NATIONAL LAW SCHOOL OF INDIA UNIVERSITY

Trends in Tort Law in

India
Torts-I Research Paper
Date of submission – August 12, 2010

Praggya Surana Pranjal Singh

Roll number – 1828 Roll number –
Table of Contents

Table of Authorities...........................................................................................................................2
Introduction.......................................................................................................................................4
Research Methodology:.....................................................................................................................6
Chapter 1: Principles relating to Medical Negligence as a Tort..........................................................8
Chapter 2: Growth of Medical Negligence as a tort in India............................................................14
Chapter 3: Recent Trends in Litigation Relating To Medical Negligence..........................................20
Chapter 4: Limitations of the Litigation System...............................................................................24
Conclusion.......................................................................................................................................26
Bibliography.....................................................................................................................................28

1
Table of Authorities
Table of Cases:

English Cases
 Bolam v. Friern Hospital Management Committee, [1957] 1 WLR 583.
 Blyth v. Birmingham Waterworks Co. (1856), 11 Ex Ch 781, (The House of
Lords).
 Donoghue v. Stevenson, [1932] AC 562.
 Caparo industries plc v. Dickman, [1990] 2 AC 605.
 Kent v. Griffiths, [2000] 2 All ER 474.
 Bolton v Stone [1951] AC 850.
 Latimer v AEC Ltd, [1953] AC 643.
 Paris v Stepney Borough Council, [1951] AC 367.
 Watt v Hertfordshire County Council, [1954] 1 WLR 835.
 Scott v London & St Katherine Dock Co, (1865) 3 H & C 596.
 Barnett v Chelsea & Kensington Hospital, [1968] 1 All ER 1068.
 Smith v Leech Brain & Co, [1962] 2 QB 405.
 Wilsher v Essex AHA, [1988] AC 1074.
 Hill v. C.C. of W. Yorkshire, [1989] AC 53.

Indian Cases
 Dr. Laxman Balakrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128.
 M.C. Mehta v. Union of India and ors. AIR (1987) 4 SCC 463.
 Vasanta Nair v. Cosmopolitan Hospital, [1992] 1 C.P.R. 820.
 Dr. Ravindra Verma v. Ganga Devi, 1993(3) CPR 255.
 Dr. A.S. Chandra v. Union of India, 1992 ( 1 ) ALT 713.
 Dr. Ravinder Gupta v. Ganga Devi, 1993(3) CPR 255.
 Dr. C.S. Subramanian v. Kumarasamy and Anr, (1994) 1 MLJ 438.
 Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787.
 Poonam Verma v. Aswin Patel, [1996]4 SCC 332 Indian Medical Association v.
V.P. Shantha and Ors, AIR 1996 SC 550.

2
  Mrs.ShantabenMuljibhai Patel others v. Breach Candy Hospital and Research
Centre & others, (2005) CPJ 10 (NC).
 AchutraoHaribhauKhodwa v. State of Maharastra and Ors, [1996] 2 SCC 634.
 M/s Spring Meadows Hospital and anr v. HarjolAhluwalia through K.S.
Ahluwalia and Anr, [1998] 4 SCC 39.
 State of Haryana v. Smt. Santra, [2000] 5 SCC 182.
 State of Punjab v. Shivram, [2005] 6 SCALE 770.
 State of Haryana v. Raj Rani, [2005] 7 SCALE 1.
 Jay Laxmi Salt Works (p) ltd. v. State of Gujarat (1994) 4 SCC 1.

Table of Statutes

 Consumer Protection Act, 1986.

 Medical Councils Act, 1956.

Table of Constitutions

 The Indian Constitution 1950.

3
Introduction
The origin of Tort as a legal term can be traced back to the French-speaking lawyers and
Judges of the Courts of Normandy and the Angevin Kings of England. However, Tort has
evolved as a form of civil injury or wrong, involving the breach of an implied or express
duty. Tort law gained prominence with the passage of the Common Law Procedure Act,
1852, which gave the rights of an individual precedence over formal procedure of law.
Contemporary tort law can be summarised by the legal maxim, “ubi jus ubi remedium” i.e.
where there is a right, there is a remedy.1

In ancient India, the closest possible reference to tortuous liability can be found in the
Sanskrit word, Jimha, which is similar in meaning to fraudulent or crooked
conduct2However, the concept of tort had been considerably narrowed by focussing more on
punishment rather than compensation. Though, the modern Indian concept of tort has been
borrowed from the English Common Law System, yet it is not followed blindly. Courts may
analyse the suitability of applying these rules, contextualising them within Indian society. In
the opinion of Justice P.N. Bhagwati, “we have to evolve new principles and lay down new
norms which will adequately deal with new problems which arise in a highly industrialized
economy. We cannot allow our judicial thinking to be constructed by reference to the law as
it prevails in England or for the matter of that in any foreign country. We are certainly
prepared to receive light from whatever source it comes but we have to build our own
jurisprudence.”3

One also has to take into account that social conscience and morality differ substantially from
one society to another. This difference may be attributed to the fact that codes and ethics in a
society develop contextually and are heavily influenced by the historical factors of the
respective geographical areas. This idea allows a greater appreciation of the difference in the
collective consciences of different societies. This principle was also applied by the Courts in
India during the British rule. Despite being affiliated to the Common Law system and the
parliament of United Kingdom, they departed from this system when it was felt that these
rules were not applicable to Indian society.
1
Bhuvana, Torts in India Whether Unnecessary or Simply Overlooked, available at
http://www.legalserviceindia.com/article/l129-Torts-In-India.html (Last visited on August 1, 2010).
2
PriyanathSen, HINDU JURISPRUDENCE, 211, (1972 Reprint). Is this an article? Where is the journal name, vol
and issue number?
3
M.C. Mehta v Union of India and ors., AIR (1987) 4 SC 463

4
This paper centres on negligence as an example to study the trends in tort litigation. The topic
has been further narrowed down to medical negligence. In India, medical negligence has
shown strongly discernable trends over the past few decades and has gained prominence both
under legal jurisprudence and in public consciousness.More and more cases relating to
Medical Negligence are being filed in India. This has forced the lawmakers to identify the
issues that plague medical negligence litigation. With Consumer Protection Act, 1986,
coming into picture the whole perception of medical negligence has been provided a new
outlook. Considering cases related to medical Negligence as consumer complaints has
significantly reduced the time taken in dealing with them. This is primarily because the
medical Council and the courts can be completely bypassed. Monopoly of a few doctors over
the whole Medical Administration has also been challenged as in the case of Maharashtra
state branch of the Medical Council. Thus, this research paper will take Medical Negligence
as a typical example of torts and analyse these trends in litigation relating to the tort of
Medical Negligence in India with special focus on the period after Independence.

5
Research Methodology:
Aim:

The aim of this research paper is to analyse the trends in tort litigation in India over the past
sixty-three years.

Objective:

This research paper analyses the changing trends in tort litigation in India. It seeks to achieve
this aim by taking the tort of negligence as an example. More specifically, this paper shall
focus on medical negligence as a specific tort and analyse the trends in litigation practices
with respect to the tort of medical negligence.

This project shall also focus on the present situation of tort litigation in India. It shall do so by
referring to the present scenario with respect to the litigation in case of Medical negligence as
a tort.

Methodology:

This research paper seeks to analyse the trends in tort litigation in India to draw a firm
correlation and a pattern in litigation over time. These trends will be analysed in the light of
the applicability of the Consumer Protection Act, 1986 and the popular trends before its
implementation.

Research Questions:

1 What is the place of tort law, an unwritten form of law, under the Indian Constitution,
one of the largest written constitutions of the world?
2 How are negligence and medical negligence proved in Indian Courts nowadays?4
3 What was the visible trend in litigation relating to Medical Negligence and
Malpractice?
4 What has been the impact of the Consumer Protection Act, 1986, on tort litigation in
the field of medical negligence and malpractice?
5 What is the possible future of medical negligence as a tort in India?

4
Bolam v. Friern Hospital Management Committee, [1957] 1 WLR 583.

6
Hypothesis:

1. Medical Liability under tort law is somewhat wider and more than the strict liability,
and is also under strict liability.
2. After the implementation on Consumer Protection Act, 1986, litigation in tort law has
seen a rapid surge in the number of cases reported to courts.

Scope and Limitations:

1. This research paper has restricted its scope to medical negligence as an example of a
particular tort. It does not take into account the other, possibly differing trends, in
other branches of tort law.
2. This research paper also studies the changes in the litigation process relating to
medical malpractice and negligence after the enforcement of the Consumer Protection
Act, 1986, and the inclusion of the medical profession into it.
3. This research paper also takes into account the limited applicability of the Consumer
Protection Act, 1986, to the medical profession. Thus, it also seeks to encompass
relatively less known problems within the litigation procedure with regards to medical
negligence, including Malicious Prosecution.
4. This research paper is only restricted to trends in tort litigation in Indian Judicial
History, post-independence and does not focus on the trend in other Common law
countries.

5.

7
Chapter 1: Principles relating to
Medical Negligence as a Tort
Chapter 1.1: What is Negligence?
In order to understand Medical Negligence, it is necessary to first look at negligence in toto.
Negligence has no strict universal definition. However, various sources have given similar
yet different definition and interpretations. Each definition adds to the overall picture in a
positive way widening the scope of the tort of negligence and adding to its
comprehensiveness. This is why some of the commonly acknowledged definitions are given
below:

“Negligence is The failure to exercise the standard of care that a reasonably prudent person
would have exercised in a similar situation; Any conduct that falls below the legal standard
established to protect others against unreasonable risk of harm, except for conduct that
intentionally, wantonly, or wilfully disregardful of others rights.”5

- Black’s Law Dictionary

“Negligence as a tort is the breach of a legal duty to take care which results in damage,
undesired by the defendant, to the plaintiff.”6

- Percy H. Winfield

“Negligence is 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 a reasonable man would not do.”7

- Salmond and Hevston

- Alderson B.8

5
BLACKS’ LAW DICTIONARY, 1056 (Bryan A. Garner ed., 7thedn., 1999).
6
WINFIELD AND JOLOWICZ ON TORT, 103, (W.V.H.Rogers ed., 16thedn., 2002).
7
R.F.V. Heuston, SALMOND&HEUSTON ON THE LAW OF TORTS, 216 (19thedn., 1987).
8
Blyth v Birmingham Waterworks Co. (1856), 11 Ex Ch 781, (The House of Lords).

8
 “A tort is a civil wrong for which the remedy is an action for unliquidated damages and
which is not exclusively the breach of a contract, or the breach of a trust, or the breach of
other merely equitable obligation”

-Salmond

Negligence as a tort, originated with Donoghue v. Stevenson.9 However, the nature and
constituents of the tort of negligence were decided in Caparo industries plc v. Dickman10.
The case formulated a three-step test to determine whether negligence has been committed in
a particular case.

The tort of negligence comprises primarily three elements:

1. Duty of care: This generally refers to the fact that the parties in case of a legal
relationship owe a generic duty of care to each other. This test constitutes three sub
tests as decided in Caparo Industries v Dickman Case11 :
a. Whether the consequences of the defendant’s act were reasonably
foreseeable.12
b. Whether there is a relationship of proximity between the parties, i. e. a legal
relationship or physical closeness.13
c. Whether in all the circumstances it would be fair, just and reasonable that the
law should impose a duty.14
2. Breach of duty: The aforementioned duty of care, if not performed appropriately,
would result in a legal breach of duty. It constitutes four subtests:
a. Whether harm was likely to occur from the said action.15
b. The practicality of taking precaution is also questioned and it is assessed
whether taking precaution is justified.16
c. The seriousness of the harm, at times, counterbalances the low risk of it.17
d. It is also assessed whether the risk taken was associated with a greater social
importance.18
9
Donoghue v. Stevenson, [1932] AC 562.
10
Caparo Industries plc v. Dickman, [1990] 2 AC 605.
11
Caparo Industries plc v. Dickman, [1990] 2 AC 605.
12
Kent v Griffiths, [2000] 2 All ER 474.
13
Caparo Industries plc v. Dickman, [1990] 2 AC 605.
14
Hill v C.C. of W. Yorkshire, [1989] AC 53.
15
Bolton v Stone [1951] AC 850.
16
Latimer v AEC Ltd, [1953] AC 643.
17
Paris v Stepney Borough Council, [1951] AC 367.
18
Watt v Hertfordshire County Council, [1954] 1 WLR 835.

9
 Also the plaintiff must produce a proof of the breach of duty. However, in rather
direct and blatant cases the legal maxim- “Res Ipsa Loquitur” may also apply.19
3. Damages caused by breach of duty: Here the law follows the principles of Injuria
sine Damnum and Damnum sine injuria. The legal breach of duty gives rise to legal
damages which in general constitutes three subtests.
a. Whether injury could have been caused otherwise.20
b. Remoteness of damage.21
c. In case of multiple possible cases, the claimant must prove that it was due to
the negligence of the defendant that the harm was caused.22

Chapter 1.2: Medical Negligence: Definition and

Historical Background
“Medical negligence is clearly defined as want of reasonable degree of care and skill or
wilful negligence on the part of medical practitioner in the treatment of patient with whom a
relationship of professional attendance is established so as to lead to bodily injuries or as to
loss of life.”23

The medical profession, from time immemorial, has been believed to be imbued with utmost
sanctity. Doctors and medical practitioners in all cultures have enjoyed a superior position in
the eyes of law. Doctors, for obvious historical and cultural reasons, have always been given
the benefit of doubt.24 Medical profession has always been treated reverentially by the law as
the knowledge of this profession has always been rather mysterious and inexact. Thus, the
line between negligence and the so-called will of God is understandably blurred. One who is
not been instructed in medical sciences would not really be able to ascertain whether a certain
mishap is the result of negligence on part of the Doctor or because of circumstantial inability.

However, over time, this perception was considerably altered and the divinity of medical
profession was strongly questioned by law. One may question the appropriateness of a

19
Scott v London & St Katherine Dock Co, (1865) 3 H & C 596.
20
Barnett v Chelsea & Kensington Hospital, [1968] 1 All ER 1068.
21
Smith v Leech Brain & Co, [1962] 2 QB 405.
22
Wilsher v Essex AHA, [1988] AC 1074.
23
ShounakMitra, Supreme Court and Medical Negligence Necessary Protection (2008), available at
http://www.legalserviceindia.com/article/l178-Medical-Negligence.html (last visited on August 4, 2010).
24
Anonymous, Medical Negligence, 27(45), ECONOMIC AND POLITICAL WEEKLY, 2393, 2393 (1992).

10
procedure adopted by a doctor or even his qualification to carry out a medical procedure. At
the same time one must not forget that a doctor is, indeed, not God. In the light of this fact
one needs to distinguish between professional misjudgement, unavoidable circumstances and
genuine malpractice or negligence. In this regard a comment made by Justice McNair is
especially relevant,

"………….. Where you get a situation which involves the use of some special skill or
competence, then the test whether there has been negligence or not is not the test of
the man on the top of a Clapham omnibus, because he has not got this special skill.
The test is the standard of the ordinary skilled man exercising and professing to have
that special skill. A man need not possess the highest expert skill at the risk of being
found negligent. It is well-established law that it is sufficient if he exercise the
ordinary skill of an ordinary competent man exercising that particular art. Counsel for
the plaintiff put it in this way, that in the case of a medical man, negligence means
failure to act in accordance with the standards of reasonably competent medical men
at the time. That is a perfectly accurate statement, as long as it is remembered that
there may be one or more perfectly proper standards; and if a medical man conforms
to one of those proper standards then he is not negligent. A doctor is not guilty of
negligence if he has acted in accordance with a practice accepted as proper by a
responsible body of medical men skilled in that particular art. Putting it the other way
round, a doctor is not negligent, if he is acting in accordance with such a practice,
merely because there is a body of opinion that takes a contrary view. At the same time,
that does not mean that a medical man can obstinately and pig-headedly carry on with
some old technique if it has been proved to be contrary to what is really substantially
the whole of informed medical opinion."25

One must also consider the changing relationship of a doctor and a patient. The concept of
divinity of the physic no longer exists. Patients today, are consumers and the doctor, a vendor
of his skills. In reality, the consumerism of our time has destroyed the fiduciary relationship
between the Doctor and patient. “Services of medical establishments are purchasable
commodities and the ‘business’ attitude has given an impetus to more and more malpractices
and instances of neglect. But the question is whether the entire community of medical
professionals is branded as a delinquent community would serve any purposes or will it cause
damage to the patients.
25
Per McNair J., Bolam v. Friern Hospital Management Committee, [1957] 1 WLR 583.

11
It is not that measures to check such derelictions are absent. In the older days, concentration
was more towards crimes and punishments. Heavy Penalties and deterrent punitive measures
were sanctioned.”26 The Indian doctrine of tolerance and tenacity has given way to an
impertinent awareness, typical of a consumer today.

One should also take into account a doctor’s professional liberty. Would he/she able to carry
out their tasks, if they knew that they would be liable for damages for even slightest of
mistakes made by them. In this regard, Lord Denning says:

“…in a hospital when a person who is ill goes in for treatment, there is always some risk, no
matter what care is used. Every surgical operation involves risks. It would be wrong, and
indeed bad law, to say that simply because a misadventure or misshape occurred, the hospital
and the doctors are thereby liable. It would be disastrous to the community if it were so. It
would –mean that a doctor examining a patient or a surgeon operating at a table instead of
getting on with his work, would be forever looking over shoulder to see if someone was
coming up with a dagger; for an action for negligence against a doc-tor is for him like unto a
dagger. His professional reputation is as dear to him as his body, perhaps more so, and-an
action for negligence can wound his reputation as severely as a dagger can his body. You
must not, therefore, find him negligent simply because something happens to go wrong; if,
for instance, one of the risks inherent in an operation actually takes place or some
complication ensues which lessens or takes away the benefits that hoped for, or if in a matter
of opinion he makes an error of judgment.”27

"In the course of a treatment as a result of the court ruling.” More doctors are likely to
practice defensive medicine and order detailed investigations so as to be absolutely sure of
the illness before prescribing treatment" say Dr. Chaparwal, the then-President of the Indian
Medical Association.28

Medical Negligence was dealt under tort law in India until 1986, when the Consumer
Protection Act was enacted. Before the enactment of Consumer Protection Act, 1986, cases
related to Medical malpractice or negligence were adjudicated over long periods of time,

26
A. K. Kaushal, UNIVERSAL’S MEDICAL NEGLIGENCE AND LEGAL REMEDIES, 99, 109, (Manish Arora ed.,
2ndedn., 1998).
27
ArunBal, Consumer Protection Act and Medical Profession, 28(11), ECONOMIC AND POLITICAL WEEKLY,
432, 433, (1993).
28
Ganpati Mudur, Indian Doctors May Be Tried In Consumer Courts, 311 (7017), BRITISH MEDICAL JOURNAL,
1385, 1385, (1992).

12
ranging between 5 to 15 years. This inordinate delay was not only contributing to excessive
backlogs in courts but also proved to be counter-productive. Today, however, the same cases
are dealt within a matter of months.29

Yet, medical professionals had shown fierce resistance to this inclusion, citing various
grounds ranging from the nature of their jobs to the fact that government and semi-
government hospitals which offer paid services along with the free services would not be
liable under Consumer Protection Act, 1986, . However, these grounds have been laid to rest
by the Supreme Court’s verdict on Indian Medical Council's writ petition in November
1995.30 Even so, there was little or no awareness about Medical Profession’s inclusion under
Consumer Protection Act, 1986, until Vasanta Nair v. Cosmopolitan Hospital31.

29
ArunBal, Protecting Health Care Consumers: Is CPA effective?,31(51), ECONOMIC AND POLITICAL WEEKLY,
3289, 3289, (1996).
30
Id.
31
[1992] 1 C.P.R. 820

13
Chapter 2: Growth of Medical
Negligence as a tort in India
Chapter 2.1: What was the trend in tort litigation relating to
Medical Negligence before 1986?

Medical Negligence was treated as a tort only until 1986.32 Litigation process was slow and
counterproductive33. An important reference here must be made to Bolam test. Bolam test has
been extensively used by judges adjudicating in cases relating to medical negligence. It has
four points:

1. Medical Professionals owe a duty of care to their patients.

2. There must be usual and normal practice of a medical procedure
3. The defendant should not have adopted it.
4. That the course in fact adopted, is one, no professional man of ordinary skill would
have taken, had he been acting with ordinary care.34

The basis for imposing liability was primarily negligence and acid test was commonly used
to prove it. However, negligence in terms of a medical procedure has never been strictly
defined and it is more or less a slippery ground to prove.35

Duty of care towards patients owed by a doctor has always been the cornerstone for all tort
cases relating to medical negligence. It was held that:

“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 a very low degree of care
and competence judged in the light of the particular circumstances of each case is what the
law requires.36. The doctor no doubt has discretion in choosing treatment which he proposes
to give to the patient and such discretion is relatively ampler in cases of emergency.”37

32
Dr. Ravinder Gupta v. Ganga Devi, 1993(3) CPR 255.
33
Supra note 29.
34
Bolam v. Friern Hospital Management Committee, [1957] 1 WLR 583.
35
Supra note 28.
36
HALSBURY’S LAWS OF ENGLAND , 26 ,(3rd edn. 1973), 17.
37
Dr.LaxmanBalakrishna Joshi Vs. Dr.TrimbakBapuGodbole, AIR 1969 SC 128

14
Thus the essence of Medical Negligence litigation could be condensed into the following
points:

 A doctor when consulted by a patient owes him certain duties, namely,

(a) A duty of care in deciding whether to undertake the case;

(b) a duty of care in deciding what treatment to give;

(c) a duty of care in the administration of the treatment. A breach of any of these duties gives
a cause of action for negligence to the patient.38

Chapter 2.2: What is the impact of Consumer Protection Act, 1986?

Medical Profession had, quite expressly refused to allow their inclusion into the Consumer
Protection Act, 1986, in 1986. Doctors believed that a doctor patient relationship is not as
easily classified as any other supplier-consumer relationship.
"The patient-doctor relationship is complex and not the same as that of a producer and
consumer," said Dr Bharat Chaparwal, president of the Indian Medical Association. Dr
Jagdish Sobti, honorary secretary of the association, said: "Feelings of mutual distrust might
creep in." More than 8000 cases lying pending in the Indian courts are against doctors.
Consumers have felt that since Medicine has become as much a business profession as any
other, doctors must also be treated likewise.39
Ironically, the most significant result of this flamboyant campaigning of the Medical Council
was the increasing awareness of the consumers.40

Chapter 2.3: A case study of the case “ Indian Medical

Association v. V.P. Shantha and Ors. (AIR 1996 SC 550).How
has it impacted tort litigation?”

Many Doctors have expressly argued that Medical profession should not be included under
the Consumer Protection Act, 1986, as a doctor-patient relationship is akin to a master-
servant relationship. However, NCDRC did not agree. It said that this relationship is a
contractual relationship, where the doctor, like an independent contractor, is hired to perform

38
Mrs.ShantabenMuljibhai Patel others v. Breach Candy Hospital and Research Centre & others, (2005) CPJ 10
(NC)
39
Supra note 21.
40
Supra note 21

15
the task. The ‘How’ of the matter is left to his discretion. Hence, it was firmly put down that
doctor-patient relationship is governed by a contract of service and thus cannot be exempted
from the Consumer Protection Act, 1986, .Many High Courts also started recognizing
medical profession under ‘service” as per section 2(1)(o) of the Consumer Protection Act.
1986. In the case of Dr. A.S. Chandra v. Union of India “a Division Bench of Andhra
Pradesh High Court has held that service rendered for consideration by private medical
practitioners, private hospitals and nursing homes must be construed as 'service' for the
purpose of Section 2(1)(o) of the Act and the persons availing such services are 'consumers'
within the meaning of Section 2(1)(d) of the Act.” 41

However, there were also dissenting opinions, In the case of Dr. C.S. Subramanian v.
Kumarasamy and Anr.42, Madras High Court Held that the “…services rendered to a patient
by a medical practitioner or by a hospital by way of diagnosis and treatment, both medicinal
and surgical, would not come within the definition of 'service' under Section 2(1)(o) of the
Act and a patient who undergoes treatment under a medical practitioner or a hospital by way
of diagnosis and treatment, both medicinal and surgical, cannot be considered to be a
'consumer' within the meaning of Section 2(1)(d) of the Act; but the medical practitioners or
hospitals undertaking and providing paramedical services of all kinds and categories cannot
claim similar immunity from the provisions of the Act and that they would fall, to the extent
of such paramedical services rendered by them, within the definition of 'service' and a person
availing of such service would be a 'consumer' within the meaning of the Act.”

However, it was only in 1995 that the Honorable Supreme Court finally passed a verdict on
the matter in the case of Indian Medical Association v.V.P. Shantha and Ors.43 The
controversy regarding the matter was centred around Section 2(1)(o) which read:

“"service" means service of any description which is made available to potential [users and
includes, but not limited to, the provision of] facilities in connection with banking, financing
insurance, transport, processing, supply of electrical or other energy, board or lodging or
both, [housing construction,] entertainment, amusement or the purveying of news or other
information, but does not include the rendering of any service free of charge or under a
contract of personal service”44

41
1992 ( 1 ) ALT 713
42
(1994) 1 MLJ 438
43
Indian Medical Association v.V.P. Shantha and Ors, AIR 1996 SC 550.
44
The Consumer protection Act 1986, section 2(1)(o).

16
The Supreme Court held that “any” was a very wide term and applied to one, some or all
services rendered to a consumer. The whole clause has already been divided into three parts
in the past by the court45; in this regard, the court observed: “ the entire purpose of widening the
definition is to include in it not only day to day buying and selling activity undertaken by a common
man but even such activities which are otherwise not commercial in nature yet they partake of a
character in which some benefit is conferred on the consumer.”

It interpreted the term “consumer” under Section 2(1)(d)(ii):

“…hires or avails of] any services for a consideration which has been paid or promised or
partly paid and partly promised, or under any system of deferred payment and includes any
beneficiary of such services other than the person who [hires or avails of] the services for
consideration paid or promised, or partly paid and partly promised, or under any system of
deferred payment, when such services are availed of with the approval of the first mentioned
person [but does not include a person who avails of such services for any commercial
purpose]”46

Finally the Supreme Court arrived at the following conclusions:

1. “Any assistance lent to a patient by a doctor in the form of consultation or any other
medical procedure will qualify as “'service' as defined in Section 2(1)(o) of the
Consumer Protection Act..”

2. Despite the fact that medical practitioners and professionals are under the disciplinary
control of the Medical Council of India, they are still subject to be liable under
Consumer Protection Act. 1986.

3. “A 'contract of personal service' has to be distinguished from a 'contact for personal

services'. In the absence of a relationship of master and servant between the patient
and medical practitioner, the service rendered by a medical practitioner to the patient
cannot be regarded as service rendered under a 'contract of personal service'.” Such
service is termed as 'contract for personal services' and it is to be clarified that such
service is not exempted under the exclusionary clause of 'service' as stated under
Section 2(1)(o) of the Consumer Protection Act..

45
Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787.
46
Supra note 35, at Section 2(1)(d)(ii)

17
4. The expression 'contract of personal service' in Section 2(1)(o) cannot be restricted to
domestic help employed in households or professional assistants. This exemption
would also extend to medical personnel employed to provide medical aid. However,
the services provided by a medical personnel to his employer under the contract of
employment would be outside the scope of 'service' as defined in Section 2(1)(o) of
the Consumer Protection Act..

5. Service rendered free of charge by a medical personnel attached to a hospital/Nursing

home or a medical officer employed in a hospital/Nursing home where such services
are provided free of charge to everybody, would not qualify as "service" as defined in
Section 2(1)(o) of the Consumer Protection Act. “The payment of a token amount for
registration purpose only at the hospital/nursing home would not alter the position.”

6. Service provided at a non-Government hospital/Nursing home where any person

availing the service (rich or poor) are given free service - is outside the scope of the
'service' as defined in Section 2(1)(o) of the Consumer Protection Act.“The payment
of a token amount for registration purpose only at the hospital/Nursing home would
not alter the position.”

7. Service rendered at a non-Government hospital/Nursing home where charges are

required to be paid by the persons availing such services falls within the purview of
the expression 'service' as defined in Section 2(1)(o) of the Consumer Protection Act..

8. Service rendered at a non-Government hospital/Nursing Home where able people are

required to pay for medical services, while poor and economically weak people are
provided services free of cost, fall under the category of 'service' as defined in Section
2(1)(o) of the Consumer Protection Act.“…Irrespective of the fact that the service is
rendered free of charge to persons who are not in a position to pay for such
services.”Also, even free service here would fall under the ambit of "service" and the
recipient is still a "consumer" under the Consumer Protection Act.

9. Medical assistance provided at a government hospital, free of cost to all, whether rich
or poor would be excluded from the definition 'service' as given in Section 2(1)(o) of
the Consumer Protection Act. “The payment of a token amount for registration
purpose only at the hospital/nursing home would not alter the position.”

18
 10. Service provided at a Government hospital/health center/dispensary where medical
assistance is provided on payment of charges, but is also provided free of charge to
any other persons who are willingly availing these services would qualify as 'service'
as defined in Section 2(1)(o) of the Act “…irrespective of the fact that the service is
rendered free of charge to persons who do not pay for such service. Free service
would also be "service" and the recipient a "consumer" under the Act.”

11. Service provided by a medical practitioner or hospital/nursing home do not qualify for
an exemption under the ambit of “services provided free of charge”, if the person
availing the service is insured under any insurance policy for medical care, under
which the “…charges for consultation, diagnosis and medical treatment are borne by
the insurance company”.Such service would fall under the ambit of 'service' as given
in Section 2(1)(o) of the Consumer Protection Act.
12. Similarly, in a case where the employer bears the costs of medical assistance provided
by a medical personnel or institution to his employee or a family member of the
employee, as the agreement between them suggests, the assistance provided would
qualify as 'service' under Section 2(1)(o) of the Consumer Protection Act.”47

This decision lay to rest most contentions put forward by the Medical Council of India. At the
same time it clearly defined the limits of the act and the scope of its applicability in the field
of medicine. This decision brought a monumental change in the trends in Litigation related to
Medical negligence and Malpractice. Increased awareness and consumer friendly litigation
process has encouraged the consumers to come forward with their grievances.

47
Supra note 34.

19
Chapter 3: Recent Trends in Litigation
Relating To Medical Negligence
Medical negligence was at the periphery of litigation until the implementation of Consumer
Protection Act, 1986. Till then medical negligence was completely governed by tort law as
was observed by the Honourable Supreme Court in the case of Dr. Ravinder Gupta v. Ganga
Devi.48Litigation was expensive and time consuming. Since the foundational basis for a
liability was professional negligence and there was no specialized method to ascertain
medical negligence distinguishing it from unavoidable circumstances was difficult. 49Since
then the volume of litigation in the medical field has seen a sharp rise. Consumer Protection
Act, 1986, aims to provide swift compensation and redressal. Thus its provisions are also
aimed at being consumer-friendly, skirting around unnecessary formalities taking into
account the economic constraints of the aggrieved consumer. The application procedure has
been considerably simplified. No stamp duty or court fees are required. Even the legal jargon
has been cut down on and the plaintiff can just write a letter in a simple prescribed format.
There is a specific time frame in which the disposal of cases is allowed which provides an
incentive to the plaintiff to file complaints without any unnecessary delay. At the same time,
this clause prevents frivolous petitions from being filed. 50All these factors have made justice
in case of medical negligence much more accessible to the common man.

The scope of “negligence” in the medical profession has considerably broadened in

subsequent decisions.

 In the case of Poonam Verma v. Aswin Patel,51 it was apparent to the court that the
respondent was not adequately qualified in administering allopathic drugs to the
patient, Mr Pramod Verma. He had administered strong anitbiotics to the patient,
firstly on his own diagnosis of Viral Fever, and subsequently for Typhoid, without
confirming the above diagnosis by blood test or urine test. It was also brought out that
the respondent, although a registered medical practitioner52, was entitled to practice in
homeopathic medical sciences. It was determined that he could not prescribe
48
Supra note 25.
49
Supra note 19.
50
Supra note 20.
51
[1996] 4 SCC 332
52
S.S. Jaswal, Medical Negligence: an analysis of Recent Judicial Trends, 32 INDIAN BAR REVIEW, 99, 109,
(2005).

20
 allopathic treatment to any patient since it would require substantive allopathic
medicinal knowledge. Thus, the court concluded that “We are of the positive opinion
that Respondent No.1, having practised in Allopathy, without being qualified in that
system, was guilty of Negligence per se and, therefore, the appeal against him has to
be allowed in consonance with the maxim Sic Uteretuoutalienum non loedas (a person
is held liable at law for the consequences of his negligence).”53

 In Achutrao Haribhau Khodwa v. State of Maharastra and Ors 54there was a peculiar
situation. After an abdominal surgery in a government hospital, it was found that a
mop was left inside the lady patient’s abdomen. Due to complications, a second
surgery was performed on her, which she could not survive. In this case two major
issues had arisen: firstly, whether the doctors were negligent and secondly, can the
state be held liable in this case of negligence on part of its servants. The case was first
brought in front of the high court that decided that the state cannot be held vicariously
liable in this case as running a state hospital is a part of its sovereign functions. Also,
due to conflict of opinions between medical experts consulted by the court and
tampering of evidence by the respondents, negligence could not be proven.

Yet the Supreme Court took a different opinion. Not only the negligence of the
doctors was proved, but also decided that State is vicariously liable in this case as “the
running of a hospital, where the members or the general public can come for
treatment, cannot be regarded as being an activity having a sovereign character.”
Hence, it was held that the state is vicariously liable in such a case of medical
negligence in state run hospitals.

Another Important aspect of this decision was that the court held that “Negligence
cannot be attributed to a doctor so long as he is performing his duties to the best of his
ability and with due care and caution.”55

 In the case of M/s Spring Meadows Hospital and anr v. HarjolAhluwalia through K.S.
Ahluwalia and Anr56is also a case of Medical Negligence. In this the major

53
Supra note 44, ¶ 47.
54
[1996] 2 SCC 634.
55
Supra note 45.
56
[1998] 4 SCC 39.

21
 contentions that arose were namely; Whether the parents of a minor patient can be
stated to be consumers and whether they can be compensated for mental agony.
It was held that parents cannot be held to be consumers and also that both the minor
and the parents cannot be awarded damages. Another outcome of the case was that it
was decided that “error of judgement cannot necessarily be termed as negligence.”57
 In the case of State of Haryana v. Smt. Santra58Bolam’s test has been approved. It
reads: “The test is the standard of the ordinary skilled man exercising and professing
to have that special skill. A man need not possess the highest expert skill; it is well
established law that it is sufficient if he exercises the ordinary skill of an ordinary
competent man exercising that particular Article. In the case of a medical man,
negligence means failure to act in accordance with the standards of reasonably
competent medical men at the time. There may be one or more perfectly proper
standards, and if he conforms with one of these proper standards, then he is not
negligent.”59
In this case despite sterilization under a government scheme, the plaintiff, Mrs.Santara
conceived. She was at first misled by the same medical authorities who had operated
on her, to believe that there was no pregnancy. Later on, when the pregnancy became
apparent the medical authorities informed her that only one of her fallopian tubes had
been operated upon while the other was left untouched. She claimed compensation
hefty enough to support the girl child born to her atleast till she attained puberty. This
was in view that she was a poor woman, already with seven children.

However, the counsel for the appellants contended that there was no loss incurred and
thus no tort has been committed. But the court held that:

“Negligence is a 'tort'. Every Doctor who enters into the medical profession has a duty
to act with a reasonable degree of care and skill. This is what is known as 'implied
undertaking' by a member of the medical profession that he would use a fair,
reasonable and competent degree of skill.”60

57
Supra note 44, at 110
58
[2000] 5 SCC 182
59
Supra note 18
60
Supra note 50

22
 Thus, the court decreed that the plaintiff is completely within her rights to claim full
compensation from the state government of Haryana and the state must pay such
damages to her.

 This stand taken by the Supreme Court has been considerably altered in two
subsequent cases that must be mentioned here. In the cases of State of Punjab v.
Shivram61 and State of Haryana v. Raj Rani62Supreme Court diluted its stand
considerably. It held that “ merely because a woman having undergone a sterilization
operation became pregnant and delivered a child, the operating surgeon or his
employer cannot be held liable for compensation on account of unwanted pregnancy
or child.” However, there is an exception “if there is proved negligence on part of the
surgeon in performing the surgery, liability may arise.” The aforementioned proven
negligence shall be tested through Bolam Test. There is another condition also which
has been included in liability. “If the surgeon has assured 100 per cent exclusion of
pregnancy after the surgery and was only on the basis of such assurance that the
plaintiff was persuaded to undergo surgery.”63 Thus, the doctor can be held liable only
in those cases where the cause of the failure of the surgery was his own negligence.
This decision comes in the wake of the realization that scientifically tubectomy
(cutting and sealing of the fallopian tubes of a woman) and vasectomy (blocking the
sperm ducts of a male by cutting sealing) are not sure processes. The tubes may
regenerate and reunite. Although a rarity, such cases have occurred in the past.

Thus, the latest trends can be condensed to mean that:

“In the absence of proof of negligence, the surgeon cannot be liable to pay compensation”64

In the light of the given cases the recent trends in tort litigation relating to medical negligence
have been adequately illustrated.

61
[2005] 6 SCALE 770
62
[2005] 7 SCALE 1
63
Supra note 45, at 110-111
64
Supra note 45.

23
Chapter 4: Limitations of the Litigation
System
The inclusion of medical negligence within the ambit of Consumer Protection Act, 1986,
1986 has dramatically changed the scope of legal remedy in the field but recent trends have
shown that there are inherent limitations which reduce its effectiveness and hence success.
Every system has its inherent drawbacks and most of them can be easily addressed by
spreading basic awareness among both the doctors and patients.

The most serious problem plaguing litigation in all fields is the excessive number of frivolous
cases filed which hamper the working of the Courts and provides unnecessary obstacles. The
situation is worse in consumer cases and gets magnified in those related to medical
negligence because it is often hard to distinguish between negligence and genuine limitations
of the medical field. There is a fine of Rs. 10,000 against those who file false or frivolous
lawsuits against doctors but the members of the Indian Medical Association believe that this
is a petty sum and does not prove to be a strong deterrent.65
The Supreme Court in Jacob Matthews v. State of Punjab66, marked as a landmark judgment
in the field of medical negligence, made it clear that extreme ‘care’ and ‘caution’ should be
exercised while initiating criminal proceedings against a medical practitioner. It framed
obligatory guidelines under which a medical practitioner could be held criminally liable on
account of his professional negligence or deficiency of services.A complaint against a doctor
is not to be entertained unless the allegation against him is supported by a credible opinion
given by another doctor67. This clause often leaves the patients helpless as most doctors are
unwilling to testify against their colleagues. 68 This attitude among the doctors has led to even
genuine cases being dismissed due to lack of evidence.
Medical records in most cases are not maintained diligently and this restricts the Courts as
vital questions about the case in question remain unaccounted for. Proving charges of
65
GanapatiMudur, Indian Doctors Not Accountable, Says Consumer Report, 321, (7261) , British Medical
Journal, 588 (Sep. 9, 2000) available at http://www.jstor.org/stable/25225546 ( Last visited August 8, 2010).
66
Jacob Matthews Vs State of Punjab, 2005Crl. L.J. 3710
67
VarshaNarsimhan, Supreme Court and Medical Negligence – Necessary Protection or License to Kill,
(September 2009), available at, www.jurisonline.in/2009/09/supreme-court-and-medical-negligence-
%E2%80%93-necessary-protection-or-license-to-kill/, (Last visited on August 8, 2010)
68
Interview with Dr. Pankaj Singh, (August 12, 2010).

24
negligence becomes easier for those who file cases indiscriminately if sloppily maintained
records fail to show whether due care was taken or not. According to the landmark decision
given by Bombay High Court in the case of Raghunath Raheja v. The Maharashtra Medical
Council and Ors, the patient or his legal heir has the right to get the copies of the entire
medical record on payment of reasonable charge 69. In the case of Meenakshi Mission
Hospital and Research Centre v. Samuraj and Anr.70, the National Commission held the
hospital guilty of negligence on the grounds that the name of the anesthetist was not
mentioned in the operation notes though anesthesia was administered by two anesthetists.
There are situations where the consent of the patient is ot taken before carrying out the
medical procedure or informed consent from the patient’s side is absent. Hospitals generally
take the easy way out by not maintaining exhaustive records but they are ultimately only
harming themselves. Transparency and detailed record keeping by the hospital staff or
doctors and more awareness on the part of the consumers about these records will help both
the consumers as well as the medical profession.

The benchmark for treatment in most cases rests on Western standards and there are
innumerable situations when it fails to apply to the Indian scenario. Even the Courts need to
rely on Western precedents due to the lack of their Indian counterparts. 71 Thus it cannot be
determined whether the method of treatment used was the best possible due to the wide range
of possible circumstances and this leaves both the consumers, the medical practitioners as
well as the legal profession in a quandary.

69
AIR1996 Bom 198
70
I(2005) CPJ 33 (NC)
71
Supra note 51.

25
Conclusion
One may even question the scope of tort law in India. In a nation where almost all the laws
are codified to form the single largest constitution of the world, tort law is extremely
vulnerable to extinction at the hands of codification. In this context Justice Sahai comments:
“Truly speaking the entire law of torts is founded and structured on morality. Therefore, it
would be primitive to close strictly or close finally the ever expanding and growing horizon
of tortious liability. Even for social development, orderly growth of the society and cultural
the liberal approach to tortious liability by court would be conducive.”72

In the course of this research paper, Medical Negligence has been comprehensively analysed.
Major issues such as impact of Consumer Protection Act, 1986, , rising number of cases and
malicious prosecution have been studied in depth. On the other hand, various controversial
contentions such as the definition of a patient as a consumer and Medical Assistance as
‘service’ under the Consumer Protection Act, 1986, have been adequately dealt with. Finally,
various cases have been analysed and studied in depth to identify distinct trends in litigation
relating to this specific tort.

Consumer Protection Act, 1986, has definitely brought a major change in tort litigation in
general. In case of Medical Negligence this change was highlighted by numerous
controversies and also because, even under Consumer Protection Act, 1986, the applicability
of law changes from case to case. However, it has been shown that courts, over the years,
have started viewing medical negligence cases more favourably although malicious and
frivolous cases have been dealt with quite severely.73

Taking these facts into account, it has been observed that tort litigation in India has shown
two distinct trend lines before and after the implementation of Consumer Protection Act,
1986. Not only Medical negligence, but also tort litigation in general has been heavily
influenced by this act. This has led to increased number of cases related to tort litigation. The
past twenty four years have seen an eminent rise in the public and judicial awareness
regarding tort law.It may amount to say that tort litigation is witnessing a resurgence within
the ambit of the Indian Constitution.

72
Jay Laxmi Salt Works (p) ltd. v. State of Gujarat (1994) 4 SCC 1
73
Jacob Matthews Vs State of Punjab, 2005Crl. L.J. 3710

26
27
Bibliography
Books
 WINFIELD AND JOLOWICZ ON TORT, 103, (W.V.H.Rogers ed., 16th edn., 2002).
 R.F.V. Heuston, SALMOND&HEUSTON ON THE LAW OF TORTS , 216, (19th Edition,
1987)
 Priyanath Sen, HINDU JURISPRUDENCE, (1972, Reprint)
 A. K. Kaushal, UNIVERSAL’S MEDICAL NEGLIGENCE AND LEGAL REMEDIES,

(Manish Aroraed), 1998, second edition.

 HALSBURY’S LAWS OF ENGLAND, (3rd edn. 1973)

Articles
 Bhuvana, Torts In India Whether Unnecessary Or Simply Overlooked,available
at http://www.legalserviceindia.com/article/l129-Torts-In-India.html

 ShounakMitra, Supreme Court and Medical Negligence Necessary

Protection(2008), available at http://www.legalserviceindia.com/article/l178-
Medical-Negligence.html

 Medical Negligence, 27(45), ECONOMIC AND POLITICAL WEEKLY, 2393, 2393

(1992).

 ArunBal, Consumer Protection Act and Medical Profession, 28(11), ECONOMIC

AND POLITICAL WEEKLY, (1993).

 GanpatiMudur, Indian Doctors May Be Tried In Consumer

Courts,311(7017),British Medical Journal, (1992)

 ArunBal, Protecting Health Care Consumers: Is CPA effective?,31(51),

ECONOMIC AND POLITICAL WEEKLY, (1996).

 S.S. Jaswal, Medical Negligence: an analysis of Recent Judicial Trends, 32,

INDIAN BAR REVIEW, 99, 109, 2005

 VarshaNarsimhan, Supreme Court and Medical Negligence – Necessary

Protection or License to Kill, (September 2009), Available at,

28
 www.jurisonline.in/2009/09/supreme-court-and-medical-negligence-
%E2%80%93-necessary-protection-or-license-to-kill/,

Miscellaneous

 Interview with Dr. Pankaj Singh ( August 12, 2010).

 BLACKS’ LAW DICTIONARY, 1056, (Bryan A. Garner ed, 7th edn., 1999).

29