MEDICAL NEGLIGENCE AND MALPRACTICE: A

THREAT TO HUMANITY

By: -

SHIVANI UPADHYAY
5th year, BA, LL.B.
UPES, DEHRADUN
Mob.: - 9993950269
E-mail: shivaniwrites7@gmail.com

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 October 7, 2020
ABSTRACT

Medical Negligence is an act of negligence which occurs when doctors fail to take reasonable
duty of care causing injury to their patients. In other words, it means a doctor’s breach of
duty to take care of his patients. Unlike medical malpractice, medical negligence does not
carry the element of ‘intent’. Medical malpractice is an intentional failure on the part of a
doctor which results into harming a patient. However, this article will analyse how medical
negligence can result into medical malpractice.

The main problem lies in interpreting these terms since both these terms are nowhere defined
in Indian laws. This article seeks to outline the basic features of medical negligence and
malpractices and how these practices are a threat to human mankind. The methodology
adopted is empirical and analytical with support of descriptive methods and is based upon the
judicial opinions of Indian courts.

Furthermore, this paper also intends to highlight the need for enacting and enforcing various
provisions related to medical negligence and malpractices mentioned under different statutes
and will aim at restoring patient’s rights and people’s faith in the medical profession. Medical
ethics need to be reformed to serve the complete righteousness so that instead of being
threatened, people are more encouraged to trust doctors and medical practitioners.

Key Words: Medical Negligence, Malpractice, Patient’s Rights, Enforce, Ethics.

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 MEDICAL NEGLIGENCE AND MALPRACTICE: A THREAT TO
HUMANITY

Doctors were considered as Gods because they save lives of millions of people. They literally
pull people out from death beds and give them an opportunity to see the world once again.
This God, in form of a doctor is believed to be infallible. However, when ‘God’ is not able
perform his duties as he was expected to, people tend to forget that he is still a human being
with special medical practice and hold them responsible for his mistakes.

Medical Negligence is an act of negligence which occurs when doctors fail to take reasonable
duty of care causing injury to their patients. In other words, it means a doctor’s breach of
duty to take care of his patients because of which the patients suffered an injury. These are
the following ways by where doctors acct negligently: Failure to attend or treat patients,
make error in diagnosis, make error in treatments, failure to take full medical history into
consideration, performing wrong surgery, failure to communicate and advice etc.

In today’s era, medical law is undergoing a very prominent change because of which our
attitude towards medical services and medical professions is changing. The Godlike status of
doctors is diminishing and they are no longer considered as infallible. Doctors are normal
human beings who have specialised in a medical field and have the capability to provide the
best treatment for their patients after examining them. The doctor-patient relationship is more
formal and structured now. Significant approaches have been introduced which have an
impact on medicine legally and ethically.

In our country matters of medical negligence are dealt by lawyers and are decided by the
judges. However, it is difficult for the judges to pronounce a judgement because they have no
idea about the medical science. Therefore, these decisions are based on medical expert’s
opinions and suggestions. Whereas, the judges (keeping reasonability and prudence in mind)
simply apply the principles of law of the land and make a final decision.

MEDICAL MALPRACTICE:An intentional negligence committed by a medical

professional like doctor, nurse, technician, hospital worker, etc. It is an intentional breach of
duty of care by medical professionals. Unlike medical negligence, it has the element of
‘intent’. The doctor failed to treat the patient when he knew that he should have and this
cause damage/harm or may even lead to the death of patient. Even if doctor is performing an
activity over the patient, knowing that this could cause harm to the patient, would be

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considered as a malpractice. Thus, medical malpractice means failure of taking required
actions or taking inappropriate actions. Elements that need to be present for medical
negligence:

a) Existence of a professional relationship between the medical practitioner and the

patient
b) The medical practitioner must have acted beneath the standard of level of care that
any other medical practitioner would have used in the same situation.
c) This care must have caused harm to the patient in some way.

Some common types of medical malpractices are: Dental errors, Wrongful death, wrong
diagnosis and misdiagnosis, prescribing unnecessary tests, treatment by non-professionals
with fake professional documents, While undertaking operation to a patient on one organ,
taking out other important organs from the body and selling them for making money,
Anesthesia malpractice, directing the patient to go and purchase medicines from a specific
pharmacist, directing the patient to go to a particular clinical laboratory for clinical tests,
pharmacist (Medical shop); (xxiii) directing the patient to go to a particular clinical
laboratory for clinical tests; (xxiv) Intentional, fraudulent and wanton dealing of cases where
the patient is covered by insurance, accepting trade offers from manufacturers of
orthopedicinstruments (body implants) which may be used in surgical operations, Intentional
or wanton failure to diagnose or misdiagnosis of a disease or medical condition, Wanton and
intentional unreasonable delay in treating a diagnosed medical condition, Cosmetic surgery
mistakes, etc.

Following are the four elements of a tortious act must be established for a malpractice claim:

i) A legal duty was owed whenever the doctor undertakes the care or treatment of a
patient
ii) Such a duty was breached
iii) The breach of duty caused an injury to the patient
iv) Damages, emotional, monetory and physical were done.

Medical negligence becomes medical malpracticewhen the doctor’s negligent treatment

cause undue injury to the patient and when such a doctor fails to do what competent doctors
would have done in the same situation. Medical malpractice means that you DID something
wrong that you should have known was wrong. When negligence is not proved when a
patient suffers complications, injury, or death because of a health care professional‘s or

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health care facility‘s medical intentional or wanton negligence, then it becomes a medical
malpractice.

TORT/CIVIL LAW AND MEDICAL NEGLIGENCE

The concept of medical negligence has been accepted in jurisprudence. ‘Tort’ means to hurt.
Negligence is a part of tort law and the idea of hurt is an important consideration in
establishing negligence.1 It is the breach of a duty caused by the omission to do something
which a reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs would do, or doing something which a prudent and reasonable man
would not do. Actionable negligence consists in the neglect of the use of ordinary care or
skill towards a person to whom the defendant owes the duty of observing ordinary care and
skill, by which neglect the plaintiff has suffered injury to his person or property. 2 A doctor
owes duty of care towards his patients which is his duty to decide whether he wants to
undertake the case or not, duty to decide which treatment to give and duty to decide the
administration of the treatment. If there is a failure in part of the doctor to perform these
aforementioned duties, it would give a rise of action to the patient. The Supreme Court in
ParmanandKataria v. Union of India3said that every doctor at any hospital has an obligation
to extend his services with due expertise for protecting life.

What constitutes negligence?

a) A legal duty to exercise due care of the party complained of towards the party
complaining the former's conduct within the scope of the duty;
b) Breach of the promised duty
c) Damage that follows because of the breach.

Burden of proof: The Court in Calcutta Medical Research Institute vsBimalesh Chatterjee 4
said that burden of proof against negligence and deficiency in service clearly lies on the
complainant. Thus, to prove negligence, the plaintiff has to prove:

● That the defendant owed a duty of care towards the plaintiff

● That the defendant is responsible for breaching that duty

1
Ian Storey, “Duty of care and medical negligence”, Oxford Journals Medicine & Health BJA (2011).
2
Ratanlal&Dhirajlal, Law of Torts, 24th Edition 2002, edited by Justice G.P. Singh (441-442)
3
AIR 1989 SC 2039.
4
I (1999) CPJ 13 (NC)

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 ● That the plaintiff has suffered damage as a consequence thereof

When is the duty owed? A doctor does not have to ensure that every patient who seeks help
is cured. He only needs to offer reasonable degree of care and competence. 5 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.”6

There is a difference between standard of care and degree of care. .7 A person is

careless who, without intending evil, nevertheless, exposes others to the danger of it, and
the greater the danger, the greater the carelessness. The risk depends upon the
magnitude of the threatened evil and the probability of it. The greater the evil is and the
nearer it is, the greater is the carelessness of the defendant. 8 Duty of care is an
obligation on doctor to take care of his patients so that no harm is suffered by them. 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.9

Therefore, a liability will not arise when the patient has suffered an injury, but it will arise
when that injury is a result of the conduct of the doctor which has fallen below that of
reasonable care. And as said before, a doctor does not have to ensure that every patient who
seeks help is cured. He is liable only when he makes a breach of duty which results into
consequences. Hence, the plaintiff while proving negligence has to prove at first what is
considered as reasonable under those particular circumstances and then has to prove by
showing that the conduct of the doctor was below his degree.

Duty depends on reasonable forseeability of injury: Whether the defendant owes a duty to
the plaintiff or not depends on reasonable forseeability to the plaintiff. If at the time of the act
or omission, the defendant could reasonably foresee injury to the plaintiff he owes a duty to

5
Laxman v Trimback, AIR 1969 SC 128.
6
S. V. Joga Rao, “Medical negligence liability under the consumer protection act: A review of judicial
perspective”, Indian J Urol. 2009 (361–371), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779962/#CIT1
7
Id
8
Kumar L, Bastia BK, ‘Medical negligence- Meaning and Scope in India’, J. Nepal Med Assoc 2011 (49-52),
https://www.researchgate.net/publication/221833087_Medical_negligence-_Meaning_and_Scope_in_India
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prevent that injury and failure to do that makes him liable. Duty to take care is the duty to
avoid doing or omitting to do anything, the doing or omitting to do which may have as its
reasonable and probable consequence injury to others, and the duty is owed to those to whom
injury may reasonably and probably be anticipated if the duty is not observed.10

Res Ipsa Loquitur: “The thing speaks for itself”

This doctrine assumes the following:

⮚ Nature of injury gives clue that it wouldn’t have happened without negligence
⮚ The patient has no involvement in the injury in any way
⮚ The injury happened under supervision and control of the doctor

The injured person must prove that the doctor breached his duty of care and failed to set
standards of care. By applying this doctrine the judge accepts that that negligence took place.
If the doctor fails to rebut, medical negligence is proved. In certain cases, no proof of
negligence is required apart from the accident itself. The NCDRC applied this principle in
Kantimathi Nathan vsMurlidharEknathMasane11. This doctrine comes into force only when
there is proof that the occurrence was unexpected and couldn’t have happened without
negligence on the part of the doctor.

The Delhi High Court laid down in 2005 that in civil law, there are three degrees of
negligence.12

(a) Lata Culpa, i.e. Gross neglect

(b) Levis Culpa, i.e.Ordinary neglect and
(c) Levissima Culpa, i.e. Slight neglect

Doctor will not be punished for every act of negligence. Gross and slight negligent will surely
be punished but ordinary negligence is not to be punished.

In Bolam v. Friern Hospital Management Committee 13, Bolam suffered from depression and
was treated by ECT. He was under supervision of nurses but was not given any relaxant drug.
The hospital did not warn him of the risk when he consented to treatment (that he will not get
relaxant drugs). He sustained fractures during treatment and sued the hospital for medical

10
Bourhillv.Young, (1943) A.C 92
11
2002 (2) CPR 138.
12
Smt. Madhubala vs. Government of NCT of Delhi; Delhi High Court, 8 April 2005, Citation: 2005 Indlaw
DEL 209 = 2005 (118) DLT 515
13
(1957) 2 All ER

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negligence. But according to experts, treatment with relaxant drugs and treatment without
relaxant drugs was accepted. The court concluded that the hospital and doctors were not
negligent.

In Jacob Mathew v State of Punjab, the court discussed the matter in detail and viewd
medical negligent from different perspectives: Civil, criminal, torts etc.

Doctors in India may be held liable for their services individually or vicariously unless they
come within the exceptions specified in the case of Indian Medical Association v. V P
Santha.14 Doctors are not liable for their services individually or vicariously if they do not
charge fees. Thus free treatment at a non-government hospital, governmental hospital, health
centre, dispensary or nursing home would not be considered a “service” as defined in Section
2 (1) (0) of the Consumer Protection Act, 1986.15

No human is perfect and even those persons specialised in certain fields can make a mistake
in detecting or diagnosing a disease. Negligence on the part of doctor can only be proved if
he is responsible for a failure that no other doctor with ordinary skills would be guilty of it
acting with reasonable care.16Errors of judgment do not necessarily imply negligence. 17Use of
wrong drug, or wrong gas during anesthetic process, removal of wrong limb, performing an
operation with wrong apparatus, delegating a responsibility to a junior knowing that the
junior is incapable of dealing with it, injecting a drug into a patient when the patient is
allergic to it, leaving swabs or other items inside the patients after surgery 18, etc. are gross
mistakes that would lead to medical negligence. An error of judgement constitutes negligence
only if a reasonably competent professional with the standard skills that the defendant
professes to have, and acting with ordinary care, would not have made the same error. 19

If persons who aren’t qualified in any branch of medicine yet embarks upon a treatment
course in one will be held negligent. 20 If a premature baby who is given supplemental oxygen
and blood transfusion for retinopathy of prematurity, a disease, is not taken care of will be an
14
AIR 1996 SC 550
15
K K S R Murthy, Medical Negligence and the Law, IJME, Vol 4, No. 3 (2007),
https://ijme.in/articles/medical-negligence-and-the-law/?galley=html
16
Observations of Lord President Clyde in Hunter vs Hanley (1955) SLT 213. In: Nathan HL. Medical
Negligence. London: Butterworths; 1957.
17
Spring Meadows Hospital v. Harjol Ahluwalia (1998) 4 SCC 39.
18
Spring Meadows Hospital v. Harjol Ahluwalia (1998) 4 SCC 39 and Indian Medical Association v. V P
Shantha (1995) 6 SCC 651.
19
Whitehouse vs. Jordan (1981) 1 All ER 267 the House of Lords.
20
Surendra Chauhan v. State of MP (2000) 4 SCC 110. See also, Martin F. D'Souza v. Mohd. Ishfaq (2009) 3
SCC 1.

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incident of negligence.21 If a senior doctor declines a surgery and takes up another surgery
instead of the previous one, leaving the patient to the care of a junior doctor who is
incompetent, the senior doctor will be held negligent.22

In cases of medical negligence, the complainant first has the initial onus to make out a case of
negligence and thereafter, the onus shifts to the doctor or the hospital who is being held
responsible, to satisfy that there was no lack of care or diligence.23

Another thing to note is that a hospital can alone be the party to the proceeding where civil
liability is imposed on it. The doctors and nurses or other people belonging to the hospital
need not to be a party to such a proceeding.24

Doctors must exercise an ordinary degree of skill. 25 It is not a problem if they cannot give the
warranty of perfection of their skill or to guarantee a cure. If the doctor has adopted the
correct course of treatment and has taken the best suited care for the patient, he cannot be
blamed for negligence if the patient has not been cured completely.26

Certain conditions must have been fulfilled before liability can be considered. The
complainant has to prove the allegation against the doctor by providing best possible
evidence available in medical science and also needs to present an expert’s opinion.27

CRIMINAL LIABILITY AND NEGLIGENCE

1. Indian Penal Code, 1860

Medical Negligence is nowhere defined in our statues but is mentioned under section 304 A
of the Indian Penal Code, 1860 which 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.

In Santra case,28 the Supreme Court said that liability arising in civil law is based on amount
of damages incurred. But in criminal law, the amount and degree of negligence is a factor in

21
V. Krishnakumar v. State of Tamil Nadu and Ors. (2015) 9 SCC 388.
22
P B Desai v. State of Maharashtra (2013) 15 SCC 481.
23
Nizam's Institute of Medical Science v. Prasanth S Dhananka (2009) 6 SCC 1.
24
SavitaGarg v. Director, National Heart Institute (2004) 8 SCC 56.
25
Smt J S Paul vs Dr (Mrs) A Barkataki (2004) 10 CLD 1 (SCDRC – MEGHALAYA).
26
Dr PremLuthravsIftekhar (2004) 11 CLD 37 (SCDRC – UTTARANCHAL); Mrs Savitri Devi vs Union of
India IV (2003) CPJ 164; Dr DevendraMadanvsShakuntala Devi I (2003) CPJ 57 (NC).
27
Dr LaxmanBalkrishna Joshi vs Dr TrimbakBapuGodbole AIR 1969 (SC)128
28
State of Haryana vs. Smt. Santra (2000) 5 SCC 182:: AIR 2000 SC 3335

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determining liability.29 The following are the elements that need to be established to
determine criminal liability:

a) The motive of the offence

b) The magnitude of the offence
c) The character of the offence

In Kurban Hussein MohamedalliRangawalla v. State of Maharashtra30, while dealing with

304 A of IPC, the court said that for a criminal liability to arise under section 304A, the death
needs to be the result of rash and negligent act of the accused.

In the case of PoonamVerma v Ashwin Patel31, the Supreme Court distinguished between
negligence, rashness and recklessness.

● A negligent person indeliberately commits an act and violates a positive duty.

● A rash person is the one who knows about the consequences of his actions but
foolishly believes that they won’t take place if he acts rashly.
● A reckless person is the one who knows about the consequences about his actions but
does not care whether they result from his act or not.

Defences for doctors who are accused of criminal liability are mentioned in section 80 and 88
of the IPC.

● Section 80: Nothing is an offence which is done by accident or misfortune and

without any criminal intention, which is done in a lawful manner with proper care and
caution.
● Section 88: a person cannot be accused of an offence if she/ he performs an act in
good faith for the other’s benefit, does not intend to cause harm even if there is a risk,
and the patient has explicitly or implicitly given consent.

Burden of proof and chances of error: The law requires a higher standard of evidence to
prove negligence, carelessness or insufficiency against a doctor. The onus of proving the
negligence and resultant deficiency lies on the complainant.32 Moreover, negligence has to be
established. It cannot be presumed.33
29
K K S R Murthy, Medical Negligence and the Law, IJME, Vol 4, No. 3 (2007),
https://ijme.in/articles/medical-negligence-and-the-law/?galley=html
30
1965 AIR 1616, 1965 SCR (2) 622
31
(1996) 4 SCC 332
32
 Calcutta Medical Research Institute vsBimalesh Chatterjee  I (1999) CPJ 13 (NC)
33
Kanhaiya Kumar Singh vs Park Medicare & Research Centre III (1999) CPJ 9 (NC)

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The National Consumer Disputes Redressal Commission and the Supreme Court in several
decisions have said that the doctor is not liable for negligence if he has acted in reasonably
and with care, even if the result will lead into an accident leading to death. In such scenarios,
it is implied that a mutual trust exist between the doctor and the patient and such a risk is a
part of the doctor-patient relationship.

2. CONSUMER PROTECTION ACT 1986

The test to determine Medical Negligence by a medical practitioner is the Bolam’sTest which
was given by McNair J. in Bolam’s case. A doctor is not guilty of negligence if he has acted
in accordance with a practice accepted as proper by a responsible body of medical men
skilled in that particular art. Putting it another way round, a doctor is not negligent if he is
acting in accordance with such a practice, merely because there is a body of opinion that
takes a contrary view.' This test was accepted in India in the case of Suresh Gupta v. Govt.
of NCT Delhi and Anr.34And Jacob Mathew case.

In Indian Medical Association v. V.P Shantha and Others35 the court said that services are
rendered by the doctor to the patient by way of consultation, treatment and diagnosis
(medical and surgical both) and this shall fall within the ambit of service as defined in section
2(1) (o) of the Consumer Protection Act 1986.

In Spring Meadows Hospital v. Harjot Ahluwalia, court said that the parent can claim
compensation under Compensation under the Consumer protection Act.

Following are the defences for medical negligence:

● Known Complications
● Unexpected or unforeseen results
● Emergency care
● Contributory Negligence
● Difference of Opinion

CONCLUSION

Doctors were considered as Gods but now the belief has been narrowed down because of the
cases of medical negligence and malpractices. Doctors make mistakes which are so

34
[2004] 6 SCC 422.
35
AIR 1996 SC 550.

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dangerous that it could take the lives of their patients. Such acts are either done negligently,
or intentionally and because of these acts, people have undergo immense sufferings.

As the patient deaths are increasing day by day, medical negligence and malpractice is
becoming a threat to human mankind. Doctors need to understand that they are used to
operate carefully and should be fully aware of all the medical equipments they use. They are
to be used carefully and cautiously because if not, then it might cause injury to the patient
which might lead to his death.

We are slowly losing faith in medical profession because of certain serious cases of medical
negligence and malpractice. But on the other hand, we need to understand that a doctor would
not intentionally kill a patient for vengeance. While treating patients, they are performing the
most sacred duties and we should not blame them for that. Instead, we should raise our voices
so that negligent doctors get punished and proper facts should be considered before accusing
doctors of murder.

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