Chapter- 1 Medical Negligence: An offshoot of Negligence

1.1Defining Negligence
According to Black‟s Law Dictionary, “negligence” means omission to do something
which a reasonable man, guided by those ordinary considerations which ordinarily
regulate the conduct of human affairs, would do or the doing of something which a
reasonable and prudent man would not do”.

Baron Alderson defines negligence as “Negligence is the omission to do something

which a reasonable man, guided upon those considerations which ordinarily regulate
the conduct of human affairs, would do, or doing something which a prudent and
reasonable man would not do”.

In 1866 in Grill v. General Iron Screw Collier Co.,1 Wills J. referred to negligence as
“… the absence of such care as it was the duty of the defendant to use.”

Brown L.J. stated, “… idea of negligence and duty are strictly correlative, and there
is no such thing as negligence in the abstract; negligence is simply neglect of some
care which we are bound by law to exercise towards somebody”.2

The Supreme Court observed, “ Negligence has many manifestations – it may be

active negligence, collateral negligence, comparative negligence, concurrent
negligence, continued negligence, criminal negligence, gross negligence, hazardous
negligence, active and passive negligence, willful or reckless negligence, or
negligence per se”.3

Negligence in common parlance means and implies failure to exercise due care,
expected of reasonable and prudent person. It was a breach of duty and negligence in
law ranging from inadvertence to shameful disregard of safety of others. In short, it is
want of attention and doing something, which a prudent and reasonable man would
not do.4

1.2Negligence as Tort

1 (1866) L.R. 1 C.P. 600.

2 Thomas v. Quatermain (1887) 18 Q.B.D. 694.
3 Poonam Verma v. Ashwin Patel & Ors.,AIR 1996 SC 2111.
4 M.S. Grewal v. Deepchand Sood, AIR 2001 SC 3660.

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 Chapter- 1 Medical Negligence: An offshoot of Negligence

Negligence is a term got its origin in the law of torts which evolved primarily through
common Law or English courts. A tort signifies a civil wrong. No study as to the
concept of negligence can be started without taking reference of landmarks judgment
of Lord Atkin in Donaghue v. Stevenson5, Lord Atkin held that-

“……in order to support an action for damages for

negligence, the complainant has to show that he has
been injured by the breach of a duty owed to him in
the circumstances by the defendant care to avoid
such injury”.

However prior to this, the classic definition of negligence has been provided in Blyth
v. Brimingham Waterworks Company case. Baron Alderson defines „negligence‟ in
19th century case, Blyth v. Brimingham Water Works Company,6 “negligence is
omission to do something which a reasonable man guided upon those considerations
which ordinarily regulate human affairs, would do, or doing something which
prudent and reasonable man would not do.”

“The breach of duty may be occasioned either by not doing something which a
reasonable man, under given set of circumstance, would do, or, by doing some act
which a reasonable prudent man would not do.”7

In Jacob Mathew v. State of Punjab and another,8 on reference by a two Member

Bench, the Supreme Court of India, examined the concept of „Negligence‟, in
particular, Professional Negligence and hold that “the jurisprudential concept of
negligence defies any precise definition. Eminent jurists and leading judgments have
assigned various meanings to negligence. The concept as has been acceptable of
Indian jurisprudential thought is well stated in the “Law of Torts”, Ratanlal &
Dhirajlal (Twenty-fourth Edition 2002). It is stated (at p. 441-442) – Negligence is
the breach of a duty caused by the omission to do something which a reasonable

5 (1932) AC 562
6 (1856) 11 Ex. 781.
7 Poonam Verma v. Ashwin Patel & Ors., AIR 1996 SC 2111.
8 AIR 2005 SC 3180.

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 Chapter- 1 Medical Negligence: An offshoot of Negligence

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. Actionable negligence consists in the neglect of the use of ordinary care or skill
towards a person to whom the defendant owes the duty of observing ordinary care
and skill, by which neglect the plaintiff has suffered injury to his person or property.
… The definition involves three constituents of negligence: (1) a legal duty to
exercise due care on the part of the party complained of towards the party
complaining the former‟s conduct within the scope of the duty; (2) breach of the said
duty; and (3) consequential damage. Cause of action for negligence arises only when
damage occurs; for, a damage is a necessary ingredient of this tort”9. (Para 10)

“Tortious liability arise from the breach of a duty primarily fixed by law; this duty is
towards persons generally and its breach is redressible by an action for unliquidated
damages”.10 Moreover, the above definition of Winfield enables one to distinguish
tortious liability from other liabilities of the professionals. The duty in tort is owed to
persons in general, whereas the duty in contract is owed to specific persons. The
duty in tort is imposed by law whereas the duty in contract is fixed by agreement
between the parties. The unliquidated damages awarded in tortious claim is
distinguishable from predetermined liquidated damages of contract.

1.3Negligence as Crime
1.3.1 Mens rea in Negligence
The essential ingredient of mens rea cannot be excluded from consideration
when the charge in a criminal court consists of criminal negligence. The
following statement of law on criminal negligence with reference to doctors
etc. contained in “Roscoe‟s Law of Evidence” (Fifteenth Edition) is classic.

“Where a person, acting as a medical man, whether licensed or unlicensed, is

so negligent in this treatment of a patient that death results, it is manslaughter
if the negligence was so great as to amount to a crime, and whether or not

9 Jacob Mathew v. State of Punjab and another, AIR 2005 SC 3180.

10 W.V.H. Rogers, Winfield and Jolowicz on Tort 4(Sweet & Maxwell, London, 18th edn.,
2010).

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 Chapter- 1 Medical Negligence: An offshoot of Negligence

there was such a degree of negligence is a question in each case for the jury.
In explaining to juries the test which they should apply to determine whether
the negligence in the particular case amounted or did not amount to a crime,
judges have used many epithets, such as „culpable,‟ „criminal‟, „gross‟,
„wicked‟, „clear‟, „complete.‟ But whatever epithet be used and whether an
epithet be used or not, in order to establish criminal liability the facts must be
such that, in the opinion of the jury, the negligence of the accused went
beyond a mere matter of compensation between subjects and showed such
disregard for the life and safety of others as to amount to a crime against the
State and conduct deserving punishment.”

“Whether he be licensed or unlicensed, if he display gross ignorance, or gross

inattention, or gross rashness, in his treatment, he is criminally responsible.
Where a person who, though not educated as an accountant, had been in the
habit of acting as a man-midwife, and had unskillfully treated a woman who
died in childbirth, was indicted for the murder, L. Ellenborough said that
there was no evidence of murder, but the jury might convict him of
manslaughter. To substantiate that charge, the prisoner must have been guilty
of criminal misconduct, arising either form the grossest ignorance or the
most? One or other of these is necessary to make him guilty of that criminal
negligence and misconduct which is essential to make out a case of
manslaughter.”11

Mens rea The expression mens rea is used to mean the mental state expressly
or impliedly mentioned in the definition of crime charged.12 An act does not
make a person guilty unless the mind is guilty. The Mens rea in criminal
negligence was defined by Lord Diplock13 in the following way: “Without
having given any thought to the possibility of there being such risk or having
recognized that there was some risk involved, had nevertheless gone on to

11 Jacob Mathew v. State of Punjab and another, AIR 2005 SC 3180.

12 Ruport Cross and Philip Asterley Jones, An Introduction to Criminal Law 41
(Butterworths, London, 7th edn., 1972).
13 R. v. Lawrence, (1981)1 All ER 974.

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take it”. In order to amount to criminal rashness or criminal negligence one

must find out that the rashness has been of such a degree as to amount to
taking a hazard knowing that the hazard was of such a degree that injury was
most likely to be occasioned thereby. The criminality lies in running the risk
or doing such an act with recklessness and indifference to the
consequences.14

It is held by the Supreme Court of India that for negligence to amount to an

offence the element of mens rea must be shown to exist, because the
jurisprudential concept of negligence differs in civil and criminal law.15

1.3.2 Negligence in Criminal Law

The extent of liability in tort depends on the amount of damages done, but the
extent of liability in criminal law depends on the amount and degree of
negligence. The unliquidated damages awarded in tortious action is
distinguishable from the mode of punishment imposed in criminal liability.
This distinction between tort and crime has been reduced in England by
giving power to the criminal courts to pay compensation to the victim.16 In
India section 357 of the Code of Criminal Procedure, 1973 empowers the
criminal courts to award compensation to the victims while passing judgment
of conviction. By way of interpretation of section 357 of the Code of
Criminal Procedure 1973, the Supreme Court has observed that the criminal
court may order the accused to pay some amount by way of compensation to
victim who has suffered by action of the accused.17 It maybe noted that this
power of criminal courts to award compensation is not ancillary to other
sentences, but it is in addition thereto. In Hari Kishan’s case,18 the Supreme
Court has directed all criminal courts to exercise the power of awarding

14 Jacob Mathew v. State of Punjab, AIR 2005 SC 3180.

15 Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, AIR 2010 SC 1162.
16 The Powers of Criminal Courts Act, 1973.
17 Hari Kishan and State of Haryana v. Sukhbir Singh, AIR 1988 SC 2127.
18 AIR 1988 SC 2127

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compensation to victims of offences in such liberal way, that the victims or

their legal heirs may not have to rush to the civil court for compensation. By
authorizing the criminal courts to award compensation on consideration of
the nature of the crime, justness of claim of the victim, and ability of the
accused to pay, the distinction between tort and crime has been reduced to the
extent that the degree of negligence in criminal liability is higher than that of
negligence in tortious liability.

1.4Constituent of Negligence
The essential components of negligence are-

(i) Duty to exercise care

(ii) Breach of such duty

(iii) Consequential damage

1.4.1 Duty of Exercise of Care

The word “duty” connotes the relationship between one person and another
imposing on the one an obligation, for the benefit of another to take
reasonable care in all circumstances.19

The first element of negligence involves the imposition upon a person, a duty
of care. This duty seems necessarily from the relationship between the
parties.

In Donoghue v. Stevenson,20 Lord Macmilan, made the following classic

statement: “The law takes on cognizance of carelessness in the abstract. It
concerns itself with carelessness only where there is a duty to take care and
where failure in that duty has caused damage. In such circumstances
carelessness assumes the legal quality of negligence and entails the
consequences in law of negligence. The cardinal principle of liability is that
the party complained of should own to the party complaining a duty to take

19 Christopher Walton and Roger Cooper (eds.), Charlesworth & Percy on Negligence
(Sweet & Maxwell, London, 2006).
20 (1932) AC 562.

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care, and that the party complaining should be able to prove that he has
suffered damage in consequence of a breach of that duty”.

1.4.2 Breach of Such Duty

Breach of duty means non-observance of due care which is required in a
particular situation. But, the question arise what kind of standard of care is
required? The answer is reasonable. But, whether care has been taken is
reasonable or not, largely depends upon facts and circumstances of each case.
The maxim of res ipsa loquitur its origin in the law of torts and applies
squarely to cases of medical negligence. The breach of duty can be apparent
from the act itself. The maxim means the act speats for itself.

The Bolam principle has been the bench mark for the establishment of this
standard. Mc. Nair in Bolam v. Friern Hospital Management Committee
observed as follows21-

“In the ordinary case which does not involve any special skill, negligence in
law means this: Some failure to do some act which a reasonable man in the
circumstances would do; and if that failure or doing of that act results in
injury, then there is a cause of action. How do you test whether this act or
failure is negligent? In an ordinary case it is generally said, that you judge
that by the action of the man in the street. He is the ordinary man. In one case
it has been said that you judge it by the conduct of the man on the top of a
Clapham omnibus. He is the ordinary man. But 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 the
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

21 Bolam v. Friern Hospital Management Committee, (1957)2 All ER 118.

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accordance with a practice accepted as propter by a responsible body of

medical men skilled in that particular art. Putting it the other way round, a
doctor is not negligent, if he is acting 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 is not the only test now courts have moved away from the
traditional sense of Bolam. The new trend states that a group of experts also
may not justify an act as correct if its very nature is illogical. Also, in the UK
and the USA, the standard and extent of this duty has been extended far
beyond the boundaries of harm alone and it now lays upon the medical
professionals several positive duties including the duty to report to the
authorities when injuries are the result of abuse, the duty to give advice that is
accurate if third party is to rely on it to arrange for finances and even the
avoidance of emotional and mental distress are accepted within the ambit of
areas of possible negligence.22

In India, the concept of degree of skill and care in managing a patient was
laid down clearly by the Supreme Court in Dr. Laxman Balkrishna Joshi v.
Dr. Timbak Bapu Godbole23 where it was clearly established that a healthy
patient with a fractured femur died primarily due to the actions of the doctor,
mainly not providing general anaesthesia before traction and thereby causing
shock and embolism, the Court stated that if negligence and wrongful act of
person is proved then he will be liable for damages.

The Courts in India reaffirmed the Bolam Principle.24 However, in U.K. this
principle was challenged in Bolitho v. City and Hackney Health Authority.25

22 Michael Jones, Medical Negligence, 287 (Sweet and Maxwell, 4th edn., 2008).
23 AIR 1969 SC 128.
24 Achutrao Harinbhau Khodwa v. State of Maharashtra, (1996)2 SCC 634

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This judgment laid down that the reasonable man test of Bolam did not bind
the Court if the medical opinion is unable to withstand the logical test of the
Court. In such a situation the Court is right in rejecting expert opinion as
well. The Apex Court in Vinitha Ashok v. Lakshmi Hospital26 reiterated the
Bolitho principle.

This means that the Courts would not hesitate to reject Bolam and accept the
Bolitho principle if the case requires. This manifestly states that the courts are
free to reject Bolam and accept the Bolitho principle if the situation demands.

1.4.3 Consequential Damage

The third important aspect of establishing a case of negligence including
medical negligence would be to show the fact that a breach of duty caused
damage to the plaintiff. In cases in which damages are claimed, the burden of
proof is on the plaintiff to prove the damage. That damage or loss may be
direct or indirect. If the loss is indirect, a further test of foreseeability will
also be applied.

There is also a clear distinction between proving causation for a civil case of
medical negligence and a criminal action for the same. In Dr. Suresh Gupta
v. Govt. of N.C.T. of Delhi27 the Apex Court stated as follows: “…From the
medical opinions produced by the prosecution, the cause of death is stated to
be „not introducing a cuffed endo-tracheal tube of proper size as to prevent
aspiration of blood from the wound in the respiratory passage.‟ This act
attributed to the doctor, even if accepted to be true, can described as negligent
act as there was lack of due care and precaution. For this act of negligence he
may be liable in tort but 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”.

25 [1997]4 All ER 771.

26 (2001)8 SCC 731.
27 AIR 2004 SC 4091.

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In a case where the patient dies of congenital heart failure and a suit was
brought against a chemist who gave Pectokab in place of Darzin as
prescribed by the doctor for diarrhoea, the NCDRC held that there was no
causation established between the act of the chemist and the death of the
patient and hence denied damages.28

In the case of Martin F. D’Souza29 the Supreme Court held the causation had
not been proven. The case is related to a patient being given antibiotics for a
urinary tract infection that was in an advanced stage. The patient also
suffered from renal failure and the drug was prescribed as life saving. Its
continued usage resulted in hearing impairment. The Court found that all
drugs had known side effects and in the given case, no causation had been
established to get remedy.

With respect to causation, the greatest difference lies between scientific

medicine and practitioners of Homeopathy, Ayurveda, Unnani and the like .
In the case of practitioners of these forms of medicine, the threshold of
causation is limited res ipsa loquitur and no further. In the case of Poonam
Verma v. Ashwin Patel30 the Court held that a Homeopathic doctor, “having
practiced in Allopathy, without being qualified in that system, was guilty of
negligence per se and, therefore, the appeal against him has to be allowed in
consonance with maxim sic utere tuo ut alienum, non loedas (a person is held
liable at law for the consequences of his negligence)”.

In Master P.M. Ashwin v. Manipal Hospital31 the SCDRC held a paediatric

surgeon and anaesthetist liable for severe burns caused to the legs of the
infant during surgery using this principle.

However, this doctrine is to be used with extreme caution in medical

negligence cases. The Supreme court in Jacob Mathew v. State of Punjab32

28 Ramji Lal v. Sarvodaya Medicals (1995) 1 CPR 883.

29 AIR 2009 SC 2049
30 AIR 1996 SC 2111.
31 1998 CJ 1079 (Karn).

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held that “…the rule of res ipsa loquitur is not of universal application and
has to be applied with extreme care and caution to the cases of professional
negligence and in particular that of the doctors. Else it would be counter
productive”.

In V. Kishan Rao v. Nikhil Super Speciality Hospital,33 the Supreme Court

held that causation was proved when a patient was suffering from malaria
and malaria like symptoms were manifest but was treated for typhoid and
died as a result. The Court held that no expert opinion was even needed in
cases that were apparent and obvious.

Other area that has caught the attention of courts relates to medical aid and
sterilization camps conducted by the government and private organizations.
Several of these camps are unhygienic, not sterile and doctors perform scores
of surgeries each day in order to earn more and create sensation in the media.
One such study of the sterilization camps of UP posts a grim picture.34

In defining recklessness and negligence the Supreme Court in Jacob

Mathew,35 stated that “The moral culpability of recklessness is not located in
a desire of cause harm. It resides in the proximity of the reckless state of
mind to the state of mind present when there is an intention to cause harm.
There is, in other words, a disregard for the possible consequences.”

A landmark Judgment with respect to medical negligence claims was the case
of Indian Medical Association v. V.P. Shantha.36 This 1996 judgment by the
Supreme Court decreed that patients were consumers and can claim relief
under the Consumer Protection Act 1986. As consumers, the redressal
mechanism available to the patient.

32 AIR 2005 SC 3180.

33 (2010)5 SCC 513.
34 Avhijit Das, Ramakant Rai and Dinesh Singh, “Medical Negligence and Rights
Violation” Economic and Political Weekly, Vol. 39 No. 35 (2004).
35 AIR 2005 SC 3180.
36 AIR 1996 SC 550.

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1.5Medical Negligence-
1.5.1 Historical Perspective and Origin of Medical Negligence
Since the dawn of human history, human life is considered as most precious
thing. So, there are many health care systems prevalent in India as well as
rest of the world to treat the human being. The Greeks introduced the
concepts of medical diagnosis, prognosis, and advanced medical ethics. The
Hippocratic oath was given by Greece in 5th century. It is an oath office that
physicians swear upon entry into the profession today.

The Atharvaveda, a sacred text of Hinduism dating from the Iron Age, is one
of the first Indian text dealing with medicine. It contains prescriptions of
herbs for various ailments. Ayurveda, which is also a part of Atharvaveda,
use herbs to treat ailments. In medieval times, Unani medicine got royal
patronage and progressed during mughal periods. As per Unani medicine, the
elements of fire, water, earth and air are present in human body and their
balance leads to health and their imbalance leads to illness. The Arabs
introduced the Unani system of medicine in India.

No doubt doctors enjoyed a status closer to that of the God, the savers of life,
the givers of relief and the destroyer of pain. They have to pay in equal way if
things go wrong. Aggrieved people become victims if things go wrong. In
ancient times in the city of Babylon, the Hammurabi code was practiced. He
doctor was punished by cutting his hands off if he caused the loss of an eye
even inadvertently.

The first recorded medical negligence suit under English law was filed in
1374. The case involved an action brought before the King‟s Bench against a
surgeon, J. Mort, where the plaintiff sustained an injury in his hand as a result
of alleged wrong treatment of the defendant. The defendant surgeon was not

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held liable because the court found that the surgeon acted with due diligence,
so it was not right for him to be held culpable37.

The first recorded medical negligence case in the USA was filed in 1794. In
Cross V. Guthrie, the patient‟s husband sued Dr Cross, a Connectitut
physician after the patient died as a result of postoperative mastectomy
(surgical removal of breast) complications three hours after operation. At the
end it was found that the defendant had not only broken, but also violated his
undertaking and promise to the plaintiff to perform the said operation
skilfully and safety. The jury found the defendant liable and awarded
damages of 40 pounds for loss of companionship.38

At the early days of British regime, practitioners of English medicine were

few. But, with the course of time and its quick relief effect, allopathic system
of medicine gained popularity and ascendancy over indigenous system of
medicines. So, it was felt to regulate this system of medicine. Registration of
qualified medical practitioners in English medicine began in Bombay with
the enactment of Bombay Medical Act, 1912. The Bombay Medical council
empowered to remove a practitioner‟s name from the medical register after
inquiry if he found guilty of infamous professional misconduct. By the time,
Indian Medical Council Act, 1933 was enacted to regulate medical education
and practitioners in India. The Medical Council of India was established in
1934 under the Indian Medical Council Act, 1933. This act was further
repealed and new one was enacted in 1956. It was felt by the government that
the provisions of Indian Medical Council Act were not adequate to meet with
the challenges posed by fast development and progress in medical field. So,
Government of India introduced The National Medical Commission Bill,

37 T.K. Koley, Medical Negligence and The Law in India xvi (Oxford University Press,
New Delhi 3rd edn., 2014).
38 Ibid.

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201739. It aims to overhall medical education in India and replace the 83 year
old Medical Council of India.

1.5.2 Meaning and Concept of Medical Negligence

Medical negligence, as the term suggests itself is related to a profession
concerning with medicine. Basically, 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 practised by an ordinarily and
reasonably competent man practising the same profession. According to
Charlesworth and Percy on Negligence- a specialist is one from whom in
case of contract, more skill can be demanded than from a general
practitioners. In Jai Prakash Saini v. Director, Rajiv Gandhi Cancer Institute
& Research Centre40, it has been held that in order to decide whether
negligence is established in any particular case, the alleged act or omission or
course of conduct, complained of mush be judged not by ideal standards nor
in the abstract but against the background of circumstances in which the
treatment in question was given and the true test for establishing negligence
on the part of a doctor is as to whether he has been proved guilty of such
failure as no doctor of ordinary skill would be guilty if acting with reasonable
care.

In Dr. C.J. Subramania v. Kumarasamy41 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. Non everyone or a mere error of judgment can be castigated as
negligence in the legal sense, but it is only such an error which a reasonable
competent professional man, acting with ordinary care might commit.

39 Minister of Health and Family Welfare J.P. Nadda introduced the National Commission
Bill on December 29, 2017 in the Lok Sabha.
40 2003 (2) CPR 202
41 1994 CCJ 475

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The plaintiff has to establish all the following elements for a successful
medical negligence claim42

1. Existence of a legal duty- a legal duty exists whenever a hospital or

health care provider accepts a patient for treatment,

2. Breach of a legal duty- the hospital or health care provider fails to

provide the accepted standard of care,

3. The breach caused an injury- the breach of duty is proximate cause of

the injury, and

4. Damages- the losses may be physical or emotional.

The law requires that medical practitioners must exercise reasonable degree
of care while performing their functions. The law demands neither higher nor
lower degree of care but reasonable degree of care. Medical Practitioner‟s
legal responsibility during treatment is well defined in Derr v. Bonney43.

1. An individual licensed to practice medicine is presumed to possess the

degree of skill and learning which is possessed by the average
members of the profession in the community in which he practices,
and it is presumed that he has applied that skill and learning with
ordinary and reasonable care those who come to him for treatment,

2. The contract, which the law implies from the employment of a

physician or surgeon, is that the doctor will treat his patient with the
diligence and skill mentioned above,

3. He does not incur liability for his mistakes if he has used methods
recognized and approved by those reasonably skilled in the
profession,

42 T.K. Koley, Medical Negligence and The Law in India 29 (Oxford University Press, New
Delhi 3rd edn., 2014).
43 Available at http://law.justia.com/cases/washington/supreme-court/1951/31391-1.html
(last visited on July 18, 2018).

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4. Before a physician or surgeon can be held liable for

malpractice/negligence, he must have done something in the treatment
of his patient which the recognized standard of medical practice in his
community forbids. In such cases or he must have neglected to do
something required by these standards,

5. In order obtain a judgment against a physician or surgeon, the

standard of medical practice in the community must be shown and
further that the doctor failed to follow the method prescribed by that
standard,

6. It is not required that physicians and surgeons guarantee results, nor

that the result must be what is desired, and

7. The testimony of other physicians that they would have followed a

different course of treatment than that followed by the defendant or a
disagreement of doctors of equal skill and learning as to what the
treatment should have been, does not establish negligence.

1.5.3 Burden of Proof

The general rule is that the burden of proving negligence lies on the plantiff.
In case of medical negligence, the patient has to prove that the medical
professional has breached that legal duty of care by falling below the
accepted standard which resulted injury. The patient (aggrieved) has to prove
that the damage is a result of wrongful act of the defendant.

In Achutrao Haribhau Khodwa and Others v. State of Maharastra and

Others44, the Supreme Court asked, “Do the plaintiffs prove that the death of
Chandrikabai was caused due to failure of duty on the part of hospital
authorities and their dereliction of duty and hence all defendants are liable for
the same?”

44 AIR 1996 SC 2377.

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In Aphraim Jayanand Rathod v. Dr. Shailesh Shahs45 the Gujarat

Commission has summarized the principles of burden of proof as follows-

“Ordinarily it is for the complainant to prove that the doctor whose

treatment he had taken was negligent in giving his treatment. It is true that
the doctor cannot be held negligent, simply because something happens to
go wrong. However, the details of the operation and findings in the course
of operation are within the special knowledge of the doctor performing the
operation and his team. It is, therefore, for the doctor to explain
satisfactorily as to what he had done in the course of the operation and if
the operation was not successful or if it results in complications, it is for
him to explain as to how it so happended”.

However, the burden of proof is not always fixed. It keeps shifting from
the plantiff to the defendant. If the negligence is so obvious that
circumstances speaks about the negligence, then the medical practitioner
has to prove that he is not negligent. Usually, these cases are referred by
maxim „Res Ipsa Loquitur‟.

Res Ipsa Loquitur- Res Ipsa Loquitur means that things speak for itself. If
the maxim applies, the defendants have to rebut the presumption that they
were negligent. This doctrine is rarely invoked, usually in obvious cases of
medical negligences such as leaving behind swab in the abdomen after
operation, amputation of the wrong limb, injection of wrong medicine,
operating upon a patient who was not admitted for operation etc.

Res ipsa loquitur had its genesis in the 1863 English case Byrne v. Boadle,46
where a barrel of flour fell on the plaintiff from a window above a shop. The
circumstances constituted prima facie evidence of negligence. The court
observed, “I think it apparent that the barrel was in the custody of the
defendant who occupied the premises, and who is responsible for the acts of
his servants who had control of it; and in my opinion the fact of its falling is

45 1996 (1) CPR 547 (GUJ.).

46 2 H. And C. 722, 159 Eng. Rep. 299 (Court of the Exchequer 1863).

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prima facie evidence of negligence”. It is applicable only when the following

conditions are met47:

1. The event of the case would not occur ordinarily, in the absence of
someone‟s negligence,

2. The event must be caused by a means within the exclusive control of the
defendant and,

3. The plaintiff did not contribute to the event.

In Achutrao Haribhau’s case48, the patient was admitted for a minor

operation, during which a mop was left in the abdomen, leading to peritonitis
and death. The Supreme Court held this is a case in which the doctrine of res
iqsa loquitur clearly applies.

1.6Civil Medical Negligence & Criminal Medical Negligence

Civil Medical Negligence
Civil medical negligence is one in which there is an infringement of civil rights. The
basis of these civil rights may be a contract or agreement between the parties. The
denial of such rights is civil wrong. It is carelessness in a matter in which law
mandates carefulness. In civil medical negligence, medical professionals have to pay
damages to the patient because the prime aim of this type of litigation is to
compensate the injured person. The Consumer Protection Act is a civil safeguard to
protect the interest of aggrieved patients. At present, mostly medical negligence suits
are lodged in consumer forums.

In order to constitute civil medical negligence there must be-

(i) A legal duty to exercise skill or care, and

(ii) A failure to exercise the skill or care necessary in the circumstances to any
particular case.

47 T .K. Koley, Medical Negligence and The Law in India 75 (Oxford University Press,
New Delhi 3rd edn., 2014)
48 AIR 1996 SC 2377.

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Criminal Medical Negligence

Where carelessness has been so severe that it is judged to be gross, the doctor may
be subject to charge under criminal negligence. Lord Diplock in R v. Lawrence49
defines criminal negligence as “doing an act without having given any thought to the
possibility of there being such risk or having recognized that there was some risk
involved, had nevertheless gone on to take it.”

Mens Rea

To attract the provisions of criminal law, mens rea is essential element. Mens rea is a
latin term which means guilty mind. The latin phrase actus non facit reum nisi mens
sit rea, means that „the act does not make a person guilty unless his intention were
so‟.

In criminal law it is not the amount of damage but the amount and degree of
negligence that is determinative of liability. To fasten liability in criminal law, the
degree of negligence has to be higher than that of negligence enough to fasten
liability for damages in civil law. The concept of criminal negligence was defined in
Andrews v. Director of Public Prosecutions50 in which Lord Atkin observed -
“simple lack of care such as will constitute civil liability is not enough. For purposes
of the criminal law there are degrees of negligence, and a very high degree of
negligence is required to be proved before the felony is established.”

Test for determination of criminal negligence

The Apex Court has accepted the „gross negligence test‟ to prosecute under criminal
law. To prosecute a medical professional under criminal law, the degree of
negligence has to be extremely high, such that it results in death or severe injury to
the patient. However, at the same time mens rea should also be present for criminal
prosecution.

Whenever there is death due to the negligence of medical professional, the suit is
lodged under section 304A of the IPC. Though, the word „gross‟ is not mentioned in

49 (1981) 1 All ER 974.

50 (1937) 2 All ER 552.

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the section 304A of IPC, the degree of negligence should be gross. The Apex Court
in Jacob Mathew’s case51 hold that “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 high degree as to be „gross‟. The expression „rash or negligent
act‟ as occurring in section 304A of IPC has to be read as qualified by the word
grossly”.

1.7Defenses Available to Medical Practitioners Against Medical

Negligence
When a charge of negligence is levied against medical practitioner, he could avail the
following defenses that have been recognized by the courts over the years.

1. No Doctor-Patient relationship

It is established that until and unless doctor-patient relationship is established,

there is no question of negligence on the part of the doctor. If it is proved that the
very relationship is no longer, it cannot be assumed to have a duty of care of the
doctor towards the patient. So, the question of breach of duty and consequential
damage cannot be established.

2. The duty of care towards the patient had ceased

(i) When the patient has recovered from the illness for which the treatment
was carried out.

(ii) When the patient Leave Against Medical Advice (LAMA).

(iii) When the patient does not follow the necessary instructions of the doctor.

3. Absence of Proof

It is established that negligence has to be proved, it cannot be presumed. The

Supreme Court in Achutrao Haribhan Khodwa v. State of Maharashtra52 held
that “for establishing negligence or deficiency in service there must be sufficient
evidence that a doctor or hospital has not taken reasonable care while treating the

51 Jacob Mathew v. State of Punjab, AIR 2005 SC 3180.

52 AIR 1996 SC 2377.

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patient. Reasonable care in discharge of duties by the hospital and doctor varies
from case to case, and expertise expected on the subject, which a doctor or a
hospital has undertaken. Courts would be slow in attributing negligence on the
part of the doctor if he has performed his duties to the best of his ability with due
care and caution.”

4. Deviation from normal practice that led to injury

Deviation from normal practice is not necessarily evidence of negligence. To

establish liability on that basis it must be shown:

(i) that there is a usual and normal practice.

(ii) that the defendant has not adopted it.

(iii) that the course in fact adopted is one, no professional man of ordinary
skill would have taken had he been acting with ordinary care.

But, it can be found that the procedure which was in fact adopted was acceptable to
medical science as on that date, the medical practitioner cannot be held negligent
merely because he chose to follow one procedure and not another and the result was a
failure.53

5. Complainant’s own negligence

Patients‟ also have certain duties such as adhering to the prescribed medication,
not destroy medical records or not suppressing any fact that have been sought by
the doctor and that could probably affect the treatment54.

6. Defence of Section 88 IPC

This section grants immunity to a medical practitioner in certain cases which are
already of a serious nature.

Section 88 of IPC says- Act not intended to cause death, done by consent in good
faith for person‟s benefit.

53 Anoop K. Kaushal, Medical Negligence & Legal Remedies16 (Universal Law Publishing
Co Pvt Ltd, New Delhi, 3rd edn., 2004).
54 Ibid

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7. Defence of Contributory Negligence

When the plaintiff by his own want of care contributes to the damage, he is
considered to be the guilty of contributory negligence. To establish the defence of
contributory negligence the defendant must prove that the plaintiff failed to take
ordinary care of himself and his failure to take care was a contributory cause of
the accident.

8. Composite Negligence

When a person is injured as a result of negligence of two or more persons, there is

composite negligence. In Arunaben D. Kothari v. Navdeep Clinic55 in this case,
Gujarat State Commission apportioned the liability of orthopaedician, cardiologist
and anaesthetist as 30%, 60% and 10% respectively though they were held jointly
and severally liable for the death of the patient in the midst of the operation.

55 1998 CCJ 972 Gujarat

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