“Medical Negligence”

Submitted by
Nidhi Prakriti ,
B.B.A. L.L.B (Hons.)
Submitted to:
Ms. Sneha Sharma,
(Coordinator, Child Rights Centre)
Faculty of Law of Torts

This final draft is submitted in the partial fulfilment in law of

torts for the completion of BBA L.L.B course.

26th August 2019

Chanakya National Law University, Patna

 MEDICAL NEGLIGENCE

Table of cases

 Achutrao Haribhau Khodwa and Other vs State of Maharastra and

Others; 1996 SCC (2) 634, JT 1996 (2) 624
 Arun Kumar Agarwal Vs. National Insurance Company
 Bolam v. Friern Hosp. Management Committee, (1957)
 Bolitho v. City and Hackney Health Authority [1996] 4 All ER 771
 Calcutta Medical Research Institute vs Bimalesh Chatterjee (1999)
CPJ 13 (NC)
 Chameli Singh v. State of U.P. AIR 1996 SC 1051
 Consumer Education and Research Center v. Union of India, AIR
1995 SC 1922;
 Delhi Development Authority v. J.N. Luthra 1993 II CPJ 934.
 Donoghue v. Stevenson, (1932) A.C. 31.H.L.
 Dr Janak Kantimathi Nathan vs Murlidhar Eknath Masane of 2002
2002 (2) CPR 138
 Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole AIR
1969 (SC)128
 Dr Prem Luthra vs Iftekhar (2004) 11 CLD 37 (SCDRC - UTTARANCHAL)
 Dr. Balram Prasad vs Dr. Kunal Saha & Ors 2013 STPL(Web) 850
 SC Rajesh & Ors. Vs. Rajvir Singh and Ors 2013 (6) SCALE 563

 Indian Medical Association v. V.P.Shantha 111 (1995) CPJ 1 (SC);

1995 (3) CPR 412; 1995 (6) SCALE 273; 1996 CCJ 1 (SC)

 Ishwar Das v. Vinay Kumar Gupta 1992 (1) CPR

 Jacob Mathew vs State Of Punjab & Anr on 5 August, 2005

 Jaiprakash Saini v. Director Rajiv Gandhi Cancer Institute & Research
Center,2003 (2) CPR.205.
 Jaipur Stock Exchange v C P.Mehta 1991 (1) CPR 26
 Kanhaiya Kumar Singh vs Park Medicare & Research Centre of
1999 III (1999) CPJ 9 (NC)

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 MEDICAL NEGLIGENCE

 Marikkar Motors Ltd. v Mary Poulsoe 1991 (11) CPR 251

 Maynard v. West Midlands Regional Health Authority, (1985)

 Mohanan vs Prabha G Nair and another (2004) CPJ 21(SC), of

2004 Feb 4
 Oriental Insurance Co. v. Bahadar Ram

 Shrivastava v Rarnbiliarilal AIR (1982) M.P.132

 Smt J S Paul vs Dr (Mrs) A Barkataki (2004) 10 CLD 1 (SCDRC -
MEGHALAYA)
 Spring Meadows Hospital v. Harjol Ahluwalia; AIR 1998 SC 1801
 State of Haryana vs. Smt. Santra (2000) 5 SCC 182, AIR 2000 SC
3335
Viraj Overseas Pvt, Ltd v. MIs. Hindustan Motors Ltd II (1992) CPJ
360 NC
 Wheel World v. Dr. Snit. Janak -Narendra 1991 (11) CPR 632 37
 Whitehouse vs. Jordan (1981) 1 All ER 267 the House of Lords

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 MEDICAL NEGLIGENCE

List of Abbreviations

AIR : All India Reporter

CrPC : The Code of Criminal Procedure

Edn. : Edition

IPC : Indian Penal Code

NGO : Non- Governmental Organisation

CPA : Consumer Protection Act

BOM : Bombay (Mumbai)

MP : Madhya Pradesh

IJHINR : Indian Journal of Human Rights Studies

NCRB : National Crime Records Bureau

SCDRC : State Consumer Disputes Redressal Comission

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 MEDICAL NEGLIGENCE

Table of content

Declaration by the candidate...................................................................................................6

Acknowledgement....................................................................................................................7
Research Methodology.............................................................................................................8
Hypothesis.................................................................................................................................8
Aims and objective of the study..............................................................................................8
Research questions...................................................................................................................8
1. Introduction........................................................................................................................9
A. Definition.....................................................................................................................10
B. Difference between Civil and Criminal Negligence....................................................11
2. Acts in relation to medical negligence.............................................................................14
A. Consumer Protection act, 1986....................................................................................14
B. Indian Penal Code, 1860..............................................................................................17
3. The element of consent.....................................................................................................19
A. Informed Consent.........................................................................................................19
B. Essentials of valid consent...........................................................................................19
1. Competence...............................................................................................................19
2. Sufficiently informed................................................................................................20
3. Free from coercion or undue influence.....................................................................21
4. The Bolam Test................................................................................................................22
Limitations and Bolitho test..............................................................................................23
5. Case studies......................................................................................................................26
5.1 Bolam v Friern Hospital Management Committee.....................................................26
5.2 Bolitho v. City and Hackney Health Authority..........................................................27
5.3 Indian Medical Association v VP Shantha.................................................................28
6. Suggestion and observation..............................................................................................30
7. Conclusion........................................................................................................................31
Bibliography...........................................................................................................................32

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 MEDICAL NEGLIGENCE

Declaration by the candidate

I, hereby, declare that the work reported in the B.B.A. L.L.B (Hons.) Project Report titled
“MEDICAL NEGLIGENCE” submitted at CHANAKYA NATIONAL LAW UNIVERSITY,
PATNA is an authentic record of my work carried out under the supervision of Ms. Sneha
Sharma. I have not submitted this work elsewhere for any other degree or diploma. I am fully
responsible for the contents of my Project Report.

(Signature of the Candidate)

Nidhi Prakriti (2236)

B.B.A. L.L.B., 1st year
SEMESTER -1st
CNLU, Patna
Dated:

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 MEDICAL NEGLIGENCE

Acknowledgement

I give all the honour and glory to God Almighty, who gave me the grace to complete this
project. I acknowledge with great appreciation, my professor , Ms. Sneha Sharma, for her
guidance and commitment to the success of this work, despite the large workload on her
table. I am grateful ma’am.
I also appreciate with great joy my parents, the best parent on the face of the planet, who
ensure my success academically. Thank you for your support spiritually, financially and
morally.
I owe the present accomplishment of my project to our CNLU librarians, who helped me
immensely with materials throughout the project and without whom I couldn’t have
completed it in the present way.
I would also like to extend my gratitude to my friends and all those unseen hands that helped
me out at every stage of my project and for accommodating my trouble during the writing
period of this project. God bless you all.

THANK YOU,
NIDHI PRAKRITI
SEMESTER:- 1st
CNLU, Patna

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 MEDICAL NEGLIGENCE

Research Methodology

The researcher will do doctrinal type of research in which he will go through both primary
and secondary sources in order to get a clear and exact picture of the problem in question.
The researcher will go through the work of many eminent person who have given their
insight on this subject matter.

Hypothesis
The researcher presumes that simple lack of care results in civil liability whereas to incur
criminal culpability lack of negligence should be of very high degree.

Aims and objective of the study

 The researcher wants to enlist the provision of Consumer Protection Act 1986
relating to professional negligence (medical negligence in general).
 The researcher wants to find out various duties owned by medical professional
towards their clients with help of various case laws.
 The researcher wants to check the scope of medical negligence under the law of torts
in India.
 The researcher want to find out about the element of consent in medical negligence.
 The researcher wants to critically examine the test of Bolam and the test of Bolitho
regarding medical negligence

Research questions
 Whether the rationale behind specialised codification of medical negligence justified?
 Which test of medical negligence is more rational The Bolam Test or The Bolitho
Test?

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 MEDICAL NEGLIGENCE

1. Introduction

Medical Profession is one of the most reputed professions in the world as we know that
doctors are considered as God because they save our lives and always saves us from disease
like Cancer, TB, etc. So they are given much respect in our society and moreover they do
their work and research for humans and their development and their main profession is to
help people to come out of any diseases. This is their work and so they focus much on their
research as it will be helpful to mankind in future. But then a time comes when the saviour
doesn’t remain the saviour but becomes the devil himself and here comes the main thing of
our topic and that is about Negligence in the services rendered by the doctors. Doctor always
needs to be focused on their work and they should be always exact in their work because
when they are advising someone on their health issues then they cannot take a chance to give
them wrong or useless advice or to do anything wrong in surgery because it can cost
anybody’s life. But it is an irony that we have several cases of medical negligence in our
country and this paper is thus a detail study on Negligence in services rendered by doctors.

Now talking about negligence, we should know that negligence is an omission to do

something by getting into influence of the human affairs and doing such work which will be
done or not by reasonable and sensible man.1 Now we will too see what exactly is medical
negligence, medical negligence can be defined as an act which occurred with the lack of
reasonable care or wilful negligence by the doctor in respect to all aspects regarding patient
from showing the confidential report of the patient and history to some unknown person to
making diagnosis and examination without patient’s permission.2 Moreover we can prove a
doctor’s negligence when he had a duty of care towards his patient but he breached that duty
and the patient suffered injury due to that breach of duty of care. Now we have known that
what exactly is medical negligence, so now we will see in what all ways it is done by the
doctors, in order to find whether the negligence in service is done by the doctor or not there
are certain ingredients being kept so that they are being caught doing wrong things. They are
duty of care, breach or failure to show the acceptable level of professional conduct and the

1
Dr. Jagdish Singh & Vishwa Bhusan, Medical Negligence and Compensation (2d. ed., 1999).
2
Dr. Jagdish Singh & Vishwa Bhusan, Medical Negligence and Compensation (2d. ed., 1999).

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 MEDICAL NEGLIGENCE

damage incurred by that breach as stated above. This all are certain things which are kept as a
trap to catch the doctors practicing such things. 3 These are the protection barriers in favour of
patients that help them to be saved from such doctors moreover it stops them from doing
wrong things. So now we can see the ways in which the doctors actually do the negligence in
their services like

1) Failure to attend or treat.

2) Error in diagnosis.

3) Failure to take full medical history.

4) Errors in Treatment

5) Failure of advice and communication.4

This all are actually categories of negligence in medical care. There are still more but by this
it is evident that the patients in today’s time are not safe in our country. But here we will too
understand that what actually happens in this all five categories of negligence. So doctors can
be held liable for the Failure to attend the patients in case of accidents or emergency because
it is the primary duty of the doctor to attend the patient in case of accidents but they should
treat them with full level of competence. It too include the thing that if a junior doctor or the
receptionist fail to bring the patient to the doctor.

A. Definition
5
Winfield has defined negligence as a tort which is the breach of a legal duty to take care
which results in damage, undesired by the defendant to the plaintiff. An act involving the
above ingredients is a negligent act.

Baron Alderson defines negligence in Btyth v. Birmingham Water Works Company 6 as

omission to do something which a reasonable man guided upon by those consideration which
ordinarily regulate human affairs, would do, or doing something which prudent and
reasonable man would not do. Charlesworth modifies Alderson's definition and defines
negligence as a tort which involves a person's breach of duty that is imposed upon him to take
care; resulting in damage to the complainant.7

3
Dr. Mahendra K. Joshi, A-Z Medical Law 2000 (1st ed. 2000).
4
Dr. Jagdish Singh & Vishwa Bhusan, Medical Negligence and Compensation (2d. ed., 1999).
5
Winfield and Jalou.icz, Tort,5th , p.4
6
Blyth v. Birmingham Water Works Company, (1856) ll Ex 781.
7
Charlesrworth & Percy, Negligence, 19th ed, p. l6.

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 MEDICAL NEGLIGENCE

Medical negligence is the failure of a medical practitioner to provide proper care and
attention and exercise those skills which a prudent, qualified person would do under similar
circumstances. It is a commission or omission of an act by a medical professional which
deviates from the accepted standards of practice of the medical community, leading to an
injury to the patient. It may be defined as a lack of reasonable care and skill on the part of a
medical professional with respect to the patient, be it his history taking, clinical examination,
investigation, diagnosis, and treatment that has resulted in injury, death, or an unfavourable
outcome. Failure to act in accordance with the medical standards in vogue and failure to
exercise due care and diligence are generally deemed to constitute medical negligence.8

B. Difference between Civil and Criminal Negligence

There is no difference as such in civil and criminal negligence presently and it solely depends
upon the victim’s discretion as to whether he wants to claim compensation or whether he
wants to secure punishment for the convict. 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.9 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 Court may order the accused to pay
some amount by way of compensation to victim who has suffered by action of the accused. It
may be noted that this power of criminal courts to award compensation is not ancillary to
other sentences, but it is in addition thereto. In Hari Kishna’s 10 case, the Supreme Court has
directed all criminal courts to exercise the power of awarding 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

8
Gupta, Kiran, “The standard of care and proof in medical profession, A shift from Bolam to Bolitho”, XIV-XV
National Capital Law Journal 1(2011-2012).
9
The Powers ofCriminal Courts Act, 1973.
10
Hari Kishan v. Sukhbir Singh, AIR 1988 SC 2127

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 MEDICAL NEGLIGENCE

liability.11 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.12

Lord Atkin in his speech in Andrews v. Director of Public Prosecutions 13, stated that 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. Thus, a clear distinction
exists between “simple lack of care” incurring civil liability and “very high degree of
negligence” which is required in criminal cases. Lord Porter said in his speech in the same
case14 that a higher degree of negligence has always been demanded in order to establish
criminal offence than is sufficient to create civil liability.

The afore-quoted statement of law in Andrews 15 has been noted with approval by the
Supreme Court in Syed Akbar v. State of Karnataka. 16 The Supreme Court in this case has
dealt with and pointed out with reasons the distinction between negligence in civil law and in
criminal law. Their Lordships have opined that there is a marked difference as to the effect of
evidence, viz., the proof, in civil and criminal proceedings. In civil proceedings, a mere
preponderance of probability is sufficient, and the defendant is not necessarily entitled to the
benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must
amount to such a moral certainty as convinces the mind of the Court, as a reasonable man,
beyond all reasonable doubt. Where 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. The Supreme Court in Dr. Suresh Gupta
v. Government of NCT of Delhi17, lucidly brought out the distinction between the civil
liability and the criminal liability. It observed:

“for fixing criminal liability on a doctor or surgeon the standard of negligence

required to be proved should be so high as can be described as gross negligence or
recklessness ....... mere inadvertence or some degree of want of adequate care and

11
R.K. Bag, Law ofMedical Negligence and Compensation, (2001), (2nd ed.), p.7
12
Krishna Prasad (Dr.) v. State ofKarnataka, 1989(1) ACJ 393.
13
Andrews v. Director of Public Prosecutions (1937) AC 576.
14
Id. 13
15
Id. 13
16
Syed Akbar v. State of Karnataka (1980) 1 SCC 30
17
Dr. Suresh Gupta v. Government of NCT of Delhi AIR 2004 SC 4091.

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 MEDICAL NEGLIGENCE

caution might create a civil liability but would not suffice to hold him criminally
liable”.18

It further observed that, for every mishap or death during medical treatment, the medical men
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 doctors and
hospitals 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 the 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.19 It also held that, between civil and criminal liability of a doctor causing death of
his patients the court had 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, that is, a
higher degree of morally blameworthy conduct. 20 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. The courts have 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 patients. Such gross negligence alone is
punishable.

It further held that, the factor of grossness or degree does assume significance while drawing
distinction in negligence actionable in tort and negligence punishable as a crime. To be latter,
the negligence has to be gross or of a very high degree.

Even if a doctor is discharged/ acquitted by a criminal court it will not absolve him of his
liability for negligence in civil law.21

18
Id. 17
19
Id. 17
20
Id. 17
21
Smt. Asia Zafar v. Shingai Rajkumar Memorial Hospital, 2005 CTJ 1035 (MP).

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2. Acts in relation to medical negligence

In India medical negligence apart from being treated as a tort can also be treated as a
deficiency in service thus can also come under the purview of Consumer Protection Act,
1986. Moreover the Indian Penal Code, 1860 also have some provision in relation to medical
negligence.

A. Consumer Protection act, 1986

After the introduction of consumer protection act, 1986, initially there were differing orders
from various state consumer disputes redressal commissions on the issue including medical
profession under Section 2(1) (o) of the consumer protection act, 1986, which defines
services and lists various types of services to be included or excluded under the act.

However, in 1992, in an appeal from Kerala State Commission 22, the National Consumer
Disputes Redressal Committee (NCDRC) included the medical profession under Section 2(1)
(o) of CoPrA, 1986.23

When the medical profession was brought under Consumer Protection Act, the Indian
medical association doubted whether the consumer disputes redressal agencies could
adjudicate the complaints of medical negligence capably. Therefore, Subsequent to the order
of National Consumer Disputes Redressal Commission, Indian medical association
impleaded itself in the special leave petition filed in the supreme court of India against this
order.

In 1995, Supreme Court in Indian Medical Association v VP Shantha decisively included,

medical profession under Consumer Protection Act, 1986. After which the Consumer
Protection Act includes all medical services offered by the private and government doctors
and hospitals. It exempts only those hospitals and the medical practitioners of such hospitals,
which offer free service to all patients at all times.

In the case24, the Supreme Court authoritatively clarified the following facts relating to
consumer law and medical negligence:

 The consumer Disputes Redressal Agencies are provided with the same powers as are
vested in the civil court under the code of Civil Procedure while trying a suit,

22
Vasantha P Nair v Cosmopolitan Hospital, (1991) 2 CPR 155.
23
Cosmopolitan Hospital pvt. Ltd. V Vasantha P Nair (1992) 1 CPJ 302 (NCDRC).
24
Indian Medical Association v VP Shantha (1995) 6 SCC 651 p 743. Para 23.

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 MEDICAL NEGLIGENCE

 The procedure followed for the determination of consumer disputes under the
Consumer Protection Act is summary in nature involving trial on the basis of
affidavits
 It will be for the parties to place the necessary material and the knowledge and
experience, which would enable the Consumer Disputes Redressal Agencies to arrive
at their findings on the basis of the material.25
 Obvious faults26 which do not raise any complicated questions can be speedily
disposed of by the procedure that is being followed by the Consumer Disputes
Redressal Agencies.
 The principle of Bolam Test as laid down in McNair J in Bolam v Friern Hospital
Management Committee 27, is to be applied to determine the standard of care which is
required by medical practitioner in an action for damages for negligence28
 In complain involving complicated issues requiring recording of evidences of experts
the complainant can be asked to approach the civil court for appropriate relief29
 Service rendered by the doctors and hospitals where charges are required to be paid
by persons availing of services but certain categories of persons who cannot afford to
pay are rendered service free of charges, would nevertheless fall within the ambit of
the expression “service” as defined in Section 2(1) (o) of the act.

Kusum Sharma & Ors vs Batra Hospital &Medical Research 30– In this case, the Supreme
Court enumerated the following principles to be followed while deciding whether medical
professional is guilty of medical negligence:

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
I.
conduct of human affairs, would do, or doing something which a prudent and
reasonable man would not do.

25
1995 (6) SCC 651, p 671, para 33.
26
The supreme court has listed the following as example of obvious faults:
1. Removal of the wrong limb
2. Performance of an operation on the wrong patient;
3. Giving injection of a drug to which the patient is allergic without looking into theout-patient card
containing the warning;
4. Use of wrong gas during the course of anaesthetic;
5. Leaving inside the patients, swabs or other items of operating equipment after surery.
27
(1957) 1 WLR 582 : (1957) 2 AII ER 118.
28
(1995) 6 SCC 651, p 668, para 30.
29
Id. p 672-673, para 37.
30
Kusum Sharma & Ors vs Batra Hospital &Medical Research II (2010) SLT 73

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 MEDICAL NEGLIGENCE

Negligence is an essential ingredient of the offence. The negligence to be

II. established by the prosecution must be culpable or gross and not the negligence
merely based upon an error of judgment.

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
III.
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.

A medical practitioner would be liable only where his conduct fell below that of
IV.
the standards of a reasonably competent practitioner in his field.

In the realm of diagnosis and treatment there is scope for genuine difference of
V. opinion and one professional doctor is clearly not negligent merely because his
conclusion differs from that of other professional doctor.

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
VI. 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.

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
VII.
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.

It would not be conducive to the efficiency of the medical profession if no

VIII.
Doctor could administer medicine without a halter round his neck.

It is our bounden duty and obligation of the civil society to ensure that the
IX. medical professionals are not unnecessary 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

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 MEDICAL NEGLIGENCE

professionals/hospitals particularly private hospitals or clinics for extracting

uncalled for compensation. Such malicious proceedings deserve to be discarded
against the medical practitioners.

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
XI.
patients. The interest and welfare of the patients have to be paramount for the
medical professionals.

B. Indian Penal Code, 1860

Now we will see the relation of Medical Professional and its negligence with Indian
Penal Code. We can see the relevance in form of sections of this Government Gazette.
They are as follows
1) Section 269 which deals about negligent act by which an infection can spread of
dangerous disease and can cost someone’s life.
2) Section 270 which deals about malignant act by which an infection can spread of
dangerous disease and can cost someone’s life.
3) Section 274 which deals about adulteration of drugs.
4) Section 275 which deals about sale of adulterated drugs.
5) Section 276 which deals about sale of drugs as different drugs or different
preparation.
6) Section 284 which deals about negligent conduct of doctors regarding the
poisonous substances.
7) Section 287 which deals about negligent conduct in respect of operation of
machinery.
8) Section 304-A which is about negligence which causes death of a person.
9) Section 312 which deals with negligence which causes a woman a miscarriage.
10) Section 313 which deals about negligence related to causing miscarriage without
woman’s consent
11) Section 314 which is about dealing with the death of the plaintiff when the doctor
was miscarrying a baby.
12) Section 315 which deals about intentionally to kill the baby inside or to try to kill
the born baby after the birth.

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 MEDICAL NEGLIGENCE

13) Section 316 deals with culpable homicide which will be consequence of causing
death of quick unborn child.
14) Section 317 deals with the responsibility of the parents that they cannot leave a
child under the age of 12 years.
15) Section 318 deals with concealment of birth by secretly disposing the dead body
of a baby.
This all sections are evidence that the Medical Profession is almost covered in IPC.
Still we have Torts in which we can find some elements of Medical Profession like in
Negligence in which the Medical Negligence is being included. And we too can find
the elements of Medical Profession in Indian Contract Act 1872 in which we came to
know that there is a consent included between the relation of doctor and patient. Thus
whenever there is common consent by two people for same work then that becomes a
contract. Thus we too can see The Indian Contract Act 1872 for making inferences of
some cases of medical negligence.

Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra31– In this case, while

dealing with Section 304A of IPC(death caused by negligence) , the statement of law by Sir
Lawrence Jenkins in Emperor v. Omkar Rampratap32, , was cited with approval:
“To impose criminal liability under Section 304A, Indian Penal Code, it is necessary that
the death should have been the direct result of a rash and negligent act of the accused,
and that act must be the proximate and efficient cause without the intervention of
another’s negligence. It must be the causa causans; it is not enough that it may have been
the causa sine qua non.”

3. The element of consent

It is fundamental principle of medical law and ethics that before treating a competent
patient a medical professional should get the patient’s consent. Gone are the days
when ‘trust me, I am a doctor’ approach is justified in imposing treatment on a
patient.

31
Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra (1965) 2 SCR 622
32
Emperor v. Omkar Rampratap (1902) 4 BLR 679

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 MEDICAL NEGLIGENCE

A. Informed Consent
An informed consent is that consent which is obtained after the patient has been
adequately instructed about the ratio of risk and benefit involved in the procedure as
compared to alternative procedures or none at all.
On the other hand there is a delicate balance here. It might be argued that the more
information that is given to a patient the more likely it is that the patient will become
confused and find it more difficult to make an effective decision. On the other hand
too little information is worthless and the consent, with no real awareness of what is
being proposed, can be regarded as ethically worthless.
There is perhaps a further issue here which is that medical decisions can be extremely
difficult. The diagnosis of a condition may be uncertain and the outcome of an
operation may be unknown. Especially with cutting edge medicine, a surgeon may be
strugliong to advice patient on the basis of unreliable data. Understandably doctors in
such cases may not want t0 tell the truth.

B. Essentials of valid consent

In order for there to be an effective consent to treatment it is not enough just to show
that patient said the word ‘yes’. There must be a genuine agreement to receive the
treatment. It is therefore necessary to show that:
• The person giving consent is competent
• The person is sufficiently informed
• The person is not subject to coercion or undue influence

1. Competence
As per the definition of consent given in Section 13 of Indian Contract Act, 1872.
When two or more person agree upon the same thing in the same sense they are said
to consent. This Act, however also provides under Section 11 that only persons who
are of and above 18 years of age are competent to consent as only they could
understand the consequences of their consent and thus only their consent can be taken
to be valid. In accordance with Indian Majority Act parties are competent when:

i. If they have attained the age of 18 years

ii. Are of sound mind
iii. Are not disqualified by law to which they are subject to

Under Section 92 of IPC treating without consent of patient is permissible if patient is

unconscious, mentally ill or gravely sick.

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 MEDICAL NEGLIGENCE

2. Sufficiently informed
It is a moral obligation of medical professionals to disclose the necessary information
to their patients, though the nature and extent of the disclosure and the legal
obligation varies from one jurisdiction to another and from one country to another. A
legally valid consent requires the patient to be provided with adequate information by
the physician about the proposed course of treatment, its probable complications,
possible alternatives and their consequences, and so on.

Various criteria have been proposed as both legal and moral standards for adequate
disclosure of information, like the reasonable doctor standard(what a reasonable
doctor thinks that a patient should know), the reasonable man standard (what a
reasonable man under similar circumstances would like to know), and the subjective
standard (what a particular patient, rather than a hypothetical reasonable person,
considers adequate information).158 Natanson v. Kline,159 held that it was the
amount of information that a reasonable doctor would provide. Canterbury v.
Spence,160 held it was that amount of information which a reasonable patient would
need to make a medical decision. The court observed that;

A risk is…material when a reasonable person, in what the physician knows or

should know to be the patient’s position, would be likely to attach significance
to the risk or cluster of risks, in deciding whether or not to forego the proposed
therapy. The doctor, therefore, is required to communicate all inherent and
potential hazards of the proposed treatment, the alternative to that treatment, if
any, and the likely effect if the patient remained untreated. This stringent
standard of disclosure was subjected to only two exceptions:

(i) Where there was a genuine emergency, e.g. the patient was unconscious;
and

(ii) Where the information would be harmful to the patient, e.g. where it might
cause psychological damage, or where the patient would become so
emotionally distraught as to prevent a rational decision.

3. Free from coercion or undue influence

Even if a patient is competent and she or he is aware of the crucial issues if her or his
consent is not given freely it will not be legally valid consent.33 It is rare for this issue

33
Jonathan Herring , Medical Law and Ethics (2nd ed. 2008)

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 MEDICAL NEGLIGENCE

to arise and it is difficult to demonstrate that an apparent consent was only given
under coercion or undue influence. In Freeman v Home Office 34 it was held that the
fact the prisoner felt he had no option but to submit to the prison medical officer’s
proposed treatment did not meant he was not validly consenting. The Court pointed
out that he was not in any way threatened or physically restrained to obtain his
consent and thus the consent was free from coercion and undue influence.

4. The Bolam Test

The judgment given by Mr Justice Mc Nair in Bolam vs. Frien hospital management
committee (1951) is a land mark decision in deciding cases of medical negligence and
is known as the "Bolam test". It says, "The test is the standard of the ordinary skilled
man exercising and professing to have that special skill. A man need not possess the

34
Freeman v Home Office (1984) 1 All ER 1036

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 MEDICAL NEGLIGENCE

highest expert skill, 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 health
care professional), 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 the
particular act"35

In Bolam's case, it was also held that a doctor does not merit criticism if, when
dealing with a mentally ill person and having a strong belief that his only hope of cure
is a particular, treatment, he does not disclose to the patient the dangers which he
believes to be minimal. In such cases he cannot be held negligent, as even if both the
situations were explained to him he would not have been in position to decide upon.
(Provided no legal guardian is available). Thus, if a doctor is acting in best interests
of, the patient then due consideration should be given to his actions before terming
him negligent In present scenario the scope of test is widened to covers even normal
patients.

Bolam test says that to term the act of doctor as negligent we should consider the act
of another doctor in the 'similar circumstances and facilities as existed with the
treating doctor. Also the professional knowledge and skill of the treating doctor
should be compared with another doctor having same educational background. Courts
in a multiple number of' cases' have very well settled these issues worldwide. The
second part of test has given rise to certain discussions. What does the "responsible
body" means and what all are the issues, which this body can decide? The issue of
accepting a prevalent practice of medicine or a practice approved by "responsible
body" appears to be- simple while thinking and choosing between two or more lines
of treatment. The-issue complicates when the decision has to be made about
discretionary powers of individual patients. Some experts says that if the acceptable
practice is not to disclose every risk to patients then "Bolam Test" can be applied and
few facts hidden. . With advancement of patient's rights concept and with increasing
effect of human right activists on society, it is now argued that all facts are to be
disclosed to patients in relation to his treatment

Limitations and Bolitho test

35
Laurie GT, Civil Litigation following injury and death from trauma: The health care professional in jeopardy.
In: Mason JK, Purdue BN. The Pathology of Trauma..3'd ed. 'London: Arnold, 2000:488-. 503

22
 MEDICAL NEGLIGENCE

In law, the standard of care in medical litigation is determined by the Bolam 36 test. A
practitioner does not breach the standard if the practice in question is supported by a
responsible body of similar medical peers. The court has applied the Bolam 37 test to a
wide range of medical issues, including diagnosis, treatment, information disclosure
and ethics in medicine. The principal criticism of the Bolam test is that it has extended
beyond its intended limits, and allows the standard in law to be set subjectively by
doctors. The case of Bolitho38 imposes a requirement for an explanation of the
“logical basis” underlying the standard of care that is proclaimed. The effect of
Bolitho39 is that the court will enquire more closely into the justification of a
defendant doctor’s practice, based on a logical analysis of why such an opinion was
formed, as well as a risk analysis against competing options.

In medical litigation, the test for the standard of care in law expected of doctors is
based on the principle enunciated in Bolam. Put at its simplest, the test is that a
medical practitioner does not fail to reach the standard of care if a responsible body of
similar medical peers supports the action in question. The judgment in Bolitho,
however, suggests a judicial move at the highest level to shift the balance from an
excessive reliance on medical testimony supporting a defendant doctor to a more
enquiring approach to be taken by the court. In order to reach its own conclusion on
the reasonableness of clinical conduct, the court will arbitrate on the standard in each
case.

This would operate within the framework of normative values held by society. Patient
empowerment is a strong theme in the new health service. This is likely to act as a
conjunctive force in shifting the traditional “accepted practice” approach to one
whereby the standard of care is set by the court, on the basis of “expected practice‟.
This would be determined by evaluating the reasonableness of competing options.
Bolam’s40 test has been approved by full bench of the Supreme Court in Jacob
Mathew’s case in these words:

The water of Bolam test has ever since flown and passed under several
bridges, having been cited and dealt with in several judicial pronouncements,

36
Bolam v Friern Hospital Management Committee, (1957) 2 All ER 118 (QBD).
37
Id. 34
38
Bolitho v City, 3 WLR 1304, 1998.
39
Id. 36
40
Supra n. 36

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 MEDICAL NEGLIGENCE

one after the other and has continued to be well received by every shore it has
touched as neat, clean and a well condensed one.41

The classical statement of law in Bolam case has been widely accepted as
decisive of the standard of care required both of professional men generally
and medical practitioners in particular. It has been invariably cited with
approval before courts in India and applied to as touchstone to test the pleas of
medical negligence. In tort, it is enough for the defendant to show that the
standard of care and skill attained was that of the ordinary competent medical
practitioner exercising an ordinary degree of professional skill. The fact that a
defendant charged with negligence acted in accord with the general and
approved practice is enough to clear him of the charge. Two things are
pertinent to be noted. First, the standard of care, when assessing the practice as
adopted, is judged in the light of knowledge available at the time (of the
incident), and not at the date of trial.

Secondly, 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 point of time on which it is suggested as should have been
used.

In Bolitho v. City and Hackney Health Authority, 42 a two year old child, suffered
catastrophic brain damage as a result of cardiac arrest due to respiratory failure. The
senior paediatric registrar did not attend the child, as she ascribed to a school of
thought that medical intervention, under those particular circumstances, would have
made no difference to the end result. Liability was denied on the ground that even if
she had attended, she would not have done anything that would have materially
affected the outcome. This view was supported by an impressive and responsible
body of medical opinion. Lord Wilkinson observed;

The Court is not bound to hold that a defendant doctor escapes liability for negligent
treatment or diagnosis just because he leads evidence from a number of medical
experts who are genuinely of the opinion that the defendant’s treatment or diagnosis
accorded with sound medical practice.

41
Jacob Mathew v State of Punjab, (2005) 6 SCC 1.
42
(1997) 4 All ER 77111(HL.)

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 MEDICAL NEGLIGENCE

The use of these adjectives – responsible, reasonable and respectable – all show that
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 the
weighing of risks against benefits, the Judge before accepting a body of opinion as
being responsible, reasonable and 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.

5. Case studies

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 MEDICAL NEGLIGENCE

This Chapter deals with various case studies in relation to medical negligence which includes
the prominent case of Bolam [5.1], Bolitho [5.2] and some cases of medical negligence filed
under Consumer Protection Act, 1986 [5.3]

5.1 Bolam v Friern Hospital Management Committee 

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort
law case that lays down the typical rule for assessing the appropriate standard of reasonable
care in negligence cases involving skilled professionals (e.g. doctors): the Bolam test. Where
the defendant has represented him- or herself as having more than average skills and abilities
that is as a professional "as all doctors do", this test expects standards which must be in
accordance with a responsible body of opinion, even if others differ in opinion. In other
words, the Bolam test states that "If a doctor reaches the standard of a responsible body of
medical opinion, he is not negligent."

Facts:

Mr Bolam was a voluntary patient at Friern Hospital, a mental health institution run by the
Friern Hospital Management Committee. He agreed to undergo electro-convulsive therapy.
He was not given any muscle relaxant, and his body was not restrained during the procedure.
He flailed about violently before the procedure was stopped, and he suffered some serious
injuries, including fractures of the acetabula. He sued the Committee for compensation. He
argued they were negligent for (1) not issuing relaxants (2) not restraining him (3) not
warning him about the risks involved.

It is important to note that at this time juries were still being used for tort cases in England
and Wales, so the judge's role would be to sum up the law and then leave it for the jury to
hold the defendant liable or not.

Judgement:

McNair J at the first instance noted that expert witnesses had confirmed, much medical
opinion was opposed to the use of relaxant drugs, and that manual restraints could sometimes
increase the risk of fracture. Moreover, it was the common practice of the profession to not
warn patients of the risk of treatment (when it is small) unless they are asked. He held that
what was common practice in a particular profession was highly relevant to the standard of
care required. A person falls below the appropriate standard, and is negligent, if he fails to do
what a reasonable person would in the circumstances. But when a person professes to have

26
 MEDICAL NEGLIGENCE

professional skills, as doctors do, the standard of care must be higher. "It is just a question of
expression", said McNair J.

"I myself would prefer to put it this way, that he is not 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. I do not think there is much difference in sense. It is just a
different way of expressing the same thought. Putting it the other way round, a man is not
negligent, if he is acting in accordance with such a practice, merely because there is a body
of opinion who would take 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. Otherwise you might get men today saying: “I do not believe in anaesthetics. I do
not believe in antiseptics. I am going to continue to do my surgery in the way it was done
in the eighteenth century.” That clearly would be wrong."

In this case, the jury delivered a verdict in favour of the defendant hospital. Given the general
medical opinions about what was acceptable electro-shock practice, they had not been
negligent in the way they carried out the treatment. That passage is quoted very frequently,
and has served as the basic rule for professional negligence over the last fifty years.

5.2 Bolitho v. City and Hackney Health Authority 

Bolitho v. City and Hackney Health Authority [1996] 4 All ER 771 is an important English
tort law case, on the standard of care required by medical specialists. It follows the Bolam
test for professional negligence, and addresses the interaction with the concept of causation.

Facts:

Patrick Bolitho, a two-year-old boy, was suffering from croup. He was admitted into St
Bartholomew's Hospital and was placed under the care of Dr Horn and Dr Rodger. Dr Rodger
was concerned and arranged for him to be nursed by a special nurse on a one-to-one basis.
Patrick had worrying signs. Dr Horn was notified but did not attend to Patrick. Patrick
stopped breathing and suffered a cardiac arrest. Although he was revived, he suffered severe
brain damage and later died.

Patrick's mother, as administratrix of his estate, sued the local health authority in negligence.
She argued that Patrick would have lived if he had been intubated. On the Health Authority's
side, it was admitted that Dr Horn had breached her duty of care in not coming to see Patrick.
But the Health Authority argued that even if Dr Horn had come to see Patrick, she would not

27
 MEDICAL NEGLIGENCE

have intubated him, and such a decision would have been consistent with a respectable body
of professional opinion – the Health Authority argued that the Bolam test was relevant here.
So – the Health Authority argued – Dr Horn's breach of duty did not cause Patrick's death.

Judgement:

The House of Lords held that "a defendant cannot escape liability by saying that the damage
would have occurred in any event because he would have committed some other breach of
duty thereafter". So there was a need to decide if the hypothetical decision not to intubate
Patrick would have been a breach of duty. The Bolam test says that an action cannot be a
breach of duty if it conforms to a reasonable body of professional opinion. The professional
opinion relied upon cannot be unreasonable or illogical. If the opinion were illogical, then the
action would still be a breach of duty. Only in "a rare case" would the courts find that the
body of opinion is unreasonable. In this case, the opinion of the expert called by the defence
was not unreasonable or illogical.

If Dr Horn had come to see Patrick, she would not have intubated him. That decision would
have been supported by a body of professional opinion, and that opinion is not illogical. So
that decision would not have been negligent. So Dr Horn's only breach of duty was in not
coming to see Patrick, and that breach did not cause Patrick's death. Causation must be
proved to bring a claim in negligence. So the claim was dismissed.

5.3 Indian Medical Association v VP Shantha

Judgement:

In this case43 Three-Judge Bench of Supreme Court held that service rendered to a patient by
a medical practitioner 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, 1986. Deficiency in service has to be judged by applying the test
of reasonable skill and care which is applicable in action for damages for negligence.
With reference to difference between medical profession and other occupations, the Court
made the following observations:

“In the matter of professional liability professions differ from occupations for the reason
that professions operate in spheres where success cannot be achieved in every case and
very often success or failure depends upon factors beyond the professional man’s control.
In devising a rational approach to professional liability which must provide proper
43
Indian Medical Association v VP Shantha (1995) 6 SCC 651

28
 MEDICAL NEGLIGENCE

protection to the consumer while allowing for the factors mentioned above, the approach
of the Courts is to require that professional men should possess a certain minimum degree
of competence and that they should exercise reasonable care in the discharge of their
duties. In general, a professional man owes to his client a duty in tort as well as in
contract to exercise reasonable care in giving advice or performing services”.

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 MEDICAL NEGLIGENCE

6. Suggestion and observation

It has been find and observed in the present research that the modern times need a
more aware approach towards any deficiency and negligent act of medical
professional in order to secure justice. The inclusion of medical services in the ambit
of Consumer Protection Act , 1986 has not only led to speedily trial of cases relating
to medical negligence where there is obvious fault in providing due care by the
medical professional to the patients. The definition of obvious fault has been clearly
led down in the case of Indian Medical Association v VP Shantha 44. However this
inclusion has its own limitation as first, it does not include cases where such service is
provided free of cost and it thus proves to provide a loophole to medical professional
who escape their liability by providing such services free of cost and with utter
disregard of care to be given while discharging such services. Secondly, the Supreme
Court itself has laid down that in cases where admission of new facts or evidence are
essential or where the cases are complex then at such times cases must be referred to
civil court for trial which lead to delay in justice and that too at a high cost unlike the
consumer forums. Although Civil Court too can provide with damages to the plaintiff
in such cases. It is suggested by the researcher in this research that simple lack of care
by the medical professional should result in civil liability and the cases should be tried
at the consumer forum or the civil court for speedy trial and focus should be given on
alternative dispute remedial measure while high and graver degree of negligence
should incur criminal culpability and the then focus should be on punishment of such
medical professional in order to set an example and deter other professionals from out
taking such level of negligent act of such high degree. It is further observed that
Bolitho test is a better test to determine cases in medical negligence and the Bolam
test’s efficiency being an old authority has been corroded and its applicability in
present scenario seems to be far-fetched.

It is further suggested that the loophole given by Consumer Protection Act 1986
should be looked into and even free medical services should come under the ambit of
Consumer forum under certain special provision as to settle such cases fastly with less
cost as the person suffering due to such services are mostly poor citizens without
having much knowledge of their rights.

44
Indian Medical Association v VP Shantha (1995) 6 SCC 651.

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 MEDICAL NEGLIGENCE

7. Conclusion
It is lastly concluded from this research that under civil law, at a point where the
Consumer Protection Act ends, the law of torts takes over and protects the interests of
patients. This applies even if medical professional provide free service. 45 In cases
where the services offered by the doctor or hospital do not fall in the ambit of 'service'
as defined in the consumer Protection Act, patients can take recourse to the law
relating to negligence under the law of torts and successfully claim compensation.
The onus is on the patient to prove that the doctor was negligent and that the injury
was a consequence of the doctor's negligence. Such cases of negligence may include
transfusion of blood of incorrect blood groups, leaving a mop in the patient's abdomen
after operating, unsuccessful sterilization resulting in the birth of a child, removal of
organs without taking consent, operating on a patient without giving anaesthesia,
administering wrong medicine resulting in injury, etc.

Therefore for speedy trial and to claim compensation one should opt for Consumer
Forums, if it does not falls under jurisdiction of Consumer Court then Civil Court
should be approached and when there has been a grave and serious negligence
resulting in permanent disablement or loss to one’s life criminal Court should be
approached to secure exemplary punishment as well as compensation as it is allowed
under CrPC.

45
Talha Abdul Rahman, Medical Negligence and Doctor’s liability, Indian J Med Ethics, 2005 Apr-Jun, 2(2).

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 MEDICAL NEGLIGENCE

Bibliography
 Primary Sources
1. Consumer Protection Act 1986
2. Judgements of various Courts
3. Indian penal code 1860
4. Newspaper article
 Secondary Sources
1. The Law of torts by :- Dr. Ratanlal Ranchordas & Dr. Dhirajlal
2. Law of torts by :- Dr. R.K. Bangia
3. Law of torts by :- Dr. J.N. Pandey
4. Medical Negligence and Law in India by:- Tapas Kumar Koley
5. A Textbook of Medical Jurisprudence and toxicology by:- Justice
K Kannan
6. Medical Law and Ethics by:- Jonathan Herring
7. Websites:-
 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1071103
 https://indiankanoon.org/search/?formInput=medical
%20negligence%20cases
 https://www.manupatrafast.com/articles/ArticleSearch.aspx?
sub=Medical%20Negligence
 http://medind.nic.in/jal/t09/i2/jalt09i2p164.pdf

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