Medical Law

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Dr. Chaitanya Mittal
Dr B C Roy Multi Speciality Medical
Research Centre

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Indian Institute of Technology Kharagpur

Lecture 11: Legal Responsibilities of Medical

N Practitioners
• Responsibilities of doctors
• Doctor-patient Relationship
• Consent for treatment

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• Medico-Legal Cases
• Judicial perspective on MLCs

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• Legal responsibilities
• Duty to care
• Consent

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• Secrecy
• Medico-Legal Cases

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N
Introduction
• In India, since the Vedic era, doctors have been
compared to God. This is among the factors that

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the profession of the medical field is considered
most pious, honourable, and respected.
• Patients have immense faith in a doctor’s capacity

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to cure them. Therefore, it is imperative for the
doctor to provide his patients with care and
attention. N
• Doctors have an immense responsibility to preserve
life and serve society.
• Every doctor is bound to serve patients and can not

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refuse treatment.
• Every doctor is required by law to comply with

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specific requirements as defined under the law.
• There are various legal responsibilities carried out
by a medical practitioner, as mentioned under
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different laws in India.
 1. Moral
responsibilities
Responsibilities

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of Doctors

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2. Legal
responsibilities

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 Duties to their patients

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Duties at the time of
consultation

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N Duties towards Law
Enforcement agencies
 Standard care

Secrecy

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Duties to their
Prognosis
patients

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Consent

N
Emergency care
Standard Care
• This refers to applying the principles of standard care that
an average person would follow in a similar situation:
• Supreme Court laid down in Laxman Balkrishna Joshi vs.

EL
Dr Trimbark Babu Godbole and Anr (AIR 1969 SC 128)
that a doctor owes his patient certain duties, which are:
– (a) duty of care in deciding whether to undertake the case,

PT
– (b) duty of care in deciding what treatment to give and
– (c) duty of care in the administration of that treatment.
• A breach of any of the above duties may give a cause of
N
action for negligence, and the patient may, on that basis,
recover damages from his doctor.
• In the case of P. N. Thakur v. Hans Charitable
Hospital [(2007) 3 CPJ 340)], When assigning a

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duty to a junior physician or member of the
paramedical staff, a senior physician must ensure
that the assistant has the necessary training and

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experience.

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Secrecy
• A doctor shall not disclose the information provided to him
by their patients unless required by the law of the state.
•

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There are various provisions mentioned in different laws to
protect the patient's confidential information.

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• Section 23 of the Mental Health Act of 1987 provides the
right to privacy to the person with mental illness. Doctors
are under a legal duty to keep all the information
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confidential which has been obtained during care or
treatment.
• Similarly, Regulation 5 of the Medical Termination
of the Pregnancy Regulation, 2003 prohibits the
disclosure of any document relating to the
treatment for termination of the pregnancy to

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anyone other than the Chief Medical Officer of the
State. The admission register, which contains the
details of the admission of the women for the

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termination of pregnancy, constitutes a secret
document, and details of the register shall not be
disclosed to anyone. The regulation emphasizes the
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security of information collected in the register.
• It is imperative to mention that a doctor shall employ his
knowledge to determine his duty towards the patient and
commitment to society.
• For example, if a patient has shared information regarding

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an infectious disease with the doctor, he has a duty toward
society to share the information about that disease with

PT
public authorities
• In the case of Mr. X v. Hospital Z [(1998) 8 SCC 296], the

N
Supreme Court, for the first time, observed that clinical
establishments have the liberty to disclose the HIV-positive
status of an individual to the public.
Prognosis
• A doctor should never exaggerate or downplay how
severe a patient’s condition is. He should make sure

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that the condition of the patient is known to his
family or his friends but in a manner that does not
create any chaos or cause emotional shock.

PT
N
Consent
• In the medical field, consent is of vital importance.
• The doctor shall obtain consent from the patient
himself or anyone legally suitable to give consent

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before performing any medical procedure.
• It mandates the doctor to maintain high ethical

PT
standards.
• Consent is a primary document in protecting the
rights of patients.
N
• Procurement of consent forms ensures human
dignity and respect for them.
• The Supreme Court, in Samaira Kohli v. Prabha
Manchanda [(2008) 2 SCC 1], basically looked at
the importance of the patient’s consent and the

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things that can be done within the parameters of
that consent.

PT
• It was also held that doctors should be conscious
that the consent given for a particular medical

N
procedure does not constitute consent for any other
procedure.
Emergency Care
• The doctor has to render service to save life immediately. He
cannot refuse to provide medical care in emergency situations
to anyone.

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• It is noteworthy that the doctor cannot refuse medical service
due to the want of consent from the patient.

PT
• In Parmanand Katara v. Union of India and others [(1989) 4
SCC 286], the Supreme Court held that the state is under
obligation to provide necessary medical care to preserve
N
human life. The judgment was the first initiative taken by the
apex court to enshrine the right to health in the ambit of
Article 21.
• In the case of Paschim Banga Khet Mazdoor
Samity and Ors. v. State of West Bengal and Anr.
[(1996) 4 SCC 37], the Supreme Court stated that
the denial of timely medical treatment necessary to
preserve human life is a violation of Article 21 of

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the Constitution of India.
• This was the first case in which the Supreme Court

PT
held that the right to life included an obligation to
provide medical treatment and care in emergency
situations.
N
 Duties at the Time of Consultation
Unnecessary consultations should be avoided.

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In every consultation, the benefit of the patient is the sole object.

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The physician can make a variation in the treatment if any
unexpected change occurs, but in that case, he must explain the
reason for such a variation at the time of the next consultation.
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A doctor should clearly display his fees and other charges on the
board in the clinic or hospital.
Duties towards Law Enforcement agencies
• Doctors have various duties towards law enforcement
agencies.
• Reporting certain cases which involve both the medical

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and legal aspects, called “Medico-Legal Cases.”
• Doctors are under a legal duty to report medico-legal

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cases to the law enforcing agencies at the earliest.
(Section 39 of Criminal Procedure Code, 1973.)
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• Failure to comply with the abovementioned duty can
attract punishment under Section 176 of the Indian
Penal Code, 1860.
• A Medico-Legal Case (MLC) can be defined as a case of
injury or ailment, etc., in which investigations by law
enforcement agencies are essential to fix the
responsibility regarding the causation of the injury or

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ailment.
• Doctors, after clinical examination and taking the history

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of the patient, determine whether it is MLC or not.
• A patient can also ask attending doctors to register a case

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against the alleged accused.
• It is noteworthy that a doctor does not need the consent
of the patient or their relatives to label a case as MLC.
Examples of MLCs
• Following are some of the examples of MLCs and medical
officers should use their professional judgment to decide:
– Assault,
– Suspected or evidence cases of suicide

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– Suspected or evidence cases of homicide, including attempted
cases

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– Suspected cases of poisoning
– Burns
– Cases of injuries with a likelihood of death
– Sexual offences N
– Suspected or evident criminal abortion
– All patients brought to the hospital in suspicious circumstances
– Unconscious patients where the cause of unconsciousness is not clear
– Accidents, including Railways, Road transport, Factory, or any other
mishaps
– Child sexual abuse
– Suspected criminal abortion

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– Domestic violence
– Person under police custody or judicial custody

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– Patients dying suddenly on the operation table
– Cases of drunkenness
– Person who brought dead to the hospital
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– Cases of natural disaster
– Cases referred from the court
Duties of A Doctor While Dealing With MLCs
• Every doctor is bound by their duty to treat any patient.
• They cannot give any justification to refuse medical care

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for a patient who is in need of immediate medical
attention.
• In the case of Dr Sarosh Mehta v. the General Manager,

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Central Railways, CST and Ors. (CSTWP No. 2405 of
2001), it was held that providing medical aid in
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emergency situations is a service that cannot be denied
even to the accused or violators of the law.
• The Supreme Court, in the case of Supreme Court
Legal Aid Committee v. State of Bihar [(1999) 3
SCC 482], observed that the responsibility to

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provide immediate medical treatment to an injured
person in a MLC case extends even to the police.

PT
• The same principle has been reiterated in Poonam
Sharma v. Union of India AIR 2003 Delhi 50.

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• In case of any MLC, the doctor should inform the
nearest police station as early as possible.
• A case may be registered as a MLC even if it is brought
to the hospital several days after the incident if
suspected.

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• RMO / Casualty medical officer / MO in charge of MI
Room / Duty Medical Officer (DMO) / MO In charge of
the ward who is attending to the case may label a case as

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a MLC.
• It is the sole responsibility of the attending doctor to
label a case as MLC.
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• When death is impeding in a MLC, the doctor shall ask
the police officer to call the Magistrate to record the
dying declaration of the person. If the magistrate is not
available, the doctor shall record the dying declaration in

EL
writing in the presence of other medical professionals.
(Section 32 of the Indian Evidence Act, 1872)
• Before recording the dying declaration of the person, the

PT
doctor is under obligation to ascertain the mental health
and should record that the person making the dying

N
declaration is in sense and capable of declaration.
• In the case of Saheb v. State of A.P. (AIR 2003 SC
1014), the Supreme Court observed that the dying
declaration recorded by a doctor who is totally an
independent person should not be unbelieved.
• It was stated in Gulzarilal v. State of Haryana, (AIR

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2016 SC 795) That the doctor, after examining the
patient, finds that life is ebbing fast in the patient, and

PT
there is no time either to call the Police or the Magistrate
in such a situation the doctor is justified, indeed he is
duty bound to record the dying declaration. He is not
only a respectable witness, but an impartial expert, and
N
thus, his recording of the declaration deserves respect.
• The doctor is bound by the law to prepare the
Medico-Legal Record of a MLC cautiously.

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• It consists of three parts:
– Preamble;

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– Clinical Examinations; and
– Final Opinion
N
• Preamble:- Demographic Profile
– Includes the name, age, sex, address of the patient,
the date, time of incident

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– Use of abbreviations should be avoided
– Must contain identification marks

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– History of the patient

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• Clinical Examinations:- Vital signs,
External/Internal Examination
– Includes a complete description of the injuries or any

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other findings present
– Total number of wounds

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– Conscious level must be noted
– Any investigation or referrals, etc.

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• Final Opinion:
– Includes the nature of injury-whether simple or
grievous.
– Nature of the weapon used, blunt or sharp

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– Estimated duration of the injury
– Shall be signed by the doctor preparing the

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record.

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• Every doctor must collect necessary information
and samples and properly record them while
examining or treating a patient. This ensures that in
case legal complications arise, the doctor will have
sufficient evidence to provide for investigation. It

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is also to be noted that the disappearance of
evidence is a punishable offense under Section 201
of the Indian Penal Code.

PT
• A doctor is also an important witness in a criminal
trial. He can be called an expert witness under
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Section 45 of the Indian Evidence Act of 1872.
• A doctor should uphold the dignity and honor of their
profession, and their prime objective should be to render service to
humanity.
• Doctors are one of the most important pillars of society, and thus, it

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is imperative for doctors to realize the significance of the
profession.
• The legal and moral liabilities of the doctors are incorporated in

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various laws in India.
• Doctors, with their expertise in the medical field, can contribute
immensely to the quality of investigation in Medico-Legal Cases.

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• It is noteworthy that doctors should not be scared of the MLCs and
cooperate with law enforcement agencies for better delivery of
justice.
• Kannan, K., 'Doctors in Court', Medicine and the
Law (Delhi, 2014; online edn, Oxford Academic, 16 Apr.
2014), https://doi.org/10.1093/acprof:oso/9780198082880.003.

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0005, accessed 19 Nov. 2023.
• Code of Ethics Regulations, 2002. Available at:
http://www.mciindia.org/RulesandRegulations/CodeofMedical

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EthicsRegulations2002
• Harish D, Chavali KH, Kumar A, Singh A. Duties and
responsibilities of the medical practitioner, revisited.
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• J Punjab Acad Forensic Med Toxicol 2012;12(2):115-20.
N
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 EL
Medical Law
Dr. Narendran Thiruthy
Rajiv Gandhi School of Intellectual Property Law

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Indian Institute of Technology Kharagpur

Lecture 12: Medical Negligence and Legal Implications

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• Medical Negligence
• Legal duties of Doctors

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• Rights of Patients
• Laws relating to Medical Negligence

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• Judicial approach to Medical Negligence

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• Medical Negligence
• Legal duty

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• Legal harm
• Liability

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• Rights of Patients

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Introduction
• Negligence generally means someone failed to exercise
reasonable care and prudence to prevent injury or harm
to another person.

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• It is a foundational concept developed under the Law of
Torts.
• Negligence can be found both in action or omission.

PT
• When a person owes a duty to another person to do a
particular act, and if he fails to do so, it constitutes an
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omission. (For example, A doctor owes a duty towards
his patients.)
 • Legal duty of care
Elements •

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Duty toward the plaintiff
of
Negligence • Breach of duty by the defendant
• Damage to the plaintiff

PT
N
• In the case of Donoghue v. Stevenson, the duty of care to
another person was evolved. It was held that without any
existing contractual relationship between the plaintiff
and defendant, a claim of negligence could succeed

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because of failure of duty of care.
• Similarly, in Ramesh Kumar Nayak v. Union of India,

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Post Office authorities were negligent and failed to
maintain the premise, which caused the collapse of the
wall of the compound of the Post Office and resulted in
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injuries to the plaintiff, thus held liable.
Medical Negligence
• The medical profession is a noble profession. They have
an additional responsibility to work religiously and
meticulously.

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• “Medical negligence” is a vague term, and it refers to
any wrongful actions or omissions by healthcare

PT
professionals in the medical field while dealing with
patients.

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• Medical negligence suggests irregular conduct by
medical professionals in discharging their professional
duties.
• A doctor owes certain duties to his patient, and any
breach of these duties gives cause of action for
negligence.

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• Negligence by doctors and other healthcare workers may
endanger the lives of patients.
• Every patient has the right to receive medical care of

PT
reasonable standard, and it’s the duty of healthcare
professionals to provide the same.
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• In India, medical negligence laws are put in place to
ensure that patients receive proper and adequate medical
care and compensation in case of any harm caused by
healthcare professionals.
• In the case of Acchutrao Haribhau Khodwa v. State of

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Maharashtra (AIR 1996 SC 2377), the plaintiff’s wife
was admitted to the state government hospital and was

PT
operated. The doctors, while operating on the patient,
left the mop in the body of the patient, which caused the
formation of puss and eventually caused death. The
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court held that the doctors who were performing the
operation were negligent and thus held liable.
Duties of Doctor Towards Patients
• Indian Medical Council (Professional Conduct,
Etiquette and Ethics) Regulations, 2002, provided
doctor duties towards patients.

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• Following are some important duties of a doctor-
– No doctor should arbitrarily refuse to treat their

PT
patient.
– A medical practitioner having any incapacity
detrimental to the patient or which can affect his

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performance vis-à-vis the patient is not permitted to
practice his profession.
– Medical professionals should be patient and must
respect the privacy and honour of the patient.
– Medical professionals should not neglect the

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patient, nor should they withdraw from the case
without giving adequate notice to the patient and

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his family.
– Medical professional shall not wilfully commit

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any act of negligence that may deprive his patient
of necessary medical care.
• As early as 1969, the Supreme Court laid down in
Laxman Balkrishna Joshi vs. Dr. Trimbark Babu
Godbole and Anr. (AIR 1969 SC 128), that doctor
owes his patient certain duties, which are
– (a) duty of care in deciding whether to undertake the

EL
case,
– (b) duty of care in deciding what treatment to give, and

PT
– (c)duty of care in the administration of that treatment.
A breach of any of the above duties may give a
cause of action for negligence, and the patient may,
N
on that basis, recover damages from his doctor.
• In the case of P.N. Thakur v. Hans Charitable Hospital
[(2007) 3 CPJ 340], when a patient is admitted to a
hospital, it is done with the belief that the treatment
given in the hospital is being provided by qualified
doctors. It is not within the knowledge of the patient's

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relatives that the patient is being treated by an Unani
specialist. The National Consumer Disputes Redressal

PT
Commission held that the hospital and doctors treating
the patient owed the duty to the patient for proper

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medical care but failed to do so, and thus, it was an
apparent deficiency in service and negligence.
 Liabilities For Medical
Negligence

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PT
Civil liabilities Criminal liabilities

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Civil Liabilities
• Under civil law, When it comes to medical
accidents, the tort of negligence gives rise to
liability, and the evolution of the idea of "duty of

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care" in negligence as a whole constantly
influences "duty of care" in the medical setting.

PT
• Under civil law, the plaintiff has to show that the
doctor owed the duty to care, and he breached that
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duty by acting below the standard prescribed by
law.
Criminal Liabilities
• Simple lack of care will constitute civil liability but
not criminal liability, and to constitute the latter, a

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very high degree of negligence is required by
medical professionals.

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• For establishing negligence as an offense, an
element of guilty mind (mens rea) must be present.
• From the conduct of medical professionals, the
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liabilities can be drawn by the court of law.
• Dr Suresh Gupta v. NCT Delhi (AIR 2004 SC
4091), the court held that a gross lack of
competence and indifference to his patient’s safety
such that the matter goes beyond compensation

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between subjects is necessary to hold the person
liable for criminal medical negligence.

PT
• The distinction between civil and criminal liability
of medical practitioners lies in the conduct, which
should be gross or reckless or of a very high
degree.
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 Laws
Governing
Medical
Negligence

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Indian Medical

PT
Council
Consumer (Professional
Indian Penal Contract Act,
Protection Act, Conduct,
Code,1860 1872
2019 Etiquette and
Ethics)

N Regulations, 2002
Indian Penal Code, 1860
• Under various provisions of the Indian Penal Code,
1860, deals with negligent acts which endanger the life
of another person.

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• IPC provides criminal liabilities for negligence of
medical practitioners.

PT
• Section 304A- any person who acts negligently or rashly
which resulted in the death of another not amounting

N
culpable homicide shall be punished with imprisonment,
which may extend to two years, or with fine, or with
both.
• Section 337- any person causes hurt another by
acting negligently or rashly as to endanger human
life or the personal safety of others shall be

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punished with imprisonment, which may extend to
six months, or with fine or with both.
• Section 338- any person who causes grievous hurt

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by an act endangering the life or personal safety of
others shall be punished with imprisonment which
may extend to two years, or with fine, or with both.
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• The Supreme Court, in the case of Jacob Mathew v
State of Punjab (2005) 6SCC 1, observed that to
prosecute medical professionals under the criminal

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law, it must be shown that the accused did
something or failed to do something which in the
given circumstances no medical professional in

PT
ordinary sense would have done or failed to do.
• [see also Malay Kumar Ganguly vs. Sukumar
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Mukherjee and Ors (AIR 2010 SC 1162)]
Consumer Protection Act, 2019
• The Consumer Protection Act, 2019 is a law to protect
the interests of consumers. This Act provides safety to
consumers regarding defective products, dissatisfactory

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services, and unfair trade practices.
• The basic aim of the Consumer Protection Act, 2019, is

PT
to protect the rights of consumers by establishing
authorities for the timely and effective administration
and settlement of consumer disputes.

N
• A person aggrieved by medical negligence by medical
professionals can file a complaint and claim
compensation.
• In Indian Medical Association v. V.P. Shantha and Ors.
(AIR 1996 SC 550), Supreme Court brought medical
practitioners under section 2(1)(o) Consumer Protection
Act, 1986.

EL
• Similarly, in the new enactment, Consumer Protection
Act, 2019, medical services fall under the ambit of
services as provided in section 2(42).

PT
• Dr. Vijil v. Ambujakshi T.P WP(C) NO. 970 OF 2022,
The Kerala High Court recently expressed that the
medical services would be covered under Section 2(42)
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of the Consumer Protection Act, 2019, unless they were
provided for free or under a personal service contract.
• In Yashumati Devi v. Christian Medical College,
Vellore (2020 SCC OnLine NCDRC 211), failure to
conduct a CT scan of the patient for want of receipt of
fee for the procedure constitutes deficiency of

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service/negligence; thus the hospital was held liable.
• Similarly, in Shoda Devi v. DDU/Ripon Hospital

PT
Shimla (2019 SCC OnLine SC 334), the Supreme
Court enhanced the payment of compensation to send
a loud message to medical professionals that their
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diligence and responsiveness have to present for all
their consumers.
• In Smt. Savita Garg v. Director, National Heart
Institute [(2004) 8 SCC 56], the Supreme
Court laid down the principle that the onus on

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the hospital to explain the exact line of
treatment rendered and why a particular

PT
condition had occurred. Thus, the burden of
proof is on the hospital in the medical
negligence claim.
N
Vicarious Liability
• During a recent hospitalization for surgery, a person was
administered an incorrect dosage of a prescribed medication,
which caused cardiac arrest and required to spend several days
in intensive care. It is unclear whether the prescription was

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written incorrectly or just administered improperly, so it is
uncertain whether it was the doctor, pharmacist, or nurse who
was to blame, though they all were employed by the hospital.

PT
Who is going to pay for this? Will it be the doctor, pharmacist,
nurse, or the hospital?
•
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‘Respondent superior,’ which means “let the master answer,” is
a legal principle that holds an employer liable for the
negligence of its employees in certain circumstances.
• In Aparna Dutta v. Apollo Hospitals Enterprises
Ltd. [2002 ACJ 954 (Mad. HC)], it was held that a
hospital is liable for the negligence of its staff.

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• Joseph @ Pappachan v. Dr. George Moonjerly
[1994 (1) KLJ 782 (Ker. HC)], the Kerala High
Court observed that hospitals can not escape from

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the liability for negligent acts of their staff and
persons who run the hospital are in law under the
same duty as the humblest doctor.
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• In the recent case of Maharaja Agrasen Hospital v.
Rishabh Sharam [(2020) 6 SCC 501], the Supreme
Court observed, “It is common experience that when a
patient goes to a hospital, he/she goes there on account

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of the reputation of the hospital, and with the hope that
due and proper care will be taken by the hospital
authorities. If the hospital fails to discharge their duties

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through their doctors, being employed on a job basis or
employed on a contract basis, it is the hospital which

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has to justify the acts of commission or omission on
behalf of their doctors.”
Disciplinary Action Against Doctors
• Medical negligence could also be in the form of
imposition of penalties pursuant to disciplinary action
under the Indian Medical Council (Professional

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Conduct, Etiquette and Ethics) Regulations, 2002.
• The Medical Council of India (MCI), now replaced the

PT
National Medical Commission, and the appropriate State
Medical Councils are empowered to take disciplinary
action whereby the name of the practitioner could be
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removed forever or be suspended.
Defence to Medical Negligence
• Merely based on the fact that the decision of the doctor
did not turn out to be favorable, he cannot be held
against such error in judgment. The Courts have

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observed that merely because the doctor chose a
different procedure or treatment to cure the problem and

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it did not work as expected, will not make him liable.
• Section 80 of the Indian Penal Code (IPC), 1860 also
protects medical practitioners from negligent accusations
N
since the provisions define ‘accident’
• Sections 81, 87, and 88 of IPC deal with the acts
committed to preventing greater harm and welfare
of another person, such acts are protected.
• For example, A, a surgeon, knowing that a

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particular operation is likely to cause the death of
Z, who suffers under immense pain but does not

PT
intend to cause Z’s death, in good faith, for Z’s
benefit, performs that operation. A committed no
offence.
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• Following defenses are available for doctors
against negligent act claims-
– Error of Judgment: If a medical professional makes a
reasonable and honest error in judgment while treating
a patient, it may not be considered negligence.

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– Emergency Situations: If a medical professional acted
in good faith to save a patient's life in an emergency

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situation, they may not be considered negligent.
– Contributory Negligence: If the patient contributed to
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their injury or death through their own negligence, the
medical professional may not be held entirely
responsible.
• Achutrao Haribhau Khodwa & Others vs. State of
Maharashtra & Ors (AIR 1996 SC 2377), whereby
the Supreme Court observed that in the field of
medicine, skills vary from doctor to doctor, and

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there are more than one method of treatment
available and all are admissible. Medical

PT
Negligence on the part of the doctor cannot be
attributed so long as he is performing his duty with
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utmost care and best of his ability.
• In M. Kochar v. Ispita Seal (2017 SCC OnLine
NCDRC 1189), the National Commission held that
the treating doctor adopted the standard method.

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The patient was properly investigated and given
proper medicines. It is known that “No cure/no

PT
success is not negligence.” Thus, fastening the
liability upon the treating doctor is unjustified.

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Judicial Approach on Medical Negligence
• Bolam v. Friern Hospital Management Committee,
[1957] 1 WLR 582, it was laid down that a man need not
possess the highest expert skill. It is sufficient if he

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exercises the ordinary skill of an ordinary competent
man exercising that particular art, acting in accordance
with a practice accepted as proper by a responsible body

PT
of medical men skilled in that particular art.
• The Bolam principle developed in English Common
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Law was adopted by Indian courts in different cases.
• In Laxman Balkrishna Joshi v. Trimbak Bapu
Godbole [(2010) 3 SCC 480], the Supreme Court
applied the Bolam test and stipulated that the

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standard to be applied by a medical professional
must be of a “reasonable degree of care.”

PT
• Similarly, in the case of Jacob Mathew v. State of
Punjab [(2005) 6 SCC 1], uphold the ordinary
competence of medical practitioners as enunciated
by Bolam. N
• In the case of Arun Kumar Manglik v. Chirayu
Health and Medicare Pvt. Ltd. [(2019) SCC
OnLine SC 197], the Supreme Court has expressed

EL
its concern over the Bolam test and stated that the
test need reconsideration in modern time.

PT
N
• Medical professionals have legal and ethical duties towards
patients, and they should attend to every patient with the
utmost care and attention.

EL
• The legal framework for medical negligence in India is based
on the Indian Penal Code, the Consumer Protection Act, etc.
• Judgments by the Supreme Court and High Courts also guide

PT
medical negligence claims in India.
• Despite an exhaustive legal framework, Indian medical

N
negligence jurisprudence needs reform to protect the rights
of patients.
• Indian Penal Code, 1860.
• The Consumer Protection Act, 2019.
• The Medical Council Act, 1956.

EL
• Anoop Kaushal, Medical Negligence and Legal
Remedies (Manish Arora ed., 2nd edn., Delhi: Universal Book
Traders, 1998), at 22.

PT
• Agrawal A. Medical negligence: Indian legal perspective. Ann
Indian Acad Neurol. 2016 Oct;19(Suppl 1):S9-S14. doi:

N
10.4103/0972-2327.192889. PMID: 27891019; PMCID:
PMC5109761.
N
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 Medical Law

EL
Dr. Narendran Thiruthy
Rajiv Gandhi School of Intellectual Property Law
Indian Institute of Technology Kharagpur

PT
Lecture 13: Legal Implications of Medical

N Malpractice
• Medical malpractice
• Impact of medical malpractice
• Erosion of Trust

EL
• Undermining Professionalism
• Compromising Patient-Centered Care
• Legal and Ethical Consequences

PT
• Stigmatization of the Profession
• Strain on the Healthcare System
• Types of medical malpractice
N
• Medical malpractice
• Medical Negligence

EL
• Medical care
• Professionalism

PT
• Patient’s rights

N
Introduction
• The medical profession stands as a cornerstone of
societal well-being, tasked with the noble responsibility
of safeguarding and enhancing the health of individuals.

EL
• Rooted in a tradition of compassion, knowledge, and a
commitment to service, healthcare practitioners play a

PT
pivotal role between science and humanity.
• This paradigm places the patient at the heart of
healthcare decisions, emphasizing not only the treatment
N
of ailments but also the holistic well-being of
individuals.
• Medical malpractice encapsulates instances where
healthcare providers deviate from established standards
of care, resulting in harm, injury, or adverse outcomes
for patients.
• Medical malpractice, when it occurs, can have

EL
detrimental effects on the reputation and nobility of the
medical profession.

PT
• While it is essential to recognize that the majority of
healthcare professionals are dedicated to providing

N
excellent care, instances of malpractice can erode public
trust and tarnish the esteemed image of the medical field.
• In the context of India, a country with diverse
healthcare settings, ranging from urban hospitals to
rural clinics, the challenges associated with medical
malpractice take on unique dimensions. The sheer

EL
scale and complexity of India's healthcare system,
coupled with disparities in access and resources,

PT
contribute to the complexity of addressing and
preventing medical malpractice.

N
• Here's how medical malpractice can impact the
noble ideals of the medical profession:

1. Erosion of Trust:

EL
– Trust is the foundation of the doctor-patient relationship.
When patients experience medical malpractice, trust is
shattered. This erosion of trust affects not only the

PT
individual patient but also the broader community.
People may become skeptical about seeking medical
care, leading to delayed treatment or avoidance of
N
necessary interventions.
2. Undermining Professionalism:
– Medical professionals are held to high ethical standards, and
the perception of malpractice undermines the professionalism
associated with the medical field. Instances of malpractice can
be seen as a breach of these expectations, affecting the

EL
perceived nobility of the profession.
3. Compromising Patient-Centered Care:

PT
– Patient-centered care, a fundamental principle of the medical
profession, emphasizes the well-being and preferences of the
patient. Medical malpractice can shift the focus from patient-

N
centered care to legal and defensive medicine, where
practitioners may be more concerned about avoiding lawsuits
than prioritizing the best interests of the patient.
4. Impact on relationship:
– The impact of medical malpractice extends beyond the
doctor-patient relationship to affect relationships within the
medical community. Colleagues may face increased
scrutiny and distrust, leading to a breakdown in the

EL
collaborative and supportive environment necessary for
delivering optimal healthcare.
5. Legal and Ethical Consequences:

PT
– The legal consequences of medical malpractice can tarnish the
professional reputation of healthcare providers. Being

N
involved in legal battles and facing allegations of negligence
can be emotionally and professionally distressing, potentially
leading to burnout and a negative impact on mental health.
6. Stigmatization of the Profession:
– High-profile cases of medical malpractice can be
sensationalized in the media, contributing to the
stigmatization of the entire medical profession. Such
negative portrayals can overshadow the countless

EL
instances of exemplary care and dedication exhibited by
the majority of healthcare professionals.
7. Strain on the Healthcare System:

PT
– Medical malpractice lawsuits and their associated costs
contribute to the overall financial burden on the healthcare

N
system. These financial implications can divert resources
away from patient care and necessary improvements in
healthcare infrastructure.
• Medical malpractice in India can take various forms,
encompassing a range of negligent actions or omissions by
healthcare professionals that result in harm or injury to
patients.
Sex determination
Disclosing the
secrets of a Organ theft

EL
patient
Some common
examples of

PT
Commercial medical practices Refusing
surrogacy in India: treatment
practice

through agents
N
Procuring patients Fake
documentation
Sex Selection-
– Prenatal sex determination tests should never be conducted
with the aim of terminating the life of a female fetus unless
justified by unequivocal medical reasons outlined in the
Medical Termination of Pregnancy Act, 1971.

EL
– Section 23 of the Pre-Conception and Pre-Natal Diagnostic
Techniques Act, 1994 provides punishment for Any

PT
Registered Medical Practitioner (RMP) who performs or
causes to perform the selection of sex before or after
conception shall be punished with imprisonment for three

N
years and fine, which may extend to ten thousand and for a
subsequent offence, imprisonment for five years and fine up
to fifty thousand.
Organ Theft-
– Organ theft is the act of taking a person’s organs for sale
without their valid consent. Most cases of organ theft involve
coercion and undue influence on people living in poverty.
– Medical surgeons or doctors willing to break the law or

EL
ignore regulations, organ brokers, and other intermediaries
cause serious health issues for society.
– Transplant commercialism involves cross-border organ

PT
trading. Thus, transplant medical tourism comprises patients
traveling beyond borders to sell organs.

N
– In India, the organ and transplantation of human organs are
governed under the Transplantation of Human Organs
Act,1994 (as amended in 2011).
Refusing Treatment-
– A doctor can refuse to treat the patient only if he is
incompetent to provide specialized medical care to the
patient.

EL
– As per Indian Medical Council (Professional Conduct,
Etiquette and Ethics) Regulations, 2002, no doctor
should arbitrarily refuse to treat their patient.

PT
– In the case of Dr Sarosh Mehta v. the General
Manager, Central Railways, CST and Ors. (CSTWP

N
No. 2405 of 2001), it was held that providing medical
aid in emergency situations is a service that cannot be
denied.
Fake Certification-
– A doctor shall not provide a fake medical certificate.
– If any doctor produces or signs any untrue, misleading,
or improper medical certificate, he is liable to have his
name removed from the register.

EL
– In Dr Neena Raizada v Medical Council of India
Through its Secretary [W.P. (C) 13499/2019], the Delhi

PT
High Court has approved the warning and monetary
penalty issued by the National Medical Commission,

N
erstwhile Medical Council of India to the doctors for
producing an untrue medical certificate.
Procuring Patients Through Agents-
– Touts constitute one of the most interesting aspects of health
care in India.
– In a hypothetical situation, if you are in need of medical care.
The agents of doctors or hospitals will act as middlemen and

EL
appear from nowhere. They have contacts in high places.
Depending on your needs, they can arrange anything and
everything. In lieu, they will take a commission either from you

PT
or from the doctor or hospital.
– In the Draft National Medical Commission Registered Medical
Practitioner (Professional Conduct) Regulations, 2022, using

N
online forums or agents for procuring patients will be considered
a violation of the regulation and will attract a penalty of up to
three months suspension of the license.
Commercial Surrogacy Practice-

– Commercial surrogacy refers to any surrogacy

arrangement where the surrogate mother is

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compensated for her services beyond reimbursement
of medical expenses.

PT
– Doctors play an important role in the process of
surrogacy, and thus, it is imperative to understand that

N
doctors should be more cautious.
– The Surrogacy (Regulation) Act, 2021 banned various
activities by doctors and surrogacy clinics like
advertising or promoting commercial surrogacy, etc.
– the surrogacy law bans commercial surrogacy and

EL
makes it a non-bailable and non-compoundable
offence to undertake commercial surrogacy. The

PT
commission of such an offence invites imprisonment
for a term which may extend to ten years and with
fine which may extend to ten lakh rupees.
N
Disclosing the Sensitive Medical Information of
Patients-
– Maintaining the secrecy of patients in India is of paramount
importance to uphold their privacy and protect sensitive medical
information.

EL
– Healthcare providers, hospitals, and medical professionals are
obligated to implement robust security measures, such as secure
electronic health record systems, restricted access to patient

PT
information, and regular training for staff on data protection
protocols.
– Strict adherence to these regulations not only ensures the trust of
N
patients but also safeguards their personal health details from
unauthorized access, fostering a secure and confidential
healthcare environment in the country.
Illicit Relationship with Patient-

– Engaging in an illicit relationship with a patient is a

serious breach of professional ethics in the
healthcare field. It is considered highly unethical

EL
and is widely condemned within medical
communities.

PT
– Such relationships compromise the integrity of the
healthcare provider-patient dynamic, erode trust,

N
and can lead to significant harm.
– Maintaining clear professional boundaries is crucial
for ensuring the well-being and trust of patients and
upholding the ethical standards of the healthcare
profession.

EL
– According to the Indian Medical Council

PT
(Professional Conduct, Etiquette and Ethics)
Regulations, 2002, it is misconduct on the part of the
doctor.
N
Inferior Medical Devices-
– The use of inferior medical devices by doctors refers to the
utilization of medical equipment or instruments that do not
meet the accepted standards of quality, safety, or efficacy in
the healthcare industry. This can have serious consequences
for patient outcomes and safety.

EL
– Doctors are expected to make informed decisions when
selecting medical devices for diagnosis, treatment, or

PT
monitoring of patients. Inferior devices may lead to
inaccurate readings, faulty results, or increased risks during
medical procedures.

N
– To address these concerns, regulatory bodies in India, such as
the Central Drugs Standard Control Organization (CDSCO),
set standards for the approval and use of medical devices.
• Medical malpractice in India remains a critical concern that
necessitates ongoing attention and systematic improvements.
• While the majority of healthcare professionals in the country
uphold high ethical standards, incidents of malpractice highlight

EL
the need for regulatory frameworks to enhance accountability.
• Addressing medical malpractice requires collaborative efforts
among healthcare providers, regulatory bodies, and policymakers

PT
to strengthen patient safety measures, streamline reporting
mechanisms, and ensure that ethical standards are consistently
upheld.

N
• India's healthcare system can work towards minimizing instances
of medical malpractice and, more importantly, enhancing the trust
and well-being of the patients it serves.
• https://www.nmc.org.in/rules-regulations/code-of-
medical-ethics-regulations-2002/.
• https://www.ncbi.nlm.nih.gov/pmc/articles/PMC34986

EL
38/
• https://www.nmc.org.in/MCIRest/open/getDocument?p
ath=/Documents/Public/Portal/LatestNews/Public%20

PT
Notice%20of%20Draft%20Regulations%20on%20regi
stration%20by%20EMRB,%20NMC%20-
%2006.04.2022.pdf.
N
N
PT
EL
 Medical Law

EL
Dr. Chaitanya Mittal
Dr B C Roy Multi Speciality Medical
Research Centre

PT
Indian Institute of Technology Kharagpur

N Lecture 14: Landmark Judgments on Medical Negligence

• Negligence
• History of Medical Negligence
• Components of Medical Negligence

EL
• Judicial Approach on Negligence
• Defenses for Doctors in Medical
Negligence

PT
N
• Medical Negligence
• Consumer Rights
• Negligence Per Se

EL
• Defense

PT
N
Introduction
• Negligence is defined as the breach of duty resulting
from the failure to take action that a prudent and
reasonable man would take or from acting in a way that

EL
a reasonable man would not act, governed by the same
considerations that normally govern human affairs.

PT
• According to Winfield, negligence as a tort is the breach
of a legal duty to take care, which results in damage by

N
the defendant to the plaintiff.
• The evolution of common law on professional
negligence dates back to the landmark case of
Donoghue v. Stevenson [1932] AC 562.

EL
• Medical negligence can be read under the ambit of
professional negligence.

PT
• Medical negligence is the term used when a
medical professional treats a patient incorrectly,
N
carelessly, or negligently.
• This could entail a doctor, nurse, surgeon,
pharmacist, dentist, or other member of the medical
staff acting irresponsibly.
• Negligence is usually the cause of this departure

EL
from the minimal standard of care required of all
medical professionals.
• Medical negligence is the primary basis for most

PT
medical negligence claims in which the plaintiff
asserts they were injured as a result of medical
care.
N
• When a patient gives consent to a doctor to cure him,
the doctor is supposed to perform his duty with
diligence.
• Hypothetically, if A, a person goes to a doctor Z.

EL
doctor has the discretion to choose any alternate
medical procedure, but if the doctor chose a

PT
procedure and acted negligently while performing the
procedure, he can be liable for the negligent act. On

N
the other hand, if the doctor were not negligent but
the procedure resulted in undesired outcomes, then
the doctor does not hold any liability for the patient.
History of Medical Negligence in India
• In ancient India, notable works on medical science are found in
many literary works such as Charak Samhita, Sushruta

EL
Samhita and Vagbhata Sushruta Samhita.
• Wrong treatment is titled Mithya and Mithyaopachara under
ancient Indian Medical Literature.

PT
• Sushruta Samhita acknowledged that “if the death is caused by
the negligent act of the doctor, the doctor shall be punished

N
severely; also, growth of disease due to the negligent doctor
should be regarded as assault or violence against the patient.”
• Yajnavalkya Smriti also provided fines and penalties for
doctors who acted negligently. 1000 Pana (silver coins)
was the penalty prescribed for medical negligence.
• The Kautilya’s Arthasastra gave a code of ethics for

EL
doctors. If a doctor discovers a dangerous disease during
a patient’s treatment, he is obliged to notify the
appropriate authorities.

PT
• If patient dies due to the negligent act of the doctor, the
highest punishment used to be inflicted.
N
• Post-independence, in 1956, the Indian Medical Council
Act was implemented for the regulation of the conduct
of doctors.
• Indian courts used to provide remedies in medical

EL
negligence cases through criminal law; the Indian Penal
Code, 1860 deals with criminal liabilities of a doctor in
medical negligence.

PT
• Indian courts also decided on medical negligence claims
under tort for providing damages to patients or their
relatives.
N
• Similarly, the introduction of the Consumer
Protection Act in 1986 (now Consumer Protection
Act, 2019) opened a new Quasi-judicial, cheap, and

EL
convenient system of redress for patients and their
relatives.

PT
• Indian courts also adopted the approach of foreign
courts while deciding medical negligence cases.
N
 Judicial Approach to Medical Negligence
• In Bolam v. Friern Hospital Management Committee (1957)
1 WLR 582, 586, the test for establishing medical
negligence was set out. It was held that the medical

EL
practitioner is required to exercise the ordinary skill of a
competent medical practitioner of his field. The doctor must
exercise this ordinary skill in accordance with a skilled

PT
person in that area. A doctor cannot be held liable if there's
no other possible alternative and another competent doctor
N
would have acted in the same manner in treating the patient.
• The precedent set out in the Bolam test was adopted
in India by the Supreme Court.
• In the case of Jacob Mathew v. State of India (2005) 6
SCC 1, as the most efficient measure of testing

EL
Medical Negligence, saying that by this standard, a
professional may be held liable for negligence on one

PT
of two findings: either he was not possessed of the
requisite skill which he professed to have possessed,
or he did not exercise, with reasonable competence in
N
the given case, the skill which he did possess.
• Juggankhan v. State of Madhya Pradesh AIR 1965
SC 831, The sole point of the case relevant to
medical negligence is the distinction between the
qualification of doctor (homeopathy) and

EL
prescription of medicine(ayurvedic). The court held
that the prescription of medicine was an act of

PT
negligence on the part of the doctor.

N
• In Laxman Balkrishna Joshi v. Trimabak Bapu
Godbole and Anr. (1969) 1 SCR 206, The practitioner
must bring to his task a reasonable degree of skill and
knowledge and must exercise a reasonable degree of

EL
care. Neither the very highest nor a very low degree
of care and competence judged in the light of the
particular circumstances of each case is what the law

PT
require. The doctor no doubt has a discretion in
choosing treatment which he proposes to give to the
N
patient and such discretion is relatively ampler in
cases of emergency.
• In Indian Medical Association v. V.P. Shantha (1995) 6
SCC 651, the court observed, “A patient who has been
injured by an act of medical negligence has suffered in a
way which is recognized by the law - and by the public

EL
at large - as deserving compensation. This loss may be
continuing and what may seem like an unduly large

PT
award may be little more than that sum which is required
to compensate him for such matters as loss of future
earnings and the future cost of medical or nursing care.
N
• To deny a legitimate claim or to restrict arbitrarily the
size of an award would amount to substantial injustice.
After all, there is no difference in legal theory between
the plaintiff injured through medical negligence and the

EL
plaintiff injured in an industrial or motor accident.”
• In this case, the Supreme Court decided that

PT
unequivocally medical services fall within the purview
of the Consumer Protection Act, 1986

N
• Achutrao Haribhau Khodwa v. State Of Maharashtra And Ors
(1996) 2 SCC 634, In the present case, the court held
negligence is writ large. The facts, as found by both the courts,
in a nutshell, are that Chandrikabai was admitted to the
government hospital, where she delivered a child. She had a

EL
sterilization operation afterwards. This operation is not known
to be serious in nature and, was performed under local

PT
anesthesia. Complications arose thereafter, which resulted in a
second operation being performed. She did not survive for
long and died. Both doctors have stated that the cause of death

•
was peritonitis.
N
In this case, the Supreme Court applied the doctrine of Res
Ipsa Locquitur.
• In the case of Poonam Verma v Ashwin Patel& Ors
(1996) 4 SCC 332, “negligence per se,” which is a sort
of negligence apparent on the face of the record. When a

EL
homeopathic doctor prescribes allopathic medicines, the
court held it was deemed to be negligence per se.

PT
• Where a person is guilty of Negligence per se, no further
proof is needed.

N
• The Supreme Court observed that Negligence has many
manifestations- it may be active negligence, collateral
negligence, comparative negligence, concurrent

EL
negligence, continued negligence, criminal negligence,
gross negligence, hazardous negligence, active and
passive negligence, wilful or reckless negligence, or

PT
Negligence per se.

N
• Negligence per se: Conduct, whether of action or
omission, which may be declared and treated as
negligence without any argument or proof as to the
particular surrounding circumstances, either because it is

EL
in violation of a statute or valid municipal ordinance, or
because it is so palpably opposed to the dictates of
common prudence that it can be said without hesitation

PT
or doubt that no careful person would have been guilty
of it. As a general rule, the violation of a public duty,

N
enjoined by law for the protection of a person or
property, so constitutes.
• In the case of M/S Spring Meadows Hospital & Anr v
Harjol Ahluwalia (1998) 4 SCC 39, the question was if
the child was the patient, then can parents and child be
consumers, and can damages be awarded in favor of

EL
parents as separate from those awarded to the child.
• Both child and parents are deemed to be consumers
within the meaning of the Consumer Protection Act.

PT
• The Supreme Court held that the Consumer Commission
may award damages for the mental agony of the
consumer.
N
• State of Haryana v Smt. Santra (2000) 5 SCC 182,
was the case pertaining to medical Negligence Per
Se.

EL
• The Supreme Court held the state government and
hospital vicariously liable for the child born out of

PT
a negligent sterilisation procedure.

N
• Vinitha Ashok v Lakshmi Hospital and Ors AIR 2001
SC 3914, in this case, the court undertook the precedent
of the Bolam case as we did not examine the medical
practice at the time of the event and not from the future

EL
position in the practice.
• Doctors can not held negligent for not choosing a

PT
procedure that was not available at the time of procedure
but developed in the future.

N
• The claim was dismissed by the court.
• In Smt. Savita Garg v The Director, National Heart
Institute (2004) 8 SCC 56, the Supreme Court
overturned the decision of the Commission, which

EL
dismissed the petition of the claimant for non-joinder of
the necessary parties in the claim and observed that the

PT
complainant may not have knowledge about the specific
doctors or medical staff involved in the treatment.

N
• Thus, the burden of proof is not on the complainant but
on the hospital once the patient shows prima facie
negligence.

EL
• This case allows for setting aside the technicalities of
procedural law in favor of substantive law. Since

PT
Medical Negligence came within the purview of the
Consumer Disputes Redressal Forum, this is less of a
problem
N
• Dr. Suresh Gupta v Govt. of NCT Delhi and Anr (2004)
6 SCC 422, wherein it was held that the Bonafide
medical practitioners should not be put through
unnecessary harassment.
• The court observed that Doctors would not be able to

EL
save lives if they were to tremble with the fear of facing
criminal prosecution.

PT
• In such a case, a doctor may leave a terminally ill patient
to his own fate in an emergency where the chance of
success may be 10% rather than taking the risk of
N
making a last-ditch effort towards saving the subject and
facing criminal prosecution if the effort fails.
• The court held that a simple lack of care, error of
judgment, or an accident is not proof of
negligence on the part of a medical professional

EL
and that failure to use special or extraordinary
precautions that might have prevented a

PT
particular incidence cannot be the standard for
judging alleged medical negligence.

N
• The concept of medical negligence was further analyzed,
throwing light on the judgment held by the supreme
court in Jacob Mathews v State of Punjab and Anr

EL
(2005) 6 SCC 1, in this case, it was held that mere
deviation from normal professional practice is not
necessarily evidence of medical negligence.

PT
• Simply because a patient has not favorably responded to
a treatment given by a physician or a surgery has failed,

N
the doctor cannot be held liable per se by applying the
doctrine of Res Ipsa Locquitor.
• The Supreme Court also provided some
guidelines prosecuting medical professionals for
medical negligence-
– A private complaint may not be entertained unless the

EL
complainant has produced prima facie evidence
before the Court in the form of a credible opinion
given by another competent doctor.

PT
– The investigating officer should, before proceeding
against the doctor accused of rash or negligent act or
N
omission, obtain an independent and competent
medical opinion, preferably from a doctor in
government service.
– A doctor accused of rashness or negligence may not
be arrested in a routine manner (simply because a
charge has been leveled against him). Unless his

EL
arrest is necessary for furthering the investigation or
for collecting evidence, or unless the investigation
officer feels satisfied.

PT
N
• In the case of State of Punjab v Shiv Ram and Ors
(2005) 7 SCC 1, the Supreme Court differentiates
between negligence and accident. The court held
that merely because a woman having undergone a

EL
sterilization operation became pregnant and
delivered a child, the operating surgeon or his

PT
employer cannot be held liable if he has not acted
negligently for compensation on account of
N
unwanted pregnancy or unwanted child.
• The case of Nizam’s Institute of Medical Science v
Prasanth S. Dhanaka AIR 2009 SC 1503, focused
on the various stages of medical negligence.
• The court provided an emphasis on the stages of

EL
the negligence- Pre-operative, operative, and post-
operative.

PT
• It was held that there was pre-operative negligence
in not determining the true extent of the tumor and
N
its extension into the spinal cord by undertaking
proper tests available in the hospital itself.
• Dr. Balram Prasad v. Dr. Kunal Saha and Ors. (2014) 1
SCC 384 provides guidance on compensation in the case
of medical negligence.
• In the present case, the court relied on various judgments

EL
and reiterated the principle that there is no restriction on
the amount of compensation that could be awarded in

PT
medical negligence claims.
• In an appropriate case, the court/tribunal, if satisfied,
may pass the enhanced award. The only embargo is- that
N
it should be just compensation
• Recent Judicial Trends in Medical Negligence
Claims-
• It was decided in Sanjay Ambastha Vs. State of
Chhattisgarh, Through the Secretary, Health and Family

EL
Welfare Department [W.P.(C) No. 2653 of 2021], that
during the chaotic situation amidst the ongoing COVID-

PT
19 pandemic, medical professionals have put themselves
through unprecedented difficulties in treating and
serving patients. It is not appropriate to accuse these
N
doctors of ‘medical negligence’ for decisions they make
as a last resort to save lives.
Latest development on medical negligence
• It has been more than 17 years since the Supreme Court, for
the first time in the Jacob Mathew case in 2005, directed
the Centre to frame statutory rules in consultation with

EL
then-the medical education regulator Medical Council of
India (MCI) to deal with the medical negligence cases as it
impacts both doctors and patients.

PT
• Although the Supreme Court time to time provided
directions to the Central Government to frame dedicated
N
regulations, government is reluctant to take the issue at
hand since long back.
• While people must pursue legal action against negligent
doctors, medical professionals are harassed by baseless
accusations and malicious lawsuits. Legal and healthcare
providers agree that an effective legal structure will

EL
prevent violence against doctors while safeguarding
patient interests.

PT
• Though there is no guideline at present, the matter is
under consideration. The Union Ministry of Health and
Family Welfare has taken the healthcare sector’s long-
N
standing demand to frame guidelines for determining
medical negligence cases into consideration.
• After studying various judgments, we can firmly say that Indian Courts
undertook multi-dimensional aspects of the medical profession.
• The definition of a professional is someone who possesses the required
training and experience. If we continue to label every small error of a

EL
doctor as a result of negligence, requiring him to pay damages, it will
restrict his ability to practice medicine as he thinks proper.
• Furthermore, there is always some degree of ambiguity in any field, but

PT
especially in medicine. Therefore, it would not be appropriate to accuse
someone of negligence—especially when that career deals with
something as complicated as the human body.
•
N
It is the responsibility of doctors and legal professionals to educate
people so as to prevent cases of medical negligence rather than resolve
them through lengthy legal processes.
• Davis, Michael, Medical Law (London: Blackstone Press Limited,
1996).
• Murthy, K. . (2016). Medical negligence and the law. Indian

EL
Journal of Medical Ethics, 4 (3), 116. Retrieved from
https://ijme.in/articles/medical-negligence-and-the-law/
• Mathiharan, Karunakaran, “Supreme Court on Medical

PT
Negligence” 41(02) Economic and Political Weekly 2006, at 12.
• https://www.thehindu.com/sci-tech/health/guidelines-on-medical-
negligence-under-consideration-says-union-health-
N
ministry/article66617921.ece
N
PT
EL
 Medical Law

EL
Dr. Chaitanya Mittal
Dr B C Roy Multi Speciality Medical
Research Centre

PT
Indian Institute of Technology Kharagpur

N Lecture 15: Testimony of Doctors in Medical Negligence

• Medical Negligence
• Defences Available for Doctors in Medical
Negligence
• No legal duty to care

EL
• No harm caused
• Volenti Non-fit injuria
• Accident

PT
• Necessity
• Acted to benefit the patient
• Contributory negligence
•
•
•
Emergency
Complications N
Injury not related to medical procedure
• Medical negligence
• Medical practice
• Doctor’s duty

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• Medical profession
• Good faith

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N
Introduction
• Medical negligence is a legal concept that refers to the
failure of a healthcare professional to provide a standard
of care that meets the required level of competence and

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skill. This failure can lead to harm or injury to the
patient and can occur through an act of omission or

PT
commission by the healthcare professional.
• In professional negligence cases, such as medical

N
malpractice lawsuits filed against physicians, the
specific duty owed by the physician to the patient is
defined by the profession itself.
• Indian courts have adopted the Bolam test
propounded by McNair J in Bolam v. Friern
Hospital Management Committee (1957) 2 All ER
118 in the UK.

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• the Bolam test articulates the “standard of the
ordinary skilled man exercising and professing to

PT
have that special skill” and not of “the highest
expert skill.”
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• This is applicable to both “diagnosis” and
“treatment.”
• The Supreme Court in the Jacob Mathew v State of
Punjab and Anr. 2005 (3) CPR 70 (SC) states that “a
mere deviation from normal professional practice is

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not necessary evidence of negligence. Let it also be
noted that a mere accident is not evidence of
negligence. So, an error of judgment on the part of a

PT
professional is not negligent per se. Higher the
acuteness in emergency and higher the complication,
N
more are the chances of error of judgment.”
• In the case of Spring Meadows Hospital v. Harjol
Ahluwalia (1998) 4 SCC 39, the Supreme Court held
that mere error by the doctors, which entails undesired
results, does not constitute medical negligence.

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• V Kishan Rao v. Nikhil Super Speciality Hospital (2010)
5 SCC 513, the Supreme Court has applied the Bolam

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test and observed that a doctor is liable only if he has
breached the duty of care towards his patient and the
doctor needs to observe the skill which has set out in the
medical profession. N
• The Bombay High Court in Venkatesh Iyer v
Bombay Hospital Trust & Others 1998 (3) BomCR
503, observed that “There are black sheep in the
noble medical profession also, but it should not be

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forgotten that angels are still very much there in the
very same profession.”

PT
• The Court also held that if doctors have not acted
negligently, they cannot be held liable
unnecessarily. N
Defences Available for Doctors in Medical
Negligence
• “No doctor knows everything. There’s a reason why
it’s called “practicing medicine.”

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• When a doctor gives a patient the best care possible
in line with medical standards, but the procedure fails

PT
to turn out as planned, the patient or their legal heirs
may file a lawsuit accusing the doctor of medical
negligence. In such cases, the doctor may be able to
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use one of several defenses to shield him or her from
liability.
• Doctors are one of the most important pillars of
society, and they do the pious work of serving sick
people.
• There are certain instances that are unforeseen for

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doctors and patients. In these cases, doctors cannot be
held liable.

PT
• A society shall not make it a routine practice to blame
medical professionals for any loss suffered while
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taking medical care.
Defences Available for Doctors in Medical
Negligence
No legal duty to Volenti Non-fit
No harm caused Accident
care injuria

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Acted to benefit Contributory

PT
Necessity Emergency
the patient negligence

N
Complications
Injury not related
to medical
procedure
No legal duty to care
– A duty of care is a legal obligation to avoid
causing harm and arises where harm is
“reasonably foreseeable” if care is not taken.

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There must be a sufficient relationship of
closeness/proximity between the two people in

PT
order for a duty of care to exist.
– Particularly in medical negligence claims, a

N
doctor cannot be held liable if he is not under a
legal duty to take care of the patient.
– Hypothetically, if A, a patient, went to a Hospital
and, after a check-up, the doctor referred him to a
specialist, the patient cannot claim medical

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negligence on the part of the doctor since the patient
is not under a legal duty to provide specialist

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medical care.

N
No harm caused
– While practicing medicine, doctors need to make
hard decisions for the treatment of patients.

EL
– When a specialist doctor opts for an alternate
treatment by looking at the condition of the

PT
patient at the last minute, it might cause
discomfort for the patient, but it does not
constitute negligence.
N
– The patient had given express consent in writing to
perform only “laparoscopy surgery,” but the
appellant, instead of performing “laparoscopy

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surgery,” proceeded to perform conventional
surgery, and the patient felt discomfort after the

PT
surgery. But this decision of the doctor is not
negligence.

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Volenti Non-fit injuria
– whenever a patient is in need of medical aid, he is
exposed to some kind of risk.

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– The “assumption of risk” arises at the start of
treatment. The “Volenti non-fit injuria”

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principle—states that no one can demand an
action if they have freely consented to it.
N
– For instance, even with appropriate radiation
therapy, radiation burns may occur. This isn't
carelessness. However, if burns are the consequence
of excessive exposure, the sufferer is entitled to

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claim.
– Supreme Court decision in Chanda Rani Akhouri v

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M.S. Methusethupathi Mithupathi (2021) 10 SCC
291 wherein the court held that no doctor can ensure
a full recovery in every case.
N
Accident
– An unintentional, typically undesirable incident that
was not directly caused is called an accident. The word
“accident” suggests that no one is to blame, though

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dangers that were ignored or overlooked could have
contributed to the occurrence.

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– Section 80 of the Indian Penal Code, 1860 (IPC) deals
with the accident.
– If any person is doing a lawful act by lawful means and
N
then any misfortune happens, that person cannot be
held liable.
– The medical profession is not risk-free, and doctors cannot
predict everything beforehand while providing medical
care.
– For instance, if X, a patient, is admitted to the hospital for

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surgery. Before the surgery, complications head up, and
the medical devices that are important for diagnosis are
found faulty. In this scenario, doctors cannot be held liable

PT
for negligence.
– The same principle was iterated by the Supreme Court in

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Bombay Hospital and Medical Research Centre v Asha
Jaiswal and Ors. (2021) SCC OnLine 1149.
Necessity-
– Defence of necessity can be raised by doctors if the act
done by them causes harm, but it has been done without
intention and also to prevent other harm.

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– However, the risk of doping such an act will be
weighed against the nature and need of each situation.
– In the medical profession, sometimes doctors need to

PT
make some decisions, which might invite negligence
claims, but the court needs to undertake the gravity of

N
the situation and the intentions of performing doctors.
Acted to benefit the patient, with consent
– If any person caused injury, acting for the benefit of
others, in good faith, with the consent of that person,
has not committed any offense.

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– The rule of consent cannot justify an intentional
causing of death. But a person for whose benefit an

PT
act is done may consent that another shall do that act
even if death may probably ensue, although the doer
never intends death.
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– Under Section 88 of the IPC, 1860, doctors can take
the defence that they were performing the procedure
with the consent of the patient and were acting in
good faith for the benefit of the patient.

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– For instance, A, a surgeon, knowing that a particular
operation is likely to cause the death of Z, who

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suffers from a painful complaint, but does not intend
to cause Z’s death, and intends, in good faith, Z’s
benefit, performs that operation on Z, with Z’s
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consent A has committed no offence.
Contributory negligence
– Contributory negligence occurs when an individual
does not act in a reasonable and careful way that
might result in harm to himself.

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– When the plaintiff contributes to the incident, his
role should be duly regarded when liability is

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determined, and the quantum of damages is
assessed.
– It is not an absolute defense from liability but
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recognizes the limited liability of the doctors by
relatively reducing the damages.
– Contributory negligence of a patient is any unreasonable
conduct or absence of ordinary care on the part of the patient
or his personal attendant which, combined with the doctors’
negligence, contributed to the injury complained of as a direct
proximate cause and without which the injury would not have

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occurred.
– The National Consumer Disputes Redressal Commission
(NCDRC) in Devendar Singh v Vivek Pal 2013 CPJ 442

PT
(NC), observed that the patient was using medicine against
the medical advice of the doctor; thus doctor is liable to only a
limited amount of compensation.
N
Emergency
– There is nothing “normal,” even in normal medical
procedures.
– A medical emergency is an injury or illness that is

EL
acute and poses an immediate risk to a person’s life.
– Attending to emergency medical problems is the

PT
responsibility of primary doctors, and they should be
armed with knowledge, skills, staff, practice,

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equipment, and medications to manage patients
effectively, which may even be lifesaving.
– The Supreme Court in Dr. Harish Kumar Khurana v
Joginder Singh [2021 SCC OnLine SC 673] held
that hospitals and doctors are required to exercise
sufficient care for the patient in all circumstances.

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However, in an unfortunate case, death may occur.
It is necessary that sufficient material or medical

PT
evidence should be available before the adjudicating
authority to arrive at the conclusion that death is due
to medical negligence.
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Complications
– Some drugs or procedures have known complications.
– An error in medications that causes harm is known as
a preventable adverse drug event. If an error occurred,

EL
but one felt slight discomfort, they cannot claim
medical negligence.
– For example, anaphylaxis after Penicillin injections is

PT
a known complication. A doctor cannot be held
responsible if a proper sensitivity test is done and all

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measures for the management of anaphylaxis are
readily available in the hospital.
Injury not related to medical procedure
– The defendant’s failure must have been the direct
cause of damage to a plaintiff in order for the
defendant to be legally liable for negligence.

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– Simply because a patient has not favorably
responded to a treatment given by a doctor or a

PT
surgery has failed, the doctor cannot be held
straightaway liable for medical negligence.

N
– For example, if a doctor fails to diagnose a patient
with heart disease when a similarly trained
physician would have, and the patient has a heart
attack caused by that heart condition, the doctor’s

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failure would be the direct cause of injury. But if a
patient dies of cancer and it turns out the autopsy
reveals they had a heart condition that was missed,

PT
the patient’s surviving family members can’t
pursue a negligence claim against the cardiologist

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because his actions didn’t cause harm.
– The Supreme Court in Mrs. Kalyani Rajan v.
Indraprastha Apollo Hospital & Ors 2023 SCC
OnLine SC 1355 stated that no case of medical
negligence if complications were suffered by a

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patient totally unrelated to the medical procedure
undergone.

PT
N
Recent Judicial Trend on Medical Negligence
• The National Consumer Disputes Redressal Commission
(NCDRC) in Mohit Jain v M/S Max Super Specialty
Hospital & Ors MANU/CF/0185/2023, The Consumer

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Protection Act should not be a “halter round the neck” of
the doctors to make them fearful and apprehensive of

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taking professional decisions at crucial moments to
explore the possibility of reviving patients hanging

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between life and death.
• The Commission also observed that in order to
establish medical negligence, the victim or victim’s
family bringing the action must prove the “four D’s”

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against the erring doctor/hospital, which include:
i. Duty;
ii. Dereliction/Deviation;

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iii. Direct (proximate) Cause; and
iv. Damage.

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• Ms. Divya Chauhan v Dr. S.P. Aggarwal
MANU/QI/0176/2023, Delhi State Consumer
Disputes Redressal Commission (DSCDRC) held
that in cases involving allegations against medical

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professionals, negligence is a crucial element of the
offence, which involves the failure to perform a

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duty by omission that a reasonable person would
do or avoid doing. Negligence cannot be

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automatically assumed in unsuccessful treatments.
• Dr. PRAMOD BATRA v Medical Council Of India & Anr.
2023 SCC OnLine Del 3759, while failing from minimum
standards of medical practice, has no justification for
dispensing medical treatment, and it displays negligence to

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the welfare of a patient and has to be dealt with severely; it
is equally true that the scalpel cannot be wielded by a
shaking hand. Baseless targeting of doctors, unmindful of

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the consequences, is bound, in the ultimate eventuate, to
seriously prejudice public interest.

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• Medical negligence is a serious threat to the health of
the patient as well as to society, and it should be dealt
seriously.
• It is noteworthy here that there are differences between

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negligence and any act unforeseen, even for doctors
and courts should demark the same in a religious

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manner.
• Doctors are an important part and pillars of society
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thus it is necessary to protect innocent doctors and not
to threaten them with unnecessary litigation.
• Bal BS. The expert witness in medical malpractice litigation. Clin Orthop
Relat Res. 2009 Feb;467(2):383-91. doi: 10.1007/s11999-008-0634-4. Epub
2008 Dec 4. PMID: 19052827; PMCID: PMC2628518.
• Pandit MS, Pandit S. Medical negligence: Coverage of the profession, duties,

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ethics, case law, and enlightened defense - A legal perspective. Indian J Urol.
2009 Jul;25(3):372-8. doi: 10.4103/0970-1591.56206. PMID: 19881134;
PMCID: PMC2779963.

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• Chandra MS, Math SB. Progress in Medicine: Compensation and medical
negligence in India: Does the system need a quick fix or an overhaul? Ann
Indian Acad Neurol. 2016 Oct;19(Suppl 1):S21-S27. doi: 10.4103/0972-

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2327.192887. PMID: 27891021; PMCID: PMC5109756.
https://wbconsumers.gov.in/HtmlPages/Medical_Negligence.htm
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