16 Doctor-PatientRelation PDF

Consumer Monograph Series No.
16
Doctor-Patient Relationship
Care, Consent and Negligence
Centre for Consumer Studies

Indian Institute of Public Administration
New Delhi
DOCTOR-PATIENT RELATIONSHIP
CARE, CONSENT AND NEGLIGENCE
DOCTOR-PATIENT RELATIONSHIP
Sapna Chadah
Assistant Professor
Administrative & Constitutional Laws
CCS, IIPA

New Delhi
iv
Price: ` 50
ISBN : 81-86641-75-0
2014 edition
Reprinted 2015
This Monograph is Published with the Financial Assistance from

Department of Consumer Affairs, Ministry of Consumer Affairs,
Food & Public Distribution, Government of India
Printed at : New United Process, A 26, Phase II, Naraina Indl Area,
New Delhi-110028
PREFACE
Medical profession has long been one of the most trusted social
institutions due to high standard of education, ethical standards that
protect the interests of patients and recognising that public trust is
the greatest asset. However, like all social institutions medicine has
also witnessed a fall from the public trust. Since the late 1990s, due
to constant commercialisation of the profession the relationship
between doctors and patients has undergone a change. The impact
of socio-economic developments on medical practice has been
phenomenal. Slowly and steadily, the medical profession has been
driven by the market forces resulting in decline of professional ethics.
The medical profession's mandate to take care of clients has to some
extent been undermined by the influx of money into health care. The
rise of patient consumerism, the advent of evidence-based medicine,
and the increasing power of the pharmaceutical industry are some
of the recent challenges to the profession. Interpersonal trust in
doctor-patient relation depends on the degree to which patients see
their doctors as competent, responsible, and caring. The
commercialization of medical care, conflicts of interest, media
attention to medical uncertainty and error, and the growth of managed
care are all challenging patients' trust in the profession.
The current situation of the medical market place makes it
increasingly difficult to cleanly separate market and profession. The
reigning metaphor of medical consumerism is that medical care is a
service like any other, and that patients are consumers who can
choose who should provide medical services and even what kind of
services to purchase. Increasingly health is viewed as 'commodity'
and individuals as health care 'consumers'. The consumerism has
become pervasive in health care, reflecting a changed relationship
between health care professionals and patients. The patient-physician
relationship has shifted away from a paternalistic relationship toward
a client-provider one. The growing health care costs, publicized
malpractice lawsuits, and excessive treatments and tests have further
contributed to the increasing distrust of physicians. The rise in
vi
dissatisfaction with medical services is leading to increase in litigation

and complaining about health services when they feel they have
been mistreated. More of them are willing to sue for compensation
when they feel they have lost out because of negligence or ill
treatment. Doctors can no longer assume that their patients will
accept their word without question. There is need to develop a strong
system of regulation which ensures standards and assures quality.
We need a system, which is designed to serve the needs, wishes and
values of the consumers of health services and promote a healthy
patient-doctor relationship based on trust.
The monograph analyses the doctor-patient relationship and
highlights some of the issues, which have emerged with the
commercialization of the profession. It further examines the duties
and responsibilities of the doctors towards their profession, patients
and community in general; extent to which doctors and hospitals are
subject to the law; and how doctor can be held responsible,
accountable and answerable under the legal framework. It explains
the concept of medical negligence, the standard of care expected of
medical professionals, their liability under civil and criminal law and
extent of their accountability under the Consumer Protection Act.
I am grateful to the Centre for Consumer Studies, Indian Institute
of Public Administration, New Delhi, particularly Prof. Suresh Misra,
Coordinator of the Centre for giving me the opportunity to write this
monograph. I am sure this monograph will help educate the
consumers about the concept of medical negligence and the recourse
available to them in case of mistreatment and ill-treatment.
Place: New Delhi Sapna Chadah

Dated: August 2014
CONTENTS
Page
Preface v
Introduction 1
Changing Doctor-Patient Relationship 3
Regulation of Medical Profession 4
Negligence-Concept and Definition 15
Medical Negligence 16
Standard of Care 18
Duties of a Doctor 25
Duties of Doctor under Code of Medical Ethics 26
Liability under Other Laws 30
Liability for Professional Misconduct 31
Criminal Liability 31
Contractual Liability 39
Medical Services under Consumer Protection Act 39
Instances of Deficiency in Medical Services 43
Doctrine of Informed Consent 49
Burden of Proof 58
Applicability of Res ipsa loquitur in Medical Negligence 67
Emergency Care 71
Compensation 75
Vicarious Liability 82
Medical Negligence: What Patients should Know? 84
Conclusion 85
Annexure 87
DOCTOR-PATIENT RELATIONSHIP–
INTRODUCTION
The right to health has been recognized as one of the basic human
rights. The Universal Declaration of Human Rights, 1948 in Article
25 establishes that “Everyone has the right to a standard of living
adequate for the health and well-being of himself and of his family,
including food, clothing, housing and medical care and necessary
social services, and the right to security in the event of unemployment,
sickness, disability, widowhood, old age or other lack of livelihood in
circumstances beyond his control”. Article 12 of the International
Covenant on Economic, Social and Cultural Rights, 1966 states: “The
States Parties to the present Covenant recognize the right of everyone
to the enjoyment of the highest attainable standard of physical and
mental health”. Right to life enshrined in Article 21 of the Constitution
of India includes right to health. The jurisprudence of personhood or
philosophy of right to life envisaged under the said Article enlarges
in its sweep to encompass human personality in its full blossom with
invigorated health, which is a wealth to the citizen to earn his livelihood,
to sustain the dignity of the person to live a life with dignity. In fact
the dream of healthy nation is engrafted in the Directive Principles
of State Policy as an integral part of the Constitution. Article 21 of
the Constitution of India casts obligation on State and medical
professionals to preserve life. Every doctor whether at a Government
hospital or otherwise has the professional obligation to extend his
services with due expertise for protecting life. No law or state action
can intervene to avoid or delay the discharge of the paramount
obligation cast upon the members of medical profession. The
obligation being total, absolute and paramount, laws of procedure
whether in statutes or otherwise, which would interfere with the
discharge of this obligation cannot be sustained and must, therefore,
2 DOCTOR-PATIENT RELATIONSHIP
give way. The Directive Principles in Part IV of the Constitution1also

cast an obligation on the State to ensure the creation and sustenance
of conditions congenial to good health.
However, it is important to recognize that all the necessary actions
to protect, promote and fulfil the right to health cannot be secured
immediately because the states do not have resources to do so. The
World Medicines Situation 2011 Report brought out by World Health
Organisation (WHO) had said that the doctors, on an average, in
developing countries spend less than 60 seconds in prescribing
medicines and explaining the regimen to their patients. Consequently,
only half of the patients receive any advice on how to take their
medicines and about one-third of them don’t know how to take drugs
immediately on leaving the facility. According to WHO the dispensing
time greatly influences how the medicines are used. As the dispensing
time is a minute, in such circumstances it is not surprising that the
adherence to medicines is poor. One of the reasons for the patients
getting less than adequate time for consultation is that the doctor-
population ratio is not favourable in our country. MCI’s own assessment
says India has just one doctor for 1,700 people. In comparison the
doctor-population ratio globally is 1.5:1000. In developing countries, in
primary care, less than 40 percent of patients in public sector and 30
percent of patients in private sector are treated in accordance with
standard treatment guidelines. The report cites, only about 60 percent
countries train their medical students on various aspects of prescribing
medicines and only about 50 percent require any form of continuing
medical education. The basic training for nurses and paramedical staff,
who often do a bulk of prescribing, was even less – only about 40
percent of countries give them basic training on how to prescribe. The
report shows, though 80 percent of all prescribed medicines are
dispensed – usually they are done by untrained personnel – and as
many as 20-50 percent of medicines dispensed are not labeled.2
India presently has a ratio of one doctor per 1,700 citizens.
According to the Union Health Ministry figures there are about 6-
6.5 lakh doctors available. But India would need about four lakh
more by 2020 to maintain the required ratio of one doctor per 1,000
Articles 38, 39(e) (f), 42, 47 and 48

1
Kounteya Sinha, Docs will have to spend more time with patients, Times of
2
India, Pune, August 28, 2011, p. 5

DOCTOR-PATIENT RELATIONSHIP 3
people. This includes 50,000 for PHCs; 0.8 lakh for community health
centres (CHCs); 1.1 lakh for 5,642 sub-centres and another 0.5 lakh
for medical college hospitals. According to Union Health Ministry
data, the present doctor-population ratio is 0.5 per 1,000 and the
target by 2025 is 0.8 per 1,000. In the current scenario of doctor-
population ratio, the number of doctors required in the rural areas
was enormous and target of one-doctor-for-1,000 population cannot
be met before 2020. According to MCI estimates the targeted doctor-
population ratio of 1: 1000 would be achievable by the year 2031.
According to the 12th Plan document, 6,91,633 physicians are available
during the 11th Plan and expected availability for the 12th Plan by
2017 is 8,48,616 at annual capacity of 42,570 doctors.3
If shortage of doctors is one problem, their unwillingness to work
in the rural hinterland is another, creating artificial scarcity in the
area and high concentration in another. As per rural health statistics
2012, there were 1,48,366 sub-centres, 24,049 PHCs and 4,833 CHCs
functioning in the country. Forget about sub-centres, doctors are not
available even in CHCs. Compared to requirement for existing
infrastructure, there was a shortfall of 74.9 percent of surgeons,
65.1 percent of obstetricians and gynaecologists, 79.6 percent of
physicians and 79.8 percent of paediatricians. Overall, there was a
shortfall of 69.7 percent specialists at the CHCs.4
Changing Doctor-Patient Relationship
The doctor-patient relationship is at the center of conception of
medicine. The relationship between doctors and their patients is
shaped by our understanding of medicine as a vocational profession,
fundamentally concerned with well-being and promoting health.
However, the relationship between doctors and their patients has
been changing and is currently under more pressure than ever before.
The first physician and his relationship with his patients was unique
and unquestioned. However, the classical concept of doctor-patient
relationship prevalent in the olden days has undergone drastic changes
in the present age.
3
U Anand Kumar, (22nd September 2013), India has just one doctor for every
1,700 people, http://www.newindianexpress.com/magazine/India-has-just-one-
doctor-for-every-1700-people/2013/09/22/article1792010.ece#.Uw1xJmKSwwo
4
Ibid
There has been drastic change in the attitude of doctors and

medical professionals in today’s time. Hesitation on the part of
medical professionals in taking rural assignments, commercialization
of profession, mushrooming of large number of private hospitals and
nursing homes, ‘business’ attitude amongst the medical practitioners
and hospitals and ‘services’ of medical establishments becoming a
purchasable commodities and thereby posing the question whether
doctor patient relationship is different or is like any other commercial
transaction. With the passage of time not only has practice of
medicine graduated to become independent and noble profession,
but his relationship has slowly shifted from ‘Next to God’ to ‘Friend,
Philosopher and Guide’, to ‘respected professional’ and, today, as
‘service provider’ in terms of the Consumer Protection Act.With
increased consumer awareness and rising expectation, increasing
number of complaints are being filed by dissatisfied patients resulting
in growing distrust between patients and doctors and increased cost
of medical treatment. The aggrieved patients are now resorting to
legal remedy for negligence on the part of the medical practitioner.
The accountability of the doctor under the law of professional
negligence has emerged as a debatable issue among the medical
fraternity all over the country.
Regulation of Medical Profession
The Indian Medical Degrees Act, 1916
The objective of the Act to regulate the grant of titles implying
qualification in Western medical science and the assumption and use
by unqualified persons of such title. For the purpose of this Act
“Western medical science” means the western methods of Allopathic
Medicine Obstetrics and Surgery but does not include the
Homeopathic or Ayurvedic or Unani system of medicine. The right
of conferring, granting or issuing in the State degrees, diplomas,
licenses, certificates or other documents stating or implying that the
holder, grantee or recipient thereof qualified to practices western
medical science, shall be exercisable only by the authorities specified
in the schedule and such other authority as the State Government
may, by notification in the Office Gazette and subject to such
conditions and restrictions as it thinks fit to impose, authorize in this
behalf.5 Save as provided by section 3, no person in the States shall

confer, grant, or issue, or hold himself out as entitled to confer, grant
or issue any degree, diploma,licence, certificate or other document,
stating or implying that the holder grantee or recipients qualified to
practice western medical science. 6 Whoever contravenes the
provisions of section 4 shall be punishable with fine, which may extend
to one thousand rupees; and if the person so contravening is an
association, every member of such association, who knowingly and
willfully authorizes or permits the contravention shall be punishable
with fine, which may extend to five hundred rupees.7Whoever
voluntarily and falsely assumes or uses any title or description or any
addition to his name implying that he holds a degree, diploma, license
or certificate conferred, granted or issued by any authority referred
to in section 3 or recognized by the General Council of Medical
Education of the United Kingdom or that he is qualified to practice
western medical science, shall be punishable with fine which may
extend to two hundred and fifty rupees, or if he subsequently commits
and is convicted of an offence punishable under this section, with
fine which may extend to five hundred rupees.8
The Indian Medical Council Act, 1956
This Act provides constitution of the Medical Council of India
(MCI) and the maintenance of a Medical Register for India and for
matters connected there with.9 The Central Government shall cause
to be constituted a council consisting of the following members,
namely:- (a) One member from each State other than a Union Territory
to be nominated by the Central Government in consultation with the
State Government concerned (b) One member from each University
to be elected from amongst the members of the medical faculty of
the University by members of the Senate of the University or in
case the University has no Senate, by members of the Court (c)
One member from each State in which a State Medical Register is
maintained, to be elected from amongst themselves by persons
5
Indian Medical Council Act, 1956, Section 3
6
Ibid Section 4
7
Ibid Section 5
8
Ibid Section 6
9
Indian Medical Council Act, 1956 Preamble
enrolled on such register who possess the medical qualifications

included in the First or the Second Schedule or in Part II of the Third
Schedule (d) Seven members to be elected from amongst themselves
by persons enrolled on any of the State Medical Registers who
possess the medical qualifications included in Part I of the Third
Schedule (e) Eight members to be nominated by the Central
Government.10 The functions of the Council are: maintenance of
uniform standards of medical education, both undergraduate and
postgraduate; recommendation for recognition/de-recognition of
medical qualifications of medical institutions of India or foreign
countries; permanent registration/provisional registration of doctors
with recognised medical qualifications; and reciprocity with foreign
countries in the matter of mutual recognition of medical qualifications.
Instructions and procedure for recognition of medical institutions and
to monitor and maintain standards of medical education have also
been specified under the Act.11
The registered medical persons are entitled to practice allopathic
system of medicine. The medical qualifications included in the
Schedules shall be sufficient qualification for enrolment on any State
Medical Register. A registered medical practitioner is entitled to : (a)
hold office as physician or surgeon or any other office (by whatever
designation called) in Government or in any institution maintained by
a local or other authority; (b) practice medicine in any State; (c) sign
or authenticate a medical or fitness certificate or any other certificate
required by any law to be signed or authenticated by a duly qualified
medical practitioner; (d) give evidence at any inquest or in any court
of law as an expert under section 45 of the Indian Evidence Act,
1872 on any matter relating to medicine.The Medical Council of
India shall cause to be maintained in the prescribed manner a register
of medical practitioners to be known as the Indian Medical Register,
which shall contain the names of all persons who are for the time
being enrolled on any State Medical Register and who possess any
of the recognised medical qualifications.12 The Registrar of the
Council, may, on receipt of the report of registration of a person in a
State Medical Register or on application made in the prescribed
10
Ibid Section 3
11
Ibid Sections 16-20
12
Ibid Section 21
manner by any such person, enter his name in the Indian Medical
Register, provided that the Registrar is satisfied that the person
concerned possesses a recognised medical qualification.13 If the name
of any person enrolled on a State Medical Register is removed there
from in pursuance of any power conferred by or under any law
relating to medical practitioners for the time being in force in any
State, the Council shall direct the removal of the name of such person
from the Indian Medical Register.14
The Council may prescribe standards of professional conduct
and etiquette and a code of ethics for medical practitioners. The
violations of the Regulations made by the Council in this regard shall
constitute professional misconduct. 15 The Council has made
regulations for “Standards of Professional Conduct, Etiquette and
Code of Ethics” known as Indian Medical Council (Professional
Conduct, Etiquette and Ethics) Regulations notified in 2002, which
should be observed by medical practitioners. These are mandatory
and followed by all other State Medical Councils.
The Dentists Act, 1948
The Act was enacted to make provision for the regulation of
the profession of dentistry and for that purpose to constitute Dental
Councils.16 The Dental Council of India constituted by the Central
Government, is a Statutory Body incorporated under an Act to
regulate the Dental Education and the profession of Dentistry
throughout India.
As per the provisions of the Act, the functions of Dental Council
of India include – (i) Maintenance of uniform standards of Dental
Education – both at Undergraduate and Postgraduate levels. It
envisages inspections/visitations of Dental Colleges for permission
to start Dental colleges, increase of seats, starting of new P.G. courses;
(ii) To prescribe the standard curricula for the training of dentists,
dental hygienists, dental mechanics and the conditions for such training;
(iii) To prescribe the standards of examinations and other requirements
to be satisfied to secure for qualifications, recognition under the
13
Ibid Section 23
14
Ibid Section 24
15
Ibid Section 20A
16
The Dentist Act, 1948, Preamble
Act.Under section17A of the Act the Council has power to prescribe

standards of professional conduct and etiquette or the code of ethics
for dentists. The violation of the regulations specified by the Council
in this regard shall constitute professional misconduct. The Dental
Council has brought out the Dentist (Code of Ethics) Regulations,
1976 for laying down the standards of professional conduct and
etiquette for dentists. The Council shall maintain a register of dentists
to be known as the Indian Dentists Register and consisting of the
entries in all the State registers of dentists.
The Indian Medicine Central Council Act, 1970
The Indian Medicine Central Council Act, 1970 provides for the
constitution of a Central Council of Indian Medicine and the
maintenance of a Central Register of Indian Medicine and for matters
connected therewith.17 “Indian Medicine” means the system of Indian
medicine commonly known as Ashtang Ayurveda, Siddha or
UnaniTibb; whether supplemented or not by such modern advances
as the Central Council may declare by notification from time to time.18
The purpose of the Council is to: prescribe minimum standards of
education in Indian Systems of Medicine viz. Ayurved, Siddha,
UnaniTibb advise Central Government in matters relating to
recognition (inclusion/withdrawal) of medical qualification in/from
second schedule to Indian Medicine Council Act, 1970; maintain a
Central Register on Indian Medicine and revise the register from
time to time; and prescribe Standards of Professional Conduct,
Etiquette and Code of Ethics to be observed by the practitioners.
The Homoeopathy Central Council Act, 1973
The objective of the Act is to provide for the constitution of a
Central Council of Homoeopathy and the maintenance of a Central
Register of Homoeopathy and for matters connected therewith.19
The Central Government under the provisions of Act has constituted
the Central Council of Homoeopathy. The functions of the Council
are to: maintain the register of physicians of homoepathy who
received education in India or abroad; prescribe the minimum
17
Indian Medicine Central Council Act, 1970 Preamble
18
Ibid Section 2(1)(e)
19
Homoeopathy Central Council Act, 1973 Preamble
standards of education required for granting the recognition to the

qualifications, institutions, etc; conduct inspections of institutions for
granting recognition or withdrawal of recognition; and take action
against those physicians who have committed professional misconduct.
A person who is registered as homeopathic practitioner can
practice homeopathic medicine only and he cannot be registered
under the Indian Medical Council Act, 1956 or under the State
Medical Council Act, because of the restriction on registration of
persons not possessing the requisite qualifications. Accordingly, a
doctor registered as homeopathic practitioner is guilty of negligence
in prescribing allopathic medicines to the patient without being
qualified in that system of medicine. It was held by the Supreme
Court in PoonamVerma vs. Ashwin Patel20 that a homeopathic
practitioner practicing allopathic system of medicine without
possessing requisite qualification and without being registered under
Indian Medical Council Act, 1956 or State Medical Council Act is
liable to be prosecuted under section 15(3) of the Indian Medical
Council Act, 1956.
The Indian Nursing Council Act, 1947
The objective of the Act is to constitute an Indian Nursing Council
in order to establish a uniform standard of training for nurses, midwives
and health visitors. The functions of the Indian Nursing Council are
to:21
establish and monitor a uniform standard of nursing education
for nurses-midwife, Auxiliary Nurse- Midwives and health visitors
by doing inspection of the institutions;
establish and monitor a uniform standard of nursing education
for nurses-midwife, Auxiliary Nurse- Midwives and health visitors
by doing inspection of the institutions;
recognize the qualifications under section 10(2)(4) of the Indian
Nursing Council Act, 1947 for the purpose of registration and
employment in India and abroad;
give approval for registration of Indian and Foreign Nurses
AIR 1996 SC 2111

20
h t t p : / / w w w. i n d i a n n u r s i n g c o u n c i l . o r g / a b o u t - i n d i a n - n u r s i n g -
21
council.asp?show=about-aim retrieved on January 29, 2014

possessing foreign qualification under section 11(2)(a) of the Indian

Nursing Council Act, 1947;
prescribe minimum standards of education and training in various
nursing programmes and prescribe the syllabus and regulations
for Nursing programmes;
withdraw the recognition of qualification under section 14 of the
Act in case the institution fails to maintain its standards under
Section 14 (1)(b) that an institution recognised by a State Council
for the training of nurses, midwives, Auxiliary Nurse Midwives
or health visitors does not satisfy the requirements of the Council;
advise the State Nursing Councils, Examining Boards, State
Governments and Central Government in various important items
regarding Nursing Education in the Country;
regulate the training policies and programmes in the field of
Nursing;
recognise Institutions/Organisations/Universities imparting
Master’s Degree/ Bachelor’s Degree/P.G. Diploma/ Diploma/
Certificate Courses in the field of Nursing;
recognise Degree/Diploma/Certificate awarded by Foreign
Universities/ Institutions on reciprocal basis;
promote research in Nursing;
maintain Indian Nurses Register for registration of Nursing
Personnel;
prescribe code of ethics and professional conduct; and
improve the quality of nursing education.
The Pharmacy Act, 1948

The Pharmacy Act, 1948 regulates the profession of pharmacy
and for that purpose to constitute Pharmacy Councils. The functions
of the Pharmacy Council of India is to: prescribe minimum standard
of education required for qualifying as a pharmacist; framing of
Education Regulations prescribing the conditions to be fulfilled by
the institutions seeking approval of the PCI for imparting education
in pharmacy; ensure uniform implementation of the educational
standards throughout the country; inspection of Pharmacy Institutions
seeking approval under the Pharmacy Act to verify availability of
the prescribed norms; approve the course of study and examination

for pharmacists i.e. approval of the academic training institutions
providing pharmacy courses; withdraw approval, if the approved
course of study or an approved examination does not continue to be
in conformity with the educational standards prescribed by the PCI;
approve qualifications granted outside the territories to which the
Pharmacy Act extends i.e. the approval of foreign qualification; and
maintain Central Register of Pharmacists.22
The Clinical Establishments (Registration and Regulation)
Act, 2010
The Clinical Establishments (Registration and Regulation) Act,
2010 has been enacted by the Central Government to provide for
registration and regulation of all clinical establishments in the country
with a view to prescribing the minimum standards of facilities and
services provided by them. The Act has taken effect in the four
states namely; Arunachal Pradesh, Himachal Pradesh, Mizoram,
Sikkim, and all Union Territories since 1st March, 2012 vide Gazette
notification dated 28th February, 2012. The states of Uttar Pradesh,
Rajasthan and Jharkhand have adopted the Act under clause (1) of
Article 252 of the Constitution. The Ministry has notified the National
Council for Clinical Establishments and the Clinical Establishments
(Central Government) Rules, 2012 under this Act vide Gazette
notifications dated 19th March, 2012 and 23rd May, 2012 respectively.
The Act is applicable to all kinds of clinical establishments from the
public and private sectors, of all recognized systems of medicine
including single doctor clinics. The only exception will be
establishments run by the Armed forces.23
The Act also seeks to improve the quality of health services
through the National Council for Standards by prescribing minimum
standards of facilities and services, which may be provided by them.
This would permit categorization and classification of different clinical
establishments depending on their geographical location as well as
services offered. It will also initiate the process for the creation of a
22
General Information-About PCI. http://www.pci.nic.in/GeneralInformation/
AboutPCI/Introduction.aspx
23
The Clinical Establishments (Registration and Regulation) Act, 2010; http://
clinicalestablishments.nic.in/cms/Home.aspx
national registry of clinical establishments existing in the country.

Despite many State Legislatures having enacted laws for regulating
health care providers, the current regulatory process for health care
providers in India is inadequate or not responsive to ensure health
care services of acceptable quality and prevent negligence.
Accordingly, a need has long been felt for a central legislation for
ensuring uniform standards of facilities and services by the clinical
establishments.24
The Act comes in the series of attempts by the Central
Government health agencies to codify and manage the healthcare
medical services sector in the country. The regulatory authorities
have always felt that the data and information on the providers has
been static and minimal real time. Monitoring and implementation of
‘Quality’ standards has been a major issue in the sector. This Act
aims at bringing concerns of quality too at the forefront of regulation.
This Act brings in hope for the common consumer regarding the
level of prescribed minimum standards of infrastructural and ethical
issues in healthcare.25
For the purpose of the Act the “clinical establishment” means—
(i) a hospital, maternity home, nursing home, dispensary, clinic,
sanatorium or an institution by whatever name called that offers
services, facilities requiring diagnosis, treatment or care for illness,
injury, deformity, abnormality or pregnancy in any recognised system
of medicine established and administered or maintained by any person
or body of persons, whether incorporated or not; or (ii) a place
established as an independent entity or part of an establishment
referred to in sub-clause (i), in connection with the diagnosis or
treatment of diseases where pathological, bacteriological, genetic,
radiological, chemical, biological investigations or other diagnostic or
investigative services with the aid of laboratory or other medical
equipment, are usually carried on, established and administered or
maintained by any person or body of persons, whether incorporated
or not, and shall include a clinical establishment owned, controlled or
24
Press Release: Enactment of Clinical Establishments (Registration & Regulation
Act) 2010, Press Information Bureau, GoI, Release ID :57413, http://pib.nic.in/
newsite/erelease.aspx?relid=57413
25
Clinical Establishments Act: A new chapter for the Indian medical sector, June
13, 2012, http://modernmedicare.co.in/articles/clinical-establishments-act-a-new-
chapter-for-the-indian-medical-sector/
managed by— (a) the Government or a department of the

Government; (b) a trust, whether public or private; (c) a corporation
(including a society) registered under a Central, Provincial or State
Act, whether or not owned by the Government; (d) a local authority;
and (e) a single doctor, but does not include the clinical establishments
owned, controlled or managed by the Armed Forces.26
The Act provides for establishment of National Council for clinical
establishments by the Central Government.27 The National Council
shall- (a) compile and publish a National Register of clinical
establishments within two years from the date of the commencement
of this Act; (b) classify the clinical establishments into different
categories; (c) develop the minimum standards and their periodic
review; (d) determine within a period of two years from its
establishment, the first set of standards for ensuring proper healthcare
by the clinical establishments; (e) collect the statistics in respect of
clinical establishments; and (f) perform any other function determined
by the Central Government from time to time. 28 Every State
Government shall by notification constitute a State Council for clinical
establishments or the Union territory Council for Clinical
establishments, as the case may be.29 The State Council or the Union
Territory Council shall perform the following functions, namely: (a)
compiling and updating the State Registers of clinical establishment;
(b) sending monthly returns for updating the National Register; (c)
representing the State in the National Council; (d) hearing of appeals
against the orders of the authority; and d) publication on annual basis
a report on the state of implementation of standards within their
respective States.30 The State Government shall also, by notification,
set-up an authority to be called the district registering authority for
each district for registration of clinical establishments.31
No person shall run a clinical establishment unless it has been duly
registered in accordance with the provisions of this Act.32 For
registration and continuation, every clinical establishment shall fulfil
26
Clinical Establishments (Registration and Regulation) Act, 2010 Section 2(1)(c)
27
Ibid Section 3
28
Ibid Section 5
29
Ibid Section 8 (1) &(2)
30
Ibid Section 8 (5)
31
Ibid Section 10(1)
32
Ibid Section 11
the following conditions, namely: (i) the minimum requirement of

personnel as may be prescribed; (ii) provisions for maintenance of
records and reporting as may be prescribed; (iii) such other conditions
as may be prescribed. The clinical establishment shall undertake to
provide within the staff and facilities available, such medical examination
and treatment as may be required to stabilise the emergency medical
condition of any individual who comes or is brought to such clinical
establishment.33 The Act provides that the Clinical establishments of
different systems shall be classified into such categories, as may be
prescribed by the Central Government, from time to time. Different
standards may be prescribed for classification of different categories;
however, in prescribing the standards for clinical establishments, the
Central Government shall have regard to the local conditions.34 The
certificate of registration shall be kept affixed in a conspicuous place
in the clinical establishment in such manner so as to be visible to every
one visiting such establishment.35
Whoever contravenes any provision of this Act shall, if no penalty
is provided elsewhere, be punishable for the first offence with fine
which may extend to ten thousand rupees, for any second offence
with fine which may extend to fifty thousand rupees and for any
subsequent offence with fine which may extend to five lakh rupees.36
Whoever carries on a clinical establishment without registration shall,
on first contravention, be liable to a monetary penalty up to fifty
thousand rupees, for second contravention with a monetary penalty
which may extend to two lakh rupees and for any subsequent
contravention with a monetary penalty which may extend to five
lakh rupees. Whoever knowingly serves in a clinical establishment
which is not duly registered under this Act, shall be liable to a monetary
penalty which may extend to twenty-five thousand rupees.37 Whoever
wilfully disobeys any direction lawfully given by any person or authority
empowered under this Act to give such direction, or obstructs any
person or authority in the discharge of any functions which such
person or authority is required or empowered under this Act to
33
Ibid Section 12
34
Ibid Section 13
35
Ibid Section 18
36
Ibid Section 40
37
Ibid Section 41(1)&(2)
discharge, shall be liable to a monetary penalty which may extend to

five lakh rupees. Whoever being required by or under this Act to
supply any information wilfully withholds such information or gives
information which he knows to be false or which he does not believe
to be true, shall be liable to a monetary penalty which may extend to
five lakh rupees.38 Whoever contravenes any provision of this Act
or any rule made there under resulting in deficiencies that do not
pose any imminent danger to the health and safety of any patient
and can be rectified within a reasonable time, shall be punishable
with fine which may extend to ten thousand rupees.39
Negligence-Concept and Definition
Negligence is not susceptible to any precise definition. Various
meanings may be attributed to negligence. First, negligence connotes
careless state of mind which may amount to recklessness or
indifference. This meaning of negligence is the basis of criminal
liability. Secondly, negligence is careless conduct without reference
to any duty to take care like in case of contributory negligence. Lastly,
negligence refers to a breach of legal duty to take care. Lord Wright
pointed out “Negligence means more than headless or careless
conduct, whether in omission or commission; it properly connotes
the complex concept of duty, breach and damage thereby suffered
by the person to whom the duty was owing”.40 Negligence is the
breach of duty caused by the omission to do something which a
reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs would do, or doing something
which a prudent and reasonable man would not do.41 According to
Winfield42 “negligence as a tort is the breach of a legal duty to take
care which results in damage, undesired by the defendant to the
plaintiff”. The essential components of definition of negligence as
propounded by Charlesworth and Percy43 are:
• the existence of a duty to take care, which is owed by the
defendant to the complainant;
38
Ibid Section 42(1) &(2)
39
Ibid Section 43
40
Lochgelly Iron and Coal Co. vs. M. Mullan[1934] AC 1.
41
Blyth vs Birmingham Waterworks Co., (1856) 11 Ex 781
42
Winfield and Jolowicz, Tort, 12th Edition, p.69
43
Charlesworth & Percy on Negligence, 9th Edn, p. 16
• the failure to attain that standard of care, prescribed by the

law, thereby committing a breach of such duty; and
• damage, which is both casually connected with such breach
and recognized by the law, has been suffered by the
complainant.
Negligence is not an absolute term, but is a relative one; it is
rather a comparative term. It varies as per the circumstances. The
omission to do what the law obligates or even the failure to do anything
in a manner, mode or method envisaged by law would equally and
per se constitute negligence. Tortious liability arises from the breach
of a duty primarily fixed by law, the duty is towards the person
generally and its breach is redressible by an action for unliquidated
damages. When a medical practitioner accepts the responsibility and
undertakes the treatment of a patient, he owes a duty to the patient
to use diligence, care, knowledge, skill and caution in administering
the treatment. Neither any contractual relationship nor any reward
for service is necessary. The law requires fair and reasonable
standard of care and competence.
Medical Negligence
Medical profession is considered as a most pious profession all
over the world. A doctor is placed only second to Almighty God.
Medical profession is a humanitarian service, it is human and humane
in its application. Its sole object is improvement of the quality of the
life of the people and alleviation of sickness and suffering. It is a
subtle blend of science and humanities. It is not a mathematical
process but a deductive science. It is a service orientated liberal
profession having a self-regulating code of ethics. It is a science of
uncertainty and the art of possibility. A medical professional deals
with human body consisting of flesh and emotions. He does not deal
with a machine. In the famous case of Hucks vs. Cole,44 Lord
Denning pointed out that a charge of professional negligence against
a medical man stood on a different footing to a charge of negligence
against the driver of a motor car. It affected his professional status
and reputation. Therefore, the burden of proof was correspondingly
greater.
44
1968 (118) New Law Journal 469
Medical negligence means, negligence resulting from the failure

on the part of the doctor to act in accordance with medical standards
in practice, which are being practiced by an ordinary and reasonably
competent man practicing the same profession. In Dr. C.J.
Subramania vs. Kumarasamy, 45 the Madras High Court has
observed that medicine is an inexact science and it is unlikely that a
responsible doctor would intend to give an assurance to achieve a
particular result. Not everyone or mere error of judgment can be
castigated as negligence in the legal sense, but it is only such an
error which a reasonably competent professional man, acting with
ordinary care might not commit.
The doctors owe a duty of care to their patients. Failure to show
due care or skill in medical treatment resulting in death, injury or pain
to the patient gives rise to a cause of action. Shelat J. in Dr. Laxman
Balkrishna Joshi vs. Dr. Trimbak Babu Godbole46 laid down the
criteria to determine duty of medical man as follow:
“A person (doctor) who holds himself out ready to give medical
advice and treatment impliedly undertakes that he is possessed
of skill and knowledge for that purpose. Such a person when
consulted by a patient owes 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 in the
administration of that treatment. A breach of any of those duties
gives a right of action for negligence to the patient”.
Every person has a duty to take reasonable care to avoid
foreseeable harm to his neighbour. The professional has no duty to
guard against the risks which are beyond the ambit of the
professional’s contemplation and as such truly unforeseeable. The
question of foreseeability is to be judged according to the knowledge
possessed by the professional at the time of accident, and not by the
wisdom of hindsight. The subsequent developments cannot be taken
into consideration to hold the professional negligent. In Roe vs.
Minister of Health47 an anaesthetist was acquitted of the charges
of negligence for administering an anaesthetic kept in a manner
45
I (1994) CPJ 509
46
AIR 1969 SC 128
47
(1954) 2 QB 66
thought to be safe in 1947 though subsequent developments in medical

science proved that manner of keeping the anaesthetic as dangerous.
Standard of Care
Bolam Test
The standard of skill and competence expected from medical
man was laid down by McNair J. in Bolam vs. Friern Hospital
Management Committee48 known as Bolam Test which is as follows:
“ …where you get a situation which involves the use of some
special skill or competence, then the test whether there has been
negligence or not is not the test of the man on the top of a Clapham
omnibus, because he has not got this special skill. The test is the
standard of the ordinary skilled man exercising and professing to
have that special skill. A man 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 the ordinary skill of an ordinary
competent man exercising that particular art. 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 man skilled in that
particular art. Putting it the other way round a doctor is not negligent,
if he has acted in accordance with such a practice, merely because
there is a body of opinion that takes a contrary view. At the same
time, that does not mean that a medical man can obstinately and
pig-headedly carry on with some old technique if it has been proved
to be contrary to what is really substantially the whole of informed
medical opinion”.
The “Bolam Test” was summarized by Bingham, L.J. in
Eckersley vs. Binnie,49 in the following words:
“From these general statements it follows that a professional
man should command the corpus of knowledge which forms
part of the professional equipment of the ordinary member of
his profession. He should not lag behind other ordinary assiduous
and intelligent members of his profession in the knowledge of
new advances, discoveries and developments in his field. He
48
(1957) 1 WLR 582
49
(1988)18 Con LR
should have such an awareness as an ordinary competent

practitioner would have of the deficiencies in his knowledge and
the limitations on his skill. He should be alert to the hazards and
risks in any professional task that he undertakes to the extent
that other ordinary competent members of the profession would
be alert. He must bring to any professional task he undertakes
no less expertise, skill and care than other ordinary competent
members of his profession would bring, but need bring no more.
The standard is that of the reasonable average. The law does
not require a professional man that he should be a paragon
combining the qualities of paragon and prophet.”
The degree of skill and care required by a medical practitioner is
so stated in Halsbury’s Laws of England (Fourth Edition, Vol.30,
Para 35):
“The practitioner must bring to his task a reasonable degree of
skill and knowledge, and must exercise a reasonable degree of
care. Neither the very highest nor a very low degree of care
and competence, judged in the light of the particular
circumstances of each case, is what the law requires, and a
person is not liable in negligence because someone else of greater
skill and knowledge would have prescribed different treatment
or operated in a different way; nor is he 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, even though a body of adverse opinion also existed among
medical men.
Deviation from normal practice is not necessarily evidence of
negligence. To establish liability on that basis it must be shown
(1) that there is a usual and normal practice; (2) that the defendant
has not adopted it; and (3) that the course in fact adopted is one
no professional man of ordinary skill would have taken had he
been acting with ordinary care.”
The doctor is not held negligent simply because something goes
wrong. He is not liable for mischance or misadventure, or for an
error of judgment. He is not liable for taking one choice out of two or
for favouring one school rather than another. He is only liable when
he falls below the standard of a reasonably competent practitioner in

his field so that his conduct may be deserving of censure or
inexcusable.50 A doctor is required to exercise a reasonable degree
of care- that degree of care and competence which “an ordinary
member of the profession who professes to have those skills would
exercise in the circumstances in question”. However, there is
difference in ‘standard of care’ on one hand and ‘degree of care’ on
the other. The standard of care expected from a doctor remains
same in all the cases, but the degree of care will be different in
different circumstances. While the same standard of care is expected
from a generalist and a specialist, the degree of care would be
different. A higher degree of skill is expected from a specialist when
compared to that of a generalist. What amount to reasonable degree
of care, changes with the advancement of science and technology.
A doctor is required to constantly update his knowledge and improve
the standard expected of him.
The Supreme Court of India in Dr. Laxman Balkrishna Joshi
vs Dr. Trimbak Babu Godbole & Anr.51 has held that :
“A person who holds himself out ready to give medical advice
and treatment impliedly undertakes that he is possessed of skill
and knowledge for the purpose. The practitioner must bring to
his task a reasonable degree of skill and knowledge and must
exercise a reasonable degree of care. Neither the very highest
nor a very low degree of care and competence judged in the
light of the particular circumstances of each case is what the
law requires. The doctor no doubt has a discretion in choosing
treatment which he proposes to give to the patient and such
discretion is relatively ample in case of emergency.”
A mistake by a medical practitioner which no reasonable
competent and a careful practitioner would have committed is a
negligent one. The skill of medical practitioners differs from doctor
to doctor. The very nature of the profession is such that there may
be more than one course of treatment which may be advisable for
treating a patient. Courts would indeed be slow in attributing
negligence on the part of a doctor if he has performed his duties to
50
Hucks vs. Cole, 1968 (118) New Law Journal 469.
51
AIR 1969 SC 128
the best of his ability and with due care and caution. Medical opinion
may differ with regard to the course of action to be taken by the
doctor treating a patient, but as long as a doctor acts in a manner
which is acceptable to the medical profession and the court finds
that he has attended on the patient with due care, skill and diligence.52
The Bolam case in common laws jurisdictions is weakened in recent
years by reasons of series of decisions in Australia [Rogers v. Whitaker:
(1992) 109 Aus LR 625 and Roenbreg v. Percival 2001 HCA 18];
Canada [Ribl v. Hughes: (1980) 114 DLR 3d 1] and the United States
and even in the United Kingdom. Bolitho v. City and Hackney Health
Authority, [(1997) 4 All ER 771 (HL)] is one of the cases where the
Court got away from yet another aspect of Bolam case.
Bolitho Case
In this case53 Patrick, a two years old boy was admitted to St.
Bartholomew’s suffering from croup and was treated under the care
of the senior pediatrics registrar, Dr. Janet Horn, and the senior house
officer in pediatrics, Dr. Keri Rodger. He suffered catastrophic brain
damage as a result of cardiac arrest induced by respiratory failure.
Dr. Horn was charged of medical negligence for breach of her duty
of care as she did not attend Patrick after receiving such telephone
calls or arrange for a suitable deputy to do so. The real question was
what would Dr. Horn or that other doctor have done, or what should
they have done. Whether Dr. Horn would have intubated (or made
preparations for intubation), and, even if she would not, whether
such a failure on her part would have been contrary to accepted
practice in the profession”. If she would not have intubated, would
that have been negligent?
In this case House of Lords observed that: In the Bolam case
House of Lords has stated that the defendant had to have acted in
accordance with the practice accepted as proper by a “responsible
body of medical men” and had referred to “a standard of practice
recognised as proper by a competent reasonable body of opinion”
and “respectable” body of professional opinion. The use of these
adjectives -responsible, reasonable and respectable—all show that
52
Achutrao Haribhabu Khodwa & Ors. vs State of Maharashtra & Ors. (1996)
2SCC 634
53
Bolitho v. City and Hackney Health Authority [1997] 4 All ER 771
the court has to be satisfied that the exponents of the body of opinion
relied upon can demonstrate that such opinion has a logical basis. In
particular in cases involving, as they so often do, the weighing of
risks against benefits, the judge before accepting a body of opinion
as being responsible, reasonable or respectable, will need to be
satisfied that, in forming their views, the experts have directed their
minds to the question of comparative risks and benefits and have
reached a defensible conclusion on the matter.
When the evidence shows that a lacuna in professional practice
exists by which risks of grave danger are knowingly taken, then,
however small the risk, the court must anxiously examine that
lacuna—particularly if the risk can be easily and inexpensively
avoided. If the court finds, on an analysis of the reasons given for
not taking those precautions that, in the light of current professional
knowledge, there is no proper basis for the lacuna, and that it is
definitely not reasonable that those risks should have been taken, its
function is to state that fact and where necessary to state that it
constitutes negligence. In such a case the practice will no doubt
thereafter be altered to the benefit of patients. On such occasions
the fact that other practitioners would have done the same thing as
the defendant practitioner is a very weighty matter to be put on the
scales on his behalf; but it is not conclusive. The court must be vigilant
to see whether the reasons given for putting a patient at risk are
valid in the light of any well-known advance in medical knowledge,
or whether they stem from a residual adherence to out-of-date ideas.
In cases of diagnosis and treatment there are cases where, despite
a body of professional opinion sanctioning the defendant’s conduct,
the defendant can properly be held liable for negligence. That is
because, in some cases, it cannot be demonstrated to the judge’s
satisfaction that the body of opinion relied upon is reasonable or
responsible. In the vast majority of cases the fact that distinguished
experts in the field are of a particular opinion will demonstrate the
reasonableness of that opinion. In particular, where there are
questions of assessment of the relative risks and benefits of adopting
a particular medical practice, a reasonable view necessarily
presupposes that the relative risks and benefits have been weighed
by the experts in forming their opinions. But if, in a rare case, it can
be demonstrated that the professional opinion is not capable of
withstanding logical analysis, the judge is entitled to hold that the

body of opinion is not reasonable or responsible.
The court emphasised the view that it will very seldom be right
for a judge to reach the conclusion that views genuinely held by a
competent medical expert are unreasonable. The assessment of
medical risks and benefits is a matter of clinical judgment which a
judge would not normally be able to make without expert evidence.
It would be wrong to allow such assessment to deteriorate into
seeking to persuade the judge to prefer one of two views both of
which are capable of being logically supported. It is only where a
judge can be satisfied that the body of expert opinion cannot be
logically supported at all that such opinion will not provide the bench
mark by reference to which the defendant’s conduct falls to be
assessed.
Upholding the conclusions reached by the Court of Appeal and
dismissing the appeal, the HoL in the present case on the basis of
expert evidence did not hold the doctor guilty. According to the
expert’s view intubation was not the right course as being
“unreasonable and illogical.” Although Patrick had two severe
respiratory crises, he had recovered quickly from both and for the
rest presented as a child who was active and running about. The
expert’s view was that these symptoms did not show a progressive
respiratory collapse and that there was only a small risk of total
respiratory failure. Intubation is not a routine, risk-free process. It is
“a major undertaking—an invasive procedure with mortality and
morbidity attached—it was an assault.” It involves anaesthetising
and ventilating the child. A young child does not tolerate a tube easily
“at any rate for a day or two” and the child unless sedated tends to
remove it. In those circumstances it cannot be suggested that it was
illogical for Dr. Dinwiddie a most distinguished expert to favour running
what, in his view, was a small risk of total respiratory collapse rather
than to submit Patrick to the invasive procedure of intubation.
In Kusum Sharma & Ors. vs. Batra Hospital & Medical
Research Centre and Ors.54 on scrutiny of the leading cases of
medical negligence both in our country and other countries especially
in United Kingdom, the Supreme Court laid down some basic
I (2010) CPJ 29 (SC)

54
principles to deal with the cases of medical negligence. The court

held that in deciding whether the medical professional is guilty of
medical negligence following principles must be kept in mind:
i. Negligence is the breach of a duty exercised by omission to
do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of
human affairs, would do, or doing something which a prudent
and reasonable man would not do.
ii. Negligence is an essential ingredient of the offence. The
negligence to be established by the prosecution must be
culpable or gross and not the negligence merely based upon
an error of judgment.
iii. The medical professional is expected to bring a reasonable
degree of skill and knowledge and must exercise a reasonable
degree of care. Neither the very highest nor a very low
degree of care and competence judged in the light of the
particular circumstances of each case is what the law
requires.
iv. A medical practitioner would be liable only where his conduct
fell below that of the standards of a reasonably competent
practitioner in his field.
v. In the realm of diagnosis and treatment there is scope for
genuine difference of opinion and one professional doctor is
clearly not negligent merely because his conclusion differs
from that of other professional doctor.
vi. The medical professional is often called upon to adopt a
procedure which involves higher element of risk, but which
he honestly believes as providing greater chances of success
for the patient rather than a procedure involving lesser risk
but higher chances of failure. Just because a professional
looking to the gravity of illness has taken higher element of
risk to redeem the patient out of his/her suffering which did
not yield the desired result may not amount to negligence.
vii. Negligence cannot be attributed to a doctor so long as he
performs his duties with reasonable skill and competence.
Merely because the doctor chooses one course of action in
preference to the other one available, he would not be liable
if the course of action chosen by him was acceptable to the

medical profession.
viii. It would not be conducive to the efficiency of the medical
profession if no doctor could administer medicine without a
halter round his neck.
ix. It is the bounden duty and obligation of the civil society to
ensure that the medical professionals are not unnecessarily
harassed or humiliated so that they can perform their
professional duties without fear and apprehension.
x. The medical practitioners at times also have to be saved
from such a class of complainants who use criminal process
as a tool for pressurizing the medical professionals/hospitals
particularly private hospitals or clinics for extracting uncalled
for compensation. Such malicious proceedings deserve to
be discarded against the medical practitioners.
xi. The medical professionals are entitled to get protection so
long as they perform their duties with reasonable skill and
competence and in the interest of the patients. The interest
and welfare of the patients have to be paramount for the
medical professionals.
Duties of a Doctor
Doctors generally have certain duties towards their patients.
Some of the important duties which have been recognized are:
To exercise a reasonable degree of skill and knowledge and
a reasonable degree of care;
To exercise reasonable care in deciding whether to
undertake the case and also in deciding what treatment to
give and how to administer that treatment;
To extend his service with due expertise for protecting the
life of the patient and to stabilize his condition in emergency
situations;
To attend to his patient when required and not to withdraw
his services without giving him sufficient notice;
To study the symptoms and complaints of the patient carefully
and to administer standard treatment;
To carry out necessary investigations through appropriate

laboratory tests wherever required to arrive at a proper
diagnosis;
To advise and assist the patient to get a second opinion and
call a specialist if necessary;
To obtain informed consent from the patient for procedures
with inherent risks to life;
To take appropriate precautionary measures before
administering injections and medicines and to meet
emergency situations;
To inform the patient or his relatives the relevant facts about
his illness;
To keep secret the confidential information received from
the patient in the course of his professional engagement;
and
To notify the appropriate authorities of dangerous and
communicable diseases.55
Duties of Doctor under Code of Medical Ethics

Indian Medical Council (Professional Conduct, Etiquette and
Ethics) Regulations, 2002
Every system of medicine has brought out a set of regulations to
maintain the professional conduct and etiquette among its members.
In exercise of the powers conferred under section 20A read with
section 33(m) of the Indian Medical Council Act, 1956 the Medical
Council of India, with the previous approval of the Central
Government, has made regulations relating to the Professional
Conduct, Etiquette and Ethics for registered medical practitioners
known as the Indian Medical Council (Professional Conduct, Etiquette
and Ethics) Regulations, 2002. The duties and responsibilities of the
doctors are enlisted in Chapters 1to 5 of the above regulations.
Duties and Responsibilities of the Physician in General
A physician shall uphold the dignity and honour of his profession.
55
M. K. Balachandran, Consumer Protection Act and Medical Profession, CCS,
IIPA, 2006, pp. 7-8
The prime object of the medical profession is to render service

to humanity; reward or financial gain is a subordinate
consideration. Who-so-ever chooses his profession, assumes the
obligation to conduct himself in accordance with its ideals.
A physician should be an upright man, instructed in the art of
healings. He shall keep himself pure in character and be diligent
in caring for the sick; he should be modest, sober, patient, prompt
in discharging his duty without anxiety; conducting himself with
propriety in his profession and in all the actions of his life.
No person other than a doctor having qualification recognised by
Medical Council of India and registered with Medical Council of
India/State Medical Council (s) is allowed to practice Modern
system of Medicine or Surgery.
Physicians should merit the confidence of patients entrusted to
their care, rendering to each a full measure of service and
devotion.
Physicians should try continuously to improve medical knowledge
and skills and should make available to their patients and colleagues
the benefits of their professional attainments.
The physician should practice methods of healing founded on
scientific basis and should not associate professionally with anyone
who violates this principle. The honoured ideals of the medical
profession imply that the responsibilities of the physician extend
not only to individuals but also to society.
For the advancement of his profession, a physician should affiliate
with associatios and societies of allopatic medical profession and
involve actively in the functioning of such bodies.
Every physician shall maintain the medical records pertaining to
his / her indoor patients for a period of 3 years from the date of
commencement of the treatment in a standard proforma laid
down by the Medical Council of India. If any request is made for
medical records either by the patients / authorised attendant or
legal authorities involved, the same may be duly acknowledged
and documents shall be issued within the period of 72 hours.
A Registered medical practitioner shall maintain a Register of
Medical Certificates giving full details of certificates issued.
Efforts shall be made to computerize medical records for quick

retrieval.
Every physician shall display the registration number accorded
to him by the State Medical Council / Medical Council of India in
his clinic and in all his prescriptions, certificates, money receipts
given to his patients.
Every physician should, as far as possible, prescribe drugs with
generic names and he / she shall ensure that there is a rational
prescription and use of drugs.
A Physician should expose, without fear or favour, incompetent
or corrupt, dishonest or unethical conduct on the part of members
of the profession.
The personal financial interests of a physician should not conflict
with the medical interests of patients. A physician should announce
his fees before rendering service and not after the operation or
treatment is under way. It is unethical to enter into a contract of “no
cure no payment”. Physician rendering service on behalf of the state
shall refrain from anticipating or accepting any consideration.
The physician shall observe the laws of the country in regulating
the practice of medicine and shall also not assist others to evade
such laws. He should be cooperative in observance and
enforcement of sanitary laws and regulations in the interest of
public health.
Duties of Physicians to their Patients

Obligations to the Sick
Though a physician is not bound to treat each and every person
asking his services, he should not only be ever ready to respond
to the calls of the sick and the injured, but should be mindful of
the high character of his mission and the responsibility he
discharges in the course of his professional duties. In his
treatment, he should never forget that the health and the lives of
those entrusted to his care depend on his skill and attention.
A physician should endeavour to add to the comfort of the sick
by making his visits at the hour indicated to the patients.
A physician advising a patient to seek service of another physician
is acceptable, however, in case of emergency a physician must

treat the patient.
No physician shall arbitrarily refuse treatment to a patient.
However, for good reason, when a patient is suffering from an
ailment which is not within the range of experience of the treating
physician, the physician may refuse treatment and refer the patient
to another physician.
Medical practitioner having any incapacity detrimental to the
patient or which can affect his performance vis-à-vis the patient
is not permitted to practice his profession.
Patience and delicacy should characterize the physician.
Confidences concerning individual or domestic life entrusted by
patients to a physician and defects in the disposition or character
of patients observed during medical attendance should never be
revealed unless their revelation is required by the laws of the
State. Sometimes, however, a physician must determine whether
his duty to society requires him to employ knowledge, obtained
through confidence as a physician, to protect a healthy person
against a communicable disease to which he is about to be
exposed. In such instance, the physician should act as he would
wish another to act toward one of his own family in like
circumstances.
The physician should neither exaggerate nor minimize the gravity
of a patient’s condition. He should ensure himself that the patient,
his relatives or his responsible friends have such knowledge of
the patient’s condition as will serve the best interests of the patient
and the family.
A physician is free to choose whom he will serve. He should,
however, respond to any request for his assistance in an
emergency. Once having undertaken a case, the physician should
not neglect the patient, nor should he withdraw from the case
without giving adequate notice to the patient and his family.
Duties of Physician in Consultation

Unnecessary consultations should be avoided- in case of serious
illness and in doubtful or difficult conditions, the physician should
request consultation, but under any circumstances such
consultation should be justifiable and in the interest of the patient

only and not for any other consideration. Consulting pathologists
/radiologists or asking for any other diagnostic lab investigation
should be done judiciously and not in a routine manner.
In every consultation, the benefit to the patient is of foremost
importance. All physicians engaged in the case should be frank
with the patient and his attendants.
Utmost punctuality should be observed by a physician in making
themselves available for consultations.
All statements to the patient or his representatives should take
place in the presence of the consulting physicians, except as
otherwise agreed. The disclosure of the opinion to the patient or
his relatives or friends shall rest with the medical attendant.
No decision should restrain the attending physician from making
such subsequent variations in the treatment if any unexpected
change occurs, but at the next consultation, reasons for the
variations should be discussed/explained.
When a patient is referred to a specialist by the attending
physician, a case summary of the patient should be given to the
specialist, who should communicate his opinion in writing to the
attending physician.
A physician shall clearly display his fees and other charges on
the board of his chamber and/or the hospitals he is visiting.
Prescription should also make clear if the physician himself
dispensed any medicine.
A physician shall write his name and designation in full along
with registration particulars in his prescription letter head.
Liability under Other Laws

If the doctor is negligent in performance of his duties he is open
to both criminal and civil liability. Besides the civil liability for
negligence under Law of Torts, the liability may also arise under the
Indian Medical Council Act, 1956 for professional misconduct,
criminal liability under Indian Penal Code, 1860 and contractual liability
under Indian Contract Act, 1872.
Liability for Professional Misconduct

The Indian Medical Association established under the Indian
Medical Council Act, 1956 and the State Medical Councils established
under State Acts are empowered to take disciplinary action for
professional misconduct against registered medical practitioner and
remove their names from the Medical Register if they are found guilty
of professional misconduct. The Indian Medical Council (Professional
Conduct, Etiquette and Ethics) Regulations, 2002 made under the Act
provides for taking action against professional misconduct including
removal of names of medical professionals from the Register. Similarly,
the Dentists Act, 1948 empowers the Dental Council of India to
prescribe standards of professional conduct and etiquette or code of
ethics for dentists.56 Section 41 of the Act prescribes procedure for
removal of name of any person from the register.
Criminal Liability
Unlike tort in which extent of liability depends on amount of
damages, in criminal law the extent of liability depends on the amount
and degree of negligence. The degree of negligence in criminal liability
is higher than that of negligence in tortious liability. In tort unliquidated
damages are awarded whereas punishment is imposed for criminal
liability. The civil and criminal remedies are not mutually exclusive
but clearly co-extensive and essentially differ in their context and
consequence. A criminal liability arises when it is proved that the
doctor has committed an act or omission which is the proximate,
direct and substantive cause of death is grossly rash or negligent.
Under Section 304A a doctor is also punishable if his act is found
grossly rash and negligent. The offence is cognizable but bailable
and triable by Magistrate of First Class. Under Section 304A:
Whosoever causes the death of any person by doing any rash or
negligent act not amounting to culpable homicide, shall be
punished with imprisonment of either description for a term which
may extend to two year, or with fine, or with both.
In Juggankhan vs. the State of Madhya Pradesh 57 , the
accused, a registered Homoeopath, administered 24 drops of
The Dentist Act, 1948 Section 17A
56
(1965) 1 SCR 14
57
stramonium and a leaf of dhatura to the patient suffering from guinea

worm. The accused had not studied the effect of such substances
being administered to a human being. The poisonous contents of the
leaf of dhatura, were not satisfactorily established by the prosecution.
The Supreme Court exonerated the accused of the charge under
Section 302 IPC. However, on a finding that stramonium and dhatura
leaves are poisonous and in no system of medicine, except perhaps
Ayurvedic system, the dhatura leaf is given as cure for guinea worm,
the act of the accused who prescribed poisonous material without
studying their probable effect was held to be a rash and negligent
act. It would be seen that the profession of a Homoeopath which the
accused claimed to profess did not permit use of the substance
administered to the patient. The accused had no knowledge of the
effect of such substance being administered and yet he did so. In
this background, the inference of the accused being guilty of rash
and negligent act was drawn against him. The principle which
emerged was that a doctor who administers a medicine known to or
used in a particular branch of medical profession impliedly declares
that he has knowledge of that branch of science and if he does not,
in fact, possess that knowledge, he is prima facie acting with rashness
or negligence.
In Poonam Verma v. Ashwin Patel and Ors., 58 a doctor
registered as medical practitioner and entitled to practice in
Homoeopathy only, prescribed an allopathic medicine to the patient.
The patient died. The doctor was held to be negligent and liable to
compensate the wife of the deceased for the death of her husband
on the ground that the doctor who was entitled to practice in
homoeopathy only, was under a statutory duty not to enter the field
of any other system of medicine and since he trespassed into a
prohibited field and prescribed the allopathic medicine to the patient
causing the death, his conduct amounted to negligence per se
actionable in civil law.
In Dr. Suresh Gupta’s case59, the patient, a young man with no
history of any heart ailment, was subjected to an operation performed
by Dr. Suresh Gupta for nasal deformity. The operation was neither
58
(1996) 4 SCC 332
59
Dr. Suresh Gupta vs. Govt. of NCT of Delhi and Anr. (2004) 6 SCC 422.
complicated nor serious; however, the patient died. On investigation,

the cause of death was found to be “not introducing a cuffed
endotracheal tube of proper size as to prevent aspiration of blood
from the wound in the respiratory passage”. The Supreme Court
opined that this act attributed to the doctor, even if accepted to be
true, could be described as an act of negligence as there was lack of
due care and precaution. But, the Court categorically held “for this
act of negligence he may be liable in tort, his carelessness or want of
due attention and skill cannot be described to be so reckless or grossly
negligent as to make him criminally liable”.
The Court held:
“When a patient agrees to go for medical treatment or surgical

operation, every careless act of the medical man cannot be termed
as ‘criminal’. It can be termed ‘criminal’ only when the medical
man exhibits a gross lack of competence or inaction and wanton
indifference to his patient’s safety and which is found to have
arisen from gross ignorance or gross negligence. Where a
patient’s death results merely from error of judgment or an
accident, no criminal liability should be attached to it. Mere
inadvertence or some degree of want of adequate care and
caution might create civil liability but would not suffice to hold
him criminally liable.
This approach of the courts in the matter of fixing criminal liability
on the doctors, in the course of medical treatment given by them
to their patients, is necessary so that the hazards of medical men
in medical profession being exposed to civil liability, may not
unreasonably extend to criminal liability and expose them to risk
of landing themselves in prison for alleged criminal negligence.
For every mishap or death during medical treatment, the medical
man cannot be proceeded against for punishment. Criminal
prosecutions of doctors without adequate medical opinion pointing
to their guilt would be doing great disservice to the community at
large because if the courts were to impose criminal liability on
hospitals and doctors for everything that goes wrong, the doctors
would be more worried about their own safety than giving all
best treatment to their patients. This would lead to shaking the
mutual confidence between the doctor and patient. Every mishap

or misfortune in the hospital or clinic of a doctor is not a gross
act of negligence to try him for an offence of culpable negligence.
Between civil and criminal liability of a doctor causing death of
his patient the court has a difficult task of weighing the degree
of carelessness and negligence alleged on the part of the doctor.
For conviction of a doctor for alleged criminal offence, the
standard should be proof of recklessness and deliberate wrong
doing i.e. a higher degree of morally blameworthy conduct.
To convict, therefore, a doctor, the prosecution has to come out
with a case of high degree of negligence on the part of the doctor.
Mere lack of proper care, precaution and attention or
inadvertence might create civil liability but not a criminal one.
The courts have, therefore, always insisted in the case of alleged
criminal offence against doctor causing death of his patient during
treatment, that the act complained against the doctor must show
negligence or rashness of such a higher degree as to indicate a
mental state which can be described as totally apathetic towards
the patient. Such gross negligence alone is punishable.”
In Jacob Mathew vs. State of Punjab and another 60 the
deceased Jiwan Lal was suffering from cancer in an advanced stage.
He was admitted as patient in a private ward of CMC Hospital. He
felt difficulty in breathing. The complainant’s elder brother contacted
the duty nurse, who in her turn called some doctor to attend to the
patient. No doctor turned up for about 20 to 25 minutes. Then, Dr.
Jacob Mathew and Dr. Allen Joseph came to the room of the patient.
An oxygen cylinder was brought and connected to the mouth of the
patient but the breathing problem increased further. The oxygen
cylinder was found to be empty. There was no other gas cylinder
available in the room. Another gas cylinder was brought from the
adjoining room. However, there was no arrangement to make the
gas cylinder functional and in-between, five to seven minutes were
wasted. By this time, another doctor came who declared that the
patient was dead. An FIR was lodged on ground that the death of
the patient has occurred due to the carelessness of doctors and nurses.
60
(2005) 6 SCC 1
The Supreme Court held that the accused appellant cannot be

proceeded against under Section 304A IPC on the parameters of
Bolam’s test. Reaffirming the legal principles for the prosecution of
a medical professional under Section 304-A of IPC for rash or
negligent act laid down in Dr. Suresh Gupta vs. Government NCT
of Delhi61 the Apex Court summed up conclusions as under:62
(1) Negligence is the breach of a duty caused by omission to do
something which a reasonable man guided by those
considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a prudent
and reasonable man would not do. Negligence becomes
actionable on account of injury resulting from the act or
omission amounting to negligence attributable to the person
sued. The essential components of negligence are three:
‘duty’, ‘breach’ and ‘resulting damage’.
(2) Negligence in the context of medical profession necessarily
calls for a treatment with a difference. To infer rashness or
negligence on the part of a professional, in particular a doctor,
additional considerations apply. A case of occupational
negligence is different from one of professional negligence. A
simple lack of care, an error of judgment or an accident, is not
proof of negligence on the part of a medical professional. So
long as a doctor follows a practice acceptable to the medical
profession of that day, he cannot be held liable for negligence
merely because a better alternative course or method of
treatment was also available or simply because a more skilled
doctor would not have chosen to follow or resort to that practice
or procedure which the accused followed. When it comes to
the failure of taking precautions what has to be seen is whether
those precautions were taken which the ordinary experience
of men has found to be sufficient; a failure to use special or
extraordinary precautions which might have prevented the
particular happening cannot be the standard for judging the
alleged negligence. So also, the standard of care, while
assessing the practice as adopted, is judged in the light of
(2004) 6 SCC 422

61
Jacob Mathew vs. State of Punjab and another (2005) 6 SCC 1 para 49
62
knowledge available at the time of the incident, and not at

the date of trial. Similarly, when the charge of negligence
arises out of failure to use some particular equipment, the
charge would fail if the equipment was not generally
available at that particular time (that is, the time of the
incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of
the two findings: either he was not possessed of the requisite
skill which he professed to have possessed, or, he did not
exercise, with reasonable competence in the given case, the
skill which he did possess. The standard to be applied for
judging, whether the person charged has been negligent or
not, would be that of an ordinary competent person exercising
ordinary skill in that profession. It is not possible for every
professional to possess the highest level of expertise or skills
in that branch which he practices. A highly skilled professional
may be possessed of better qualities, but that cannot be made
the basis or the yardstick for judging the performance of the
professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in
Bolam’s case [1957] 1 W.L.R. 582, 586 holds good in its
applicability in India.
(5) The jurisprudential concept of negligence differs in civil and
criminal law. What may be negligence in civil law may not
necessarily be negligence in criminal law. For negligence to
amount to an offence, the element of mens rea must be
shown to exist. For an act to amount to criminal negligence,
the degree of negligence should be much higher i.e. gross or
of a very high degree. Negligence which is neither gross
nor of a higher degree may provide a ground for action in
civil law but cannot form the basis for prosecution.
(6) The word ‘gross’ has not been used in Section 304A of IPC,
yet it is settled that in criminal law negligence or recklessness,
to be so held, must be of such a high degree as to be ‘gross’.
The expression ‘rash or negligent act’ as occurring in Section
304A of the IPC has to be read as qualified by the word
‘grossly’.
(7) To prosecute a medical professional for negligence under

criminal law it must be shown that the accused did something
or failed to do something which in the given facts and
circumstances no medical professional in his ordinary senses
and prudence would have done or failed to do. The hazard
taken by the accused doctor should be of such a nature that
the injury which resulted was most likely imminent.
(8) Res ipsa loquitur is only a rule of evidence and operates in
the domain of civil law specially in cases of torts and helps
in determining the onus of proof in actions relating to
negligence. It cannot be pressed in service for determining
per se the liability for negligence within the domain of criminal
law. Res ipsa loquitur has, if at all, a limited application in
trial on a charge of criminal negligence.
The Supreme Court giving guidelines for prosecution held:
“As we have noticed hereinabove that the cases of doctors

(surgeons and physicians) being subjected to criminal prosecution
are on an increase. Sometimes such prosecutions are filed by
private complainants and sometimes by police on an FIR being
lodged and cognizance taken. The investigating officer and the
private complainant cannot always be supposed to have
knowledge of medical science so as to determine whether the
act of the accused medical professional amounts to rash or
negligent act within the domain of criminal law under Section
304-A of IPC. The criminal process once initiated subjects the
medical professional to serious embarrassment and sometimes
harassment. He has to seek bail to escape arrest, which may or
may not be granted to him. At the end he may be exonerated by
acquittal or discharge but the loss which he has suffered in his
reputation cannot be compensated by any standards.
We may not be understood as holding that doctors can never be
prosecuted for an offence of which rashness or negligence is an
essential ingredient. All that we are doing is to emphasize the
need for care and caution in the interest of society; for, the service
which the medical profession renders to human beings is probably
the noblest of all, and hence there is a need for protecting doctors
from frivolous or unjust prosecutions. Many a complainant prefers

recourse to criminal process as a tool for pressurizing the medical
professional for extracting uncalled for or unjust compensation.
Such malicious proceedings have to be guarded against.
Statutory Rules or Executive Instructions incorporating certain
guidelines need to be framed and issued by the Government of
India and/or the State Governments in consultation with the
Medical Council of India. So long as it is not done, we propose
to lay down certain guidelines for the future which should govern
the prosecution of doctors for offences of which criminal rashness
or criminal negligence is an ingredient. A private complaint may
not be entertained unless the complainant has produced prima
facie evidence before the Court in the form of a credible opinion
given by another competent doctor to support the charge of rashness
or negligence on the part of the accused doctor. The investigating
officer should, before proceeding against the doctor accused of
rash or negligent act or omission, obtain an independent and
competent medical opinion preferably from a doctor in government
service qualified in that branch of medical practice who can
normally be expected to give an impartial and unbiased opinion
applying Bolam’s test to the facts collected in the investigation. A
doctor accused of rashness or negligence, may not be arrested in
a routine manner (simply because a charge has been levelled
against him). Unless his arrest is necessary for furthering the
investigation or for collecting evidence or unless the investigation
officer feels satisfied that the doctor proceeded against would not
make himself available to face the prosecution unless arrested,
the arrest may be withheld.”63
Other provisions of the Indian Penal Code which may be relevant
are Section 312 (causing miscarriage), Section 313 (causing
miscarriage without woman’s consent), Section 314 (death caused
by act done with the intent to cause miscarriage if the act was done
without woman’s consent), Section 315 (act done with the intent to
prevent the child from being borne alive or to cause it die after birth),
Section 316 (causing death of quick unborn child by an act amounting
to culpable homicide), Section 317 (exposure and abandonment of
63
Ibid paras 51, 52, 53
child under twelve years, by parents or persons having care), Section

318 (concealment of birth by secret disposal of dead body), Section
337 (rash or negligent act resulting in simple hurt), Section 338 ( rash
or negligent act resulting in grievous hurt). Criminal liability may also
arise under a number of other statutes such as the Indian Medical
Council Act, 1956, the Dentists Act, 1948, the Medical Termination
of Pregnancy Act, 1971, the Pre-natal Diagnostic Techniques
(Regulation and Prevention of Misuse) Act, 1994, the Transplantation
of Human Organs Act, 1994 and other penal laws enacted by the
Parliament and State legislatures.
Contractual Liability
An agreement supported by consideration is a contract. The
liability under contract arises under the explicit or implied terms of
the contract. Liability in contract depends on the express or implied
terms agreed upon by the patient and the medical man. Consent for
treatment on payment of fee by the patient is an implied contract
with the doctor who undertakes treatment on acceptance of fee and
impliedly promises to exercise proper care and skill.
Medical Services under Consumer Protection Act
The expression service has been defined in the Consumer
Protection Act as service of any description which is made available
to potential user and includes but not limited to, 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.64
The deficiency in service is one of the grounds for filing complaint
under the Act and at present majority of complaints before these
adjudicatory bodies relate to the deficiency in service of various
service providers. The term ‘deficiency’ has also been defined in
Section 2(1)(g) of the Act. It means any fault, imperfection,
shortcoming or inadequacy in the quality, nature and manner of
performance which is required to be maintained by or under law for
the time being in force or has been undertaken to be performed by a
Ibid Section 2(1)(o)

64
person in pursuance of a contract or otherwise in relation to any

service.
The “service” defined in Section 2(1)(o) of the Consumer
Protection Act brings within its sweep service of any description
available to potential user. It is true that the professional services of
doctors, engineers, lawyers, are not specifically mentioned in Section
2(1)(o) of the Consumer Protection Act. The facilities of some
services mentioned in Section 2(1)(o) of the Consumer Protection
Act are merely illustrative of the definition of service, which is wide,
but not exhaustive. Naturally, the professional services of doctors,
lawyers, engineers, architects and technical services of mechanics,
contractors, builders, fall within the ambit of Section 2(1)(o) of the
Consumer Protection Act because these services are available to
the hirer on payment of consideration. Any person who avails the
medical services for consideration or beneficiary of those services
is consumer within the ambit of the Act.
The National Commission in Cosmopolitan Hospital vs Smt
Vasantha P. Nair65 has settled the law by holding that the professional
service rendered by a medical practitioner in his consulting room or
clinic or hospital on payment amounts to hiring of service for
consideration, which is amenable to the jurisdiction of the Consumer
Courts established under Consumer Protection Act, 1986. The view
of the National Commission was upheld by the Supreme Court66
which has arrived at the conclusion that service rendered to a patient
by a medical practitioner (except where the doctor renders service
free of charge to every patient or under a contract of personal
service), by way of consultation, diagnosis and treatment, both
medicinal and surgical, would fall within the ambit of “service” as
defined in section 2(1)(o) of the Consumer Protection Act.
The Supreme Court in Indian Medical Association vs V. P.
Shantha 67 has finally settled the issue of doctors and medical
professionals being proceeded against before the consumer forums
and decided several important questions relating to the applicability
of the provisions of the Consumer Protection Act to the medical
profession and to cases of medical negligence. The Supreme Court
65
I (1992)CPJ 302 (NC)
66
Indian Medical Association vs. V. P. Shantha AIR 1996 SC 550
67
AIR 1996 SC 550
held as follows:
1. Service rendered to a patient by a medical practitioner
(except where the doctor renders service free of charge to
every patient or under a contract of personal service), by
way of consultation, diagnosis and treatment, both medicinal
and surgical, would fall within the ambit of ‘service’ as defined
in Section 2(1)(o) of the Act.
2. The fact that medical practitioners belong to the medical
profession and are subject to the disciplinary control of the
Medical Council of India and/or State Medical Councils
constituted under the provisions of the Indian Medical
Council Act would not exclude the services rendered by them
from the ambit of the Act.
3. A ‘contract of personal service’ has to be distinguished from
a ‘contract for personal services’. In the absence of a
relationship of master and servant between the patient and
medical practitioner, the service rendered by a medical
practitioner to the patient cannot be regarded as service
rendered under a ‘contract of personal service’. Such service
is service rendered under a ‘contract for personal service’
and is not covered by exclusionary clause of the definition
of ‘service’ contained in Section 2(1)(o) of the Act.
4. The expression ‘contract of personal service’ in Section
2(1)(o) of the Act cannot be confined to contracts for
employment of domestic servants only and the said expression
would include the employment of a medical officer for the
purpose of rendering medical service to the employer. The
service rendered by a medical officer to his employer under
the contract of employment would be outside the purview of
‘service’ as defined in Section 2(1)(o) of the Act.
5. Service rendered free of charge by a medical practitioner
attached to a hospital/Nursing home or a medical officer
employed in a hospital/Nursing home where such services
are rendered free of charge to everybody, would not be
“service” as defined in Section 2(1)(o) of the Act. The
payment of a token amount for registration purpose only at
the hospital/nursing home would not alter the position.
6. Service rendered at a non-Government hospital/Nursing

home where no charge whatsoever is made from any person
availing the service and all patients (rich and poor) are given
free service – is outside the purview of the expression
‘service’ as defined in Section 2(1)(o) of the Act. The
payment of a token amount for registration purpose only at
the hospital/Nursing home would not alter the position.
home where charges are required to be paid by the persons
availing such services, falls within the purview of the
expression ‘service’ as defined in Section 2(1)(o) of the Act.
home where charges are required to be paid by persons
who are in a position to pay and persons who cannot afford
to pay are rendered service free of charge would fall within
the ambit of the expression ‘service’ as defined in Section
2(1)(o) of the Act irrespective of the fact that the service is
rendered free of charge to persons who are not in a position
to pay for such services. Free service, would also be
“service” and the recipient a “consumer” under the Act.
9. Service rendered at a Government hospital/health centre/
dispensary where no charge whatsoever is made from any
person availing the services and all patients (rich and poor)
are given free ‘service’- is outside the purview of the
expression ‘service’ as defined in Section 2(1)(o) of the Act.
The payment of a token amount for registration purpose only
at the hospital/nursing home would not alter the position.
10. Service rendered at a Government hospital/health centre/
dispensary where service are rendered on payment of
charges and also rendered free of charge to other persons
availing such services would fall within the ambit of the
expression ‘service’ as defined in Section 2(1)(o) of the Act
irrespective of the fact that the service is rendered free of
charge to persons who do not pay for such service. Free
service would also be “service” and the recipient a
“consumer” under the Act.
11. Service rendered by a medical practitioner or hospital/nursing
home cannot be regarded as service rendered free of charge,

if the person availing the service has taken an insurance
policy for medical care where under the charges for
consultation, diagnosis company and such service would fall
within the ambit of ‘service’ as defined in Section 2(1)(o) of
the Act.
12. Similarly, where, as a part of the conditions of service, the
employer bears the expenses of medical treatment of an
employee and his family members dependent on him, the
service rendered to such an employee and his family
members by a medical practitioner or a hospital/nursing home
would not be free of charge and would constitute ‘service’
under Section 2(1)(o) of the Act.
Instances of Deficiency in Medical Services

In Spring Meadows Hospital vs Harjol Ahluwalia 68
Complainant’s child was admitted in the hospital and was diagnosed
as suffering from typhoid fever. The nurse at the hospital
administered internally “Lariago” injection. Immediately after the
injection was administered the child collapsed, suffered a massive
heart attack and was admitted into the emergency ward. Inspite of
the treatment given, the doctors gave opinion that the child would
only live like a vegetable as irreparable damage has been caused to
his brain. The complainant filed complaint before the State
Commission alleging gross deficiency in service which was upheld
by the National Commission. In appeal, the Supreme Court held that
when a young child is taken to a hospital by his parents and the child
is treated by the doctors, the parents would come within the definition
of consumer having hired the services and the young child would
become a consumer under the inclusive definition being a beneficiary
of such services and as such can claim compensation under the Act.
In Dr. M. Kumar vs. Vijay Kumar Srivastava69 the complainant
took his 8 years old son for removal of old teeth. The extraction was
wrongfully done wherein actually four teeth were removed. It was
observed that the doctor had no degree of B.D.S. or M.B.B.S. He
III (1998) CPJ I (SC)

68
III (2011) CPJ 113 (NC)

69
had obtained degree in alternative medicines, which was not

recognized by M.C.I. Yet he was practicing medicine in the name of
the “Dr. M. Kumar B.D.S.” from his clinic named “Kumar Dental
Heath Care Centre”. The National Commission held it a case of
unfair trade practice, holding him liable for making a false
representation under Section 2(r)(ii) and Section 2(r)(vi).
In Dr. Martin Joseph & Anr. vs Faizal70 the complainant, a
boy of nine, suffered an injury in which a large wooden piece pierced
into his left foot. He was operated to remove the wooden piece and
then referred to Dr Martin Joseph, an orthopaedic surgeon. Despite
various surgeries and treatment the surgeon was not able to remove
the wooden piece completely from the foot of the complainant. As a
result the complainant underwent a lot of sufferings, pain and
expenses without full relief. Complainant father filed a consumer
complaint alleging deficiency in service. The National Commission
held that the facts of the case speak for themselves and the opposite
parties have not been able to explain how they failed, for nearly a
year, to locate and remove the remnant of the wooden piece from
the foot of the patient, despite having subjected the patient to various
diagnostic tests.
In CDR Hospital vs. Mrs. Nirmala Manaseh71 Complainant
went to the hospital of the appellant and the allegation of the
complainant was that the saline ampule broke and the broken glass
pieces got embedded in the complainant’s face and neck. Complainant
further alleged that blisters had appeared on her face when the doctor
applied spirit on her face. The State Commission came to the
conclusion that there was a clear case of medical negligence and
allowed complaint awarding compensation and costs. The National
Commission held that the said blisters on the face developed only
after application of liquid on the complainant’s face by the doctor
and the reasoning based on which the State Commission passed its
order was justified. Keeping in view the facts of the case, the National
Commission held it to be deficiency in service.
In Shefali Bhargava vs. Indraprastha Apollo Hospital 72
complainant’s case was that the respondent hospital gave her
70
III (2011) CPJ 379 (NC)
71
2004 (1) CPJ 70 (NC)
72
(2008) I CPJ 216 (NC)
transfusion of improperly tested blood thereby giving her an infection

of Hepatitis virus which ruined her life and the treatment of the
same was difficult and very expensive. Hospital could not give any
satisfactory explanation as to why urgent transfusion became
necessary and why complainant’s mother’s blood which matched
the patient was not used. Opposite party did not produce any record
to show that none of the donors was infected with Hepatitis C. Under
the circumstances it was held that the complainant got infection due
to transfusion of contaminated blood because of the respondent’s
negligence. The National Commission allowed `10 lakhs towards
costs of the treatment already incurred and `8 lakhs towards cost of
future medical treatment.
In Kishori Lal vs. E. S. I Corporation73 the appellant’s wife
was admitted in the ESI dispensary at Sonepat for treatment of
diabetes. However, her condition deteriorated and later her tests at
private hospital revealed that she has been diagnosed incorrectly at
the ESI dispensary. The appellant was insured with ESI Corporation.
The Supreme Court in the case held that the medical services rendered
by the ESI fall within the ambit of definition of service under Section
2(1)(o) of the Act and it cannot be regarded as free service. The
expense incurred for the service rendered in the hospital would be
borne by the contributions made to the insurance scheme by the
employer and the employee. Thus the person availing of such service,
whereunder the charges for consultation, diagnosis and medical
treatment borne by the insurer, such services fall within the ambit of
service under CPA.
In B. Reghupathi (Dr.) & Anr. vs B. Vasantha & Ors 74
complainant’s husband developed pain in his ear. After examination
by the appellant, it was found the pain was actually due to some
malignant growth in the throat. To know the nature of the growth,
biopsy was conducted. The patient died in operation theatre due to
cardiac arrest. It was found that the death occurred as anaesthesia
was not properly administrated. The appellant had failed to place the
endotracheal tube while administering anaesthesia, which had to be
introduced prior to biopsy to keep the patient’s lungs free, maintain
II(2007) CPJ 25(SC)

73
I (2008) CPJ 1 (NC)

74
the breathing and avoid mixing of particles from the food tube into
the air pipe of the human system. As the tube was not introduced, it
resulted in the food particles entering into the air pipe and blocking it,
thereby affecting the breathing of the patient and thereafter leading
to cardiac arrest. The National Commission held that in such
circumstances, the principle of res ipsa loquitur would apply because
the deceased went for biopsy but died of an event, which was not
disclosed by the appellant. It was held that cardiac arrest was
consequence of deficiency in administering anaesthesia.
In Nizam Institute of Medical Sciences vs Prasanth S.
Dhananka and others 75 the respondent Prasant S. Dhananka, a
student of Engineering, was admitted to the hospital for excision of
tumour. Immediately after the surgery, the complainant developed
acute paraplegia with a complete loss of control over the lower limbs,
and some other related complications, which led to prolonged
hospitalization and he was ultimately completely paralyzed with no
change in his sensory deficit. This made him incapable of all normal
chores. The Supreme Court held the opposite parties negligent as
they failed to take proper care in diagnosis and operation and there
was lack of informed consent. The complete investigations prior to
the actual operation had not been carried out. If a MRI or Myclography
had been performed, the intraspinal extension could well have been
revealed at the pre-operative stage which could have led to the
intervention of a Neuro Surgeon at the time of removal of the tumour
and the paraplegia perhaps avoided. On the question whether the
required consent for the excision of the tumour had been taken from
the complainant or his parents, the Court held that no consent for the
operation had been taken. The consent given by the complainant for
the excision biopsy cannot, by inference, be taken as an implied
consent for a surgery. It is clear from the evidence that there was no
urgency in the matter as the record shows that discussions for the
deferment of the proposed excision biopsy had taken place between
the complainant, his parents and the doctor and the consent for the
procedure had been obtained. However, any implied consent for the
excision of the tumour cannot be inferred. Confirming the findings
of the Commission, the Supreme Court held that the attending doctors
75
II (2009) CPJ 6 (SC)
were seriously remiss in the conduct of the operation and it was on

account of this negligence that the Paraplegia had set in. For the
negligence of the doctors the Court granted `1,00,05,000 as
compensation.
In Malay Kumar Ganguly’s case76 the patient Anuradha, a child
Psychologist by profession and her husband Dr. Kunal Saha, settled
in USA came to Calcutta on vacation. While in Calcutta, Anuradha
developed fever along with skin rash which became worse. Dr.
Mukherjee prescribed Depomedrol injection 80 mg twice daily for
the next three days. Despite administration of the said injection twice
daily, Anuradha’s condition deteriorated rapidly from bad to worse
over the next few days. Accordingly, she was admitted at the
Advanced Medicare Research Institute (AMRI). Anuradha was also
examined by Doctors at AMRI and it was found that she had been
suffering from Erithima plus blisters. Her condition, however,
continued to deteriorate further. As her condition deteriorated severely
she was shifted to Breach Candy Hospital, Mumbai where she
breathed her last. Dr. Saha filed a complaint before the National
Commission claimed an amount of compensation of ` 77,76,73,500/-
with interest for the alleged deficiency in the service rendered by
respondents. NCDRC opined that all the necessary care was taken
by Dr. Mukherjee and Dr. Haldar and there was no negligence on
the part of the doctors. On the question as to whether the respondents
were guilty of any negligence, the Supreme Court concluded that
treatment of Anuradha was not in accordance with the medical
protocol. Those who support use and administration of steroid do so
with note of caution. They in no uncertain terms state that the same
should be used at a preliminary stage. The opinion was that the
universally accepted medicated treatment protocol had also not been
followed. It was also noted that there may well be a difference of
opinion on the course of action to be adopted while treating a patient
of TEN, but the treatment line followed by Dr. Mukherjee which
entailed administration of 80 mg of Depomedrol injection twice was
not supported by any school of thought. The treatment line did not
flow from any considered affinity to a particular school of thought,
but out of sheer ignorance of basic hazards relating to use of steroids
as also lack of judgment.
Malay Kumar Ganguly vs Sukumar Mukherjee & Ors. III (2009) CPJ 17(SC)
76
In Ajay Gautam Vs. Amritsar Eye Clinic & Ors.77complainant/

appellant Ajay Gautam, came across an advertisement of the opposite
party-hospital-6/6 Lasik Laser Center, holding out claims about doing
away with the need for spectacles through laser surgery to bring the
refractive power to Zero (o) without any adverse effect on visual
acuity. The complainant met Dr. Dinesh Sharma for his aforesaid
treatment and after examination of his eyes, doctor assured and
promised to him that through lasik surgery P.R.K., he would bring
the refractive power of his eye to Zero without any effect on visual
acuity and that the problem would not recur. Dr. Sharma conducted
the P.R.K Surgery on the left eye. After the surgery, his left eye
became hyper-metropic due to which he could not see the near and
distant objects clearly. The complainant’s case that even after 16
months of the surgery, the vision of the complainant had not stabilized
and complainant’s best visual acuity did not improve to 6/6 and
continued to be 6/9. The complainant attributed the said reduction in
the vision in his left eye due to the negligence on the part of the
doctor in conducting the said procedure and they are guilty of adopting
unfair trade practice by publishing a misleading advertisement in the
newspapers. The doctor denied that any assurance or guarantee
was given to the complainant that his vision after the operation shall
be 6/6 without glasses and that he has not committed any unethical
practice.The expert observed that “unaided 6/6 vision cannot be
guaranteed to any patient irrespective of the actual surgical technique
used, as there is often a minor refractive error remaining after the
procedure, and there is also some risk of overcorrection. Unaided 6/
9 vision is not an uncommon occurrence after PRK and does not
indicate any deficiency in the procedure”. The National Commission
on the basis of expert opinion ruled out any deficiency in the
procedure and rejected the contention of the appellant that there
was any deficiency in conducting the PRK surgery on the left eye of
the complainant, as a result of which the unaided vision has settled
at 6/9. However, on the question as to whether the doctor could
have published the advertisement making the kind of claims in the
said advertisement, the Commission was of the opinion that it has
also been established that the doctor and the hospital are guilty of
77
NCDRC First Appeal No. 428 of 2004 decided on 28th August, 2012
adopting unfair trade practice within the meaning of section 2 (1) (r)
of the Consumer Protection Act, 1986 as well as violating the Code
of Ethics Regulations (Regulation No. 6.1) by publishing misleading
advertisement. The National Commission rejected the doctor’s
contention because the advertisement clearly held out to the
prospective patients about a kind of guarantee ‘to get rid of spectacles
and contact lenses’ and ‘to see the world at large without spectacles’.
Such a proclamation was sufficient to allure unwary intended patients
that their vision would be corrected to 6 /6 situation without the use
of the spectacles and contact lenses. In fact it was this advertisement
which had attracted the complainant to approach the respondent for
correction of his vision which could not be achieved to the extent
mentioned in the advertisement so the proclamation appeared to be
misleading. In the result appeal was partly allowed and hospital and
doctor were directed to pay lump sum compensation of `1, 00,000/-
to the complainant and also to give an undertaking before the
Commission that he will not publish any such advertisement in future.
Doctrine of Informed Consent
Informed consent means the consent of the patient to the
performance of the health care services provided by a registered
medical practitioner, that prior to the consent having been given, the
medical practitioner has informed the patient of the nature of the
proposed procedure or treatment, of those risks and alternative
treatment or diagnosis that a reasonable patient would consider
material to the decision whether or not to undergo treatment or
diagnosis.78
The doctrine of informed consent has developed in the law as
the primary means of protecting a patient’s right to control his or her
medical treatment. Under the doctrine, no medical procedure may
be undertaken without the patient’s consent obtained after the patient
has been provided with sufficient information to evaluate the risks
and benefits of the proposed treatment and other available options.
The doctrine presupposes the patient’s capacity to make a subjective
treatment decision based on her understanding of the necessary
medical facts provided by the doctor and on her assessment of her
78
K.Mathiharan & Amrit K. Patnaik, (Ed), Modi’s medical jurisprudence and
toxicology, 23rd Edn. 2005, Lexis Nexis, Butterworths at p. 100
own personal circumstances. A doctor who performs a medical

procedure without having first furnished the patient with information
needed to obtain an informed consent will have infringed the patient’s
right to control the course of her medical care, and will be liable in
battery even though the procedure was performed with a high degree
of skill and actually benefited the patient.79
Consent in the context of a doctor-patient relationship, means
the grant of permission by the patient for an act to be carried out by
the doctor, such as a diagnostic, surgical or therapeutic procedure.
Consent can be implied in some circumstances from the action of
the patient. For example, when a patient enters a Dentist’s clinic and
sits in the Dental chair, his consent is implied for examination, diagnosis
and consultation. Except where consent can be clearly and obviously
implied, there should be express consent. There is, however, a
significant difference in the nature of express consent of the patient,
known as ‘real consent’ in UK and as ‘informed consent’ in America.
In UK, the elements of consent are defined with reference to the
patient and a consent is considered to be valid and ‘real’ when (i) the
patient gives it voluntarily without any coercion; (ii) the patient has
the capacity and competence to give consent; and (iii) the patient
has the minimum of adequate level of information about the nature
of the procedure to which he is consenting to. On the other hand, the
concept of ‘informed consent’ developed by American courts, while
retaining the basic requirements of consent, shifts the emphasis to
the doctor’s duty to disclose the necessary information to the patient
to secure his consent. Informed consent’ is defined in Taber’s
Cyclopedic Medical Dictionary thus: “Consent that is given by a
person after receipt of the following information: the nature and
purpose of the proposed procedure or treatment; the expected
outcome and the likelihood of success; the risks; the alternatives to
the procedure and supporting information regarding those alternatives;
and the effect of no treatment or procedure, including the effect on
the prognosis and the material risks associated with no treatment.
Also included are instructions concerning what should be done if the
procedure turns out to be harmful or unsuccessful.”80According to
Section 90 of IPC, consent given under fear, fraud or
79
Malette vs. Shulman 72 OR (2d) 417 in Ontario Court of Appeal
80
Samira Kohli vs Dr. Prabha Manchanda & Anr I (2008) CPJ 56 (SC) para 14
misrepresentation of facts or by a person who is ignorant of the

implications of his consent, or who is under twelve years of age, is
invalid.
A doctor is required, as part of his duty of care to his patient, to
explain what he intends to do, and the implication involved, in the
way in which a responsible doctor in similar circumstances would
have done, and if there is a real risk of misfortune inherent in the
procedure, however well it is carried out, the doctor’s duty is to
warn of the risk of such misfortune. A medical practitioner should
inform his patient of the advantages and disadvantages, the risks
and benefits of the proposed course of treatment, so that the patient
may exercise his right of self-determination about the proposed course
of treatment including investigations performed for the purpose of
routine screening or for specific purpose of differential diagnosis.
When questioned specifically by a patient of apparently sound mind
about the risks involved in a particular treatment proposed, the
doctor’s duty is to answer both truthfully and fully as the questioner
requires.81
In Samira Kohli vs Dr. Prabha Manchanda82 the appellant,
an unmarried woman aged 44 years, visited the clinic of the
respondent complaining of prolonged menstrual bleeding for nine days.
The respondent examined and advised her to undergo an ultrasound
test on the same day. After examining the report, the respondent had
a discussion with appellant and advised her to come on the next day
for a laparoscopy test under general anesthesia, for making an
affirmative diagnosis. Next day, the appellant went to the respondent’s
clinic with her mother. On admission, the appellant’s signatures were
taken on: (i) admission and discharge card; (ii) consent form for
hospital admission and medical treatment; and (iii) consent form for
surgery. The Admission Card showed that admission was for
diagnostic and operative laparoscopy.When the appellant was still
unconscious, Dr. Lata Rengen, who was assisting the respondent,
came out of the Operation Theatre and took the consent of appellant's
mother, who was waiting outside, for performing hysterectomy under
general anesthesia. Thereafter, the respondent performed a abdominal
81
Sidaway vs. Board of Governors of Bethlem Royal Hospital and the Maudsley
Hospital (1984) QB 493
82
I (2008) CPJ 56 (SC)
hysterectomy (removal of uterus) and bilateral salpingo-

oopherectomy (removal of ovaries and fallopian tubes).The appellant
filed a complaint before the National Consumer Disputes Redressal
Commission claiming a compensation of `25 lakhs from the
respondent. The appellant alleged that respondent was negligent in
treating her; that the radical surgery by which her uterus, ovaries
and fallopian tubes were removed without her consent, when she
was under general anesthesia for a Laparoscopic test, was unlawful,
unauthorized and unwarranted; that on account of the removal of
her reproductive organs, she had suffered premature menopause
necessitating a prolonged medical treatment and a Hormone
Replacement Therapy (HRT) course, apart from making her
vulnerable to health problems by way of side effects. The
compensation claimed was for the loss of reproductive organs and
consequential loss of opportunity to become a mother, for diminished
matrimonial prospects, for physical injury resulting in the loss of vital
body organs and irreversible permanent damage, for pain, suffering
emotional stress and trauma, and for decline in the health and
increasing vulnerability to health hazards.
Holding the respondent liable for negligence the Supreme Court
held that prior to surgery, clear, real and valid consent is a must.
There was an unauthorized removal of reproductive organs when
the patient got admitted for Diagnostic Laparoscopy and the consent
had to be obtained before commencing the treatment. Unauthorized
additional surgery may be beneficial to the patient or would save
considerable time, expense, pain and suffering, but it is no ground of
defence in action in torts, for negligence, assault, battery. Consent
given for diagnostic and operative Laparoscopy and Laparotomy if
needed, does not amount to consent for OH-BSO surgery meant for
removing reproductive organs. Patient when competent adult, there
is no question of someone else giving consent. Consent given by the
mother not valid or real consent. Only exception, where additional
procedure though unauthorized can be necessary, is in order to save
life or preserve health of a patient.
Summarizing the principles relating to consent the Supreme
Court held as follows:
(i) A doctor has to seek and secure the consent of the patient
before commencing a ‘treatment’ (the term ‘treatment’
includes surgery also). The consent so obtained should be

real and valid, which means that: the patient should have the
capacity and competence to consent; his consent should be
voluntary; and his consent should be on the basis of adequate
information concerning the nature of the treatment procedure,
so that he knows what he is consenting to.
(ii) The ‘adequate information’ to be furnished by the doctor
(or a member of his team) who treats the patient, should
enable the patient to make a balanced judgment as to whether
he should submit himself to the particular treatment or not.
This means that the doctor should disclose (a) nature and
procedure of the treatment and its purpose, benefits and
effect; (b) alternatives if any available; (c) an outline of the
substantial risks; and (d) adverse consequences of refusing
treatment. But there is no need to explain remote or
theoretical risks involved, which may frighten or confuse a
patient and result in refusal of consent for the necessary
treatment. Similarly, there is no need to explain the remote
or theoretical risks of refusal to take treatment which may
persuade a patient to undergo a fanciful or unnecessary
treatment. A balance should be achieved between the need
for disclosing necessary and adequate information and at
the same time avoid the possibility of the patient being deterred
from agreeing to a necessary treatment or offering to undergo
an unnecessary treatment.
(iii) Consent given only for a diagnostic procedure, cannot be
considered as consent for therapeutic treatment. Consent
given for a specific treatment procedure will not be valid for
conducting some other treatment procedure. The fact that
the unauthorized additional surgery is beneficial to the patient,
or that it would save considerable time and expense to the
patient, or would relieve the patient from pain and suffering
in future, are not grounds of defence in an action in tort for
negligence or assault and battery. The only exception to this
rule is where the additional procedure though unauthorized,
is necessary in order to save the life or preserve the health
of the patient and it would be unreasonable to delay such
unauthorized procedure until patient regains consciousness
and takes a decision.
(iv) There can be a common consent for diagnostic and operative

procedures where they are contemplated. There can also
be a common consent for a particular surgical procedure
and an additional or further procedure that may become
necessary during the course of surgery.
(v) The nature and extent of information to be furnished by the
doctor to the patient to secure the consent need not be of
the stringent and high degree but should be of the extent
which is accepted as normal and proper by a body of medical
men skilled and experienced in the particular field. It will
depend upon the physical and mental condition of the patient,
the nature of treatment, and the risk and consequences
attached to the treatment.
In Dr. Sathy M. Pillai & Anr. vs. S. Sharma & Anr.83 the
hospital obtained informed consent from the patient and the relatives
on the printed forms in Malayalam wherein certain English words
like ‘blood transfusion, Ultra Sound Scan’ were mentioned. But there
was no specific mention of the surgery viz. cervical encirclage and
the type of anaesthesia namely spinal anaesthesia or local anaesthesia.
Signatures were taken from patient/ relative in mechanical fashion,
much in advance of date scheduled for surgery. The National
Commission held that such forms cannot be considered by any stretch
of imagination that there was an informed consent.
In a case where complainant suffered from Dysfunctional
Uterine Bleeding (DUB) and her consent was taken for removal of
uterus through Total Abdominal Hysterectomy (TAH). However,
hysterectomy operation was performed initially through vaginal route
and thereafter through abdominal route, resulting in rupture of blood
vessel and avulsion of vein. As a result ovaries and left kidney were
removed. The National Commission held that express consent was
obtained only for TAH and no material was produced by the opposite
party for choosing vaginal route instead of TAH. Opposite party
transgressed the authority and consent given by the complainant which
amounts to deficiency in service. 84 In M. Chinnaiyan vs. Sri
83
IV (2007) CPJ 131 (NC)
84
Saroj Chandhoke vs. Ganga Ram Hosp. & Anr. III(2007)CPJ 189 (NC)
Gokulam Hosp. & Anr.85 the complainant during hysterectomy

operation was transfused two units of blood which was contaminated
with HIV Virus which resulted in death from HIV-AIDS after three-
and-a-half years. The National Commission held that surgery involves
risk and blood transfusion involves additional risk so the consent of
the patient was also required for transfusion of blood. In the case, it
is clear from the records that the complainant has given consent
only for hysterectomy operation to be performed under general
anaesthesia and not for transfusion of blood.
In Ramgopal Varshney vs. Lasor Sight India Pvt. Ltd. 86 the
doctor did not obtain the consent of a patient for a cataract surgery
even though he was conscious, mentally alert and capable of giving
consent. Consent was given by the grandson of the patient. The
National Commission held that there was deficiency in service in not
obtaining the consent of the patient and also observed:
“The concept of informed consent has come to the fore in recent
years and many actions have been brought by patients who
alleged that they did not understand the nature of the medical
procedure to which they give consent. All information must be
explained in comprehensible non-medical terms preferably in
local language about the (i) diagnosis (ii) nature of treatment
(iii) risk involved (iv) prospects of success (v) prognosis of the
procedure if not performed and (vi) alternative methods of
treatment. The three important components of such consent are
information, voluntariness and capacity.”
Informed Consent – Exceptions

There are three exceptions to the duty of disclosure which
are as follows:87
Therapeutic Privilege-In non-elective treatment, one
which is essential from a therapeutic point of view, where
there is no choice to the patient but to opt for it, a doctor can
invoke the protection of therapeutic privilege for non-
85
III (2007) CPJ 228 (NC)
86
I (2009) CPJ 23 (NC),
87
M. K. Balachandran, Consumer Protection Act and Medical Profession, CCS,
IIPA, 2006, pp. 28
disclosure. It cannot be extended to an elective treatment or

a non-life threatening treatment like sterilization operation
i.e one that a patient is free to choose.
The exception of therapeutic privilege applies when the physician
or the surgeon believes in the exercise of sound medical judgment,
that the patient is so anxiety prone or disturbed that the information
would not be processed rationally that it would probably cause
significant psychological harm. In such cases consultation with another
physician familiar with the patient (family doctor), with a close relative
or friend, or both, is advisable.88
Emergency- In case of emergency or unconsciousness all
the considerations regarding consent will be set aside and
doctor will do whatever is necessary to save the life of the
patient or to prevent permanent disability or necessary pain
or suffering. A doctor can lawfully operate on or give other
treatment to adult patients who are incapable of consenting
to his doing so, provided the treatment is in the best interests
of such patients i.e. it has been carried out either to save
their lives or to ensure improvement or prevent deterioration
in their physical or mental health. Thus in circumstances of
great urgency warranting immediate treatment to save the
life of a patient there is no time to disclose the risks, the
nature of proposed treatment and alternative methods of
treatment and as such the doctor can withhold the information
with immunity from liability.
In Dr. T.T. Thomas vs. Elisa 89 the patient was admitted in the
General Hospital, Ernakulam with complaints of severe abdominal
pain. It was diagnosed as a case of “perforated appendix with
peritonitis” and was advised immediate operation. Dr. T.T. Thomas,
the appellant, who was one of the civil surgeons of the General Hospital
during the relevant time, examined the patient and confirmed the
diagnosis, pursuant to which the patient was removed from the
Casualty Ward to the Surgical Ward. No surgery was performed on
88
K.Mathiharan & Amrit K. Patnaik, (Ed), Modi’s medical jurisprudence and
toxicology, 23rd Edn., 2005, LexisNexis, Butterworths at p. 100
89
I (1987) ACC 445, AIR 1987 Ker 52
the patient on the day of his admission in the hospital. On the next
day his condition deteriorated fast and surgery could not be performed
on him and later he died. The main contention of the appellant was
that no surgery was done on the patient on day of admission because
of the reluctance of the patient to undergo a surgery saying that “he
had similar attacks before and he used to get relief with injections
and other medicines.” Therefore, other measures were taken to
ameliorate the condition of the patient, which grew worse by the
next day. Finally, the court delivered a verdict in favour of the
plaintiffs stating that consent under such an emergent situation is
not mandatory. The High Court observed that the consent factor
may be important very often in cases of selective operations, which
may not be imminently necessary to save the patient’s life. But
there can be instances where a surgeon is not expected to say that
‘I did not operate on him because, I did not get his consent’. Such
cases very often include emergency operations where a doctor
cannot wait for the consent of his patient or where the patient is
not in a fit state of mind to give or not to give a conscious answer
regarding consent. Even if he is in a fit condition to give a voluntary
answer, the surgeon has a duty to inform him of the dangers ahead
of the risks involved by going without an operation at the earliest
time possible. When a surgeon or medical man advances a plea
that the patient did not give his consent for the surgery or the course
of treatment advised by him, the burden is on him to prove that the
non-performance of the surgery or the non-administration of the
treatment was on account of the refusal of the patient to give
consent thereto. This is especially so in a case where the patient is
not alive to give evidence. Consent is implicit in the case of a patient
who submits to the doctor and the absence of consent must be
made out by the patient alleging it.
Section 92 of IPC offers immediate immunity for registered
medical practitioner to proceed with appropriate treatment even
without consent of the patient in an emergency situation when the
victim is incapable of understanding the nature of the treatment or
when there is no legal heirs to sign the consent.
Waiver- A patient may repose his confidence on a doctor
and request him not to furnish any information, in which case
the doctor may get a privilege of withholding information.
Burden of Proof
The general rule of negligence is that the burden of proving
negligence lies on the party who alleges it. It is for the patient
complainant to establish his claim against the medical man. If the initial
burden of negligence is discharged by the claimant, it would be for the
hospital and the doctor concerned to substantiate their defence that
there was no negligence. Thus the complainant must allege specific
act of negligence and prove how that amounts to negligence. This has
to be supported by expert evidence or medical literature on the subject.
A charge of negligence affects the professional status and reputation
of a doctor. Therefore, the burden of proof on the part of the
complainant alleging negligence of the doctor is correspondingly greater.
A finding not based on any expert evidence cannot be sustained. In
Clark vs Maclenna90, it has been held as under:
“Although in an action in negligence the onus of proof normally
rested on the plaintiff, in a case where a general duty of care
arose and there was a failure to take a recognised precaution
and that failure was followed by the very damages which that
precaution was designed to prevent, the burden of proof lay on
the defendant to show: first that he was not in breach of any
duty and second, if he had not been in breach of duty , that the
damage suffered by the plaintiff did not result from the breach.
Accordingly, doctor owned a duty to his patient to observe the
precautions which were normal in the course of treatment that
he gave. Whether a patient suffered damages after there had
been departure from the orthodox course of treatment, the court
had to enquire whether the doctor had taken all proper factors
into account prior to taking action in order to determine whether
that departure was justified.”
The Supreme Court in Indian Medical Association vs V.P.
Shantha & Ors.91 has observed as under:
“It is no doubt true that sometimes complicated questions
requiring recording of evidence of experts may arise in a
complaint about deficiency in service based on the ground of
90
1983 (1) All ER 416
91
III (1995) CPJ 1 (SC)
negligence in rendering medical services by a medical practitioner,

but this would not be so in all complaints about deficiency in
rendering services by a medical practitioner. 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 wrong limb or the performance
of operation on wrong patient or giving injection of a drug to
which the patient is allergic without looking into the outpatient
card containing the warning as in Chinkeow v Government of
Malaysia, (1967) 1WLR 813 P.C or use of wrong gas during
the course of anesthetic or leaving inside the patient swabs or
other items of operating equipment after surgery.”
Medical science is a difficult one. The court for the purpose of
arriving at a decision on the basis of the opinions of experts must
take into consideration the difference between an ‘expert witness’
and an ‘ordinary witness’. The opinion must be based on a person
having special skill or knowledge in medical science. It could be
admitted or denied. Whether such evidence could be admitted or
how much weight should be given thereto, lies within the domain of
the court. The evidence of an expert should, however, be interpreted
like any other evidence. The Supreme Court in State of H.P. v. Jai
Lal and others, [ (1999) 7 SCC 280] held that an expert is not a
witness of fact. His evidence is really of an advisory character. The
duty of an expert witness is to furnish the Judge with the necessary
scientific criteria for testing the accuracy of the conclusions so as to
enable the Judge to form his independent judgment by the application
of this criterion to the facts proved by the evidence of the case. The
scientific opinion evidence, if intelligible, convincing and tested
becomes a factor and often an important factor for consideration
along with the other evidence of the case. The credibility of such a
witness depends on the reasons stated in support of his conclusions
and the data and material furnished which form the basis of his
conclusions. The report submitted by an expert does not go in evidence
automatically. He is to be examined as a witness in court and has to
face cross- examination.92
The role of expert medical witness is to inform the judge so as to
guide him to correct conclusions. It must be for the judge to guess
Malay Kumar Ganguly vs Sukumar Mukherjee & Ors. III (2009) CPJ 17(SC)
92
the weight and usefulness of such assistance as he is given and to

reach his own conclusions accordingly. An expert witness in a given
case normally discharges two functions. The first duty of an expert
is to explain technical issues as clearly as possible so that it can be
understood by a common man. The other function is to assist the
court in deciding whether the acts or omissions of medical
practitioners or the hospital constitute negligence. In doing so, the
expert can throw considerable light on the current state of knowledge
in medical science at the time when patient was treated. In most of
the cases, the question whether a medical practitioner or hospital is
negligent or not, is a mixed question of fact and law and courts are
not bound in every case to accept the opinion of expert witness.
Although in many cases the opinion of expert witness may assist the
court to decide the controversy one way or the other.93
In Savita Garg (Smt.)vs. Director, National Heart Institute94
it has been observed as under:
“Once an allegation is made that the patient was admitted in a
particular hospital and evidence is produced to satisfy that he
died because of lack of proper care and negligence, then the
burden lies on the hospital to justify that there was no negligence
on the part of the treating doctor or hospital. Therefore, in any
case, the hospital is in a better position to disclose what care
was taken or what medicine was administered to the patient. It
is the duty of the hospital to satisfy that there was no lack of
care or diligence. The hospitals are institutions, people expect
better and efficient service, if the hospital fails to discharge their
duties through their doctors, being employed on job basis or
employed on contract basis, it is the hospital which has to justify
and not impleading a particular doctor will not absolve the hospital
of its responsibilities.”
In Nizam Institute of Medical Sciences vs. Prasanth S.
Dhananka & Ors.95 the Supreme Court held that in a case involving
medical negligence, once the initial burden has been discharged by
93
Kiran Gupta, The standard of care and proof of negligence in medical profession-
A shift from Bolam to Bolitho, National Capital Law Journal, Vol XIV-XV, 2011-
2012, pp. 1-43, at p. 34
94
(2004) 8 SCC 56
95
II(2009) CPJ 61(SC)
the complainant by making out a case of negligence on the part of

the hospital or the doctor concerned, the onus then shifts on to the
hospital or to the attending doctors and it is for the hospital to satisfy
the Court that there was no lack of care or diligence.
The plaintiff in case of medical negligence is ordinarily required
to produce, in support of his claim, the testimony of qualified medical
experts. This is because the technical aspects of the claim will
ordinarily be far beyond the competence of the judges as they lack
the special expertise in the relevant field and are incapable of judging
whether the facts described by the plaintiff add upto negligent
conduct. In Sethuraman Subramaniam Iyer vs Triveni Nursing
Home & Anr.96 the Complainant’s wife was suffering from Sinusitis.
Dr. Rao had diagnosed a condition of deviated Nasal Septum and
advised her that a minor operation would cure the ailment
permanently. She was assured that there was no risk and the mortality
rate was nil. During the operation she suffered massive heart attack
and died. The State Commission dismissed the complaint and held
that opposite party 2 had taken necessary precautions and effective
measures to save deceased. The SCDRC relied on the affidavits of
four doctors whose services were requisioned by opposite party 2.
Complainant had not given any expert evidence to support allegations.
In appeal the National Commission held that in absence of any expert
evidence on behalf of the complainant, the State Commission was
right in relying upon the affidavits filed by the four doctors on behalf
of the respondents. The State Commission was right in holding that
there was no negligence on the part of the respondents. The State
Commission rightly analysed and appreciated the materials placed
on the record.
In Nirmalendu Paul vs Dr. P.K. Bakshi & Anr.,97 dismissing
the complaint the State Commission held that the complainant
consulted various renowned Physicians of his town but none of them
has observed that the loss of vision was attributable to the wrong
surgery done by Opposite Party. The complainant did not examine
any expert on the subject to establish his allegation of negligence on
the part of the doctor. The complainant should establish negligence
on the part of the doctor to succeed in a case like this. There is
I (1998) CPJ 110 (NC)
96
I (2001) CPJ 466 (WB SCDRC)

97
hardly any cogent material to substantiate the allegations contained

in the petition of the complainant. Under the circumstances the
complainant has failed to prove the allegations against the opposite
parties.
In Dr. A.S. Nagpal & Anr. vs. Krishan Lal98 the complainant
approached Dr. Nagpal for treatment of his right eye and was
operated upon. At the time of discharge he was suffering from heavy
pain and flow of water from right eye. Later he contacted Dr. B.S.
Chhabra who advised him to approach Dayanand Medical College
and Hospital, Ludhiana. The Complainant went for treatment there.
He lost vision in right eye completely and there was loss of vision in
the left eye to the extent of 25 percent. The complainant alleged
negligence on the part of opposite party. The State Commission held
that present is not a case of prima facie negligence on part of opposite
party. It is a case where negligence on part of opposite party in
performing the operation on the right eye was required to be established
from direct evidence or expert evidence. Under section 13 of the
Consumer Protection Act, procedure is prescribed for the trial of
complaints. Under Section 13(4) of the Act, the evidence on affidavits
could also be received. No doubt, complainant in his affidavit stated
that he was operated upon by the opposite party and thereafter, he
consulted Dr. Chhabra who referred him to Dayanand Medical College
and he was treated there. But his affidavit as such cannot be treated
as sufficient to prove the prescription slip of Dr. Chhabra or the like
documents of Dayanand Medical College as he made no reference to
such documents in his affidavit filed before the District Forum. Before
the District Forum, it was asserted in the written statement as well in
the affidavit filed by the opposite party that an opportunity to cross
examine Dr. Chhabra or any other doctor from Dayanand Medical
College, an expert should be afforded. Incidentally, in the impugned
order, there is no reference in this context. As observed by the Supreme
Court in the case of Indian Medical Association, medical negligence
on the part of the doctor is to be proved as a fact by leading evidence
which may be of an expert. Present is a case which could not be
decided simply on the affidavit of the complainant that after few days
of the operation, defect was noticed in the right eye and partial loss of
98
III (1996) CPJ 220 Punjab SCDRC
vision in left eye was on that account. It may be observed at this stage
that there is a gap of about two weeks in between the treatment taken
from the opposite party and subsequently, taken from Dayanand
Medical College. During this interval of about 15days, there is no
evidence as to the type of treatment taken by the complainant. Only
reference is made to the argument of learned counsel for the opposite
party –the appellant that infection was noticed in right eye at the time
of admission of the complainant in the Dayanand Medical College and
such infection which was bacterial could occur within 3-4 days and
caused damage to the eye. This infection found subsequently could
not be correlated with the operation of the eye performed by the
opposite party.
In N.S. Sahota vs New Ruby Hosp. & Ors.99 Complainant’s
wife was admitted in the respondent hospital. The complainant alleged
that Dr. Mandeep Singh Sethi could not properly diagnose the disease
of his wife and whatever treatment was given by him was not proper.
The State Commission held that after going through the records, it is
clear that the doctors tried to the best of their knowledge and ability to
save the life of the patient. There is nothing on record to suggest that
the opposite parties were negligent in the management of the patient.
There was nothing to infer that the diagnosis made by Dr. Sethi or his
line of treatment was not proper especially when her daughter Dr.
Kuldip Kaur, M.D. and Dr. Harmanjit Singh Heera, MD (son in law of
deceased) have said nothing in their affidavits against the line of
treatment given to the deceased by the opposite party no. 3. Even
otherwise, their affidavits seem to be based on sentimental grounds
being close relations of the deceased. The case in hand is not a case
of obvious or apparent negligence on the part of the opposite party in
the matter of diagnosing the disease. In order to prove negligence it
was expected of the complainant to produce medical expert. Since
the present case does not fall in the first category of cases of apparent
negligence on the part of doctor, the evidence produced by the
complainant himself is considered insufficient to prove negligence of
the doctor, more so, in the absence of any medical witness produced
on the subject. In the matter of giving proper treatment or delay, if any,
in referring the patient for specialised treatment depends upon the
opinion given by the experts. There is no evidence on record that the
II (2000) CPJ 345 Punjab SCDRC
99
doctors were negligent in discharging their duty in the instant case.

The burden of proving the negligent act or wrong diagnosing was on
the complainant. The complainant has not produced any direct expert
evidence to show that the treatment given to his wife by the opposite
parties was wrong which resulted in her death alleging deficiency in
service.
In Nadiya’s case100 the complainant attracted by an advertisement
in the newspaper which declared that ‘a dwarf could become Amitab
Bachan of tomorrow’, approached opposite party’s hospital for
surgery for increasing the height. Corticotomy surgery with external
fixator was done. The left leg remained shorter by 1½ inch than the
right leg. A healthy girl after the surgery required the aid of walker
as she had to lean on the left. It was contended by the opposite party
that the complications arose because of failure to adhere to
instructions. The Commission held that it is settled position that in a
complaint which alleges negligence on part of a medical practitioner
the burden of proof is on the complainant. The burden on a complainant
to establish negligence has to be judged on the facts of each case. In
this case the complainant filed an affidavit detailing her case as well
as offered for cross-examination, that she had to go to Apollo hospital
is not challenged in the cross-examination. None of the opposite
parties has tendered any evidence either oral or documentary except
producing the case file. The question is whether the failure to examine
the said doctor, in the facts and circumstances of this case, would
adversely affect the case of the complainant has to be judged in the
context of the nature of the case pleaded by the opposite party, the
affidavit evidence and material produced. The complainant when
she has consulted the 2nd opposite party was healthy without any
complaint. Her position after the surgery at the discharge from the
hospital along with the said evidence would show the burden is shifted
to the opposite parties to substantiate their case that the lifting of the
left limb was due to a complication which developed later. With regard
to the nature of the case pleaded by 2nd opposite party and the
evidence tendered by the complainant, unless the opposite parties
substantiate, that deformity is the result of the condition pleaded by
them, the case of the complainant in this regard has to be accepted.
Nadiya vs Proprietor Fatima Hospital & Ors.II (2001) CPJ 93 (Kerala
100
SCDRC)
In Bolitho v. City and Hackney Health Authority101, the House

of Lords held that in cases of diagnosis and treatment there are
cases where, despite a body of professional opinion sanctioning the
defendant’s conduct, the defendant can properly be held liable for
negligence (I am not here considering questions of disclosure of risk).
It is because, in some cases, it cannot be demonstrated to the judge’s
satisfaction that the body of opinion relied upon is reasonable or
responsible. In the vast majority of cases the fact that distinguished
experts in the field are of a particular opinion will demonstrate the
reasonableness of that opinion. In particular, where there are
questions of assessment of the relative risks and benefits of adopting
a particular medical practice, a reasonable view necessarily
presupposes that the relative risks and benefits have been weighed
by the experts in forming their opinions. But if, in a rare case, it can be
demonstrated that the professional opinion is not capable of
withstanding logical analysis, the judge is entitled to hold that the body
of opinion is not reasonable or responsible. It will very seldom be right
for a judge to reach the conclusion that views genuinely held by a
competent medical expert are unreasonable. The assessment of
medical risks and benefits is a matter of clinical judgment which a
judge would not normally be able to make without expert evidence.
However, it would be wrong to allow such assessment to deteriorate
into seeking to persuade the judge to prefer one of two views both of
which are capable of being logically supported. It is only where a
judge can be satisfied that the body of expert opinion cannot be logically
supported at all that such opinion will not provide the bench mark by
reference to which the defendant’s conduct falls to be assessed.
As regards the stage at which the expert evidence is required, a
great deal of confusion regarding medical negligence cases before
the consumer fora was created by two Judge Bench decision in
Martin F. De’Souza vs. Mohd. Ishfaq 102 in which a criminal
complaint against a doctor or hospital was equated with a complaint
before the Consumer Fora and following directions were passed for
the consumer fora:
“Whenever a complaint is received against a doctor or hospital
101
[1997] 4 All ER 771
102
2009 CTJ 352 (SC)(CP)
by the Consumer Fora (whether District, State or National) or

by the Criminal Court then before issuing notice to the doctor or
hospital against whom the complaint was made the Consumer
Forum or Criminal Court should first refer the matter to a
competent doctor or committee of doctors, specialized in the
field relating to which the medical negligence is attributed, and
only after that doctor or committee reports that there is a prima
facie case of medical negligence should notice be then issued to
the concerned doctor/hospital. This is necessary to avoid
harassment to doctors who may not be ultimately found to be
negligent. We further warn the police officials not to arrest or
harass doctors unless the facts clearly come within the
parameters laid down in Jacob Mathew’s case, otherwise the
policemen will themselves have to face legal action.”
The resultant effect of the above verdict was that no more
straightaway registration of consumer complaints against medical
practitioner could be possible. Before admitting any complaint against
the doctor or hospital the consumer forum must have obtained expert
opinion as a prerequisite. The Supreme Court decision in Martin F. D’
Souza’s case was reviewed and reversed in the verdict in Krishna
Rao vs. Nikhil Super Specialty Hospital103 wherein the Supreme
Court held:
“We are of the view that aforesaid directions are not consistent
with the law laid down by the larger Bench in Jacob Mathew. In
Mathew, the direction for consulting the opinion of another doctor
before proceeding with criminal investigation was confined only
in cases of criminal complaint and not in respect of cases before
the Consumer Fora. The reason why the larger Bench in Mathew
did not equate the two is obvious in view of the jurisprudential
and conceptual difference between cases of negligence in civil
and criminal matter. This has been elaborately discussed in
Mathew. This distinction has been accepted in the judgment of
this Court in Malay Kumar Ganguly 2009 CTJ 1064(SC) (CP).
Therefore, the general directions in D’souza case are, with great
respect, inconsistent with the directions given in Mathew (supra)
which is a larger Bench decision. Those directions in D’souza
103
III (2010) CPJ I (SC)
are also inconsistent with the principles laid down in another

three-Judge Bench of this Court rendered in Indian Medical
Association wherein a three-Judge Bench of this Court, on an
exhaustive analysis of the various provisions of the Act, held
that the definition of `service’ under Section 2(1)(o) of the Act
has to be understood on broad parameters and it cannot exclude
service rendered by a medical practitioner. About the requirement
of expert evidence, this Court made it clear in Indian Medical
Association that before the Fora under the Act both simple and
complicated cases may come. In complicated cases which
require recording of evidence of expert, the complainant may be
asked to approach the civil court for appropriate relief. This Court
opined that Section 3 of the Act provides that the provisions of
the Act shall be in addition to and not in derogation of the provisions
of any other law for the time being in force. Thus the Act
preserves the right of the consumer to approach the civil court
in complicated cases of medical negligence for necessary relief.
But this Court held that cases in which complicated questions do
not arise the Forum can give redressal to an aggrieved consumer
on the basis of a summary trial on affidavits.”
The Supreme Court thus concluded that:

“In view of the aforesaid clear formulation of principles on the
requirement of expert evidence only in complicated cases, and
where in its discretion, the Consumer Fora feels it is required the
direction in paragraph 106, quoted above in D’souza for referring
all cases of medical negligence to a competent doctor or committee
of doctors specialized in the field is a direction which is contrary
to the principles laid down by larger Bench of this Court on this
point. In D’souza the earlier larger Bench decision in Dr. J. J.
Merchant has not been noticed. Apart from being contrary to the
aforesaid two judgments by larger Bench, the directions in paragraph
106 in D’souza is also contrary to the provisions of the said Act
and the Rules which is the governing statute.”
Applicability of Res ipsa loquitur in Medical Negligence

Res ipsa loquitur or res ipsa, as it is commonly called, is a rule
of evidence, not a rule of Substantive Law. It is a Latin maxim
which means ‘the thing speaks for itself’. A rebuttable presumption

or inference that the defendant was negligent, which arises upon
proof that the instrumentality or condition causing the injury was in
the defendant’s exclusive control and that the accident was one that
ordinarily does not occur in the absence of negligence. Res ipsa
loquitur is one form of circumstantial evidence that permits a
reasonable person to surmise that the most probable cause of an
accident was the defendant’s negligence. Three basic requirements
must be satisfied before a court can decide the question of negligence
under res ipsa loquitur.
Inference of Negligence: The plaintiff’s injury must be of
a type that does not ordinarily occur unless someone has
been negligent.
Exclusive Control by the Defendant: The plaintiff’s injury
or damage must have been caused by an instrumentality or
condition that was within the exclusive control of the
defendant.
Freedom from Contributory Negligence: The event in
question must not have been attributable to any cause for
which the plaintiff is responsible. The plaintiff must not have
done anything that significantly contributed to the accident
that caused the injury.
Res ipsa loquitur is usually used when there is no direct evidence
of the defendant’s negligence. On the basis of the facts presented to
the court it decides the credibility and weight of the inference to be
drawn from the known facts and the court can conclude that the
defendant was negligent. If the defendant offers no explanation, the
court can direct a verdict for the plaintiff if the inference is so strong
that reasonable jurors could not reach any other conclusion. If the
defendant presents evidence that makes it unlikely that he has acted
negligently, the plaintiff will lose his case unless he can rebut the
evidence, since such evidence destroys the inference of negligence
created by res ipsa.104
In medical negligence cases also sometimes hardship is caused
to the plaintiff in proving negligence on the part of defendant as the
104
Res ipsa loquitur http://legal-dictionary.thefreedictionary.com/
res+ipsa+loquitur
true cause of the accident is not known to him, but is solely within
the knowledge of the defendant who caused it. Plaintiff can prove
the accident but cannot prove how it happened to establish negligence
on the part of the defendant. Where thing is shown to be under
control and management of the defendant or his servants, and the
accident is such as in ordinary course of things does not happen if
those who have the management use proper care, it affords
reasonable evidence, in the absence of explanation by the defendant,
that the accident arose from want of care.Therein the doctrine of
res ipsa loquitur has been applied. The maxim has been applied in
instances like where due to complications death of the patient
occurred in four walls of the operation theatre where patient’s relatives
had no access, the onus lies on the defendant to explain the events
that lead to the death of the patient,105 where mop (towel) was left
inside the peritoneal cavity of the patient during sterilization operation
resulting in death of the patient,106 sponge was left inside in the
abdomen of the patient during caesarean operation,107 leaving artery
forceps inside the abdomen of the patient during caesarean
operation,108 where dental surgeon slipped needle into the stomach
of the patient at the time of irrigating the mouth after extraction of
right molar teeth of the patient.109 Deficiency in service may be due
to obvious faults such as removal of wrong limb or performance of
an operation on the wrong patient or giving injection of a drug to
which the patient is allergic without looking into the outpatient card
containing the warning110 or use of a wrong drug during the course
of anaesthesia or leaving inside the patient swabs or other items of
operating equipment after surgery. In Spring Meadows Hospital
vs. Harjol Ahluwalia111 the Supreme Court has held:
“Gross medical mistake will always result in finding of
negligence. Use of wrong drug or wrong gas during the course of
anaesthesia will frequently lead to the imposition of liability and in
105
Arunaben D. Kothari vs. Navdeep Clinic 1996 (3) CPR 20 (Guj)
106
Achutrao Haribhan Khodwa vs. State of Maharashtra (1996) 2 SCC 634
107
Aleyamma Varghese vs. Dewan Bahadur Dr. vs. Varghese 1997 (1) CPR 310 (ker)
108
Ms. Sau Madhuri vs. Dr. Rajendra 1996 (3) CPR 174 (NC)
109
Amblappa vs Sriman D. Veerendra Heggade 1999(3) CPR 72 (Bangalore)
110
As in Chinkeow vs. Government of Malaysia (1967) 1WLR 813 P.C.
111
I (1998)CPJ 1(SC)
some situations even the principle of res ipsa loquitur can be

applied.”
In Nanjappa Hosp. & Anr. vs P.S. Shylaja 112 the doctor
removed the sutures within seven days of operation without waiting
for the complete healing of the wound as a result the complainant
was made to suffer burst abdomen. The National Commission applied
the principle of res ipsa loquitur and held that it was deficiency in
service.
In Smt. Bhanupal vs Dr. Prakash Padode & Ors.113 the patient,
complainant’s husband was admitted for operation of hernia and same
day operation was conducted. The patient died within 10 hours of
admission in the operation theatre, in mysterious circumstances. The
complainant alleged that her husband died due to high dose of
anaesthesia. The Commission held that:
“In doctrine of common knowledge the patient’s relatives must
prove positive act of omission but they need not produce evidence
to establish the standard of care as entire operative procedure
was carried out in the absence of any patient’s relatives. Naturally,
when all such medical or surgical procedure was carried out
inside the operation theatre when nobody on the behalf of the
patient was present, the patient’s relatives were unable to see
any kind of medical/ surgical procedure or what exactly happened
inside the operation theatre. Therefore, the opposite parties and
the staff attending inside only had special knowledge of what
happened inside the operation theatre and the complainant is not
in a position to exactly state the factual aspects of whatever
took place inside are all necessity of evidence in order to prove
the medical negligence occurring on the hands of the opposite
parties. Therefore, it was a duty cast upon the opposite parties
to prove the fact that no sort of negligence took place inside the
operation theatre. Thus, the onus of proof shifting upon the
opposite parties to substantiate the fact that there was no
negligence on their part.”
112
III (2011) CPJ 360 (NC)
113
II (2000) CPJ 384 (MP SCDRC)
Emergency Care
In Pt. Paramanand Katara vs. Union of India & Ors.,114 the
Supreme Court speaking through Justice Ranganath Misra, in the
context of medico-legal cases, has emphasized the need for rendering
immediate medical aid to injured persons to preserve life and the
obligations of the State as well as doctors in that regard. In the case
a scooterist who was knocked down by a speeding car was taken to
the nearest hospital but the doctors there refused to attend on him.
They told that he be taken to another hospital, located some 20
kilometres away, which was authorised to handle medico-legal cases
and the victim succumbed to his injuries before he could be taken to
the other hospital. A human right activist filed a writ petition in public
interest under Article 32 of the Constitution on the basis of a
newspaper report concerning the death asking for the directions to
be issued to the Union of India that every injured citizen brought for
treatment should instantaneously be given medical aid to preserve
life and thereafter the procedural criminal law should be allowed to
operate in order to avoid negligent death, and in the event of breach
of such direction, apart from any action that may be taken for
negligence, appropriate compensation should be admissible. Disposing
of the Writ Petition, the Supreme Court has held:
Article 21 of the Constitution casts the obligation on the State
to preserve life.
There can be no second opinion that preservation of human
life is of paramount importance. That is so on account of the
fact that once life is lost, the status quo ante cannot be
restored as resurrection is beyond the capacity of man.
The patient whether he be an innocent person or a criminal
liable to punishment under the laws of the society, it is the
obligation of those who are in-charge of the health of the
community to preserve life so that the innocent may be
protected and the guilty may be punished. Social laws do
not contemplate death by negligence to tantamount to legal
punishment.
114
1989 (4) SCC 286
Every doctor whether at a Government hospital or otherwise

has the professional obligation to extend his services with
due expertise for protecting life.
No law or State action can intervene to avoid/delay the
discharge of the paramount obligation cast upon members
of the medical profession. The obligation being total, absolute
and paramount, laws of procedure whether in statute or
otherwise which would interfere with the discharge of this
obligation cannot be sustained and must, therefore, give way.
The zonal regulations and classifications cannot also operate
as fetters in the process of discharge of the obligation to
treat an emergency.
The Code of Medical Ethics framed by the Medical Council
unambiguously states that a medical professional should
attend to a patient in emergency and everyone in medical
profession is supposed to follow. This only reveals an
unfortunate state of affairs where the decisions are taken at
the highest level good intentioned and for public good but
unfortunately do not reach the common man and it only
remains a text good to read and attractive to quote.
It is clear that there is no legal impediment for a medical
professional when he is called upon or requested to attend
to an injured person needing his medical assistance
immediately. There is also no doubt that the effort to save
the person should be the top priority not only of the medical
professional but even of the police or any other citizen who
happens to be connected with the matter or who happens to
notice such an incident or a situation.
The members of the legal profession, our law courts and
everyone concerned will also keep in mind that a man in the
medical profession should not be unnecessarily harassed for
purposes of interrogation or for any other formality and should
not be dragged during investigations at the police station and
it should be avoided as far as possible.
Law courts will not summon a medical professional to give
evidence unless the evidence is necessary and even if he is
summoned, attempt should be made to see that the men in
this profession are not made to wait and waste time

unnecessarily.
The Court gave directions for giving adequate publicity to
the decision in this case by the national media, the
Doordarshan and the All India Radio, as well as through the
High Courts and the Sessions Judges.
In Paschim Banga Khet Mazdoor Samity vs State of West
Bengal & Anr115, Hakim Seikh, a member of Paschim Banga Khet
Mazdoor Samity, an organization of agricultural labourers, fell off a
train at Mathurapur Station in West Bengal and suffered serious
head injuries and brain haemorrhage. He was taken to the Primary
Health Centre at Mathurapur. Since necessary facilities for treatment
were not available at the Primary Health Centre, the medical officer
in charge of the Centre referred him to the Diamond Harbour Sub-
Divisional Hospital or any other State hospital for better treatment.
Then he was taken to as many as seven state hospitals, but was not
given treatment on ground of non-availability of beds though it was
an emergency case. Ultimately he was admitted in Calcutta Medical
Research Institute, a private hospital, where he received treatment
as an indoor patient from July 9, 1992 to July 22, 1992 and he had
incurred expenditure of approximately `17,000/- in his treatment.
Feeling aggrieved by the indifferent and callous attitude on the part
of the medical authorities at the various State run hospitals in Calcutta
in providing treatment for the serious injuries sustained by Hakim
Seikh, the petitioners filed writ petition. The question for consideration
before the Supreme Court was whether the non-availability of facilities
for treatment of the serious injuries sustained by Hakim Seikh in the
various Government hospitals in Calcutta has resulted in denial of
his fundamental right guaranteed under Article 21 of the Constitution.
The Supreme Court held that the Constitution envisages the
establishment of a welfare state at the federal level as well as at the
state level. In a welfare state the primary duty of the Government is
to secure the welfare of the people. Providing adequate medical
facilities for the people is an essential part of the obligations undertaken
by the Government in a welfare state. The Government discharges
this obligation by running hospitals and health centres which provide
115
1996 SCC (4) 37
medical care to the person seeking to avail those facilities. Article 21

imposes an obligation on the State to safeguard the right to life of
every person. Preservation of human life is thus of paramount
importance. The Government hospitals run by the State and the
medical officers employed therein are duty bound to extend medical
assistance for preserving human life. Failure on the part of a
Government hospital to provide timely medical treatment to a person
in need of such treatment results in violation of his right to life
guaranteed under Article 21. In the present case there was breach
of the said right of Hakim Seikh guaranteed under Article 21 when
he was denied treatment at the various Government hospitals which
were approached even though his condition was very serious at that
time and he was in need of immediate medical attention. Since the
said denial of the right of Hakim Seikh guaranteed under Article 21
was by officers of the State in hospitals run by the State, the State
cannot avoid its responsibility for such denial of the constitutional
right of Hakim Seikh. In respect of deprivation of the constitutional
rights guaranteed under Part III of the Constitution the position is
well settled that adequate compensation can be awarded by the court
for such violation by way of redress in proceedings under Articles
32 and 226 of the Constitution. Hakim Seikh should, therefore, be
suitably compensated for the breach of his right guaranteed under
Article 21 of the Constitution. Having regard to the facts and
circumstances of the case, we fix the amount of such compensation
at `25,000/-. A sum of `15,000/- was directed to be paid to Hakim
Seikh as interim compensation under the orders of this Court dated
April 22, 1994. The balance amount should be paid by respondent
No. 1 to Hakim Seikh within one month.
On the remedial measures to rule out recurrence of such
incidents in future and to ensure immediate medical attention and
treatment to persons in real need, the Supreme Court held that in
order that proper medical facilities are available for dealing with
emergency cases it must be that:
1. adequate facilities are available at the Primary Health Centres
where the patient can be given immediate primary treatment
so as to stabilize his condition;
2. hospitals at the district level and Sub-Division level are
upgraded so that serious case can be treated there;
3. facilities for giving specialist treatment are increased and

are available at the hospitals at District level and Sub-Division
level having regard to the growing needs.
4. in order to ensure availability of bed in an emergency at
State level hospitals there be a centralized communication
system so that the patient can be sent immediately to the
hospital where bed is available in respect of the treatment
which is required.
5. proper arrangement of ambulance is made for transport of
a patient from the Primary Health Centre to the District
hospital or Sub-Division hospital and from the District hospital
or Sub Division hospital to the State hospital.
6. the ambulance is adequately provided with necessary
equipment and medical personnel.
7. the Health Centres and the hospitals and the medical
personnel attached to these Centres and hospitals are geared
to deal with larger number of patients needing emergency
treatment on account of higher risk of accidents on certain
occasions and in certain seasons.
The Supreme Court further held that no doubt true that financial
resources are needed for providing these facilities. But at the same
time it cannot be ignored that it is the constitutional obligation of the
State to provide adequate medical services to the people. Whatever
is necessary for this purpose has to be done. In the matter of allocation
of funds for medical services the said constitutional obligation of the
State has to be kept in view. It is necessary that a time-bound plan
for providing these services should be chalked out for ensuring
availability of proper medical services in this regard as indicated by
us and steps should be taken to implement the same.
Compensation
The damages for negligence are assessed on the principle that
they are to be regarded as compensation for an injury sustained and
not as punishment for wrong inflicted. The abrupt termination of life
results in loss to the dependents or to the estate. The determination
of the amount of compensation is basically a net balance of the loss
and gain to the survivors of the dependents. The purpose of an award
of damages in tort is to make good to the injured plaintiff, so far as

money could do, the loss that he had suffered as a result of the loss
done to him.
An action for personal injury including medical negligence is a
claim for compensation either by person who has sustained injury or
damage or in case of death of the person, by legal representatives,
inceptor or administrator of the deceased. Merely proving negligence
on part of the person will not entitle him to claim compensation,
proving injury or damage caused is must. Under the general principles
of tortious liability the medical practitioner who caused injury or
damage by negligence is bound to pay compensation and in case of
deceased he has to compensate the family of the deceased patient.
In a suit for damages on account of negligence, the onus lies on
the patient to prove that the doctor was negligent, and the said
negligence resulted in the injury which is complained to be
compensated. The Hon’ble Supreme Court in Charan Singh v.
Healing Touch Hospital116, has laid down that while quantifying
damages, consumer forums are required to make an attempt to serve
ends of justice so that compensation is awarded, in an established
case, which not only serves, the purpose of recuperating the individual,
but which also at the same time, aims to bring about a qualitative
change in the attitude of the service provider. Indeed calculation of
damage depends upon the facts and circumstances of each case.
No hard and fast rule can be laid down for universal application.
In Pramod Grover vs. Manvinder Kaur (Dr.) & Ors. 117 It
was held that directions to permanently restrain and debar the medical
professionals and to cancel their medical certificates or for the closure
of the nursing home cannot be issued by the Consumer Fora as
there is no relief under Section 14(1) of the Act in which those
directions can be given. However, other reliefs enlisted in the section
can be provided and for that matter the complaint is to be split for
the purpose of entertaining a claim in the matter of which relief can
be granted by the Consumer Fora and the reliefs which cannot be
considered by the Fora.
116
2000 (4) CPR 1 (SC)
117
II(2007) CPJ 63(NC)
In Nizam Institute of Medical Sciences vs Prasanth S.

Dhananka and others118 the Supreme Court on the question of
compensation emphasized as under:
“The Court has to strike a balance between the inflated and
unreasonable demands of a victim and the equally untenable
claim of the opposite party saying that nothing is payable.
Sympathy for the victim does not, and should not, come in the
way of making a correct assessment, but if a case is made out,
the Court must not be chary of awarding adequate compensation.
The ‘adequate compensation’ that we speak of, must to some
extent, be a rule of the thumb measure, and as a balance has to
be struck, it would be difficult to satisfy all the parties concerned.
It must also be borne in mind that life has its pitfalls and is not
smooth sailing all along the way (as a claimant would have us
believe) as the hiccups that invariably come about cannot be
visualized. Life it is said is akin to a ride on a roller coaster
where a meteoric rise is often followed by an equally spectacular
fall, and the distance between the two (as in this very case) is a
minute or a yard. At the same time we often find that a person
injured in an accident leaves his family in greater distress, vis-a-
vis a family in a case of death. In the latter case, the initial shock
gives way to a feeling of resignation and acceptance, and in
time, compels the family to move on. The case of an injured and
disabled person is, however, more pitiable and the feeling of hurt,
helplessness, despair and often destitution endures every day.
The support that is needed by a severely handicapped person
comes at an enormous price, physical, financial and emotional,
not only on the victim but even more so on his family and
attendants and the stress saps their energy and destroys their
equanimity. We can also visualize the anxiety of the complainant
and his parents for the future after the latter, as must all of us,
inevitably fade away. We, have, therefore computed the
compensation keeping in mind that his brilliant career has been
cut short and there is, as of now, no possibility of improvement in
his condition, the compensation will ensure a steady and
reasonable income to him for a time when he is unable to earn
118
II(2009) CPJ 61(SC)
for himself.”
In the present case the court took into account a number of
factors like requirement of nursing care, need for driver cum
attendant as the complainant was confined to wheel chair and need
for physiotherapy etc. for computing compensation. The Supreme
Court held that the complainant is a highly qualified individual and is
gainfully employed as an IT Engineer and earning a sum of `28
Lakh per annum and is about 40 years of age. The very nature of his
work requires him to travel to different locations but as he is confined
to a wheel chair he is unable to do so on his own. For his need for a
driver cum attendant a sum of `7.2 Lakh was awarded. A total sum
of `14,40,000/- was given towards nursing care. `10,80,000/- was
awarded for physiotherapy. Keeping in view the need for continuous
medical aid which would involve expensive medicines and other
material, and the loss towards future earnings etc., the opposite parties
were directed to pay a lump sum payment of `25 lakhs under each
of these two heads making a total of `50 lakhs. In addition, a payment
of `10 lakh was directed towards the pain and suffering that the
appellant has undergone. The total amount thus computed would
work out to `1,00,05,000 (`1 crore 5 thousand).
In this case the Supreme Court has rejected the use of multiplier
system to calculate the quantum of compensation. The court held
that the kind of damage that the complainant has suffered, the
expenditure that he has incurred and is likely to incur in the future
and the possibility that his rise in his chosen field would now be
restricted, are matters which cannot be taken care of under the
multiplier method.
In Dr. Balram Prasad vs. Dr. Kunal Saha &Ors. 119 the
Supreme Court considered the issue of compensation payable to the
claimant for the death of his wife due to the negligence of the hospital
and doctors. The appellant-doctors were aggrieved by the quantum
of compensation awarded by the National Commission and the liability
fastened upon them for the negligence on their part and had prayed
to set aside the same by allowing their appeals. The appellant-AMRI
Hospital also questioned the quantum of compensation awarded and
prayed to reduce the same by awarding just and reasonable
119
(2013) 40 SCD 897
compensation by modifying the judgment. According to the claimant

the compensation awarded was inadequate, as the same is contrary
to the admitted facts and law laid down by the Supreme Court in
catena of cases regarding awarding of compensation in relation to
the proved medical negligence for the death of his wife Anuradha
Saha. The Supreme Court awarded a total amount of `6,08,00,550/-
as the compensation in this appeal to the claimant by partly modifying
the award granted by the National Commission under different heads
with 6% interest per annum from the date of application till the date
of payment and laid down certain principles to calculate compensation
in medical negligence case which are as under:
One of the incidental issues which has also to be taken into
consideration is inflation. Unfortunately, unlike other
developed countries in India there has been no scientific
study. It is expected that with the rising inflation the rate of
interest would go up. In India it does not happen. It, therefore,
may be a relevant factor which may be taken into
consideration for determining the actual ground reality. The
National Commission has rejected the claim of the claimant
for “inflation” made by him without assigning any reason
whatsoever. It is an undisputed fact that the claim of the
complainant has been pending before the National
Commission and this Court for the last 15 years. The value
of money that was claimed in 1998 has been devalued to a
great extent. The claim of enhancement of compensation is
therefore justified.
Besides enhancement of compensation, the claimant had
sought for additional compensation of about ` 20 crores in
addition to his initial claim made in 2011 to include the
economic loss that he had suffered due to loss of his
employment, home foreclosure and bankruptcy in U.S.A
which would have never happened but for the wrongful death
of his wife. Indisputably, grant of compensation involving an
accident is within the realm of law of torts. It is based on the
principle of restitutio in integrum. The said principle provides
that a person entitled to damages should, as nearly as possible,
get that sum of money which would put him in the same
position as he would have been if he had not sustained the
wrong. It is the duty of the Tribunals, Commissions and the

Courts to consider relevant facts and evidence in respect of
facts and circumstances of each and every case for awarding
just and reasonable compensation. Therefore, we are of the
view that the claimant is entitled for enhanced compensation
under certain items made by the claimant in additional claim
preferred by him before the National Commission.
Loss of wife to a husband may always be truly compensated
by way of mandatory compensation. How one would do it
has been baffling the court for a long time. For compensating
a husband for loss of his wife, therefore, the courts consider
the loss of income to the family. It may not be difficult to do
when she had been earning. Even otherwise a wife’s
contribution to the family in terms of money can always be
worked out. Every housewife makes a contribution to his
family. It is capable of being measured on monetary terms
although emotional aspect of it cannot be. It depends upon
her educational qualification, her own upbringing, status,
husband’s income, etc. The status, future prospects and
educational qualification of the deceased must be judged for
deciding adequate, just and fair compensation. It is an
undisputed fact that the victim was a graduate in psychology
from a highly prestigious Ivy League school in New York.
She had a brilliant future ahead of her. However, the National
Commission has calculated the entire compensation and
prospective loss of income solely based on a pay receipt
showing a paltry income of only $30,000 per year which she
was earning as a graduate student. Therefore, the National
Commission has committed grave error in taking that figure
to determine compensation under the head of loss of
dependency. In view of law laid down by the Supreme Court
in various judgements with regard to the approach by the
Commission in awarding just and reasonable compensation
taking into consideration the future prospects of the deceased
even in the absence of any expert’s opinion must have been
reasonably judged based on the income of the deceased and
her future potential in U.S.A. However, in the present case
the calculation of the future prospect of income of the
deceased has also been scientifically done by economic

expert Prof. John F. Burke.
The National Commission has used the “multiplier” method
under Section 163A read with the second schedule of the
Motor Vehicles Act to determine the quantum of
compensation in favour of the claimant. The SC held that a
careful reading of the cases shows that this Court is skeptical
about using a strait jacket multiplier method for determining
the quantum of compensation in medical negligence claims
and in various instances has chosen to deviate from the
standard multiplier method to avoid over-compensation and
also relied upon the quantum of multiplicand to choose the
appropriate multiplier. The National Commission or this Court
is required to determine just, fair and reasonable
compensation on the basis of the income that was being
earned by the deceased at the time of her death and other
related claims on account of death of the wife of the claimant
and following the multiplier method is not justified.
The claimant had made a demand of `34,56,07,000/- under
different heads of ‘loss of income for missed work’,
‘travelling expenses over the past 12 years’ and ‘legal
expenses including advocate fees’ etc. The claim of
`1,12,50,000/- made by the claimant under the head of loss
of income for missed work, was not allowed by the Court
since, the same has no direct nexus with the negligence of
the appellant- doctors and the Hospital. The court allowed a
compensation of `10 lakhs under the head of ‘Travel
expenses over the past twelve years’ as the claimant was a
citizen of U.S.A. and had been living there. It cannot be
denied that he had to incur travel expenses to come to India
to attend the proceedings. The Claimant appeared in person
before this Court to argue his case but he might have required
rigorous assistance of lawyers to prepare his case, therefore
a compensation of `1,50,000/- under the head of ‘legal
expenses’ was also granted. Therefore, a total amount of
`11,50,000/- is granted to the claimant under the head of
‘cost of litigation’.
Vicarious Liability
‘Vicarious’ means ‘one that takes or supplies the place of
another.’120 In vicarious liability one person takes the place of another
as far as liability is concerned. Under this principle the liability of the
hospital authorities extends to the fault of doctors and others
employees whether their employment is permanent, temporary or
casual, paid or honorary, whole time or part time as in the case of
visiting physicians or surgeons. Lord Denning in Cassidy vs. Ministry
of Health121 held:
“The authorities who run a hospital, be they local authorities,
Government boards, or any other corporation, are in law under
the self-same duty as the humblest doctor; whenever they accept
a patient for treatment, they must use reasonable care and skill
to cure him of his ailment. … They must do it by the staff which
they employ; and if their staff are negligent in giving the treatment,
they are just as liable for that negligence as is anyone else who
employs others to do his duties for him.”
The Supreme Court in Spring Meadows Hospital vs. Harjol
Ahluwalia122 held the hospital liable to pay compensation for the
negligence of its attending doctor and unqualified nurse, as the doctor
relied on the nurse to give intravenous injection to the patient instead
of the consultant doctor and thereby contributed to the irreparable
brain damage of the minor patient.
In Smt. Savita Garg vs The Director, National Heart
Institute 123, the Supreme Court while speaking on the question
whether non-impleading the treating doctor as party could result in
dismissal of the original petition for non-joinder of necessary party
has held as follows:
“It is the common experience that when a patient goes to a
private clinic, he goes by the reputation of the clinic and with the
hope that proper care will be taken by the Hospital authorities. It
is not possible for the patient to know that which doctor will
120
The Shorter Oxford English Dictionary, Vol. II, 3rd Edn, 1944
121
(1951)2 KB 343
122
I (1998) CPJ 1(SC)
123
(2004) 8 SCC 56
treat him. When a patient is admitted to a private clinic/ hospital

it is hospital/ clinic which engages the doctors for treatment. In
the present case, the appellant’s husband was admitted to the
best of the hospital and it is not possible for the appellant to find
out that who is the best doctor and who is not. Normally, the
private clinics go by the reputation and people look forward for
best treatment when they are run commercially. It is the
responsibility of the clinic that they must provide best of the
services when they charge for the services rendered by them.
In case it is found that services rendered by the clinic or hospital,
as the case may be, is not up to the mark and it involves some
negligence on their part, for which the patients suffer, then they
are bound to reimburse them. They charge fee for the services
rendered by them and they are supposed to bestow the best
care.
As a matter of fact, when a patient is admitted to the highly
commercial hospital like the present institute, a thorough check
up of the patient is done by the hospital authorities, it is the
Institute which selects after the examination of the patient that
he suffers from what malady and who is the best doctor who
can attend, except when the patient or the family members desire
to be treated by a particular doctor or the surgeon as the case
may be. Normally, the private hospitals have a panel of doctors
in various specialities and it is they who chooses who is to be
called. It is very difficult for the patient to give any detail that
which doctor treated the patient and whether the doctor was
negligent or the nursing staff was negligent. It is very difficult
for such patient or his relatives to implead them as parties in the
claim petition. The patients once they are admitted to such
hospitals, it is the responsibility of the said hospital or the medical
institutions to satisfy that all possible care was taken and no
negligence was involved in attending the patient. The burden
cannot be placed on the patient to implead all those treating
doctors or the attending staff of the hospital as a party so as to
substantiate his claim. In fact, once a claim petition is filed and
the claimant has successfully discharged the initial burden that
the hospital was negligent, as a result of such negligence the
patient died, then in that case the burden lies on the hospital and
the concerned doctor who treated that patient that there was no
negligence involved in the treatment. Since the burden is on the
hospital, they can discharge the same by producing that doctor
who treated the patient in defence to substantiate their allegation
that there was no negligence. In fact it is the hospital who
engages the treating doctor thereafter it is their responsibility.
The burden is greater on the Institution/ hospital than that of the
claimant. The institution is private body and they are responsible
to provide efficient service and if in discharge of their efficient
service there are couple of weak links which has caused damage
to the patient then it is the hospital which is to justify the same
and it is not possible for the claimant to implead all of them as
parties.”
The State is vicariously liable for the tortious acts of its servants
or agents which are not committed in the exercise of its sovereign
functions or in the exercise of sovereign powers delegated to such
public servants. 124 The work of medical relief undertaken by
Government through Primary Health Centre is not a sovereign function
of the State and as such the defence of sovereign immunity must
fail. Accordingly, the State would be vicariously liable for damages
payable on account of negligence of its doctors and other employees.
The Supreme Court in State of Haryana vs. Smt. Santra125 held
the State of Haryana vicariously liable for negligence of the doctor
in a Government Hospital in performance of sterilization operation
resulting in birth of an unwanted child.
Medical Negligence: What Patients should Know?
While going to a doctor, take all previous medical reports.
Ascertain the qualifications and the experience of the doctor
in his area of specialization before consultation.
During consultation with the doctor, get your doubts regarding
the treatment clarified.
Before undergoing treatment consult another doctor and take
a second expert opinion to double check on all the options
available.
124
State of Rajasthan v Vidyawati AIR 1962 SC 933
125
I (2000) CPJ 53 (SC)
The patient or the family members must meet the doctor

and discuss the possible risks or any other questions, which
worry them.
Before giving written consent for the treatment read the
contents of the common drafted format before signing it.
The patient must know for which treatment and procedure
he/she has consented.
Preserve and maintain records, which include X-rays,
medical prescription given by a doctor. Ask for your
Medical records which can now be obtained from the
hospital by paying some minimum photocopy charges.
If any untoward complication, allergies or pain is being felt
after taking a treatment immediately bring it to the notice
of the doctor.
Take the medication prescribed at the proper time, in proper
manner, in proper dosage and for the prescribed period.
Follow doctor’s instructions and prescriptions regarding
medicines to be taken, method of taking medicines, time
period for which medication should be continued, exercise,
diet etc.
When blood transfusion is being done, the donor’s blood
details must be checked i.e. date of collection of blood,
date of expiry of blood and whether the same is free from
infection.
The quality, cost and the benefits of treatment must be
discussed with the doctor.
While purchasing medicines, ensure to get them from a
reputed chemist’s shop as many spurious harmful drugs
are floating around. The receipt of the chemist must also
be kept for future reference.
One must not take allopathic treatment from a Homoeopath,
Ayurvedic or Unani specialist who does not possess any
degree or diploma in Allopathy.
Should follow the advice of the doctor regarding
investigation and treatment.
Should not desert the doctor and go away without informing

the doctor.126
Conclusion
The medical profession was important and will always remain so
as it relates with human life. However, the doctor-patient relationship
has undergone a drastic change over the period of time and the influence
of market forces is clearly visible on it. In olden days the phenomenon
to sue doctor for negligence was a rare one but during the last decade
many complaints of medical negligence have been handled by consumer
foras. Today the educated and informed consumers seek good service
and are not ready to suffer in silence for the deficiency on the part of
doctors and hospitals. This has also made the doctors more cautious
while treating the patients. The patients are now being advised to
undergo several tests before the preliminary diagnosis to prevent any
kind of litigation later on. This has made the treatment costlier for the
ordinary patient. It is high time that the medical councils and internal
grievance redressal mechanism in the hospitals become more effective
to check malpractices in the profession to help the consumers get
redressal for their grievances without approaching adjudicatory bodies
under the CPA.
126
P.D.Shenoy, Medical negligence, Sterling Publishers Pvt. Ltd., 2013, pp.430-
433
Annexure
MODEL FORM OF NOTICE, COMPLAINT, AFFIDAVITAND REPLY
MODEL FORM-1 NOTICE BEFORE FILING THE COMPLAINT
Name and address (of the trader, dealer, firm, company, etc.)
............................................................ (Complete address)
IN RE: (Mention the goods/services complained of giving details)
.................................................................................................................
Dear Sir,
This is to bring to your kind notice that 1 had
purchased………….............from your ............................... for a
consideration of Rs……………………………...... paid in cash vide
your cash memo/Receipt/Invoice
No....................................................... (or through cheque No
........................... dated ................... drawn on
........................................bank for a sum of Rs ...........................
The said goods are suffering from the following defects:
(i) ............................................
(ii) ............................................ etc
I have reported the above matter to you several times (give
reference of earlier letters, if any) but despite all my pleadings
you have not made good the defect in the goods (ordeficiency in
services) which is indeed regrettable and highly unbusiness like.
On account of your aforesaid dereliction of duty and failure and
neglect to rectify the same I have suffered losses/incurred
expenses
...........................................................................................................................................................................................................
............................................................................................................................................................................................................
...........................................................................................................................................................................................................
...........................................................................................................................................................................................................
...........................................................................................................................................................................................................
(give details)
which you are liable to compensate to me.
You are hereby finally called upon to
(i) remove the said defects in the goods
and/or
(ii) replace the goods with new goods
and/or
(iii) return the price/ charges paid
(iv) pay compensation for financial loss/injury/interest

suffered due to your negligence
.................................................................
(give details)
in the sum of Rs ............................................ with interest
@.............................................. % per annum
within……………………days of the receipt of this notice
failing which 1 shall be constrained to initiate against you for
redressal of my aforesaid grievances and recovery of the
aforesaid amount such proceedings, both civil and criminal
as are warranted by law, besides filing a complaint under the
statutory provisions of The Consumer Protection Act, 1986
exclusively at your own risk, cost, responsibility and
consequences which please note.
Place……………………..
Dated............................... Sd/-
.………. . .
Model Form –2 -The Complaint
BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM AT ........................................................
OR
BEFORE THE HON’BLE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION AT .....................................................
OR
BEFORE THE HON’BLE NATIONAL CONSUMER DISPUTES
REDRESSAL
COMMISSION AT NEW DELHI
IN RE: COMPLAINT NO ........................ OF 20 ......... IN THE MATTER OF:
(FULL NAME) (DESCRIPTION) (COMPLETE ADDRESS)

............... Complainant
VERSUS
(FULL NAME) (DESCRIPTION) (COMPLETE ADDRESS)
................................. Opposite Party/ Parties
COMPLAINT UNDER SECTION I2/ SECTION 17/

SECTION 21 OF THE CONSUMER PROTECTION
ACT, 1986.
RESPECTFULLY SHOWETH
INTRODUCTION
(In this opening paragraph the complainant should give his
introduction as well as that of the opposite party/parties.
TRANSACTION
(In this paragraph complainant should describe the transaction
complained of, i.e., particulars and details of goods/ services availed;
items of goods/kind and nature of service; date of purchase of goods/
availing of service; amount paid as price/consideration, full or in
part towards the goods/service; Photocopies of the bill/cash memo/
voucher or receipt should be attached and properly marked as
Annexure – A,B,C and so forth or 1,2,3 and so forth).
DEFECT DEFICIENCY
(In this paragraph complainant should explain the grievance, i.e.,
whether the loss or damage has been caused by some unfair trade
practice or restrictive trade practice adopted by any trader or there
is some defect in the goods or there has been deficiency in service or
the trader has charged excessive price for the goods. One should
elucidate the nature of unfair trade practice adopted by the trader,
i.e., relating to the quality of goods/services; sponsorship; warranty
or guarantee for such period promised. The nature and extent of
defects in goods should be explained and so should the deficiency in
service. In case of excessive price one should specify the details of
actual price fixed by or under any law for the time being in force or
as set out on goods and their packing vis-a-vis the price charged by
the trader. Complaint can also be filed against offer for sale of goods
hazardous to life and safety when used. You should narrate your
grievance and rest assured it is being read /heard by compassionate
and pragmatic judges. Photocopies of relevant documents must be
attached.)
RECTIFICATION
(In this paragraph complainant should highlight what attempts were
made by him to set things right, i.e., personal visits or negotiations;
communication in writing if any; whether any legal notice was got
served and / or whether he has approached any other agency for
redressal like, Civil or Criminal Court of competent jurisdiction; the
stage of its proceedings, its outcome, if any, alongwith copies (certified
preferably) of such proceedings. The nature of response got from
the trader when irregularities were brought to his notice, should also
be disclosed here).
OTHER PROVISIONS
(In this paragraph reference may be made to any other law or rules
or regulations of particular procedure which is applicable to the case
and/or which has been violated by the trader and consumer’s rights
under the same. There are incidental statutory obligations, which
traders must fulfil and in case of their failure to do so the case in
prima facie made out and Forum would take cognizance).
EVIDENCE
(In this paragraph complainant should give details of documents and/
or witnesses he will rely upon to substantiate his case. The documents
attached as Annexures as stated above may be incorporated in a
proper list and a list of witnesses (if any) may be filed similarly).The
annexures should be attested as “True Copy”.
JURISDICTION
(In this paragraph complainant should liquidate the claim in the
complaint, i.e., upto 20 lakh; 20 lakh to one crore; or above and set
out the pecuniary jurisdiction of the Forum/ State Commission/National
Commission, as the case may be. The territorial Jurisdiction should
be highlighted to obviate any formal objection).
LIMITATION
That the present complaint is being filed within the period prescribed
under section 24A of the Act.
RELIEF CLAIMED
(In this paragraph complainant should describe the nature of relief he
wants to claim. i.e., for removal of defects in goods or deficiency in
service; replacement with new goods; return of the price or charges,
etc., paid and/or compensation on account of financial loss or injury
or detriment to his interest occasioned by negligence of the opposite
party and elucidate how you have calculated the amount of
compensation claimed).
PRAYER CLAUSE
It is, therefore, most respectfully prayed that this Hon’ble Forum/
Commission may kindly be pleased to
....................................................................... (Details of reliefs
which complainant wants the Court to grant)
Place: ................................... Dated: ...................................
Complainant Through ...................................
(Advocate or Consumer Association, etc.)
Verification
I, ............................. the complainant above named, do hereby
solemnly verify that the contents of my above complaint are true and
correct to my knowledge, no part of it is false and nothing material
has been concealed therein. Verified this ........................... day of
............................ 20 ...... at .......... Complainant.
Note: Although it is not compulsory, complainant may file an affidavit
in support of the complaint which adds to the truth and veracity
of allegations and gives credibility to the cause. It need not be
on a Stamp paper but one should get it attested from an Oath
Commissioner appointed by a High Court. The format is just
as simple.
Model Form –3- Affidavit in support of the complaint

BEFORE THE HON’BLE…………………..IN RE: COMPLAINT
NO………….OF 20……………..IN THE MATTER OF:
…………………………………………………………
Complainant
Opposite party
AFFIDAVIT
Affidavit of
Shri…………………………………………….S/o. Shri...............
aged………………………………years, resident of.....................
(1) That I am complainant in the above case, thoroughly

conversant with the facts and circumstances of the present
case and am competent to swear this affidavit.
(2) That the facts contained in my accompanying complaint, the
contents of which have not been repeated herein for the
sake of brevity may be read as an integral part of this affidavit
and are true and correct to my knowledge.
Deponent
Verification:
I, the above named deponent do hereby solemnly verify that the
contents of my above affidavit are true and correct to my knowledge,
no part of it is false and nothing material has been concealed therein.
Verified this…………………………day of…………………..
20…………. at……….
Deponent
Model Form –4- Reply by the trader to the complaint

BEFORE THE HON’BLE ……………………………………..
THE CONSUMER DISPUTES REDRESSAL FORUM/
COMMISSION AT………………………
IN RE: COMPLAINT NO…………………….OF
20……………………..
IN THE MATTER OF:
..................................................................................Complainant
VERSUS
............................................................................Opposite Party
DATE OF HEARING……………………
WRITTEN STATEMENT ON BEHALF OF

RESPONDENTS TO THE COMPLAINT OF THE
COMPLAINANT
RESPECTFULLY SHOWETH:
Preliminary Objections
1. That the present complaint is wholly misconceived, groundless
and unsustainable in law and is liable to be dismissed as such.
The transaction question was without any consideration and free
of charge.
2. That this Hon’ble Forum/ Commission has no jurisdiction to
entertain and adjudicate upon the dispute involved in the complaint
in as much as it is not a consumer dispute and does not fall within
the ambit of the provisions of the Consumer Protection Act,1986,
hereinafter called the said Act and is exclusively triable by a
Civil Court and as such the complaint is liable to be dismissed
summarily on this score alone.
3. That the dispute raised by the complainant in the present complaint
is manifestly outside the purview of the said Act and in any event,
the Act is in addition to and not in derogation of the provisions of
the.............. Act. The proceedings initiated by the complainant
under the Act are honest, null and void and without jurisdiction.
4. That the definitions of ‘Complainant’, ‘Complaint’ ‘Consumer
Dispute’ and ‘Service’, as defined in Section 2(1) of the said Act
do not cover the claims arising under the present dispute and that
from the aforesaid definitions, the complainant is not’ consumer’
and the controversy involved in the complaint is not a ‘consumer
dispute’.
5. That the present complaint is baseless and flagrant abuse of
process of law to harass and blackmail the answering respondent.
6. That the complainant has no locus standi to initiate the present
proceedings.
7. That the complaint is bad for non-joinder of necessary and proper
party and is liable to be dismissed on this score alone.
8 . That the complainant has already filed a Civil Suit for .................
in a court of competent jurisdiction which is pending disposal in
the Court of ............. and the present complaint has become
infructuous.
9. That the present complaint is hopelessly barred by limitation.

10. That this Hon’ble Forum/Commission has no territorial or
pecuniary jurisdiction in as much as the amount involved in the
subject-matter exceeds/is less than the limit prescribed by Section
11(1) Section 17(1)(a)(i)/Section 21(a)(i) of the Act.
11. That the present complaint is frivolous and vexatious and liable
to be dismissed under Section 26 of the Act.
12. That the present complaint has not been verified in accordance
with law.
On Merits:
In these paragraphs respondent must reply each and every
allegation made and contention raised by the complainant, factual
and legal as well. In case one has already made good the defect or
deficiency, elucidate steps taken. One may have, inter alia, following
goods defences as well.
1. That the transaction entered between the parties to the above
dispute is a commercial one and the complainant cannot claim
any relief from this authority in as much as ..............................
(give details)
2. That the complainant had purchased the goods as a seller/retailer/
distributor, etc., for consideration of resale and as such is barred
from moving this Hon’ble Forum/Commission for the alleged
defect/deficiency etc. in as much as
...........................................................................................
(give details)
3. That the complainant has already availed the warranty period
during which the answering respondent has repaired/replaced
the goods in question. The complainant is thus legally stopped
from enforcing this complaint or to take benefit of his own wrong.
4. That the present complaint is an exaggeration beyond proportion
despite the fact that the complainant is himself responsible for
delay and laches in as much as he has on several occasions
changed his option for class of goods/type of allotment scheme
of flats/model of vehicle, etc ...............................................
(give details)
5. That the answering respondent is well within his rights to charge
extra price for the subject-matter of the above dispute in as much
as time was not the essence of delivery thereof. The complainant
is liable to pay the increased price w.e.f ............ on account of

escalation due to excise duty/budgetary provisions etc. in as much
as…...........................................................(give details)
6. That the complainant has accepted the goods and/or service
towards repair/replacement etc. without protest and the present
complaint is merely an after thought.
7. That without prejudice the answering respondent as a gesture of
goodwill is prepared to........................................
................................ (give details of rectification, if any, which
can be done in case of minor or tolerable problems to avoid
harassment to consumer and litigation problems)
The allegations of defect/default/negligence and/or deficiency in

service are wholly misconceived, groundless, false, untenable in
law besides being extraneous and irrelevant having regard to the
facts and circumstances of the matter under reference.
Prayer clause with all the submissions made therein is absolutely
wrong and is emphatically denied. Complainant is not entitled to
any relief whatsoever and is not entitled Model Form costs.
Sd/-
(Opposite Party)
Place: ......................
Dated: ...................... through
(Advocate)
Verification
I, .................... the above named respondent do hereby verify that
the contents of paras ................ to .................... of the written
statement on merits are true and correct to my knowledge. While
paras .............................. to ............ of preliminary objections and
................ to ......... of reply on merits are true to my information,
belief and legal advice received by me and believed to be true while
the last para is prayer to this Hon’ble Court. Verified at ........................
this .......................day of................. 20 .............
Sd/-
(Opposite party)
INDIAN INSTITUTE OF PUBLIC ADMINISTRATION
The Indian Institute of Public Administration, established as an autonomous body
under the Registration of Societies Act, was inaugurated on March 29, 1954 by Shri
Jawaharlal Nehru who was the first President of the Society. The basic purpose of
establishing this Institute was to undertake such academic activities as would
enhance the leadership qualities and managerial capabilities of the executives in
the government and other public service organizations. The activities of the
Institute are organized in four inter-related areas of Research, Training, Advisory
and Consultancy Services and Dissemination of Information.
CENTRE FOR CONSUMER STUDIES
CCS is dedicated to consumer studies and is sponsored by DCA, GoI. The
objective of the CCS is to perform, facilitate and promote better protection of
consumer's rights and interests with special reference to rural India. The broad
areas of focus of the Centre comprise capacity building, advocacy, policy analysis,
research, advisory and consultative services, and networking.
The Centre seeks to network with national and International agencies and interface
with other stakeholders by serving as a bridging “think tank” with an intensive
advocacy role. The Centre provides a forum for creating dialogue among policy
makers, service providers, representatives of various business establishments and
their associations, professional bodies/associations, civil society organizations,
educational/research institutions, economic and social development organizations
as well as leading NGOs.

Room No. 11A
I.P. Estate, Ring Road
New Delhi-110002
Tel: 011-23468347, 23705928 (Fax)
Email: ccs.iipa@gmail.com
Website: www.consumereducation.in

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Consumer Monograph Series No.

Centre for Consumer Studies

Centre for Consumer Studies

This Monograph is Published with the Financial Assistance from

dissatisfaction with medical services is leading to increase in litigation

Place: New Delhi Sapna Chadah

give way. The Directive Principles in Part IV of the Constitution1also

Articles 38, 39(e) (f), 42, 47 and 48

India, Pune, August 28, 2011, p. 5

There has been drastic change in the attitude of doctors and

behalf.5 Save as provided by section 3, no person in the States shall

enrolled on such register who possess the medical qualifications

Act.Under section17A of the Act the Council has power to prescribe

standards of education required for granting the recognition to the

AIR 1996 SC 2111

council.asp?show=about-aim retrieved on January 29, 2014

possessing foreign qualification under section 11(2)(a) of the Indian

The Pharmacy Act, 1948

the prescribed norms; approve the course of study and examination

national registry of clinical establishments existing in the country.

managed by— (a) the Government or a department of the

the following conditions, namely: (i) the minimum requirement of

discharge, shall be liable to a monetary penalty which may extend to

• the failure to attain that standard of care, prescribed by the

Medical negligence means, negligence resulting from the failure

thought to be safe in 1947 though subsequent developments in medical

should have such an awareness as an ordinary competent

he falls below the standard of a reasonably competent practitioner in

withstanding logical analysis, the judge is entitled to hold that the

I (2010) CPJ 29 (SC)

principles to deal with the cases of medical negligence. The court

if the course of action chosen by him was acceptable to the

To carry out necessary investigations through appropriate

Duties of Doctor under Code of Medical Ethics

The prime object of the medical profession is to render service

Efforts shall be made to computerize medical records for quick

Duties of Physicians to their Patients

is acceptable, however, in case of emergency a physician must

Duties of Physician in Consultation

consultation should be justifiable and in the interest of the patient

Liability under Other Laws

Liability for Professional Misconduct

stramonium and a leaf of dhatura to the patient suffering from guinea

complicated nor serious; however, the patient died. On investigation,

“When a patient agrees to go for medical treatment or surgical

mutual confidence between the doctor and patient. Every mishap

The Supreme Court held that the accused appellant cannot be

(2004) 6 SCC 422

knowledge available at the time of the incident, and not at

(7) To prosecute a medical professional for negligence under

The Supreme Court giving guidelines for prosecution held:

“As we have noticed hereinabove that the cases of doctors

from frivolous or unjust prosecutions. Many a complainant prefers

child under twelve years, by parents or persons having care), Section

Ibid Section 2(1)(o)

person in pursuance of a contract or otherwise in relation to any

6. Service rendered at a non-Government hospital/Nursing

home cannot be regarded as service rendered free of charge,

Instances of Deficiency in Medical Services

III (1998) CPJ I (SC)

III (2011) CPJ 113 (NC)

had obtained degree in alternative medicines, which was not