MAHARASHTRA NATIONAL LAW UNIVERSITY MUMBAI

SEMESTER - 1
PROJECT SUBMISSION TOWARDS FULFILMENT OF THE
ASSESSMENT IN
THE SUBJECT OF TORTS

Topic: Medical Negligence

Submitted by: Uday Talokar

Roll No.: 2021 134

Submitted to: PROF. KIRAN RAI

Section :B
 Table of Contents

Introduction…………………………………………………………………….1

1. Civil Law and Medical Negligence………………………………………2

2. Criminal Negligence……………………………………………………..4

3. Calculating Compensation in Case of Medical Negligence……………..5

4. Case Study……………………………………………………………….6

Conclusion…………………………………………………………………8

References………………………………………………………………….9
 INTRODUCTION

The awareness about medical negligence has been on rise in India from last two three decades.
There are an increasing number of complaints filed against the doctors and hospital management
for negligence in courts. This trend has gained pace since the enactment of consumer protection
act , 1986. This is not to suggest that cases were not filed for medical negligence before the
enactment of consumer protection act , 1986. Before this act was enacted an aggrieved patient or
his relatives could avail legal remedies under law of torts and sec 1-A of Fatal Accidents Act ,
1855. But to avail these remedies they had to wait for years and spend a lot of money by taking
the route of sub-court, district court, high court and supreme court.

The supreme court in the case of Indian medical association v. V P Shantha1 held that medical
profession would come under the ambit of the term ‘Service’ as defined under consumer
protection act , 1986. Due to this supreme court decision the patients who had suffer from the
negligence by a medical practitioner could approach the ‘procedure free’ consumer protection
court. The supreme court held that the relation between the patient and doctor is that of a
‘contract for service’ and not ‘ contract of service’. The consumer protection act excludes a
contract of service from its ambit, therefore this case becomes important in this regard.

Due to these advancements in law and the increased awareness among the people there have
been various cases which the courts have given judgment on and also awarded compensation to
patients is some cases. In a recent supreme court case the court awarded a compensation of 11
crores to a patient.2

So it becomes important to understand Medical Negligence in detail. Its implication under civil
and criminal law. How the compensation would be calculated? What are the essentials of
medical negligence? Judicial interpretation of medical negligence. The following chapters try to
answer these questions.

1
1996 AIR 550, 1995 SCC (6) 651
2
Balram Prasad vs. Kunal Saha, (2014) 1 SCC 384.
Civil law and Negligence

Negligence is simply the breach of legal duty to care. It rises when a someone acts carelessly
where he has the legal obligation to act carefully. The essential elements of negligence are:

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

2. The defendant has breached the duty of care.
3. The plaintiff has suffered an injury due to this breach.

Medical negligence is same as other negligence. The only thing is that in a case of medical
negligence the defendant is often a doctor or hospital management.

When a doctor offers a medical advice or treatment to a patient it is assumed that he/she has the
skill and knowledge to do so. It is also assumed that he/she has the skill to decide which case to
take and which case not to. This is known as ‘implied undertaking’ by the medical professionals.
The supreme court in the case of State of Haryana vs Smt Santra 3 has held that every doctor “has
a legal duty to act with a reasonable degree of care and skill”. All the doctors in India can be
made liable for negligence is they fulfill the required elements except for those who are giving
the treatment free of cost. In the case of Indian Medical Association vs V P Santha4 the court
held doctors are not liable for their service individually or vicariously if they do not charge fees.

But knowing the fact that no one is perfect and anyone can make a mistake while diagnosing the
nature of a disease. And it is also true that there are various treatments in medical science which
can have diverse effects on the patient and are uncertain. Keeping this in mind it is a well
established principle that a doctor cannot be made liable for every death or injury caused to a
patient. A doctor can be made liable for medical negligence only if the plaintiff proves the
negligence on the part of the doctor and he proves that any other doctor of ordinary skill would
have committed the same error.5 Although it is true that the doctor should have the ordinary

3
State of Haryana vs. Smt. Santra (2000) 5 SCC 182:: AIR 2000 SC 3335
4
1996 AIR 550, 1995 SCC (6) 651

5
Observations of Lord President Clyde in Hunter vs Hanley (1955) SLT 213. In: Nathan HL. Medical Negligence.
London: Butterworths; 1957.
degree of skill, however one cannot expect perfection and guarantee of cure from them. If the
doctor has adopted the right course of treatment, if she/ he is skilled and has worked with a
method and manner best suited to the patient, she/ he cannot be blamed for negligence if the
patient is not totally cured6. In the case of Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu
Godbole7 supreme court held that there are certain condition which should be satisfied to make a
doctor liable for negligence. That the professional should have committed an act of omission or
commission; that act of must be against the duty of care that the professional was legally bound
to follow; and such act of omission or commission should cause an injury to the patient. The
court also held that the complainant must prove the allegation against the doctor by citing the
best evidence available in medical science and by presenting expert opinion.

In the case of Dr Janak Kantimathi Nathan vs Murlidhar Eknath Masane8 the National Consumer
Disputes Redressal Commission applied the principle of ‘res ispa loquiyur’ or ‘the things speak
for itself’. There are certain situation where proof is not needed because the situation of patient
itself attributes negligence to doctor.

In Laxman vs Trimback the supreme court held that the duty owed by the doctor is to “bring to
his task a reasonable degree of skill and knowledge” and to exercise “a reasonable degree of
care”. In other word he/she is not expected to adhere to highest or lowest practice and to cure
every patient that comes to him. He/she just has to make sure they adhere to a reasonable degree
of care and competence.

The question then arises is what is reasonable degree of care? Reasonable degree of care could
mean that an “ordinary competent member of the profession who professes to have those skills
would exercise in the circumstance in question.” It becomes really important at this stage to
distinguish between the ‘standard of care’ and ‘degree of care’. The standard of care implies that
the conduct of the doctor should be reasonable and does not always has to conform with the
highest degree of care or the lowest degree of care. The standard of care is constant for all cases.9
The degree of care changes from case to case and so it is variable and depends upon
6
Dr Prem Luthra vs Iftekhar (2004) 11 CLD 37 (SCDRC – UTTARANCHAL); Mrs Savitri Devi vs Union of India IV (2003)
CPJ 164; Dr Devendra Madan vs Shakuntala Devi I (2003) CPJ 57 (NC).
7
Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole AIR 1969 (SC)128
8
Dr Janak Kantimathi Nathan vs Murlidhar Eknath Masane 2002 (2) CPR 138.
9
Joga Rao SV. Medical negligence liability under the consumer protection act: A review of judicial perspective.
Indian J Urol. 2009;25(3):361-371. doi:10.4103/0970-1591.56205
circumstances. Reasonableness in negligence refers to this degree of care. Though the standard
of care which is expected from a generalist and a specialist the same however the degree of care
expected from a generalist and a specialist differs. In fact, the law expects the specialist to
exercise the ordinary skill of this specialty and not of any ordinary doctor. Further it is also
expected from a doctor to constantly update his knowledge so that he meet the standard expected
from him/her. Although it is not necessary for him/her to be aware of all the new developments
in the field.

In medical negligence cases the liability of a doctor arises when the patient suffers injury due to
the conduct of doctor which was below reasonable care. Only the fact that the patient has
suffered injury does not make a doctor liable for negligence. The plaintiff has to prove that the
doctor owed a duty of care to him; that the doctor did not act with reasonable degree of care; and
that he suffered injury as a result of breach of duty on the part of doctor. Mostly a doctor is made
liable for his own acts but in certain circumstances where the person committing the act dose not
owe any duty of care to the patient in such circumstances he can be made vicariously liable for
the act of his employees.

Criminal Negligence

Before 14th century medical negligence was mostly considered as a crime rather that a tort. There
are mentions of medical negligence in some very old text where very harsh punishment were
awarded. Section 304 A of Indian penal code of 1860 states that whoever causes the death of a
person by a rash or negligent act not amounting to culpable homicide shall be punished with
imprisonment for a term of two years, or with a fine, or with both.

The supreme court in Haryana vs Smt Santra10 held that amount of damage incurred is a major
factor to determine liability under civil law however in criminal law degree of negligence along
with the amount of injury has to be taken into consideration. There are certain elements that has
to be taken into consideration to make a doctor liable for negligence under criminal law. The
motive of the offence, the magnitude of the offence, and the character of the offender needs to be

10
State of Haryana vs. Smt. Santra (2000) 5 SCC 182:: AIR 2000 SC 3335
considered. Only when it is shown that the doctor was ‘grossly’11 negligent in his act then only
he can be made liable for negligence under criminal law.

Doctors can avail certain defenses under section 80 and 88 of IPC. Section 80 provides a defense
against any accident that happens while doing a lawful act. It says that nothing is a offence which
is done by accident and without any criminal intension. Section 88 says that nothing is a offence
which is done in good faith for the benefit of others and does not intend to cause harm even if
there is a risk, and the patient has explicitly or implicitly given consent.

Calculating Compensation

The principle of “restitution in integrum” is applied while deciding the compensation for any
tort. This principle says that while calculating the compensation it should be made sure that the
injured person lands in the position that he/she would have been if the wrongful act was not
commited. This implies that the doctor has to pay for loss caused by his negligence, future
medical expenses, and any pain and suffering endured by the victim.

The supreme court has talked at length about calculating damages in Dr. Balram Prasad vs.
Kunal Saha and Rajesh and Ors. Rajvir Singh V and Ors. There are various factors and the
reasons behind the compensation awarded in various cases. Some of the grounds that needs to
taken into consideration while awarding compensation are: 1) loss of income 2) medical cost till
date of judgment 3) future medical costs 4) pain and suffering 5) cost of litigation 6) inflation
and interest 7) punitive compensation 8) loss of consortium.

Many of the medical professional have been demanding the use of ‘multiplier method’ while
deciding the compensation in medical negligence cases. They argue that by following this
method we can ensure uniformity and predictability.

Case study/ Law

The supreme court in the case of Dr. suresh gupta12 held that to make a doctor liable for climinal
negligence the it has to be proved that the doctor or surgeon was ‘ grossly negligent and rekless’.

11
Jacob Mathew vs. State of Punjab, Supreme Court of India, AIR (2005) SC 3180.
In the same case the court also made a distinction between error of judgment and culpable
negligence. The court stated that adequate medical opinion should be taken before deciding on
any medical negligence case. The court held that this distinction becomes important so that the
hazards of doctors and surgeons being exposed to civil liability may not unreasonably extend to
criminal liability. And make sure that they are exposed to the risk of imprisonment even for
some considerably low negligence. So it becomes important to prove the mental state of doctor
which is totally apathetic towards the patient.

The supreme court judgment in the case of Jacob Mathew vs State of Punjab13 is also very
important as it directs the union government to frame guidelines in order to protect doctors from
undue pressure and unnecessary harassment while performing their duty. The supreme court in
Mohanan vs Prabha G Nair and another14 ruled that in order to ascertain negligence on the part
of doctor the only way is to scan the material and expert evidence that is made available during
the trial.

The supreme court in Sarla Verma vs. Delhi Transport Corporation15 has expressed grave
concern on the lack of uniformity and consistency while awarding compensation in medical
negligence cases. It said that if different court and tribunals calculate compensation differently
while deciding on the same facts this would lead to confusion and bewilderment among the
plaintiff and defendant.

Conclusion

It is true that many times patients misuse the law to harass doctors and medical practitioner. And
the medical profession needs to saved from this kind of misuse, in order that they can perform
their duty freely. But at the same time it cannot be assumed that the professionals are not
negligent in any case. Many patients have suffered grave losses because of the gross negligence
of doctors, who deserve to be compensated. I think it is the duty of union government and the
supreme court to make and interpret laws so that both the patient and doctors are protected
against any offence or oppression.

12
Suresh Gupta v. Government of NCT, Delhi, (2004) 6 S.C.C. 422
13
Criminal Appeal Nos 144-145 of 2004
14
Mohanan vs Prabha G Nair and another (2004) CPJ 21(SC), of 2004 Feb 4.
15
Sarla Verma vs. Delhi Transport Corporation (2009) 6 SCC 121.
References

Articles referred

1. Chandra MS, Math SB. Progress in Medicine: Compensation and medical negligence in
India: Does the system need a quick fix or an overhaul?. Ann Indian Acad Neurol.
2016;19(Suppl 1):S21-S27. doi:10.4103/0972-2327.192887
2. Joga Rao SV. Medical negligence liability under the consumer protection act: A review
of judicial perspective. Indian J Urol. 2009;25(3):361-371. doi:10.4103/0970-
1591.56205
3. Economic and Political Weekly, Jan. 14-20, 2006, Vol. 41, No. 2 (Jan. 14-20, 2006), pp.
111-115

Cases referred

1. 1996 AIR 550, 1995 SCC (6) 651

2. Balram Prasad vs. Kunal Saha, (2014) 1 SCC 384.
3. State of Haryana vs. Smt. Santra (2000) 5 SCC 182:: AIR 2000 SC 3335
4. 1996 AIR 550, 1995 SCC (6) 651
5.
6. Observations of Lord President Clyde in Hunter vs Hanley (1955) SLT 213. In: Nathan HL. Medical
Negligence. London: Butterworths; 1957.
7. Dr Prem Luthra vs Iftekhar (2004) 11 CLD 37 (SCDRC – UTTARANCHAL); Mrs Savitri Devi vs Union of India
IV (2003) CPJ 164; Dr Devendra Madan vs Shakuntala Devi I (2003) CPJ 57 (NC).
8. Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole AIR 1969 (SC)128
9. Dr Janak Kantimathi Nathan vs Murlidhar Eknath Masane 2002 (2) CPR 138.
10. Joga Rao SV. Medical negligence liability under the consumer protection act: A review of judicial
perspective. Indian J Urol. 2009;25(3):361-371. doi:10.4103/0970-1591.56205
11. State of Haryana vs. Smt. Santra (2000) 5 SCC 182:: AIR 2000 SC 3335
12. Jacob Mathew vs. State of Punjab, Supreme Court of India, AIR (2005) SC 3180.
13. Suresh Gupta v. Government of NCT, Delhi, (2004) 6 S.C.C. 422
14. Criminal Appeal Nos 144-145 of 2004
15. Mohanan vs Prabha G Nair and another (2004) CPJ 21(SC), of 2004 Feb 4.
16. Sarla Verma vs. Delhi Transport Corporation (2009) 6 SCC 121.