Dr.

Ram Manohar Lohiya National Law University Lucknow

2018- 2019

Final Draft On

“MEDICAL NEGLIGENCE IN INDIA: A CRITICAL STUDY”

Submitted to: Submitted by:

Dr. Prem Kumar Gautam Margaret Rose

Assistant Professor (Law) Section- A

RMLNLU Enrollment

Number- 150101078

Semester – VIIIth

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 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.

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 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.1
Negligence has been discussed as:
1 Law of Torts, Ratanlal & Dhirajlal, Twenty-fourth Edition 2002, edited by Justice G.P. Singh;
pp.441-442
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:

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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.

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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.
Duty depends on reasonable foresee ability of injury:
Whether the defendant owes a duty to the plaintiff or not depends on reasonable forseeability to
the plaintiff. If at the time of the act or omission, the defendant could reasonably foresee injury
to the plaintiff he owes a duty to prevent that injury and failure to do that makes him liable. Duty
to take care is the duty to avoid doing or omitting to do anything, the doing or omitting to do
which may have as its reasonable and probable consequence injury to others, and the duty is
owed to those to whom injury may reasonably and probably be anticipated if the duty is not
observed.2
2 Bourhill v.Young, (1943) A.C 92
3 (1943) A.C. 448
Lord Macmillan explained the standard of foresight of a reasonable man in Glasgow
Corporation v. Muir3 as follows:
“The standard of foresight of the reasonable man is, in one sense, an impersonal test. It
eliminates the personal equation and is independent of the idiosyncrasies of the particular person
whose conduct is in question. Some persons are by nature unduly timorous and imagine every
path beset with lions. Others, of more robust temperament, fail to foresee or nonchalantly
disregard even the most obvious dangers. The reasonable man is presumed to be free both from
apprehension and from over confidence, but there is a sense in which the standard of care of the
reasonable man involves in its application a subjective element. It is still left to the judge to
decide what, in the circumstances of the particular case, the reasonable man would have had in
contemplation and what accordingly, the party sought to be made liable ought to have foreseen.
Here, there is room of diversity of views… What to one judge may seem far-fetched to another
both natural and probable. MEDICAL NEGLIGENCE IN INDIA: A CRITICAL STUDY

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In Booker v. Wenborn4, the defendant boarded a train which had just started moving but kept
the door of carriage open. The door open outside, and created a danger to those standing on the
platform. The plaintiff, a porter, who was standing on the edge of the platform was hit by the
door and injured. It was held that the defendant was liable because a person boarding a moving
train owed a duty of care to a person standing near it on the platform.
4 (1962) 1 All E.R.431
5 A.I.R. 1997 Mad.257
6 A.I.R. 1980 cal 165
7 A.I.R. 1969 Del 183
8 A.I.R. 1986 Raj 176
9 A.I.R. 1966 S.C. 1750
In S. Dhanaveni v. State of Tamil Nadu5, the deceased slipped into a pit filled with rain water in
the night. He caught hold of nearby electric pole to avert a fall. Due to leakage of electricity in
the pole, he was electrocuted. The respondent, who maintained the electric pole was considered
negligent and was held liable for the death of the deceased.
In another case named Rural transport Service v. Bezlum Bibi6, the conductor of an overloaded
bus invited the passengers to travel on the roof of the bus. On the way, the bus swerved on the
right side to overtake a cart. One of the passengers on the roof of the bus, Tahir Seikh, was struck
by an overhanging branch of a tree. He fell down and received multiple injuries on the head,
chest etc. and as a consequence thereof he died. In an action by Bezlum Bibi, the mother of the
deceased, it was held that there was negligence on the part of both the driver and conductor of
the bus, and the defendant was held liable for the same. In this case it was observed “that inviting
passengers to travel precariously on the top of an overcrowded bus is itself a rash and negligent
act and that part when passengers were being made to travel on the roof, a greater amount of care
and caution on the part of the driver was called for so that his leaving the metallic track by
swerving on the right so close to a tree with over hanging branch for overtaking a cart while in
speed is also a rash and negligent act.
In another case named Ishwar Devi v. Union of India7 it was held negligent to start a bus before
passengers get into it.
In Makbool Ahmed v. Bhura Lal8 also it was held that the driver and the conductor owe a duty
of care towards passengers.

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In Muncipal Corporation of Delhi v. Subhagwanti9 a clock tower situated in the heart of the
city, i.e. Chandini Chowk, Delhi collapsed causing the death of a number of persons. The
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structure was 80 years old whereas its normal life was 40-45 years. The Municipal Corporation
of Delhi, which was having control of the structure had obviously failed to get the periodical
check up and the necessary repairs done. The defendant corporation was, therefore, held liable to
pay compensation for the consequences of the collapse of the structure.
In Mata Prasad v. Union of India10 the gates of a railway crossing were open. While the driver
of truck tried to cross the railway line, the truck was hit by an incoming train. It was held that
when the gates of the level crossing were open, the driver of the truck could assume that there
was no danger in crossing the railway track. There was negligence on the part of the railway
administration and they were, therefore held liable.
10 A.I.R. 1978 All, 303
11 1987 ACJ 133
12 (1917) 19 Bom L.R. 778
13 (1938) I All E. R. 532
In case of Orissa Road Transport Co. Ltd. V. Umakant Singh11 , the bus driver was held liable
for the death of two passengers as he tried to cross the level crossing but could not do so due to
mechanical defect in the truck. There was enough time to cross the level crossing and he was
aware of the mechanical defect. Thus, he was held negligent.
No liability when injury not foreseeable:
No liability can be levied on the defendant if it can be proved that he, in any reasonable
circumstances, could not foresee the injury. The following cases will make this point clear:
In Cates v. Mongini Brothers12, the plaintiff, a lady visitor to a restaurant was injured by the
falling of ceiling fan on her. The reason for the falling of the fan was a latent defect in the mental
suspension rod of the fan. The defect could not have been discovered by a reasonable man. In an
action against defendeant who were running the restaurant, it was held that since the harm was
not foreseeable, they were not negligent and therefore were not liable for the lady plaintiff.
In Ryan v Youngs13, the defendant‟s servant, while driving a lorry, suddenly died, which
resulted in an accident and consequent injury to the plaintiff. The driver appeared to be quite
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healthy and the defendant could not foresee his sudden death. It was held that the accident was
due to an Act of God and the defendant was not liable for the same.
Reasonable foresee ability does not mean remote possibility:
To establish negligence it is not enough to prove that the injury was foreseeable, but a reasonable
likelihood of the injury has to be shown because “foresee ability does not include any idea of
likelihood at all”. The duty is to guard against probabilities rather than bare possibilities. In
Fardon v. Harcourt Rivington14 , the court set out the reasonable man test for foresee ability. “If
the possibility of danger emerging is reasonably apparent, then to take precautions is negligence;
but if the possibility of danger emerging is only a mere possibility which would never occur to
the mind of reasonable man, then there is no negligence in not having taking extraordinary
precautions.”
14 (1932) 146 L.T. .391
15 A.I.R.(1974) Orissa 207
16 (1951) A.C. 850
In Devi v. Uttam Bhoi15 a boy of about 7-8 years was hit by a truck at about 2:30p.m. in the
broad daylight, as a result of which he received multiple injuries. It was held that the driver while
negotiating a place frequented by children should have taken greater care as the behavior of the
children is unpredictable. From the nature of injuries received, negligence on the part of the
driver was presumed and he was held liable.
In Balton v. Stone16 , a batsman hit a ball and the ball went over a fence and injured a person on
the adjoin highway. This ground had been used for about 90 years and during the last 30 years,
the ball had been hit in the highway on about six occasions but no one had been injured. The
Court of Appeal held that the defendants were liable for negligence. But the House of Lords held
that the defendants were not liable on the basis of negligence.
2. Breach of Duty
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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 Blyth v. Birmingham Waterworks Co.17 case, wherein it was held that “negligence is
breach of duty caused by the omission to do something which a reasonable man, guided upon
those considerations which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do.”
17 (1856) 11 Ex 781
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.
The House of Lords, in Arland v. Taylor has summarized the characteristics of the „reasonable
man‟ according to which „he is not extraordinary, or unusual creature; he is not a superhuman;
he is not required to display the highest skill of which anyone is capable; he is not a genius who
can perform uncommon feats, nor is he possessed of unusual powers of foresight.‟ Rather „he is
a person of normal intelligence who makes prudence a guide to his conduct. 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.

In Nirmala v. Tamil Nadu Electricity Board case, the plaintiff‟s husband while at work in his
farm was electrocuted and died instantaneously as he came in contact with a live wire that had
snapped. Holding the defendants liable in negligence, the court noted that the defendants have

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failed to ensure proper maintenance as a result wires snapped and further that they had
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failed to provide a device whereby the snapped wire would have automatically become dead and
harmless.18
18 AIR 1984 Mad 201; See, also, Kerala State Electricity Board v. Suresh Kumar, 1986 ACJ
998 wherein a minor boy came in contact with overhead electric wire which had sagged to 3 feet
above the ground, got electrocuted thereby and received burn injuries. The Electricity Board had
a duty to keep the overhead wire 15 feet above the ground. The Board was held liable for breach
of its statutory duty.
19 [1951] AC 367
20 A.I.R. 1989 ACJ 998
In Bhagwat Sarup v. Himalaya Gas Co., the plaintiff booked replacement of a cooking gas
cylinder with the defendant, who had the gas agency in Shimla. The Defendant‟s delivery man
took a cylinder into the plaintiff‟s house. The cap of the cylinder being defective, he tried to
open it by knocking at the same with the axe. This resulted in damage to the cylinder and leaking
of gas therefrom. Some fire was already burning in the kitchen and the leaked gas caught fire. As
a consequence of the fire, the plaintiff‟s daughter died, some other family members received
severe burn injuries and some property inside the house was destroyed by fire. It was held that
the defendant‟s servant was negligent in opening the cylinder and the defendant was held liable
for consequences of such negligence. So far as the magnitude of risk is involved, it may be noted
that it depends from case to case.
In Paris v. Stepney Borough Council19, the plaintiff who had only one healthy eye was blinded
in the course of employment. The plaintiff contended that the employers omitted to provide him
with goggles and thus were in breach of their duty to take reasonable care of his safety because,
they must have known that the consequences of an accident to his good eye would be particularly
disastrous. The court held the defendant liable.
In State of M.P. v. Asha Devi20 an accident was caused by police vehicle colliding with a
culvert. The vehicle toppled, as a result of which five constables were killed. The speed of 30
km. at the relevant time was considered to be excessive even though it was a highway, because
when it a crowded road or at the road zigzag and narrow culverts are there, where only one
vehicle can pass, the speed of 30 km. will be high as the vehicle cannot be controlled in such a
situation. Another factor indicating negligence was that 4-5 persons were sitting by the side of
the driver and there was no space to change the gears so as to stop the vehicle.

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3. Breach of Duty must have caused the Damage:
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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.”21
21 AIR 1982 Mad 104
The above observation lays emphasis on the neglect of the defendant and imposes a duty upon
the plaintiff to prove the causal linkage between negligent act and the damage, i.e. to say that the
burden of proof in such cases lies on the plaintiff. The initial burden of proof at least a prima
facie case of negligence as against the defendant lies on the plaintiff. However, there are certain
cases wherein the plaintiff need not prove that and the inference of negligence is drawn from the
facts alleged by the plaintiff. There is a presumption of negligence according to the maxim “Res
Ipsa Loquitor” which means that „thing speaks for itself‟. When the accident (defect in goods
or deficiency in services) explains only one thing that the accident or such defect in
goods/deficiency in service would not have occurred unless the defendant had been negligent,
the law raises a presumption of negligence on the part of the defendant. The plaintiff, in order to
claim benefit of the maxim res ipsa loquitor, has to meet three important requirements for its
application:
1. That the “thing” causing the damage was in the control of the defendant or his servants, or
agents;

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2. That accident must be such as would not in the ordinary course of things have happened
without negligence; and

3. That there is absence of explanation of the actual cause of the accident.

In Municipal Corporation of Delhi v. Subhagwanti & Ors22, the Clock Tower at Chandani
Chowk in Delhi, collapsed causing death of the plaintiff‟s husband, was found to be „exclusive
by under the ownership and control of the appellant or its servants‟. The Chief Engineer stated
that the collapse of the Clock Tower was due to thrust of the arches on the top portion and the
mortar had deteriorated to such an extent that it was without any cementing properties. The
court, on the basis of evidence came to a conclusion that „the mere fact that there was a fall of
the Clock Tower tells its own story in raising an inference of negligence so as to establish a
prima facie case against the appellants (the defendants).
22 (1974) 1 S C C 690
23 AIR 1996 SC 2377
Similarly in Acchutrao Haribhau Khodwa v. State of Maharashtra,23 the plaintiff‟s wife was
hospitalized in a government hospital and was operated. The doctors while performing a
sterilization operation left the mop in the body of the patient which resulted in formation of puss
and eventually leading to death subsequently. It was held that negligence was writ large and the
surgeon performing that operation and the government were liable as res ipsa loquitor could be
attracted.
Thus from the above it is clear that in order to make a successful claim in tort of negligence, the
plaintiff has to prove three broad essentials. These essentials are equally significant while
deciding consumer grievances either alleging deficiency in services or defects in goods. The duty
of care may accrue through various modes discussed above. However, it may be noted that
existence of duty of care does not pose any serious difficulty in consumer cases as the cases are
directly related to the service provided/or defective goods supplied. But a beneficiary of services
or user of a product may have to prove existence of duty towards him. As discussed above, it
may be kept in mind that the standard of care is to be judged from the view of a reasonable man.
The reasonable man is not a super- human, or a perfectionist but is a mythical creature which
helps the courts in determining the want of standard of care on part of the defendant. Further that

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the alleged breach of duty must be legal and not moral, social MEDICAL NEGLIGENCE IN
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etc. This duty may arise by a negligent act in manufacture, supply or sale of defective goods or
deficient services resulting in damage to the consumers. Further that the plaintiff consumer will
have to prove a causal linkage between the breach of duty and the damage suffered by him.
Unless the damage is causally related to the breach of duty of the defendant, the plaintiff may not
succeed in his action for damages.
Professional
According to the English language, a professional is a person doing or practicing something as a
full-time occupation or for payment or to make living and that person knows the special
conventions, forms of politeness, etc. associated with a certain profession. Professionals are
subject to professional code and standards on matters of conduct and ethics, enforced by
professional regulatory authorities and they enjoy high status and respect in the society.
Professional Liability
It covers all aspects of professionals to follow codes of conduct when providing care or services
in their field. In the event of the failure to adhere to the professional codes of ethics by the
service provider a professional liability claim can be filed for.
Negligence by Professionals
In law of negligence, professional such as lawyers, doctors, architects and others are included in
the category of persons professing some special skill or skilled persons generally. A professional
may be held liable for negligence on one of the findings of two: one, either he was not possessed
of the requisite skill which he professed to have; or two that, he did not exercise, with reasonable
competence in a given case, the skill which he did profess.
Negligence by Medical Professionals
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 purpose. Such a person, whether
he is medical practitioner or not, who is consulted by a patient, owes him certain duties, namely a
duty of care in deciding whether he undertakes the case; a duty of care in MEDICAL
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deciding what treatment to give and duty of care in his administration of that treatment. A breach
of any theses duties will support an action for negligence by patient.
In Jacob Mathew 24case, the Supreme Court of India has gone into details of what is the
meaning of negligence by medical professionals.
24 (2005) 6 SCC 1
25 Smt. Madhubala vs. Government of NCT of Delhi; Delhi High Court, 8 April 2005, Citation:
2005 Indlaw
DEL 209 = 2005 (118) DLT 515
Negligence in the context of medical profession necessarily calls for a treatment with a
difference. To infer rashness or negligence on the part of a professional, in particular a doctor,
additional considerations apply.
A case of occupational negligence is different from one of professional negligence. A simple
lack of care, an error of judgment or an accident, is not proof of negligence on the part of a
medical professional. So long as a doctor follows a practice acceptable to the medical profession
of that day, he cannot be held liable for negligence merely because a better alternative course or
method of treatment was also available or simply because a more skilled doctor would not have
chosen to follow or resort to that practice or procedure which the accused followed.
When it comes to the failure of taking precautions what has to be seen is whether those
precautions were taken which the ordinary experience of men has found to be sufficient; a failure
to use special or extraordinary precautions which might have prevented the particular happening
cannot be the standard for judging the alleged negligence.
So also, the standard of care, while assessing the practice as adopted, is judged in the light of
knowledge available at the time of the incident, and not at the date of trial. Similarly, when the
charge of negligence arises out of failure to use some particular equipment, the charge would fail
if the equipment was not generally available at that particular time (that is, the time of the
incident) at which it is suggested it should have been used.
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

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(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.
As regards medical negligence, the legal position has been described in several leading
judgments. Some of these are given below:
Bolam v. Friern Hospital Management Committee26
26 (1957) 2 All ER,
27 (2005) 6 SCC 1
John Hector Bolam suffered from depression and was treated at the Friern Hospital in 1954 by
E.C.T. (electro-convulsive therapy). He was not given any relaxant drug, however, nurses were
present on either side of the couch to prevent him from falling off. When he consented for the
treatment, the hospital did not warm him of the risks, particularly that he would be given the
treatment without relaxant drugs. He sustained fractures during the treatment and sued the
hospital and claimed damages for negligence. Experts opined that there were two practices
accepted by them: treatment with relaxant drugs and treatment without relaxant drugs. Regarding
the warning also, there were two practices prevalent: to give the warning to the patients and also
to give the warning only when the patients ask about the risks. The court concluded that the
doctors and the hospital were not negligent.
Jacob Mathew Vs. State of Punjab27
In this case a patient was admitted to CMC Hospital, Ludhiana. He felt difficulty in breathing.
No doctor turned up for about 20-25 minutes. Later two doctors – Dr. Jacob Mathew and Dr.
Allen Joseph – came and an oxygen cylinder was brought and connected to the mouth of the
patient. Surprisingly, the breathing problem increased further. The patient tried to get up. The
medical staff asked him to remain in bed. Unfortunately, the oxygen cylinder was found to be
empty. Another cylinder was brought. However, by that time the MEDICAL NEGLIGENCE IN
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patient had died. The matter against doctors, hospital staff and hospital went up to the Supreme
Court of India. The court discussed the matter in great detail and analyzed the aspect of
negligence from different perspectives – civil, criminal, torts, by professionals, etc. It was held
that there was no case of criminal rashness or negligence.
The Supreme Court in Laxman v. Trimbak28, held:
28 AIR 1969 SC 128
29 AIR 1996 SC 2377
30 (1998) 4 SCC 39 at 47,
"The duties which a doctor owes to his patient are clear. A person who holds himself out ready to
give medical advice and treatment impliedly undertakes that he is possessed of skill and
knowledge for the purpose. Such a person when consulted by a patient owes him certain duties
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 of action for negligence to the patient. The practitioner must bring to
his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of
care. Neither the very highest nor very low degree of care and competence judged in the light of
the particular circumstances of each case is what the law requires.”
In Achutrao Haribhau Khodwa v. State of Maharashtra29 the Supreme Court said--
"The skill of medical practitioners differs from doctor to doctor. The very nature of the
profession is such that there may be more than one course of treatment which may be advisable
for treating a patient. Courts would indeed be slow in attributing negligence on the part of a
doctor if he has performed his duties to the best of his ability and with due care and caution.
Medical opinion may differ with regard to the course of action to be taken by a doctor treating a
patient, but as long as a doctor acts in a manner which is acceptable to the medical profession
and the Court finds that he has attended on the patient with due care skill and diligence and if the
patient still does not survive or suffers a permanent ailment, it would be difficult to hold the
doctor to be guilty of negligence."
In Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia & Anr.30 the Apex Court has
specifically laid down the following principles for holding doctors negligent: MEDICAL
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“Gross medical mistake will always result in a finding of negligence. Use of wrong drug or
wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and
in some situations even the principle of res ipsa loquitur can be applied. Even delegation of
responsibility to another may amount to negligence in certain circumstances. A consultant could
be negligent where he delegates the responsibility to his junior with the knowledge that the
junior was incapable of performing of his duties properly. We are indicating these principles
since in the case in hand certain arguments had been advanced in this regard, which will be dealt
with while answering the questions posed by us.”
In A.S.Mittal v. State of UP 31, an irreparable damage was done to the eyes of some of the
patients who were operated at an eye camp organized by the government of Uttar Pradesh. Some
of the patients who underwent surgery could never see the light of the day, i.e. whatever little
vision they had even that was lost. The apex court coming heavily on the erring doctors held that,
“the law recognizes the dangers which are inherent in surgical operations and that will occur on
occasions despite the exercise of reasonable skill and care but a mistake by a medical practitioner
which no reasonably competent and a careful practitioner would have committed is a negligent
one.” The compensation was awarded.
31 AIR 1989 SC 1570
32 (2000) 5 SCC 182
33 (2005) 7 SC 1
Further, in State of Haryana v. Santra32 the court upheld the decree awarding damages for
medical negligence on account of the lady having given birth to an unwanted child due to failure
of sterilization operation because it was found on facts that the doctor had operated only the right
fallopian tube and had left the left fallopian tube untouched. The patient was informed that the
operation was successful and was assured that she would not conceive a child in future. A case of
medical negligence was found and a decree for compensation in tort was held justified.
However, the apex court has explained in State of Punjab v. Shiv Ram33 , that “merely because
a woman having undergone a sterilization operation becoming pregnant and delivering a child
thereafter, the operating surgeon or his employer cannot be held liable on account of the
unwarranted pregnancy or unwanted child. Failure due to natural causes, no method of
sterilization being fool proof or guaranteeing 100% success, would not provide MEDICAL
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any ground for a claim of compensation.” The court after referring to several books on
Gynecology and empirical researches concluded that „authoritative text books on gynecology
and empirical researches recognize the failure rate of 0.3% to 7% depending on the technique
chosen out of several recognized and accepted ones.”
Poonam Verma v. Ashwin Patel34, reflects yet another reckless act on part of the doctor. In this
case a doctor who was registered as a medical practitioner and was entitled to practice in
homoeopathy was found to be guilty of negligence for prescribing allopathic medicines resulting
in the death of the patient. The doctor was grossly negligent and in clear breach of duty as a
doctor. He defied all sense of logic and forgot his ethics. It is submitted that it would have been
better had the doctor been prosecuted under criminal negligence as he violated section 15(3) of
the Medical Council Act, 1956.
34 AIR 1996 SC 2111
35 (2010) 3 SCC 480
In one of the most recent decision in Kusum Sharma v. Batra Hospital35, the Hon‟ble Supreme
Court has settled the law relating medical negligence. Mr. Dalveer Bandari, J., scrutinizing the
cases of medical negligence both in India and abroad specially that of the United Kingdom has
laid down certain basic principles to be kept in view while deciding the cases of medical
negligence. 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.
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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.

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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.
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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 hon‟ble 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‟.
36 Article 141 reads: “Law declared by the Supreme Court shall be binding on all courts within
the territory of India”.
37 1937) 2 All ER 552 (HL)
38 See, Charlesworth & Percy on Negligence, 10th Edn, 2001, para 1.13; A clear distinction
exists between “simple lack of care” incurring civil liability and “very high degree of
negligence” which is required in criminal cases. Also there is a marked difference as to evidence,
viz. the proof, in civil and criminal proceedings. In civil
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.”37

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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.38 MEDICAL NEGLIGENCE
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proceedings, a mere preponderance of probability is sufficient, and the defendant is not
necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings the
persuasion of guilt must amount to such a moral certainty as convinces the mind of the court, as
a reasonable man beyond all reasonable doubt. (Syed Akbar v. State of Karnataka, (1980) 1 SCC
30, para 28 refers)
39 (2005) 6 SCC 1; Also see, Dr. Suresh Gupta v. Govt. of N.C.T. of Delhi, AIR 2004 SC 4091,
wherein the court explaining distinction between civil and criminal liability held that „for fixing
criminal liability on a doctor or surgeon the standard of negligence required to be proved should
be so high as can be described as gross negligence of recklessness. …mere inadvertence or some
degree of want of adequate care and caution might create a civil liability but would not suffice to
hold him criminally liable.”
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

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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. MEDICAL NEGLIGENCE IN INDIA: A CRITICAL
STUDY

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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 MEDICAL NEGLIGENCE
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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.
40 [2003 (1) CLD 81 (AP SCDRC)],
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
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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 individual‟s 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 individual‟s 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 person‟s 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 MEDICAL NEGLIGENCE IN INDIA: A CRITICAL STUDY

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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 doctor‟s 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 Moonjerly41, 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 surgeon‟s 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.
41 [1994 (1) KLJ 782 (Ker. HC)] MEDICAL NEGLIGENCE IN INDIA: A CRITICAL STUDY

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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.
42 [2002 ACJ 954 (Mad. HC)]
43 [2003 (2) CPJ 160 (NCDRC)]
In another judgment by the National Consumer Redressal Commission in case of Smt. Rekha
Gupta v. Bombay Hospital Trust & Anr.43, related to negligence of a consultant doctor, the
Commission observed that the hospital who employed all of them whatever the rules were, has to
own up for the conduct of its employees. It cannot escape liability by mere statement that it only
provided infrastructural facilities, services of nursing staff, supporting staff and technicians and
that it cannot suo moto perform or recommend any operation/ amputation. Any bill including
consultant doctor‟s consultation fees are raised by the hospital on the patient and it deducts 20%
commission while remitting fees to the consultant. Whatever be the outcome of the case, hospital
cannot disown their responsibility on these superficial grounds.
The hospital authorities are not only responsible for their nursing and other staff, doctors, etc. but
also for the anesthetists and surgeons, who practice independently but admit/ operate a case. It
does not matter whether they are permanent or temporary, resident or visiting consultants, whole
or part time. The hospital authorities are usually held liable for the negligence occurring at the
level of any of such personnel. Where an operation is being performed in a hospital by a
consultant surgeon who was not in employment of the hospital and negligence occurred, it has
been held that it was the hospital that was offering medical services. The terms under which the
defendant hospital employs the doctors and surgeons are MEDICAL NEGLIGENCE IN INDIA:
A CRITICAL STUDY

35 | P a g e
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. The patients go and get themselves admitted in the hospital
relying on the hospital to provide them the medical service for which they pay the necessary fee.
It is expected from the hospital, to provide such medical service and in case where there is
deficiency of service or in cases like this, 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 due to reason of non-existing master-servant relationship between the
hospital and the surgeon.
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 hospital‟s 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. Hence, the State
44 [JT 1996(2) SC 664] MEDICAL NEGLIGENCE IN INDIA: A CRITICAL STUDY

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would be vicariously liable for the damages which may become payable on account of
negligence of its doctors or other employees.
In another case of Smt. Santra v. State of Haryana & Ors45, the contention that the State is not
vicariously liable for the negligence of its officers in performing the sterilization operation was
not accepted in view of the above judgment of the Supreme Court of India.
45 [(2005) 5 SCC 182]
46 [AIR 1996 Raj. HC 80]
47 [AIR 2001 Ker. HC (DB) 398]
48 [2001 ACJ 1266 (P&H-HC]
In another case of Rajmal v State of Rajasthan46, where the patient died of neurogenic shock
following laparoscopic tubal ligation done at a primary health centre, an enquiry committee
constituted on the directions of the Rajasthan High Court found that the doctor was not negligent
in conducting the operation, nor his competence, integrity or efforts were doubted. It was lack of
adequate resuscitative facilities and trained staff that was held responsible for the death and the
State Government was held vicariously liable and was directed to pay compensation to the
husband of the deceased.
In another case of Dr. M. K. Gourikutty & etc. v. M. K. Madhavan and Ors47, where patient
had died following post partum sterilization, the Court found negligence on part of the
defendants and liability was fixed on State Government, anesthesiologists and other staff instead
of holding only the State vicariously liable.
The Honorable Punjab and Haryana High Court, in Punjab State v. Surinder Kaur48, has stated
that the doctor working in a government hospital was performing the duty while he/ she was
under the employment of the State and in these circumstances, the master is always responsible
for the vicarious liability of the acts committed by the employee in the course of such
employment. It is for the State to determine the liability of the erring doctors. It is their internal
affair but so far as patient is concerned she can recover the amount from the State Government. It
is the duty of the authorities under the State to see that its employees are available in time in the
hospital. If for any reason, a doctor or expert is not available, the Hospital authorities would have
known before hand and some other persons should be posted. The primary responsibility of the
Hospital authorities is to see that there is no negligence on its part or on the part of its officers.
The non-providing of a doctor or anesthetist or an assistant is essentially a lapse on the part of

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hospital authorities and are thus liable for negligence. MEDICAL NEGLIGENCE IN INDIA: A
CRITICAL STUDY

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In R. P. Sharma v. State of Rajasthan49, where a woman died because of mismatched blood
transfusion, the State was held vicariously responsible for the negligent act of its blood bank
officer and the doctor who transfused the blood. It was further held that the State of Rajasthan is
free to recover the amount from those doctors. In Rukmani v. State of Tamil Nadu [AIR 2003
Mad. HC 352], the Madras High Court observed that in India where the population is increasing
each second and family planning is a national programme, the doctor as well as the State must be
held responsible in damages on account of failure of a sterilization operation which is directly
responsible for an additional birth in the family, creating additional economic burden on the
family.
49 [AIR 2002 Raj. HC (Jpr. Bench) 104]
50 [1996 (4) SC 260]
Compensation can be awarded to an injured person for not being provided treatment in a
Government hospital or for death or injury caused therein because of negligence.
In the case of Paschim Bangal Khet Mazdoor Samity & Ors v. State of West Bengal50, the
Honorable Supreme Court held that providing adequate medical facilities for the people is an
essential part of the obligations undertaken by the Government in a welfare state. Failure on the
part of government hospital to provide timely medical treatment to a person in need of such
treatment is violation of his right to life guaranteed under Article 21 of Indian Constitution
[death of the patient occurring for not being admitted/ given proper treatment for want of bed in
a government hospital].
Appointing practitioners of Alternative Systems of Medicine [Ayurveda/ Unani/ Sidha] or
Homeopaths in hospitals giving services in allopathy too amounts to negligence. It is the duty of
the hospital to provide properly qualified, skilled and experienced doctors for treatment. The
Supreme Court of India has held that there is no scope for a person who is registered under the
Indian Medicine Central Council Act, 1970 [Council for registration of practitioners of Indian
Medicine – Ayurveda, Unani and Sidha] and enrolled on the State or Central Register of Indian
Medicine to practice modern scientific medicine [allopathy] in any of its branches. All that is
allowed to such practitioners is to make use of the various modern advances like radiology
reports, laboratory investigations etc. for the purposes of practicing in their own system.
However, if any State law recognizes the qualification of integrated courses or other
qualifications as „sufficient qualification‟ for registration in the State Medical Register, within

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the meaning of the Indian Medical Council Act, 1956 on being MEDICAL NEGLIGENCE IN
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registered in the State Medical Register, he is eligible to practice allopathic medicine. This
benefit would be available only in those States where the privilege of such right to practice any
system of medicine is conferred by the State law which is for the time being in force, under
which practitioners of Indian Medicine are registered in their State Medical Register.
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 officer‟s service was not a personal service so as to
constitute an exception to the application of the Consumer Protection Act.”51
51 I (1991) C.P.J. 1685
52 AIR 1996 SC 550; the apex court has laid down 12 important principles stating the law with
definite terms in this case
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.
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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 one‟s employer under the service conditions.

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”.

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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
MEDICAL NEGLIGENCE IN INDIA: A CRITICAL STUDY

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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 Hon‟ble 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.
53 Indian Medical Association v. V.P. Shantha, AIR 1996 SC 550
54 Jacob Mathew v. State of Punjab, (2005) 6 SCC 1
55 Kusum Sharma v. Batra Hospital, (2010) 3 SCC 480
REFERENCES
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 Iyer‟s 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

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 http://medicolegalhelpline.blogspot.in/2009/07/medical-negligence-and-hospitals.html

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