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 Medical Negligence – a
distressing phenomenon in India
 What is Medical Negligence?
Medical negligence is when a medical
practitioner fails to care of a patient which
result in death or injury. It has many
demonstration —it may be active negligence,
collateral negligence, comparative
negligence, concurrent negligence, continued
negligence and many more.
 The three main points of negligence are as follows:
 The offender owes a duty of care to the complainant
 They breached this duty of care
 The complainant has experienced an injury due to the offender’s breach
 Can Patients Launch Action Against Medical Negligence?

Medical Negligence is the transgression of a legal duty of care. A breach like this gives the patient a right to
launch an action against negligence.

The Constitution has Article 21 and

Article 32 in place which helps victims of
medical negligence.
 Article 21
1) This article confers one of the most important fundamental right
2) It states that every citizen of India is having a right to personal liberty and right to
life.
3) It prohibits the deprivation of above rights except according to a procedure
established by law.
4) It corresponds to the Magna Carta of 1215.
5) This right is available to both citizens and non citizens in India
 Article 32

1) This article confers the right over supreme court to issue writs
2) This article is called as the protector of the fundamental rights
3) The supreme courts can issue writs in the name of Mandamus, Certiorari, Quo Warranto,
Habeas Corups, Prohibition.
4) A limitation to this article is national emergency.
5) A person by virtue of this article can directly approach to the supreme court for redressal.
 Liability of hospitals in cases of negligence

Hospitals liability with respect to medical negligence can be either direct liability or vicarious liability.

 Direct liability refers to the lack of a safe and suitable environment in the hospital for treatment as
promised.

 Vicarious liability refers to a situation where someone is held responsible for the actions or omissions of
another person. In a workplace context, an employer can be liable for the acts or omissions of its
employees, provided it can be shown that they took place in the course of their employment.
 Principle of res ipsa loquitur
 A rule of law in which negligence is presumed when the object or situation which
caused injury or damage was under his or her control, and the damage could not
have happened had negligence not occurred.

 Prima facie evidence just tends to prove if a certain circumstance could or could not have occurred. It is
not conclusive in nature and hence, is true only till it is rebutted and so in any given case, it just tends to
state that for a given situation there is enough evidence to prove the liability but does not prove the
liability of it however Res Ipsa Loquitor states that facts are evident of the liability as there cannot be any
other probable cause for the same.
 Basic Steps on How to File a Medical Negligence Case
• iii) If his reply is convincing and satisfactory the tax
Step officer
1: Identify theshall drop
jurisdiction where the proceedings
the complaint is to be filed. against him, would
Step not
2: Draftcancel his contains
a complaint which registration
all the importantand pass
facts like anoforder
the cause action, theunder
loss suffered, and
FORM
the amount GST
claimed. REG-20.
It should also have the name and address of both the patient, doctor and the hospital.

Step iv)
3: FileIf
thehowever theand
copies of the evidence reply is not
the supporting satisfactory
documents. andthethe
They should include prescription, bill
of theregistration
medicines purchased,is bill liable to medical
of the hospital, cancelledreports andhe shall
any other cancel
relevant records. the

Step same by passing

4: Besides compensation, victimsan order
can also under
ask for the refunds, FORM
losses, lawsuitGST REG-
costs, and interest19.
amount.
Such an order would be sent within 30 days from the
Step 5: Lastly, the lawyers of both parties will explain their sides before the court.
date the
Furthermore, onvictims
which the
of medical reply
negligence tofilethe
must tax
a lawsuit officers
within a period of 2 notice
years’ maximum.has
been received.
• iii) If his reply is convincing and satisfactory the tax
officer shallbedrop
Can doctors liable the proceedings
for medical negligence against him,charge
if they don’t would
not
fees?cancel his registration and pass an order under
FORM GST REG-20.
If Doctors do not charge fees they are not liable for their services. Thus free
iv) If however the reply is not satisfactory and the
treatment at a non-government or government hospital, health centre, etc.
registration is liable
would not be a “service”. toyou
Thus, cancelled he shall
cannot sue them cancel
under the the
Consumer
same byLaw.
Protection passing an order under FORM GST REG- 19.
Such an order
But, victims wouldunder
can sue doctors be criminal
sent within
law if they30candays from
prove that the the
doctoron
date was which
negligent the
or incompetent,
reply towiththedisregard for the lifenotice
tax officers of the has
patient. Therefore, this amounts to a crime against the State.
been received.
 Defence for Doctors Under Indian Penal code
In the medical negligence laws in India, there are four provision deal with medical negligence:

1. Section 52 – Good Faith

2. Section 80-accident in doing a lawful act

3. Section 81 – Act liable to cause harm but done without criminal intent and to prevent other harm

4. Section 88 – Act not intended to cause death, done by consent in good faith for person’s benefit.
 Taxolawgy
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