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Acknowledgement
I would like to express my sincerest gratitude towards Professor (Dr) S. Surya Prakash, faculty
for “Health Law” for providing me with opportunity to work on the seminar paper

His consistent supervision, constant inspiration and invaluable guidance have been of immense
help in understanding and carrying out the nuances of the project report.

I take this opportunity to also thank the University and the Director for providing extensive
database resources in the Library and through Internet.

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Table of Contents
Acknowledgement...........................................................................................................................2

Statement of Problem......................................................................................................................4

Introduction......................................................................................................................................4

Negligence-in medical terms...........................................................................................................5

When does a duty of medical practitioner arise?.........................................................................6

Kind of duty owed by doctor.......................................................................................................6

What is meant by “reasonable degree of care”?..........................................................................6

Burden of Proof...............................................................................................................................8

Criminal Liability............................................................................................................................9

Position in England......................................................................................................................9

Position in India.........................................................................................................................11

Conclusion.....................................................................................................................................14

Bibliography..................................................................................................................................16

Cases Cited................................................................................................................................16

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Statement of Problem
India, since 2005, has the largest number of doctors graduating each year 1. However the state of
medical facilities in India paint a different picture altogether. Keeping aside the population
burden, the state of affairs is still far below the standards. A large number of injuries and deaths
are caused by the indifference and negligent actions of doctors. This project focuses on criminal
liability in cases of medical negligence and tries to understand whether the test of “gross
negligence” is justified in holding doctors criminally liable for their negligent actions.

Introduction
Medical Profession is one of the most reputed professions in the world as we know that doctors
are considered as God because they save our lives and always saves us from disease which
challenge our lives and can threaten to end it. So they are given much respect in our society and
moreover they do their work and research for humans and their development and their main
profession is to help people to come out of any diseases. This conduct intensive research as well
to help the future of mankind. But then a time comes when the saviour doesn’t remain the
saviour but becomes the devil himself and here comes the main theme of our topic and that is
about Negligence in the services rendered by the doctors. Doctors always need to be focused on
their work and they should always be precise in it because when they are advising someone on
their health issues then they cannot take a chance to give them wrong or useless advice or to do
anything wrong in surgery because it can cost anybody’s life. But it is an irony that we have
several cases of medical negligence in our country and this paper is thus a detail study on
Negligence in services rendered by doctors.

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

1
thewire.in/9427/medical-colleges-mci-mbbs

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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.

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, economic, 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.

Negligence-in medical terms

Negligence is simply the failure to exercise due care. The three ingredients of negligence are as
follows:

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

 The defendant has breached this duty of care.
 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.

In case of medical negligence it is important to answer the following questions:

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When does a duty of medical practitioner 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 2.” 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.

Kind of duty owed by doctor.

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
care3.” 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.

What is meant by “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
2
Parmanand Kataria vs. Union of India (AIR 1989 SC 2039)
3
Laxman vs. Trimback (AIR 1969 SC 128)

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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.

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. Doctors are, also, 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 i.e. 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.

Therefore 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.

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.

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 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.

Burden of Proof
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 4.
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 care5.

Criminal Liability
The above set conditions do, however vaguely, answer the cases of civil accountability of
doctors. But a large grey area is left when it comes to holding doctors criminally liable for their
4
Dr. Laxman Balkrishna vs. Dr. Trimbak (AIR 1969 SC 128)
5
Indian Medical Association vs. Santha

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actions. The crucial question which needs to be answered is; What is the degree of negligence
required in case of a breach of professional duty to take care so as to warrant a conviction under
IPC for say Section 304-A for causing death of a person or under Section 320 for causing
grievous injury to patient?

In Dr. Suresh Kumar v. Govt. of NCT of Delhi the appellant who is a Doctor (Plastic Surgeon)
was accused on the charge under Section 304 A of the Indian Penal Code for causing death of his
patient. The patient was operated by him for removing his nasal deformity.

The Supreme Court in the above case, laid down the test of ‘gross negligence or recklessness.’
Now is this correct, in view of the fact that the language of Section 304-A is plain and simple
and does not require the negligence to be ‘gross’ remains a question of judicial enquiry and
interpretation. The problem is whether it is fair to apply different standards of ‘degrees of
negligence’ for doctors. The law on this point is well settled in England and the position is that
except in motor manslaughter, the ingredients of involuntary manslaughter by breach of duty
which need to prove are:

 The existence of the duty.

 The breach of the duty causing the death.
 The gross negligence which in the opinion of the jury justifies the criminal conviction.

The Court in this case cited R. Vs. Adomako6 wherein the House of Lords stated that “a doctor
cannot be held criminally responsible for patient's death unless his negligence or incompetence
showed such disregard for life and safety of his patient as to amount to a crime against the
State.”

Position in England
The law on this subject as it has developed in England is summarized below:

O R v. Doherty7, the court described the degree of negligence by a doctor, which would support
a manslaughter charge. “Supposing a man performed a surgical operation, whether from loosing
his head, or from forgetfulness, or for some other reason, omitted to do something he ought to
have done, or did something he ought not to have done, in such a case there would be
6
1994 (3) All E. R. 79
7
[1887] 16 Cox. CC 306

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negligence. But if it was only the kind of forgetfulness which is common to everybody, or if
there was slight want of skill, any injury which resulted might furnish a ground for claiming civil
damages, but it would be wrong to proceed against a man criminally in respect of such injury.
But if a surgeon was engaged in attending a women during her confinement, and went to the
engagement drunk, and through his drunkenness neglected his duty, and the women’s life was in
consequence sacrificed, there would be culpable negligence of a grave kind. It is not given to
everyone to be a skillful surgeon, but it is given to everyone to keep sober when such a duty has
to be performed.”

In Andrews Vs. DPP8 Lord Atkin observed “I do not myself find the connotations of mens rea
helpful in distinguishing between degrees of negligence, nor do the ideas of crime and
punishment in themselves carry a jury much further in deciding whether, in a particular case, the
degree of negligence shown is a crime, and deserves punishment. But the substance of the
judgment is most valuable, and, in my opinion, is correct. In practice, it has generally been
adopted by judges in charging vehicles or otherwise. Simple lack of care that will constitute civil
liability is not enough. For purposes of the criminal law there are degrees of negligence, and a
very high degree of negligence is required to be proved before the felony is established.”

The effect of the brief history outlined above is to trace a consistent approach as to the mens rea
of the offence of involuntary manslaughter involving breach of professional duty. Undoubtedly,
the mens rea is characterized as “gross negligence”. The proper test in manslaughter by breach of
duty by professionals such as doctors is the “gross negligence test”. The courts have observed
that different standards need to be applied in case of doctors. This is primarily because breach of
duty cases such as those involving doctors are different in character. Often there is a high degree
of risk of danger to the deceased’s health, not created by the defendant, and pre-existing risk to
the patient’s health is what causes the defendant to assume the duty of care with consent. His
intervention will often be in situations of emergency. In case of a death caused by rash and
negligent driving, it may be that ‘gross negligence’ test may not be applied because, until and
unless the defendant drives there is no risk; the risk is created by the act of the defendant. While
in case of doctors, the risk is not created by the defendant; rather the risk is often pre-existing.
Thus only a doctor who recognizes the existence of a risk and who does not go on to take it, but

8
[1937] 2 All E.R. 52

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seeks to deal with it in a grossly negligent way, would be caught by the gross negligence test and
should be convicted under Section 304-A.

Accordingly, except in motor manslaughter the negligence of involuntary manslaughter by

breach of duty which need to be proved are:

1. The existence of the duty.

2. The breach of the duty causing the death.
3. The gross negligence which the jury considers justify the criminal conviction.

Position in India
There was considerable ambiguity on the standard of care required to be exercised by medical
practitioners in order to discharge possible criminal liability arising out of their acts or
omissions. Section 304-A of the Indian Penal Code, 1860 prescribes punishment for death due to
rash or negligent conduct of a person. It is under this section that doctors or other medical
practitioners have generally been proceeded against under criminal law but there is protection
given to accidents caused during performance of lawful acts [Section 80, IPC] and acts not
intended to cause death and done for the person’s benefit by his consent and in good faith
[Section 88, IPC].

Now, a question arises - that in view of plain and simple language of Section 304-A which
requires only a ‘rash’ or a ‘negligent’ act in order to sustain a conviction, how far the application
of ‘gross negligence test’ justified in Indian scenario? It is true that the language used in Section
304A does not contain the word ‘gross negligence’ but the application of the gross negligence
test can still be justified in cases involving negligence by breach of professional duty to take care
and Section 304-A can still be interpreted differently. It is an elementary rule of interpretation
that when a question arises as to the meaning of certain provision in a statute, it is not only
legitimate but proper to read that provision in its context. The context here means, the statute as a
whole, the general scope of the statute and the mischief that it was intended to remedy. Thus
Section 304-A has to be necessarily read with Section 80 and Section88 of the Indian Penal
Code.

Reading Section 304-A along with Section 80, it is apparent that if a patient dies due to accident
or any other misfortunate event while he was being treated by the doctor, the doctor having no

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intention to kill and acting with due care and caution, even though there may be some breach of
duty which the doctor owed to the patient, for every such mishap or misfortune, the doctor
cannot be said to be responsible unless the negligence of the doctor was so gross so as to amount
to culpable negligence. A mere failure to take proper care, or inadvertence on the part of the
doctor, might subject him to civil liability but not to criminal liability under Section 304-A.

Further, reading Section 304-A with Section 88 of Indian Penal Code, it becomes clear that if a
doctor is performing a treatment on his patient, for his benefit in good faith, obviously not
intending to cause his death, with the consent of the patient, then any harm which may ensue to
the patient, the doctor cannot be made liable criminally for that harm. Section 88 contained in
General Exceptions, is an exception to all provisions of the Code including Section 304-A.
Section 88 was primarily incorporated into the Code for the purposes of saving surgeons and
doctors from the liability under the Code as they have to by and large deal with cases where the
risk of death or injury to the patient is quite high and is almost always pre-existing. Commenting
upon Section 88 the authors of the Code have themselves observed “In general we have made no
distinction between cases in which a man causes an effect designedly, and in cases in which he
causes it with the knowledge that he is likely to cause it. But, there is, as it appears to us, a class
of cases in which it is absolutely necessary to make this distinction. A man may labour under a
cruel and wasting malady which is certain to shorten his life, and which renders his life, while it
last useless to others and torment to himself. Suppose that under these circumstances, he
undeceived, gives his free and intelligent consent to take the risk of an operation which in a large
proportion of cases has proved fatal, but which is the only method by which the disease can
probably be cured. We do not think it would be expedient to punish the surgeon who should
perform the operation, though by performing it he might cause death, not intending to cause
death but knowing himself to be likely to cause death.” The provision of Section 88 thus justifies
different treatment for doctors and surgeons under the Code in matters where death or bodily
injury is caused to the patients while they are treating them. It is justifiable to import a higher
degree of negligence (called gross negligence) particularly for doctors, who have to often deal
with situations where they are called upon to deal with risks pre-existing other than those which
are created by themselves in the course of their treatment. Thus for a mere lack of care or
negligence on the part of the doctor, he cannot be made criminally liable under Section 304-A
holding that the language of Section 304-A is plain, clear and unambiguous and affords no room

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for a different interpretation other than the one that the act must be simply ‘rash’ or ‘negligent’.
A statute is always to be read as a whole, and reading Section 304-A along with Section 88
reveals that the negligence of the doctor must be gross so as to sustain a conviction under Section
304-A. Even though there may be no ambiguity in the language of Section 304-A, still the
section has to be read in conjunction with the other provisions of the Act. The modern approach
to statutory interpretation insists that the context be considered in the first instance and not
merely at some later stage when ambiguity might be thought to arise. The starting point is that
language in all legal texts conveys meaning according to circumstances in which it was used. It
follows that context must always be identified and considered before the process of construction
or during it. It is therefore wrong to say that court may only resort to evidence of the contextual
scene when the ambiguity has arisen.

Further, different standards for professionals such as doctors are justified because 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 and very often success or
failure depends upon factors beyond the professional man’s control. In devising a rational
approach to professional liability, the approach of the courts should be, and to a great extent has
been, that professional men should possess a certain degree of competence and it is only when
they are grossly negligent that they should be made criminally liable. As the proverbial saying
goes that the worst case goes to the best professional, yet even the best cannot be sure of success.
Just as the best of the lawyer cannot be presumed to give a guarantee to win, the best of doctor is
not presumed to have given a guarantee to cure. Death is nobody’s friend. Just as when the best
of a swimmer dies in water, the best of a driver dies in a road mishap and these are called
accidents then death during the best medical treatment can equally be termed as accident. In Dr.
Lakshmanan Prakash v. State9, the court observed; “A doctor is never presumed to be
infallible. He is also not obliged to achieve success in every clinical case that he treats. Doctor
cannot be held negligent because something goes wrong. He can be found guilty only if he falls
short of standard of reasonably skillful medical practice.”

The test has been the ‘gross negligence test’ both in India and in other jurisdictions. In Idu Beg v.
Empress10, Straight J. observed; “Criminal negligence is the gross and culpable neglect or the
9
2001 ACJ 1212 (Mad.)
10
(1881) 3 All. 776

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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 to
have adopted.” This definition of criminal negligence that criminal negligence must be gross was
accepted by the Supreme Court in Bhalachandra v. State11.

Conclusion
The abovementioned authorities law down that in order to establish criminal liability the facts
must be such that the negligence of the accused sent the case beyond a mere matter of
compensation and showed such disregard for the life and safety of the others so as to amount to
crime12. Where a person practicing medicine or surgery, whether licensed or unlicensed, is guilty
of gross negligence or criminal inattention, in the course of his employment, and in consequence
of such negligence or inattention death or injury ensues, it is culpaple. But if there is no gross
negligence, it is not. 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 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 negligence merely based upon
the error of judgment13.

Criminal negligence must always reach the stage of gross and culpable negligence or failure to
exercise the requisite, reasonable and proper care and precaution to guard against injury either to
the public generally or to an individual, which was the imperative duty of the accused to have
adopted.

However it is imperative to distinguish cases of negligence from the ones where there are
deliberate actions or malpractice on part of doctors like where a doctor prepared an injection by
dissolving some powder in water which he gave to 57 children of whom 5 died and others were
made ill14, despite which it was held that the doctor could not be held criminally liable for
negligence to be criminal must be gross and in the instant case a criminal degree of negligence
has not been proved.
11
AIR 1968 SC 1319
12
Gulam Saeed v. State (AIR 1953 Madhya Bharat 180)
13
Syed Akbar v. State of Karnataka [1980] 1 S.C.C. 30
14
Akerele (1943) A.C. 255

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Thus, from the perusal of the authorities stated above, the law seems to be clear that for criminal
liability to arise, the breach of duty must be characterized as gross negligence and therefore
crime. Now as to what constitutes “gross negligence” there cannot be a precise measure for the
same. This is necessarily a question of degree and an attempt to specify that degree more closely
is likely to achieve only a spurious precision.

It is so easy to be wise after the event and to condemn as negligence, that which was only a
misadventure. We ought always to be on our guard against it, especially in cases against
hospitals and doctors. Medical science has conferred great benefits on mankind, but these
benefits are attended by considerable risks. Every surgical operation is attended by risks. We
cannot take the benefits, without taking the risks. Every advance in technique is also attended by
risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a
hard way. We would be doing a disservice to the community at large if we were to impose a
liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led
to think more of their own safety than of the good of their patients. Initiative would be stifled and
confidence shaken. A proper sense of proportion requires us to have regard to the conditions in
which hospitals and doctors have to work. We must insist on due care for the patient at every
point, but we must not condemn as negligence that which is only a misadventure.

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Bibliography
 http://www.legalservicesindia.com/article/article/medical-negligence-in-india-944-1.html
 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779962/
 Medical negligence and legal remedies, by Anoop K Kaushal, universal law publishing
Co. Pvt. Ltd.
 Law and medical ethics, by Mason and Mc Call Smith, oxford university press

Cases Cited
 Dr. Suresh Kumar v. Govt. of NCT of Delhi
 Dr. Laxman Balkrishna vs. Dr. Trimbak (AIR 1969 SC 128)
 Parmanand Kataria vs. Union of India (AIR 1989 SC 2039
 Indian Medical Association vs. Santha
 R. Vs. Adomako 1994 (3) All E. R. 79
 O R v. Doherty [1887] 16 Cox. CC 306
 Andrews Vs. DPP [1937] 2 All E.R. 52
 Dr. Lakshmanan Prakash v. State 2001 ACJ 1212 (Mad.)

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