NATIONAL LAW SCHOOL OF INDIA UNIVERSITY

Trends in Tort Law in India
Torts-I Research Paper

PraggyaSurana Roll number ± 1828

Pranjal Singh Roll number ± 1829

Date of submission August 12, 2010

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
y y

Bol Bl t

v. Fri rn Hospit l Management Committee,[1957] 1 WLR 583. v. Birmingham Waterworks Co. (1856), 11 ExCh 781, (The House of

Lords).
y y y y y y y y y y y y

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
y y y y y y y y y

Dr. LaxmanBalakrishna Joshi v. Dr. TrimbakBapuGodbole, 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. RavindraVerma 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. PoonamVerma v. Aswin Patel, [1996]4 SCC 332 Indian Medical Association v.V.P. Shantha and Ors, AIR 1996 SC 550.

2

Santra. M/s Spring Meadows Hospital and anr v. [2000] 5 SCC 182. 1986. Ahluwalia and Anr. Raj Rani. Breach Candy Hospital and Research Centre & others. State of Punjab v. [1996] 2 SCC 634. y y AchutraoHaribhauKhodwa v. 1956. [2005] 6 SCALE 770. [1998] 4 SCC 39. State of Haryana v.ShantabenMuljibhai Patel others v. HarjolAhluwalia through K. 3 .y Mrs. Medical Councils Act. v. [2005] 7 SCALE 1. Jay Laxmi Salt Works (p) ltd. Smt. Table of Constitutions y The Indian Constitution 1950.S. (2005) CPJ 10 (NC). y y y y State of Haryana v. Shivram. State of Gujarat (1994) 4 SCC 1. Table of Statutes y y Consumer Protection Act. State of Maharastra and Ors.

This principle was also applied by the Courts in India during the British rule.html (Last visited on August 1. which gave the rights of an individual precedence over formal procedure of law.´3 One also has to take into account that social conscience and morality differ substantially from one society to another. Tort has evolved as a form of civil injury or wrong. ³ubijus ubiremedium´i. where there is a right. the modern Indian concept of tort has been borrowed from the English Common Law System.C. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence. Though.Introdu tion 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. Courts may analyse the suitability of applying these rules. HINDU JURISPRUDENCE. In the opinion of Justice P. the concept of tort had been considerably narrowed by focussing more on punishment rather than compensation. vol and issue number? 3 M. Is this an article? Where is the journal name. Tort law gained prominence with the passageof the Common Law Procedure Act.N. Mehta v Union of India and ors. This idea allows a greaterappreciation ofthe difference in the collective consciences of different societies. Contemporary tort law can be summarised by the legal maxim. available at http://www. involving the breach of an implied or express duty. contextualising them within Indian society. 211.1 In ancient India. yet it is not followed blindly.com/article/l129-Torts-In-India. ³we have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. 2 PriyanathSen.1852.. they departed from this system when it was felt that these rules were not applicable to Indian society. Torts in India Whether Unnecessary or Simply Overlooked.e. Jimha. AIR (1987) 4 SC 463 1 4 . Bhagwati. Bhuvana. the closest possible reference to tortuous liability can be found in the Sanskrit word. there is a remedy. 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. which is similar in meaning to fraudulent or crooked conduct 2However. 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. However. 2010). Despite being affiliatedto the Common Law system and the parliament of United Kingdom.legalserviceindia. (1972 Reprint).

Thus. Considering cases related to medical Negligence as consumer complaints has significantly reduced the time taken in dealing with them. medical negligence has shown strongly discernable trends over the past few decades and has gained prominence both under legal jurisprudence and in public consciousness. The topic has been further narrowed down to medical negligence. coming into picture the whole perception of medical negligence has been provided a new outlook. 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.More and more cases relating to Medical Negligence are being filed in India. 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.This paper centres on negligence as an example to study the trends in tort litigation. In India. With Consumer Protection Act. This has forced the lawmakers to identify the issues that plague medical negligence litigation. 1986. 5 .

Friern Hospital Management Committee.Resear h Methodology: Aim: The aim of this research paper is to analyse the trends in tort litigation in India over the past sixty-threeyears. It seeks to achieve this aim by taking the tort of negligence as an example. under the Indian Constitution. Methodology: This research paper seeks to analyse the trends in tort litigation in India to draw a frm i correlation and a pattern in litigation over time. 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. These trends will be analysed in the light of the applicability of the Consumer Protection Act. Objective: This research paper analyses the changing trends in tort litigation in India. This project shall also focus on the present situation of tort litigation in India. More specifically. 1986 and the popular trends before its implementation. 1986. It shall do so by referring to the present scenario with respect to the litigation in case of Medical negligence as a tort.[1957] 1 WLR 583. Research Questions: 1 What is the place of tort law. 6 . 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. an unwritten form of law. 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.

2. in other branches of tort law. and is also under strict liability. Thus. possibly differing trends. 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. It does not take into account the other. it also seeks to encompass relatively less known problems within the litigation procedure with regards to medical negligence. 2. including Malicious Prosecution. 1986. This research paper is only restricted to trends in tort litigation in Indian Judicial History. litigation in tort law has seen a rapid surge in the number of cases reported to courts. to the medical profession. 1986. Scope and Limitations: 1. 3. and the inclusion of the medical profession into it. This research paper has restricted its scope to medical negligence as an example of a particular tort. post-independence and does not focus on the trend in other Common law countries. After the implementation on Consumer Protection Act. This research paper also takes into account the limited applicability of the Consumer Protection Act. 7 .Hypothesis: 1. 4. 1986. Medical Liability under tort law is somewhat wider and more than the strict liability.

. 7 R. (1856).8 BLACKS¶ LAW DICTIONARY. SALMOND&HEUSTON ON THE LAW OF TORTS. Garner ed. Each definition adds to the overall picture in a positive way widening the scope of the tort of negligence and adding to its comprehensiveness. would do. it is necessary to first look at negligence in toto. (The House of Lords). or wilfully disregardful of others rights. 2002). 16thedn. except for conduct that intentionally.. Winfield ³Negligence is the omission to do something which a reasonable man.´5 Black¶s Law Dictionary ³Negligence as a tort is the breach of a legal duty to take care which results in damage. guided upon those considerations which ordinarily regulate the conduct of human affairs.. 1056 (Bryan A. (W. various sources have given similar yet different definition and interpretations.V. Any conduct that falls below the legal standard established to protect others against unreasonable risk of harm. 103. However. This is why some of the commonly acknowledged definitions are given below: ³Negligence is The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. to the plaintiff.F. 8 Blyth v Birmingham Waterworks Co.V... 7 thedn. undesired by the defendant. Heuston. 11 Ex Ch 781. 1987). 216 (19thedn.Chapter 1: Principles relating to Medical Negligence as a Tort Chapter 1.H.´7 Salmond and Hevston - Alderson B. 1999). wantonly.1: What isNegligence? In order to understand Medical Negligence. Negligence has no strict universal definition.Rogers ed. or doing something which a prudent and a reasonable man would not do. WINFIELD AND JOLOWICZ ON TORT. 6 5 8 .´6 Percy H.

C. counterbalances the low risk of it.9 However. Dickman. [1990] 2 AC 605. [1990] 2 AC 605. [1932] AC 562.18 Donoghue v. or the breach of other merely equitable obligation´ -Salmond Negligence as a tort. just and reasonable that the law should impose a duty. Whether there is a relationship of proximity between the parties.³A 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. Whether harm was likely to occur from the said action. 11 Caparo Industries plc v. of W. [1989] AC 53. 14 Hill v C. It is also assessed whether the risk taken was associated with a greater social importance.15 b. 13 Caparo Industries plc v. i. at times. The practicality of taking precaution is also questioned and it is assessed whether taking precaution is justified. The case formulated a three-step test to determine whether negligence has beencommitted in a particular case. 16 Latimer v AEC Ltd. [1951] AC 367. [1990] 2 AC 605. 12 Kent v Griffiths.14 2.17 d. Dickman10. if not performed appropriately. Caparo Industries plc v. or the breach of a trust.16 c. The seriousness of the harm. 17 Paris v Stepney Borough Council. Stevenson.13 c. 10 9 9 .12 b. Dickman. Whether in all the circumstances it would be fair. the nature and constituents of the tort of negligence were decided in Caparo industries plcv. [1953] AC 643. [2000] 2 All ER 474. Whether the consequences of the defendant¶s act were reasonably foreseeable. This test constitutes three sub tests as decided in Caparo Industries v Dickman Case11 : a. Itconstitutes four subtests: a. 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. The tort of negligence comprisesprimarily three elements: 1. Dickman. Stevenson. e. originatedwithDonoghue v. a legal relationship or physical closeness. 15 Bolton v Stone [1951] AC 850. Yorkshire. Breach of duty:The aforementioned duty of care. would result in a legal breach of duty.

the line between negligence and the so-called will of God is understandably blurred. 19 18 10 . Scott v London & St Katherine Dock Co. The legal breach of duty gives rise to legal damages which in generalconstitutes three subtests. (1865) 3 H & C 596. this perception was considerably altered and the divinity of medical profession was strongly questioned by law. Whether injury could have been caused otherwise.21 c. However. 2393 (1992). [1962] 2 QB 405.legalserviceindia. 20 Barnett v Chelsea & Kensington Hospital.20 b.Also the plaintiff must produce a proof of the breach of duty. for obvious historical and cultural reasons. In case of multiple possible cases.html (last visited on August 4. the claimant must prove that it was due to the negligence of the defendant that the harm was caused. 24 Anonymous. [1988] AC 1074. One may question the appropriateness of a Watt v Hertfordshire County Council. E CONOMIC AND POLITICAL WEEKLY. have always been given the benefit of doubt. Doctors and medical practitioners in all cultures have enjoyed a superior position in the eyes of law. Medical Negligence. 21 Smith v Leech Brain & Co. in rather direct and blatant cases the legal maxim.´23 The medical profession. available athttp://www. 23 ShounakMitra. Doctors.2: Medical Negligence: Definition and Historical Background ³Medical 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. 2393. Supreme Court and Medical Negligence Necessary Protection(2008). 22 Wilsher v Essex AHA. Remoteness of damage. Thus. a.24 Medical profession has always been treated reverentially by the law as the knowledge of this profession has always been rather mysterious and inexact.19 3. 2010). 27(45). has been believed to be imbued with utmost sanctity. [1954] 1 WLR 835. from time immemorial. over time. Damages caused by breach of duty:Here the law follows the principles of Injuria sine Damnumand Damnum sine injuria. [1968] 1 All ER 1068. However.com/article/l178-Medical-Negligence. 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.22 Chapter 1.³Res Ipsa Loquitur´ may also apply.

At the same time."25 One must also consider the changing relationship of a doctor and a patient. that in the case of a medical man. unavoidable circumstances and genuine malpractice or negligence. not God. indeed. the consumerism of our time has destroyed the fiduciary relationship between the Doctor and patient. In this regard a comment made by Justice McNair is especially relevant. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. The concept of divinity of the physic no longer exists.procedure adopted by a doctor or even his qualification to carry out a medical procedure. are consumers and the doctor. 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. Where you get a situation which involves the use of some special skill or competence. [1957] 1 WLR 583. At the same time one must not forget that a doctor is.Patients today. "««««. 11 . That is a perfectly accurate statement. if he is acting in accordance with such a practice. It is well-established law that it is sufficient if he exercise the ordinary skill of an ordinary competent man exercising that particular art. because he has not got this special skill. But the question is whether the entire community of medical 25 Per McNair J. a doctor is not negligent. In the light of this fact one needs to distinguish between professional misjudgement. a vendor of his skills. A man need not possess the highest expert skill at the risk of being found negligent. Bolam v.. merely because there is a body of opinion that takes a contrary view. Friern Hospital Management Committee. as long as it is remembered that there may be one or more perfectly proper standards.. negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus. Counsel for the plaintiff put it in this way. 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. In reality. and if a medical man conforms to one of those proper standards then he is not negligent. Putting it the other way round.³Services of medical establishments are purchasable commodities and the µbusiness¶ attitude has given an impetus to more and more malpractices and instances of neglect.

311 (7017).28 A. find him negligent simply because something happens to go wrong. Heavy Penalties and deterrent punitive measures were sanctioned. 433. 28 GanpatiMudur. there is always some risk.´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. (Manish Arora ed. 432. 28(11). BRITISH M EDICAL JOURNAL. 1385. or if in a matter of opinion he makes an error of judgment. You must not. Would he/she able to carry out their tasks. 1385. Indian Doctors May Be Tried In Consumer Courts. UNIVERSAL¶S MEDICAL NEGLIGENCE AND LEGAL REMEDIES. It is not that measures to check such derelictions are absent. In the older days.´27 "In the course of a treatment as a result of the court ruling. the then-President of the Indian Medical Association. 1998). and-an action for negligence can wound his reputation as severely as a dagger can his body.. It would be disastrous to the community if it were so. It would be wrong. to say that simply because a misadventure or misshape occurred. 27 ArunBal. Chaparwal. 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. if they knew that they would be liable for damages for even slightest of mistakes made by them. His professional reputation is as dear to him as his body. typical of a consumer today. Every surgical operation involves risks. Consumer Protection Act and Medical Profession. 2nd edn. In this regard.professionals is branded as a delinquent community would serve any purposes or will it cause damage to the patients. 26 12 . ECONOMIC AND P OLITICAL W EEKLY.´26 The Indian doctrine of tolerance and tenacity has given way to an impertinent awareness. the hospital and the doctors are thereby liable. no matter what care is used. perhaps more so. therefore. K. 109. for an action for negligence against a doc-tor is for him like unto a dagger.. (1992). One should also take into account a doctor¶s professional liberty. and indeed bad law. would be forever looking over shoulder to see if someone was coming up with a dagger. Kaushal. for instance. Lord Denning says: ³«in a hospital when a person who is ill goes in for treatment. concentration was more towards crimes and punishments. 99. (1993). It would ±mean that a doctor examining a patient or a surgeon operating at a table instead of getting on with his work. if.

when the Consumer Protection Act was enacted. However. 30 Even so. citing various grounds ranging from the nature of their jobs to the fact that government and semigovernment hospitals which offer paid services along with the free services would not be liable under Consumer Protection Act.29 Yet.31(51). Before the enactment of Consumer Protection Act.Cosmopolitan Hospital31. cases related to Medical malpractice or negligence were adjudicated over long periods of time. 31 [1992] 1 C. medical professionals had shown fierce resistance to this inclusion. ranging between 5 to 15 years. there was little or no awareness about Medical Profession¶s inclusion under Consumer Protection Act. . 1986. 1986. 1986. (1996). ArunBal.P. Protecting Health Care Consumers: Is CPA effective?. Today. 3289. until Vasanta Nair v. however. the same cases are dealt within a matter of months. E CONOMIC AND POLITICAL W EEKLY. This inordinate delay was not only contributing to excessive backlogs in courts but also proved to be counter-productive. these grounds have been laid to rest by the Supreme Court¶s verdict on Indian Medical Council's writ petition in November 1995. 30 Id. 820 29 13 .R.Medical Negligence was dealt under tort law in India until 1986. 3289.

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. 35 Supra note 28. 4. Dr. 36 HALSBURY¶S LAWS OF ENGLAND. 1973).´37 Dr. 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. 34 Bolam v. [1957] 1 WLR 583. 26 . The defendant should not have adopted it. had he been acting with ordinary care.(3rd edn. It has four points: 1. That the course in fact adopted. It was held that: ³The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. However. Supra note 29. Ganga Devi. AIR 1969 SC 128 33 32 14 . FriernHospital Management Committee.1: What was the trend in tort litigation relating to Medical Negligence before 1986? Medical Negligence was treated as a tort only until 1986. 35 Duty of care towards patients owed by a doctor has always been the cornerstone for all tort cases relating to medical negligence.32 Litigation process was slow and counterproductive33.34 The basis for imposing liability was primarily negligence and acid test was commonly used to prove it. negligence in terms of a medical procedure has never been strictly defined and it is more or less a slippery ground to prove.TrimbakBapuGodbole. An important reference here must be made to Bolam test. 37 Dr. 17. no professional man of ordinary skill would have taken.LaxmanBalakrishna Joshi Vs. 1993(3) CPR 255. Medical Professionals owe a duty of care to their patients. Ravinder Gupta v.36. 2. is one. There must be usual and normal practice of a medical procedure 3.Bolam test has been extensively used by judges adjudicating in cases relating to medical negligence.Chapter 2: Growth of Medical Negligence as a tort in India Chapter 2.

Doctors believed that a doctor patient relationship is not as easily classified as any other supplier-consumer relationship. 1986. where the doctor." said Dr Bharat Chaparwal. (a) A duty of care in deciding whether to undertake the case.38 Chapter 2. quite expressly refused to allow their inclusion into the Consumer Protection Act.V. namely.How has it impacted tort litigation?´ Many Doctors have expressly argued that Medical profession should not be included under the Consumer Protection Act.40 Chapter 2. honorary secretary of the association. However. DrJagdishSobti. Consumers have felt that since Medicine has become as much a business profession as any other. (c) a duty of care in the administration of the treatment. "The patient-doctor relationship is complex and not the same as that of a producerand consumer. the most significant result of this flamboyant campaigning of the Medical Council was the increasing awareness of the consumers. president of the Indian Medical Association. NCDRC did not agree.2: What is the impact of Consumer Protection Act. A breach of any of these duties gives a cause of action for negligence to the patient. like an independent contractor. (b) a duty of care in deciding what treatment to give. (2005) CPJ 10 (NC) 39 Supra note 21." More than 8000 cases lying pending in the Indian courts are against doctors. is hired to perform Mrs. It said that this relationship is a contractual relationship. 1986? Medical Profession had. said: "Feelings of mutual distrust might creep in. doctors must also be treated likewise. Shantha and Ors. Breach Candy Hospital and Research Centre & others. 1986.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. as a doctor-patient relationship is akin to a masterservant relationship. 40 Supra note 21 38 15 .P. (AIR 1996 SC 550).ShantabenMuljibhai Patel others v.3: A case study of the case ³Indian Medical Association v.39 Ironically. in 1986.

44 The Consumer protection Act 1986. AIR 1996 SC 550. 1986. A. 42.] entertainment. Union of India³a Division Bench of Andhra Pradesh High Court has held that service rendered for consideration by private medical practitioners. both medicinal and surgical. 42 41 16 . Hence. it was only in 1995 that the Honorable Supreme Court finally passed a verdict on the matter in the case of Indian Medical Associationv. Kumarasamy and Anr. board or lodging or both. financing insurance. the provision of] facilities in connection with banking. there were also dissenting opinions. [housing construction. supply of electrical or other energy.P.V.Many High Courts also started recognizing medical profession under µservice´ as per section 2(1)(o) of the Consumer Protection Act.the task.´ However. . cannot be considered to be a 'consumer' within the meaning of Section 2(1)(d) of the Act.V. 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. to the extent of such paramedical services rendered by them.S. but not limited to. Shantha and Ors. section 2(1)(o). 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. amusement or the purveying of news or other information. transport.S. Chandra v. 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. Subramanianv. 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. Madras High Court Held that the ³«services rendered to a patient by a medical practitioner or by a hospital by way of diagnosis and treatment. 1986. C.P. Shantha and Ors.43 The controversy regarding the matter was centred around Section 2(1)(o) which read: ³"service" means service of any description which is made available to potential [users and includes. In the case of Dr. both medicinal and surgical. but does not include the rendering of any service free of charge or under a contract of personal service´44 1992 ( 1 ) ALT 713 (1994) 1 MLJ 438 43 Indian Medical Association v. In the case of Dr. within the definition of 'service' and a person availing of such service would be a 'consumer' within the meaning of the Act.´ 41 However. processing. The µHow¶ of the matter is left to his discretion.

Despite the fact that medical practitioners and professionals are under the disciplinary control of the Medical Council of India. The expression 'contract of personal service' in Section 2(1)(o) cannot be restricted to domestic help employed in households or professional assistants. in this regard.´ It interpreted the term ³consumer´ under Section 2(1)(d)(ii): ³«hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised. ³Any assistance lent to a patient by a doctor in the form of consultation or any other medical procedure will qualify as ³'service' as defined in Section 2(1)(o) of the Consumer Protection Act. 4. or partly paid and partly promised..K. The whole clause has already been divided into three parts in the past by the court 45. 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. 1986. In the absence of a relationship of master and servant between th patient e and medical practitioner. some or all services rendered to a consumer. This exemption 45 46 Lucknow Development Authority v.´ 2. AIR 1994 SC 787. Gupta.´ 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. at Section 2(1)(d)(ii) 17 . the court observed: ³the 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. Supra note 35. 3. they are still subject to be liable under Consumer Protection Act.. ³A 'contract of personal service' has to be distinguished from a 'contact for personal services'. 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. or under any system of deferred payment. M.The SupremeCourt held that ³any´ was a very wide term and applied to one. the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a 'contract of personal service'.

´Also.³«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. Free service would also be "service" and the recipient a "consumer" under the Act. 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. 9. fall under the category of 'service' as defined in Section 2(1)(o) of the Consumer Protection Act. 8. 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 ³«irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. 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. However. would not qualify as "service" as defined in Section 2(1)(o) of the Consumer Protection Act. whether rich or poor would be excluded from the definition 'service' as given in Section 2(1)(o) of the Consumer Protection Act. free of cost to all. Medical assistance provided at a government hospital.´ 18 ..´ 7. Service rendered at a non-Government hospital/Nursing Home where able people are required to pay for medical services. 5. while poor and economically weak people are provided services free of cost.would also extend to medical personnel employed to provide medical aid.´ 10. 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. Service provided at a non-Government hospital/Nursing home where any person availing the service (rich or poor) are given free service .³The payment of a token amount for registration purpose only at the hospital/Nursing home would not alter the position. even free service here would fall under the ambit of "service" and the recipient is still a "consumer" under the Consumer Protection Act.´ 6. Service provided at a Government hospital/health center/dispensary where medical assistance is provided on payment of charges. ³The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position..is outside the scope of the 'service' as defined in Section 2(1)(o) of the Consumer Protection Act. ³The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

19 . 12. Similarly. This decision brought a monumental change in the trends in Litigation related to Medical negligence and Malpractice. if the person availing the service is insured under any insurance policy for medical care. as the agreement between them suggests. Service provided by a medical practitioner or hospital/nursing home do not qualify for an exemption under the ambit of ³services provided free of charge´. At the same time it clearly defined the limits of the act and the scope of its applicability in the field of medicine. Increased awareness and consumer friendly litigation process has encouraged the consumers to come forward with their grievances.11.Such service would fall under the ambit of 'service' as given in 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. under which the ³«charges for consultation. 47 Supra note 34. diagnosis and medical treatment are borne by the insurance company´. 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. the assistance provided would qualify as 'service' under Section 2(1)(o) of the Consumer Protection Act.

51it was apparent to the court that the respondent was not adequately qualified in administering allopathic drugs to the patient. Thus its provisions are also aimed at being consumer-friendly. 20 . Consumer Protection Act. aims to provide swift compensation and redressal. 1986. It was also brought out that the respondent. Jaswal. 50 All these factors have made justice in case of medical negligence much more accessible to the common man.S. and subsequently for Typhoid. firstly on his own diagnosis of Viral Fever. The application procedure has been considerably simplified.49Since then the volume of litigation in the medical field has seen a sharp rise. although a registered medical practitioner52. 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.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. this clause prevents frivolous petitions from being filed. Supra note 19.48Litigation was expensive and time consuming. 50 Supra note 20. AswinPatel. (2005). 109. without confirming the above diagnosis by blood test or urine test. skirting around unnecessary formalities taking into account the economic constraints of the aggrieved consumer. Till then medical negligence was completely governed by tort law as was observed by the Honourable Supreme Court in the case of Dr. Mr PramodVerma. He had administered strong anitbiotics to the patient. At the same time. 99. 51 [1996] 4 SCC 332 52 S. It was determined that he could not prescribe 48 49 Supra note 25.  In the case of PoonamVermav. No stamp duty or court fees are required. 32 INDIAN BAR REVIEW. Ganga Devi. 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. Ravinder Gupta v. Even the legal jargon has been cut down on and the plaintiff can just write a letter in a simple prescribed format. The scope of ³negligence´ in the medical profession has considerably broadened in subsequent decisions. 1986. was entitled to practice in homeopathic medical sciences. Medical Negligence: an analysis of Recent Judicial Trends.

whether the doctors were negligent and secondly. cannot be regarded as being an activity having a sovereign character. Not only the negligence of the doctors was proved. Another Important aspect of this decision was that the court held that ³Negligence 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. was guilty of Negligence per se and. can the state be held liable in this case of negligence on part of its servants. a second surgery was performed on her. it was held that the state is vicariously liable in such a case of medical negligence in state run hospitals. HarjolAhluwalia through K. Due to complications. but also decided that State is vicariously liable in this case as ³the running of a hospital. without being qualified in that system. [1996] 2 SCC 634.´ Hence. which she could not survive. it was found that a mop was left inside the lady patient¶s abdomen. 55 Supra note 45. therefore. 47. Yet the Supreme Court took a different opinion. the court concluded that ³We are of the positive opinion that Respondent No. After an abdominal surgery in a government hospital. In this the major 53 Supra note44. negligence could not be proven. Thus. where the members or the general public can come for treatment. having practised in Allopathy.allopathic treatment to any patient since it would require substantive allopathic medicinal knowledge. 54   21 . 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. 56 [1998] 4 SCC 39.1.´55  In the case of M/s Spring Meadows Hospital and anr v. 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). due to conflict of opinions between medical experts consulted by the court and tampering of evidence by the respondents.S. Ahluwalia and Anr 56is also a case of Medical Negligence. In this case two major issues had arisen: firstly. Also.´53  In AchutraoHaribhauKhodwa v. State of Maharastra and Ors54there was a peculiar situation.

´59 In this case despite sterilization under a government scheme. Mrs. 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. Another outcome of the case was that it was decided that ³error of judgement cannot necessarily be termed as negligence. Santra58Bolam¶s test has been approved.´60 57 Supra note 44. It reads: ³The test is the standard of the ordinary skilled man exercising and professing to have that special skill. In the case of a medical man. Every Doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. and if he conforms with one of these proper standards. She was at first misled by the same medical authorities who had operated on her. This is what is known as 'implied undertaking' by a member of the medical profession that he would use a fair. the plaintiff. A man need not possess the highest expert skill.´57  In the case of State of Haryana v. then he is not negligent. This was in view that she was a poor woman.Santara conceived. It was held that parents cannot be held to be consumers and also that both the minor and the parents cannot be awarded damages. reasonable and competent degree of skill. But the court held that: ³Negligence is a 'tort'. She claimed compensation hefty enough to support the girl child born to her atleast till she attained puberty. the counsel for the appellants contended that there was no loss incurred and thus no tort has been committed. Smt. at 110 [2000] 5 SCC 182 59 Supra note 18 60 Supra note 50 58 22 . Later on. Whether the parents of a minor patient can be stated to be consumers and whether they can be compensated for mental agony. to believe that there was no pregnancy. already with seven children. it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular Article. However. 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.contentions that arose were namely.

Raj Rani62Supreme Court diluted its stand considerably. the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or child. The tubes may regenerate and reunite. There is another condition also which has been included in liability. Although a rarity. In the cases of State of Punjab v. there is an exception ³if there is proved negligence on part of the surgeon in performing the surgery.Thus.´ The aforementioned proven negligence shall be tested through Bolam Test. the latest trends can be condensed to mean that: ³In the absence of proof of negligence. 23 . such cases have occurred in the past.´ However. at 110-111 64 Supra note 45. 61 62 [2005] 6 SCALE 770 [2005] 7 SCALE 1 63 Supra note 45. liability may arise. 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 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.  This stand taken by the Supreme Court has been considerably altered in two subsequent cases that must be mentioned here. Thus.´63 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. It held that ³ merely because a woman having undergone a sterilization operation became pregnant and delivered a child. Shivram61 and State of Haryana v. ³If 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. the doctor can be held liable only in those cases where the cause of the failure of the surgery was his own negligence.

9. 1986.org/stable/25225546 ( Last visited August 8. Proving charges of GanapatiMudur. 3710 67 65 VarshaNarsi mhan.000 against those who file false or frivolous lawsuits against doctors but the members of the Indian MedicalAssociation believe that this is a petty sum and does not prove to be a strong deterrent. L. (7261) . British Medical Journal. There is a fine of Rs. 588 (Sep. available at. 2000) available at http://www. 24 . made it clear that extreme µcare¶ and µcaution¶ should be exercised while initiating criminal proceedings against a medical practitioner.J.321. (August 12. Indian Doctors Not Accountable.in/2009/09/supreme-court-and-medical-negligence- (September 68 %E2%80%93-necessary-protection-or-license-to-kill/. (Last visited on August 8.2010) Interview withDr. Supreme Court and Medical Negligence ± Necessary Protection or License to Kill. 2010). 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. marked as a landmark judgment in the field of medical negligence. 10.68 This attitude among the doctors has led to even genuine cases being dismissed due to lack of evidence.jstor.Chapter 4:Li itations of the Litigation System The inclusion of medical negligence within the ambit of Consumer Protection Act. 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.State of Punjab66. 2005Crl. Says Consumer Report.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. 2009).jurisonline. Pankaj Singh. 66 Jacob Matthews Vs State of Punjab.65 The Supreme Court in Jacob Matthews v. Every system has its inherent drawbacks and most of them can be easily addressed by spreading basic awareness among both the doctors and patients. It framed obligatory guidelines under which a medical practitioner could be held criminally liable on account of his professional negligence or deficiency of services. This clause often leaves the patients helpless as most doctors are unwilling to testify against their colleagues. 2010). 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. 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. www.

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. Samuraj and Anr.The Maharashtra Medical Council and Ors. 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. 70 25 . 69 AIR1996 Bom 198 I(2005) CPJ 33 (NC) 71 Supra note 51. the patient or his legal heir has the right to get the copies of the entire medical record on payment of reasonable charge69.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. 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. According to the landmark decision given by Bombay High Court in the case of RaghunathRaheja v. In the case of Meenakshi Mission Hospital and Research Centre v.70. the medical practitioners as well as the legal profession in a quandary.negligence becomes easier for those who file cases indiscriminately if sloppily maintained records fail to show whether due care was taken or not. Hospitals generally take the easy way out by not maintaining exhaustive records but they are ultimately only harming themselves. 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.

1986. over the years. In a nation where almost all the laws are codified to form the single largest constitution of the world.J. This has led to increased number of cases related to tort litigation. has definitely brought a major change in tort litigation in general. 1986. have started viewing medical negligence cases more favourably although malicious and frivolous cases have been dealt with quite severely. have been adequately dealt with. orderly growth of the society and cultural the liberal approach to tortious liability by court would be conducive. However. v. it has been observed that tort litigation in India has shown two distinct trend lines before and after the implementation of Consumer Protection Act. Consumer Protection Act. In this context Justice Sahai comments: ³Truly speaking the entire law of torts is founded and structured on morality. Finally. Even for social development. rising number of cases and malicious prosecution have been studied in depth. 72 73 Jay Laxmi Salt Works (p) ltd. . L. but also tort litigation in general has been heavily influenced by this act. Not only Medical negligence.´72 In the course of this research paper. it would be primitive to close strictly or close finally the ever expanding and growing horizon of tortious liability. 1986. 2005Crl. even under Consumer Protection Act. the applicability of law changes from case to case. Major issues such as impact of Consumer Protection Act. State of Gujarat (1994) 4 SCC 1 Jacob Matthews Vs State of Punjab.It may amount to say that tort litigation is witnessing a resurgence within the ambit of the Indian Constitution. In case of Medical Negligence this change was highlighted by numerous controversies and also because. various controversial contentions such as the definition of a patient as a consumer and Medical Assistance as µservice¶ under the Consumer Protection Act. The past twenty four years have seen an eminent rise in the public and judicial awareness regarding tort law. Therefore. 1986.Conclusion One may even question the scope of tort law in India. tort law is extremely vulnerable to extinction at the hands of codification.73 Taking these facts into account. it has been shown that courts. 1986. various cases have been analysed and studied in depth to identify distinct trends in litigation relating to this specific tort. On the other hand. 3710 26 . Medical Negligence has been comprehensively analysed.

27 .

16th edn. ECONOMIC AND POLITICAL WEEKLY. Medical Negligence: an analysis of Recent Judicial Trends.jurisonline. 216. INDIAN BAR REVIEW. 1987) y y PriyanathSen.H. Supreme Court and Medical Negligence Necessary available at http://www. y HALSBURY¶S LAWS OF ENGLAND. 1998. (19th Edition. ECONOMIC AND POLITICAL WEEKLY.availableat http://www.in/2009/09/supreme-court-and-medical-negligence%E2%80%93-necessary-protection-or-license-to-kill/. HINDU JURISPRUDENCE.. Indian Doctors May Be Tried In Consumer Courts. Supreme Court and Medical Negligence ± Necessary Protection or License to Kill.legalserviceindia.British Medical Journal. Consumer Protection Act and Medical Profession. 32. Torts In India Whether Unnecessary Or Simply Overlooked.31(51). 2005 y VarshaNarsimhan. 109. www.F.S.html y ShounakMitra. 27(45). K. Protection(2008). Available at.com/article/l129-Torts-In-India. (W. y ArunBal. ECONOMIC AND POLITICAL WEEKLY. (1996). Heuston. Kaushal.311(7017).com/article/l178- Medical-Negligence. 1973) Articles y Bhuvana. (3rd edn. y GanpatiMudur.Rogers ed. R.html y Medical Negligence. 28(11).V. 99.. 103. Protecting Health Care Consumers: Is CPA effective?. (1972. (1993).V.legalserviceindia. 2393 (1992). Jaswal. SALMOND&HEUSTON ON THE LAW OF TORTS. UNIVERSAL¶S MEDICAL NEGLIGENCE AND LEGAL REMEDIES. Reprint) A. 2393. (Manish Aroraed). y S. 28 . 2002). second edition. (1992) y ArunBal. (September 2009).Bibliography Books y y WINFIELD AND JOLOWICZ ON TORT.

7th edn. 29 . 1999). Pankaj Singh ( August 12. Garner ed.. BLACKS¶ LAW DICTIONARY .Miscellaneous y y Interview with Dr. (Bryan A. 1056. 2010).

Sign up to vote on this title
UsefulNot useful

Master Your Semester with Scribd & The New York Times

Special offer: Get 4 months of Scribd and The New York Times for just $1.87 per week!

Master Your Semester with a Special Offer from Scribd & The New York Times