Liability of Medical Practitioners for Negligence under COPRA Act

1.2 LAW OF TORTS

Submitted by:

Anubhav Lawania

UID No:UG18-11

Academic Year (2018-19)

Semester-I (July-October)

Submitted to:

Dr. Ragini P Khulbalkar

Assistant Professor of Law

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

 TABLE OF ABBREVIATIONS

The following abbreviations have been used by the researcher during the conduct of the research:

• & - And
• AIR - All India Reporter
• Art. - Article
• Ors. - Others
• CrPC - Criminal Procedure Code
• Etc. - Et Cetera
• Hon’ble - Honorable
• IPC - Indian Penal Code
• Ltd. - Limited
• Pvt. - Private
• Sec. - Section
• SC - Supreme Court
• V. - Versus

TABLE OF CASES

• Bolam v. Friern Hospital Management Committee [(1957) 1 WLR 582]

• Achutrao Haribhau Khodwa v. State of Maharashtra [(1996)2 SCC 634]
• R P Sharma v. State of Rajasthan [AIR 2002 Raj 104]
• Shakuntala Sharma v. State of Uttar Pradesh (2000)
• Indian Medical Association v. V P Shantha & Ors [(1999) AIR 550]
• Spring Meadows Hospital v Harjot Ahuwalia [AIR 1998 SC 1801]
• Donoghue v Stevenson [1932] UKHL 100

i
 TABLE OF CONTENT

Table of Abbreviations…………………………………………….i

Table of Cases……………………………………………………...i

Introduction………………………………………………………...01

Research Methodology

a. Research Design…………………………………………….02
b. Aims & Objectives………………………………………….02
c. Research Question………………………………………….02
d. Review of Literature……………………………………….03
e. Limitations…………………………………………………03

Consumer Protection Act…………………………………………..03-05

Who is a Consumer…………………………………………………05-06

Negligence………………………………………………………….06-07

Medical Negligence…………………………………………………08

Landmark judgments on Medical Negligence………………………09-17

Conclusion…………………………………………………………..17

Bibliography…………………………………………………………18

ii
 INTRODUCTION

Consumer is a person who pays something to use certain goods and services produced. So it
can be clearly said that consumer is “An individual who buys products or services for personal
use and not for manufacture or resale. Someone who can make the decision whether or not to
purchase an item at the store, and someone who can be influenced by marketing and
advertisements”.1

For example, if someone goes to a store and purchases a toy, shirt, beverage, or anything else,
he or she is making that decision as a consumer.

Negligence is defined as a failure to take reasonable care to avoid causing injury or loss to
another person. It can be said that it is a failure to behave with the level of care that someone
of ordinary prudence would have exercised under the same circumstances. The behavior
usually consists of actions but can also consist of omissions when there is some duty to act.2

For example, a caregiver in a hospital who isn't paying attention to the patient and gives him
or her a deadly dose of a medication could be considered as negligent. Another example, a
restaurant servant who mops the floor slippery and doesn't put up a ‘Wet Floor’ sign is
considered to be negligent.

Medical negligence is defined as the failure to take reasonable care to avoid injury to the
consumer who availed the service by paying some consideration. Medical negligence happens
when the medical practitioner fails to provide the care which is expected in each case thus
resulting in injury or death of the patient. 3

For example, a patient during surgery is given an anesthetic which, due to a previous treatment
posed an increased risk of use. As a result of using the anesthetic, the patient suffers liver
damage and dies.

1
http://www.investorwords.com/1055/consumer.html rtv dated 27-09-2018 at 10:03pm
2
https://www.law.cornell.edu/wex/negligence rtv dated 27-09-2018 at 10:10pm
3
https://definitions.uslegal.com/m/medical-negligence/ rtv dated 27-09-2018 at 10:54pm

1
RESEARCH METHODOLOGY

A.) Research Design

The research method so used to write this research paper is doctrinal. It is doctrinal in the
sense that it comes from the credible sources herein, books, articles published in renowned
and justified webpages and journals. The project also uses deductive reasoning for
research. The source of information also consists of theoretical knowledge the researcher
possesses as a law student. The research is directed towards Medical negligence, liability
of practitioners under COPRA 1986, etc. The data so used is qualitative, as in the form of
established theory and criticism. The data is excerpted from Journals, Articles and e-law
websites. The sources so used are secondary in nature and can be treated as library-based
experiment.

B.) Aim and Objectives

The aim of this research work is to understand the concept of Medical Negligence and the
remedies available against it under Consumer Protection Act, 1986. Another aim is to
understand the case laws and the judgements related with medical negligence and to study
various aspects of medical negligence.
The objectives of the research are as follows:
• To understand the concept of Medical Negligence
• To know about the remedies available with the consumer under COPRA for
negligence
• To evaluate various case laws associated with medical negligence

C.) Research Questions

Q.1 What is medical negligence and what are its essentials?
Q.2 What are the types of Medical Negligence?
Q.3 What is the civil liability of the practitioner committing wrong?
Q.4 Do medical practitioners come under the purview of Negligence under COPRA 1986?

2
 D.) Review of Literature
• https://www.lawteacher.net/ : through this source researcher got to know about
English cases of Bolam v. Friedman Hospital and also case of Donoghue v
Stevenson
• https://indiankanoon.org/ : through this source researcher get to know about
landmark Indian Medical Negligence cases.
• https://www.scconline.com/ : through this source get information about the facts,
issues, judgments in various Indian Case laws.
• The Law of Torts, Ramaswamy Iyer- through this source researcher get information
regarding COPRA and Medical Negligence
• The Law of Torts by Ratanlal & Dhirajlal: through this researcher get information
regarding Negligence and famous case of Caparo Industries

E.) Limitations
The limitations of the study are those characteristics of design or methodology that impacted
or influenced the application or interpretation of results of the researcher’s study. The
research is limited to educational purposes only. Only that information could be furnished
which was available and whose availability could be authenticated. The researcher was
unable to perform an empirical research due to non-availability of proper resources , time
and restriction to the domain of the research.

CONSUMER PROTECTION ACT

It is an act which was passed back in the year 1986 to protect the rights of the consumer in India.
It was enacted to provide a simpler and quicker redressal to consumer grievances. The Act seeks
to promote and protect the interest of consumers against deficiencies and defects in goods or
services. It also seeks to secure the rights of a consumer against unfair trade practices, which may

3
be practiced by manufacturers and traders. And many consumer redressal forums are constructed
under this act to provide justice to both the parties very efficiently.

This act applies to all goods and services, unless specifically exempted by the central government.
It contends to cover all sectors i.e. private, public and cooperative. This act recognized following
rights:

a. Right to be protected against marketing of goods and services which are hazardous to life
and property.
b. Right to be informed about quality, quantity, potency, purity and price of goods and
services to protect against unfair trade practices.
c. Right to be assured of access to variety of goods and services at competitive prices.
d. Right to be heard and assured that consumer’s interest will receive due consideration at the
appropriate forum.
e. Right to seek redressal against unscrupulous exploitation of consumers
f. Right to consumer education.4

The agenda of a consumer forum is to provide relief to both parties and discourage long litigation.
In a process called 'informal adjudication', forum officials mediate between the two parties and
urge compromise. The Act applies to all goods and services unless specifically exempted by the
Union Government and covers all sectors, whether private, public, or cooperative.5

This Act has provided a machinery whereby consumers can file their complaints. These
complaints will then be heard by consumer forums with special powers so that action can be taken
against erring suppliers and possible compensation is awarded to the consumer for the hardships
he/she has undergone.

The consumer, under this law, is not required to deposit huge court fees, which earlier used to
deter consumers from approaching the courts. The rigors of court procedures have been replaced

4
A Lakshminath, “RAMASWAMY IYER: THE LAW OF TORTS”, 10th Ed.2010, pp.1005-1006
5
https://www.indiainfoline.com/article/news-sector-others/know-the-basics-of-consumer-protection-act-
113111501015_1.html rtv.dated 16-10-2018 at 23:11

4
with simple procedures as compared to the normal courts, which helps in quicker redressal of
grievances. The provisions of the Act are compensatory in nature6.

WHO IS A CONSUMER?

Section 2(d) of the CoPrA 1986 defines "consumer" as a person who:

Buys any goods for a consideration which has been paid or promised or partly paid and partly
promised, or under any system of deferred payment and includes any user of such goods other than
the person who buys such goods for a consideration paid or promised or partly paid or partly
promised, or under any system of deferred payment, when such use is made with the approval of
such person, but does not include a person who obtains such goods for resale or for any commercial
purpose;

OR

Hires or avails of any services for consideration which has been paid or promised or partly paid
and partly promised, or under any system of deferred payment and includes any beneficiary of
such services other than the person who hires or avails of the services for a consideration paid or
promised, or partly paid and partly promised, or under any system of deferred payment, when such
services are availed of with the approval of the first mentioned person but does not include a person
who avails of such services for any commercial purpose. It may, however, be noted that
"commercial purpose" does not include use by a person of goods bought and services exclusively
for the purposes of earning his livelihood by means of self-employment."7

Section 2(g) of COPRA defines ‘deficiency’ as any fault, imperfection, shortcoming or inadequacy
in quality, nature, and the manner of performance which is required to be maintained by and under
the law for the time being in performance to be performed by a person in pursuance of a contract
or otherwise in relation to any service.8

6
https://www.indiainfoline.com/article/news-sector-others/know-the-basics-of-consumer-protection-act-
113111501015_1.html rtv dated 28-09-2018 at 12:21am
7
http://ncdrc.nic.in/bare_acts/consumer%20protection%20act-1986.html rtv dated 28-09-2018 at 01:52 am
8
A Lakshmidhar, M Sridhar, “RAMASWAMY IYER: THE LAW OF TORTS”, 10 th Ed.2010, p.1007

5
There are three types of Redressal commissions for consumers under COPRA:

a. Consumer Disputes Redressal Forum which is also known as “District Forum” has
jurisdiction to entertain complaints from consumers where value of goods and services
doesn’t exceed Rs.5 Lakhs
b. Consumer Dispute Redressal Commission which is also known as “State Commission” has
jurisdiction to entertain complaints of consumers where value of goods doesn’t exceed
Rs.20 Lakhs
c. National Consumer Disputes Redressal Commission which is known as “National
Commission” has jurisdiction to entertain complaints where value of goods and services
exceed Rs. 20 Lakhs

NEGLIGENCE

Breach of duty caused by the omission to do something which a reasonable man would do or doing
a something which a prudent reasonable man wouldn’t do. As per Winfield, “Negligence as a tort
is the breach of a legal duty to the care which results in damage, undesired by the defendant, to the
plaintiff.” Negligence doesn’t arise just because of a wrongful conduct by a person; it is essential
that that misconduct has caused a foreseeable harm to the other. If there’s no harm, there’s no
negligence.9

Essentials to check negligence are

• Existence of Duty of Care: One of the conditions for liability of negligence is that the
defendant owe a legal duty towards the plaintiff. It is a legal obligation imposed on an
individual requiring adherence to a standard of reasonable care while performing any act
that could foreseeably harm others. Eg. Donoghue v Stevenson [1932 AC 562]
• Breach of duty of care: Breached duty of care by doing or not doing something that a
"reasonably prudent person" would do under similar circumstances. The term "reasonably
prudent person" refers to a legal standard that represents how the average person would
responsibly act in a certain situation. The person will be found negligent if the average

9
Ratanlal&Dhirajlal, “LAW OF TORTS”, 27th Ed.2016, pp.457-458

6
 person, knowing what the person knew at the time, would have known that someone might
have been injured as a result of his or her actions -- and would have acted differently than
the person did in that situation.
• Causation: The third element requires that the plaintiff show that the defendant's
negligence actually caused his or her injury. Sure, someone might be acting negligently,
but the plaintiff can only recover if this negligence somehow causes the injury. Another
aspect of this element looks whether person could reasonably have foreseen that his or her
actions might cause an injury. If the defendant's actions somehow caused the plaintiff
injury through a random, unexpected act of nature, the injury would most likely be deemed
unforeseeable -- and the person will not likely be found liable.10
• Damages: The final element of a negligence is damages. IT requires that the court be able
to compensate the plaintiff for his or her injury, usually through monetary compensation
for expenses such as medical care.
Most famous case for negligence is Donoghue v. Stevenson11, also known as Ginger Beer
case.
In this case, Mrs Donoghue's friend bought her a ginger-beer from Wellmeadow Café12 in
Paisley. She consumed about half of the bottle, which was made of dark opaque glass,
when the remainder of the contents was poured into a tumbler. At this point, the
decomposed remains of a snail floated out causing her alleged shock and severe gastro-
enteritis.
The decision has several components: first, negligence is distinct and separate in tort;
second, there does not need to be a contractual relationship for a duty to be established;
third, manufacturers owe a duty to the consumers who they intend to use their product.13
Therefore, court stated that manufacturer is liable for negligence and Mrs. Donoghue is
entitled to compensation.

10
https://injury.findlaw.com/accident-injury-law/proving-fault-what-is-negligence.html rtv dated:28-09-2018 at
02:49am
11
[1932] UKHL 100
12
Matthew Chapman, “Snail and the Ginger Beer: The Singular Case of Donoghue v Stevenson” written on 7th
July,2010
https://www.lawteacher.net/cases/donoghue-v-stevenson.php rtv dated 17-10-2018 at 01:07
13
Stevenson v Donoghue [1932] UKHL 100

7
MEDICAL NEGLIGENCE

Medical negligence also known as medical malpractice is improper, unskilled, or negligent

treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional.
Medical malpractice occurs when a health-care provider strays from the recognized “standard of
care” in the treatment of a patient. The “standard of care” is defined as what a reasonably prudent
medical provider would or would not have done under the same or similar circumstances.

Mistakes or negligence in medical profession may lead to minor injuries or some serious kinds of
injuries and sometimes these kinds of mistakes may even cause death. Since no man is perfect in
this world, it is evident that a person who is skilled and has knowledge over a particular subject
can also commit mistakes during his practice. Too err is human but to replicate the same mistake
due to one’s carelessness is negligence. The fundamental reason behind medical error or medical
negligence is the carelessness of the said doctors or medical professionals it can be observed in
various cases where reasonable care is not taken during the diagnosis, during operations,
sometimes while injecting anesthesia etc.

For eg. After operation of a patient, he is likely to get infected by many diseases because of certain
reason which can include loss of blood, weakness, high dose of medicines. In due course a standard
care is expected from the doctor to give premedication regarding certain infectious diseases. If a
doctor fails to do so due to which a patient suffers from some infection which can cause a lot of
harm or even death in adverse cases, the doctor is said to have committed medical negligence or
malpractice.14

Essentials to prove medical negligence are as follows:

• Medical practitioner owed duty of care to the patient.

• Violated the standard of care that should have been given in all similar circumstances
• Person suffered compensable injury
• Injury was directly caused by the insufficient care from the side of the medical practitioner

14
https://www.lawctopus.com/academike/medical-negligence/ rtv dated:28-09-2018 at 03:15am

8
LANDMARK JUDGMENTS ON MEDICAL NEGLIGENCE

Bolam v Friern Hospital Management Committee 15

During the course of electro-convulsive therapy treatment administered to him at the defendants'
mental hospital, the plaintiff, a voluntary patient, sustained bilateral “stove-in” fractures of the
acetabula. E.C.T. treatment consisted in the passing of an electric current through the brain of the
patient which, when given unmodified, i.e., without the prior administration of a relaxant drug,
resulted in violent muscular contractions and spasms, attended with a known, though slight, risk
of bone fracture. In accordance with his normal practice the doctor treating the plaintiff had given
the E.C.T. unmodified, and without applying any form of manual restraint other than to support
the plaintiff's chin and hold his shoulders, nurses being present on either side of the couch in case
the plaintiff fell off.

The plaintiff claimed damages, alleging, inter alia, that the defendants were negligent:
(1) in failing to administer any relaxant drug prior to the passing of the current through his brain
(2) in failing to provide at least some form of manual restraint or control beyond that given
(3) in failing to warn him of the risks involved in the treatment

The plaintiff, John Hector Bolam sued the defendants, the Friern Hospital Management
Committee, claiming damages for negligence on the part of the defendants, their servants or agents,
in electro-convulsive therapy treatment administered to him on August 23, 1954, when, during the
treatment, he sustained fractures of the pelvis on each side caused by the head of the femur being
driven through the acetabulum or cup of the pelvis.

The following cases were referred to in argument: Hatcher v. Black; Marshall v. Lindsey County
Council; Hunter v. Hanley. Verdict was in favour of the defendant hospital. Given the general
medical opinions about what was acceptable electro-shock practice, they had not been negligent
in the way they carried out the treatment.

The High Court held that the doctor had not breached his duty to the patient, and so the defendant
was not liable. McNair J set out the test for determining the standard of care owed by medical
professionals to their patients (sometimes referred to as the ‘Bolam test’). The professional will

15
[1957] 1 WLR 582

9
not be in breach of their duty of care if they acted in a manner which was in accordance with
practices accepted as proper by a responsible body of other medical professionals with expertise
in that particular area. If this is established, it does not matter that there are others with expertise
who would disagree with the practice.16As the methods used in this case were approved of by a
responsible portion of the medical profession, there was no breach.

Bolam test implies that whether doctor was reasonable enough to use special skill as used by
generally by the personnel of that profession

Indian Medical Association v. V P Shantha 17

Facts:

As there were increasing case relating to Medical Negligence, and it was ambiguous that whether
medical services are services under COPRA, 1986 or not and whether hospital or doctor or medical
practitioner is in the ambit of COPRA, 1986 or not. Also, there were different contrasting and
conflicting decisions and rationale regarding this issue were given by various High Courts and
other lower courts.

Many a Special Leave Petition were filed in the Supreme Court against decisions and judgments
of subordinate courts. Supreme Court faced very big flow of SLPs coming in. Hence, in this PIL,
a writ was filed in Supreme Court under Article 32 of Constitution of India, to decide upon Scope
and Jurisdiction of the Consumer Protection Act, 1986.18

Issue:

a. Whether and, if so, in what circumstances, a medical practitioner can be regarded as

rendering 'service' under Section 2(1)(o) of the Consumer Protection Act, 1986?
b. Whether the service rendered at a hospital/nursing home can be regarded as 'service' under
Section 2(1) (o) of the Act?

16
https://www.lawteacher.net/cases/bolam-v-friern-hospital-management.php rtv dated:28-09-2018 at 15:41pm
17
1996 AIR 550
18
http://www.legalservicesindia.com/article/1097/Indian-Medical-Association-V-V.P.-Shantha.html rtv dated 17-10-
2018 at 03:53

10
Statutes Referred:

Section 2(1) (d) of Consumer Protection Act, 1986, which defines “Consumer” of service as a
person who hires or avails of any services for a consideration which has been paid or promised or
partly paid and partly promised, or under any system of deferred payment.

Section 2(1) (o) of Consumer Protection Act, 1986, which defines “service” as service of any
description which is made available to potential, but does not include the rendering of any service
free of charge or under a contract of personal service.

Section 2(1) (g) of Consumer Protection Act, 1986, states that "Deficiency" means any fault,
imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which
is required to be maintained by or under any law for the time being in force or has been undertaken
to be performed by a person in pursuance of a contract or otherwise in relation to any service.

Section 14 (1) (d) of Consumer Protection Act, 1986, deals with “Finding of District Forum”, If,
after the proceeding conducted under section 13, the District Forum is satisfied that the goods
complained against suffer from any of the defects specified in the complaint or that any of the
allegations contained in the complaint about the services are proved,19

Hon’ble judge said that medical practitioner should be held liable when they are negligent and to
find out their negligence Bolam test is sufficient enough. Hence, It was held by the Court that
medical services will be treated as services as in accordance with Section 2(1) (o) of the Act,
hereinafter the potential user will be said consumer of medical services

There were made three broad categories under which nature services of doctors/hospital can be
determined:

a. Services rendered free of charge to everybody.

b. Charges paid by all users.

19
Yash231192, http://www.legalservicesindia.com/article/1097/Indian-Medical-Association-V-V.P.-Shantha.html
rtv dated 17-10-2018 at 04:01

11
c. Charges are required to be paid by all person except those, who cannot afford

It was opined by Hon’ble Judge that since patients, who are availing services free of charge,
belonging to third category are beneficiary as patients who are paying consideration in that
category are, actually, paying for non-paying patients too. So being beneficiary they are under
scope of the Act. Hence are treated as consumer under Section 2(1) (d) of the Act.20

Judgement

1. Medical Services are treated as in ambit of “services” under Section 2(1) (o) of the Act. It is not
contract of personal service as there is absence of master servant relationship. Contract of service
in Section 2(1) (o) cannot be confined to contracts for employment of domestic servants only. The
services rendered to employer are not covered under the Act.

2. Medical Services rendered by hospital/nursing home free of charge are not in the purview of
Section 2(1) (o) of the Act.

3. Medical Services rendered by independent Doctor free of charge are under Section 2(1) (o) of
the jurisdiction of the Act.

4. Medical Services rendered against payment of consideration are in the scope of the Act.

5. A medical service where payment of consideration is paid by third party is treated as in the
ambit of the Act.

6. Hospital in which some person are charged and some are exempted from charging because of
their inability of affording such services will be treated as consumer under of Section 2(1) (d) of
the Act.21

20
http://www.legalservicesindia.com/article/1097/Indian-Medical-Association-V-V.P.-Shantha.html rtv dated 17-10-
2018 at 04:03
21
http://www.legalservicesindia.com/article/1097/Indian-Medical-Association-V-V.P.-Shantha.html rtv dated 17-10-
2018 at 04:31

12
Spring Meadows Hospital v. Harjot Ahluwalia 22

Facts: Harjot Ahluwalia was a minor who was treated at nursing home in Noida. As there was no
improvement in his health, he was brought to Spring Meadows Hospitals. He was admitted as in-
patient on the advice of one of the respondent doctor. He was suffering from typhoid fever. On
30th Dec 1993, nurse asked his father to bring injection named “Lariago” which was administered
to the patient without knowing adverse effects of the injection on the health of the minor. Minor
suddenly collapsed after being injected.

Resident doctor was called who claimed that minor suffered cardiac arrest and advised the parents
to the Intense Critical Unit(ICU). Soon arrived Anatheist who started procedure of manual
respiration by applying oxygen cylinder but minor showed no improvement and suddenly his
platelets started falling. A blood transfusion could not also help him. So, doctors intimated parents
that hospital doesn’t have necessary equipment for further treatment. Minor was admitted to
AIIMS in ICU. Doctors informed the parents that even if the minor would survive, he will live in
vegetative state forever. So, there was permanent disability.

Issue: 1. As minor child availed the services. So his parents can be considered a consumer or not?

2. Is commission under COPRA entitled to award compensation for mental agony to the parents?

Judgment : National Consumer Disputes Redressal Commission concluded that child suffered
brain damage due to cardiac arrest which was caused by injection named Lariago injected by the
careless nurse. As there was a delay in process of revival of heart of minor. It was held that there
was deficiency of service on the part of the nurse and also on the part of hospital who employed
such negligent people.

Finally, commission offered compensation of Rs.12.5 Lac to the parents of the minor in addition
Rs.5Lac for mental agony. Court directed Insurance company to pay Rs.12.38 Lac to Harjot
Ahluwalia .

22
AIR 1998 SC 1801

13
R P Sharma v. State of Rajasthan 23

Facts: Smt. Kamla Sharma, deceased was admitted to the SMS Hospital, Jaipur for the operation
of removal of gall stone in 1988. After few days, she was shifted from one ward to another ward.
One day she was operated for removal of gall stone . Medical staff was advised to give O+ve blood
transfusion to the patient. One bottle of O+ve blood was obtained from the blood bank but patient
need one more unit of blood so nurse asked doctor to give blood from the blood bank and one
doctor without verifying gave the bottle to the patient. During transfusion, nurse suddenly removed
the blood bottle and on asked by the family members, no reason was given. But as the two groups
of blood mixed with each other Kamla Sharma died in few hours.

Husband of the deceased, claimed Rs. 2Lac for lost of his wife, Rs. 1Lac for the marriage of the
daughter who would have got married if wife is not dead and Rs.4000 as the medical expense.

Issue: Is there any medical negligence on the part of the doctors?

Judgment: As there was negligence on the part of doctor who didn’t verified the blood group before
giving blood bottle to the nurse. Court directed government of Rajasthan to pay compensation of
Rs.3,04,000 to the family of the deceased in addition to it Rs.2000 as petition cost and also give
12% interest if compensation not provided within stipulated time.

Shakuntala Sharma v. State of Uttar Pradesh 24

Facts: Smt. Shakuntala Sharma was married to Ghanshyam 25 yrs. back. The couple had 2 sons
and one daughter. As government was promoting scheme of family planning g during the period,
Ghanshyam decided to get Vasectomy (Naqshbandi) operation so as to prevent further pregnancy
for his wife. He got operated at District Hospital, Sitapur and certificate was also issued stating
about the vasectomy operation done.

But even after the operation Smt.Shakuntala got pregnant and this news created chaos among the
society and gave rise to suspicion of chastity, adultery and disturbed her matrimonial life. On test,

23
AIR 2002 Raj.104
24
2001 ACJ 620

14
it was declared that it was not her fault, it was the fault of doctor as operation was not successful
and Ghanshyam did not turn up to the hospital when called upon. Smt.Shakuntala claimed
compensation of Rs.10 Lac from the government for mental injury and disrespect in the society.

Issue : Was there any negligence on the part of the doctor? Should Shakuntala get compensation?

Judgment: Hon’ble judge said that it is a medical science and according to experts there are 0.3-
7% chances of failure of this operation. So, there was no negligence on the part of the doctor.
Woman carrying a stigma on her character can’t live meaningful life with dignity. In this case, it
was not her fault at all. Court offered her Rs. 1 Lac instead of her claim of Rs.10 Lac

Jacob Mathew v. State of Punjab 25

Facts: Informant filed a complaint or FIR against the medical practitioners under
Sec.304A/34.Father of the informant, Late Jiwan Lal Sharma was admitted as patient in CMC
Hospitals, Ludhiana. After 7 days, deceased felt difficulty in breathing as he was suffering from
last stage cancer. So informant’s elder brother contacted nurse on duty who immediately called the
doctor. No doctor came upto 25 mins. Then Dr. Jacob Mathew and Dr Allen Joseph came to attend
the patient . He was connected to the oxygen cylinder to the mouth but soon the breathing problem
increased. The oxygen cylinders were empty. No other cylinders were in the room. Elder son
immediately brought other cylinder from the adjoining room but there was no arrangements for its
plugs and it took 5-7 mins to attach the oxygen cylinder to the mouth and other doctor declared
patient as dead.

Issue: Was there any negligence on the part of the Doctors for oxygen cylinders being empty?

Judgment: Court stated that it is a case of non- availability of oxygen cylinder either because of
hospital having failed to keep available oxygen cylinder or cylinder being empty. So, doctors will
not be liable for the negligence. Hospital may be liable and had to compensate for negligent in
maintaining oxygen cylinders.

25
2005 (6) SCC 1

15
Achutrao Haribhau Khodwa v. State of Maharashtra 26

Facts: The deceased, Chanrikabai was admitted to the hospital for delivery of a child. After normal
delivery of child, she undergo sterilization operation. Soon thereafter, she developed high fever
and abdominal pain. When called for check-up, reopening of sterilization operation to know about
the cause of the ailment. It was found that there was a mop(towel) left in the peritoneal cavity
during the operation. After draining out the pus, abdomen was closed but, her condition didn’t
improve and finally she expired.

Issue: A. Can state of Maharashtra be held liable for the case of medical negligence?

B. How much compensation should be given to the family of the deceased?

Rule: In this case, rule of Res Ipsa Loquitor will apply as it can be seen by the court itself that there
was a mop left in cavity. This doctrine means “Things speak for itself”

Judgment: As it can be clearly observed from the facts that there was a mop left in the abdomen
which caused pain and death. So, doctrine of Res Ipsa Loquitor will clearly be applicable here.
Trial court set a decree of Rs.36000. When approached National Commission, appeal against
Bombay HC decision was granted and the decision of Bombay HC was set aside and decree set up
by trial court of Rs.36000 was applied.

CONCLUSION

From this research project , Researcher get to know about various sections of Copra Act and its
relation with Medical Negligence in India. As researcher knows that, in medical negligence
compensation is taken by the aggrieved party from the government, doctors or individuals.
According to Researcher’s point of view this formula of granting compensation should not be
followed by Indian Judiciary as most of the people have money so they don’t bother giving a
quantum amount of money to generally poor people. In researcher’s view, this offence should be
listed under Indian Penal Code and harsh punishment should be given to those who deliberately

26
(1996)2 SSC 634

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make a mistake. But at the same time, it is medical science and anything can happen as sometimes
unexpected also occurs .

And in view of Researcher, the compensation granted is very less and amounts to negligible as
people lose their loved ones. So what will they do with the money if they had lost their close
relatives only.

BIBLIOGRAPHY

1. Ratanlal & Dhirajlal, “LAW OF TORTS”, 27th Ed.2016

2. A Lakshminath & M Sridhar, “RAMASWAMY IYER: THE LAW OF TORTS”,

Rep.2010, 10th Ed.2007

REFERENCES

1. https://indiankanoon.org

2. http://www.lawyerservices.in/

3. https://www.scconline.com/

4. www.inflibnet.ac.in/

5. http://jajharkhand.in/

6. http://www.e-lawresources.co.uk/

7. https://www.lawteacher.net/

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