Liability of Medical Practioners For Medical Negligence in India

Liability of Medical Practioners for Medical Negligence in India
1
S.no: Table of Cases
1. Laxman Balakrishnan Joshi v. Tribak Bapu Godbole, AIR 1969 SC 128, per
Shelat, J.
2. Balram Prasad vs Kunal Saha & Ors on 24 October, 2013, CIVIL APPEAL
NO.2867 OF 2012
3. Philips India Ltd.v. Kunju Punnu, (1974) 77 BLR 337: AIR 1975 Bom 306
4. Martin F. D' Souza vs Mohd. Ishfaq on 17 February 2009, 3 SCC 1
5. Bolam vs Friern Hospital Management Committee, [1957] 1 W.L.R. 582 =

[1957] 2 All E.R. 118.
6. Bolitho v. City and Hackney Health Authority [1996] 4 All ER 771
7. Jacob Mathew v. State of Punjab, 2005 (6) SCC 1 = AIR 2005 SC 3180
8. R v. Batesman (1925) 94 LJ KB 791 : 1925 ALI ER Rep 45
9. Indian Medical Association v. V.P. Shantha 1995 (6) SCC 65
10. Martin F. D' Souza vs Mohd. Ishfaq on 17 February, 2009, 3 SCC 1
11. Cassidy v. Ministry of health (1951) 2 KB 343
12. Cassidy v. Ministry of health (1951) 2 KB 343
13. Spring Meadows Hospital and Anr. V. Harjol Ahluwalla, 1998 Civil Appeal No.
7708 of 1997 With Civil Appeal No. 7858 of 1997
14. Laxman Balakrishnan joshi v. Tribak Bapu Godbole, AIR 1969 SC 128,
15. Mr. 'X' vs Hospital 'Z' on 21 September, 1998, (2003) 1 SCC 500
2
Introduction:
The medical profession is one of the noblest professions in the world. Doctors are considered
equivalent to God. Like Lawyers, Doctors also have some Professional Ethics to be followed.
A doctor is a skilled person but he does not undertake his treatment shall be infallible.
Medical The doctor holds himself as possessed of skill and knowledge required for the
purpose; when consulted he owes his patient certain duties
a) A duty of care in deciding whether to undertake the case,
b) A duty of care in deciding what treatment to give and
c) A duty of care in the administration of that treatment.1
The Hon'ble Supreme Court made in Balram Prasad vs Kunal Saha & Ors2. (supra) in paras
148 and 149 thereof: "Before parting with the judgment we are inclined to mention that the
number of medical negligence cases against doctors, Hospitals, and Nursing Homes in the
consumer forum is increasing day by day”. A breach of any of these duties will give rise to an
action for negligence against him. No doubt, he will give rise to an action for negligence
against him. But the standard of care which the law requires is not insurance against
accidental slips. Every slip or mistake does not import negligence3. The Government is also
vicariously liable for negligent acts of its employees. The running of hospitals by the
government; is not an exercise of sovereign power. So no immunity from tortious action is
available. The “implied consent” from the patient must be given only after knowing the
dangers of the medical process through which he is yet to be undergoing.
Negligence:
The word negligence has a special meaning and it covers commission (doing a thing that a
reasonable person under the given circumstances would not do) and omission (not doing a
thing that is required to be done). Negligence is an action under both civil and criminal law.
In everyday usage, negligence denotes carelessness but in its legal interpretation, the word
carries two senses in the law of torts.
i) Either a mental element that is to be inferred from one of the modes in which
some tort may be committed, or it may mean
ii) An independent tort consists of a breach of the legal duty to take care which
results in damage undesired by the defendant, to the plaintiff 4
It is therefore the objective notion of negligence measured by the impersonal standard of how
a reasonable man could have acted in the circumstances accepted.5 Forms of negligence are
a) Negligence causing personal injuries or death
b) Negligence causing economic loss may be recognized6
1
Laxman Balakrishnan joshi v. Tribak Bapu Godbole, AIR 1969 SC 128, per Shelat,J.
2
Balram Prasad vs Kunal Saha & Ors on 24 October, 2013, CIVIL APPEAL NO.2867 OF 2012
3
Philips India Ltd.v. Kunju Punnu, (1974) 77 BLR 337: AIR 1975 Bom 306
4
Winfield, Tort (1991) at p.45
5
Vaughan v. Menlove, (1837) 3 Bing NC 468
6
Walker, The Oxford Companion to Law (1980) at pp.873-74
3
Medical Negligence:
To define medical negligence or medical malpractice, the reasonable care, skill, or willful
negligence on the part of a medical practitioner in the treatment of a patient lead to bodily
injury or to the loss of the life of the patient. It is differentiated from an intentional act by the
medical practitioner. The law like medicine is an inexact science. One Cannot predict with
certainty the outcome of many cases. It depends on the particular facts and circumstances of
the case, and also the personal notions of the Judge concerned who is hearing the case.7 The
act of medical Negligence covers not only doctors but others like Nurses, Para-Medical staff,
and Interns who pursue medicine. In the Code of Ethics8 “Provisionally or fully registered
medical practitioner shall not willfully commit an act of negligence that may deprive his
patient of necessary medical care”. Most of the medical negligence cases in India are
registered in the branch of anesthesia and surgery-based negligence.
In order to succeed in an action for negligence, a plaintiff ( a patient or his representative)
must establish the following to the satisfaction of the Court:
1. The defendant ( the doctor ) owed him a duty to confirm a particular standard of
conduct
2. The defendant was derelict ( in a very poor condition as a result of disuse and neglect)
and failed to perform that duty.
3. The plaintiff suffered actual damage.
4. The defendant’s conduct was the direct or proximate cause of the inflicted ( cause to
be suffered by someone) damage. If the plaintiff can do all these, he is entitled to be
compensated in terms of money. It is essential for all medical practitioners to
safeguard their interests. For that, the doctor is required to cover himself with a
Doctor’s Indemnity (security or protection against a loss or other financial burden)
Insurance Policy.9
Res ipsa loquitor:

The legal maxim, res ipsa loquitor (the thing that stands for itself) is an important maxim in
case of medical negligence. It tells about the medical diagnosis reports and procedures that
the medical practitioner followed in case of a negligent act.
Tests for Medical Negligence:

In order to decide what comes under medical negligence two tests should be done that is:
1. Bolam’s Test
2. Bolitho Test
These two tests evolved from European precedents that govern most of the country's medical
negligence cases.
7
Martin F. D' Souza vs Mohd. Ishfaq on 17 February, 2009, 3 SCC 1
8
2.4 Indian Medical Council (professional Conduct, Etiquette and Ethics) Regulations, 2002
9
Dr. Nandita Adhikari, Law and Medicine, Second Edition, P.90
4
Bolam’s Test:
This test evolved from case law- Bolam vs Friern Hospital Management Committee10. It is a
landmark English Law in medical negligence before this case there was no proper formal
legal document for medical negligence regarding medical negligence. And it was an
important celebrity case accepted across the world as well as in India.
Facts:
Mr. Bolam was a voluntary patient at Frien Hospital and he suffers from “Recurrent
depression” the hospital decided to give an ECT (Electro Conclusive Therapy). And there are
ways in the treatment of ECT which are Modified (anesthesia and muscle relaxant were
given) and Unmodified ECT (anesthesia and muscle relaxant were not given). In this case,
Unmodified ECT was given to the patient. As a consequence of the treatment he had violent
seizures, and he suffered fractures of the hip (acetabula). The patient argued that as the result
of unmodified ECT he developed a fracture and he was entitled to compensation. During this
case, there were no other cases to be referred and it is the first time that patient is suing the
hospital for improper treatment. And Judge McNair called for expert opinion. One set of
experts said it to be a muscle relaxant and anesthesia in which fracture can be restrained and
another set of experts that if we give modified ECT (with anesthesia and muscle relaxant)
there is a chance of death of the patient. And it was the period that the anesthetic was
introduced into the treatment.
Judgment:
In this case, Judge McNair, J gives a landmark decision which is existed till now,
“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”
“If a doctor reaches the standard of a responsible body of medical opinion, he is not
negligent”
It was also argued that failure to use such care as a reasonably prudent(acting with or showing
care and thought for the future) and careful person would use under similar circumstances. The
‘Bolam test’ is basically ‘a peer review system’ for medical professionals which is used to
assess whether they are negligent in any way during diagnosis, treatment, and follow-up care
to a patient. A doctor must demonstrate that he/she acted in a manner in which a responsible
body of medical professionals who work in the same field would deem that it was reasonably
appropriate. And it was also criticized by many of them that peer review was not acceptable
to society.
10
Bolam vs Friern Hospital Management Committee, Queen’s Bench Division, 1957, Date of decision-26
February 1957, Citation: [1957] 1 W.L.R. 582 = [1957] 2 All E.R. 118.
5
Clapham omnibus:
The famous jargon “the man on the top of a Clapham omnibus” means he is a hypothetical
person, who was reasonably educated and intelligent but was a non-specialist. This jargon
was mentioned by Judge McNair in Bolam’s case, to the negligent act is what a man on the
top of the Clapham Omnibus will do. It means that in case of medical negligence the doctor
should perform his/her duty negligently and what a reasonable man will do in such a
condition the doctor should also do.
Bolitho Test:
This test evolved from case law- Bolitho v. City and Hackney Health Authority 11. And it is
another landmark case in medical negligence.
Facts:
Patrick Bolitho, a two-year-old boy, was suffering from croup (an infection of the upper
airway, which obstructs breathing and causes a characteristic barking cough). He was
admitted into St. Bartholomew’s Hospital and was placed under the care of Dr. Horn and Dr.
Rodger. Patrick had two episodes of severe cough and breathlessness but recovered. In both
instances, 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. In this case, the judges called the experts for seeking opinion. One set of Pediatricians
said that if the child is admitted into ICU with a severe cough if the child goes into cyanosis (
a pathologic condition that is characterized by a bluish discoloration of the skin or mucous
membrane ) they will do intubation (a process where a healthcare provider inserts a tube
through a person's mouth or nose, then down into their trachea (airway/windpipe) ) and
oxygen. And another group of Pediatricians that said if the child is severely coughing and
there is already a Laryngospasm ( a transient and reversible spasm of the vocal cords that
temporarily makes it difficult to speak or breathe) they will never do intubation and they will
only give oxygen.
Judgment:
The Judges said that “Three times the doctors were called to attend the ICU patient and they
were negligently not attending the patient”. Here the Bolam test is nullified when “a body of
expert opinion cannot be logically supported at all”. “ If it could be demonstrated that the
professional opinion was not capable of withstanding logical analysis”. The Judges gave a
verdict that “In case of medical negligence not only the doctor's reasonable degree of care
should be considered but also logical analysis should be applied.
The Bolam’s test is explaining the “Standard of care”. And in quoting the Bolitho test you
have to convince the court that treatment is given on the logical analysis of care.
11
Bolitho v. City and Hackney Health Authority [1996] 4 All ER 771
6
Jacob Mathew Case:

Facts:
In this case, a patient was admitted to CMC Hospital, Ludhiana. He felt difficulty in
breathing. No doctor turned up for about 20-25 minutes. Later two doctors- Dr. Jacob
Mathew and Dr. Allen Joseph- came and an oxygen cylinder was brought and connected to
the month of the patient. Surprisingly, the breathing problem increased further. The patient
tried to get up. The medical staff asked him to remain in bed. Unfortunately, the oxygen
cylinder was found to be empty. Another cylinder was brought. However, by that time the
patient had died. The matter against doctors, hospital staff, and the hospital went up to the
Supreme Court of India. The court discussed the matter in great detail and analyzed the
aspect of negligence from different perspectives-Civil, Criminal, torts by professionals, etc. It
was held that there was no case of criminal rashness or negligence.12
Judgment:
It is another important legal precedent in India for medical negligence. The Supreme Court
gives the verdict that in case of the medical negligence some additional considerations should
apply to “the case of occupational negligence is different from professional negligence” that
in case of medical negligence the court should decide a case based on the doctor following a
practice acceptable to the medical profession of that day. A simple lack of care, an error of
judgment, or an accident, is not proof of negligence. A standard of judgment on the case is
should be based on what a reasonably competent medical practitioner with ordinary
experience will do in that treatment but not what a special expert in that field would do in that
scenario.13
Degree of Negligence:
The Delhi High Court laid down in 2005 that in civil law, there are three degrees of
negligence
1. lata culpa, gross neglect
2. levis culpa, ordinary neglect and
3. levissima culpa, slight neglect14
Every act of negligence doctor shall not attract punishment, slight neglect will surely not be
punishable and ordinary neglect, as the name suggests, is also not be punished. There are two
types of negligent acts that are: negligent for which the doctor shall be liable and negligent
for which the doctor is not liable. The line for deciding these two acts is quite thin. All
medical negligent cases, it is decided by two precedents the Bolam case and the Jacob
Mathew case.
12
Jacob Mathew v. State of Punjab, Supreme Court of India, Augest 5, 2005, Citation : 2005 (6) SCC 1 = AIR
2005 SC 3180
13
Ibid, 9
14
7
Types of Liability in Medical negligence:

There are two types of negligence in medical negligence that are
1. Civil Negligence
2. Criminal Negligence
3.
Civil Negligence:
Where negligent is slight, ordinary, or gross the civil jurisdiction will apply to that case.
In R v. Batesman15 the civil liability of doctors toward their patients has very clearly been
stated. “The law requires a fair and reasonable standard of care and competence. This
standard must be reached in all matters. If the patient's death has been caused by the
defendant’s indolence or carelessness, it will not avail to show that he had sufficient
knowledge; nor it will avail to prove that he was diligent in attendance if the patient has been
killed by his gross ignorance and unskilfulness.”
In most of medical negligence cases takes place in Consumer Courts in India which are
covered under Consumer Protection Act,2019. The affected patients or their relatives
claiming for compensation from doctors. It also has an exception that the liability of a doctor
cannot be lessened because such negligence took place in a charitable hospital. In civil
negligence, the patient must prove the amount of damage is the measure of the extent of
liability. And the limitation for filing a suit under Civil negligence is two years which is
mentioned under Section.69(1) of the Consumer Protection Act, 2019.
Civil Negligence under Consumer Protection Act, 2019:

After the enactment of the Consumer Protection Act, 1956, India opened a new quasi-judicial
body which is the Consumer courts at the District, State, and National levels for addressing
disputes between consumers. A consumer is any person who buys goods or services in
exchange for consideration and utilizes such goods and services for personal use and for the
purpose of resale or commercial use.16 And Service means any kind of service which is made
available to the consumers for their use for payment of consideration.17
15
R v. Batesman (1925) 94 LJ KB 791 : 1925 ALI ER Rep 45
16
Section 2(7) of the Consumer Protection Act, 2019.
17
Section. 2(42) of the Consumer Protection Act, 2019.
8
Are Government Hospitals covered under Consumer Protection Act, 2019?

The short answer is no, the Government hospitals are not covered under the Consumer
Protection act.
In the Supreme Court in Indian Medical Association v. Shantha18 , the Court included the
health services come under the ambit of “Services” in Section. 2(42) of the Consumer
Protection Act, 2019. The Court held that in view of Section. 2(42) which provides that
service does not include the rendering of any service free of charge. And the Court divided
hospitals and nursing homes into three categories:
I. Where services are rendered free of charge to everybody availing of the said services.
II. Where Charges are required to be paid by everybody, availing of the services; and
III. Where charges are required to be paid by the person availing of services but certain
categories of persons who cannot afford to pay are rendered service free of charges.
The above-mentioned category 1 by the Court will not come under the ambit of “Service” in
Section. 2(42) because they are beneficiaries. Patients getting treatment in Government
hospitals cannot sue a medical practitioner for negligence under Consumer Protection
Act,2019. Category 2 by the Court will come under the ambit of “Service” in Section.
2(42). While category 3 is quite difficult to interpret and the court interpreted that some
hospitals will get money from people who are able to pay and do free treatment who are not
able to pay for it. So, those who are paying for the treatment at hospitals will be covered
under Section 2(42). And those who are not paying will be considered beneficiaries. Note that
the token amount for registration will not be a payment for services for Doctors. And it
cannot be claimed as a service.
Are Charitable Services covered under Consumer Protection Act, 2019?

The short answer is yes, the charitable services by the hospitals in category 3 will be covered
under Section.2(42) of the Consumer Protection Act, 2019. The supreme court interpreted
that the fund that is paid by the “paying class” to the “poor class” is a charitable consideration
for the services given to the “poor class” by doctors. It was interpreted in the case of Indian
Medical Association v. V.P. Shantha19.
Are Policyholders covered under Consumer Protection Act, 2019?

The Short answer is yes, The supreme court on Indian Medical Association v. V.P. Shantha20,
interpreted that the policyholders of health insurance are also covered under “Service”
covered under Section.2(42) of the Consumer Protection Act, 2019. And also the employees
who avail of health insurance as allowances from their companies come under the ambit of
Section 2(42) of the Consumer Protection Act, 2019.
18
Indian Medical Association v. V.P. Shantha 1995 (6) SCC 65
19
20
9
Landmark Verdicts for Medical Negligence under Civil Negligence:

“The Law is a watchdog and not a bloodhound, and as long as doctors do their duty with
reasonable care they will not be held liable even if their treatment was unsuccessful”. 21
Precautions for Doctors by Supreme Cout:

The precautions to be taken by doctors are given by the supreme court:
a) Current practices, infrastructure, paramedical and other staff, hygiene and
sterility should be observed strictly….
b) No prescription should ordinarily be given without actual examination.
The tendency to give prescriptions over the telephone, except in an acute
emergency, should be avoided.
c) A doctor should not merely go by the version of the patient regarding his
symptoms but should make his own analysis including tests and
investigations where necessary.
d) A doctor should not experiment unless necessary and even then he should
ordinarily get written consent from the patient.22
Guidelines for Doctors by Supreme Court:

The Supreme Court held that in dealing with the aspect of individual responsibility of a
doctor the Court framed certain principles and observed that there cannot be, however, any
doubt or dispute that for establishing medical negligence in service, the following:
a) No guarantee is given by any doctor or surgeon that the patient would be curred.
b) The doctor, however, must undertake a fair, reasonable, and competent degree of
skill, which may not be the highest skill.
c) Adoption of one of the modes of treatment, if there are many, and treating the patient
with due care and caution would not constitute any negligence.
d) Failure to act in accordance with the standard, reasonable, competent medical means
at the time would not constitute negligence. However, a medical practitioner must
exercise a reasonable degree of care and skill in diagnosis with the result that wrong
treatment is given would be negligence.
e) In a complicated case, the Court would be slow in attributing negligence on the part of
the doctor if he performing his duties to the best of his ability.
Expert Evidence:
The Supreme Court held that the Consumer Forum must get an expert opinion before issuing
notice to a respondent doctor.23 The Experts committee should consist of experienced and
senior doctors in the respective fields and the respective field council head in the state or
center.
21
22
23
Jacob Mathew v. State of Punjab, Supreme Court of India, Augest 5, 2005, Citation : 2005 (6) SCC 1 = AIR
2005 SC 3180
10
Relief that can be granted under the Consumer Protection Act:

Relief that can be granted for deficiency and negligence of service are:
1. Return of Charges paid by the complainant.

2. Payments of amounts of compensation as awarded by the Court to the
consumer; and
3. Removal of defect or deficiency in the services so rendered.24
When Damages can be claimed:
1) Aggravation of a pre-existing condition- The patient came for treatment but the pre-
existing condition worsened because of negligence.
2) Complications/Side–effects- The doctor did not explain the complications and side
effects of the treatment.
3) Expenses incurred- in case of negligence, the patient can also sue for hospital
charges, travel, medicines, specialist consultation, etc.
4) Loss of earning- due to negligence there is an absence of work and expenses of the
patient can’t be met.
5) Pain and Suffering- The physical and mental pain of the patient should be
compensated by the doctor.
6) Prolonging the illness- If the patient is suffering from any prolonged illness it should
be compensated.
7) Disability- If the patient is suffering from any disability it should be compensated.
8) Reduction in expectation of life- If there is any reduction due to negligence in the
patient life it should be compensated.
9) Death- If the patient died due to negligence the doctor is liable to pay a compensatory
amount to his/her family members.
Criminal Negligence:
In case of the patient died and the nature of the injury is serious in this case, the doctor or any
medical practitioner will be prosecuted under criminal trial in the competent Court.
For example: If a surgeon performs surgery under the intoxication of any drugs and as a
result, the patient dead or gets severe side effects as a result of surgery. In this case, the
doctor will be prosecuted under Sec.304-A(Death Caused by Negligence) of the Indian Penal
Code, 1860.
Provisions under IPC, 1860
Section. 336:Act endangering the life or personal safety of others.25
If a doctor/any medical practitioner performs a duty that is so negligently it in results a threat
to the patient life and safety and the doctor will be prosecuted under this act and shall be
punished with imprisonment of either description for a term (simple or rigorous punishment)
which may extend up to 3 months or with fine of Rs.250 or with both.
24
25
Section. 336, Indian Penal Code, 1860
11
Section.337: Causing hurt by act endangering life or personal safety of others. 26

If a doctor/any medical practitioner performs a duty that is so negligently it results in hurt to
the patient and the doctor will be prosecuted under this act and shall be punished with
imprisonment of either description for a term (simple or rigorous punishment) which may
extend up to 6 months or fine up to Rs.500 or with both.
Section.338: Causing grievous hurt by act endangering life or personal safety of
others:27
If a doctor/any medical practitioner performs a duty that is so negligently it results in
grievous hurt to the patient and the doctor will be prosecuted under this act and shall be
punished with imprisonment of either description for a term (simple or rigorous punishment)
which may extend up to two years, or with fine which may extend up to Rs.2000 or with
both.
The defense provision under the Indian Penal Code:

Section.80 Accident in doing a lawful Act:28
If a doctor does an act 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.
Section.81 Act likely to cause harm, but done without criminal intent, and to prevent
other harm; 29
If a doctor does an act merely by reason of its being done with the knowledge that it is likely
to cause harm if it is done without any criminal intention to cause harm, and in good faith for
the purpose of preventing or avoiding other harm to person or property.
Section.88, Act not intended to cause death, done by consent in good faith for person’s
benefit:30
If a doctor does an act that is not intended to cause death, is an offense by reason of any harm
which it may cause, or be intended by the doer to cause, or be known by the doer to be likely
to cause, to any person for whose benefit it is done in good faith, and who has given a
consent, whether express or implied, to suffer that harm, or to take risk of that harm.
26
27
28
29
30
12
Doctors vs. State:

When a doctor violates the penal provision of law or a complaint case is filled, he is subjected
to prosecution by State.
Under the following circumstances, the doctor is likely to be charged
1. A doctor is bound to report all the cases of violence coming to his notice, in which
commission of a criminal act is suspected. If he fails to abide by the provision of law,
he will be liable for prosecution under Section.202, I.P.C.(Intentional omission to give
information of offense by person bound to inform).
2. If a doctor issues a false birth or death certificate or prepares a fraudulent affidavit for
some purpose or wilfully attempts to conceal the nature of a criminal act, he is liable
for a criminal proceeding.
3. In case of death of a patient due to gross negligence, gross carelessness or ignorance
during the administration of anesthesia or drugs prescription of medicine or operation,
the doctor is liable for prosecution for causing death by rash and negligent act under
Section. 304-A(Causing death by negligence) and is punishable with imprisonment or
fine or with both. More examples are given below:
I. Not doing a sensitivity test when indicated.
II. Injecting basal, anesthetics in a fatal dose or in the wrong tissue.
III. Amputation(the action of surgical cutting of a limb) of the wrong finger,
operation on the wrong limb removal of the wrong organ, or errors in legation
of ducts;
IV. Operation on the wrong patient
V. Leaving instruments or sponges in the abdomen or any other part of the body;
VI. Giving wrong or infected blood;
VII. Leaving tourniquets too long (to stop blood flow)
VIII. Gangrene(dead tissue caused by lack of blood flow) after too tight plastering
or paralysis after splints (hard strip to hold broken bone)
IX. Dressing with corrosives instead of bland liquids;
X. Performing a criminal abortion outside the scope of Section.3(2)(a),
Section.3(2)(b) of the Medical Termination of Pregnancy Act, 1971.
XI. Mismanagement of delivery under the influence of alcohol or drug.31
In the case, of Sukharoo Kaviraj v. Emperor32 the kaviraj, who was not a qualified surgeon,
cut the internal piles of a patient with an ordinary knife. In consequence, the patient died of a
hemorrhage. Kaviraj was convicted under Section.304-A, IPC for his rash and negligent act.
31
32
Sukharoo Kaviraj v. Emperor LLR (1887)
13
Rules for Investigation officer of Criminal Trial:

In Jacob Mathews v. State of Punjab,33 case the Supreme Court realized that doctors have to
be protected from frivolous complaints of medical negligence, and has laid down certain rules
in this connection:
a) A private complaint should not be entertained unless the complainant has produced
prima facie evidence before the Court in form of a credible opinion given by another
competent doctor to support the charge of rashness or negligence on the part of the
accused doctor.
b) The investigating officer(I.O) should, before proceeding against the doctor accused of
a rash or negligent act or omission, obtain an independent and competent medical
opinion, preferably from a doctor in government service, qualified in that branch of
medical practice who can normally be expected to give an impartial opinion applying
the Bolam’s test.
c) A doctor cannot be arrested in a routine manner if any medical negligence case is
filed against him. Unless his arrest is necessary for furthering the investigation or for
collecting evidence or unless the investigating officer feels satisfied to face the
prosecution unless arrested, the arrest should be withheld.
I. Mere deviation from normal professional practice is not necessarily evidence
of negligence.
II. A mere accident is not evidence of negligence.
III. An error of judgment on the part of a professional is not negligence per se.
IV. Simply because a patient has not favorably responded to a treatment given by
the physician or a surgery has failed, the doctor cannot be held liable per se by
applying the doctrine of res ipsa loquitor(the act stands for itself).
Are medical practitioners liable for the defective equipment and materials?
The Short answer is no and the liability goes to the manufacturing products who
manufactured the equipment. Generally, the products have two types of defects one is a
design defect and a manufacturing defect. Manufacturing defects will arise in the process of
manufacturing the product. But design defect is when the consumers who use the product feel
it has a design flaw. There are two types of tests for detecting design flow that is Risk-Utility
Test and the Consumer expectation test. 34
33
Jacob Mathews v. State of Punjab, 2005 Cri LJ 3710
34
Products liability, Cornell Law University (products liability, Cornell Law University)
14
What if the case were negligence performed by Students and Nurses?

In this case, Vicarious Liability will come into play, A medical practitioner may be held
liable under a civil suit only for the negligent act of nurses, students, compounders, or some
other assistant for nursing and medical duties. Such liability occurs only when staff is
employed under the direct supervision of doctors.
In Cassidy v. Ministry of health,35 the Court of Appeal decided that a hospital was liable for
the negligence of its paid whole-time medical staff. Two fingers of his left hand of Cassidy
were operated upon and bandaged to a splint for fourteen days. The operation was carried out
by a whole-time assistant medical officer. The patient complained of severe pain during the
bandaged condition and the doctor gave sedatives but never examined the hand to cause the
pain. After the splint and he could not move his hand. Lord Justice Denning observed that
where the doctor is employed and paid by the hospital authorities, they are liable for this
negligence in treating the patient.
And in another case, a nurse administered the adult dose of injection. Lariago(a drug used to
treat malaria) to the child and the child had drug toxicity. And the parents filed a complaint
against the doctor and the Court that the doctor is vicariously liable for the nurse's act under
the doctor's supervision. And held the doctor to pay seventeen lakh rupees as compensation to
the child.36
Ethical Violation:
There are ethics codes for doctors prescribed by the National Medical Commission(NMC)
and the Medical Council of India(MCI) and it is called Indian Medical Council (Professional
Conduct, Etiquette and Ethics) Regulations, 200237. And every doctor in India is liable to
follow this code of ethics. If any violation of this code by doctors and if any allegations are
filed against doctors and the allegation is proved their license for practicing medicine in this
country will be removed.
The burden of Proof:

In Civil Cases, the burden of proof is on the Complainant, but in criminal cases, the State has
to prove that doctor is negligent in his duty and the negligence is gross negligence. In Civil
and Criminal cases all three components need to prove that is:
a) A duty of care in deciding whether to undertake the case,
b) A duty of care in deciding what treatment to give and
c) A duty of care in the administration of that treatment.38
35
Cassidy v. Ministry of health (1951) 2 KB 343
36
Spring Meadows Hospital and Anr. V. Harjol Ahluwalla, 1998 Civil Appeal No. 7708 of 1997 With Civil Appeal
No. 7858 of 1997
37
Indian Medical Council (professional Conduct, Etiquette and Ethics) Regulations, 2002
38
Laxman Balakrishnan joshi v. Tribak Bapu Godbole, AIR 1969 SC 128, per Shelat,J.
15
Novus actus interveniens:

It means “the Act of God”. It is a defense used by the doctor in medical negligence cases. It
refers to a situation, a completely unexpected and unforeseen act that happened, which
further worsened the patient’s condition. In such conditions and after taking all the evidence
into consideration the doctor is not liable.
Quantum of evidence:
Criminal case- The evidence should be beyond reasonable doubt which means it should be
prima-facie evidence.
Civil Case- The probability of evidence which is the preponderance of evidence should be
there.
Clinical Practice Guidelines:

Every doctor should follow clinical practice guidelines given by the Medical Council of India
and by their respective specialization field for treating different cases. For example the Indian
Society of Anaesthesiologists, Federation of obstetric and Gynaecological Society of India,
Urological Society, etc.,
Jurisdiction of Courts in Medical Negligence:

Generally, all cases of medical negligence are not gross negligence cases. So, every patient
who has a conflict with the doctor for claiming compensation should approach the consumer
forums. In most medical negligence cases consumers claim compensation Civil Courts'
jurisdiction will not be encouraged according to Section.1539 of the CPC.
Jurisdiction of Consumer Forums:

If the Consumer claims the amount
1. 50 Lakhs- District Consumer Forum(Section.34(1))
2. 50 Lakhs-2 Crores- State Consumer Forum(.Section.47(1)(a))
3. More than 2 Crores- National Consumer Forum(Section.58(1)(a))
39
Section.15- Courts in which suits to be instituted.
16
Patient Confidentiality:
Privacy of the Patient is to be guaranteed by the doctor as mentioned in Article.21(Protection
of life and personal liberty) of the Constitution of India and it is one of the basic fundamental
rights. If there is any reasonable cause for revealing the patient's medical report doctor can
reveal it and the doctor is bound by the law( Section.76, Act is done by a person bound, or by
mistake of fact believing himself bound, by law).and also given in the Indian Medical
Council( Professional Conduct, Etiquette and Ethics), Regulation, 2002. 40 In the case of Mr.X
vs. Hospital Y41, the Supreme court held that the disclosure of HIV patient information to his
fiancee is not violative of patient confidentiality. Because it is done in good faith of the
doctor.
Brought Dead and Dead:

How many of you know that there is a difference between brought dead(Dead-on-
Arrival(AOA)) and dead. Doctors who are reading the doctor may know very well this
difference. For those who don’t know, the doctor has to clearly examine the body of the
deceased person. And should give the dead certificate that should be mentioned as dead if the
doctor knows the reason for the deceased and the doctor doesn’t know the reason he/she
should mention as Dead-on-Arrival(AOA) in the death certificate.
Conclusion:
What is the scenario of medication error reporting in India?
A Harvard study by Prof Jha in his study showed that around 5.2 million medical errors
take place in India annually. Similarly, the British Medical Journal quoted that India, like
any other developing country, is recording a lot of medical errors. The main reason is
that we do not have trained doctors and nurses to measure the clinical outcomes. 42
In an interview with ETHealthWorld Dr. Girdhar J. Gyani, Director General, Association
of Healthcare Providers(India), New Delhi talks about the issues and challenges that
exist in the current Indian healthcare system. In that, he mentioned that
What are the major issues and challenges that we need to focus on?
The issue now is that one rural sector is being dealt with only by the government because the
private sector is not in a position to go to the rural side. The shortage of doctors is the major
issue and I am talking about the specialists. We have 50,000 MBBS graduates passing every
year but we have only 18,000 post-graduate seats, so every year these MBBS graduates
compete for those 18,000 seats and the remaining people keep on working as junior residents.
Even the community health center which is run by the government has the position of
specialists like MD, and MS. So the government has to increase the post-graduate seats which
40
Chapter-6, 7.14, Indian Medical Council( Professional conduct, Etiquette and Ethics), Regulation, 2002.
41
Mr. 'X' vs Hospital 'Z' on 21 September, 1998, (2003) 1 SCC 500
42
Aashita SA, Khan ZH, Khokhar A. Basic concept of patient safety in healthcare delivery. Int J Curr
Res. 2018;10(8):72926–72932. [Google Scholar]
17
they are working on. The other indicator is the Human Development Index in which we come
somewhere around 188 the world over and this is because HDI is based on education,
healthcare, and the capacity to earn. The third and final issue is that hospitals and around
2/3rd of medical colleges are in the south and west side of India where only 1/3rd of the
population resides. The 2/3rd population of UP, Madhya Pradesh, Orissa, West Bengal, and
Kashmir have only 1/3rd of medical colleges. So this is a big mistake we did for example in
Tamil Nadu we have roughly 45 medical colleges in each state while in states like Rajasthan,
UP, and Bihar around 18-22.
Here the population is 2 times but the medical colleges are half so that is a big issue that we
have not been able to take care of.43
The privatization of health care was held in 1991 by LPG(Liberalisation, Globalisation, and
privatization) policy in India and it is an important factor in the medical field in India that is
grown drastically in recent years and the standard of treatment in India was also increased in
the recent years. But there are many number medical negligence cases filed in Consumer
dispute redressals and High Courts in India. To reduce the medical negligence cases in India
we should increase the hospitals and medical colleges standards in India. Since the United
States of America is a well-developed country in the world it has also a drastic number of
medical negligence cases country to reduce the medical negligence they employed legal
advisors in multi-specialty hospitals.
Recommendations:
Affordable Care Act:
To increase the Standard of medical treatment in India, the government should introduce an
affordable health insurance policy for Economic weaker sections like the Affordable Care
Act, 201044 insurance policy in the United States. In the United States before the Affordable
Care insurance policy, the cost of medical care in America is very high compared to other
countries but the standard of care is very high compared to other countries. After the patients
getting treatment in all hospitals will be liable to get compensation from the Consumer
redressal commission and all the patients getting treatment from any hospital should come
under the ambit of Section 2(42): “Service” of the Consumer Protection Act, 2019.
43
ETHealthWorld- the issues and challenges that exist in the current Indian healthcare system(EThealthprime)
44
Affordable Care Act
18
Bibliography:
Books Referred:
Dr. Nandita Adhikari, Law and Medicine, Second Edition.
Winfield, Tort (1991)
Dr.B.M. Gandhi, Law of Torts
Walker, The Oxford Companion to Law (1980)
Statutes Referred:
Indian Penal Code,1860
The Indian Medical Council Act,1956
National Medical Commission Act,2019
Consumer Protection Act, 2019
Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002
Online Articles Referred:

Products liability, Cornell Law University (products liability, Cornell Law University)
ETHealthWorld- the issues and challenges that exist in the current Indian healthcare
system(EThealthprime)
Online Lectures Referred:

Consumer Protection Act by Advocate. Dr.S.Joga Roa(Youtube)
Medical Law and Ethics by Advocate. Dr.S.Joga Roa(Youtube)
19
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Liability of Medical Practioners for Medical Negligence in India

S.no: Table of Cases

4. Martin F. D' Souza vs Mohd. Ishfaq on 17 February 2009, 3 SCC 1

5. Bolam vs Friern Hospital Management Committee, [1957] 1 W.L.R. 582 =

6. Bolitho v. City and Hackney Health Authority [1996] 4 All ER 771

8. R v. Batesman (1925) 94 LJ KB 791 : 1925 ALI ER Rep 45

9. Indian Medical Association v. V.P. Shantha 1995 (6) SCC 65

10. Martin F. D' Souza vs Mohd. Ishfaq on 17 February, 2009, 3 SCC 1

11. Cassidy v. Ministry of health (1951) 2 KB 343

12. Cassidy v. Ministry of health (1951) 2 KB 343

Res ipsa loquitor:

Tests for Medical Negligence:

Jacob Mathew Case:

Types of Liability in Medical negligence:

Civil Negligence under Consumer Protection Act, 2019:

Are Government Hospitals covered under Consumer Protection Act, 2019?

Are Charitable Services covered under Consumer Protection Act, 2019?

Are Policyholders covered under Consumer Protection Act, 2019?

Landmark Verdicts for Medical Negligence under Civil Negligence:

Precautions for Doctors by Supreme Cout:

Guidelines for Doctors by Supreme Court:

Relief that can be granted under the Consumer Protection Act:

1. Return of Charges paid by the complainant.

Section.337: Causing hurt by act endangering life or personal safety of others. 26

The defense provision under the Indian Penal Code:

Doctors vs. State:

Rules for Investigation officer of Criminal Trial:

What if the case were negligence performed by Students and Nurses?

The burden of Proof:

Novus actus interveniens:

Clinical Practice Guidelines:

Jurisdiction of Courts in Medical Negligence:

Jurisdiction of Consumer Forums:

Brought Dead and Dead:

Online Articles Referred:

Online Lectures Referred:

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