Medical Negligence

Public awareness of medical negligence in India is growing. Hospital managements are

increasingly facing complaints regarding the facilities, standards of professional competence,
and the appropriateness of their therapeutic and diagnostic methods. In the context of Indian
law, medical negligence comes under 3 categories; Criminal negligence, civil negligence and
negligence under Consumer Protection Act. Different provisions regarding the remedy in the
form of punishment and compensation are there in 3 laws

In 1995, the Supreme Court decision in Indian Medical Association v. VP Shantha brought

the medical profession within the ambit of ‘service’ defined in the Consumer Protection Act,
1986. This defined the relationship between patients and medical professionals by giving
contractual patients the power to sue doctors if they sustained injuries in the course of
treatment in ‘procedure free’ consumer protection courts for compensation.

In cases where the services offered by the doctor or the hospital do not fall within the
meaning of ‘services’ as defined under CPA, patients can take recourse to tort law under
negligence and claim compensation. Here, the onus (burden) of proof is on the patient, and he
has to prove that because of doctor’s or the hospital’s negligent act, he suffered injury
thereby.

Civil Negligence
Persons who offer medical advice and treatment implicitly state that they have the skill and
knowledge to do so, that they have the skill to decide whether to take a case, to decide the
treatment, and to administer that treatment. This is known as an “implied undertaking” on the
part of a medical professional. However, no human being is perfect and even the most
renowned specialist could make a mistake in detecting or diagnosing the true nature of a
disease. A doctor can be held liable for negligence only if one can prove that she/ he is guilty
of a failure that no doctor with ordinary skills would be guilty of if acting with reasonable
care. An error of judgement constitutes negligence only if a reasonably competent
professional with the standard skills that the defendant professes to have, and acting with
ordinary care, would not have made the same error.
Doctors must exercise an ordinary degree of skill. However, they cannot give a warranty of
the perfection of their skill or a guarantee of cure. If the doctor has adopted the right course
of treatment, if she/ he is skilled and has worked with a method and manner best suited to the
patient, she/ he cannot be blamed for negligence if the patient is not totally cured.
Certain conditions must be satisfied before liability can be considered. The person who is
accused must have committed an act of omission or commission; this act must have been in
breach of the person’s duty; and this must have caused harm to the injured person. The
complainant must prove the allegation against the doctor by citing the best evidence available
in medical science and by presenting expert opinion.
One of the most high-profile case in which the highest compensation till date was granted, in
the case of Kunal Saha v. AMRI (Advanced Medical Research Institute) popularly known
as Anuradha Saha case,. The case was filed back in 1998 and alleged medical negligence by 3
doctors of AMRI hospital. gave the final verdict of the case in the year 2013 and also
compensated the victim with 6.08 crore. This particular case expanded the scope of medical
negligence in India and took it to a whole new level.

Criminal Negligence
Section 304A of the Indian Penal Code of 1860 states that whoever causes the death of a
person by a rash or negligent act not amounting to culpable homicide shall be punished with
imprisonment for a term of two years, or with a fine, or with both.
In the State of Haryana vs Smt Santra case, the Supreme Court has pointed out that liability
in civil law is based upon the amount of damages incurred; in criminal law, the amount and
degree of negligence is a factor in determining liability. However, certain elements must be
established to determine criminal liability in any particular case, the motive of the offence,
the magnitude of the offence, and the character of the offender. In Poonam Verma vs
Ashwin Patel the Supreme Court distinguished between negligence, rashness, and
recklessness. A negligent person is one who inadvertently commits an act of omission and
violates a positive duty. A person who is rash knows the consequences but foolishly thinks
that they will not occur as a result of her/ his act. A reckless person knows the consequences
but does not care whether or not they result from her/ his act. Any conduct falling short of
recklessness and deliberate wrongdoing should not be the subject of criminal liability. Thus a
doctor cannot be held criminally responsible for a patient’s death unless it is shown that she/
he was negligent or incompetent, with such disregard for the life and safety of his patient that
it amounted to a crime against the State.
Sections 80 and 88 of the Indian Penal Code contain defences for doctors accused of criminal
liability. Under Section 80 (accident in doing a lawful act) nothing is an offence that is done
by accident or misfortune and without any criminal intention or knowledge in the doing of a
lawful act in a lawful manner by lawful means and with proper care and caution. According
to Section 88, a person cannot be accused of an offence if she/ he performs an act in good
faith for the other’s benefit, does not intend to cause harm even if there is a risk, and the
patient has explicitly or implicitly given consent.
The burden of proof of negligence, carelessness, or insufficiency generally lies with the
complainant. The law requires a higher standard of evidence than otherwise, to support an
allegation of negligence against a doctor. In cases of medical negligence the patient must
establish her/ his claim against the doctor.
Landmark Judgments

The test of medical negligence was laid down in Bolam vs. Friern Hospital Management
Committee and has been accepted by the Supreme Court of India as laying down correct tests
in cases of medical negligence. According to Bolam’s test, a Doctor is not guilty of
negligence if he has acted in accordance with a practice accepted as proper by a responsible
body of medical men skilled in that particular art. The doctor is not negligent mainly because
there is a body of opinion that takes a contrary view. It is also held that in the realm of
diagnosis and treatment there is ample scope for genuine difference of opinion and a doctor is
not negligent merely because his conclusion differs from that of other professional men. It
was also made clear that the true test for establishing negligence in diagnosis or treatment on
the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of
ordinary skill would be guilty of if acting with ordinary care.

Even though Bolam test was accepted by the Supreme Court as providing the standard norms
in cases of medical negligence, it is questioned on various grounds in the country of its
origin. Scholars in England are of the opinion that Bolam test should be restricted to those
cases where an adverse result follows a course of treatment which has been intentional and
has been shown to benefit other patients previously. This should not be extended to certain
types of medical accident merely on the basis of how common they are. It is felt "to do this
would set us on the slippery slope of excusing carelessness when it happens often enough"

However, in Jacob Mathew vs. State of Punjab Chief Justice Lahoti accepted Bolam test as
correctly laying down the standards for judging cases of medical negligence

The question of medical negligence came up before the Supreme Court in the Jacob Matthew
case in the context of Section 304-A of Indian Penal Code. Chief Justice Lahoti, speaking for
the unanimous three-Judge Bench made a clear distinction between degree of negligence in
criminal law and civil law where normally liability for damages is fastened. To constitute
negligence in criminal law the essential ingredient of `mens rea' cannot be excluded. The
learned Chief Justice further opined that in order to pronounce on criminal negligence it has
to be established that the rashness was of such a degree as to amount to taking a hazard in
which injury was most likely imminent. 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." The
jurisprudential concept of negligence differs in civil and criminal law. What may be
negligence in civil law may not necessarily be negligence in criminal law. For negligence to
amount to an offence, the element of mens rea must be shown to exist. For an act to amount
to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very
high degree. Negligence which is neither gross nor of a higher degree may provide a ground
for action in civil law but cannot form the basis for prosecution. The word "gross" has not
been used in Section 304-A IPC, yet it is settled that in criminal law negligence or
recklessness, to be so held, must be of such a high degree as to be "gross". The expression
"rash or negligent act" as occurring in Section 304-A IPC has to be read as qualified by the
word "grossly".

Relevance of Expert Evidence

About the requirement of expert evidence, the Supreme Court made it clear in Indian
Medical Association v. VP Shantha,that before the Fora under the Act both simple and
complicated cases may come. There may be cases which do not raise such complicated
questions and the deficiency in service may be due to obvious faults which can be easily
established such as removal of the wrong limb or the performance of an operation on the
wrong patient or giving injection of a drug to which the patient is allergic without looking
into the out-patient card containing the warning or use of wrong gas during the course of an
anaesthetic or leaving inside the patient swabs or other items of operating equipment after
surgery. One often reads about such incidents in the newspapers. The issues arising in the
complaints in such cases can be speedily disposed of by the procedure that is being followed
by the Consumer Disputes Redressal Agencies and there is no reason why complaints
regarding deficiency in service in such cases should not be adjudicated by the Agencies under
the Act. In complaints involving complicated issues requiring recording of evidence of
experts, the complainant can be asked to approach the civil court for appropriate
relief. Section 3 of the Act which prescribes that the provisions of the Act shall be in addition
to and not in derogation of the provisions of any other law for the time being in force,
preserves the right of  the consumer to approach the civil court for necessary relief. This
decision was later upheld in V. Kishan Rao v Nikhil Landmark Super Speciality Hospital