1

CHAPTER -1

INTRODUCTION

Law and Medical professions are considered highly noble and well

learned of all the professions, on account pf the nature of services they

render to the suffering humanity. The sanctity of the oath taken by the

professionals and the Code of Ethics they had imposed on themselves are

considered adequate to keep the doctors on the righteous path. The

emphasis has been on Professional Ethics and peer-group justice. For a

long-long time, society was reasonably well served by the profession

without having recourse to ordinary law to correct professional

misconduct or culpable behavior. There have been crooks and ethical

persons in various professions in the public life. They carry on their

illegal activities with impunity without the fear of loss of prestige or

status. The doctors may not break the letter of the law but, by violating its

spirit, they commit crimes which are not only anti social but also

injurious to public health. The crimes of this nature are called WHITE

COLLAR CRIMES1. E.H.Sutherland2 focused

criminologists on certain

which the persons of the

1 Dr.n.v.Paranjape, Criminology and penology,11th Edition,2001

2 American Sociologhttp://www.youtube.com/watch?v=81 uGlMrcOIical Review Vol.V, No.l

 2

occupation .He emphasized that “ upper World crimes which are

committed by the ‘ upper socio economic groups in course of their

occupation violating the trust termed as “White Collar Crime ”3 which is

distinguished from traditional “Blue Collar Crime”. Thus any

professional who violates the law and is convicted in connection with his

profession, he is a white collar criminal. It is common knowledge that

certain profession offers lucrative opportunities. E.H. Sutherland defined

white collar crime as a crime committed by therespectable and high social

status in the course of their occupation. A white collar criminal 4 belongs

to upper socio- economic class who violates the criminal law while

conducting his professional qualities. He also pointed that white collar

crime is more dangerous to society than ordinary crimes because the

financial loss, mental suffering, body damages, death are more to the

society. White collar criminality has become a global phenomenon with

the advance of technology. Even today, an overwhelming majority of

professionals in medicine naturally abide by the professional norms and

social responsibility, thereby making external compulsions unnecessary

for the governance of their respective profession. This fact needs to be

acknowledged and appreciated by everyone in society lest it should seek

3 American Sociologhttp://www.youtube.com/watcb?v=81uGlMr_cOIical Review VoL.V, No.l,

lthEdition,2001

4 Dr.n.v.Paranjape, Criminology and penology,! 1th Edition,2001

 3

solutions worse than the disease for professional discipline and

accountability.

However, in modem complex societies constantly engaged in

technological improvements and commercialization in every aspect of

life, the professions could not remain unaffected. The enormous stride in

modem medicine, diagnostic techniques, surgery and health care systems,

4

have raised problems in respect of standards of care, extent of human

rights, protection and adequacy of systems of accountability. Time tested

standards, conventions and practices have been questioned in the light of

new knowledge and better understanding of health care. The few changes

in law were felt inadequate to respond to the march of scientific research

and its application to medical practice. Keeping the body functioning with

respiration, the Pace maker, intravenous feeding, renal dialysis etc., now

invites a variety of legal issues concerning homicide, negligent claims,

insurance claims, and transplantation of organs. The developments in

medical research and health care technology have inevitably put the

physicians and hospital staff in difficult situations. The ill-patient should

not be kept alive indefinitely by costly life-sustaining apparatus or

medicine when there are no chances of recovery. A deformed foetus

should not be allowed, to be bom alive. In the contest of the new

standards of human rights, the doctor must take the decision

 4

himself in such situations. He should be guided by the informed consent

of the patient alone in the position of the ever changing laws in this

regard. These are the difficult and complex questions, which do not have

easy answers either in law or in morality. The extent to which law should

intervene in doctor-patient relationship and resolve disputes through

adjudication in courts cannot be determined in advance in view of the

uncertainties and complexities of the situation. The issue is relating to

professional duties of care. It is difficult to subscribe to the view that

these are essentially medical issues and should therefore brook no

interference by persons belonging to other professions or disciplines. Due

to (the uneven level of medical education, the continuing decline of

ethical standards, the commercialization of health care services and the

inadequate institutional frame work with in the profession) Wisdom lies

in acknowledging the malaice and responding intelligently and

imaginatively so that the doctor-patient relationship is not impaired while

accountability systems are reinforced. Every profession has its guiding

principles and needs a scrutiny. Every professional body scrutinizes

whether the professionals are following the principles and practices as

laid down by the Ethics. The Medical Council of India and other

Associations have not been resourceful. The only substitute is The

Consumer Protection Act, 1986. The Consumer Protection Act was passed

by the Indian Parliament to safeguard and for the protection of the

 5

interest of the consumers. The Consumer Protection Courts order is

simplified procedures for seeking redressal of grievances by the patients,

or for their relatives for the negligence of the doctors. The procedure can

be initiated without any cost or without any court fee. The principle of

Consumer Protection Act is essentially the protection of the affected

consumer against the Doctors for their Medical Negligence. Medical

malpractice with professional negligence by act or omission by a health

care provider in which the treatment provided falls below the required

standards, the medical community causes injury or death to the patient in

most cases involving medical error. Ever since the formation of human

history, the inherent sickness in one form or the other and mortality of

human beings have made the diagnosis and treatment of diseases

pertaining to human race is a high-risk profession. The professional risk

relating to physical retribution to the physician has been replaced by the

modem risk of economic compensation for the harm occurred. One of the

most important aspects of any profession is the degree of excellence,

which a person practicing that profession can give in his service. It is not

at all accepted that each and every professional man would deliver the

service in the same expertise or vocation or a particular line of

personalized and highly skilled practice. Professional Negligence rather

Medical Negligence is the term suggests and relates to the medical

profession and is the result of some irregular conduct on the part of the
 6

profession or related service in discharge of professional duties. Relating

to professional or medical negligence, it is a sub branch of Negligence. It

deals with situations in which a physician or surgeon or other member of

the medical profession may have to pay compensation, if he has not

exercised reasonable care. The degree of care to be exercised depends on

the facts of each case. However, in general, it may be stated that the test is

the standard of the ordinary skilled man, exercising and professing to

have that special skill. If a medical man fails to measure up to that

standard in any respect, he has been negligent and has to pay

compensation to the person harmed by him. In the present medical

profession has reached new horizons, facing many ethical and legal

challenges in the practice of the profession. Doctor -patient relationship is

changing swiftly and adversely. In earlier days, the patient has full faith in

his treating Doctor, and now suspect's negligence as a cause of his

sufferings. The negligence of the doctor is due to commercialization of

modem medical practice, ignorance towards medical ethics. Zero

tolerance and high expectation of patients, inclusion of health care

services within the ambit of Consumer Protection Act. It has ultimately

created such a vicious circle which is manifesting as an ever increasing

incidence of litigation against the doctors and hospitals. No doctor can

afford to remain ignorant to the Ghost named “Medical Negligence or

Malpractice.” A patient approaching a doctor / hospital expects the

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best medical treatment available at any comer of the globe and in case the

results are not favorable, considers medical negligence as a sole culprit.

On the contrary, actual status regarding medical negligence is clear from

various leading judgments on medical negligence. Doctors have legal

duties to comply with, in their daily practice. Ignorance of law will be

detrimental to the practitioners even if they are treating the patient in

good faith. In the case of Bolam Vs. Friem Hospital Management

Committee5 wherein Judge MC Nair J. has stated medical negligence as-a

man need not possess the highest expert skill at the risk of being found

negligent. It is well-established law that it is sufficient if he exercises the

ordinary skill of an ordinary competent man exercising that particular art.

Counsel for the plaintiff put in this way, that in the case of a medical man,

negligence means failure to act in accordance with the standards of

reasonably competent medical men at that time. That is a perfectly

accurate statement, as long as it is remembered that there may be one or

more perfectly proper standards; and if a medical man conforms to one of

those proper standards then he is not negligent. A doctor is not guilty of

negligence if he has acted in accordance with a practice accepted as

proper by a responsible body of medical men skilled in that particular art.

Negligence as a tort i.e„, a wrong done by one person to another6 The

5 (1957) 2 All ERl 18

6 DrJagdishSingh&VishwaBhushanMedicalNegligenceCompensation, ThirdEdition2007
 8

medical term has been defined as “a mistake by a medical practitioner

whom no reasonably competent and careful practitioner would have

committed. In the case of A.S. Mittal vs. State of Uttar Pradesh.*7 A

charity eye -camp was conducted to do cataract surgery. Several people

i.e. 84 people became blind in the operated eye. Central Government laid

down certain guidelines in the wake up of Medical mishap irreparable

damage had been done to the eyes of some of the patients who were

operated upon at an eye camp due to the negligence of the Medical staff

which is a Tort. ‘ On humanitarian consideration, State Government

granted interim relief and in addition to that, paid an amount to each of

the victims. The matter was brought before Supreme Court in the form of

public interest Litigation under Article 32 by two social activists Sri

A.S.Mittal and Sri Om PrakashTapas on behalf of Union for Welfare and

Human Rights of U.P. The most comprehensive definition is to be found

in the case of Laxman B. Joshi vs. T.B. Godbole8 where the case is(a)

under Fatal Accident Act,1855-Sectionl-A-Negligence of doctor causing

death-Liability to pay damages (compensation) (b) Tort—Medical

Negligence — Duties of a doctor towards his patient- doctor reducing

fracture without giving anesthesia resulting in death of patient due to

BharatLawPublicationsSyn.3-2 page31

7 JT1989 (2) SC 419:AIR 1989 SC1570

8 Reported in AIR 1969 SC 128.:1968ACJ183:1969(1)SCR206
 9

shock — Held negligent- Liable for damages. The judge said that “The

duties which a doctor owes to his patient are clear. A person who holds

himself ready to give medical advice and treatment impliedly undertakes

that he has possessed the skill and knowledge for the purpose. Such a

-person when consulted by a patient owes him certain duties9 viz., a duty

of care in deciding whether to undertake the case, a duty of care in

deciding what treatment to give or a duty of care in the administration of

that treatment. A breach of any of those duties gives a right to the patient

for the negligence of the doctor. The medical practitioner must bring to his

task a reasonable degree of skill and knowledge and must exercise a

reasonable degree of care. A physician prescribing drugs with dangerous

side effects without informing the patient the risk of the side effects and

without carrying out the recommended tests in order to discover whether

side effects are happening, is guilty of carelessness in exposing the patient

to the risk of suffering from those side effects of the drugs. Lord Wright

points out “Negligence means more than headless or careless conduct,

whether in omission or commission; it probably connotes the complex

concept of duty, breach and damage there by suffered by the person to

whom the duty was owing”.

9 Halsbury’sLaws of England,3rd edn,vol.26p.l7(parall)

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LEGAL INTERPRETATION OF NEGLIGENCE10

Negligence11* is an attitude of mind. It consists in the omission to do

something which a prudent man would do or in doing something which a

prudent man would not do12. It includes both the sins of commission and

omission. It excludes intention. In fact, absence of intention is the essence

of negligence. Intention is not an element of negligence. Both are

mutually exclusive. It is the absence of intention that distinguishes

negligence from other torts. The presence of intention converts the act

into one of the violence, aggression, fraud or design. Good intentions

furnish excuse for negligence. The fact that an act or omission is

inadvertent which does not take away its negligent character.

Premediation has no place in negligence. On the other hand, intention

connotes a state of affaire in which the doctor decides to bring about a

result by his own act of violation. One cannot said to have intended a

result which is wholly beyond the control of his will. Incompetency and

negligence are not synonyms. One can be competent but be negligent.

Incompetency itself constitutes negligence. Incompetency is the want of

ability and skill suitable to the task either with respect to natural qualities

or experience; deficiency of disposition to use one’s ability and

10 G. Ram lingam, Medical Negligence: A Legal War, 1993. Page : 342

11 YEtukuri.Venkateswara Rao-Law relating to Medical NegligencelstEdition2006chap.l,page.l

12 Black’s Law Dictionary, 6th Edn.

 11

experience properly and it connotes the converse of reliability. It includes

something more than physical and mental attributes and want of

qualifications generally such as habitual carelessness, disposition and

temperament a) Existence of negligent act b) Breach of Legal Duty c)

Damage Caused. “Negligence13 is the omission to do something, which a

reasonable man guided upon those considerations, which ordinarily

regulate human affairs, would do or doing something, which a prudent or

reasonable man would not do”.

Negligence and Malice14

Negligence is not malice. Malice arises for some purpose which is absent

in negligence. Malice arises from evil motives or purpose. Negligence

arises from the failure of purpose, whereas malice is imputable to the

defect of the art and negligence to the defect of the intellect.

Fraud and Negligence

Fraud imports design and purpose. Negligence imports that one is acting

recklessly without a design. What a man does through negligence is not

done through fraudulent motive. The emphasis has been on professional

ethics and peer-group justice. For a long-long time, society was

13 DrJagdishSingh&VishwaBhushanMedicalNegligenceCompensation,

ThirdEdition2007 BharatLawPublicationsChap.3,page30

14 www.businessdictionary.com
 12

reasonably well served by the profession without having recourse to

ordinary law to correct professional misconduct or culpable behavior.

Wilful Negligence

This is the act which is done deliberately and intentionally and not by

accident or inadvertence. An act or omission to do an act is willful when

the person who acts or omits to act knows what he is doing and when he

is reckless in the sense of not caring whether his act or omission of act is

or is not a breach of his duty. A willful act which amounts to negligence

is not wilful negligence unless there is a will to be negligent.

Mala fides

This is the opposite sense of good faith. A thing is said to be done in

good faith, when it is in fact done honestly, whether it is done negligently

but, according to Section 52 of the BPC. “Nothing is said to be done or

believed in good faith which is done or believed without due care and

attention.” These two definitions approach the question from different

standpoints. According to the first definition “honest blunder19 will be

deemed to have been done in “good faith”. According to the second

definition, an “honest blunder” will never be considered to have been

done in “good faith”. The first condones negligence and carelessness if

 13

there is honest blunder; but for the second, honesty is immaterial and

presence of care is the only criteria. Mala tides implies much more than

of good faith. It imports the notion of design and purpose. In this sense,

negligence which is action without design differs from mala fides.

Negligence is an evidence of mala fides, but is not the same thing.

Gross Negligence15

It is a high degree of careless conduct. It is nothing more than ordinary

negligence. Degrees of negligence - gross negligence - ordinary

negligence - slight negligence - all these three correspond to gross

carelessness, ordinary carelessness and slight carelessness.

Culpable negligence and gross negligence

They are not synonymous. Both are high degrees of negligence; but the

former involves the idea of recklessness while the latter does not. For

purposes of criminal negligence there are degrees of negligence. Culpable

negligence amounts to criminal negligence.

Negligence and carelessness

The two are not synonymous. Negligence has a much broader meaning in

law. Every careless act is not a negligent act. In cases of negligence, the

party fails to perform an act to which he is obliged, i.e., he breaks a

15 Black’s Law Dictionary, 6th Edn.

 14

positive duty. In negligence, the party does an act which he is ignoring his

responsibility i.e., he breaks a negative duty. He does advert to the

consequences of the act. In rashness, he adverts to the consequences of

the act but by reason of some assumption which he assumes on

insufficient grounds concludes that those consequences will not follow his

action. In negligence the party not at all adverts to the consequences of his

own act. Recklessness is the conduct amounting to more than negligence

because it is characterized by wilfulness. Negligence is characterized

mainly by inadvertence, thoughtlessness, inattention and the like.

Inadvertence, a chief characteristic of negligence, it is nothing more than

oversight or want of attention in which there is complete lack of

consciousness of the consequences of the act or omission. The party not

only does not intend the consequences but does not even advert to them,

i.e., the possibility or probability of their happening does not occur to his

mind. In negligence, the consequences are clearly foreseen or will be

deemed to have been foreseen, though not wilful action. The wrong doer

may not intend or desire the consequences; he may be perfectly conscious

of the risk.. The negligent person does not intentionally cause the harm;

but he intentionally and consciously exposes others to the risk of it - an

attitude of mental indifference to obvious risks. He simply trusts in the

chapter of accidents or in the act of some third person to save him from

the consequences.
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Actionable negligence

There must be three ingredients for an action to become liable in law. a)

There must be a duty of care; b) Breach of that duty c) Damage as a result

of breach of that duty. All the 3 ingredients must be present and proved

before an action for negligence. It can become actionable only when all

the 3 elements are present and proved. No man can be punished for mere

lack of care. For negligence, to become actionable, it must result in injury.

In the first instance lack of care involving breach of duty and this must

lead to injury or damage. Mere negligence which is not followed by

injury or damage is not actionable in law. Actionable negligence is found

both in common law and statutory law, i.e., for breach of duty imposed by

common law and statutory law. A negligent act has been defined as failure

to exercise the degree of care required by law, care consistent with the

physician’s achievement in his specialty. The surgeon is liable for his

mistake of judgment constitutes negligence. The surgeon is also liable if

he fails to observe plain physical laws, or physical facts which are

governed by ordinary principles of intelligence. If a surgeon persists in

the case of anesthesia after a warning which would impel one of the

reasonable prudence to resist, he should be answerable for the

consequences; each negligent act is answerable for his own conduct. In

addition the doctor is answerable for the wrongful and negligent acts of

the other. He has to observe that in exercise of reasonable care, he should

observe without objection. The patient looks to surgeon for relief of his

condition. The surgeon should answer the patient

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or his relatives for mistakes or for untoward happenings. So far as these

two theories are concerned, the objective theory is regarded as an

appropriate and acceptable one. Negligence was made as an independent

or specific tort in the early 20th Century.

NEED FOR THE STUDY

Medical professionals are expected to exercise and provide reasonable

degree of skill and knowledge and also exercise reasonable degree of care

in treating patients. If otherwise, a medical man, rendering service for

consideration, is liable under the Consumer Protection Act, 1986, for his

medical negligence. A standard of reasonable care is required by the

medical practitioners. In the case of Dr. Sr. Louie Sr. Smt. Kannabil

Pathamma and another16, for establishing negligence in diagnosis or

treatment on the part of the doctor before Consumer Forum, the test is

whether the doctor has been proved to be guilty of such failure as no

doctor of ordinary skill could be guilty of it acting with reasonable

care.As the field of medicine is also growing fast with all other fields of

modem world, it is very much needed even to common man to be

conscious of treatment by the hospitals, which are now-a-days growing

tremendously. The law on medical negligence is a weapon in the hands of

a patient who suffers from the negligent treatment of Medical

Practitioners. The medical professionals start their career in good

16 1993(1),CPR 422; 1(1993)CPJ30(NC)

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neighbor-hood and good homes, well educated with some idealism and

get into peculiar business situations in which criminality is particularly a

routine way of life and social disorganization in the community.

However, to make awareness of the concept of Medical Negligence to the

readers, legislators, judicial people, doctors or whoever may be, the

scholar has chosen this topic.

OBJECTIVES OF THE STUDY

1. To analyze civil and criminal implications of medical negligence, the

law related to both the proceedings as there is difference between both

the implications being prosecuted for medical negligence. There is need

for statutory rales to clearly judge the liability of a doctor.

2. To get awareness about the laws which are providing remedies for civil

cases under Law of Torts and criminal cases under Criminal Procedure

Code.

3. To get awareness about the rules framed to decide a case of medical

negligence which depends upon the different doctrines set by precedents.

4. To study the evolution of law relating to the Medical Negligence.,

and

to study the forms and the components of Negligence.

 18

5. To study the law of Medical Negligence under the Consumer

Protection Act, 1986,and the Amended Act.(2002)Consumer

Regulations,2005.

6. To study what is the liability of the Doctors in the context of Medical

Negligence

7. The Judgments for liability of the Doctors for Medical Negligence by

The District Consumer Forum, and The Judicial proceedings of State

Commission, National Commission and the Supreme Court. .

8. Safeguards to the Doctors and other related Laws.

9. To summarize the findings of the study and to make suggestions to the

Judiciary, Government and Indian Medical Association for the effect

implementation of the law of Medical Negligence.

HYPOTHESIS

Keeping the above objectives in view the fallowing hypothesis are

formulated.

1. If a doctor commits negligence related to his duty to the patient then

the damage will occur to the patient. This statement contains the

words IF and THEN.

2. The law on medical negligence has to be improved by the

legislature so that it can lessen the burden of proof on the

complainant.
 19

3. Judicial contribution on Law of Medical Negligence is so minimal

and judicial pronouncements have little impact on the medical

practitioners, who are negligent.

4. Law of medical negligence should be improved in relation to the

medico legal terms so that the medical practitioners should have the

awareness of it

5. Though, there are bundles of law already existing on the medical

negligence the doctor is not able to implement it strictly and there is

lack of commitment on the part of the doctor.

6. Indian Medical Council is also not actively implementing

measures to educate the medical practitioners on the law of medical

negligence in relevance to the Consumer Protection Act.

METHODOLOGY

The present study has been pursued by following the Doctrinal or

traditional or non-empirical legal method for research.

1. The Doctrinal research method has been carried out on a legal

proposition or propositions by way of analyzing the existing statutory

provisions and cases by applying the reasoning power.

2. The case laws decided by the Supreme Court and High Courts

which are binding on lower courts fall under the category of

precedents.
 20

3. The secondary sources like text books on law, commentaries do not

possess as much authority as the original sources possess. Hence,

quality of doctrinal research depends upon the sources of material

available from the various texts books, journals, decisions by courts

and internet sources on the medical negligence for the present study.

4. The doctrinal legal research attempts to verify the hypothesis by a

study of authoritative sources like law library, Judgments of different

Courts , Law Journals, Medical Reporters for the major portion of the

methodology concern with the identification of authoritative sources

and the techniques to find out. The problem posed by the gap between

the policy goal and the present state of achievement:

5. The study is mainly based on propositions and the sources of data

and the reports of Appellate Courts and conventional legal theory and

library references to analyze the contribution of judiciary

concentrating on the judgments given by the District Consumer

Forum.
 21

The topic is “The liability of Doctors for Medical Negligence - A study

with special reference to Consumer Protection Act, 1986” which includes

7 chapters of study.

TREATMENT OF THE TOPIC

Chapter -1 deals with Introduction, Legal interpretation of negligence,

Need for the present study, Objectives of the study, Hypothesis and the

type of Research Methodology adopted.

Chapter-H deals with Components and forms of Negligence such as

Professional Negligence, Essentials of Negligence, Types of Negligence,

Vicarious liability, Common categories of Medical Negligence, Legal

principles governing Medical Negligence, The Doctrine of Res-Ipsa-

loquitor, Acts of Omission & Commissions, Damages and Defenses

against Negligence.

Chapter-in deals with Medical negligence under the consumer protection

act 1986 such as the Scope of medical Negligence, Relevance of the
Consumer Protection Act - Medical Profession, Who is a Consumer?
What is service? What is deficiency? Three tier System, Jurisdiction,
Who can file a complaint? Limitations, Appeal and Revision and The
Amendment Act ( 2002).

REGULATIONS, 2005
 22

Chapter - IV deals with Medical Negligence and the Liabilities of the

Doctors, The Patient's Rights as Consumer, Doctor-Patient Contract,

Medical Negligence of Doctors (Common types), Duties of a Doctor,

Defense Available To Doctor/Hospital, Check list for Doctors, Don'ts

for Doctors, Common Errors by Doctors and Hospitals, Dos for Patients

/ Attendants, Don’ts for Patients/Attendants, A patient's precautions for

planning a medical treatment, Safeguards for Doctors, Indian Medical

Council Regulations, 2002, Other Related Laws.

Chapter-V deals with Judgments given by the District Consumer Forum,

Guntur.

Chapter - VI deals with Judicial Pronouncements regarding Medical

Negligence, Judicial Proceedings for Medical Negligence given by State

Commission, National Commission and The Supreme Court.

Chapter-VII deals with Conclusion, Testing of Hypothesis, Summarizing

the Findings (Research), Restatement of Aims (Research), Significance

of the Findings (Research Contribution), Suggestions, Recommendation

for Further Work (Research).

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