Medical Negligence Notes

YAGNA LEGAL
INDEX
S.No PARTICULARS Pg. No

1. Important Medical Negligence Cases in India 2
2. Important Judgments on Medical Negligence in India 5
3. Indian Journal of Urology 10
4. Medical Negligence - Medical Negligence Judgments 27
5. SC awards Rs 5.96 crore compensation in medical negligence case 33
6. Landmark Case 35
COVID-19 and Medical Negligence: The need for comprehensive 44
7.
guidelines
No 304A against Doctor unless high order of Medical Negligence is
8. 47
established: Supreme Court
Medical Professionals should not be dragged into Criminal Proceedings
9. 52
unless Negligence of a High Order is shown- Supreme Court
Medical Professional are not allowed to be dragged into various
10. 56
Criminal Proceedings unless there is a Negligence of High Order
11. Case of Medical Negligence: “How the Judiciary can punish a lifesaver” 58
IMPORTANT MEDICAL NEGLIGENCE CASES

IN INDIA
Medical Negligence Notes Page | 1
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What is Medical Negligence?

Medical Profession is one of the oldest professions and most humanitarian one. Doctors
in India are treated as second life savers after God. The standard of care from doctors and hospital
authority is expected to be more in comparison with other cases of negligence. So proper care
must be taken by the authorities and the doctor’s side to avoid medical negligence. The Black law
dictionary definition of negligence “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 statue 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”.
The basic elements of Negligence are (a) Duty of Care (b) Breach of Duty (c)Cause in
fact (d)Proximate Cause and (e) Damage. These are the basic elements of negligence, to prove
the case of negligence all these criteria must be satisfied and in cases of medical negligence in
India, the ambit of duty of care and proximate cause increases, as there are life involve in this
situation.
When there is civil wrong (right in rem) against a contractual obligation (right in
persona), with a breach of duty which invites the intervention of judges to grant certain remedy
for the damages then the tortious liability arises but the standard of care is more in medical cases
as compared to general cases.
Principle of Standard of care was laid down by Supreme Court in the case of Dr. Laxman
Balakrishna Joshi vs. Dr. Trimbark Babu Godbole AIR 1969,SC 128 and A.S Mittal .v. State of
U.P, AIR 1989 SC 1570 . In these cases, different kind of negligence was introduced which were
further question of qualification for application in other cases.
There is an exception for medical negligence that if a doctor does not charge fees for his
act then he cannot be sued for medical negligence under Tort as per the definition of service
which is mentioned in sec 2(1) of Consumer protection Act 1986.
Vicarious liability of hospitals
The principle of vicarious liability is based on a latin maxim “qui facit per alium facit per
se” which describes that the one who acts through another act in his or her own interest. The
patient only requires diligent and proper care, if any of the staff of the hospital is negligent in the
performance of their prescribed work, the hospital will be held liable on the negligent conduct of
even borrowed doctors for specific performance of certain operations. This principle was
established in the case of Aparna Dutt .V. Apollo Hospital Enterprises Ltd. (2002 ACJ 954
(Mad. HC).
Hospitals have been also held liable for not providing adequate medical facility as it was
held in Paschim Bengal Khet Mazdoor Samity and Ors. v. State of Bengal(1996(4)SC260).

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Hospitals are also held vicariously held liable if they are not able to provide proper sanitation
facility, as it happened in Mr. M Ramesh Reddy .V. State of Andra Pradesh [2003 (1) CLD 81
(APSCDRC).
Medical negligence cases and ethics
In some cases of medical negligence, the compensation to the victim has given looking on
the ethical values related to humanitarian basis as we can infer with the case of Pravat Kumar
Mukherjee Vs. Ruby General Hospital and ors 2005 CPJ 35 (NC). In this case National
Commission of India delivered a land mark judgment for treating of accident victim, what
happened in this case the complainant were the parents of deceased boy named Samanate
Mukherjee a 2nd year B.tech boy who studied in Netaji Subhas Chandra Bose Engineering College
, the complaint was filed in National Commission of India. The boy was hit by a Calcutta
transport bus and rushed to the hospital which was 1 km from the accident spot. The boy was
conscious when he was taken to hospital and he showed his medical insurance card, which clearly
says that the boy will be given Rs.65,000 by the Insurance company in case of accident, relying
on it hospital started treating boy but after giving some initial treatment hospital demanded
Rs15,000 and on the non- payment of the demanded money hospital discontinued treatment of the
boy and the boy was rushed to another hospital in the way the boy died. This was the case and in
this case the National Commission held Ruby hospital liable and provided Rs. 10 lakhs as
compensation to the parents. So, in this case the court looked on humanitarian basis and
compensation was awarded to the complainant.
Landmark Judgment on Medical Negligence
When we think about landmark judgment in medical negligence cases the first judgment
that comes into our mind is one of the high profile and most talked case with the highest amount
of compensation granted till date. Kunal Saha Vs AMRI (Advanced Medical Research institute )
famously known as Anuradha Saha Case, this case was filed in 1998 with the allegation of
medical negligence on Kolkata based AMRI Hospital and three doctors namely Dr. Sukumar
Mukherjee, Dr. Baidyanath Halder and Dr. Balram Prasad. In simple layman term, the wife was
suffering from drug allergy and the doctors were negligent in prescribing medicine which further
aggravated the condition of patient and finally led to death. In brief this was the facts and
circumstances of the case, in this case the final verdict was given by the Supreme court on
24th October 2013 and a compensation of around 6.08 crore for the death of his wife.
In the case of V.Krishan Rao Vs Nikhil Super Speciality Hospital 2010, Krishna Rao, an officer
in malaria department filed a complaint against the hospital for negligent conduct in treating his
wife. His wife was wrongly treated for typhoid fever instead of malaria fever, due to the wrong
medication provided by the hospital. Finally, the verdict was given and Rao was awarded a
compensation of Rs 2 lakhs. In this case, the principle of res ipsa loquitor (thing speak for itself)
was applied and the compensation was given to the plaintiff.
Defense of Medical Profession

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In defense of medical profession Supreme court in Kusum Sharma & Ors vs. Batra
Hospital and Medical Research case held that the law of negligence has to be applied according
to facts and circumstances of individual case. No one can ignore that medicine is an evolving
science, and there is no precise outcome of effect for every person. The operations involve certain
calculated risk which cannot be denied because of complication in the operation if some risk is
done, the doctors cannot be held liable for negligence as the patient himself has consented to the
risk involved in the operation.
In another case of Jacob Mathew .V. State of Punjab, the Supreme court held that in some cases
of medical profession the doctors are equipped in certain situation where they have to make
choices between a devil and the deep sea. Sometimes in certain situation there must be greater
risk in the operation but higher chances of success and in another move there would be lesser risk
but higher chances of failure. So the decision, that which course would be follow will depend on
facts and circumstances of case.
Conclusion
On the scrutiny of leading medical negligence cases of India, certain principles should be
taken into consideration while pronouncing the judgment in medical negligence cases.
1. Negligence should be guided upon the principle of reasonableness of common man

prudence and negligence must be established in order to give the compensation in certain
cases.
2. Medical profession requires certain degree of skill and knowledge, so the standard of care
in cases of medical professional is generally high and should also be taken into account
while giving the judgment.
3. A medical professional can be only held liable, when the standard of care is reasonably is
less than the reasonable care that should be taken from a competent practitioner in that
field.
4. When a choice has to be made between certain circumstance when there is higher risk
involved and greater success is involved and lesser risk with higher chances of failure, the
facts and circumstances of the individual case should be taken into the consideration.
5. No negligence will apply on medical professional, when he performs his duty with the
utmost care that should be taken, and he had taken all the precaution.
6. Medical professional should not be harassed unreasonably and unwanted apprehension
and fear should not be created on the medical fraternity that they can give their best in
certain cases where it is required, they should be given some liberty in certain peculiar
situation where they need to make their judgment without any apprehension freely. So
that it can be beneficial for the society.
IMPORTANT JUDGMENTS ON MEDICAL

NEGLIGENCE IN INDIA
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What is medical negligence?

Poonam Verma v. Ashwin Patel & Ors.[1]– In this case, the Supreme Court delved
into the issue of what is medical negligence. In the context, the Court held as under:
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, willful or
reckless negligence or Negligence per se.”
Negligence per se 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.
Bhalchandra @ Bapu & Another v. State of Maharashtra[2], the Supreme Court opined

that while negligence is an omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do; criminal negligence is the gross
and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard
against injury either to the public generally or to an individual in particular, which having regard
to all the circumstances out of which the charge has arisen, it was the imperative duty of the
accused person to have adopted.
Nature of Medical Profession and Negligence in Medical profession
Jacob Mathew v. State of Punjab & Another[3]– In this case, the Supreme Court
while dealing with the case of negligence by professionals also gave illustration of medical
and legal profession and observed as under:
“In the law of negligence, professionals such as lawyers, doctors, architects and others are
included in the category of persons professing some special skill or skilled persons generally.
Any task which is required to be performed with a special skill would generally be admitted
or undertaken to be performed only if the person possesses the requisite skill for performing
that task. Any reasonable man entering into a profession which requires a particular level of
learning to be called a professional of that branch, impliedly assures the person dealing with
him that the skill which he professes to possess shall be exercised and exercised with
reasonable degree of care and caution. He does not assure his client of the result. A lawyer
does not tell his client that the client shall win the case in all circumstances. A physician
would not assure the patient of full recovery in every case. A surgeon cannot and does not

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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 which 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 entrusted to him 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 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
necessary for every professional to possess the highest level of expertise in that branch which
he practises.
Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others[4], , this

Court noticed that in the very nature of medical profession, skills differs from doctor to
doctor and more than one alternative course of treatment are available, all admissible.
Negligence cannot be attributed to a doctor so long as he is performing his duties to the best
of his ability and with due care and caution. Merely because the doctor chooses one course of
action in preference to the other one available, he would not be liable if the course of action
chosen by him was acceptable to the medical profession.
Medical Negligence under Section 304A of IPC
Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra[5]– In this case,

while dealing with Section 304A of IPC(death caused by negligence) , the statement of law
by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap[6], , was cited with approval:
“To impose criminal liability under Section 304A, Indian Penal Code, it is necessary that the
death should have been the direct result of a rash and negligent act of the accused, and that
act must be the proximate and efficient cause without the intervention of another’s
negligence. It must be the causa causans; it is not enough that it may have been the causa sine
qua non.”
Whether service rendered by medical practitioner “service” under Section

2(1) (o) of the Consumer Protection Act, 1986?
Indian Medical Association v. V.P. Shantha & Others[7], three-Judge Bench of Supreme

Court held that service rendered to a patient by a medical practitioner by way of
consultation, diagnosis and treatment, both medicinal and surgical, would fall within the

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ambit of ‘service’ as defined in Section 2(1) (o) of the Consumer Protection Act,
1986. Deficiency in service has to be judged by applying the test of reasonable skill and care
which is applicable in action for damages for negligence.
ndian Medical Association v. V.P. Shantha & Others[7], three-Judge Bench of Supreme

Court held that service rendered to a patient by a medical practitioner by way of
consultation, diagnosis and treatment, both medicinal and surgical, would fall within the
ambit of ‘service’ as defined in Section 2(1) (o) of the Consumer Protection Act,
1986. Deficiency in service has to be judged by applying the test of reasonable skill and care
which is applicable in action for damages for negligence.
With reference to difference between medical profession and other occupations, the Court
made the following observations:
“In the matter of professional liability professions differ from occupations for the reason that
professions operate in spheres where success cannot be achieved in every case and very often
success or failure depends upon factors beyond the professional man’s control. In devising a
rational approach to professional liability which must provide proper protection to the
consumer while allowing for the factors mentioned above, the approach of the Courts is to
require that professional men should possess a certain minimum degree of competence and
that they should exercise reasonable care in the discharge of their duties. In general, a
professional man owes to his client a duty in tort as well as in contract to exercise reasonable
care in giving advice or performing services”.
C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam[8], this Court had an occasion to

deal with the case of medical negligence in a case in which the respondent was hit by a
motor-cycle while going on his bi-cycle sustained a hairline fracture of the neck of the right
femur.
Pre-operative evaluation was made and the appellant Dr. Sreekumar, on considering
the various options available, decided to perform a hemiarthroplasty instead of going in for
the internal fixation procedure. The respondent consented for the choice of surgery after the
various options have been explained to him. The surgery was performed the next day. The
respondent filed a complaint against the appellant for medical negligence for not opting
internal fixation procedure. The Supreme Court in the case held that the appellant’s decision
for choosing hemiarthroplasty with respect to a patient of 42 years of age was not so palpably
erroneous or unacceptable as to dub it as a case of professional negligence.
Principles to be followed while deciding case of medical negligence
Kusum Sharma & Ors vs Batra Hospital &Medical Research[9]– In this case, the
Supreme Court enumerated the following principles to be followed while deciding whether
medical professional is guilty of medical negligence:

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

a reasonable man, guided by those considerations which ordinarily regulate the
I.
conduct of human affairs, would do, or doing something which a prudent and
reasonable man would not do.
Negligence is an essential ingredient of the offence. The negligence to be

II. established by the prosecution must be culpable or gross and not the negligence
merely based upon an error of judgment.
The medical professional is expected to bring a reasonable degree of skill and

knowledge and must exercise a reasonable degree of care. Neither the very
III.
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.
A medical practitioner would be liable only where his conduct fell below that of
IV.
the standards of a reasonably competent practitioner in his field.
In the realm of diagnosis and treatment there is scope for genuine difference of
V. opinion and one professional doctor is clearly not negligent merely because his
conclusion differs from that of other professional doctor.
The medical professional is often called upon to adopt a procedure which

involves higher element of risk, but which he honestly believes as providing
greater chances of success for the patient rather than a procedure involving
VI. lesser risk but higher chances of failure. Just because a professional looking to
the gravity of illness has taken higher element of risk to redeem the patient out
of his/her suffering which did not yield the desired result may not amount to
negligence.
Negligence cannot be attributed to a doctor so long as he performs his duties

with reasonable skill and competence. Merely because the doctor chooses one
VII.
course of action in preference to the other one available, he would not be liable
if the course of action chosen by him was acceptable to the medical profession.
It would not be conducive to the efficiency of the medical profession if no

VIII.
Doctor could administer medicine without a halter round his neck.
It is our bounden duty and obligation of the civil society to ensure that the
IX. medical professionals are not unnecessary harassed or humiliated so that they
can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of
complainants who use criminal process as a tool for pressurizing the medical
professionals/hospitals particularly private hospitals or clinics for extracting
uncalled for compensation. Such malicious proceedings deserve to be discarded

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against the medical practitioners.
The medical professionals are entitled to get protection so long as they perform
their duties with reasonable skill and competence and in the interest of the
XI.
patients. The interest and welfare of the patients have to be paramount for the
medical professionals.
No straitjacket formula to determine as to when the cause of action has

accrued to the consumer
V.N.Shrikhande vs Anita Sena Fernandes [(2011) 1 SCC 53]- In this case, the
Supreme Court had held that in cases of medical negligence, no straitjacket formula can
be applied for determining as to when the cause of action has accrued to the consumer.
Each case is to be decided on its own facts. If the effect of negligence on the doctor’s part or
any person associated with him is patent, the cause of action will be deemed to have arisen on
the date when the act of negligence was done. If, on the other hand, the effect of negligence is
latent, then the cause of action will arise on the date when the patient or his
representative- complainant discovers the harm/injury caused due to such act or the date
when the patient or his representative-complainant could have, by exercise of reasonable
diligence discovered the act constituting negligence.
No cure/ no success is not a negligence
Dr. M. Kochar vs Ispita Seal[10]– In this recent case, the National Consumer Dispute
Redressal Commission (NCDRC) was confronted with the issue of failure in IVF procedure.
The complainant in the case complained of failure in IVF procedure and demanded
compensation from the Doctor on account of medical negligence. The National Commission
in the case held that “No cure/ no success is not a negligence”, thus fastening the liability
upon the treating doctor is unjustified.
[1](1996) 4 SCC 332
[2] AIR 1968 SC 1319
[3] (2005) 6 SCC 1
[4] (1996) 2 SCC 634
[5] (1965) 2 SCR 622
[6] (1902) 4 BLR 679
[7] (1995) 6 SCC 651
[8] (2009) 7 SCC 130

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[9] II (2010) SLT 73
[10] FIRST APPEAL NO. 368 OF 2011, decided on December 12, 2017
INDIAN JOURNAL OF UROLOGY

Medical negligence liability under the consumer protection act: A
review of judicial perspective
Abstract
It is important to know what constitutes medical negligence. A doctor owes certain duties to
the patient who consults him for illness. A deficiency in this duty results in negligence. A
basic knowledge of how medical negligence is adjudicated in the various judicial courts of
India will help a doctor to practice his profession without undue worry about facing litigation
for alleged medical negligence.
Keywords: Cconsumer protection act, negligence, reasonable care
Introduction
Lately, Indian society is experiencing a growing awareness regarding patient's rights.

This trend is clearly discernible from the recent spurt in litigation concerning medical
professional or establishment liability, claiming redressal for the suffering caused due to
medical negligence, vitiated consent, and breach of confidentiality arising out of the doctor-
patient relationship. The patient-centered initiative of rights protection is required to be
appreciated in the economic context of the rapid decline of State spending and massive
private investment in the sphere of the health care system and the Indian Supreme Court's
painstaking efforts to Constitutionalize a right to health as a fundamental right. As of now,
the adjudicating process with regard to medical professional liability, be it in a consumer
forum or a regular civil or criminal court, considers common law principles relating to
negligence, vitiated consent, and breach of confidentiality. However, it is equally essential to
note that the protection of patient's right shall not be at the cost of professional integrity and
autonomy. There is definitely a need for striking a delicate balance. Otherwise, the
consequences would be inexplicable.

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In the context of obtaining processes, there is a deserving need for a two-pronged

approach. On one hand, the desirable direction points towards identification of minimum
reasonable standards in light of the social, economical, and cultural context that would
facilitate the adjudicators to decide issues of professional liability on an objective basis. On
the other hand, such identification enables the medical professionals to internalize such
standards in their day-to-day discharge of professional duties, which would hopefully prevent
to a large extent the scenario of protection of patient's rights in a litigative atmosphere. In the
long run, the present adversarial placement of doctor and the patient would undergo a
transformation to the advantage of the patient, doctor, and society at large.
What a Medical Doctor should knowabout COPRA

Who can file a complaint?
A consumer or any recognized consumer association, i.e., voluntary consumer

association registered under the Companies Act, 1956 or any other law for the time being in
force, whether the consumer is a member of such association or not, or the central or state
government.
Who is a consumer?
A consumer is a person who hires or avails of any services for a consideration that has
been paid or promised or partly paid and partly promised or under any system of deferred
payment and includes any beneficiary of such services other than the person hires or avails of
the services for consideration paid or promised, or under any system of deferred payment,
when such services are availed of with the approval of the first mentioned person. This
definition is wide enough to include a patient who merely promises to pay.
What is a complaint?
A complaint is an allegation in writing made by a Complainant, i.e., a consumer that

he or she has suffered loss or damage as a result of any deficiency of service.
What is deficiency of service?
Deficiency of service means any fault, imperfection, shortcoming, or inadequacy in

the quality, nature, or manner of performance that 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.
Where is a complaint filed?
A complaint can be filed in 1) the District Forum if the value of services and
compensation claimed is less than 20 lakh rupees, 2) before the State Commission, if the
value of the goods or services and the compensation claimed does not exceed more than 1

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crore rupees, or 3) in the National Commission, if the value of the goods or services and the
compensation exceeds more than 1 crore rupees.
What is the cost involved in filing a complaint?
There is a minimal fee for filing a complaint before the district consumer redressal
forums.
Is there any provision for appeal?
An appeal against the decision of the District Forum can be filed before the State
Commission. An appeal will then go from the State Commission to the National Commission
and from the National Commission to the Supreme Court. The time limit within which the
appeal should be filed is 30 days from the date of the decision in all cases.
What are the powers of the consumer redressal forums?
The forums have a variety of powers. They are 1) the summoning and enforcing of the
attendance of any defendant or witness and examining the witness under oath, 2) the
discovery and production of any document or other material object producible as evidence, 3)
the reception of evidence on affidavits, 4) the summoning of any expert evidence or
testimony, 5) the requisitioning of the report of the concerned analysis or test from the
appropriate laboratory or from any other relevant source, 6) issuing of any commission for
the examination of any witness, and 7) any other matter which may be prescribed.
How does adjudication of liability take place?
The process before the competent forum will be set in motion in the following
manner. When the Complainant files a written complaint, the forum, after admitting the
complaint, sends a written notice to the opposite party asking for a written version to be
submitted within 30 days. Thereafter, subsequent to proper scrutiny, the forum would ask for
either filing of an affidavit or production of evidence in the form of interrogatories, expert
evidence, medical literature, and judicial decisions.
MEDICAL NEGLIGENCE – DEFINITIONAL ASPECTS
Negligence is simply the failure to exercise due care. The three ingredients of negligence
are as follows:
1. The defendant owes a duty of care to the plaintiff.
2. The defendant has breached this duty of care.

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3. The plaintiff has suffered an injury due to this breach.
Medical negligence is no different. It is only that in a medical negligence case, most

often, the doctor is the defendant.
When does a duty arise?
It is well known that a doctor owes a duty of care to his patient. This duty can either
be a contractual duty or a duty arising out of tort law. In some cases, however, though a
doctor-patient relationship is not established, the courts have imposed a duty upon the doctor.
In the words of the Supreme Court “every doctor, at the governmental hospital or elsewhere,
has a professional obligation to extend his services with due expertise for protecting life”
(Parmanand Kataria vs. Union of India[1]). These cases are however, clearly restricted to
situations where there is danger to the life of the person. Impliedly, therefore, in other
circumstances the doctor does not owe a duty.
What is the duty owed?
The duty owed by a doctor towards his patient, in the words of the Supreme Court is
to “bring to his task a reasonable degree of skill and knowledge” and to exercise “a
reasonable degree of care” (Laxman vs. Trimback[2]). The doctor, in other words, does not
have to adhere to the highest or sink to the lowest degree of care and competence in the light
of the circumstance. A doctor, therefore, does not have to ensure that every patient who
comes to him is cured. He has to only ensure that he confers a reasonable degree of care and
competence.
Reasonable degree of care
Reasonable degree of care and skill means that the degree of care and competence that
an “ordinary competent member of the profession who professes to have those skills would
exercise in the circumstance in question.” At this stage, it may be necessary to note the
distinction between the standard of care and the degree of care. The standard of care is a
constant and remains the same in all cases. It is the requirement that the conduct of the doctor
be reasonable and need not necessarily conform to the highest degree of care or the lowest
degree of care possible. The degree of care is a variable and depends on the circumstance. It
is used to refer to what actually amounts to reasonableness in a given situation.
Thus, though the same standard of care is expected from a generalist and a specialist,
the degree of care would be different. In other words, both are expected to take reasonable
care but what amounts to reasonable care with regard to the specialist differs from what
amount of reasonable care is standard for the generalist. In fact, the law expects the specialist
to exercise the ordinary skill of this speciality and not of any ordinary doctor. Though the
courts have accepted the need to impose a higher degree of duty on a specialist, they have
refused to lower it in the case of a novice.

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Another question that arises is with regard to the knowledge that is expected from a
doctor. Should it include the latest developments in the field, hence require constant updating
or is it enough to follow what has been traditionally followed? It has been recognized by the
courts that what amounts to reasonableness changes with time. The standard, as stated clearly
herein before requires that the doctor possess reasonable knowledge. Hence, we can conclude
that a doctor has to constantly update his knowledge to meet the standard expected of him.
Furthermore, since only reasonable knowledge is required, it may not be necessary for him to
be aware of all the developments that have taken place.
We have, until now, examined the duty of a doctor in so far as treating a patient is
concerned or in diagnosing the ailment. Doctors are, however, imposed with a duty to take
the consent of a person/patient before performing acts like surgical operations and in some
cases treatment as well. To summarize, any act that requires contact with the patient has to be
consented by the patient. A duty of care is imposed on the doctors in taking the patient's
consent. Naturally, a question arises as to what is this duty of care. As per the judicial
pronouncements, this duty is to disclose all such information as would be relevant or
necessary for the patient to make a decision. Therefore, the duty does not extend to disclosing
all possible information in this regard. Furthermore, this duty does not extend to warning a
patient of all the normal attendant risks of an operation. The standard of care required of a
doctor while obtaining consent is again that of a reasonable doctor, as in other cases.
When does the liability arise?
The liability of a doctor arises not when the patient has suffered any injury, but when
the injury has resulted due to the conduct of the doctor, which has fallen below that of
reasonable care. In other words, the doctor is not liable for every injury suffered by a patient.
He is liable for only those that are a consequence of a breach of his duty. Hence, once the
existence of a duty has been established, the plaintiff must still prove the breach of duty and
the causation. In case there is no breach or the breach did not cause the damage, the doctor
will not be liable. In order to show the breach of duty, the burden on the plaintiff would be to
first show what is considered as reasonable under those circumstances and then that the
conduct of the doctor was below this degree. It must be noted that it is not sufficient to prove
a breach, to merely show that there exists a body of opinion which goes against the
practice/conduct of the doctor.
With regard to causation, the court has held that it must be shown that of all the
possible reasons for the injury, the breach of duty of the doctor was the most probable cause.
It is not sufficient to show that the breach of duty is merely one of the probable causes.
Hence, if the possible causes of an injury are the negligence of a third party, an accident, or a
breach of duty care of the doctor, then it must be established that the breach of duty of care of
the doctor was the most probable cause of the injury to discharge the burden of proof on the
plaintiff.

YAGNA LEGAL
Normally, the liability arises only when the plaintiff is able to discharge the burden on
him of proving negligence. However, in some cases like a swab left over the abdomen of a
patient or the leg amputated instead of being put in a cast to treat the fracture, the principle of
‘res ipsa loquitur’ (meaning thereby ‘the thing speaks for itself’) might come into play. The
following are the necessary conditions of this principle.
1. Complete control rests with the doctor.
2. It is the general experience of mankind that the accident in question does not happen
without negligence. This principle is often misunderstood as a rule of evidence, which
it is not. It is a principle in the law of torts. When this principle is applied, the burden
is on the doctor/defendant to explain how the incident could have occurred without
negligence. In the absence of any such explanation, liability of the doctor arises.
Normally, a doctor is held liable for only his acts (other than cases of vicarious liability).
However, in some cases, a doctor can be held liable for the acts of another person which
injures the patient. The need for such a liability may arise when the person committing the act
may not owe a duty of care at all to the patient or that in committing the act he has not
breached any duty. A typical example of a case where such a situation may arise is in the case
of a surgery. If a junior doctor is involved as part of the team, then his duty, as far as the
exercise of the specialist skill is concerned, is to seek the advice or help of a senior doctor. He
will have discharged his duty once he does this and will not be liable even if he actually
commits the act which causes the injury. In such a case, it is the duty of the senior doctor to
have advised him properly. If he did not do so, then he would be the one responsible for the
injury caused to the patient, though he did not commit the act.
When there is no liability
A doctor is not necessarily liable in all cases where a patient has suffered an injury.
This may either be due to the fact that he has a valid defense or that he has not breached the
duty of care. Error of judgment can either be a mere error of judgment or error of judgment
due to negligence. Only in the case of the former, it has been recognized by the courts as not
being a breach of the duty of care. It can be described as the recognition in law of the human
fallibility in all spheres of life. A mere error of judgment occurs when a doctor makes a
decision that turns out to be wrong. It is situation in which only in retrospect can we say there
was an error. At the time when the decision was made, it did not seem wrong. If, however,
due consideration of all the factors was not taken, then it would amount to an error of
judgment due to negligence.
JUDICIAL INTERPRETATION OF MEDICAL NEGLIGENCE LIABILITY

YAGNA LEGAL
By and large the following legal issues have been addressed and responded to by
different forums and Courts in India.
Charge of Medical Negligence against Professional Doctors
From the time of Lord Denning until now it has been held in several judgments that a
charge of professional negligence against the medical professional stood on a different
footing from a charge of negligence against the driver of a motor car. The burden of proof is
correspondingly greater on the person who alleges negligence against a doctor. It is a known
fact that with the best skill in the world, things sometimes went wrong in medical treatment
or surgical operation. A doctor was not to be held negligent simply because something went
wrong. The National Commission as well as the Apex Court in catena of decisions has held
that the doctor is not liable for negligence because of someone else of better skill or
knowledge would have prescribed a different treatment or operated in a different way. He is
not guilty of negligence if he has acted in accordance with the practice accepted as proper by
a reasonable body of medical professionals. The Hon'ble Supreme Court in the case of Dr.
Laxman Balkrishna vs. Dr. Trimbak, AIR 1969 SC 128, has held the above view that is still
considered to be a landmark judgment for deciding a case of negligence. In the case of Indian
Medical Association vs. Santha, the Apex Court has decided that the skill of a medical
practitioner differs from doctor to doctor and it is incumbent upon the Complainant to prove
that a doctor was negligent in the line of treatment that resulted in the life of the patient.
Therefore, a Judge can find a doctor guilty only when it is proved that he has fallen short of
the standard of reasonable medical care. The principle of Res-Ipsa-Loquitur has not been
generally followed by the Consumer Courts in India including the National Commission or
even by the Apex Court in deciding the case under this Act. In catena of decisions, it has been
held that it is for the Complainant to prove the negligence or deficiency in service by
adducing expert evidence or opinion and this fact is to be proved beyond all reasonable
doubts. Mere allegation of negligence will be of no help to the Complainant.[3]
What Constitutes Medical Negligence?
Failure of an operation and side effects are not negligence. The term negligence is
defined as the absence or lack of care that a reasonable person should have taken in the
circumstances of the case. In the allegation of negligence in a case of wrist drop, the
following observations were made. Nothing has been mentioned in the complaint or in the
grounds of appeal about the type of care desired from the doctor in which he failed. It is not
said anywhere what type of negligence was done during the course of the operation. Nerves
may be cut down at the time of operation and mere cutting of a nerve does not amount to
negligence. It is not said that it has been deliberately done. To the contrary it is also not said
that the nerves were cut in the operation and it was not cut at the time of the accident. No
expert evidence whatsoever has been produced. Only the report of the Chief Medical Officer
of Haridwar has been produced wherein it said that the patient is a case of post-traumatic
wrist drop. It is not said that it is due to any operation or the negligence of the doctor. The
mere allegation will not make out a case of negligence, unless it is proved by reliable

YAGNA LEGAL
evidence and is supported by expert evidence. It is true that the operation has been
performed. It is also true that the Complainant has many expenses but unless the negligence
of the doctor is proved, she is not entitled to any compensation.[4]
What is the Standard of Care?
It is now a settled principle of law that a medical practitioner will bring to his task a
reasonable degree of skill and knowledge and must exercise a reasonable degree of care.
Neither the very highest nor the very lowest degree of care and competence judged in the
light of circumstances in each case is what the law requires. Judged from this yardstick, post-
operative infection or shortening of the leg was not due to any negligence or deficiency in
service on the part of the opposite party Appellant. Deficiency in service thus cannot be
fastened on the opposite party.[5]
In a case that led to visual impairment as a side effect, the following observations
were made. The literature with regard to lariago clearly mentioned that the side effect of this
medicine if taken for a longer duration can effect eyesight but this is not a fact in this case.
Besides, there is no expert evidence on record to show that use of this medicine caused
damage to the patient's eyesight. Even for argument's sake, if it is accepted that this medicine
caused damage to the patient's eyesight, if the Respondent-doctor is one who has advised his
patient to use this medicine after an examination in which he found the patient to be suffering
from malaria, in that case as well the doctor-Respondent cannot be held guilty of negligence
or deficient in his service. However, as stated above in this case the medicine has been used
by the patient in low doses for a few days and there is no expert evidence to show that the use
of medicine has affected his eyesight. Therefore, the Complainant-Appellant has failed to
prove that the Respondent was negligent and deficient in his duty as a doctor.[6]
Proof of Medical Negligence
It has been held in different judgments by the National Commission and by the
Hon'ble Supreme Court that a charge of professional negligence against a doctor stood on a
different footing from a charge of negligence against a driver of a vehicle. The burden of
proof is correspondingly greater on the person who alleges negligence against a doctor. It is a
known fact that even with a doctor with the best skills, things sometimes go wrong during
medical treatment or in a surgery. A doctor is not to be held negligent simply because
something went wrong. It is an admitted fact that the Complainant's eyesight was not restored
after the operation was conducted by the Appellant but on this ground alone a doctor can not
be held negligent because even after adopting all necessary precautions and care the result of
the operation may not be satisfactory since it depends on various other factors. The
contention of the Appellant was that the patient was suffering from diabetes and blood
pressure and in many such cases eyesight is not restored after the operation however carefully
it is done. In this case, there is nothing on record to show that something went wrong due to
an act of the Appellant-doctor. There is no evidence to come to the conclusion that the
Appellant fell below the standard of a reasonably competent practitioner in their field, so

YAGNA LEGAL
much so that their conduct might be deserving of censure. The Appellant cannot be liable for
negligence because someone else of better skill or knowledge would have prescribed a
different method of operation in different way. The evidence suggests that the Appellant has
performed the operation and acted in accordance with the practice regularly accepted and
adopted by him in this hospital and several patients are regularly treated for their eye
problems. The Hon'ble Supreme Court in the case of Dr. Laxman Balkrishna vs. Dr.
Triambak, AIR 1969 Supreme Court page 128 has held the above view and this view has
been further confirmed in the case of the Indian Medical Association vs. Santha. The Apex
Court and the National Commission has held that the skill of a medical practitioner differs
from doctor to doctor and it is an incumbent upon the Complainant to prove that the
Appellant was negligent in the line of treatment that resulted in the loss of eyesight. A Judge
can find a doctor guilty only when it is proved that he has fallen short of a standard of
reasonable medical care. The fact and circumstances of the case before us show that the
Appellant has attended to the patient with due care, skill, and diligence. Simply because the
patient's eyesight was not restored satisfactorily, this account alone is not grounds for holding
the doctor guilty of negligence and deficient in his duty. It is settled law that it is for the
Complainant to prove the negligence or deficiency in service by adducing expert evidence or
opinion and this fact is to be proved beyond all reasonable doubt. Mere allegation of
negligence will be of no help to the Complainant.[7]
The following cases of alleged medical negligence provide an insight into how the
final decision is reached by the judicial bodies. “All medical negligence cases concern
various questions of fact, when we say burden of proving negligence lies on the Complainant,
it means he has the task of convincing the court that his version of the facts is the correct
one”. No expert opinion has been produced by the Complainant to contradict the report of the
Board of Doctors. The appeal of the Complainant was dismissed with costs as “No expert
opinion has been produced by him.”[8] In a case of an improper union of the patella, no
expert has been produced by the Complainant to prove negligence of the opposite party.
Thus, it cannot be said with exactness that treatment of the Complainant by the opposite party
was against the norms prescribed under the medical jurisprudence or that the opposite party
in any way was negligent or deficient in the performance of his duties.[8]
“Allegation of medical negligence is a serious issue and it is for the person who sets
up the case to prove negligence based on material on record or by way of evidence”. The
complaint of medical negligence was dismissed because the applicant failed to establish and
prove any instance of medical negligence.[9] “Merely because the operation did not succeed,
the doctor cannot be said to be negligent” and the appeal of the doctor was allowed.[10] “A
mere allegation will not make a case of negligence unless it is proved by reliable evidence
and is supported by expert evidence” and the appeal was dismissed.[4] “The commission
cannot constitute itself into an expert body and contradict the statement of the doctor unless
there is something contrary on the record by way of an expert opinion or there is any medical
treatise on which reliance could be based” and the Revision petition of the doctor was
allowed.[1] In another case, an X-ray report indicated a small opacity that similar to an
opaque shadow that becomes visible for many causes other than a calculus. It could not be

YAGNA LEGAL
assumed that still stone existed in the right kidney that had not been operated upon. Under the
circumstances, we do not think that any case of negligence has been made by the
Complainant. This petition is, therefore, allowed.[11]
The Need for Expert Evidence in Medical Negligence Cases
The Commission cannot constitute itself into an expert body and contradict the
statement of the doctor unless there is something contrary on the record by way of an expert
opinion or there is any medical treatise on which reliance could be based.[12] In this case
there was a false allegation of urinary stone not being removed as shown by a shadow in the
xray “The burden of proving the negligent act or wrong diagnosis was on the Complainant”
and the appeal was dismissed in another case of alleged medical negligence as no expert
evidence was produced.[13] The case discussed below is not a case of apparent negligence on
the part of the surgeon in conducting the operation, but about the quality of the plate used for
fixing the bone. In the present case, the Complainant has not produced any expert witnesses
to prove that there was any fault in the performance of the operations. Fixation of the bones
by using plates is one of the recognized modes of treatment in the case of fracture of the
bones. If the opposite party has adopted the aforesaid method, though subsequently the plate
broke, negligence cannot be attributed to the doctor. This is not a case where the wounds of
the operation were infected or any other complication arose. Breaking of the plate
approximately 6 months after it was placed cannot be attributed towards a negligent act of the
doctor in performing the operation. The District Forum rightly held that the Complainant had
failed to prove his case.[14] There is nothing on the record to suggest that there has been any
negligence and/or deficiency in service on the part of the Appellant except the oral
submission of the Respondent/Complainant. In such cases, before coming to a positive
finding, there must be expert evidence on record as has been held both by the National
Commission as well as the Apex Court.[15] “As per the settled law, the onus to prove that
there was negligence” deficiency in service on the part of the opposite parties, while
diagnosing and treating the Complainant, lay heavily on the Complainant. In the given facts,
the Complainant has failed to discharge the onus that was on him. The complaint was
dismissed as the Complainant failed to discharge the onus to prove negligence or deficiency
in service.[16]
In medical negligence cases, it is for the patient to establish his case against the
medical professional and not for the medical professional to prove that he acted with
sufficient care and skill. Refer to the decision of the Madhya Pradesh High Court in the case
of Smt. Sudha Gupta and Ors. vs. State of M.P. and Ors., 1999 (2) MPLJ 259. The National
commission has also taken the same view observing that a mishap during operation cannot be
said to be deficiency or negligence in medical services. Negligence has to be established and
cannot be presumed. Refer to the decision of the National Commission in the case of Kanhiya
Kumar Singh vs. Park Medicare and Research Centre, III (1999) CPJ 9 (NC) – (2000) NCJ
(NC) 12. A similar view has been taken by the MRTP Commission in the case of P.K.
Pandey vs. Sufai Nursing Home, I (1999) CPJ 65 (MRTP) – 2000 NCJ (MRTP) 268.

YAGNA LEGAL
Followed by this, refer to the Commission in Vaqar Mohammed Khan and Anr. vs. Dr. S. K.
Tandon, II (2000) CPJ 169.[17] Both the lower Fora have held that there is no evidence
brought on record by the Complainant to show that there was any negligence by the
Respondent while implanting the lens in the eye of the Complainant resulting in a persistent
problem in the left eye.[18]
The Complainant does not examine any expert on the subject to establish his
allegation of negligence on the part of the doctor. Unfortunate though the incident is, the
Complainant needs to establish negligence on the part of the doctor to succeed in a case like
this. We may observe that there is hardly any cogent material to substantiate the allegation
contained in the petition of Complainant. Under the circumstances, we cannot but hold that
the Complainant has failed to prove the allegations against the opposite parties.[19] As held
by the National Commission in Sethuraman Subramaniam Iyer vs. Triveni Nursing Home
and anr., 1998 CTJ7, in the absence of such evidence regarding the cause of death and
absence of any expert medical evidence, the Complainants have failed to prove negligence on
the part of the opposite parties.[20]
In order to decide whether negligence is established in any particular case, the alleged
act, omission, or course of conduct that is the subject of the complaint must be judged not by
ideal standards nor in the abstract but against the background of the circumstances in which
the treatment in question was given. The true test for establishing negligence on the part of a
doctor is as to whether he has been proven guilty of such failure as no doctor with ordinary
skills would be guilty of if acting with reasonable care. Merely because a medical procedure
fails, it cannot be stated that the medical practitioner is guilty of negligence unless it is
proved that the medical practitioner did not act with sufficient care and skill and the burden
of proving this rests upon the person who asserts it. The duty of a medical practitioner arises
from the fact that he does something to a human being that is likely to cause physical damage
unless it is not done with proper care and skill. There is no question of warranty, undertaking,
or profession of a skill. The standard of care and skill to satisfy the duty in tort is that of the
ordinary competent medical practitioner exercising an ordinary degree of professional skill.
As per the law, a defendant charged with negligence can clear himself if he shows that he
acted in accordance with the general and approved practice. It is not required in the discharge
of his duty of care that he should use the highest degree of skill, since this may never be
acquired. Even a deviation from normal professional practice is not necessary in all cases
evident of negligence.[21]
RECENT SUPREME COURT JUDGEMENTS
The recent judgment pronounced in Martin F. D'Souza V. Mohd. Ishfaq[22] by the

Hon'ble Supreme Court of India quite explicitly addresses the concerns of medical
professionals regarding the adjudicatory process that is to be adopted by Courts and Forums
in cases of alleged medical negligence filed against Doctors.

YAGNA LEGAL
In March 1991, the Respondent who was suffering from chronic renal failure was
referred by the Director of Health Services to the Nanavati Hospital in Mumbai for the
purpose of a kidney transplant. At that stage, the Respondent was undergoing hemodialysis
twice a week and was awaiting a suitable kidney donor. On May 20, 1991, the Respondent
approached the Appellant doctor with a high fever, but he refused hospitalization despite the
advice of the Appellant. On May 29, 1991 the Respondent who still had a high fever finally
agreed to get admitted into the hospital due to his serious condition. On June 3, 1991, the
reports of the urine culture and sensitivity showed a severe urinary tract infection due to
Klebsiella species (1 lac/ml) sensitive only to Amikacin and Methenamine Mandelate.
Methnamine Mandelate cannot be used in patients suffering from renal failure. Since the
urinary infection was sensitive only to Amikacin, an injection of Amikacin was administered
to the Respondent for 3 days (from June 5, 1991 to June 7, 1991). Upon treatment, the
temperature of the Respondent rapidly subsided. On June 11, 1991, the Respondent who
presented to the hemodialysis unit complained to the Appellant that he had slight tinnitus
(ringing in the ear). The Appellant has alleged that he immediately told the Respondent to
stop taking the Amikacin and Augmentin and scored out the treatment on the discharge card.
However, despite express instructions from the Appellant, the Respondent continued taking
Amikacin until June 17, 1991. Thereafter, the Respondent was not under the treatment of the
Appellant. On June 14, 1991, June 18, 1991, and June 20, 1991 the Respondent received
hemodialysis at Nanavati Hospital and allegedly did not complain of deafness during this
period. On June 25, 1991, the Respondent, on his own accord, was admitted to Prince Aly
Khan Hospital. The Complainant allegedly did not complain of deafness during this period
and conversed with doctors normally, as is proved from their evidence. On July 30, 1991, the
Respondent was operated upon for a transplant and on August 13, 1991, the Respondent was
discharged from Prince Aly Khan Hospital after his transplant. The Respondent returned to
Delhi on August 14, 991 after his discharge.
On July 7, 1992, the Respondent filed a complaint before the National Consumer
Disputes Redressal Commission, New Delhi claiming compensation of an amount of
Rs.12,00,000/- as his hearing had been affected. The Appellant filed his reply stating, inter
alia, that there was no material brought on record by the Respondent to show any co-
relationship between the drugs prescribed and the state of his health. The National Consumer
Disputes Redressal Commission passed an order on October 6, 1993 directing the nomination
of an expert from the All India Institute of Medical Sciences, New Delhi (AIIMS) to examine
the complaint and give an unbiased and neutral opinion. AIIMS nominated Dr. P. Ghosh who
was of the opinion that the drug Amikacin was administered by the Appellant as a life-saving
measure and was rightly used. It is submitted by the Appellant that the said report further
makes it clear that there has been no negligence on the part of the Appellant. However, the
National Commission has come to the conclusion that the Doctor was negligent.
Supreme Court's Appreciation with Regard to Medical Negligence Liability
According to the Supreme Court, cases both civil and criminal as well as in Consumer
Fora, are often filed against medical practitioners and hospitals complaining of medical

YAGNA LEGAL
negligence against doctors, hospitals, or nursing homes, hence the latter would naturally like
to know about their liability. The general principles on this subject have been lucidly and
elaborately explained in the three Judge Bench decisions of this Court in Jacob Mathew vs.
State of Punjab and Anr. (2005) 6 SCC 1. However, difficulties arise in the application of
those general principles to specific cases. For instance, in paragraph 41 of the decision, it was
observed that: “The practitioner must bring to his task a reasonable degree of skill and
knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very
low degree of care and competence is what the law requires.” Now what is reasonable and
what is unreasonable is a matter on which even experts may disagree. Also, they may
disagree on what is a high level of care and what is a low level of care. To give another
example, in paragraphs 12 to 16 of Jacob Mathew's case (Supra), it has been stated that
simple negligence may result only in civil liability, but gross negligence or recklessness may
result in criminal liability as well. For civil liability only, damages can be imposed by the
Court but for criminal liability the Doctor can also be sent to jail (apart from damages that
may be imposed on him in a civil suit or by the Consumer Fora). However, what is simple
negligence and what is gross negligence may be a matter of dispute even among experts.
The law, like medicine, is an inexact science. One cannot predict with certainty an
outcome in many cases. It depends on the particular facts and circumstances of the case, and
also the personal notions of the Judge who is hearing the case. However, the broad and
general legal principles relating to medical negligence need to be understood. Before dealing
with these principles two things have to be kept in mind:
1. Judges are not experts in medical science, rather they are laymen. This itself often
makes it somewhat difficult for them to decide cases relating to medical negligence.
Moreover, Judges usually have to rely on the testimonies of other doctors, which may
not be objective in all cases. Since like in all professions and services, doctors too
sometimes have a tendency to support their own colleagues who are charged with
medical negligence. The testimony may also be difficult to understand for a Judge,
particularly in complicated medical matters and
2. A balance has to be struck in such cases. While doctors who cause death or agony due
to medical negligence should certainly be penalized, it must also be remembered that
like all professionals doctors too can make errors of judgment but if they are punished
for this no doctor can practice his vocation with equanimity. Indiscriminate
proceedings and decisions against doctors are counter productive and are no good for
society. They inhibit the free exercise of judgment by a professional in a particular
situation.
The reasoning and decision
In the words of the Supreme Court, the facts of the case reveal that the Respondent
was suffering from chronic renal failure and was undergoing hemodialysis twice a week as
treatment. He was suffering from a high fever but he refused to get admitted into the hospital

YAGNA LEGAL
despite the advice of the Appellant. The Respondent was also suffering from a severe urinary
tract infection that could only be treated by Amikacin or Methenamine Mandelate. Since
Methenamine Mandelate cannot be used for patients suffering from renal failure, an injection
of Amikacin was administered. A perusal of the complaint filed by the Respondent before the
National Commission shows that his main allegation was that he suffered from a hearing
impairment due to the negligence of the Appellant who allegedly prescribed an overdose of
Amikacin injections with no regard for the critical condition of the Respondent who did not
warrant such heavy dosage.
The case of the Appellant, however, is that the Complainant was referred to the
Appellant by Dr. F.P. Soonawalla, the renowned Urologist of Bombay. Dr. Soonawalla is an
eminent doctor of international repute and he would not have ordinarily referred a patient to
an incompetent doctor. This is one factor that goes in favor of the Appellant, though of course
it is not conclusive. After examining the Complainant, the Appellant found that the
Complainant was a patient of chronic renal failure due to bilateral polycystic kidneys and the
Appellant advised hemodialysis twice a week as an out-patient. The Complainant was also
investigated to find a suitable kidney donor. The Appellant has alleged in his written
statement filed before the National Commission that the Complainant was in a hurry to have
a quick kidney transplant and he was very obstinate, stubborn, and short-tempered.
The Appellant was of the view that the Respondent's infection could only be treated
by an injection of Amikacin, as Methenamine Mandelate could not be used due to his chronic
renal failure. The Respondent's report also established his resistance to all other antibiotics. In
our opinion, it is clear that the Respondent already had renal failure before the injection of
Amikacin. Amikacin was administered after a test dosage only from June 5, 1991 and at this
stage he did not complain of any side effects and his temperature subsided rapidly. On June
11, 1991, the Respondent complained to the Appellant of slight tinnitus or ringing in the ear.
The Appellant immediately reviewed the treatment on the discharge card in possession of the
Respondent and also asked his attendant i.e., his wife, to stop the injection of Amikacin and
Cap. Augmantine verbally and also marked an X on the discharge card in his own
handwriting on June 11, 1991 i.e., 3 days after discharge. Hence, as per the direction of the
Appellant, the Respondent should have stopped receiving injections of Amikacin after June
10, 1991, but on his own he kept taking Amikacin injections. On perusal of the copies of the
papers from the Cash Memo supplied by the Respondent as per annexure 4, it is in our
opinion evident that the Respondent continued to take the medicine against the advice of the
Appellant, and had unilaterally been getting injected as late as June 17, 1991, i.e., 7 days after
he had been instructed verbally and in writing in the presence of his attendant i.e., his wife
and staff members of the hospital to stop injections of Amikacin/Cap. Augmantine because of
tinnitus as early as June 11, 1991. From the above facts, it is evident that the Appellant was
not to blame in any way and it was the non cooperative attitude of the Respondent and his
continuing with the Amikacin injections even after June 11, 1991 that was the cause of his
ailment, i.e., the impairment of his hearing. A patient who does not listen to his doctor's
advice often has to face adverse consequences. It is evident from the fact that the Respondent
was already seriously ill before he met the Appellant. There is nothing to show from the

YAGNA LEGAL
evidence that the Appellant was in any way negligent, rather it appears that the Appellant did
his best to give good treatment to the Respondent to save his life but the Respondent himself
did not cooperate.
Several doctors have been examined by the National Commission and we have read
their evidence, which is on record. Apart from that, there is also the opinion of Prof. P. Ghosh
of the All India Institute of Medical Sciences who had been nominated by AIIMS as
requested by the Commission, which is also on record. The opinion of Dr. Ghosh was that
there were many factors in the case of renal diseases that cause hearing loss and it is
impossible to foretell the sensitivity of a patient to a drug, thereby making it difficult to
assess the contributions towards toxicity by the other factors involved. He has also opined
that the Amikacin dose of 500 mg twice a day for 14 days prescribed by the doctor was a life-
saving measure and the Appellant did not have any option but to take this step. Life is more
important than saving the function of the ear. Prof Ghosh was of the view that antibiotics
were rightly given on the report of the sensitivity test that showed the organisms were
sensitive to Amikacin. Hence, the antibiotic was not blindly used on speculation or as a
clinical experiment. In view of the opinion of Prof Ghosh, who is an expert of the All India
Institute of Medical Sciences, we are clearly of the view that the Appellant was not guilty of
medical negligence but rather wanted to save the life of the Respondent. The Appellant was
faced with a situation where not only was there kidney failure of the patient, but also urinary
tract infection and blood infection. In this grave situation, which threatened the life of the
patient, the Appellant had to take drastic steps. Even if he prescribed Amikacin for a longer
period than is normally done, he obviously did it to save the life of the Respondent. We have
also seen the evidence from other doctors as well as the affidavits filed before the National
Commission. No doubt some of the doctors who have deposed in this case have given
different opinions, but in cases relating to allegations of medical negligence, this Court has to
exercise great caution. From these depositions and affidavits it cannot be said that the
Appellant was negligent. In fact, most of the doctors who have deposed or given their
affidavits before the Commission have stated that the Appellant was not negligent.
We see no reason to disbelieve the above allegations of the Appellant that on June 11,
1991 he had asked the Respondent to stop taking Amikacin injections, and in fact this version
is corroborated by the testimony of the Senior Sister Mukta Kolekar. Hence, it was the
Respondent himself who is to blame for having continued Amikacin after June 11, 1991
against the advice of the Appellant. Moreover, in the statement of Dr. Ghosh before the
National Consumer Dispute Redressal Commission it has been stated that it is by no means
established that Amikacin alone can cause deafness. Dr. Ghosh stated that there are 8 factors
that can cause loss of hearing. Moreover, there are conflicting versions about the deafness of
the Respondent. While the Respondent stated that he became deaf in June 1991, most of the
Doctors who filed affidavits before the Commission have stated that they freely conversed
with him in several meetings much after 21st June and in fact up to the middle of August
1991.

YAGNA LEGAL
The National Commission had sought the assistance of AIIMS to give a report about
the allegations of medical negligence against the Appellant. AIIMS had appointed Dr. Ghosh
to investigate the case and submit a report and Dr. Ghosh submitted a report in favor of the
Appellant. Surprisingly, the Commission has not placed much reliance on the report of Dr.
Ghosh, although he is an outstanding ENT specialist of international repute. We have
carefully perused the judgment of the National Commission and we regret that we are unable
to concur with the views expressed therein. The Commission, which consists of laymen in the
field of medicine, has sought to substitute its own views over that of medical experts, and has
practically acted as super-specialists in medicine. Moreover, it has practically brushed aside
the evidence of Dr. Ghosh, whose opinion was sought on its own direction, as well as the
affidavits of several other doctors (referred to above) who have stated that the Appellant
acted correctly in the situation he was faced. The Commission should have realized that
different doctors have different approaches, for instance, some have more radical approaches
while some have more conservative approaches. All doctors cannot be fit into a straight-
jacketed formula and cannot be penalized for departing from that formula.
While this Court has no sympathy for doctors who are negligent, it must also be said
that frivolous complaints against doctors have increased by leaps and bounds in our country
particularly after the medical profession was placed within the purview of the Consumer
Protection Act. To give an example, earlier when a patient who had a symptom of having a
heart attack would come to a doctor, the doctor would immediately inject him with Morphia
or Pethidine injection before sending him to the Cardiac Care Unit (CCU) because in cases of
heart attack time is the essence of the matter. However, in some cases the patient died before
he reached the hospital. After the medical profession was brought under the Consumer
Protection Act vide Indian Medical Association vs. V.P. Shantha 1995 (6) SCC 651 doctors
who administer the Morphia or Pethidine injection are often blamed and cases of medical
negligence are filed against them. The result is that many doctors have stopped giving (even
as family physicians) Morphia or Pethidine injections even in emergencies despite the fact
that from the symptoms the doctor honestly thought the patient was having a heart attack.
This was out of fear that if the patient died the doctor would have to face legal proceedings.
Similarly, in cases of head injuries (which are very common in road side accidents in Delhi
and other cities) earlier the doctor who was first approached would started giving first aid and
apply stitches to stop the bleeding. However, now what is often seen is that doctors out of
fear of facing legal proceedings do not give first aid to the patient, and instead tell him to
proceed to the hospital by which time the patient may develop other complications.
Hence, Courts and Consumer Fora should keep the above factors in mind when
deciding cases related to medical negligence, and not take a view that would be in fact a
disservice to the public. The decision of this Court in Indian Medical Association vs. V.P.
Shantha (Supra) should not be understood to mean that doctors should be harassed merely
because their treatment was unsuccessful or caused some mishap which was not necessarily
due to negligence. In fact, in the aforementioned decision, it has been observed that (vide
para 22): “In the matter of professional liability professions differ from other occupations for
the reason that professions operate in spheres where success cannot be achieved in every case

YAGNA LEGAL
and very often success or failure depends upon factors beyond the professional man's
control.”
It may be mentioned that the All India Institute of Sciences has been doing
outstanding research in Stem Cell Therapy for the last 8 years for treating patients suffering
from paralysis, terminal cardiac condition, parkinsonism, etc., though not yet with very
notable success. This does not mean that the work of Stem Cell Therapy should stop,
otherwise science cannot progress.
We, therefore, direct that whenever a complaint is received against a doctor or

hospital by the Consumer Fora (whether District, State, or National) or by the Criminal
Court, before issuing notice to the doctor or hospital against whom the complaint was made
the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or
committee of doctors specialized in the field relating to which the medical negligence is
attributed. Only after that doctor or committee reports that there is a prima facie case of
medical negligence should a notice be issued to the concerned doctor/hospital. This is
necessary to avoid harassment to doctors who may not be ultimately found to be negligent.
We further warn the police officials not to arrest or harass doctors unless the facts clearly
come within the parameters laid down in Jacob Mathew's case (supra), otherwise the
policemen will themselves have to face legal action.
In the present case, the Appellant was faced with an extremely serious situation. Had
the Appellant been only suffering from renal failure, it is possible that a view could be taken
that the dose prescribed for the Appellant was excessive. However, the Respondent was not
only suffering from renal failure but he was also suffering from urinary tract infection and
blood infection i.e., septicemia, which is blood poisoning caused by bacteria or a toxin. He
also had extremely high urea. In this extremely serious situation, the Appellant naturally had
to take a drastic measure to attempt to save the life of the Respondent. The situation was
aggravated by the non cooperation of the Respondent who seems to be of an assertive nature
as deposed by the witnesses. Extraordinary situations require extraordinary remedies. Even
assuming that such a high dose of Amikacin would ordinarily lead to hearing impairment, the
Appellant was faced with a situation between the devil and the deep sea. If he chose to save
the life of the patient rather than his hearing surely he cannot be faulted. The allegation
against the Appellant is that he gave an overdose of the antibiotic. In this connection it may
be mentioned that antibiotics are usually given for a minimum of 5 days, but there is no upper
limit to the number of days for which they should continue and it all depends on the condition
of the patient. Giving a lower dose of the antibiotic may create other complications because it
can cause resistance in the bacteria to the drug, and then it will be more difficult to treat. With
regard to the impairment of hearing of the Respondent, it may be mentioned that there is no
known antibiotic drug without side effects. Hence, merely because there was impairment in
the hearing of the Respondent that does not mean that the Appellant was negligent. The
Appellant was desperately trying to save the life of the Respondent, which he succeeded in
doing. Life is surely more important than side effects.

YAGNA LEGAL
For example many anti-tubercular drugs (e.g., Streptomycin) can cause impairment of
hearing. Does this mean that TB patients should be allowed to die and not be given the anti-
tubercular drug because it impairs hearing? Surely the answer will be negative.
The courts and Consumer Fora are not experts in medical science and must not
substitute their own views over that of specialists. It is true that the medical profession has to
an extent become commercialized and there are many doctors who depart from their
Hippocratic oath for their selfish ends of making money. However, the entire medical
fraternity cannot be blamed or branded as lacking in integrity or competence just because of
some bad apples. It must be remembered that sometimes despite their best efforts the
treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the
patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of
medical negligence, unless there is some strong evidence to suggest that he is. On the facts of
this particular case, we are of the opinion that the Appellant was not guilty of medical
negligence.
CONCLUSION
The Hon'ble Mr. Justice Markendeya Katju has done yeoman service for society by
rendering this judgment. On one hand, it sets at rest the speculative nature of our judicial
adjudication of medical negligence liability and on the other, it abundantly clarifies that
unless there is prima facie evidence indicating medical negligence, notice either to a doctor or
hospital cannot be issued. At the same time, the core essence of the judgment makes it very
clear that there cannot be an assumption that doctors cannot be negligent while rendering care
and treatment. I think this timely intervention should be disseminated at a popular level so
that the mandated Supreme Court's prescription will be observed more in practice than in
breach.
REFERENCES
1. AIR 1989 SC 2039.

2. AIR 1969 SC 128.
3. Smt. Savitri Singh v. Dr. Ranbir PD. Singh and others. 2004;(1) CPJ 25 (Bihar) [Google Scholar]
4. Smt. Vimlesh Dixit v. Dr. R.K. Singhal. 2004;(I) CPJ 123 (Uttaranchal) [Google Scholar]
5. Dr. Kamta Prasad Singh v. Nagina Prasad. 2000;(III) CPJ 283 (WB) [Google Scholar]
6. Ajay Kumar v. Dr. Devendra Nath. 2004;(II) CPJ 482. [Google Scholar]
7. Dr. Akhil Kumar Jain v. Lallan Prasad. 2004;(II) CPJ 504. [Google Scholar]
8. Amar Singh v. Frances Newton Hospital and Anr. 2001;(I) CPJ 8. [Google Scholar]
9. Mam Chand v. Dr. GS Mangat of Mangat Hospital. 2004;(I) CPJ 79 (NC) [Google Scholar]
10. Dr. (Smt) Kumud Garg v. Raja Bhatia. 2004;(I) CPJ 369. [Google Scholar]

YAGNA LEGAL
11. Dr. Harkanwaljit Singh Saini v. Gurbax Singh and Anr. 2003;(I) CPJ 153 (NC) [Google Scholar]
12. Dr. Karkanwaljit Singh Saini v. Gurbax Singh and another. 2003;(I) CPJ 153 (NC) [Google
Scholar]
13. Ns Sahota v. New Ruby Hospital and Ors. 2000;(II) CPJ 345. [Google Scholar]
14. Sardool Singh v. Muni Lal Chopra and another. 1999;(I) CPJ 64 (Punjab) [Google Scholar]
15. Dr. Manjit Singh Sandhu v. Uday Kant Thakur and others. 2002;(III) CPJ 242. [Google Scholar]
16. Director, Rajiv Gandhi Cancer Institute and Research Centre and Ors. 2003;(I) CPJ 305
(Delhi) [Google Scholar]
17. Marble City Hospital and Research Centre and Ors. v. V.R. Soni. 2004;(II) CPJ 102 (MP) [Google
Scholar]
18. Inderjeet Singh v. Dr. Jagdeep Singh. 2004;(III) CPJ 20 (NC) [Google Scholar]
19. Nirmalendu Paul v. Dr. P.K. Bakshi and anr. 2000;(III) CPJ 79. [Google Scholar]
20. Surinder Kumar (Laddi) and anr. V. Dr. Santosh Menon and Ors. 2000;(III) CPJ 517. [Google
Scholar]
21. Rajinder Singh v. Batra Hospital and Medical Research Centre and Anr. 2000;(III) CPJ
558. [Google Scholar]
22. Martin F. D'Souza V. Mohd. Ishfaq. 2009;(2) Supreme Court 40. [Google Scholar]
Medical Negligence - Medical Negligence

Judgments
Medical Negligence- Necessary Protection Or Licence To Kill
Medical profession is one of the oldest professions of the world and is the most humanitarian
one. Inherent In the concept of any profession is a code of conduct, containing the basic
ethics that underline the moral values that govern professional practice and is aimed at
upholding its dignity. Medical Ethics underpins the values at the heart of the practitioner-
client relationship. Medical negligence and malpractices by doctors were the grey areas in
health care where legal issues operated.
Characteristics of Humane physician

YAGNA LEGAL
# Encompassing integrity, respect & compassion.

# Availability
# Expression of sincere concern.
# Willingness to take time to take all aspects of the patients' illness.
# Attitude of being non judgmental with patient who have different lifestyle, attitude and
value.
# Alert to their reaction to such a situation which evoke strong negative emotional response.
# Consciously monitor and control their behavior so that patient's best interest remains the
principle motivation of their action.
Essential Components of Medical Negligence
On basis of various judicial pronouncements essentials of 'Medical Negligence' as are discernible, in brief
and in so far as it is relatable to the medical profession, are as under:
(i) The Doctor must owe a duty of care to the patient;
(ii) The Doctor must have made a breach of that duty; and
(iii) The patient must have suffered damages due to the said breach.
The Supreme Court in the case of Minu B. Mehta vs. B.R. Nayar [1] has held that the right to receive
compensation can only be against a person who is bound to compensate due to his failure to perform a
legal obligation. In many cases doctors have been held liable for negligent acts, such as removal of a
wrong eye or a kidney, based on pecuniary interest or where minimum facilities were available.
Absence of any of these requirements can result into endanger to the patients life. On April 9, 1985, the
General Assembly of the United Nations adopted the guidelines to provide framework for Governments,
particularly those of developing countries. The legitimate needs which the guidelines are intended to meet
include the protection of consumers from hazards to their health and safety and availability of effective
consumer redress were first set up in 1986. The Supreme Court's judgement in the Indian Medical
Association, v. V.P. Shanta and ors.[2] has brought them within its purview. There are three tiers of
disputes redressal forum. At the lowest level are the District Consumer Disputes Redressal Forum), which
entertain compensation claims up to Rs.20 Lakh. At the next level are the State Consumer Disputes
Redressal Forums (one in each state), where compensation claims between Rs.20 Lakh and Rs. l Crore are
made. At the National Forum, claim of over Rs. 1 Crore are lodged. Those dissatisfied with the judgment
of the lower forum can appeal to a higher forum. The final court of appeal is the Supreme Court.
What is an accepted medical practice?

It is also called as scientific medical practice. It is a practice which is mentioned in standard text books or
various issues of leading medical journals or recognized by responsible body of medical profession.
In cases of medical negligence the outcome of the treatment is of secondary importance, but the method
adopted is of primary and much greater importance.
In case if doctor fails to follow one of the accepted methods & instead departs from the conventional
course of treatment, the burden of proof lies upon the doctor to show that whether he had taken all proper
care into account before deciding the depart & he had informed the patient and taken his consent or not.
There may be one or more perfectly proper standards, and if he conformed to one of these proper
standards, he will not be considered negligent. In case of State of Haryana v. Santra,[3] the court has

YAGNA LEGAL
decided that in absence of gross mismanagement, liability of gross negligence will not be succeeded.
'Where you get a situation which involves the use of some special skill or competence, then the test as to
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. It is well established
law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that
particular art.';
The classical statement of law in Bolam's case has been widely accepted as decisive of the standard of
care required both of professional men generally and medical practitioners in particular. It has been
invariably cited with approval before Courts in India and applied to as touchstone to test the pleas of
medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill
attained was that of the ordinary competent medical practitioner exercising an ordinary degree of
professional skill. The fact that a defendant charged with negligence acted in accord with the general and
approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the
standard of care, when 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. Secondly, 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 point of time on which it is suggested as should have been used.
In Syad Akbar v. State of Karnataka [5]. The Supreme Court has dealt with and pointed out with
reasons the distinction between negligence in civil law and in criminal law. Their Lordships have opined
that there is a marked difference as to the effect of evidence, viz. the proof, in civil and criminal
proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is
not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the
persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a
reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence,
the negligence to be established by the prosecution must be culpable or gross and not the negligence
merely based upon an error of judgment.
Res ipsa loquitur

The doctrine of res ipsa loquitur means, that the accident speaks for itself or tells its own story. The normal
rule is, that it is for the plaintiff to prove negligence, but, in some cases, considerable hardship is caused to
the plaintiff, as the true cause of the accident is not known to him, but is solely within the knowledge of the
defendant who caused it. The plaintiff can prove the accident but cannot prove how it happened (so as) to
establish negligence on the part of the defendant.
For the applicability of the principle should fulfill three essential conditions;
(i) The opposite party must have been in control of things;
(ii) Common knowledge/accepted norms suggesting that the injury/damage/loss, in itself cannot occur
without negligence; and
(iii) The cause of incident/injury must be unknown or unascertainable.
Some of the common instances, where this principle can be invoked, are operation on a wrong patient or a
wrong part of the body, transfusion of improper blood, leaving some foreign material in the body,
performing an abortion or any other operation or surgery which is prohibited in law, etc.
Medical Professionals in Criminal Law

YAGNA LEGAL
The criminal law has invariably placed the medical professionals on a pedestal different from ordinary
mortals. The Indian Penal Code Act 1860, Section 88 in the Chapter on General Exceptions provides
exemption for acts not intended to cause death, done by consent in good faith for person's benefit. Section
92 provides for exemption for acts done in good faith for the benefit of a person without his consent
though the acts cause harm to a. person and that person has not consented to suffer such harm. There are
four exceptions listed in the Section, which is not necessary in this context to deal with. Section 93 saves
from criminality certain communications made in good faith.
The following statement of law on criminal negligence by reference to surgeons, doctors etc. and unskillful
treatment contained in Roscoe's Law of Evidence (Fifteenth 'Edition) is classic:
'Where a person, acting as a medical man & c whether licensed or unlicensed, is so negligent in his
treatment of a patient that death results, it is manslaughter if the negligence was so great as to ;, amount to
a crime, and whether or not there was such a degree of negligence is a question in each case for the jury.
'In explaining to juries the test which they should apply to determine whether the negligence in the
particular case amounted or did not amount to a crime, judges have used many epithets, such as 'culpable,'
'criminal', 'gross', 'wicked', 'clear', 'complete.' But whatever epithet be used and whether an epithet be used
or not, in order to establish criminal liability the facts must be such that, in the opinion of the, jury, the
negligence of the accused went beyond a mere matter of compensatiol' between r subjects and showed
such disregard for the life and safety of others as to amount to a crime against the State and conduct
deserving punishment.';
In Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra [6] dealing with Section 304A
of IPC,
'To impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the death should
have been the direct result of a rash and negligent act of the accused, and that act must be the proximate
and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not
enough that it may have been the causa sine qua non.';
The same view has been reiterated in Kishan Chand & Anr. v. The State of Haryana [7]
In Juggankhan v. The State of Madhya Pradesh [8] the accused, a registered Homoeopath, administered
24 drops of stramonium and a leaf of dhatura to the patient suffering from guinea worm. The accused had
no knowledge of the effect of such substance being administered and yet he did so. In this background, the
inference of the accused being guilty of rash and negligent act was drawn against him.
So, the principle which emerges is that a doctor who administers medicine known to or used in a particular
branch of medical profession impliedly declares that he has knowledge of that branch of science and if he
does not, in fact, possess that knowledge, he is prima facie acting with rashness or negligence.
Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr. [9] The Court held that a person
who holds himself out ready to give medical advice and treatment impliedly undertakes that he is
possessed of skill and knowledge for that 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 be given 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.
Indian Medical Association v. V.P. Shantha and Ors. [10] is a three-Judge Bench decision. The
principal issue which arose for decision by the Court was whether a medical practitioner renders 'service'
and can be proceeded against for 'deficiency in service' before a forum under the Consumer Protection Act,
1986. the court held that professional men should possess a certain minimum degree of competence and

YAGNA LEGAL
that they should exercise reasonable care in the discharge of their duties. In general, a professional man
owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or
performing services.
In Poonam Verma v. Ashwin Patel and Ors [11]a doctor registered as medical practitioner and entitled
to practice in Homoeopathy only, prescribed an allopathic medicine to the patient. The patient died. The
doctor was held to be negligent and liable to compensate the wife of the deceased, since he trespassed into
a prohibited field and prescribed the allopathic medicine to the patient causing the death, his conduct
amounted to negligence per se actionable in civil law.
In Achutrao Haribhau Khodwa and Ors. v. State of Maharashtra and Ors.[12] The Court noticed that
in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative
course of treatment are available, all admissible
In State of Harvana and Ors. v. Smt. Santra,[13] Bolam's test has been approved. This case too refers to
liability for compensation under civil law for failure of sterilization operation performed by a surgeon.
Jacob Mathew v. State of Punjab and Anr[14].It was not the case of the complainant that the accused was
not a doctor qualified to treat the patient whom he agreed to treat. It is a case of non-availability of oxygen
cylinder either because of the hospital having failed to keep available a gas cylinder or because of the gas
cylinder being found empty. Then, probably the hospital may be liable in civil law but the accused cannot
be proceeded against under Section 304A IPC on the parameters of Bolam's test.
Opinion of Supreme Court in context of Constitution

The judgment of the Supreme Court in Nilbati Behra State of Orissa [15] case holds that in
view of the fundamental right to life (Article 21 of the Constitution) [16] the Government
cannot claim "sovereign immunity" for liability for the negligence of its employees.
The right to health and health care is protected under Article 21 of the Constitution of India,
as a right to life and reach of which can move the Supreme Court on High Court through writ
petition. Practice of medicine is capable of rendering great service to the society provided due
care, sincerity, efficiency and skill are observed by doctors. When doctors peformed their
duties towards the patient negligently in a Government hospital, the servants of the state
violated the fundamental right of the patient, guaranteed under Article 21 of the Constitution.
Medical profession has its own ethical parameters and code of conduct. 'Services' of medical
establishments are more of purchasable commodities and the 'business' altitude has given an
impetus to more and more malpractices and instances of neglect. But the question is, whether,
on the whole, branding the entire medical community as a delinquent community would serve
any purpose or will it cause damage to the patients. The answer is, no doubt, the later. It is
not that measures to check such dereliction are absent. Victims of medical negligence, considering action
against an erring doctor, have three options.
a. Compensatory mode - Seek financial compensation before the Consumer Disputes Redressal Forum or
before Civil Courts,

YAGNA LEGAL
b. Punitive/Deterrent mode - Lodge a criminal complaint against the doctor,

c. Corrective/ Deterrent mode - Complaint to the State Medical Council demanding that the doctor's
license be revoked.
Jurisdiction of Civil Court was never disputed but its scope was limited for damages only.
Conclusion
In the recent times, professions are developing a tenancy to forget that the self-regulation which Is at the
heart of their profession is a privilege and not a right and a profession obtains this privilege In return for an
implicit contract with society to provide good competent and accountable service to the public. The self-
regulator standards in the profession have shown a decline and this can be attributed to the overwhelming
Impact of commercialization of the sector. There are reports against doctors of exploitative medical
practices, misuse of diagnostic procedures, brokering deals for sale of human organs, etc. It cannot be
denied that black sheep have entered the profession and that the profession has been unable to isolate them
effectively. Two basic propositions laid down in law regarding liability for negligence are: firstly, "Breach
of Duty" to care and secondly, standard of care, i.e. the practitioner must bring to his task a reasonable
degree of skill, knowledge and exercise a reasonable degree of care with caution. Supreme Court has made
necessary guidelines for protection in order to secure life and health of individuals.
End-Notes
[1] 1977 (2) SCC 441
[2] AIR 1996 SC 550
[3]2000 (3) SCC 520
[4] [1957] 1 W.L.R. 582, 586
[5] (1980) 1 SCC 30
[6] (1965) 2 SCR 622
[7] (1970) 3 SCC 904
[8] (1965) 1 SCR 14
[9] (1969) 1 SCR 206
[10] (1995) 6 SCC 651
[11](1996) 4 SCC 332
[12](1996) 2 SCC 634
[13] (2000) 5 SCC 182
[14]AIR 2005 SC 3180
[15] AIR 1993 SC 1960
[16] Right to life and personal liberty
The author can be reached at: snehapatil@legalserviceindia.com

YAGNA LEGAL
SC awards Rs 5.96 crore compensation in medical

negligence case
Wife of NRI doctor Kunal Saha, Anuradha, had died of complications after
treatment at Kolkata's AMRI hospital in 1998
The Supreme Court has awarded the highest ever compensation in a medical
negligence case in India. On Thursday, it directed the Advanced Medical Research
Institute (AMRI) Hospital in Kolkata to pay Rs 5.96 crore to NRI doctor Kunal
Saha whose wife died in 1998 after treatment at the hospital. This is the same

YAGNA LEGAL
hospital where major fire broke and close to 100 of people lost their lives a year
back.
The court has asked hospital and three doctors to pay the amount to Saha
within eight weeks. The apex court held senior medicine specialists Sukumar
Mukherjee and Abani Roychowdhury, senior dermatologist Baidyanath Halder,
physician Balaram Prasad (associated with the AMRI hospital) as well as the
AMRI hospital, guilty of medical negligence.
Mukherjee and Prasad have been asked to pay Rs 10 lakh each while Halder has to
give Rs 5 lakh as compensation. Roychowdhury passed away during the hearing of
the case.
Saha along with his wife had travelled to India in 1998. Anuradha was
admitted to AMRI for high fever and respiratory infection. After a week she was
transferred to Mumbai where she died of complications she developed in AMRI
Hospital.
According to non-profit People for Better Treatment (PBT) India, founded
by Saha in 2001 to fight against medical negligence cases, the Supreme Court
passed a judgement in the case on August 7, 2009, which held the four doctors of
the hospital and its administration guilty for negligent treatment and causing
Anuradha's death.
The court directed the National Consumer Disputes Redressal Forum
(NCDRC) to decide the compensation amount. The claim was for Rs 78 crore plus
interest from 1998 onwards.
Earlier in 2006, NCDRC had rejected the claim as it had not found the
doctors and hospital administration guilty of negligence. An aggrieved Saha
approached the Supreme Court which gave a decision in his favour.
In 2011, NCDRC asked the respondents to pay Rs 1.73 crore to victim’s kin.
Not satisfied with the amount of compensation, Saha again approached Supreme
Court which announced the enhanced compensation on Thursday.

YAGNA LEGAL
Landmark Case
Dr. K. Mathiharan (Consultant Legal Medicine)
Institute of Legal Medicine
53/27, 5th Street, Padmanabha Nagar,
Adayar,
Chennai - 600 020
The NCDRC’s order did not accept the claim of medical professionals who argued that the
doctor-patient relationship is similar to master – servant relationship, which is a contract of
personal service that should be exempted from CPA. But the NCDRC’s order decreed that
the doctor – patient relationship is a contract for personal service and it is not master –
servant relationship. It is also said that the doctor is an independent contractor and the doctor,

YAGNA LEGAL
like the servant, is hired to perform a specific task. However, the master or principal (the
hirer) is allowed to direct only what is to be done, and done, and when. The ‘how’ is left up
to the specific discretion of the independent contractor (doctor). So, the doctor-patient
relationship is a contract for personal service and as such, cannot be excluded from CPA.
Highlights of the Supreme Court of India judgment in

Indian Medical Association
Vs
V.P. Shantha and Others
As a result of this judgment, medical profession has been brought under the Section
2(1) (o) of CPA, 1986 and also, it has included the following categories of doctors/hospitals
under this Section:
1. All medical / dental practitioners doing independent medical / dental practice unless
rendering only free service.
2. Private hospitals charging all patients.
3. All hospitals having free as well as paying patients and all the paying and free category
patients receiving treatment in such hospitals.
4. Medical / dental practitioners and hospitals paid by an insurance firm for the treatment of a
client or an employment for that of an employee.
It exempts only those hospitals and the medical / dental practitioners of such hospitals which
offer free service to all patients.
Further, this judgment concedes that the summary procedure prescribed by the CPA would
suit only glaring cases of negligence and in complaints involving complicated issues
requiring recording of the evidence of experts, the complainant can be asked to approach the
civil courts.
Also, this judgment says that the deficiency in service means only negligence in a medical
negligence case and it would be determined under CPA by applying the same test as is
applied in an action for damages for negligence in a civil court.
As a result of this judgment, virtually all private and government hospitals and the doctors
employed by them and the independent medical / dental practitioners except primary health
centers, birth control measures, anti-malaria drive and other such welfare activities can be
sued under the CPA.
Structure of Consumer Forums / Commissions and Their Jurisdictions

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SUPREME COURT
(Final Appeal)
Appellate Authority over

NATIONAL Original Jurisdiction
State Commission
COMMISSION OverRs.20,00,000
Revisional Jurisdiction
Appellate Authority for Original Jurisdiction

District Forum STATE COMMISSION over Rs. 5,00,000 up
Suo moto Revision to Rs. 20,00,000
Original Jurisdiction
DISTRICT FORUM
up to Rs. 5,00,000
The maximum time limit for a claim to be filed under CPA is 2 years from the date of
occurrence of the cause of action. There is no court fees to be paid to file a complaint in a
Consumer Forum / Commission. Further, a complainant/opposite party can present his case
on his own without the help of a lawyer.
As per the Consumer Protection Rules, 1987, a complaint filed in the Consumer Forum /
Commission shall be adjudicated, within a period of 90 days from the date of notice by
opposite party and within 150 days if it requires analysis or testing of commodities.
THE LEGAL AVENUES (other than CPA) AVAILABLE TO AGGRIEVED PATIENTS

TO SUE AGAINST HEALTH PROFESSIONALS.
a) Medical Council of India and Dental Council of India.

b) Civil Courts.

c) MRTP (Monopolies and Restrictive Trade Practices Commission)

d) Public Interest Litigation.

e) Sections of Indian Penal Code, 1860
Regulation of The Practice of Medicine
Indian Medical Council Act,1956

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 Regulates the profession of Allopathic medicine by constituting Medical Council of

India (MCI) and the State Medical Councils.
 Authorizes the Medical Council of India (MCI) to recognize the medical
qualifications granted by any Authority or Institution of India or other countries.
 Authorized the MCI to maintain a register of medical practitioners to be known as the
Indian Medical register, which consists of the entries of all the State Registers of
medical practitioners.
 Empowers the State Medical Councils to punish persons who falsely claim to be
registered or misuse titles and when medicine is practiced by unregistered persons,
with fine or imprisonment or both.
 Authorizes the MCI to prescribe standards of professional conduct and etiquette or
Code of Ethics for medical practitioners. The violations of these standards
constitute infamous conduct (professional misconduct).
State Medical Councils are empowered to take disciplinary action when prescribed standards
of professionals conduct and etiquette or Code of Ethics are not observed by the doctors and
violations of which constitute professional misconduct / Infamous conduct.
Under the following circumstances, a doctor can be temporarily or permanently

debarred from practicing medicine.
 Improper or indecent conduct towards the patient

 Conviction in a Court of Law
 Failure or dereliction of duty in giving professional certificates, reports and other
documents
 Contravening the Drugs and Cosmetics Act, 1940
 Selling scheduled poison
 Performing or abetting an illegal operation
 Receiving or giving commission or using touts
 Employing unqualified persons
 Associations with (drug) manufacturing firms
 Advertisements
 Running shops (dispensing chemists) etc.
 Failure to give professional service for certain things on religious grounds.
An aggrieved patient can complain to the State Councils about a registered medical
practitioner about an alleged wrong committed by him. The Council initiates proper hearing

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where the concerned doctor is given adequate opportunities to represent his side. If it arrives
at the conclusion that the doctor has indeed committed an act, which involves an abuse of
professional position that might reasonably by regarded as disgraceful or dishonourable by
professional men of good repute and competence, the doctor is either given a warning notice
or temporarily or permanently debars him for practicing medicine. The Council does not have
any statutory powers to award any compensation to the aggrieved patient or legal heirs.
The Indian Medical Council Act, 1956 also provides certain privileges to all the registered
medical practitioners.
Rights and Privileges of Registered Medical Practitioners Conferred by the Indian

Medical Council Act, 1956.
 Right to choose a patient

 Right to add title, descriptions of the academic qualifications to the name
 Right to practice medicine
 Right to dispense medicines
 Right to possess and supply dangerous drugs to the patients
 Right to recovery of fees
 Right for appointment to public and local hospitals
 Right to issue medical certificates
 Right to give evidence as an expert in a Court of Law
Civil Courts
The aggrieved patients can file a case against the doctor for monetary compensation for
which the patient to pay court fees that depends upon the compensation sought.
Probably, due to near acceptance of medical negligence as inevitable by the patients and their
relatives or local settlements, not many cases have reached the apex court of law in the past.
The legal remedies are based on the law of Torts, Section 1-A of the Fatal Accidents Act,
1855 36 and the Section 357 of Cr. P.C., 1973 37. But to avail it, an aggrieved patient have to
wait for years and spend considerable amount of money on litigations.
The civil court cases take care the route of Sub-Court, District Court, High Court and
Supreme Court.
The civil court cases take care the route of Sub-Court, District Court, High Court and

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Supreme Court.
36
Fatal Accidents Act, 1855
This has adopted the provisions of English Fatal Accidents Act of 1846 (re-enacted in 1976)
with a little modification. This Act aims of providing compensation to the family of the
deceased for loss occasioned by the death of a person caused by the actionable wrong. In fact,
it does not specify its application to medical negligence cases but it is of wide import so as to
apply to all such cases including road traffic accident cases. In Dr. Laxman Balkrishna Joshi
v Dr. Trimbak Bapu Godhole and An0ther (AIR 1969 SC 128) and Amalgamated Coal Field
Ltd. v Mst. (Chhotibai & Others (1973) ACJ 365), this Act was used to award damages to the
heirs of the deceased patients.
Section 1-A of Fatal Accidents Act, 1855

Whenever the death of a person shall be caused by wrongful act, neglect or default, and the
act, neglect or default is such, as would (if death had not ensured) have entitled the party
injured to maintain an action and recover damages in respect thereof, the party who would
have been liable if death had not ensued shall be liable to an action or suit for damages, not
withstanding the death of the person injured, and although the death shall have been caused
under such circumstances as amount in law to felony or other crime.
37
Section 357 of Code of Criminal Procedure 4973 (Act No. 2 of 1974)
(1) When a court imposes a sentence of fine a sentence (including a sentence of death) of
which fine forms a part, the court may, when passing judgment, order the whole or any part
of the fine recovered to be applied.
(a) ----------
(b) In the payment to any person of compensation for any loss or injury caused by the
offence, when compensation is, in the opinion of the court recoverable by such person in a
civil court;
(2) ----------
(3) When a court imposes a sentence, of which fine does not form a part, the court may,
when passing judgment, over the accused person to pay be way of compensation, such
amount as may be specified in the order to the person who has suffered any loss or injury by
reason of the act for while the accused person has been so sentenced.
Monopolies and Restrictive Trade Practices Act (MRTP), 1969
This Act is the precursor of CPA, 1986. Before the advent of CPA, this Act was the only
resource to consumers against the unfair trade practices. The commission that looks into the
disputes brought under MRTP Act based in New Delhi.
Public Interest Litigation (PIL)

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An aggrieved patient can directly approach the High Court or the Supreme Court when
his/her grievances was not properly redressed. PILs are usually resorted when public health
programmes are not implemented properly. Some of the landmark judgements on Supreme
Court on health are the result of PILs.
Indian Penal Code and Medical Negligence
Indian Penal Code, 1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 contain
the law of medical malpraxis in India.
A physician can be charged with criminal negligence when a patient dies from the effects of
anesthesia during, an operation or other kind of treatment, if it can be proved that the death
was the result if malicious intention, or gross negligence. Before the administration of
anaesthesia or performance of an operation, the medical man is expected to follow the
accepted precautions.
In such cases, the physician should be able to prove that he used reasonable and ordinary care
in the treatment of his patient to the best of his judgment. He is, however, not liable for an
error judgment. The law expects a duly qualified physician to use that degree of skill and care
which an average man of his qualifications ought to have, and does not expect him to bring
the highest possible degree of skill in the treatment of his patients, or to be able to guarantee
cures.
It has long been recognized that criminal liability of a physician may result from a high
degree of negligent conduct. What the law calls criminal negligence is largely a matter of
degree; it is incapable of a precise definition. To prove whether or not it exists is like chasing
a mirage. It requires that any of the following to be established in a case of criminal medical
negligence.
"Gross Lack of competency or gross inattention, or wanton indifferences to the patient's

safety, which may arise from gross ignorance of the science of medicine and surgery or
through gross negligence, either in the application and selection of remedies, lack of proper
skill in the use of instruments and failure to give proper attention to the patient." (Hampton v
State 38; State v Lester)39
In R. v Bateman (1925)40, Dr. Bateman was prosecuted for manslaughter and the charges of
negligence made against him were:
i) Causing the internal ruptures in performing the operations of 'version';
ii) Removing part of the uterus along with the placenta;
iii) Delay in sending the patient to the infirmary.

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The trial court convicted him. But the Court of Appeal held: " ... in order to establish criminal
liability, the facts must be such that, .. the negligence of the accused went beyond a mere
matter of compensation between subjects and should such disregard for the life and safety of
others as to amount to a crime against the state and conduct punishment."41
When a FIR (First Information Report) is filed against a doctor for the death of a patient who
was under his treatment, under this Indian Penal Code Section 304-A42 the doctor can be
arrested. A doctor charged under this section can obtain bail and if proved guilty, the doctor
can be punished with a maximum of two years imprisonment or fine or both. But, if the
patient is alive, the doctor is charged under the Indian Penal Code Section 337 and 33843.
The Indian Courts have been very careful not to hold qualified physicians criminally
(instances of quacks for criminal negligence are there) liable for patients' deaths that are the
result of a mere mistake of judgment in the selection and application of remedies and when
the death resulted merely from an error of judgment or an inadvertent death44.
RELATED CASES
 The complainant alleged that her husband died due to the complications arising after
kidney biopsy. The State Commission held that the complainant had suppressed the
crucial facts in her complaint. Besides serious life threatening diseases, the deceased
was already suffering from tuberculosis and staphylococcus aureus septicaemia (a
serious infection of the blood by bacteria). These are very serious diseases with a very
high mortality rate especially when the heart, lung and brain get infected. Hence, the
complainant had not come with clean hands and thus disentitled herself to relief under
this jurisdiction of the C.P. Act. Complaint dismissed with Rs. 1,500/- as costs
(SUBH LATA v. CHRISTIAN MEDICAL COLLEGE (Punjab SCDRC O.C. No. 14
of 1994 decided on 15.6.1994; 1994 (2) CPR 691; 1995 (1) CPJ 365; 1995 CCJ 512
 The complainant’s 18-year-old son was suffering from chronic renal failure and was
advised renal transplantation. He was admitted in the hospital and dialysis was done
for which a venous catheter was introduced in the right thigh and kept in situ (same
position of the body) as he would require frequent dialysis. But due to lack of proper
care like frequent dressing and medical attention, this site developed pus formation
leading to A.V. Fistula, which resulted in gangrene of the right leg. In order to save
the life of the patient, amputation of the leg was necessary. The patient died after 20
days. The opposite did not appear in the State Commission. The case was decided in
favour of the complainant on the basis of the affidavits filed by the complainant and
another experienced doctor who testified in favour of the complainant. A
compensation of Rs. 2,00,000/- with Rs. 1,000/- as costs to be paid by the opposite
party within 30 days from the receipt of this letter, failing which the amount shall
carry interest at the rate of 18% per annum till realization. SHIVAJI GENDEO
CHAVAN v. CHIEF DIRECTOR, WANLESS HOSPITAL & Anr. (Maharashtra
SCDRC Complaint No. 451 of 1993 3.12.1994 (3) CPJ 43)

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 The complainant was operated for gallstones but subsequently he developed structure
near the bulbous urethra due to which he could enjoy sex and could not pass urine
easily. He ultimately had to be operated at a Urological Hospital for relief and heavy
amount had to be spent due to negligent performance of his first operation. The State
Commission observed as under and the complaint was dismissed. There is absolutely
no evidence to establish that there was any negligence on the art of the opponent in
performing the operation on July 30,1992 and that it was a result of such negligence
that second operation became necessary. First operation was on account of multiple
gallstones whereas the second operation became operation became necessary. First
operation was on account of small strictures near bulbous urethra. Connection
between the two operations has not been established. In other words, it is not proved
that the second operation became necessary on account of negligence in the
performance of the first operation. There is no certificate of the doctor of the
urological hospital at Nadiad wherein it is alleged to have been stated that the second
operation became necessary on account of the first operation on record. In the absence
of any expert evidence, we cannot hold the opponent who has stated that he had
performed the operation on the complainant carefully and that the complainant had
not complained of pain when he was discharged from the hospital and thereafter.
There is also some force in the opponent’s submissions that if the complainant was
suffering from intense pain as alleged by him, he would not have waited for seven
months to consult Dr. Rajguru. There is nothing in the documentary evidence placed
on record, which would support the allegations made by the complainant. The
complaint dismissed without costs. JAYANTILAL GOVINDALAL PARMAR v.
MANAGING TRUSTEE & Ors. (1997 (1) CPJ 295:1997 (2) CPR 9 (Gujarat
SCDRC)
 The complainant was admitted in a private hospital for pain in the neck on the right
shoulder. Investigations reveled that he was a diabetic and had right hydronephrosis
with obstruction at right uretrovesical junction. The complainant underwent surgery
by retroperitoneal approach. The affected portion of the ureter was removed and
uretric reimplantation was done. During the postoperative period, the complainant
developed high fever and further investigations showed that a stapler pin was seen in
the gastrointestinal tract. The complainant got discharged against medical advice. The
allegation was that the pin was left there during the operation. The surgeon stated that
the surgical staplers are V or U shaped and used in clusters in surgeries involving
large intestine. The stapler pin seen in the x-ray is not a stapler pin. It resembles the
stapler pins used un food pockets. Evidently, this stapler pin should have been
swallowed. The State Commission held that there is no negligence or deficiency of
service on the part of the hospital and dismissed the complaint without costs. C.J.
LAWRENCE v. APOLLO HOSPITALS (Tamilnadu SCDRC O.P. No. 8/94 Decided
on 05.08.1998).
Indian Medical Association v V.P. Shantha 1995 (3) CPR 412: AIR 1996 SC 550: 1995 (3)
CPJI: 1995 (6) SCC 651: JT 1995 (8) SC (Supreme Court decided on 13.11.1995)
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COVID-19 and Medical Negligence: The need for

comprehensive guidelines
The COVID-19 pandemic has brought the healthcare sector under unprecedented
focus. On the one hand, healthcare professionals are being hailed as “Corona Warriors”, but
on the other, there have been reports of patients being denied medical assistance and the non-
observance of safety protocols endangering the life of both health care professionals and the
patients

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Has COVID-19 increased the probability of medical negligence cases? What are the
reasons for the overall increase in medical negligence cases in recent years? What is the role
of the judiciary in keeping a check on such cases? This article is an attempt to answer these
questions.
Medical negligence cases are on the rise partly due to the rapidly proliferating number
of healthcare providers with inadequate infrastructure, and partly owing to the inadequate
skills and outdated knowledge of healthcare professionals. The laxity of the regulating body -
the Medical Council of India - in enforcing strictly established protocols regarding
diagnostics and treatment has made matters even worse. The regulator is often found circling
its wagons and protecting healthcare professionals of their wrongdoing. As a result, patients
and their families are increasingly seeking recourse to judicial remedies.
However, even the courts are unable to provide uniform justice owing to their lack of
subject matter expertise and the absence of comprehensive guidelines. As a result,
contradictory and conflicting judgments are given by various courts and, at times, by co-
equal benches of the same court, including the Supreme Court.
A recent ruling by the Supreme Court has effectively diluted the threshold for fixing
accountability in medical negligence cases by observing that even in case where a healthcare
professional might have made a wrong diagnosis, the same will not tantamount to medical
negligence.
In the matter of Vinod Jain v. Santokba Durlabhji Hospital, the wife of the petitioner,
a cancer patient who was immunosuppressed due to her past chemotherapies, was admitted to
a multi-specialty hospital on October 15, 2011 for chills and fever. A preliminary diagnosis
showed a White Blood Cell (WBC) count of 15,030, indicating infection. Even the blood
culture report received on October 18 showed the presence of an infection causing
organism "Methicillin Sensitive Coagulase Negative Staphylococcus Aureus” (CONS).
Medical literature submitted by the respondents reflected that the said organism is
recognized as an infection causing agent (pathogen) and can become life threatening if not
treated properly. The same is to be treated as a pathogen and not a contaminant for
immunosuppressed patients and/or patients with prosthetic device implants. Further,
intravenous Vancomycin is the main stay in the treatment of a CONS infection.
The treating doctor, however, treated the organism as a contaminant, thereby making
a wrong diagnosis. Consequently, intravenous Vancomycin was ignored and an oral tablet
Polypod was prescribed to be administered through the nasal feed tube after dissolving it in
water. Subsequently, even despite the WBC count (16,050) of the patient being on a rising
curve, the patient was prematurely discharged and the patient went into a coma at her home
on October 23, as the infection has risen to uncontrollable levels. She died on October 31 due
to septicaemia resulting in multi-organ failure despite desperate attempts by multiple

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hospitals to lower the WBC count. Thus, wrong diagnosis and the following treatment proved
fatal for the patient.
Aggrieved, the petitioner approached the State Consumer Dispute Redressal

Commission, which directed the hospital to pay the petitioner a sum of Rs 15 lakh as
compensation. The said order was, however, set aside by the National Consumer Dispute
Redressal Commission. Aggrieved by the same, the petitioner approached the Apex Court,
which dismissed the petitioner’s SLP. While doing so, the Court observed that while there
might have been a possibility of wrong diagnosis, the same would not tantamount to medical
negligence.
The same was held despite an earlier judgment of the Court in Malay Kumar Ganguly
v. Sukumar Mukherjee, where the maladministration of the steroid “Depomedrol” owing to a
wrong diagnosis was held to be medical negligence. The Supreme Court, while discussing
medical negligence opined that:
"Failure to act in accordance with the standard, reasonable, competent medical means at the
time would not constitute a negligence. However, a medical practitioner must exercise the
reasonable degree of care and skill and knowledge which he possesses. Failure to use due
skill in diagnosis with the result wrong treatment is given would be medical negligence."
It was further held that,
“The law on medical negligence has to keep up with the advances in the medical science as to
treatment as also to diagnostic...Duty of the doctor is to prevent further spread of
infection...Blood tests and cultures should be regularly performed to see if the infection is
coming down.”.
The above was a landmark ruling, as it advanced the jurisprudence relating to medical
negligence and took note of the consequences of a wrong diagnosis, which include wrong
medication and the resultant risk to the health of the patient.
However, the Court in Vinod Jain (supra) observed that.
“There was no evidence to show any unexplained deviation from standard protocol and that
the deceased was medically compromised by the reason of her post illnesses.”
The Court opined that there were no unexplained deviations from protocol and
endorsed a departure from the established protocols ignoring its earlier rulings. Apart from
being a setback to the advancement of medical jurisprudence, the same is also violative of the
doctrine of judicial procedural propriety and decorum enunciated by the Court in Central
Board of Dawoodi Bohra Community v. state of Maharashtra, which summed up the legal
position on judicial procedural propriety as follows:

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"It will be open only for a bench of co-equal strength to express an opinion doubting the
correctness of the view taken by the earlier bench of co-equal strength, whereupon the matter
be placed for hearing by a bench consisting of a quorum larger than the one which
pronounced the decision laying down the law of correctness of which is doubted."
The correct approach in the matter of Vinod Jain (supra), therefore, would have been
to either refer the case to the Chief Justice of India to set up a larger bench or follow the
procedure as laid down by the Supreme Court in the Dawoodi Bohra Community case to
prevent the miscarriage of justice.
Correct diagnosis followed by correct treatment as per the established protocol is the
bedrock of Western medical science. In the absence of correct diagnosis, the treatment would
be a blind treatment and would certainly harm the patient.
At a time when the healthcare professionals of the country are being lauded for their
effective response to the COVID-19 pandemic, decisions such as Vinod Jain erode the faith
of the people in the healthcare sector and the judiciary. It is a given that the healthcare sector
will continue to hold centerstage in our lives for weeks and possibly years to come. The
possibility of instances of medical negligence owing to this increased pressure on the medical
system cannot be ruled out.
Therefore, the time is ripe for the Supreme Court to lay down comprehensive
guidelines in relation to medical negligence cases. The following suggestions may aid the
Supreme Court in this regard:
1. A committee of representatives of the Supreme Court and the Medical Council of India
(MCI) be constituted to dove-tail the various statutes of law and the guidelines issued by the
MCI and issue comprehensive guidelines for adjudicating medical negligence cases.
2. Specialized courts can be set up to adjudicate medical negligence cases, or alternatively,

the ethics committee of the National Medical Commission be headed by a serving/retired
Supreme Court Judge.
3. Section 1.2.3 of the MCI Act, which provides for 30 hours of continuing education every
five years followed by a written examination, must be strictly implemented and a doctors’
license should be renewed subject to clearing the same.
4. Strict enforcement of Sections 191, 192 of the Indian Penal Code, 1860 in medical
negligence cases.
Amidst the uncertainty created by the COVID-19 pandemic, the judiciary remains the sole
icon of hope to redress the genuine concerns of citizens aggrieved by the lack of adequate
medical infrastructure and the rising instances of medical negligence. There is hope that
necessary measures will be taken by the Supreme Court, to preserve the faith and hope of the
people.

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The author is an Advocate. He appreciates the inputs from Vinod Jain (IAS) (Retd.).
No 304A against Doctor unless high order of

Medical Negligence is established: Supreme Court
Section 304A Indian Penal Code titled Causing death by negligence. states that Whoever
causes the death of any person by doing any rash or negligent act not amounting to
culpable homicide, shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.
New Delhi: Given the fact that doctors are rampantly accused of medical negligence
and charged under IPC 304 A without proper scrutiny into the allegations made against them,
the Supreme Court has made a landmark observation holding that the medical professionals
should not be dragged into criminal proceedings unless negligence of a high order is shown.
Thereafter, citing medical negligence filed an FIR with the police alleging that the
doctor did not attend to the patient after transfusion which resulted in her death.
Then, the trial court was moved with the case which on the application of the accused
discharged the doctor and gave relief to the doctor relying upon the judgment of the Supreme
Court in Jacob Mathew vs. State of Punjab & Anr. (2005) 6 SCC 1 case in which the bench
had held that in criminal law medical professionals are placed on a pedestal different from
ordinary mortals.
"... to prosecute the medical professionals for negligence under criminal law,
something more than mere negligence had to be proved. Medical professionals deal with
patients and they are expected to take the best decisions in the circumstances of the case.
Sometimes, the decision may not be correct, and that would not mean that the medical
professional is guilty of criminal negligence. Such a medical profession may be liable to pay
damages but unless negligence of a high order is shown the medical professionals should not
be dragged into criminal proceedings.
"... 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."
"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 the Bolam
test to the facts collected in the investigation."
Following the trial court's verdict on the case, in a setback to the doctor, the
Additional Sessions Judge had later set aside the order of discharge from having committed
offences under Section 304A Indian Penal Code, 1860 and Section 18- C/27-B of the Drugs

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and Cosmetics Act, 1940. Thereafter, Punjab and Haryana High Court was approached which
upheld the Additional Sessions Judge take on the case.
Aggrieved, the doctor moved the Supreme Court which while restoring the trial
court's order, allowed the doctor's appeal and stated:
In the present case the appellants failed to obtain any opinion of an independent
doctor. The postmortem report does not show that the death of Santosh Rani had occurred
due to the transfusion of blood. The only negligence that could be attributed to the accused is
that they carried out the blood transfusion in violation of some instructions issued by the
Chief Medical Officer that blood should be obtained from a licensed blood bank and that no
direct blood transfusion from the donor to the patient should be done. In our opinion even if
this is true the negligence is not such as to fall within the ambit of Jacob Mathew's case
(supra). In view of the above, we set aside the judgment of the High Court and restore the
order of the trial court and discharge the appellants. The Appeal is accordingly allowed.
The MCI is likely to soon release a sentencing policy guideline for the medical
profession that is going to lay down certain standards to determine the guilt and punishment
to be accorded to a delinquent doctor in cases of medical negligence.
Supreme Court - Daily Orders
Anjana Agnihotri vs The State Of Haryana on 6 February, 2020
IN THE SUPREME COURT OF INDIA

Criminal APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 770 OF 2009
Anjana Agnihotri & Anr. .....Appellant(s)
Vs.
The State of Haryana & Anr. .....Respondent(s)
ORDER

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This Appeal is directed against the judgment dated 23.04.2008 of the Punjab and Haryana
High Court whereby the High Court upheld the order of Additional Sessions Judge dated
24.09.2004 by which the order dated 30.11.2000 of the learned Sub-Divisional Judicial
Magistrate, Dabwali discharging the appellants for having committed offences under Section
304A Indian Penal Code, 1860 and Section 18- C/27-B of the Drugs and Cosmetics Act,
1940, was set aside.
The prosecution story is that Santosh Rani (deceased) was admitted to the Agnihotri Hospital
run by the appellants herein. On 15.11.1998 at about 5.00 a.m. Santosh Rani was expecting a
child and she was advised caesarian operation. Such operation was conducted at about 8.00
a.m. and a male child was born. After the birth of the child the doctors felt that blood was
required to be Signature Not Verified Digitally signed by GEETA AHUJA Date: 2020.02.13
given 12:30:12 IST Reason: to Santosh Rani. Thereafter, her husband Nand Lal and brother
Bhajan Lal offered to give blood and this blood was taken and transfused to Santosh Rani at
about 2.30 p.m. At about 2.00 a.m. the next morning Santosh Rani expired. Thereafter,
Mulkh Raj, brother of the husband of the deceased filed an FIR with the police. It is
important to note that in the FIR it is stated that in the hospital the blood of Nand Lal and
Bhajan Lal was taken by the dispenser and Dr. Agnihotri of the hospital. It is further stated
that these two persons tested the blood and transfused it to Santosh Rani and oxygen was also
administered.
The main allegation against the appellants in the case is that they did not attend to Santosh
Rani from 2.30 p.m. to 2.00 a.m. The Trial Court on the application of the accused discharged
them relying upon the judgment of this Court in Jacob Mathew vs. State of Punjab & Anr.
(2005) 6 SCC 1 case. The Additional Sessions Judge set aside the order of discharge and the
order of Additional Sessions Judge in revision has been upheld. In Jacob Mathew’s Case this
Court clearly held that in criminal law medical professionals are placed on a pedestal
different from ordinary mortals. It was further held that to prosecute the medical
professionals for negligence under criminal law, something more than mere negligence had to
be proved. Medical professionals deal with patients and they are expected to take the best
decisions in the circumstances of the case. Sometimes, the decision may not be correct, and
that would not mean that the medical professional is guilty of criminal negligence. Such a
medical profession may be liable to pay damages but unless negligence of a high order is
shown the medical professionals should not be dragged into criminal proceedings. That is
why in Jacob Mathew’s case (supra)this Court held that in case of criminal negligence against
a medical professional it must be shown that the accused did something or failed to do
something in the given facts and circumstances of the case which no medical professional in
his ordinary senses and prudence would have done or failed to do. Therefore, this Court also
directed in such cases an independent opinion of a medical professional should be obtained in
this regard. We may make reference to the following observations in Jacob Mathew’s case
(supra). While concluding the judgment this Court gave certain guidelines. We need not refer
to all, however Para 48(7)which is relevant is as under:

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“(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.” Further this Court held in para 52 as under:
“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 the Bolam test to
the facts collected in the investigation.” In the present case the appellants failed to obtain any
opinion of an independent doctor. The postmortem report does not show that the death of
Santosh Rani had occurred due to the transfusion of blood. The only negligence that could be
attributed to the accused is that they carried out the blood transfusion in violation of some
instructions issued by the Chief Medical Officer that blood should be obtained from a
licensed blood bank and that no direct blood transfusion from the donor to the patient should
be done. In our opinion even if this is true the negligence is not such as to fall within the
ambit of Jacob Mathew’s case (supra).
In view of the above, we set aside the judgment of the High Court and restore the order of the
trial court and discharge the appellants.
The Appeal is accordingly allowed.
Pending application(s), if any, shall stand(s) disposed of.
...................J.
(DEEPAK GUPTA) ....................J.
(HEMANT GUPTA) New Delhi;
6th February, 2020.

YAGNA LEGAL
ITEM NO.102 COURT NO.14 SECTION II-B
SUPREMECOURTOF INDIA
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 770/2009
ANJANA AGNIHOTRI & ANR. Appellant(s)
VERSUS
THE STATE OF HARYANA & ANR. Respondent(s)
(List the matter on 04.2.2020. (Ref.: R/P dated 23.10.2019) ) Date : 06-02-2020 This
appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE DEEPAK GUPTA HON'BLE MR. JUSTICE HEMANT

GUPTA For Appellant(s) Mr. Vivek Sharma,Adv.
Mr. Vivek Narayan Sharma, AOR For Respondent(s) Mr. Atul Mangla,AAG.
Mr. Enderjeet,Adv.
Mr. Prince Jindal,Adv.
Mr. Ashish Kaushik,Adv.
Mr. Vishwa Pal Singh,Adv.
Dr. Monika Gusain, AOR UPON hearing the counsel the Court made the following O R
D E R The Appeal is allowed in terms of the signed order. Pending applications, if any,
stand disposed of.
(SUMAN WADHWA) (PRADEEP KUMAR)

AR CUM PS BRANCH OFFICER
Signed order is placed on the file.

YAGNA LEGAL
Medical Professionals Should Not Be Dragged Into

Criminal Proceedings Unless Negligence of A High
Order Is Shown- Supreme Court
In this case, a doctor was accused of medical negligence for allegedly not attending a
woman after performing cesarean operation, which resulted in her death. She was discharged
by the Trial Court by allowing her application. The Appellate Court reversed this order of the
Trial Court. it must be established that there was negligence or incompetence on the doctor’s
part which went beyond a mere question of compensation on the basis of civil liability.
Criminal liability would arise only if the doctor did something in disregard of the life and
safety of the patient. Certain directions have also been given in the case.
Negligence, in simple terms, is the failure to take due care and caution. It is a breach
of a duty caused by the omission to do something which a reasonable person – guided by
those considerations which ordinarily regulate the conduct of human affairs – should have
done. It may also be doing something, which a prudent and reasonable person would not have
done.
Facts of the case
The prosecution story is that Santosh Rani (deceased) was admitted to the Agnihotri Hospital
run by the appellants herein. Santosh Rani was expecting a child and she was advised
caesarian operation. Such operation was conducted at about and a male child was born. After
the birth of the child the doctors felt that blood was required to be given to Santosh Rani.
Thereafter, her husband Nand Lal and brother Bhajan Lal offered to give blood and this blood
was taken and transfused to Santosh Rani, the next morning Santosh Rani expired.
Thereafter, Mulkh Raj, brother of the husband of the deceased filed an FIR with the police. It
is important to note that in the FIR it is stated that in the hospital the blood of Nand Lal and
Bhajan Lal was taken by the dispenser and Dr. Agnihotri of the hospital. It is further stated
that these two persons tested the blood and transfused it to Santosh Rani and oxygen was also
administered. The main allegation against the appellants in the case is that they did not attend
to Santosh Rani. The Trial Court on the application of the accused discharged them relying
upon the judgment of this Court in Jacob Mathew vs. State of Punjab & Anr. (2005) 6 SCC 1
case. The Additional Sessions Judge set aside the order of discharge and the order of
Additional Sessions Judge in revision has been upheld. In Jacob Mathew’s Case this Court
clearly held that in criminal law medical professionals are placed on a pedestal different from
ordinary mortals. It was further held that to prosecute the medical professionals for
negligence under criminal law, something more than mere negligence had to be proved.
Medical professionals deal with patients and they are expected to take the best decisions in
the circumstances of the case.

YAGNA LEGAL
In the present case the appellants failed to obtain any opinion of an independent doctor. The
postmortem report does not show that the death of Santosh Rani had occurred due to the
transfusion of blood. The only negligence that could be attributed to the accused is that they
carried out the blood transfusion in violation of some instructions issued by the Chief
Medical Officer that blood should be obtained from a licensed blood bank and that no direct
blood transfusion from the donor to the patient should be done.
The essentials components of Criminal Neglience
The essential components of negligence are: ‘duty’, ‘breach’ and ‘resulting damage’. These
definitions are rather relative and can change with the circumstances. When trying to drag a
person away from the clutches of an attacking animal, one cannot ask whether this would
cause damage to the person’s limbs. Doctors can also be faced with similar contingencies. On
finding an accident victim in a dangerous condition, a doctor may have to attempt a crude
form of emergency surgery to try and save the person’s life. No negligence is involved in
such cases. Under the civil law, victims of negligence can get relief in the form of
compensation from a civil court or the consumer forum. Here, the applicant only needs to
prove that an act took place that was wanting in due care and caution, and the victim
consequently suffered damage. There is a difference between civil and criminal negligence.
However, in certain circumstances, the same negligent act may also be seen as criminal if it
constitutes an offence under any law of the land.
The main question in the above case was whether different standards could be applied to
professionals (doctors) alone, placing them on a higher pedestal for finding criminal liability
for their acts or omissions. The Court noted that as citizens become increasingly conscious of
their rights, they are filing more cases against doctors in the civil courts, as also under the
Consumer Protection Act, 1986, alleging ‘deficiency in service’. Furthermore, doctors are
being prosecuted under Section 304A of the IPC (causing death of any person by doing any
rash or negligent act which does not amount to culpable homicide) which is punishable with
imprisonment for a term which may extend to two years. They are also being prosecuted
under Section 336 (rash or negligent act endangering human life), Section 337 (causing hurt
to any person by doing any rash or negligent act as would endanger human life) or Section
338 of the IPC (causing grievous hurt to any person by doing any rash or negligent act so as
to endanger human life). The Court observed that allegations of rashness or negligence are
often raised against doctors by persons without adequate medical knowledge, to extract
unjust compensation.
Since the medical profession renders a noble service, it must be shielded from frivolous or
unjust prosecutions. With this perspective in mind the Court went into the question as to what
is actionable negligence in the case of professionals. The law now laid down is as follows:
1. A simple lack of care, an error of judgment or an accident, even fatal, will not constitute
culpable medical negligence. If the doctor had followed a practice acceptable to the medical
profession at the relevant time, he or she cannot be held liable for negligence merely because

YAGNA LEGAL
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.
2. Professionals may certainly be held liable for negligence if they were not possessed of the
requisite skill which they claimed, or if they did not exercise, with reasonable competence,
the skill which they did possess.
3. The word ‘gross’ has not been used in Section 304A of IPC. However, as far as
professionals are concerned, it is to be read into it so as to insist on proof of gross negligence
for a finding of guilty.
4. The maxim Res ipsa loquitur is only a rule of evidence. It might operate in the domain of
civil law; but that by itself cannot be pressed into service for determining the liability for
negligence within the domain of criminal law. It has only a limited application in trial on a
charge of criminal negligence.
5. Statutory Rules or executive instructions incorporating definite guidelines governing the

prosecution of doctors need to be framed and issued by the State and Central governments in
consultation with the Medical Council of India (MCI). Until this is done, private complaints
must be accompanied by the credible opinion of another competent doctor supporting the
charge of rashness or negligence. In the case of police prosecutions, such an opinion should
preferably from a doctor in government service.
Order of the Court
IN THE SUPREME COURT OF INDIA
Criminal APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 770 OF 2009
Anjana Agnihotri & Anr. …..Appellant(s)
Vs.
The State of Haryana & Anr. ….Respondent(s)
Order
This Appeal is directed against the judgment dated 23.04.2008 of the Punjab and Haryana
High Court whereby the High Court upheld the order of Additional Sessions Judge dated
24.09.2004 by which the order dated 30.11.2000 of the learned Sub-Divisional Judicial
Magistrate, Dabwali discharging the appellants for having committed offences under Section
304A Indian Penal Code, 1860 and Section 18- C/27-B of the Drugs and Cosmetics Act,
1940, was set aside.

YAGNA LEGAL
In the present case the appellants failed to obtain any opinion of an independent doctor. The
postmortem report does not show that the death of Santosh Rani had occurred due to the
transfusion of blood. The only negligence that could be attributed to the accused is that they
carried out the blood transfusion in violation of some instructions issued by the Chief
Medical Officer that blood should be obtained from a licensed blood bank and that no direct
blood transfusion from the donor to the patient should be done. In our opinion even if this is
true the negligence is not such as to fall within the ambit of Jacob Mathew’s case (supra). In
view of the above, we set aside the judgment of the High Court and restore the order of the
trial court and discharge the appellants.
The Appeal is accordingly allowed. Pending application(s), if any, shall stand(s) disposed of.
……………….J. (DEEPAK GUPTA)
………………..J. (HEMANT GUPTA)
New Delhi; 6th February, 2020.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje

YAGNA LEGAL
Medical Professional are not allowed to be dragged

into various criminal proceedings unless there is a
negligence of high order
Aditi Reddy M | Symbiosis Law School, Hyderabad | 24th February 2020
Anjana Agnihotri & Anr. v. The State of Haryana & Anr.
FACTS OF THE CASE:
 The prosecution says that Santhosh Rani was admitted into the Agnohotri Hospital as
she was expecting a child and also the doctor advised her to get a caesarian operation done
and a male child was born. After the birth the doctors felt that the mother needed blood
and so the husband and the husbands brother had offered to transfuse their blood to her.
After such a transfusion the mother expired.
 By the following the facts of the case the brother of Santhosh Rani’s husband had
filed an FIR with the police and allege the hospital saying that the patient was not attended
after the transfusion of the blood from 2.30pm to 2.00am. Here it was also important to
note that the transfusion of the blood from the husband and his brother was taken by the
dispenser and the Dr. Agnihotri. It was also important to state that the two persons blood
was tested and then only it was transfused to Santhosh Rani and the oxygen was also
administered.
Held:
 The Trial court had discharged the application of the accused by referring to the Jacob
Mathew’s case.
 Later the Additional Sessions Judge had set aside the order of the discharge and in its
revision it was upheld
 In Jacob Mathew vs State of Punjab(2005) 6 SCC 1, the court clearly stated to
prosecute the medical professionals for negligence under the criminal law, the party must
be able to prove something more than mere negligence as they are the people who deal
with the dying patient and they are certainly expected to take the best decisions in that
circumstance of the case. In case if such decisions do not result well still that would not
let the medical professionals guilty of criminal negligence. Such a medical profession may
be liable to pay damages but unless negligence of a high order is shown the medical
professionals should not be dragged into criminal proceedings.
 The court by reiterating the judgement in Jacob Mathew case had stated that in any
case of criminal negligence against a medical professional it must show that the accused
had committed something or failed to do something which should have been done in

YAGNA LEGAL
ordinary prudence of the professional. The court had also opined that in such cases
independent opinion of another doctor should be obtained in this regard.
 The Supreme Court in this case had set aside the judgements of the High Court ad
restored the order of the Trial Court and discharge the appellants saying that in the present
case the prosecution failed to take an opinion of another independent doctor. Also, the
postmortem report does not show that Santhosh Rani and not expired because of the
transfusion of the blood. The only negligence that could be attributed to the accused is that
they carried out the blood transfusion in violation of some instructions issued by the Chief
Medical Officer that blood should be obtained from a licensed blood bank and that no
direct blood transfusion from the donor to the patient should be done.

YAGNA LEGAL
Case of Medical Negligence: “How the Judiciary can

punish a lifesaver”
Negligence can simply be defined as failure to exercise due care. The three ingredients
of negligence are:
1. The defendant owes a duty of care towards the plaintiff.
2. There is a breach of this duty by the defendant.
3. Injury has been suffered by the plaintiff due to this breach.
The term ‘medical negligence’ refers to the wrongful actions or omissions of

professionals in the field of medicine, in the pursuit of their profession, in the course of
dealing with patients. The term ‘medical negligence’ has not been defined in any of the
statutes or enacted Indian laws.
Doctor-patient relationship:
A doctor has a legal duty towards his patients- of providing service in return for
money. A contractual doctor-patient relationship is established when the patient approaches
the doctor for medical examination, diagnosis, opinion, advice, etc. and the doctor undertakes
to provide these. Such a relationship is sacrosanct and it guards the interest of the patient;
while the doctor assumes the whole responsibility of providing healthcare.
Now, if the doctor does not fulfil his responsibility and is negligent in performing his duty
towards his patient, a case of medical negligence arises.
Liability in case of medical negligence:
The person who commits the wrong and causes injury to the other party is liable under
three heads:
1. Civil liability
2. Criminal liability
3. Disciplinary action
Civil liability means monetary compensation in the form of damages. An action on the erring
medical professional can be brought about by the dependants of the deceased patient or by the
patient himself, in case he is alive, to seek monetary compensation. Permanent Lok Adalats can
also be approached for seeking relief, as they have been conferred the powers of a Civil Court in
certain specified matters.

YAGNA LEGAL
Criminal liability can be imposed pursuant to the provisions of the Indian Penal Code,

1860. Although there is no specific provision under IPC that deals with medical negligence,
but an action can brought against the offender under Section 304A of Indian Penal Code,
which deals with ‘causing death by negligence’. Similarly, some other provisions of IPC that
can be invoked are Section 337 (causing hurt by an act endangering life or personal safety of
others) or Section 338 (causing grievous hurt by an act endangering life or personal safety of
others).
Disciplinary action in the form of penalties can also be imposed for professional misconduct
by medical practitioners. This is governed by Indian Medical Council (Professional Conduct,
Etiquette and Ethics) Regulations, 2002 made under the Indian Medical Council Act,
1956.However, professional misconduct is a broad term, which may or may not include
medical negligence under its ambit.
It is also possible that both civil and criminal law can run side by side in certain
situations. The two remedies are not mutually exclusive, but are co-extensive. While the
object of criminal law is to punish the offender; civil law aims to provide compensation to the
victim.
Standard of care:
A medical practitioner or doctor has a duty of care in:
 deciding whether to undertake that specific case or not
 taking the appropriate decision as to what kind of treatment is to be given
 the administration of that treatment
 not to undertake any kind of procedure which may be beyond his control, etc.
It is expected from a medical practitioner that he ought to bring forth a reasonable

degree of skill as well as knowledge and shall exercise a reasonable degree of care.
Negligence, in simple words, is a breach of duty of care which results in injury or

damage. The causal relationship between ‘breach’ and ‘injury’ must be either “direct” or
“proximate”.
There is a very thin line of difference between civil and criminal liability, and there is
no criteria that has been developed by the Apex Court yet to provide any specific guidance
regarding the same.
In Dr. Suresh Gupta v. Govt. of NCT of Delhi [(2004) 6 SCC 422], it was held by a
two judge bench of the Supreme Court that in order to fasten criminal liability, the medical
negligence should be “gross” or “reckless”. A person cannot be held criminally liable for

YAGNA LEGAL
mere lack of necessary care, attention or skill. However, a want of a certain degree of care
might create a civil liability.
In Jacob Mathew v. State of Punjab [(2005) 6 SCC 1], a three judge bench of the
Supreme Court endorsed the approach of the Supreme Court in the earlier decision of Dr.
Suresh Gupta, and held that for fastening the liability of criminal rashness or criminal
negligence, the rashness must have been of such a degree as to amount to taking a hazard
knowing very well that the hazard was of such a degree that the injury so inflicted was most
likely imminent. Hence, even in this case, the doctors could not be criminally prosecuted.
It has been held by the courts that in medical negligence cases, Bolam test is to be
applied- “standard of the ordinary skilled man exercising and professing to have that special
skill”and not of “the highest expert skill”. This test is applicable in both “diagnosis” and
“treatment”. But now the Apex Court has observed that there is a need to reconsider the
parameters that have been laid down in the Bolam test.
Guidelines of the Supreme Court:
Since the nature of work performed by a doctor or medical practitioner is one that involve
public service, hence it is imperative that certain guidelines be issued in this regard:
1. The Government of India and the Medical Council of India should formulate
specific rules and regulations to regulate the aspects negligence in medical
profession. During the pendency of this exercise, the following guidelines are to be
followed while prosecuting medical practitioners.
2. In order to make a case against a doctor, a private complainant is supposed to

submit evidence of a prima facie case before the authority and take cognizance of
the act. Such authority must include credible opinion which has been given by
another competent doctor to support his case.
3. The investigating officer is supposed to obtain an impartial as well as unbiased

opinion of a doctor who practices in the same field in the same regard.
4. The concerned doctor is not to be arrested like in a regular prosecution. He may be

arrested in case there is fear of intentional non-availability of the doctor for
investigation.
Evolution of laws governing medical practice in India:
For cases regarding medical negligence, not only civil cases are filed, but many
complaints with respect to ‘deficiency in service’ are also filed under the Consumer
Protection Act, 1986. Many criminal complaints are also filed against doctors alleging that
they have committed offences punishable under Section 304A, 336,337,338 of Indian Penal
Code, 1860 alleging medical negligence committed by doctors resulting in loss of life or
injury of different degrees to the patient.

YAGNA LEGAL
Due to all this, there is a rising feeling of distrust as well as fear amongst medical
professionals, due to which they are unable to perform their duties properly. The need of the
hour is therefore, to provide them with enough legal assurance, ensuring protection from
unnecessary and arbitrary complaints.
The remedies that are available to a person who is seeking redressal for medical
malpractice are:
1. Suit for damages under Civil Procedure Code
2. Complaint for negligence under Criminal Procedure Code
3. Redressal under the Consumer Protection Act
4. Disciplinary action by the Medical Council of India
The most significant changes in the laws that govern medical negligence was the introduction
of the Consumer Protection Act in 1986. Under this Act, the patients have been treated as
consumers of medical services. The landmark judgment of the Supreme Court in Laxman
Thamappa Kotgiri v. G.M. Central Railway and Others [(2007) 4 SCC 596] has given the
rights of consumers to the railway employees while they are receiving treatment in a railway
hospital free of cost.
The Constitution of India and right to health care:
Article 21of the Indian Constitution guarantees protection of life and personal liberty to every
Indian citizen. It has been held by the Supreme Court that the right to live with human
dignity, enshrined in Article 21, has been derived from the Directive Principles of State
Policy, and hence includes ‘protection of health’ [Bandhua Mukti Morcha v. Union of India
(AIR 1984 SC 802)].
It has also been further held that right to health is an integral part of right to life and the
government is constitutionally obliged to provide health facilities to its citizens. [State of
Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83].
Extended scope of medical negligence:
The Supreme Court of India as well as the National Commission has held in various
decisions that the doctor is not liable for negligence because of someone else who has a better
skill or knowledge and who would have prescribed a different treatment or operated in a
different way. As long as he has acted in accordance with the practice accepted as proper by a
reasonable body of medical professionals, he will not be held guilty for negligence.
In a landmark decision, Indian Medical Association v. V.P. Shantha and Others III

(1995) CPJ 1 (SC), the Supreme Court has laid down specific guidelines for medical
negligence and defined efficiency of consumer protection. It has held some exceptions- for
instance,
YAGNA LEGAL
 Services that have been rendered to a patient (free of cost) by a medical

professional would not fall under the definition of ‘service’ under the Consumer
Protection Act, 1986.
 Services that have been rendered by a doctor under a contract of personal service
would not be covered under the Consumer Protection Act, 1986.
Similarly, in a few landmark decisions of the National Commission, dealing with

cases involving hospital death, the National Commission has rightly recognised the
possibility of hospital death despite there being no negligence.
Conclusion:
Nowadays, there are so many instances of exploitative medical practices, misuse of

diagnostic procedures, deals for sale of human organs, etc. by the doctors. The medical
profession, that was once considered to be one of the noblest professions, has now been
plagued by unethical practices and profit motives.
However, it has also been seen that cases may arise wherein the doctors are
intentionally put under uncomfortable situations wherein they are forced to resort to unethical
measures and go against the sanctity of their professional ethics. Hence, to prove that there
has been a case of medical negligence, four D’s have to be proved first- duty of care of the
doctor, dereliction of duty, direct causation of injury by negligence and damages sustained by
the patient or his family members.
The Supreme Court has also come to the rescue of doctors and has laid down specific
guidelines that will go a long way in providing a sense of comfort and trust to the medical
professionals in order that they perform their duties with utmost dedication and without fear.
“The views of the authors are personal“
Frequently Asked Questions
What is the meaning of medical negligence?
Negligence can simply be defined as failure to exercise due care. The three ingredients
of negligence are:
 The defendant owes a duty of care towards the plaintiff.
 There is a breach of this duty by the defendant.
 Injury has been suffered by the plaintiff due to this breach.
The term ‘medical negligence’ refers to the wrongful actions or omissions of

professionals in the field of medicine, in the pursuit of their profession, in the course of

YAGNA LEGAL
dealing with patients. The term ‘medical negligence’ has not been defined in any of the
statutes or enacted Indian laws.
What is the general standard of care to be adopted by medical professionals?
A medical practitioner or doctor has a duty of care in:
 deciding whether to undertake that specific case or not
 taking the appropriate decision as to what kind of treatment is to be given
 the administration of that treatment
 not to undertake any kind of procedure which may be beyond his control, etc.
It is expected from a medical practitioner that he ought to bring forth a reasonable

degree of skill as well as knowledge and shall exercise a reasonable degree of care.
Negligence, in simple words, is a breach of duty of care which results in injury or

damage. The causal relationship between ‘breach’ and ‘injury’ must be either “direct” or
“proximate”.
Has the Supreme Court issued any guidelines for the protection of medical
professionals with respect to cases involving medical negligence?
Since the nature of work performed by a doctor or medical practitioner is one that
involve public service, hence it is imperative that certain guidelines be issued in this regard:
1. The Government of India and the Medical Council of India should formulate
specific rules and regulations to regulate the aspects negligence in medical
profession. During the pendency of this exercise, the following guidelines are to be
followed while prosecuting medical practitioners.
2. In order to make a case against a doctor, a private complainant is supposed to

submit evidence of a prima facie case before the authority and take cognizance of
the act. Such authority must include credible opinion which has been given by
another competent doctor to support his case.
3. The investigating officer is supposed to obtain an impartial as well as unbiased

opinion of a doctor who practices in the same field in the same regard.
4. The concerned doctor is not to be arrested like in a regular prosecution. He may be

arrested in case there is fear of intentional non-availability of the doctor for
investigation.

YAGNA LEGAL
What are the laws applicable for medical negligence?
For cases regarding medical negligence, not only civil cases are filed, but many
complaints with respect to ‘deficiency in service’ are also filed under the Consumer
Protection Act, 1986. Many criminal complaints are also filed against doctors alleging that
they have committed offences punishable under Section 304A, 336, 337, 338 of Indian Penal
Code, 1860 alleging medical negligence committed by doctors resulting in loss of life or
injury of different degrees to the patient.
The remedies that are available to a person who is seeking redressal for medical
malpractice are:
1. Suit for damages under Civil Procedure Code
2. Complaint for negligence under Criminal Procedure Code
3. Redressal under the Consumer Protection Act
4. Disciplinary action by the Medical Council of India
The most significant changes in the laws that govern medical negligence was the
introduction of the Consumer Protection Act in 1986. Under this Act, the patients have been
treated as consumers of medical services. The landmark judgment of the Supreme Court
in Laxman Thamappa Kotgiri v. G.M.Central Railway and Others has given the rights of
consumers to the railway employees while they are receiving treatment in a railway hospital
free of cost.
What is the relevance of the Constitutional provisions with respect to medical negligence?
Article 21of the Indian Constitution guarantees protection of life and personal liberty
to every Indian citizen. It has been held by the Supreme Court that the right to live with
human dignity, enshrined in Article 21, has been derived from the Directive Principles of
State Policy, and hence includes ‘protection of health’. It has also been further held that right
to health is an integral part of right to life and the government is constitutionally obliged to
provide health facilities to its citizens.
What is the scope of medical negligence?
The Supreme Court of India as well as the National Commission have held in various
decisions that the doctor is not liable for negligence because of someone else who has a better
skill or knowledge and who would have prescribed a different treatment or operated in a
different way. As long as he has acted in accordance with the practice accepted as proper by a
reasonable body of medical professionals, he will not be held guilty for negligence.

YAGNA LEGAL
In a landmark decision, Indian Medical Association v. V.P.Shantha and Others III, the

Supreme Court has laid down specific guidelines for medical negligence and defined
efficiency of consumer protection. It has held some exceptions- for instance,
 Services that have been rendered to a patient (free of cost) by a medical

professional would not fall under the definition of ‘service’ under the Consumer
Protection Act, 1986.
 Services that have been rendered by a doctor under a contract of personal service
would not be covered under the Consumer Protection Act, 1986.
Similarly, in a few landmark decisions of the National Commission, dealing with

cases involving hospital death, the National Commission has rightly recognised the
possibility of hospital death despite there being no negligence.

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YAGNA LEGAL

S.No PARTICULARS Pg. No

IMPORTANT MEDICAL NEGLIGENCE CASES

What is Medical Negligence?

Vicarious liability of hospitals

Medical Negligence Notes Page | 2

Medical negligence cases and ethics

Landmark Judgment on Medical Negligence

Defense of Medical Profession

Medical Negligence Notes Page | 3

1. Negligence should be guided upon the principle of reasonableness of common man

IMPORTANT JUDGMENTS ON MEDICAL

What is medical negligence?

Bhalchandra @ Bapu & Another v. State of Maharashtra[2], the Supreme Court opined

Nature of Medical Profession and Negligence in Medical profession

Medical Negligence Notes Page | 5

Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others[4], , this

Medical Negligence under Section 304A of IPC

Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra[5]– In this case,

Whether service rendered by medical practitioner “service” under Section

Indian Medical Association v. V.P. Shantha & Others[7], three-Judge Bench of Supreme

Medical Negligence Notes Page | 6

ndian Medical Association v. V.P. Shantha & Others[7], three-Judge Bench of Supreme

C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam[8], this Court had an occasion to

Principles to be followed while deciding case of medical negligence

Medical Negligence Notes Page | 7

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

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

The medical professional is expected to bring a reasonable degree of skill and

The medical professional is often called upon to adopt a procedure which

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

It would not be conducive to the efficiency of the medical profession if no

Medical Negligence Notes Page | 8

against the medical practitioners.

No straitjacket formula to determine as to when the cause of action has

No cure/ no success is not a negligence

[1](1996) 4 SCC 332

[2] AIR 1968 SC 1319

[4] (1996) 2 SCC 634

[5] (1965) 2 SCR 622

[6] (1902) 4 BLR 679

[7] (1995) 6 SCC 651

[8] (2009) 7 SCC 130

[9] II (2010) SLT 73

[10] FIRST APPEAL NO. 368 OF 2011, decided on December 12, 2017

INDIAN JOURNAL OF UROLOGY

Lately, Indian society is experiencing a growing awareness regarding patient's rights.

Medical Negligence Notes Page | 10

In the context of obtaining processes, there is a deserving need for a two-pronged

What a Medical Doctor should knowabout COPRA

A consumer or any recognized consumer association, i.e., voluntary consumer

A complaint is an allegation in writing made by a Complainant, i.e., a consumer that

What is deficiency of service?

Deficiency of service means any fault, imperfection, shortcoming, or inadequacy in

Where is a complaint filed?

Medical Negligence Notes Page | 11

What is the cost involved in filing a complaint?

Is there any provision for appeal?

What are the powers of the consumer redressal forums?

How does adjudication of liability take place?

MEDICAL NEGLIGENCE – DEFINITIONAL ASPECTS

1. The defendant owes a duty of care to the plaintiff.

2. The defendant has breached this duty of care.