong treatment of the
defendant. The defendant surgeon was not held liable because the court found that the
surgeon acted with due diligence, so it was not right for him to be held liable.
8

The first recorded case in the USA was filed in 1794. The case was of Cross V. Guthrie,
where the doctor is being held liable for doing a wrong postoperative mastectomy due to
which appellants wife loses her life, and jury asked the doctor to pay forty pound as the
damages for loss of companionship
9
.

6
Cacily Cameron and Elizabeth Anne, Clinical negligence, a practitioners handbook, Oxford pub. pp. 23-24
7
Elango, 2003
8
Charles, 2003 p. 43.
9
Kant,et al., 2006, pp.269, 270
Since ancient times, in India and other parts of the world, certain duties and responsibilities
were borne by persons who entered into the sacred medical profession as exemplified by
Charakas Oath (1000 BC) and the Hippocratic Oath (460 BC). As times passed, these codes
have lost their values and except during graduation, when medical students take the
Hippocratic Oath, it is rarely remembered or put to practice.
Medical professionals commit errors despite prudence and care in their day to day medical
practise such as incorrect diagnosis, wrong treatment, and lack of consent. But this concept is
not new; around fifty years back there were not so many cases of medical negligence but now
from past ten to fifteen years the cases are increasing day by day, why? Not because there
were no cases of medical negligence in the past but because there were no awareness
regarding the rights of the victim and the legal remedies available. But now the consumer
protection act, Sec 304A of Indian penal code are the legislation giving easy way to these
cases of medical negligence. Now the doctor patient relationship is like any relation b/w
costumer and trader i.e. a doctor is a person who delivers a service for price. Now the doctors
are not treated as the god but as a service provider.
RIGHTS OF THE PATIENTS
The Indian medical council (professional conduct, etiquette and ethics) regulation 2002 give
rise to the obligation of physicians which indirectly provide rights to the patients. Right to life
under article 21 of COI which include good health, also protects the rights of the patients.
The united nation declaration of human rights, 1948 and the world medical association
declaration on the right of the patients provide some rights of the patents that should be
respected and recognized by the physicians and the health care institutions.

Every patient has right to choose and refusal of treatment; every patient has right to
informations regarding the investigations, diagnosis and treatment. The shortcomings in
providing service by the doctor at one instance may amount only a deficiency in service
10

of under consumer protection law while on the other hand may amount to tort battery/ assault
/ negligence/ etc or may entail criminal liability under sec 304-A or sec 336,337,338 of
Indian Penal code. However all those conduct of the doctor/hospital/medical institutions

10
Section 2(g) of consumer protection act, 1986
resulting harm or injury to patients in law are treated one or other form of medical
negligence.
The duties which a doctor owes to his patient are clear. A person who holds himself out ready
to give medical advice and treatment impliedly undertakes that he is posses of skill and
knowledge for the purpose. Such a person when consulted by a patient owes to him certain
duties viz., a duty of care in deciding whether to undertake the case, a duty of care in
deciding what treatment to give or a duty of care what treatment to give or a duty of care in
the administration of that treatment. A breach of any those duties give a right of action for
negligence to patient....
11

LAWS RELATED TO MEDICAL NEGLIGENCE IN INDIA
In so far as civil law is concerned the termed negligence is used for the fastening the
defendant with liability of the amount of damages. Generally the punishment in civil law is of
monetary nature which means the defendant has to pay the damages to the plaintiff, but in
India the people are of different mindset they dont equate the life of their kin with money in
the form of compensation or damages provided under civil law but here in India, the people
believe in retribution and people want the accused with same pain and agony which the other
person has suffered.
In India, the civil laws dealing with medical negligence are derived from the English
common law. Numerous landmark English cases on medical negligence have been referred to
in important medical negligence judgements by Supreme Court of India. The laws regarding
medical negligence have been gradually evolving in India over last few decades and now
started taking concrete shape, as is evident from judgments of the Supreme Court like spring
meadows hospital and another V. Harjot Ahluwalia
12
, Indian medical association v.
V.P.Shantha and ors
13
, etc. The Supreme Court through its various judgment has broaden the
ambit of Consumer Protection Act, 1986 and has put the profession of doctors under the act.
Negligence under civil law can be either due to an act of commission or an act of omission,
even failure to take important histories like history of allergy, genetic history and abandoning
treatment without any information is an act of omission which can lead a doctor to medical

11
Laxman V. Trimbak
12
1998 (3) CPR 1 SC
13
1995(6) SCC 651
negligence
14
. In Jacob Mathew case
15
, it was held that cause of action for negligence arises
only when damage occurs; for, damage is a necessary ingredient of this tort.
From the judgment of IMA case
16
, it is obvious that, those medical professionals are liable for
their negligent acts and they will be treated at par with other professionals. Though earlier,
medical professional were held responsible for their negligent acts in various courts of our
country under the existing civil laws, this judgment brought them under the purview of the
Consumer protection act as well. In Jagdish kumar bajpai V. UOI
17
, it was held that the
patients have right to sue the doctors working in CGHS hospital and dispensaries even if
treatment if given free of cost.
The Supreme Court observed that medical practise is a profession rather than an occupation
and medical professionals provide a service to the patients and thus they are not immune to
the claim from damages on the ground of negligence. From this viewpoint the court
concluded that a patient can be a consumer for the purpose of consumer protection act,
1986.
After this judgment, majority of medical negligence cases in India are filed in consumer
courts under the Act. But in some of the cases of negligence the suits are also filed under
criminal law which has a dangerous consequences for the doctor because here in criminal law
the remedy provided to the patient is in the form of punishment to the guilty and not the
damages, which even may be recompensated.
CONCLUSION
The laws regarding the medical negligence like 304A of IPC, Consumer Protection Act has
been beneficial to aggrieved patients, but it has also damaged medical practise in several
ways. The main damage has been the loss of trust of the patients on their doctors. Without
trust and faith, it is not possible to build a good doctor-patients relationship which is central
to successful treatment. Hopefully in the future both the doctors and the patient will realize
the ultimate futility of doctor-patient conflict and resolved their grievances amicably,
relegating the COPRA to the pages of history.

14
RM Jhala and K Kumar, Medical jurisprudence, Eastern book company, pp. 599-605
15
(2005) 6 SCC 1
16
I bid
17
2007 MLR 175
Doctor is also human beings with all inherent shortcomings. We feel that in the present set
up, qualified doctors are doing very well, though exception are always there. Though doctors
say medical profession should not be held under the threat of legal action under the consumer
protection act, as medical services could not be equated with commercial services like
finance, insurance or transport, yet as Lt. Governor Markandey Singh also felt the poor
quality of service in hospitals should be governed by the act.
18

The rapidity with which the medical negligence suits are being lodged and decided upon by
the courts has left medical professionals extremely anxious and disheartened. The majority
believe that it constitutes an unnecessary interference by the judiciary into the sacred domain
of medicine. Furthermore, many medical professionals think that medical negligence is a
complex matter, which can only be decided by qualified person. The direct corollary, many
have also argued, is that if expert medical professionals are asked to testify in a medical
negligence lawsuit, then the whole matter becomes contingent upon the discretion of the
individual medical professional.
How will a doctor give a second opinion on case of medical negligence on the case of other
doctor?
The image of the doctor in India has veered from saint like saviours of life to demons but
criticizing doctors for medical negligence and malpractice. Negligence suit clearly do have
the potential to threaten the doctor in a number of ways. They can expose to scrutiny by
colleagues, media, the judiciary etc. harming their carrier prospects.
Though the Bolams test has stood the test of time for a long time in UK, it has also faced a
lot of criticism because of the requirement of expert evidence of another medical
professional. Many believe that it allows judgment by colleagues to substitute judgment by
courts and that it allows peer evidence to sanction negligence.
Medical errors are the part of the profession, but to prevent them should be one of the aims of
all medical professional. Communication with the patients, proper documentation of records
of the patients, adherence to standard care, thorough knowledge of law and medicine are the
basic steps in the prevention of frivolous law suits.
The increase number of suits foe medical negligence reflects societys changed attitude
towards the notion of gross negligence. Our modern day intolerance of accidents as innocent

18
Hindustan times, 14/10/1991, pg 3
events has tended to turn medical mistakes resulting in death into tragedies calling for
criminal investigation.
Working under the threat of litigation creates a climate of fear, which cannot be conductive to
the best use of human resources within the medical system. Moreover, the impact on a doctor,
once a complaint has been made, is likely to be deleterious to his subsequent discharge of
professional duties. The adverse effect of excessive stress on performance is well known, and
a person experiencing stress on performance is well known, and a person experiencing the
trauma of litigation id therefore likely to be a greater safety risk than one who is not under
such personal pressure.
A new arbitration authority should be made by the medical council of India to mediate the
cases before they reaches to the court, so that the cases should be dispose of faster and which
can prevent stigma on the doctor profession. Parties should be given incentive to settle the
dispute quickly, and to make the use of mediation.
Where a trial does go to the court, pre-trial agreements to determine what the court will be
asked to decide are now encouraged, and the court has a more pro-active role in case
management as followed in united states of America and UK.
It would perhaps make more sense to have a single-track system, providing all patients with
an explanation, apology, and assurance that steps have been taken to avoid repetition, which
act as moral support to the patients and their families hopefully it will help in making a
bridge between the patient and doctor relationship.
Vice came in always the door of necessity, not at the door of inclination.
Mdl Flanders, 1721