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Dr.

Ram Manohar Lohiya National Law University,


Lucknow
2014-2015






Final Draft
on
Topic: Consequential damages in Negligence
in
Subject: LAW OF TORT
Submitted for the project work undertaken in the partial fulfillment of B.A.LL.B. (Hons.) at
Dr. Ram Manohar Lohiya National Law University, Lucknow.

Under the guidance of: Submitted by:
Mr. Radheshyam prasad Harmandeep Singh
Astt. Prof. (Law) Roll No. 63
Dr. RMLNLU (Lucknow) B.A.LL.B.(Hons.)
I
st
Semester

Acknowledgement

Words can never convey what deeds have done.
Writing a project on any topic is never a single mans job. I am overwhelmed
in all humbleness and gratefulness to acknowledge my depth to all those who
have helped me to put these ideas, well above the level of simplicity and into
something concrete.
I am very thankful to my torts teacher Mrs. Radheshyam Prasad for his
valuable help. He was always there to show me the right track when I
needed her help. With the help of her valuable suggestions, guidance
and encouragement, I was able to complete this project work.
I would also like to thank my friends, who often helped me and gave me
support at critical junctures during the making to this project.
I hope you will appreciate the hard work that I have put in this project work.
Harmandeep Singh
Section A
Roll No. 63



Table of contents

Introduction4
What is negligence.4
Essentials for proving negligence.5
Damages 5
Types of Damages.6
Present day scenario..6
Some of the leading cases.8
Defences....24
Remedy..25
Bibliography..29






INTRODUCTION
In the law of negligence, professionals such as doctors and surgeons are included in the category
of persons professing some special skill or skilled persons generally. A doctor would not assure
the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result
of surgery would invariably be beneficial, much less to the extent of 100% for the person
operated on. The only assurance with such a professional can give or can be understood to have
given by implication is that he is possessed of the requisite skill in that branch of profession
which he is practising and while undertaking the performance of the task, he would be exercising
his skill with reasonable competence. This is all what the person approaching the professional
can expect.
Judged by this standard, a professional may be held liable for negligence on one of two findings:
either he was not possessed of the requisite skill which he professed to have possessed, or he did
not exercise, with reasonable competence in the given case, the skill which he did possess. The
above factors determine the negligence in medical profession, hence known as medical
negligence.
Negligence
Negligence is failure to exercise the care that a reasonably prudent person would exercise in like
circumstances. The area of tort law known as negligence involves harm caused by carelessness
or not intentional harm.
According to Jay M. Feinman of the Rutgers University School of Law;
"The core idea of negligence is that people should exercise reasonable care when they act
by taking account of the potential harm that they might foresee cause harm to other
people."
"those who go personally or bring property where they know that they or it may come into
collision with the persons or property of others have by law a duty cast upon them to use
reasonable care and skill to avoid such a collision."
Through civil litigation, if an injured person proves that another person acted negligently to
cause their injury, they can recover damages to compensate for their harm. Proving a case for
negligence can potentially entitle the injured plaintiff to compensation for harm to their
body, property, mental well-being, financial status, or intimate relationships. However,
because negligence cases are very fact-specific, this general definition does not fully explain
the concept of when the law will require one person to compensate another for losses caused
by accidental injury. Further, the law of negligence at common law is only one aspect of the
law of liability. Although resulting damages must be proven in order to recover
compensation in a negligence action, the nature and extent of those damages are not the
primary focus of negligence cases

Essentials for proving negligence
A person who alleges negligent must prove four elements:
A duty of care was owed by the person.
The person violated the applicable standard of care.
The person suffered a compensable injury.
The injury was caused in fact and proximately caused by the substandard conduct.
Causation may also be a vigorously litigated issue because a physician may allege that the
injuries were caused by physical factors unrelated to the allegedly negligent medical treatment.
For example, assume that a physician is sued for the negligent prescription of a drug to a patient
with coronary artery disease and that the patient died of a heart attack. The plaintiff's estate
cannot recover damages for the heart attack unless there is sufficient proof to show that the
medication was a contributing cause.The critical element is standard of care, which is concerned
with the type of medical care that a physician is expected to provide. Until the 1960s the standard
of care was traditionally regarded as the customary or usual practice of members of the
profession. This standard was referred to as the "locality rule," because it recognized the custom
within a particular geographic area. This rule was criticized for its potential to protect a low
standard of care as long as the local medical community embraced it. The locality rule also was
seen as a disincentive for the medical community to adopt better practices.

Damages
Damages place a monetary value on the harm done, following the principle of restitutio in
integrum (Latin for "restoration to the original condition"). Thus, for most purposes connected
with the quantification of damages, the degree of culpability in the breach of the duty of care is
irrelevant. Once the breach of the duty is established, the only requirement is to compensate the
victim.
One of the main tests that is posed when deliberating whether a claimant is entitled to
compensation for a tort, is the "reasonable person". The test is self-explanatory: would a
reasonable person be damaged by the breach of duty. Simple as the "reasonable person" test
sounds, it is very complicated. It is a risky test because it involves the opinion of either the judge
or the jury that can be based on limited facts. However, as vague as the "reasonable person" test
seems, it is extremely important in deciding whether or not a plaintiff is entitled to compensation
for a negligence tort.
Damages are compensatory in nature. Compensatory damages addresses a plaintiff/claimant's
losses (in cases involving physical or mental injury the amount awarded also compensates for
pain and suffering). The award should make the plaintiff whole, sufficient to put the plaintiff
back in the position he or she was before Defendant's negligent act. Anything more would
unlawfully permit a plaintiff to profit from the tort.
Types of damage
Special damages - quantifiable dollar losses suffered from the date of defendant's negligent
act up to a specified time. Special damage examples include lost wages, medical bills, and
damage to property such as one's car.
General damages - these are damages that are not quantified in monetary terms. A general
damage example is an amount for the pain and suffering one experience from a car collision.
Lastly, where the plaintiff proves only minimal loss or damage, or the court or jury is unable
to quantify the losses, the court or jury may award nominal damages.
Punitive damages - Punitive damages are to punish a defendant, rather than to compensate
plaintiffs, in negligence cases. In most jurisdictions punitive damages are recoverable in a
negligence action, but only if the plaintiff shows that the defendants conduct was more than
ordinary negligence (i.e., wanton and willful or reckless).

Present day scenario
Most states have modified the locality rule to include both an evaluation of the customary
practices of local physicians and an examination of national medical standards. Physicians are
called to testify as expert witnesses by both sides in medical malpractice trials because the jury is
not familiar with the intricacies of medicine. Standards established by medical specialty
organizations, such as the American College of Obstetricians and Gynecologists, are often used
by these expert witnesses to address the alleged negligent actions of a physician who practices in
that specialty. Nonconformance to these standards is evidence of negligence, whereas
conformance supports a finding of due care.
Other rules govern the standard of care evaluation. A few states apply the "respectable minority
rule" in evaluating a physician's conduct. This rule holds that a physician is not negligent merely
by electing to pursue one of several recognized courses of treatment. Some states use the "error
in judgment rule." This principle exempts a physician from liability if the malpractice is based on
the physician's error in judgment in choosing among different methods of treatment or in
diagnosing a condition.
Medical malpractice litigation began to increase in the 1960s. Tort lawyers were able to break
the traditional "conspiracy of silence" that discouraged physicians from testifying about the
negligence of colleagues or serving as expert witnesses. By the 1970s physicians alleged that
malpractice claims were interfering with their medical practices, with insurance companies either
refusing to write malpractice policies for them or charging inflated premiums.
Over the years, physicians and health care providers argued that malpractice claims were also
driving up the cost of health care. They contended that jury verdicts in the millions of dollars had
to be passed on to the consumer in the form of higher insurance premiums and physician fees. In
addition, many physicians were forced to practice "defensive medicine" to guard against
malpractice claims. Defensive medicine refers to the conducting of additional tests and
procedures that are not medically necessary but that would assist in defeating a negligence claim.
In response to rising malpractice suits, many states pushed for "tort reform" measures. Such
measures limit the amount of damages a patient can recover for noneconomic losses, such as
pain and suffering, and Punitive Damages. For example, in 1975, California enacted the Medical
Injury Compensation Reform Act, which limits recovery of noneconomic damages at $250,000
and restricts the amount of fees that may be recovered by lawyers. Several other states adopted
similar measures based on the California model.

The medical community, however, continued to fight for widespread tort reform among the
states, and at the national level. They cited insurance increases in the late 1990s and early 2000s,
which put further pressure on doctors' and hospitals' earningsearnings that had been shrinking
under Managed Care. Some areas of medicine were particularly hard hit. In New York and
Florida, for example, obstetricians, gynecologists, and surgeonsthe doctors who are sued the
most frequentlypay more than $100,000 a year for $1 million in coverage.
In 2003, President GEORGE W. BUSH addressed the medical community's concerns by
endorsing legislation that would place a $250,000 cap on noneconomic damages at the national
level. According to Bush, who spoke before an American Medical Association (AMA) advocacy
conference, "There are too many frivolous lawsuits against good doctors, and the patients are
paying the price." The president cited the fact that the federal government suffers losses of $28
million per year as a result of liability insurance and defensive medicine practices.
Critics who contest tort-reform laws argue that medical malpractice awards account for only one
percent of the total yearly National Health Careexpenditures. They also claim that such reforms
protect insurance companies and physicians, and not the patients. Trial attorneys point the finger
at the insurance companies. They claim that insurers keep prices artificially low while competing
for market share and new revenue. When the economy is sluggish and the market is slow, they
increase premiums because they are no longer able to use Stock Market gains to subsidize low
rates. Proponents of reform continue to maintain, however, that a federal cap will ultimately
result in lower medical costs and greater medical access for the general population.
1


Some of the leading cases
As regards medical negligence, the legal position has been described in several leading
judgments. Some of these are given below:
1In the leading case Bolam v. Friern Hospital Management Committee [(1957) 2 All ER,
wherein judge Mc Nair J. has stated as follows:

1
legal-dictionary.thefreedictionary.com
".. 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 with 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."
2-- The Supreme Court in Laxman v. Trimbak AIR 1969 SC 128, held:
"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.
3In Achutrao Haribhau Khodwa v. State of Maharashtra [AIR 1996 SC 2377], 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."
4In Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia & Anr., (1998) 4 SCC 39 at 47,
the Apex Court has specifically laid down the following principles for holding doctors negligent:
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.
5 In Poonam Verma Vs Ashwin Patel and Others, decided on 10.05.1996, the Supreme
Court observed as follows:
13. Negligence as a tort is the breach of a duty caused by omission to do something which a
reasonable man would do, or doing something which a prudent and reasonable man would not
do. (See : Blyth v. Birmingham Waterworks Co., (1856) 11 Exch 781 : Bridges v. Directors etc.
of N. L. Ry. (1873-74) HL 213 : Governor-General in Council v.
Mt. Saliman, (1949) ILR 27 Pat 207 : (AIR 1949 Patna 388); Winfield and Jolowicz on Tort).
2

14. The definition involves the following constituents :-

2
1996 AIR 2111 As cited by http://indiankanoon.org/doc/611474/
(1) a legal duty to exercise due care;
(2) breach of the duty; and
(3) consequently damages.
15. The breach of duty may be occasioned either by not doing something which a reasonable
man, under a given set of circumstances would do, or, by doing some act which a reasonable
prudent man would not do.
16. So far as persons engaged in Medical Profession are concerned, it may be stated that every
person who enters into the profession, undertakes to bring to the exercise of it, a reasonable
degree of care and skill. It is true that a Doctor or a Surgeon does not undertake that he will
positively cure a patient nor does he undertake to use the highest possible degree or skill, as there
may be person more learned and skilled than himself, but he definitely undertakes to use a fair,
reasonable and competent degree of skill. This implied undertaking constitutes the real test,
which will also be clear from a study and analysis of the judgment in Bolam v. Friern Hospital
Management Committee (1957) 2 All ER 118, in which, McNair, J., while addressing the jury
summed up the law as under :
"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 art. 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".
17. This decision has since been approved by the House of Lords in Whitehouse v. Jordan,
(1981) 1 All ER 267 (HL); Maynard v. West Midlands Regional Health Authority, (1985) 1 All
ER 635 (HL); Sidaway v. Gethlem Royal Hospital, (1985) 1 All ER 643 (HL); Chin Keow v.
Govt. of Malaysia, (1967) 1 WLR 813 (PC).
18. The test pointed out by McNair, J. covers the liability of a Doctor in respect of his diagnosis,
his liability to warn the patients of the risk inherent in the treatment and his liability in respect of
the treatment.
19. This Court in Dr. Laxman Balakrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 SC
128, laid down that 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; and (c) a duty of care in the administration of that treatment. A
breach of any of these duties gives a cause of action for negligence to the patient.
20. The principles were reiterated in A.S. Mittal v. State of U.P., AIR 1989 SC 1570, in which
wide extracts from that judgment were made and approved.
40. Negligence has many manifestations - it may be active negligence, collateral negligence,
comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross
negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or
negligence per se, which is defined in Black's Law Dictionary as under :
Negligence per se: Conduct, whether of action or omission, which may be declared and treated
as negligence without any argument or proof as to the particular surrounding circumstances,
either because it is in violation of a statute or valid municipal ordinance, or because it is so
palpably opposed to the dictates of common prudence that it can be said without hesitation or
doubt that no careful person would have been guilty of it. As a general rule, the violation of a
public duty, enjoined by law for the protection of person or property, so constitutes".
3

6-- In Jacob Mathew Vs. State of Punjab (2005)6 SCC 1, while dealing with the tests to be
kept in mind by the courts in dealing with cases of medical negligence, the Honble Supreme
Court observed as follows:


3
www.pathoindia.com
So long as it can be found that the procedure which was in fact adopted was one which was
acceptable to medical science as on that date, the medical practitioner cannot be held negligent
merely because he chose to follow one procedure and not another and the result was a failure.
Indiscriminate prosecution of medical professionals for criminal negligence is counter-
productive and does no service or good to the society.
Conclusions summed up :
We sum up our conclusions as under:-
(1) Negligence is the breach of a duty caused 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. The definition
of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P.Singh),
referred to hereinabove, holds good. Negligence becomes actionable on account of injury
resulting from the act or omission amounting to negligence attributable to the person sued. The
essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) 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.
(3) A professional may be held liable for negligence on one of the two findings: either he was not
possessed of the requisite skill which he professed to have possessed, or, he did not exercise,
with reasonable competence in the given case, the skill which he did possess. The standard to be
applied for judging, whether the person charged has been negligent or not, would be that of an
ordinary competent person exercising ordinary skill in that profession. It is not possible for every
professional to possess the highest level of expertise or skills in that branch which he practices.
A highly skilled professional may be possessed of better qualities, but that cannot be made the
basis or the yardstick for judging the performance of the professional proceeded against on
indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R.
582, 586 holds good in its applicability in India.
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be
negligence in civil law may not necessarily be negligence in criminal law. For negligence to
amount to an offence, the element of mens rea must be shown to exist. For an act to amount to
criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high
degree. Negligence which is neither gross nor of a higher degree may provide a ground for action
in civil law but cannot form the basis for prosecution.
(6) The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in criminal
law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The
expression 'rash or negligent act' as occurring in Section 304A of the IPC has to be read as
qualified by the word 'grossly'.
(7) 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 resulted
was most likely imminent. (8) Res ipsa loquitur is only a rule of evidence and operates in the
domain of civil law specially in cases of torts and helps in determining the onus of proof in
actions relating to negligence. It cannot be pressed in service for determining per se the liability
for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited
application in trial on a charge of criminal negligence. In view of the principles laid down
hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr.
Suresh Gupta's case (2004) 6 SCC 422 and re-affirm the same. Ex abundanti cautela, we clarify
that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh
Gupta's case. We may not be understood as having expressed any opinion on the question
whether on the facts of that case the accused could or could not have been held guilty of criminal
negligence as that question is not before us. We also approve of the passage from Errors,
Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with
approval in Dr. Suresh Gupta's case (noted vide para 27 of the report). Guidelines re: prosecuting
medical professionals As we have noticed hereinabove that the cases of doctors (surgeons and
physicians) being subjected to criminal prosecution are on an increase. Sometimes such
prosecutions are filed by private complainants and sometimes by police on an FIR being lodged
and cognizance taken. The investigating officer and the private complainant cannot always be
supposed to have knowledge of medical science so as to determine whether the act of the
accused medical professional amounts to rash or negligent act within the domain of criminal law
under Section 304-A of IPC. The criminal process once initiated subjects the medical
professional to serious embarrassment and sometimes harassment. He has to seek bail to
escape arrest, which may or may not be granted to him. At the end he may be exonerated by
acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated
by any standards.
We may not be understood as holding that doctors can never be prosecuted for an offence of
which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the
need for care and caution in the interest of society; for, the service which the medical profession
renders to human beings is probably the noblest of all, and hence there is a need for protecting
doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal
process as a tool for pressurizing the medical professional for extracting uncalled for or unjust
compensation. Such malicious proceedings have to be guarded against. Statutory Rules or
Executive Instructions incorporating certain guidelines need to be framed and issued by the
Government of India and/or the State Governments in consultation with the Medical Council of
India. So long as it is not done, we propose to lay down certain guidelines for the future which
should govern the prosecution of doctors for offences of which criminal rashness or criminal
negligence is an ingredient. A private complaint may not be entertained unless the complainant
has produced prima facie evidence before the Court in the form of a credible opinion given by
another competent doctor to support the charge of rashness or negligence on the part of the
accused doctor. The investigating officer should, before proceeding against the doctor accused of
rash or negligent act or omission, obtain an independent and competent medical opinion
preferably from a doctor in government service qualified in that branch of medical practice who
can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the
facts collected in the investigation. A doctor accused of rashness or negligence, may not be
arrested in a routine manner (simply because a charge has been levelled against him). Unless his
arrest is necessary for furthering the investigation or for collecting evidence or unless the
investigation officer feels satisfied that the doctor proceeded against would not make himself
available to face the prosecution unless arrested, the arrest may be withheld.
7In Dr.Kunal Saha v. Dr. Sukumar Mukherjee and Ors., decided on 1st June, 2006, the
National Consumer Commission summarised the medical negligence law as follows:
Real test for determining deficiency in service
Well laid down tests for determining deficiency in service are - whether there is failure to act in
accordance with standard of a reasonable competent medical practitioner?
(i). Whether there was exercise of reasonable degree of care?
(ii). The degree of standard or reasonable care varies in each case depending upon expertise of
medical man and the circumstances of each case. On this aspect, it would be worthwhile to refer
to the enunciation from Halsburys Laws of England.
With regard to degree of skill and care required by the doctors, it has been stated as under in
(pr.36, p.36, Vol.30, Halsburys Laws of England, 4th Edn.)
The practitioner must bring to his task a reasonable degree of skill and knowledge, and must
exercise a reasonable degree of care. Failure to use due skill in diagnosis with the result that
wrong treatment is given is negligence. 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, and a person is not liable in negligence because someone else of greater skill and
knowledge would have prescribed different treatment or operated in a different way; nor is he
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, even though a body of adverse
opinion also exists among medical men; nor is a practitioner necessarily negligent if he has acted
in accordance with one responsible body of medical opinion in preference to another in relation
to the diagnosis and treatment of a certain condition, provided that the practice of that body of
medical opinion is reasonable.
The Apex Court aptly stated the said principles further in Dr.Laxman Balakrishna Joshi Vs.
Dr.Trimbak Bapu Godbole, AIR 1969 SC 128, which reads as under:
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: (cf. Halsburys Laws of England, 3rd ed. Vol. 26 p.17). 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.
Similarly in Poonam Verma Vs. Ashwin Patel (1996) 4 SCC 332, dealing with medical
negligence, the Court observed that:
14. Negligence as a tort is the breach of a duty caused by omission to do something which a
reasonable man would do, or doing something which a prudent and reasonable man would not
do.
15. The definition involves the following constituents:
(1) a legal duty to exercise due care;
(2) breach of the duty; and
(3) consequential damages.
16. The breach of duty may be occasioned either by not doing something which a reasonable
man, under a given set of circumstances would do, or, by doing some act which a reasonable
prudent man would not do.
17. So far as persons engaged in the medical profession are concerned, it may be stated that
every person who enters into the profession, undertakes to bring to the exercise of it, a
reasonable degree of care and skill. It is true that a doctor or a surgeon does not undertake that he
will positively cure a patient nor does he undertake to use the highest possible degree of skill, as
there may be persons more learned and skilled than himself, but he definitely undertakes to use a
fair, reasonable and competent degree of skill. This implied undertaking constitutes the real test,
which will also be clear from a study and analysis of the judgment in Bolam v. Friern Hospital
Management Committee5 in which, McNair, J., while addressing the jury summed up the law as
under:
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 exercises the ordinary skill of an ordinary
competent man exercising that particular art. I do not think that I quarrel much with any of the
submissions in law which have been put before you by counsel. 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 with one of those proper standards then he is not negligent.
18. This decision has since been approved by the House of Lords in Whitehouse v. Jordan;
Maynard v. West Midlands Regional Health Authority; Sidaway v. Bethlem Royal Hospital;
Chin Keow v. Govt. of Malaysia.
19. The test pointed out by McNair, J. covers the liability of a doctor in respect of his diagnosis,
his liability to warn the patients of the risk inherent in the treatment and his liability in respect of
the treatment.
If there are alternative procedures of treatment and if a Doctor adopts one of them and conducts
the same with due care and caution then no negligence can be attributed towards him. In
substance, for establishing negligence or deficiency in service there must be sufficient evidence
that a Doctor or a hospital has not taken reasonable care while treating the patient. Reasonable
care in discharge of duties by the hospital and Doctors varies from case to case and expertise
expected on the subject which a Doctor of a hospital has undertaken. Courts would be slow in
attributing negligence on the part of the Doctor if he has performed his duties to the best of his
ability with due care and caution.
It has been held in Dr. Anita Prashar Vs. Preeti Kochar and Anr. III (2005) CPJ 638, and also in
Honble Supreme Court case in the case of Achutrao (1996) 2 SCC 634 that there are various
mode and course of treatment and if a Doctor adopts one of them with due care and caution the
Court could 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.
Same view is expressed in Achutrao Haribhau Khodwa and Ors. Vs. State of Maharashtra
& Ors. (1996) 2 SCC 634, wherein the Court observed:
14. 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.

As per the settled law discussed above, deficiency in medical negligence is to be judged on the
following principles:
(i). It is to be remembered that a Doctor or a Surgeon does not undertake that he will positively
cure a patient nor does he undertake to use the highest possible degree of skill, as there may be
persons more learned and skilled than himself, but he definitely undertakes to use a fair,
reasonable and competent degree of skill.
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(ii). It is to be stated that if there are several modes of treatment and if a Doctor adopts one of
them and conducts the same with due care and caution then no negligence can be attributed
towards him;
(iii). Secondly, in the case of medical man, negligence means, failure to act in accordance with
the standards of reasonably competent medical men at the time.
(iv). A medical practitioner is expected to exercise a reasonable degree of care and exercise skill
and knowledge which he possess;
(v). No doubt, failure to use due skill in diagnosis with the result that wrong treatment is given is
negligence;
(vi). Medical opinion may differ with regard to diagnosis or treatment, but in a complicated case
if they occur and Court will be slow in attributing negligence on the part of the Doctor if he has
performed his duties to the best of his ability and with due care and caution.
8--In --Kalyani Dutta v. Tirath Ram hosp., decided 3-3-08, the Delhi State Consumer
Commission held as follows:
7. However, the definition of deficiency provided by Sec. 2(1)(g) of the Consumer Protection
Act, 1986 is so wide that it also takes in its fold the administrative deficiencies of the hospital.
For instance, not providing blood to a patient who could die if blood transfusion is delayed for
some time or not providing oxygen cylinder for want of which the patient is likely to suffer,
some time fatal, or admitting the patient in the Nursing Home or hospital knowing it well that the
doctors who are specialized and skilled for treating the patient are not available for some reason

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or the other. Sometimes, sanitary conditions of the hospital are so bad that it contributes to the
worsening condition of the patient. Sometimes, the wherewithal and paraphernalia of the hospital
who have very high reputation and claims themselves to be a five star or seven star hospital are
not adequate.
8. Similarly any negligence in not attending to the patients in ICU who are ordinarily not allowed
any attendant amounts to negligence. Utmost care and round the clock attendance is required for
the patients in ICU. Nomenclature ICU itself suggests that core should be of intensive nature.
Any shortcoming, imperfection or inadequacy in the quality, nature and manner of performance
which is required to be maintained by or under any law for the time being in force or has been
undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any
service.
9. In such like cases we have taken a view that the hospital alone can be held guilty for
deficiency in service in not taking proper care of the patient and once a patient is admitted in the
in the hospital/ICU it becomes their first and foremost duty to provide each and every help to the
patient depending upon the nature of disease and give proper attendance for preventing any fall
from the bed as has happened in the instant case or any other eventuality causing any physical
damage to the patient etc. Recently we have come across and decided few cases of patients
having fallen from the bed in ICU suffering fractures particularly old and heart patients and even
resulting in death.
10. However, in this case the OP had taken the plea that patient was suffering from such disease
that developed psychosis and broke the fence of the barrier attached to the bed and had a fall.
This itself shows that there was no person to attend to the patient and that too in the ICU and this
amounts to administrative deficiency.
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Defenses
As malpractice is a form of negligence, many of the defenses allowed against general negligence
claims are also viable against claims of malpractice. For example, a doctor may argue that his
care was in line with the standards upheld in the medical profession, or that the patients injuries

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werent the result of a medical error. While disproving an element of negligence is one of the
most common defenses to medical malpractice, there are a number of other defenses that may
apply.

Contributory Negligence
Oftentimes, medical professionals arent the only ones to blame for an injury. If the defendant
can show that the injury would not have occurred had it not been for a negligent act by the
patient, he or she may have a valid defense against a malpractice claim. For example, if a patient
mixed prescriptions against the doctors orders or failed to disclose key elements of his or her
medical history, the doctor may be off the hook for any injuries that result.
Respectable Minority Principle
Sometimes medical professionals decide to pursue a new or more radical form of treatment in
order to effectively treat a patient. While the decision may place the doctor outside of the
medical mainstream, he or she could have a valid defense to a medical malpractice claim if a
respectable minority of medical professionals supports the line of treatment. Of course, the
doctor must first inform the patient about the risks involved.
Good Samaritan Laws
Many states have Good Samaritan laws, shielding individuals who come to the aid of those in
medical distress. Doctors, nurses, and other medical professionals are often specifically included
in such laws. That means if a doctor aids someone in an emergency situation, he or she will be
protected from civil liability should anything go wrong during the rescue.
Statute of Limitations
State laws place time limits on when an action can be brought for medical malpractice. Some
states have adopted the discovery rule, which holds that the statute of limitations period
doesnt begin until an injury is actually discovered. If the defendant can show that the plaintiff
discovered the injury at a certain point and that the statute of limitations has since run, he or she
may be able to get the case dismissed.
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Remedy
A consumer has the option to approach the Consumer Forums to seek speedy redressal of his
grievances or file a criminal complaint.
If you feel like you are not getting the proper medical treatment though you are spending a lot of
money, at the end of the day you would want one thing i.e., justice. You would want your money
back, may be you would like to get compensation for deterioration of your health and
harassment.
But you are not allowed to charge him criminally for your dissatisfaction of the service rendered.
As per the Indian Courts it will be total injustice to the medical practitioners to criminally charge
them for their mistakes which may lead to a dire consequence, for example even death of a
patient. It is so because human beings commit mistakes and though we treat the doctors as God,
they are mere human beings.
In India the doctor- patient relationship is considered to be a very special and delicate kind of
service provider- customer relationship where the doctor has the final say regarding the delivery
of service as a customary practice. The Supreme Court hasheld that medical practitioners,
government hospitals, private hospitals and nursing homes are covered under consumer law if
its not a charitable medical clinic where services are rendered free of charge to everybody
availing of the said service (Indian Medical Association v. V. P. Shantha). So as a consumer if
you are unsatisfied you can go to a consumer court under the Consumer Protection Act, 1986.
The relationship between such a consumer and a service provider is very delicate as it is built on
the foundation of trust. The patient trusts the doctor with his life and the doctor has the duty to
ensure best interest of the patient. Unlike in America where the relationship is based on the
doctrine of informed consent (See more about informed consent in India, informed consent in
other jurisdictions), here the Indian doctors always take the decision of the process of the

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treatment and generally the patient has no say in the decision making process. So basically if
something goes wrong with the treatment then the doctors are responsible.
Broadly speaking, doctors can be held responsible under:
a) Consumer Protection Act, 1986
b) Civil negligence, or tort
c) Criminal negligence
Remedy under Consumer Protection Act:
At present the best remedy a patient can get is through a consumer forum petition. By treating
medical profession as a service under the Consumer Protection Act it is now easier to get remedy
for a negligent act of a doctor, which is timely and inexpensive, when compared to filing a civil
or criminal suit or a writ petition. This is a very welcome development, as it ensures a remedy to
aggrieved parties within 150 days from the file of complaint.
Remedy under Tort law:
Remedy is also available in tort law. Like all negligence claims under tort law, it requires the
satisfaction of three criteria a duty of care, a breach of duty and damages. However, in the
specific context of the medical profession, the components duty of care and standard of care are
assessed as per the professional standards of the medical community. Furthermore, it has to be
taken into account that the medical science is an imprecise science, and it is next to impossible to
be completely error free. In addition, there are frequently more than one available options of
treatment, with medical practitioners having individual preferences. Therefore, it is not possible
to single out a single stringent set of reasonable course of treatment or degree of care.
A doctor will not be held liable for professional negligence he follows a practice accepted to be
proper by a responsible body of medical opinion, even if there is another body of medical experts
holds a different view regarding that treatment or process.

Since such matters require determination of facts which are highly technical, a judge cannot rely
upon his own layman logic or reasonableness; instead, he has to rely upon an expert opinion.
However, a judge is permitted to choose between two conflicting expert opinions and can reject
one of those opinions if it is not logically defensible.
These principles were laid down in two English cases Bolam v. Friem Hospital Management
Committee, 1957 & Bolitho v. City and Hackney Health Authority, 1998).
Criminal Negligence: A matter beyond mere compensation


Criminal negligence matters are dealt under Ss 337(hurt), 338(grievous hurt) and 304A(culpable
homicide not amounting to murder) of the Indian Penal Code. In order to prosecute a medical
practitioner one has to prove malicious intention or gross negligence i.e., a high degree of
negligent conduct. Moreover to start a criminal proceeding against a medical practitioner there
has to be a prima facie evidence in the form of a credible opinion from a competent doctor,
preferably a government doctor in the same field of medicine supporting the charges of rash and
negligent act. The liability of a doctor always depends on the circumstances of a particular case.
A mere lack of necessary care, attention or skill cannot be a good enough reason to prosecute a
doctor as those will not constitutegross negligence. In English law this gross negligence has been
defined as to show such disregard for life and the safety of others as to amount to a crime against
the state and conduct deserving of punishment (R v. Bateman, 1925). The use of medical science
is not error free and there are varieties of treatment method favored by various practitioners so it
is not possible to set a stringent set of reasonable process of treatment or degree of care. Risk of
failure is always there and we cannot take the benefit without taking any risk.
So something more than a mere negligence has to be proved in order to prosecute a doctor. In
order to establish criminal negligence in diagnosis or treatment on the part of the doctors he has
to be proved guilty of such failure as no doctor of ordinary skill would have been guilty of, if he
was acting with reasonable care. It is a matter beyond mere compensation. It involves an utter
disregard to the life and safety of others and a conduct deserving of punishment where the degree
of negligence is much higher than that of a civil negligence case.
Immunity available to the Doctors:
1. Doctors cannot be prosecuted without prima facie evidence in the form of a credible
opinion from a competent doctor, preferably a government doctor in the same field of medicine
supporting the charges of rash and negligent act.
2. Cannot be arrested in a routine manner
3. Cannot be arrested unless his arrest is necessary for-
Furthering the investigation
Collection of evidence
Producing him in front of the court to face the prosecution (In satisfaction of
investigating officer only)
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Essentials to be fulfilled by the plaintiff
Retain prescription, bills and references.
Maintain medical history records.
Consent given by the patient or close relative can be used as evidence in the court.
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Bibliography
Books referred
BANGIA, R.K. , LAW OF TORTS , ALLAHABAD LAW AGENCY, FARIDABAD,
2006.
RATANLAL, RANCHHODDAS, THAKORE , DHIRAJLAL, SINGH , G.P,THE
LAW OF TORTS, LEXISNEXIS BUTTERWORTHS WADHWA
NAGPUR,GURGAON,2011.

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Web sources referred
legal-dictionary.thefreedictionary.com
www.pathoindia.com
www.wikipedia.org
injury.findlaw.com
http://blog.medicallaw.in
www.advocatekhoj.com