SANT GADGEBABA AMRAVATI UNIVERSITY,

AMRAVATI

RESEARCH ARTICLE ON

MEDICAL NEGLIGENCE IN INDIA: A CRITICAL STUDY

THROUGH

DR.PANJABRAO DESHMUKH COLLEGE OF LAW,

AMRAVATI

(Research paper by Doctrinal method for the Academic Session

on 2017)

-Submitted by-
Mr. Abhijeet D. Vishwakarma
Researcher/Student
LLB.V Sem.
(3 Year Degree Course)
 MEDICAL NEGLIGENCE IN INDIA: A CRITICAL STUDY
Abstract
Medical negligence, now days have become one of the serious issues in India. Our experience
tells us that medical profession, one of the noblest professions, is not immune to negligence
which at times results in death of patient or complete / partial impairment of limbs, or
culminates into another misery. There are instances wherein most incompetent or ill/under
educated doctors, on their volition, have made prey the innocent patients. The magnitude of
negligence or deliberate conduct of the medical professionals has many times led to litigation.
The present paper aims to analyze the concept of negligence in medical profession in the light
of interpretation of law by the Supreme Court of India.

Introduction

Medical profession is the one of the noblest profession among all other profession in India.
For a patient, the doctor is like God. And, the God is infallible. But that is what the patient
thinks. In reality, doctors are human beings. And, to err is human. Doctors may commit a
mistake. Doctors may be negligent. The support staff may be careless. Two acts of
negligence may give rise to a much bigger problem. It may be due to gross negligence.
Anything is possible. In such a scenario, it is critical to determine who was negligent, and
under what circumstances.

In a country committed to the rule of law, such matters are taken to the court and judges are
supposed to decide. However, negligence by doctors is difficult to be determined by judges as
they are not trained in medical science. Their decisions are based on experts opinion. Judges
apply the basic principles of law in conjunction with the law of the land to make a decision.

Reasonableness and prudence are the guiding factors.

We would like to go through these principles in the light of some court judgments and try to
understand as to what is expected from a doctor as a reasonable person. As these issues are at
the core of medical profession and hospitals are directly affected by new interpretation of an
existing law regarding medical professionals, it is pertinent to deal with them at the
individual level of the doctor, and also at the employers level i.e., hospital.

Negligence

It is very difficult to define negligence; however, the concept has been accepted in
jurisprudence. The authoritative text on the subject in India is the Law of Torts by Ratanlal
and Dhirajlal. Negligence has been discussed as:

Negligence is the breach of a duty caused by the omission to do something which a

reasonable man, guided by those considerations which ordinarily regulate the conduct 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 use of ordinary care or skill towards a
person to whom the defendant owes the duty of observing ordinary care and skill, by which
neglect the plaintiff has suffered injury to his person or property.

The definition involves three constituents of negligence:

(1) A legal duty to exercise due care on the part of the party complained of towards the party
complaining the former's conduct within the scope of the duty;

(2) Breach of the said duty; and

(3) Consequential damage.

Essentials

In an action for negligence, the plaintiff has to prove the following essentials:

The defendant owed duty of care to the plaintiff;

The defendant made the breach of that duty;

The defendant suffered damage as consequence thereof.

Let us now discuss these essentials in details

1. Duty of care to the plaintiff:

It would be absurd to hold any person liable for his every careless act or even for every
careless act that causes damage. He may only be liable in negligence if he is under a legal
duty to take care. Legal duty is different from the moral, religious or social duty and
therefore, the plaintiff (consumer) has to establish that the wrongdoer owed to him a specific
legal duty to take care of which he has made a breach. A person is only required to meet the
standard of care where he has an obligation or a duty to be careful. Thus it may be said that
the duty is the relation between individuals who imposes upon one a legal obligation for
the benefit of other. Put in other terms the duty is an obligation, recognized by law, to
avoid conduct fraught with unreasonable risk of danger to others. Thus the existence of duty
towards the plaintiff becomes important factor for fixation of the liability of the tortfeasor.

2. Breach of Duty
The second important essential to hold the tortfeasor liable in negligence is that the defendant
must not only owe a duty of care to the plaintiff, but also he must be in breach of it. The test
for deciding whether there has been a breach of duty was laid down in oft-cited dictum of
Alderson B. In the above definition of the breach of duty, the emphasis is on the conduct of a
reasonable man which is a mythical creature of law whose conduct is the standard by
which the Courts measure the conduct of all other persons and find it to be proper or
improper in particular circumstances as they may exist from time to time. He does nothing
that a prudent man would not do and does not omit to do anything a prudent person would do.
He acts in accord with general and approved practice. His conduct is guided by
considerations which ordinarily regulate the conduct of human affairs. His conduct is the
standard adopted in the community by persons of ordinary intelligence and prudence. Thus
the standard of care to be in determining the breach of duty by the defendant, the courts are
guided by an objective standard whose degree would vary from case to case, i.e. higher the
magnitude of risk greater degree of standard of care would be needed. Further there are two
factors in determining the magnitude of risk, i.e.

(i) the seriousness or the gravity of the injury risked; and

(ii) the likelihood of the injury being in fact caused.

3. Breach of Duty must have caused the Damage:

The third and last essential of negligence is that the plaintiff is required to prove the causal
connection between the breach of duty and the damage, i.e. where some fault is attributed to
the defendant, the plaintiff must prove that the defendant was negligent. The same may be
seen in Madras High Court decision in Pandian Roadways Corp. v. Karunanithi. In this
case, three immature boys were riding a bicycle. On seeing some dogs fighting ahead, they
lost the balance and fell down. The driver of a bus saw the boys falling but did not
immediately apply the breaks, as a result of which the bus ran over the right arm of one of
those boys. The failure of the driver to stop the bus was held to be a clear case of negligence
on his part. However, if the plaintiff fails to prove negligence on part of the defendant, the
defendant would not be made liable. This situation may be explained by a case decided by the
House of Lords, wherein the court observed that:

the party seeking to recover compensation for damage must make out that the party against
whom he complains was in the wrong. The burden of proof is clearly upon him, and he must
show that the loss is to be attributed to the negligence of the opposite party. If at the end, he
leaves the case in even scales, and does not satisfy the court that it was occasioned by the
negligence or default of the other party, he cannot succeed.

Degree of Negligence

The Delhi High Court laid down in 2005 that in civil law, there are three degrees of
negligence25:

(i) lata culpa, gross neglect

(ii) levis culpa, ordinary neglect, and

(iii)levissima culpa, slight neglect.

Every act of negligence by the doctor shall not attract punishment. Slight neglect will surely
not be punishable and ordinary neglect, as the name suggests, is also not to be punished. If we
club these two, we get two categories: negligence for which the doctor shall be liable and that
negligence for which the doctor shall not be liable. In most of the cases, the dividing line
shall be quite clear, however, the problem is in those cases where the dividing line is thin.
Principals

According to the court, while deciding whether the medical professional is guilty of medical
negligence the following well-known principles must be kept in view:

1. Negligence is the breach of a duty exercised by omission to do something which a

reasonable man, guided by those considerations which ordinarily regulate the conduct of
human affairs, would do, or doing something which a prudent and reasonable man would not
do.

2. Negligence is an essential ingredient of the offence. The negligence to be established by

prosecution must be culpable or gross and not the negligence based upon the error of
judgment.

3. The medical professional is expected to bring a reasonable degree of skill and knowledge
and must exercise a reasonable degree of care. Neither 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 requires.

4. A medical practitioner would be liable only where his conduct fell below that of the
standards of a reasonably competent practitioner in his field.

5. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and
one professional doctor is clearly not negligent merely because his conclusion differs from
that of the other professional doctor.

6. The medical professional is often called upon to adopt a procedure which involves higher
element of risk, but which he honestly believes as providing greater chances of success for
the patient rather than a procedure involving lesser risk but higher chances of failure. Just
because a professional looking to the gravity of illness has taken higher element of risk to
redeem the patient out of his/her suffering which did not yield the desired result may not
amount to negligence.

7. Negligence cannot be attributed to a doctor so long as he performs his duties with

reasonable skill and competence. Merely because the doctor chooses one course of action in
preference to the other one available, he would not be liable if the course of action chosen by
him was acceptable to the medical profession.

8. It would not be conducive to the efficiency of the medical profession if no doctor could
administer medicine without a halter round his neck.

9. It is our bounden duty and obligation of the civil society to ensure that medical
professionals are not unnecessarily harassed or humiliated so that they can perform their
professional duties without fear and apprehension.

10. The medical practitioners at times have to be saved from such a class of complainants
which use criminal process as a tool for pressurizing the medical professionals/hospitals,
particularly private hospitals or clinics for extracting uncalled for compensation. Such
malicious proceedings deserve to be discarded against the medical practitioners.

11. The medical professionals are entitled to get protection so long as they perform their
duties with reasonable skill and competence and in the interest of the patients. The interest
and welfare of the patients have to be paramount for the medical professionals.

The court did not rest the case here, i.e. by laying down eleven principles for determining the
breach of duty by medical professionals/hospitals, but went a step ahead by observing that,
In our considered view, the aforementioned principles must be kept in view while deciding
the cases of medical negligence.

The court further adds a word of caution by stating that,

We should not be understood to have held that doctors can never be prosecuted for medical
negligence. As long as the doctors have performed their duties and exercised an ordinary
degree of professional skill and competence, they cannot be held guilty of medical
negligence. It is imperative that the doctors must be able to perform their professional duty
with free mind.

The above listing of basic principles with a direction that they must be kept in view while
deciding the cases of medical negligence reflects the judicial attitude of the honble apex
court. It may be noted that any decision, judgment passed by the Supreme Court becomes law
of the land and is automatically binding on all other lower courts in the country by virtue of
Article 141 of the Constitution of India.36 Thus the above principles must be taken as law
of the land on medical negligence.

Medical negligence - a civil wrong or criminal offence

The term negligence is used for the purpose of fastening the defendant with liability under
civil law (the law of torts) and, at times, under the criminal law. But often it is alleged by the
plaintiffs that negligence is negligence and that no distinction can be drawn between the two
so far as it relates to breach of his duty and resultant damage. Explaining the difference
between the two, Lord Atkin in his speech in Andrews v. Director Public Prosecution, stated:

Simple lack of care such as will constitute civil liability is not enough for purposes of the
criminal law there are degrees of negligence; and a very high degree of negligence is
required to be proved before the felony is established.

Thus for negligence to be an offence, the element of mens rea (guilty mind) must be shown to
exist and the negligence should be gross or of very high degree In Criminal law, negligence
or recklessness must be of such a high degree as to be held gross.

The apex court in Jacob Mathew v. State of Punjab, has explained that; the expression
rash and negligent act occurring in section 304-A of the I.P.C should be qualified by the
word grossly. To prosecute a medical professional for negligence under criminal law it
must be shown that the accused did something or failed to do something which in the given
facts and circumstances no medical professional in his ordinary senses and prudence would
have done or failed to do. The hazard taken by the accused doctor should be of such a nature
that the injury which has resulted was most likely imminent.39 From the above it may be
inferred that the distinction between civil and criminal liability in medical negligence lies in
the conduct of the doctor which should be of gross or reckless or of a very high degree.

Medical negligence and hospitals

Hospitals in India may be held liable for their services individually or vicariously. They can
be charged with negligence and sued either in criminal/ civil courts or Consumer Courts. As
litigations usually take a long time to reach their logical end in civil courts, medical services
have been brought under the purview of Consumer Protection Act,1986 wherein the
complainant can be granted compensation for deficiency in services within a stipulated time
of 90 -150 days.

Cases, which do not come under the purview of Consumer Protection Act, 1986 (e.g., cases
where treatment is routinely provided free of cost at non-government or government
hospitals, health centers, dispensaries or nursing homes, etc.) can be taken up with criminal
courts where the health care provider can be charged under Section 304-A IPC for causing
damages amounting to rash and negligent act or in Civil Courts where compensation is
sought in lieu of the damage suffered, as the case may be.

Liability of hospitals in cases of negligence

Hospitals liability with respect to medical negligence can be direct liability or vicarious
liability. Direct liability refers to the deficiency of the hospital itself in providing safe and
suitable environment for treatment as promised. Vicarious liability means the liability of an
employer for the negligent act of its employees. An employer is responsible not only for his
own acts of commission and omission but also for the negligence of its employees, so long as
the act occurs within the course and scope of their employment. This liability is according to
the principle of respondeat superior meaning let the master answer. Employers are also
liable under the common law principle represented in the Latin phrase, "qui facit per alium
facit per se", i.e. the one who acts through another, acts in his or her own interests. This is a
parallel concept to vicarious liability and strict liability in which one person is held liable in
Criminal Law or Tort for the acts or omissions of another. An exception to the above
principle is borrowed servant doctrine according to which the employer is not responsible
for negligent act of one of its employee when that employee is working under direct
supervision of another superior employee

[e.g. Where a surgeon employed in one hospital visits another hospital for the purpose of
conducting a surgery, the second hospital where the surgery was performed would be held
liable for the acts of the surgeon].
Direct liability

A hospital can be held directly liable for negligence on many grounds.

Failure to maintain equipments in proper working condition constitutes negligence. In case of

damage occurring to a patient due to absence/ non-working equipment e.g. oxygen cylinder,
suction machine, insulator, ventilator etc. the hospital can be held liable.

Failure to hand over copies of medical records, X-rays, etc., constitutes negligence or
deficiency in service6. In India, a provision in respect of medical records has been made in
The Indian Medical Council [Professional conduct, Etiquette and Ethics] Regulations 2002,
Regulations 1.3.1 and 1.3.2 which state that every registered medical practitioner has to
maintain medical records pertaining to its indoor or outdoor patients for a period of at least
three years from the date of commencement of treatment in the prescribed form given by
MCI and if any request is made for medical records either by patient/ authorized attendant or
legal authorities involved, the same may be duly acknowledged and documents be issued
within the period of 72 hours7. Also it must not be forgotten that it is the right of every
patient to obtain in writing about his/her medical illness, investigations and treatment given
on a prescription/ discharge ticket. Non-providing of medical records to the patients/
attendants may amount to deficiency in service under the Consumer Protection Act, 1986.

Improper maintenance of cleanliness and/or unhygienic condition of hospital premises

amounts to negligence. In Mr. M Ramesh Reddy v. State of Andhra Pradesh40 the hospital
authorities were held to be negligent, inter alia, for not keeping the bathroom clean [in this
case the bathroom was covered with fungus and was slippery], which resulted in the fall of an
obstetrics patient in the bathroom leading to her death. A compensation of Rs. 1 Lac was
awarded against the hospital.

A curious issue is that of liability in cases of polyclinics. Polyclinic means a place where
doctors of different specialties practice with common staff and other facilities. Since every
doctor is practicing individually, he would be responsible for his own negligence and not for
others. But a particular doctor may also be vicariously liable for negligence of staff of the
polyclinic, if the negligence occurs during the care of his particular patient in addition to the
polyclinic being held liable for the negligence of its staff. The other doctors may get involved
as partners of the polyclinic depending upon the agreement between them.

Where the ambulance service provider, usually a hospital, professes that the ambulance is
equipped with life-saving equipment and such equipment is either absent or non-functioning,
it is liable for negligence in case of a mishap. In the United Kingdom, even delay in arrival of
ambulance has been held negligent on the part of hospital as even a common man knows the
importance of properly equipped ambulance arriving on time in saving a life [Kent vs
Griffiths, (2002) 2 AII ER 474].

Levying of excess/ wrong charges is considered as deficiency of service and can be claimed
under Consumer Protection Act and in Civil Court. Charging for a bed facility which was not
provided, taking surcharges, amount taken as medicolegal charges etc. are examples where
hospitals can face litigations. A patient can file a complaint in Consumer Court if the hospital
charges fees in excess of that mentioned in the list of charges displayed or disclosed or agreed
upon.

With regards to HIV & HBsAg, most of the hospitals have made it mandatory to get all their
indoor patients investigated for HIV & HBsAg. These investigations are not a part of any
treatment and are done without prior consent of the patient. Carrying out such investigations
without the consent that too for reasons not related to the treatment of the patient can be
considered as unethical practice and either a complaint can be lodged with State Medical
Council or charges/ damages can be claimed through civil litigation or consumer forum. HIV
testing is either mandatory or voluntary. When testing is legally done without the consent of
the person, it is known as mandatory testing e.g., for screening donors of blood, semen,
organs or tissues in order to prevent transmission of HIV to the recipient of the biological
products. In all other circumstances, it has to be voluntary, i.e., with the knowledge and
express written consent of the person as it is necessary to respect the individuals need to
maintain confidentiality.

Hospitals can be charged with negligence for transmission of infection including HIV,
HBsAg, etc. if any patient develops such infection during the course of treatment in the
hospital and it is proved that the same has occurred on account of lapse on part of the
hospital.

As applicable to any other organization, hospitals too cannot blanketly refuse to give
employment on the basis of an individuals HIV status. It depends on what job a particular
person is to be employed for. A sero-positive individual can be employed if there is no
question of him/her coming in contact with patients or procedures that can result in spread of
infection. If any person on the rolls of a hospital is found to be sero positive or develops
AIDS, the hospital should review that persons staff privileges and determine whether or not
the medical condition interferes with the persons ability to perform on the job and whether
the condition creates a health risk to the patients. The Centre for Disease Control [CDC]
although does not advise that HIV positive individuals be routinely restricted from
performing surgery, it does recommend that the restrictions be determined on a case by case
basis. The employee could be given other duties in the hospital that involves lesser degree of
direct patient care or could be required to use extra safety precautions while dealing with
patients. There is no generally accepted medical evidence that HIV can be transmitted
through normal day to day contact in typical private workplace setting. The CDC has issued
guidelines that recognize that, with the exception of health care workers and personal service
workers who use instruments that pierce skin, no testing or restriction is indicated for workers
known to be infected with HIV but otherwise is able to perform their jobs. If any hospital
does not follow the guidelines and there results an infection of the patient, it can be held
directly responsible for negligence.

Misleading signboards, prescription slips and advertisements of hospitals can be construed as

deficiency in service or unfair trade practice under the Consumer Protection Act, 1986 and
damages can be awarded for such practices. Wrong claims of availability of certain facilities
like some hospitals claiming in their sign boards/ prescription slips that 24 hr emergency
services are available in their setup but in fact they lack basic emergency facilities like
services of a doctor round the clock, necessary equipment in working order, intensive care
facilities etc. construes negligence. Wrong depiction of qualifications of doctor like MD
[Gyn.] against a doctors name creating an impression and misleading the patients that the
doctor possesses PG degree in Gynecology whereas it was obtained from Germany and was
equivalent to MBBS as per rules of MCI may also be construed as negligence [1993 (1) CPR
422 (NCDRC)]. Claiming guaranteed results for operative procedures that do not give desired
outcome also amount to negligence.

Vicarious liability

A hospital can be held vicariously liable on numerous grounds on different occasions.

Several High Court Judgments have held hospitals vicariously liable for damages caused to
the patients by negligent act of their staff. In one judgment of the Kerala High Court in
Joseph @ Pappachan v. Dr. George Moonjerly, in support of the following effect stated that
persons who run hospital are in law under the same duty as the humblest doctor: whenever
they accept a patient for treatment, they must use reasonable care and skill to ease him of his
ailment. The hospital authorities cannot, of course, do it by themselves; they have no ears to
listen to the stethoscope, and no hands to hold the surgeons scalpel. They must do it by the
staff which they employ; and if their staffs are negligent in giving treatment, they are just as
liable for that negligence as anyone else who employs other to do his duties for him.

In another judgment by the Madras High Court in Aparna Dutta v. Apollo Hospitals
Enterprises Ltd.42, it was held that it was the hospital that was offering the medical services.
The terms under which the hospital employs the doctors and surgeons are between them but
because of this it cannot be stated that the hospital cannot be held liable so far as third party
patients are concerned. It is expected from the hospital, to provide such a medical service and
in case where there is deficiency of service or in cases, where the operation has been done
negligently without bestowing normal care and caution, the hospital also must be held liable
and it cannot be allowed to escape from the liability by stating that there is no master-servant
relationship between the hospital, and the surgeon who performed the operation. The hospital
is liable in case of established negligence and it is no more a defense to say that the surgeon
is not a servant employed by the hospital, etc.

There are many instances where a senior or super-specialist performs surgery in a centre
where such expertise is not locally available. After the surgery, the post-operative care is left
to the local competent doctor. Failure of the senior/ super specialist to personally supervise
the postoperative care may not constitute negligence provided the doctor to whom
responsibility of the post operative care lies is competent; same applying to a visiting
physician. It has been held by National Consumer Redressal Commission [1993 (3) CPR 414
(NCDRC)] that in case of the operation being performed in an institution, it is the duty of the
institution to render postoperative treatment and care to the hospitals patients. Quite often
foreign doctors undertake operations in India and it cannot be maintained that the post
operative care and treatment shall continue to be provided by the foreign doctor who may no
longer be in the country. But same may not be held in every case if the visiting surgeon never
inquires about the condition of the patient and leaves the patient for postoperative care and
follow up treatment to the competence of the other surgeon who was unable to properly treat
and look after the patient and the patient dies. Here the treating doctor can also be made party
to the negligence.

In many cases of negligence against government hospitals, it has been held that the State is
vicariously liable for negligence of its doctors or staff or even primarily liable where there is
lack of proper equipment or staff. In few cases, court has passed orders to the effect that the
compensation paid to the complainant may be recovered from the government doctors whose
negligence has been established. The Honorable Supreme Court in Achutrao & ors v. State
of Maharashtra & Ors 44 has observed that running a hospital is a welfare activity
undertaken by the Government but it is not an exclusive function or activity of the
Government so as to be regarded as being in exercise of its sovereign power.

Medical profession whether under consumer protection act

In one of the earliest significant ruling in Vasantha P. Nair v. Smt. V.P. Nair, the National
Commission upholding the decision of Kerala State Commission had held that a patient is a
consumer and the medical assistance was a service and, therefore, in the event of any
deficiency in the performance of medical service the consumer courts can have the
jurisdiction. It was further observed that the medical officers service was not a personal
service so as to constitute an exception to the application of the Consumer Protection Act.51

In Indian Medical Association v. V.P. Shantha and Ors.52, the apex court has put an end to
this controversy and has held that patients aggrieved by any deficiency in treatment, from
both private clinics and Government hospitals, are entitled to seek damages under the
Consumer Protection Act, 1986. A few important principles laid down in this case include:

1. Service rendered to a patient by a medical practitioner (except where the doctor

renders service free of charge to every patient or under a contract of personal service)
by way of consultation, diagnosis and treatment, both medicinal and surgical, would
fall within the ambit of service as defined in section 2(1) (o) of the C.P. Act.

2. The fact that medical practitioners belong to medical profession and are subject to
disciplinary control of the Medical Council of India and, or the State Medical Councils
would not exclude the service rendered by them from the ambit of C.P. Act.

3. The service rendered by a doctor was under a contract for personal service rather than a
contract of personal service and was not covered by the exclusionary clause of the
definition of service contained in the C.P.Act.

4. A service rendered free of charge to everybody would not be service as defined in the
Act.
 5. The hospitals and doctors cannot claim it to be a free service if the expenses have been
borne by an insurance company under medical care or by ones employer under the
service conditions.

Legal Framework in India

The legal framework of Indian law effecting the medical profession and to prevent malpractice
must be introduced. In India, various legal avenues are available to an aggrieved patient to sue a
healthcare professional.
1. Fundamental Rights (Part III of the Indian Constitution)
1.1. Article 21
1.2. Article 32
2. Directive Principles of State Policy (Part IV of the Indian Constitution)
2.1. Article 41
2.2. Article 42
2.3. Article 47
3. Indian Penal Code2 (IPC)
3.1. Section 52
3.2. Section 80
3.3. Section 81
3.4. Section 88
3.5. Section 90
3.6. Section 92
3.7. Section 304-A
3.8. Section 337
4. Indian Medical Council Act3 (IMC)
5. Consumer Protection Act4 (CPA)
6. Public Interest Litigation5 (PIL)

The Constitution of India

The Constitution of India does not provide any special rights to the patient. In fact the
patients rights are basically indirect rights, which arise or flow from the relevant Articles
which can be applied to cases of medical negligence.

Article 21. Protection of life and personal liberty: No person shall be deprived of his life or
personal liberty except according to procedure established by law.

Article 32. Remedies for enforcement of rights conferred by this Part:

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution. The right to constitutional remedies therefore allows Indian citizens
to stand up for their rights against anybody even the Government of India
Directive Principles of State Policy

These provisions are not enforced by any court, but the principles therein laid down are
nevertheless fundamental in the governance of the country and it shall be the duty of the State
to apply these principles in making laws.

Article 41. 'Right to work, to education and to public assistance in certain cases: The State
shall, within the limits of its economic capacity and development, make effective provision
for securing the right to work, to education and to public assistance in cases of
unemployment, old age, sickness and disablement, and in other cases of undeserved want.
Article 42. Provision for just and humane conditions of work and maternity relief: The
State shall make provision for securing just and humane conditions of work and for maternity
relief.
Article 47. Duty of the State to raise the level of nutrition and the standard of living and to
improve public health: The State shall regard the raising of the level of nutrition and the
standard of living of its people and the improvement of public health as among its primary
duties and, in particular, the State shall endeavour to bring about prohibition of the
consumption except for medicinal purpose of intoxicating drinks and of drugs which are
injurious to health.

The Indian Penal Code, 1860

The various sections of the Indian Penal Code that contain the law of medical malpractice in
India are
Section 52. "Good faith": Nothing is said to be done or believed in "good faith" which is
done or believed without due care and attention.
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.
Section 81. Act likely to cause harm, but done without criminal intent, and to prevent other
harm: Nothing is an offence merely by reason of its being done with the knowledge that it is
likely to cause harm, if it be done without any criminal intention to cause harm, and in good
faith for the purpose of preventing or avoiding other harm to person or property.
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 expressed or implied, to suffer that harm, or to take the risk of that harm.
Section 90. Consent known to be given under fear or misconception: A consent is not such
a consent as it is intended by any section of this Code, if the consent is given by a person
under fear of injury, or under a misconception of fact, and if the person doing the act knows,
or has reason to believe, that the consent was given in consequence of such fear or
misconception, or by an insane person, or by a child.
Section 92. Act done in good faith for benefit of a person without consent: Nothing is an
offence by reason of any harm which it may cause to a person for whose benefit it is done in
good faith, even without that person's consent
The Indian Medical Council Act, 1956

IMC Act came into force in 1956, confers powers to the Medical Council of India to
discipline erring members of the medical profession. However, this act does not have any
provision for the award of damages to the complainant, though it has enough powers to
punish the medical practitioners. Section 24 of the Act, empowers the Council to remove the
name of any person enrolled on a state medical register on the grounds of professional
misconduct. The council, in addition prescribes standards of professional conduct, etiquette
and code of ethics for medical practitioners. The medical councils are supposed to self
regulate the medical profession by monitoring their skills, conduct and to provide for
continuous education.

The Consumer Protection Act

Since the year 1996, cases of medical negligence have been brought under the purview of the
Consumer Protection Act, 1986. This was the result of the landmark judgment in the case of
Indian Medical Association v. V.P Shantha and Others7 . This judgment resolved the
questions regarding the definition of terms such as Deficiency, Consumer and Service
with respect to the CPAs application to cases of medical negligence. The Supreme Court
order did not accept the claim of medical professionals who argued that the doctor-patient
relationship is similar to a master-servant relationship, which is a contract of personal
service and should be exempted from CPA. The court in fact decreed that the doctor-patient
relationship is a contract for personal service and it is not a master-servant relationship. It is
also said that the doctor is an independent contractor and the doctor, like the servant, is hired
to perform a specific task. However, the master or principal (the patient) is allowed to direct
only what is to be done, and when. The how is left up to the specific discretion of the
independent contractor (doctor). So, the doctor- patient relationship is a contract for personal
service and as such, cannot be excluded from CPA. The Supreme Court however held that
A determination about the deficiency in service under the CPA is to be made by applying the
same test as is applied in an action for damages for negligence. The CPA however leaves
outside its ambit services rendered free of charge by a medical practitioner attached to a
hospital or nursing home. A payment of token amount for registration purpose only does not
alter the position.

Review of Literature

Speaking for Common Law perspective and context, the essential premise of legal principle
pertaining to medical negligence liability has evolved from Bolam4 and then moved on in
transforming itself into a new perspective altogether in Bolitho and more particularly in
Whitaker.
In English context, voices challenging the continued influence of Bolam have multiplied
beyond contemplation. Radical stand has vociferously been expressed in Australian
Jurisdiction in Whitaker.
In fact, the core essence of this contentious debate has in a sense been resurfaced in a recent
case i.e., Malay Kumar Ganguli & Dr. Kunal Saha v. Dr. Sukumar Mukherjee, 2009 (3) CPJ
17 (SC) of Supreme Court.
It took almost eight long years to ultimately decide and affirm that medical services come
under the ambit of Consumer Protection Act, 1986 and accordingly it was held that an
aggrieved consumer is entitled to seek remedies envisaged under Consumer protection Act,
1986 by initiating appropriate procedure before respective Consumer Forum. This was
decided by the Supreme Court in Indian Medical Association
Subsequent phase of judicial insight has witnessed, though sporadic and yet times in
consistent in nature, attempts to exclude or eliminate the jurisdiction of Consumer Forums
over alleged deficiency of service in connection with or related to medical care and/or
treatment.
Complaints (Pertaining to medical negligence liability!), as a result admission of such
complaint takes place mechanically or as a matter of routine. Be that as it may, as the
Complaint fails to reveal a legally sustainable cause of action, gets dismissed, as a matter of
fact, at the end

Objectives of study

1. To analyze the Indian medical law to prevent malpractice. Foremost, it is of utmost

importance to define the characteristic features of a medical services market.
2. The legal framework and its impact over the years through a study of cases and the
legal avenues will be analysed.
3. To study the possible ways to make the system more efficient will tried to be put
forward.
4. To study medical negligence with respect to consumer protection act

Hypothesis

1. The relationship between a doctor and his patient is considered sacred in India. A
Doctor is compared to God. In recent times, instances of malpractice and
negligence in the medical field have increased fourfold.
2. The problem arises in ascertaining liability, whether the doctor was negligent or not is
a very technical & subjective question, which is difficult to decide.
3. There is always a possibility of alternate treatment but that does not make the doctor
negligent for providing the first treatment. In this situation, a person who looses his
life due to a treatment might not be eligible to get any compensation and his
dependents are left in a dilemma.
4. Further, the doctor will always try to play safe and order more procedures to avoid
any liability, which in a way would create a burden on the economy.
5. The existing legal framework does not provide to help & safeguard both the doctors
and patients without compromising on the quality of healthcare or burdening the
economy.

Conclusion

Thus, after critically analyzing the present paper I came up to following conclusion.
There are two possibilities in cases of negligence either it is negligence of the doctor or it is
negligence of the staff. There may be a possibility of negligence, both of the doctor and the
staff. In most of the cases, it will be a case of joint and several liability, and both the doctor
and the hospital will be liable. The division of liability between the two of them will be
decided according to the understanding between the two. As far as determining negligence is
considered, courts have to depend on the advice of experts, except in cases of blatant
violation of protocol and doing things which are considered to be unreasonable and
imprudent. The level of subjectivity in such decisions is quite high and the purpose of law to
be certain and specific is defeated to a large extent. Recent decisions are a good step in the
direction of making this murky area a bit tidy, however, a lot needs to be done by the courts
in the shape of clearer judgments so that the layman can benefit. As of now, the judgments
leave a lot of room for discretion, which at times may be exercised by different persons,
including doctors and judicial officers, in an undesirable manner. The law on the subject
needs to be more precise and certain. That will surely give a better understanding about the
reasonable man.
The last part of this paper has been devoted to deal with the cases of medical negligence and
consumer protection, it is noted that the professional negligence has been put on a higher
pedestal, requiring thereby higher degree of skill and care to be exercised by the medical
professionals. The journey of the law relating medical negligence has not been smooth. But
for V.P. Shantha53, Jacob Mathew54 and Kusum Sharma55, cases, the approach adopted by
the courts/forums has shown inconsistency. This inconsistency leads to uncertainty in the
minds of the defrauded consumers and make them little complacent about exercising their
rights owing to apprehensions of their success at doorsteps of consumer forums/courts. Thus
it is submitted that as the law on medical negligence appears to have been settled by the
Honble apex court, there is a need to have a settled legal position in other sectors as well so
far as it relates to the consumer protection in India.

Bibliography

1. Statutes

The Constitution of India

The Consumer Protection Act, 1986
The Medical Council Act, 1956
Indian Penal Code, 1860

2. Books

WHV Rogers, Winfield and Jolowicz on Tort, Sweet & Maxwell, International
Student Edition, 1998 .
Laxminath and M Sridhar, Ramaswamy Iyers The Law of Torts, LexisNexis
Butterworths, Ninth Edn, 2003
M.K. Balachandran, Consumer Protection Act and Medical Profession,
Department of Consumer Affairs, Govt. of India in association with I.I.P.A., New
Delhi, 2006, Reprint 2008.

3. Websites

http://legalservicesindia.com/article/article/medical-negligence-in-india-944- .html
http://medicolegalhelpline.blogspot.in/2009/07/medical-negligence-and-
hospitals.html