MEDICAL

NEGLIGENCE IN
INDIA & THE
LAWS RELATING
TO MEDICAL
MALPRACTICE

Submitted to:- Dr. Ghulam Yazdani

Submitted by: Manvendra Pratap Singh, 4th Year, Sec ASession 2013-2016
Chapter I

Introduction to the Concept of Medical Negligence

According to present legal position, a medical practitioner is not liable to be

held negligent simply because things went wrong from mischance or misadven-
ture or through an error of judgment in choosing one reasonable course of
6
treatment in preference to another. He would be liable only where his conduct
falls below that of the standards of a reasonably competent practitioner in his
field. For instance, the surgeon is liable, if he leaves surgical gauze inside the
7
patient after an operation.

There may be few cases where an exceptionally brilliant doctor performs an

operation or prescribes a treatment which has never been tried before to save
the life of a patient when no knowable method of treatment is available. If the
patient dies or suffers some serious harm, should the doctor be liable? In such
8
situation he should not be held liable. Science advances by experimentation,
but experiments sometimes end in failure e.g. the operation on the Iranian Sia-
mese twins or the first heart transplant by Dr. Barnad in South Africa. In such
cases it is advisable for the doctor to explain the situation to the patient and
9
take his written consent.

The word health is changing in its contents radically after the World Health
Organisation defined the term positively as a state of complete physical, mental
10
and social wellbeing, and not just the absence of diseases and wellness. As
per the Constitution of the World Health Organisation, everyone has a right to

6 Jacob Mathew vs State Of Punjab & Anr on 5 August, 2005

7 Bhishagratna, Kunja Lal; Sushruta Samhita, (1-2) edn., Calcutta (1907)
8 Hospital Administration And Human Resource Management 5Th Ed. By Sharma &
Goyal,
Sharma D. K., Goyal R; Page 528
9
T. Anandam And Others Nellore vs M/S. Yashoda Super Speciality on 25 March, 2009
10
Preamble to the Constitution of the World Health Organisation
 1
2

11
have the highest standard of Health. Such a fundamental right shall be availa-
ble to all without distinction of race, religion and political belief, economic or
social condition that health of all people is fundamental to the attainment of
12
peace and security. After the establishment of the World Health Organization,
the right to health care was recognized internationally, and various international
conventions recognized the importance of the right to health care. The objective
of the organization is declared as the attainment by people, of the highest pos-
13
sible level of health.

11 Supra.; Note 10
12
Article 22 and 25(1) of the Universal Declaration of Human Right; Article 16 of the African
(Banju) Charter on Human and people's rights, adopted on June 27,1981; Part 1. Article 11 of
European Social Charter,1961; Article 12 of the International Covenant On Economic, Social,
Cultural rights,1966; Article 11 of the American Declaration of the fights and Duties of Man,
adopted by the Ninth International Conference of American States,1948; Declaration 1 of the
International Conference of Primary Health Care, Alma-Ata 1978. The very existence of hu-
man being who are prone to sickness and diseases, very often depend on availability on effi-
cient health care services at the affordable cost.
13 Article 1 of the Constitution of the World Health Organisation
 13

Meaning of Breach of Duty & Care

The question of professional duty to take care of health has immense signifi-
cance in the present day world. The WHO is committed to provide health for
all. The Directive Principles of State Policy under the Constitution of India
demands the State to make effective provision for public health, and for just
14
and humane conditions of work.

It is the primary duty of the State to raise the level of nutrition, the standard of
15
living of its people and the improvement of public health. The Supreme Court
has declared that right to medical aid as an integral part of the right to life. It is an
16
obligation on the State to preserve life by extending required medical assis-tance.
In fact the Apex Court has held that right to health and medical care is a
17
fundamental right under the Constitution of India. On jurisprudential analy-sis of
this issue, it is clear that it has become a socio-legal problem.

A person, who holds himself out as ready to give medical advice or treatment,
impliedly undertakes that he is possessed of skill and knowledge for the pur-
pose. Such a person whether he is a registered medical practitioner or not., if he
is consulted by a patient he owes the patient certain duties namely a duty of
18
care in administration of the treatment. A breach of any of these duties will
19
support an action for negligence by the patient.

This principle has also been followed by the Hon'ble Supreme Court in Phillips
20
India Lev. Kunjupunnu and others, relying on English decisions. Similar is

14 Article 41 and 42 of the Constitution of India

15 Article 47 of the Constitution of India
16 State of Punjab v. Mahinder Singh Chawla,; AIR 1997 SC 1225.
17 Paramanand Katara v. Union of India,; AIR 1989 SC 2039;
18 Consumer Education and Research Center v. Union of India,; AIR 1995 SC 1922;
19 The Practice of Uncertainty: Voices of Physicians and Patients in Medical Malpractice Claims
by Stephen L. Fielding
20
Phillips India Lev. Kunjupunnu,; AIR 1975 Bom.306
 14

21
the view of Madhya Pradesh High court in Shrivastava v Rarnbiliarilal and
others. It would appear from the above line of decisions that our courts have
mostly relied on English decisions.

Therefore the essential ingredients of actionable negligence in medical profes-

sion are:

(1) Existence of duty to take care whether it is so or not depends on the ques-
22
tion of proximity

(2) Breach of duty to take care

(3) The breach of duty must cause the injury or loss to the defendant

For the analysis of these three components, comprehensive information regard-

ing duty of care, Breach of Injury and duty of care arising out of breach of duty
of care is needed.

Diagnosis of the patient is the yew basis upon which whole of the treatment has
to be carried out; mistaken diagnosis may result in wrong prescription, and
wrong treatment causing harm or injury to the patient. Hence, failure to diag-
23
nose the patient properly amounts to negligence. But medical practitioners
are not infallible. Even a very highly qualified and experienced person may
commit mistake in diagnosis, hence for every mistake in diagnosis he is not to
be held liable. He can be liable, where he fails to do according to the reasonable
24
stand-ard of care.

Mistaken diagnosis is not necessarily negligent diagnosis, unless the symptoms

are so apparent that any reasonably competent and skilful physician could say

21 Shrivastava v Rarnbiliarilal ; AIR (1982) M.P.132

22 Donoghue v. Stevenson, (1932) A.C. 31.H.L. proximate cause of the harm What is
proximate is "that because of convenience of public policy or a rough sense of justice the law
arbitrarily declines to trace a series of events beyond certain point quoted in Fleming, John
G., "Law of Torts" 5th Edn., Sydney p.190.
23 Gold v. Haringey Health Authority, (1987)
24 Supra., Note 1
 15

that 'this is disease'. Diagnosis must also be judged in relation to development

in science of medicine at that time. If he fails to observe the later developments
and adheres to original mistaken diagnosis, he may be held to have been negli-
25
gent.

The justification in pleading that some other doctor could have done better
doesn’t form ground for litigation. The standard of care is adaptable and
flexi-ble to circumstance as the same standard of skill or competence is not
expected of every medical man. Therefore standard of responsible care cannot
be defined with mathematical precision. Reasonableness of care depends on
numerous factors like advancement of science of medicine, time, place and
experience etc. It must be the standard of care and skill, which any medical
man exercising the professional skill ought to observe.

Medical practitioner 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 act, merely because there was a body of opinion that would
take a contrary view.

Thus the judicial decisions affirm that the standard of care required of medical
man is that of the average practitioner of the category (e.g.: Allopathic, Ho-
moeopathic, Ayurvedic, etc.) to which the negligent practitioner belongs. As
already noted, fair and reasonable standard of skill and competence is variable
because some people may be more skilled and some may have only the lowest
26
standard of skill and competence.

In Jaiprakash Saini v. Director Rajiv Gandhi Cancer Institute & Research

27
Center, it has been held that in order to decide whether negligence is estab-
lished in any particular case, the alleged act or omission or course of conduct,
complained must be judged not by ideal standard nor in the abstract but
against the background of circumstances in which the treatment in question
was given and the true test for establishing negligence on the part of a doctor
is

25 Maynard v. West Midlands Regional Health Authority, (1985)

26 Bolam v. Friern Hosp. Management Committee, (1957)
27 Jaiprakash Saini v. Director Rajiv Gandhi Cancer Institute & Research Center,;
2003 (2) CPR.205.
 1
6

that whether a doctor of ordinary skill would be guilty if acting with reasonable
care. Merely because a medical procedure fails it cannot be stated that the
medical practitioner is guilty of negligence unless it is proved that the medical
practitioner did not act with sufficient care and skill and the burden of proving
the same, rests upon the person who assists it. So the duty of a medical practi-
tioner arises from the fact that he does something to a human being, which is
likely to cause physical damage unless it is done with proper care and skill.

Chapter 3

Laws Relating to Medical Negligence

With the Consumer Protection Act, 1986 coming into effect, a number of pa-
tients have filed cases against doctors. Public awareness of medical negligence
in India is rapidly growing. Hospital’s managements are increasingly facing
complaints regarding the facilities, standards of professional competence, and
the appropriateness of their therapeutic and diagnostic methods. After the Con-
sumer Protection Act, 1986 has come into force patients filing legal cases
against doctors, have established that the doctors were negligent in their medi-
cal service, and have also claimed and received compensation. Therefore, a
number of legal decisions have been made on what constitutes negligence and
40
what is required to prove it.

Persons who offer medical advice and treatment implicitly state that they have
the required skill and knowledge to do so, that they have the skill to decide
whether to take a case, to decide the treatment, and to administer that treatment.
This is referred as an “implied undertaking” on the part of a medical
profes-sional. In the case of the State of Haryana vs Smt Santra, the
Supreme Court held that every doctor “has a duty to act with a reasonable
degree of care and skill” 41
Doctors in India may be held liable for their services individually or vicariously
unless they come within the exceptions specified in the case of Indian Medical
42
Association vs V P Santha. “Doctors are not liable for their services indi-
vidually or vicariously if they do not charge fees. Thus free treatment at a non-
government hospital, governmental hospital, health centre, dispensary or nurs-

40 Indian Journal of Medical Ethics, Volume 3, No 4 of 2007

41 State of Haryana vs. Smt. Santra (2000); 5 SCC 182, AIR 2000 SC 3335
42 Indian Medical Association vs V P Santha; AIR 1996 SC 550
 22

ing home would not be considered a “service” as defined in Section 2 (1) (0)
of the Consumer Protection Act, 1986.”

Having said that, no human being is perfect and even the most renowned spe-
cialist can make a mistake in detecting or diagnosing the true nature of a dis-
ease. A doctor can be held liable for negligence only if one can prove that he is
guilty of a failure, which no doctor with ordinary skills would be guilty of he
43
had acted with reasonable care. An error of judgement constitutes negligence
only if a reasonably competent professional with the standard skills that the
defendant professes to have, and acting with ordinary care, would not have
44
made the same error.

In a key decision on this matter in the case of Dr Laxman Balkrishna Joshi vs

Dr Trimbak Bapu Godbole, the Supreme Court held that “if a doctor has
adopted a practice that is considered “proper” by a reasonable body of medi-
cal professionals who are skilled in that particular field, he or she will not be
held negligent only because something went wrong.”

45
Doctors have an obligation to exercise an ordinary degree of skill. But, they
cannot give a warranty of the perfection of their skill or a guarantee of cure. If
the doctor has adopted the right course of treatment, if the doctor is skilled and
has worked with a method and manner best suited to the patient, he cannot be
46
blamed for negligence if the patient is not fully cured.

43 Observations of Lord President Clyde in Hunter vs Hanley (1955) SLT 213 In:
Nathan HL. Medical Negligence; London, Butterworths; 1957
44 Whitehouse vs. Jordan (1981) 1 All ER 267 the House of Lords
45 Smt J S Paul vs Dr (Mrs) A Barkataki (2004); 10 CLD 1 (SCDRC - MEGHALAYA)
46 Dr Prem Luthra vs Iftekhar (2004); 11 CLD 37 (SCDRC - UTTARANCHAL)
 23

Certain set of conditions must be satisfied before liability can be considered.

The person who is accused must have committed an act of omission or com-
mission; the said act must have been in breach of the person’s duty; and
which must have caused harm to the injured person. The complainant should
prove the allegation against the doctor by citing the best evidence available in
47
medical science and presentation by way of expert opinion.

The complainant in some situations can invoke the principle of res ispa loquitur
or “the thing speaks for itself”. In certain circumstances no proof of negligence

is required beyond the accident itself. The National Consumer Disputes Re-
dressal Commission applied this principle in Dr Janak Kantimathi Nathan vs
48
Murlidhar Eknath Masane.

49
The principle of res ipsa loquitur comes into operation only when there is
proof that the occurrence was unexpected, that the accident could not have
happened without negligence and lapses on the part of the doctor, and that the
circumstances conclusively show that the doctor and not any other person was
negligent.

Section 304A of the Indian Penal Code of 1860, Causing death by negli-gence.
—Whoever causes the death of any person by doing any rash or negli-gent act
not amounting to culpable homicide, shall be punished with imprison-ment of
either description for a term which may extend to two years, or with fine, or
with both.

47 Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole ; AIR 1969 (SC)128

48 Dr Janak Kantimathi Nathan vs Murlidhar Eknath Masane of 2002 ; 2002 (2) CPR 138
49 Latin for "the thing speaks for itself," a doctrine of law that one is presumed to be
negligent if he/she/it had exclusive control of whatever caused the injury even though there
is no spe-cific evidence of an act of negligence, and without negligence the accident would
not have happened. Examples: a) a load of bricks on the roof of a building being constructed
by High-rise Construction Co. falls and injures Paul Pedestrian below, and Highrise is liable for
Pedes-trian's injury even though no one saw the load fall. b) While under anesthetic, Isabel
Patient's nerve in her arm is damaged although it was not part of the surgical procedure, and
she is unaware of which of a dozen medical people in the room caused the damage. Under
res ipsa loquitur all those connected with the operation are liable for negligence.
 2
4

In Poonam Verma vs Ashwin Patel the Supreme Court distinguished between

50
negligence, rashness, and recklessness. A negligent person is one who inad-
vertently commits an act of omission and violates a positive duty. A person who
is rash knows the consequences but foolishly thinks that they will not oc-cur as
a result of her/ his act. A reckless person knows the consequences but does not
care whether or not they result from her/ his act. Any conduct falling short of
recklessness and deliberate wrongdoing should not be the subject of criminal
liability.

Thus a doctor cannot be held criminally responsible for a patient’s death unless

it is shown that she/ he was negligent or incompetent, with such disregard for
51
the life and safety of his patient that it amounted to a crime against the State.

Sections 80 and 88 of the Indian Penal Code contain defences for doctors ac-
cused of criminal liability. Under Section 80 Accident in doing a lawful act.—
nothing is an offence which is done by accident or misfortune and without any
criminal intention or knowledge in the doing of a lawful act in a lawful manner
by lawful means and with proper care and caution.

According to Section 88, Act not intended to cause death, done by consent in good
faith for person’s benefit.—Nothing which is not intended to cause death,
is an offence by reason of any harm which it may cause, or be intended by the
doer to cause, or be known by the doer to be likely to cause, to any person for
whose benefit it is done in good faith, and who has given a consent, whether
express or implied, to suffer that harm, or to take the risk of that harm.

Chapter IV

Enforcement Machineries
The civil liability is enforced through the civil court system and consumer lia-
bility is enforced through the consumer court. The common law enforcement
under Tort law is being discussed below.

Enforceability under Tort Law

The damages are awarded by the Civil Court, and each and every suit shall be
instituted in the Court of the lowest grade competent to try it. A suit for com-
pensation may be instituted at the option of the plaintiff either in the court with-
in the local limits of whose jurisdiction the wrong is done, the cause of action
arises or in the court within the local limits of whose jurisdiction the defendant
resides, or carries on business, or personally works for gain. A huge amount of
court fee is required to be paid in any suit for compensation on the allegation of
medical negligence. Moreover a much quicker and cheaper remedy is available
to the consumer of medical service under different Consumer Disputes Re-
dressal Agencies established by the Consumer Protection Act 1986.Another
common law enforcement system is through the Criminal Court.
 30

Enforcement of Criminal Liability

Criminal Liability is mainly enforced though the criminal court with respect to
the provisions of Indian Penal Code and Criminal Procedure code. The extent
of liability in tort depends on the extent of darn ages, but the extent of liability
in criminal law depends on the amount and degree of negligence. Now unliqui-
dated damages are awarded in criminal liability.

This distinction between tort and crime has been reduced in England by giving
power to the criminal courts to award compensation to the victims while pass-
ing judgment of conviction. By way of interpretation of section 357 of the Code
of Criminal Procedure 1973, the Supreme Court has observed that the Criminal
Court may order the accused to pay some amount by way of compensation to
victim who has suffered by action of the accused.

It may be noted that this power of criminal courts to award compensation is not
61
ancillary to other sentence, but it is in addition thereto. In Harikrishnan's case
the Supreme Court has directed all criminal courts to exercise the power of
awarding compensation to victims of offences in such a liberal way, that the
victims or their legal heirs may not have to rush to the civil court for compensa-
62
tion.

By authorizing the Criminal Courts to award compensation on consideration of

the nature of the crime, justness of claim of the victim, and ability of the ac-
cused to pay, the distinction between tort and crime has been reduced to a large

61
Hari Kishan & Anr vs Sukhbir Singh & Ors; AIR 1988 SC 2127
62 What Is Medical Negligence? When and How to File a Case pertaining to
Medical Negli-gence? available at vakilno1.com
 3
1

extent, that the degree of negligence in Criminal liability is higher than that of
negligence in tortious liability. But when we discuss Negligence in the context
63
of criminal liability the expression Mens Rea becomes relevant.

63 Mens Rea: Intention, Recklessness, Negligence and Gross Negligence, last visited
on 28th March 2015, available at
https://bookshop.blackwell.co.uk/extracts/9780199228287_loveless.pdf
 3
2

Mens Rea in Negligence

The expression Mens Rea is used to mean the mental state expressly or im-pliedly
mentioned in the definition of crime charged. An act done doesn’t make a person
guilty unless the mind is guilty. The Mens Rea in criminal negligence was defined
64
by Lord Diplock in the following way "without having given any thought to the
possibility of there being such risk or having recognised that there was some risk
involved, had nevertheless gone on to take it"

In order for the act to amount to criminal rashness or criminal negligence one
must find out whether that rashness has been of such a degree that injury must
most likely to be occasioned thereby. The criminality lies in running the risk or
65
doing such an act with recklessness and indifference to the consequences.

64 R v. Lawrence (1981) ; 1 All ER 974, (1982) AC 510, (1981)2WLR 5249(HC)

65 Dr. Krishnaprasad vs State of Karnataka of 1989
 33

Enforcement Mechanism under Indian Consumer Protection

Act

The agencies which have been constituted under the Act for redressal of con-
sumer grievances are to adjudicate disputes at the district, State and National
level. The District Consumer Disputes Redressal Forum in each district of the
State established by the State Government is also known

as District Forum. It is the first court in the hierarchy. Then, there is State Con-
sumer Disputes Redressal Commission known as the State Commission, also
established by the State Government. In both the cases, the approval of the
Central Government is required. Finally, there is the National Consumer Dis-
pute Redressal Commission established by the Central Government. Esttblish-
ment of all the aforesaid various agencies have to be done by notification. In-
terestingly, all the States in the country did not achieve the distinction of having
a Forum in each and every district, thus time and again public spirited bodies
agitated the issue and appropriate directions were issued to the government
concerned.

It is pertinent to mention that the consumer agencies as constituted under the

Act are to comprise of one judicial member and others having adequate
knowledge or experiences of, or having shown capacity in dealing with prob-
lems relating to economics, law, commerce, accountancy, industry, public af-fairs
or administration, one of whom shall be a woman. To deal with cases of medical
negligence, expert knowledge of science is also required. It is advisa-ble that the
66
agencies should also have at least one medical man to adjudicate such disputes.
In the alternative, Forums can also try cases of medical negli-gence with a panel
of medical expert as a jury on special days in a week or month so fixed.

66 Section 10 of the Consumer Protection Act of 1986

Conclusion

Some plausible and effective measures to check malpractices so that propriety and
professional dignity is not put at stake; To start with, the Consumer Protec-tion Act and also
other related laws can be modified and reformed by integrat-ing crucial provision in it.

There should be mandated a scrutiny of all cases before the same is put into trial. The
scrutiny should be done by medical experts and only such cases which are prima facie act of
negligence, should be subjected to the summary jurisdiction of Consumer Forum. It should
be also fore-seen that while trying such disputes the Forum should comprise an addi-tional
member from the medical field so that the evidence is cited and judged in a proper
perspective.

Fixing one or two days in a month wherein the Forum would hear only cases of medical
negligence. The cases should be heard before a panel of medical experts who may act like a
jury. And in turn pronounce judgment on any issue of medico-legal importance.

It must be made obligatory on the part of medical men to maintain rec-ords of their indoor
patients for a period of three years. And furnish the same within 72 hours of being
demanded. The misunderstandings and misconceptions based on mistrust would be resolved
if medical records are provided to the patients or their descendants time.