MEDICAL NEGLIGENCE IN INDIA

 PRESENTED BY
 NAMRATA BHATIA
 B.A LLB
 5 YEAR
 ROLL NO 1140992022
Negligence
 Negligence is the breach of a duty caused by the omissi
on to do something which a reasonable man, guided b
y those considerations which ordinarily regulate the co
nduct of human affairs would do, or doing something
which a prudent and reasonable man would not do.
 Actionable negligence consists in the neglect of the us
e of ordinary care or skill towards a person to whom th
e defendant owes the duty of observing ordinary care a
nd skill, by which neglect the plaintiff has suffered inj
ury to his person or property
Doctors Liability in Ancient Indi
a: Kautilya’s Arthasastra
 The doctor is mandated to report to t
he State whenever he is called to a hou
se to treat a severely wounded person
and also patients suffering from unw
holesome food or drink. This will hel
p him in saving himself from the crimi
nal accusations of not attending to t
he patient.
Health Care at International Le
vel
 1. Article 25 Universal Declaration of Human Rights,19
48
 2. Art.12 Covenant on Economic, Social and Cultural Ri
ghts,1966
 3. Art.2 World Health Organization Constitution
Legal Framework in India
 1. Tort Law & Constitutional Law
 2.Indian Penal Code; 3. Fatal Accident Act 1855; 4. Da
ngerous Act 1930; 5. Drugs and Cosmetics Act 1940, ; 6
. Drugs Control Act 1950; 7. Indian Medical Council
 1956; 8. The Dentists Act,1948; 9. Drugs and Magic Re
medies (objectionable Advertisement s)Act 1954 ;10.
Medical Termination of Pregnancy Act Act 1975; 11’ The
Consumer Protection Act,1986; 12. Pre-natal Diagnosti
c Techniques(Regulation and Prevention of Misuse) A
ct 1994 ;13. Transplantation of Human Organs Act,1994
;
Liability under Tort Law
 Constituents of Negligence:
 1. A legal duty to exercise due care;
 2. Breach of the duty; and
 3. consequential damages.
Liability of Doctors
 1. A duty of care in deciding whether to undertake th
e care;
 2. aA duty of care in deciding what treatment to give;
and
 3. a duty of care in the administration of that treatme
nt
BOLAM’S case:
 In the landmark Bolam case
It was held that:
In the ordinary case which does not involve any special
skill, negligence in law means a failure to do some act
which a reasonable man in the circumstances would d
o, or the doing of some act which a reasonable man in
the circumstances would not do; . Negligence means f
ailure to act in accordance with the standard s reason
ably competent medical men at that time.
 The Supreme Court of India discussed the conduct of
professionals and what may amount to negligence by p
rofessionals in Jacob Mathew’s case(Jacob Mathew vs.
State of Punjab AIR 2005 SC 3180):
Smt. Madhubala vs. Government o
f NCT of Delhi; 2005 (118) DLT 515

 The Delhi High Court laid down in 2005 that in civil la

w, there are three degrees of negligence:
 (i) lata culpa, gross neglect
 (ii) levis culpa, ordinary neglect, and
 (iii) levissima culpa, slight neglect.
 CRIMINAL LIABILITY
 I. P. C.
 S. 304a: Causing death by Negligence
 S. 88. Act not intended to cause death, done by consen
t in good faith for person’s benefit
 Cr.P.C. 357; 357A
 Good faith- (s.52) Nothing is said to be done or believe
d in ‘good faith’ which is done or believed without due
care and attention
Dr. Suresh Gupta vs. Government of N.C.T. of Delh
i(AIR 2004 SC 4091)

 In Dr. Suresh Gupta’s Case the court held that

 The legal position was quite clear and well settled that
whenever a patient died due to medical negligence, th
e doctor was liable in civil law for paying the compensa
tion. Only when the negligence was so gross and his ac
t was so reckless as to endanger the life of the patient, c
riminal law for offence under section 304A of Indian P
enal Code, 1860 will apply.
Consumer Protection Act, 1986

 In 1995, the Supreme Court decision in Indian Me

dical Association vs. V.P Shantha (1995)6 SCC 6
51 brought the medical profession within the ambi
t of ‘ service’ as defined in the Consumer Protectio
n Act, 1986.
Contd.
 Section 2 (1) (g) CPA defines ‘deficiency in service ‘
as any fault , imperfection, shortcoming, or in
adequacy in quality, nature and manner of per
formance which is required to be maintained
by or under any law for the time being in force o
r has been undertaken to be performed by a person
in pursuance of a contract or otherwise in relation
to any service.
 A determination about deficiency in service for the
purpose of Section 2 (1) (g) is to be made by applyi
ng the same test as is applied in an action for dama
ges for negligence.
Liability under Contract Act
 Vicarious Liability of Hospitals for acts of its Doctors
 (Syed Abdul Khader v. Rami Reddy, 1979 2 SCC 601)

 Contractual Liability of a doctor if he makes a promise

to produce a particular result(s.73)
Frontiers of Medical Technology
 Medical device innovation embraces the frontiers of sc
ience and engineering, adapting computer technology,
nanotechnology and biotechnology to medical applica
tions.
 Medical device technology can be directly and indirect
ly affected by a wide range of laws and regulations and
will face different regulatory and legal hurdles.
 The Medical Devices Regulation Bill ,2006