THE LEGAL & ETHICAL IMPLICATIONS OF

MEDICAL NEGLIGENCE IN INDIA

(Comparative Study of Patient Rights & Compensation)
LAW OF TORTS

ISHANI PATEL (L.L.B)

23010122062

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Introduction:
Access to high-quality medical care is a basic human right which is built upon mutual
trust between the doctors and their patients. The term, “medical negligence,” throws a dark
shadow over the complex healthcare system since it indicates a breach of patients’ confidence.
While it is a violation of the law, it’s also an ethical conundrum with far-reaching ramifications
that are inextricably linked to Tort Law.
Considering the importance of tort law in rectifying wrongs and compensating victims in
India, the topic of medical negligence within the country tends to be a highly debated one.
Patients’ rights, adherence to professional ethics, and fair recompense all tie together in a
thorough analysis of this complex legal and ethical issue.

Legal Framework:
When it comes to medical practice, the Indian legal system heavily relies on the system
of tort law, which is closely tied with the applicable provisions of the Indian Penal Code (IPC).
The relevance of Section 304A of the IPC in dealing with medical negligence is crucial. Reckless
or accidental killings that do not rise to the equivalent level of murder are discussed below.

Understanding Section 304A of IPC:

Per Section 304A: “Whoever cause the death of any person by doing any rash or
negligent act not amounting to culpable homicide, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both1” This clause is
frequently used when a healthcare provider’s negligence or carelessness was the result of a
patient’s death. To establish liability under Section 304A, there is two primary points needed,
(1) a level of carelessness equivalent to that defined in the statute must be proven which is the
Gross Negligence Standard and (2) expert medical views.
The “Gross Negligence” Standard2: a higher degree of negligence, often put as
a “gross deviation” from the standard of care that a reasonable medical practitioner
would exercise, must be shown to establish a case of medical negligence. The case
which

1
§ 304A, Pen Code (1860), Act No.45 of 1860
2
Rahman, Talha (2005) “Medical Negligence and Doctors’ Liability,” Indian Journal of Medical Ethics. Vol II No.2
http://www.ijme.in/wp-content/uploads/2016/11/1098-5.pdf

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 established this set bar for ‘gross negligence’ was Dr. Suresh Gupta v. Govt. of NCT of
Delhi (2004)3 and is a key component of medical negligence laws in India. This case
strikes a balance between medical negligence claims by accounting into consideration the
complexity of medical practice and hold professionals accountable when they severely
violate the standardized quality of care. In India’s healthcare sector, this norm protects
patients’’ right and providers’ ethics.

Role of Expert Opinions in cases:

When determining whether a healthcare provider’s acts or omissions directed to a
gross deviation from the standard of care, the courts depend on the testimonies of
medical specialists considered experts in their fields. In the landmark case of
Jacob Mathew v. State of Punjab (2005)45, the Supreme Court emphasized the
significance of expert opinions in instances involving allegations of medical
malpractice. The court put an emphasis on the fact that the judgements on these
situations should be objective and grounded on well-established medical
standards.

Patient Rights & Informed Consent:

Sections 88 & 92 of the IPC:
Section 88 IPC6: The legal foundation of medical crises and informed consent are
discussed in this section. The law recognizes that there are instances where an
individual is permitted to knowingly endanger themselves to achieve one’s goals.
This implies that in the event of an emergency, a doctor can move through with
treatment on a patient despite not having express permission from them, if doing
so is in their best interest.

3
Chandra, Aparna (2005) "Suresh Gupta v. Government of NCT, Delhi, (2004) 6 SCC 422.," National Law School
of India Review: Vol. 17: Iss. 1, Article 7. https://repository.nls.ac.in/cgi/viewcontent.cgi?
article=1029&context=nlsir
4
Jacob Mathew v. State of Punjab (2005) 6 SCC 1
5
Pandit MS, Pandit S. (2009), “Medical negligence: Coverage of the profession, duties, ethics, case law, and
enlightened defense - A legal perspective.” Indian J Urol
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779963/ 6 § 88, Pen Code (1860), Act No.45 of 1860

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 Section 92 IPC7: This section supplements Sec 88 by giving emergency consent
guidelines. When the individual cannot consent due to unsoundness of mind or
incapacity to speak, consent is not required. This further allows for professionals
to save lives promptly in emergencies.
Judicial Precedents on Informed Consent: In non-emergency medical settings, informed
consent is a legal obligation which must be met. Informed consent from patients has been
underlined as crucial by the judicial system. A notable case on this topic was Samira
Kohli v. Dr. Prabha Manchanda (2008)8. The Supreme court ruled in this case that
patients must be given a through explanation of the potential issues and risks associated
with performing the surgery before giving the informed consent9.

Compensation Practices:
Medical malpractice compensation in India is handled primarily on a civil basis, however
the underlying legal structure is highly complex. Having the ability to familiarize oneself
with current legal requirements and implementations is crucial.
Section 357A of CrPc10: When it comes to paying restitution to victims of crimes,
extending to incidents of medical negligence, Section 357A of the CrPc is crucial.
This provision allows for the courts to compensate victims for their attacks and
while doing so tries to highlight that this sort of compensation rarely equivalates
to the victim’s loss.
Challenges & Reforms: Compensation methods are complicated due to lengthy legal
processes, issues in estimating damages such as pain and suffering and the victim’s
burden of evidence. Moreover, the compensation system often ignores the long-term
financial impacts the victims and their families tend to face.
Inadequacy of Compensation: Indecent compensation in medical negligence suits
is a major concern in India. Courts routinely fail to compensate victims & their

7
§ 92, Pen Code (1860), Act No.45 of 1860
8
Samira Kohli v. Prabha Manchanda Dr. & ANR 1 (2008) CPJ 56 (SC)
9
Harshita. K (2021) "Case analysis: Samira Kohli v. Prabha Manchanda.," International Journal of Integrated Law
Review: Vol. 2: Iss. 1. https://www.ijilr.org/8-case-analysis-samira-kohli-vs-prabha-manchanda/
10
§ 357A Code Crim. Proc. (1973)

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 families for medical bills, emotional anguish, and rehabilitation. This disparity
calls into question the compensation system’s fairness. A notable judgement on
this issue was Kunal Saha v. Dr. Sukumar Mukherjee. In this ruling, the
Supreme Court of India highlighted the requirement for substantial
compensation in cases of medical malpractice. It noted that the victims mental
and bodily injuries were not adequately compensated for in the current
compensation standards. The judgement prompted for India to reconsider its
compensation standard11.
The shortcomings of compensation procedures warrant revisions. A structured no-fault
compensation system like ones in industrialized nations is highly advocated for by
medical negligence victims. It would focus on victim rehabilitation and recovery rather
than the lengthy legal suits, while also providing a faster and more adequate restitution.

Comparative Analysis (with International Standards):

No-Fault Compensation System: Medical negligence no-fault compensations are common
in affluent nations like New Zealand and Sweden. The methods give victims a chance for
rapid and thorough reparation without the need for lengthy court battles. With a heavy
emphasis on recovery and prompt medical care rather than the processes of litigation,
Sweden’s Patent Injury Act ensures compensation for victims through an administrative
approach. Similarly in New Zealand, The Accident Compensation Corporation (ACC),
enacts a more efficient and patient-centered approach and compensates medical
malpractice without the need for victims establishing culpability, placing a premium on
the well-being of, and efficiency of tasks for the patient12.
Benefits of No-Fault Compensation: Under swift resolution, victims can obtain
rehabilitation and compensation promptly. When such instances occur for the
victim, they are not required to navigate through lengthy legal suits or prove
negligence occurred. Most importantly, victim care and rehabilitation are highly

11
Chandra MS, Math SB (2016). “Progress in Medicine: Compensation and medical negligence in India: Does the
system need a quick fix or an overhaul?” Ann Indian Acid Neurol. Journal. Sec21-Sec27 (suppl.1)
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5109756/#sec1-1title
12
VB Tulasidhar (1993), “How should Medical Malpractice be handled? An Economists Point of View,” Indian
Medical Journal, No.9 https://www.nipfp.org.in/media/pdf/working_papers/WP_1993_135.pdf

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 stressed, and victims are all given a uniform compensation to allow for fairness
and equality.
Challenges in Implementing No-Fault System: In this system, governments and
insurers pay a significant amount in maintain and implementing this system.
Regardless of responsibility or not, difficult medical decision may affect whether
the patient is entitled upon any compensation. Furthermore, overuse of medical
services may significantly increase if individuals become less frightened about
personally being held liable for medical costs under the no-fault system13.
Applicability in the Indian Legal context: Adopting a no-fault compensation system in
India will require a substantial change. But it may also solve several medical negligence
victims’ issues. The victims would obtain their compensation in a more efficient manner,
which would help in gaining access to the support and essential medical treatment they
require. Disputes in court would decrease, relieving the pressure which is on the Indian
Judicial System and help in saving money for the parties. Most importantly, a n-fault
system would promote patient well-being and healing which is ethical.

Balancing Ethical Dilemmas & Ethical Principles:

There is a web of moral dilemmas around the issue of medical malpractice in India. The
challenges of trust, informed consent, resource allocation and well-being of healthcare
professionals are all underlined in these conundrums. To solve these issues, the call for a
renewed emphasis on autonomy, justice, and beneficence along with importance towards change
and ethical education. Ethical healthcare and decreasing medical malpractice in India require the
need for balancing all these values14.

Conclusion:
In summary, medical negligence in India is a complex legal, healthcare, ethical issue.
Patient rights and compensation policies under tort law have been the primary focus of this
analysis as it delved deeper into the complex legal framework within which this issue of medical

13
Rai, S., Devaiah, V.H. The need for healthcare reforms: is no-fault liability the solution to medical
malpractice? ABR 11, 81–93 (2019). https://doi.org/10.1007/s41649-019-00081-
14
Ravindran GD (2008), “Medical Ethics Education In India,” Indian Journal of Medical Ethics Vol V No 1
https://pdfs.semanticscholar.org/1f54/bd0bfbf6cb8eea8a0917582fbf1a7795308e.pdf

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negligence works. The threshold for medical negligence in India is high, as stated under Sec
304A of the IPC, which requires not only the need for carelessness but a gross deviation of the
established standard for care. The landmark, Dr. Suresh Gupta ruling balanced the need for
accountability and medical complexity.
Careful consideration of ethical principles is necessary when medical professionals and
their patients face ethical issues such as informed consent, trust, and resource allocation as
mentioned above. No-fault compensation systems used internationally in the countries of
Sweden and New Zealand could be used to prioritize victim reparation. Ultimately, medical
malpractice in India requires an approach which is holistic in nature. Alternative compensation,
law improvements and ethic education are necessary areas in need of implementation. The ideal
healthcare system would be one which protects patients’ rights, promotes ethics while doing so
and pays fairly to all. Ensuring that all citizens have access to equitable and caring healthcare is
not just a legal obligation but a community duty as well15.

15
Deb Rajat (2013), “Ethical crisis in Medical Profession of India,” Global Research Analysts, Vol.6,
Iss.6 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2877580