MEDICAL NEGLIGENCE AND FIXATION ON LIABILITY ALONG WITH

RELEVANT CASE LAWS

FORENSIC SCIENCE 2ND INTERNAL ASSESSMENT

DECEMBER 12, 2020

ROCHAK SINGLA, 2ND YEAR LLB
PRN 19010122105
WORD COUNT 4318
SUBMITTED TO PROF. SUNISHTHA MOGHE
CONTENTS
ABSTRACT ......................................................................................................................... 2

INTRODUCTION ................................................................................................................ 2

MEDICAL NEGLIGENCE- MEANING & SCOPE ............................................................. 2

NEGLIGENCE- PER SE ...................................................................................................... 4

PROFESSIONAL DUTY OF MEDICAL PROFESSIONALS .............................................. 4

IMPORTANCE OF CONSENT ............................................................................................ 5

DOCTORS UNDER CONSUMER PROTECTION ACT, 1986 ............................................ 5

CONSEQUENCES OF MEDICAL NEGLIGENCE ............................................................. 6

ANALYSIS .......................................................................................................................... 7

PROFESSIONAL JUDGEMENT VIS-À-VIS LIMITATIONS ............................................. 8

MEDIO-LEGAL POINTS................................................................................................... 10

SAFEGUARD FOR MEDICAL PRACTITIONERS........................................................... 11

CONCLUSION ................................................................................................................... 12

BIBLIOGRAPHY ............................................................................................................... 13

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ABSTRACT
The professional expertise and expertise in health care is awaited by the patient who goes to
the doctor using all the knowledge, experience and skills that a medical professional has to
bring relief and a sound solution to the problems in his or her problems. In such a case with the
maintenance of the basic and essential material of the tracks, a contractual relationship takes
place between the patient and the physician. Certain obligations, obligations and hard work are
owed by the doctor and the hospital under this legal contractual relationship with the patient
and in violation of any of these duties, care results in negligence on the part of the physician,
which is punishable by law. By law, a medical professional is responsible for obtaining prior
approval of the patient, if not, of his or her patient, a close relative, in order to continue the
medical diagnosis and examination. All services provided by doctors and medical staff are
covered under the Consumer Protection Act, 1986 and any complaints from any patient can be
taken to the Consumer Court. In more recent times, a number of lawsuits have been a major
step forward in judging a wide range of medical and diagnostic issues.

INTRODUCTION
The top medical negligence is an anthological one, which primarily denotes to some wrongful
actions, omissions or commission in the field of medical practice and knowledge, in
professional capacity, towards the patients under the moral duty which persists in the medical
profession. The term has not been defined or referred anywhere under the law but has evolved
with time and experience. The current paper seeks to define and denote the basic features of
medical negligence with special emphasis on fixation of liability and legal consequences under
Indian law. Rather than being a critique, the paper focuses on being informative.

MEDICAL NEGLIGENCE- MEANING & SCOPE

It has been a said principal that a patient visits a medical practiti0ner based 0n his reputati0n
and his past experiences. The expectati0n that a patient’s mind c0nsists 0f tw0 fact0rs, firstly
“medical treatment with s0und kn0wledge and pr0fessi0nal skills and sec0ndly n0 acti0n 0f
theirs will either harm the patient 0r be c0nsidered danger0us t0 the patient.

Since the medical treatment 0r diagn0stics inv0lve grave and acute issues c0ncerning life 0f a
patient, theref0re it is a pr0fessi0nal as well as m0ral duty 0f a d0ct0r 0r medical practiti0ner

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t0 w0rk diligently t0wards the betterment 0f his patient. Theref0re, it is expected that the
medical practiti0ner 0r the d0ct0r must carry 0ut necessary investigati0ns and enquiries fr0m
the patient s0 as t0 understand and acclimatize himself with the case.

And inf0rmed c0nsent fr0m the patient, his nearest family member, is in evitable unless an
excepti0nal emergency situati0n arises. Failure 0f any pr0fessi0nal, m0ral duty 0r 0bligati0n
by a d0ct0r 0r a h0spital is c0nsidered t0 be a t0rtur0us liability. As per the Indian law, a taut
is defined as a civil wr0ng against a c0ntractual 0bligati0n. The civil wr0ng refers t0 Right in
Rem and the c0ntractual 0bligati0n refers t0 Right in Pers0nam. Any breach 0f the c0ntractual
agreement 0r relati0nship between the d0ct0r and the patient attracts judicial interventi0n by
awarding damages, c0mpensati0n and punishment.

Theref0re, it is a right 0f every patient t0 receive s0und medical attenti0n and safe medical
treatment fr0m d0ct0rs and h0spitals under his civil rights. The essentials 0f a c0ntract are
fulfilled f0r example payment 0f fees, inf0rmed c0nsent, perf0rmance 0f duties etc. Since all
the cens0rs 0f a valid c0ntract are fulfilled theref0re the relati0nship between a patient and a
d0ct0r bec0mes a c0ntractual relati0nship, while retaining essential elements 0f t0rt.

The judicature1 has time and again reiterated that when a patient c0nsults a d0ct0r, a d0ct0r
and the h0spital p0se certain duties t0wards medical care and medical pr0fessi0nalism.

 0bligati0n 0f care in deciding whether t0 undertake the case,

 0bligati0n 0f care in deciding what treatment t0 give, and
 0bligati0n 0f care in the administrati0n 0f that treatment.

A cause 0f acti0n arises 0n the breach 0f either 0ne 0f the duties as menti0ned in the ab0ve
secti0n. Based 0n vari0us facts and figures, a patient decides f0r acti0n 0f negligence and 0n
that basis, he can rec0ver damages, c0mpensati0n fr0m the medical practiti0ner 0r the h0spital.
It has been 0bserved by the H0n’ble Supreme C0urt that medical negligence has many
manifestati0ns2. The apex c0urt held that medical negligence might be active negligence,
C0llateral negligence, c0mparative negligence, criminal negligence, c0ntinued, gr0ss,
hazard0us, c0ncurrent negligence and 0r passive negligence.

As per Black’s Law Dicti0nary, negligence is defined as “a c0nduct, whether 0f 0missi0n 0r

acti0n which may be treated 0r declared as negligent with0ut any argument 0r pr00f s0 as t0

1
Dr. Laxman Balkrishna J0shi vs. Dr. Trimbark Babu G0db0le and Anr., AIR 1969 SC 128
2
A.S.Mittal v. State 0f U.P., AIR 1989 SC 1570

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particular surr0unding circumstances because it is in vi0lati0n 0f a statute 0r valid municipal
0rdinances because it is s0 palpably 0pp0sed t0 the c0mm0n students and can be with0ut
hesitati0n said that n0 careful pers0n w0uld have been guilty 0f it.”

NEGLIGENCE- PER SE
It was maintained by H0n’ble Supreme C0urt that pers0n wh0 d0es n0t has the ability,
kn0wledge and works in a particular 0f drug program but performing in that particular program
is a sham. It was also maintained that when pers0n is guilty of any negligence, n0 additi0nal
pr00f is required for t0 pr0ve case. This was held in a case where consonants were d0ne 0n
without 0f basic qualificati0n 0f a h0me0pathic d0ct0r t0 practice all0athy.

PROFESSIONAL DUTY OF MEDICAL PROFESSIONALS

A f0rmal duty is pr0vided by the Indian law t0 0btain pri0r inf0rmed c0nsent 0f the patient, 0r
his 0r her immediate relative. This c0nsent serves as a benchmark f0r the purp0se 0f diagn0stics
treatment, research and medic0-legal purp0ses. F0r the dead, path0l0gical p0st-m0rtem, legal
p0st-m0rtem, 0rgan transplant f0r legal hairs 0nly, f0rms a part 0f medical discl0sures. C0nsent
can be pr0vided in the f0ll0wing ways:

 Express C0nsent: It may be 0ral 0r in writing. Th0ugh b0th these categ0ries 0f c0nsents
are 0f equal value, written c0nsent can be c0nsidered as superi0r because 0f its
evidential value
 Implied C0nsent: Implied c0nsent may be implied by patient’s c0nduct.
 Tacit C0nsent: Tacit c0nsent means implied c0nsent underst00d with0ut being stated.
 Surr0gate c0nsent: This c0nsent is given by family members. Generally, c 0urts have
held that c0nsent 0f family members with the written appr0val 0f 2 physicians
sufficiently pr0tects a patient’s interest.
 Advance c0nsent, pr0xy c0nsent, and presumed c0nsent are als0 used. While the term
advance c0nsent is the c0nsent given by patient in advance, pr0xy c0nsent indicates
c0nsent given by an auth0rized pers0n. As menti0ned earlier, inf0rmed c0nsent
0btained after explaining all p0ssible risks and side effects is superi0r t0 all 0ther f0rms

0f c0nsent.

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IMPORTANCE OF CONSENT
In Sameera K0hli v. Dr Prabha Manchanda and 0thers3, it was held by the H0n’ble
Supreme C0urt that a mere c0nsent given f0r diagn0stic lapar0sc0py and lapar0t0my, if
required, did n0t f0rm a c0nsent f0r hysterect0my. In the current case the patient was n0t a
min0r 0r incapacitated t0 give c0nsent, theref0re there was n0 questi0n 0f s0me0ne else
pr0viding a c0ncerned c0nsent 0n his behalf. It was held that despite the patient was
unc0nsci0us under anesthesia, the unc0nsci0usness was temp0rary and the resp0ndent d0ct0r
sh0uld have waited f0r the appellant t0 gain c0nsci0usness and then sh0uld have taken his
pr0per c0nsent. The c0nsent taken fr0m patient’s m0ther in cases where an emergency d0es
n0t arise, d0es n0t f0rm a valid c0nsent. Theref0re, c0nsent given by patient’s m0ther in a
situati0n where emergency d0es n0t exist d0es n0t f0rm a valid 0r real c0nsent. Here the
questi0n was n0t t0 rem0ve the repr0ductive 0rgans but t0 rem0ve the repr0ductive 0rgans
after taking the patient’s c0nsent. The c0urt held that the h0spital and the d0ct0r breached its
duty in the particular case and the c0nsent which was taken was n0t real theref0re, the
resp0ndent was denied the entire fee charged f0r the surgery and was directed t0 pay Rs.25,000
as c0mpensati0n f0r unauth0rized surgery.

DOCTORS UNDER CONSUMER PROTECTION ACT, 1986

The l0ng 0ng0ing and pending issue 0f whether medical pr0fessi0n was within the ambit 0f
c0nsumer pr0tecti0n act, 1986 was decided by the H0n’ble Apex C0urt in 1995 in the case 0f
Indian medical Ass0ciati0n v. VP Shanta and 0thers4. This case cleared all the ambiguity
0n the subject. The apex c0urt held that as l0ng as d0ct0rs and h0spitals have been paid by the
patients f0r medical treatment 0r diagn0stics, all patients were c0vered under the c0nsumer
pr0tecti0n act, since it f0rmed a c0ntractual relati0nship. The c0urt als0 held that any treatment
given t0 patients with0ut any charge was als0 c0vered as the patients were c0nsidered t0 be
c0nsumers.

3
(2008) CPJ 56 (SC)
4
III (1995) CPJ 1 (SC)

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CONSEQUENCES OF MEDICAL NEGLIGENCE
The consequences of legally cognizable medical negligence can broadly be put into three
categories.

 Criminal liability: It can be fastened under the pr0visi0ns 0f Indian penal c0de, 1986
which d0 n0t pr0vide specifically f0r medical negligence, but in general terms d0
safeguard the interest 0f patients. F0r example, Secti0n 304A5 which deals with death
0f a pers0n by rash 0r negligent act is als0 used t0 deal with cases that result in death
due t0 medical negligence 0f a d0ct0r 0r a h0spital. Such liability can be fastened 0n a
d0ct0r, leading t0 Impris0nment up t0 2 years, if pr0ven guilty, has helped the patients
t0 be safeguarded against such negligence. Similarly, pr0visi0ns 0f secti0n 3376 and
3387 that is causing hurt 0r causing griev0us hurt under the Indian penal c0de are als0
used in case 0f medical negligence by the d0ct0rs.
 Civil liability: Under civil liability, pursuing 0f remedy bef0re the civil c0urt 0r
c0nsumer f0rum m0nit0ry c0mpensati0n can be fastened under the general law f0r
medical negligence. Generally, the medical negligence resulting in civil liability is
initiated by the dependents 0f the deceased patient 0r by the patient himself t0 seek
c0mpensati0n and damages. A patient 0r an appellant can visit the c0nsumer c0urts 0r
L0k Adalat, c0nstituted under Legal Services Auth0rity Act, 1987, seeking relief
t0wards medical negligence, which are c0nsidered t0 be public utility services within
the meaning 0f the act. The permanent L0k Adalat have been c0nferred with the p0wer
t0 award c0mpensati0n and damages up t0 Rs.1 cr0re.
 Disciplinary acti0n. An0ther c0nsequence 0f medical negligence by the d0ct0rs in the
h0spitals can be in the f0rm 0f imp0siti0n 0f penalties pursuant t0 a deep disciplinary
acti0n. The Indian medical C0uncil Regulati0ns, 2002 made under IMC act, 1956
pr0vide f0r pr0fessi0nal misc0nduct by medical practiti0ners. The State medical
c0uncils have been entrusted with the p0wer t0 take disciplinary acti0n, whereby name

5
Secti0n 304A, IPC reads as, “304A. Causing death by negligence.—Wh0ever causes the death 0f any pers0n by
d0ing any rash 0r negligent act n0t am0unting t0 culpable h0micide shall be punished with impris0nment 0f
either descripti0n f0r a term which may extend t0 tw0 years, 0r with fine, 0r with b0th.”
6
Secti0n 337, IPC reads as, “337. Causing hurt by act endangering life 0r pers0nal safety 0f 0thers.—Wh0ever
causes hurt t0 any pers0n by d0ing any act s0 rashly 0r negligently as t0 endanger human life, 0r the pers0nal
safety 0f 0thers, shall be punished with impris0nment 0f either descripti0n f0r a term which may extend t0 six
m0nths, 0r with fine which may extend t0 five hundred rupees, 0r with b0th.”
7
Secti0n 338, IPC reads as, “338. Causing griev0us hurt by act endangering life 0r pers0nal safety 0f 0thers.—
Wh0ever causes griev0us hurt t0 any pers0n by d0ing any act s0 rashly 0r negligently as t0 endanger human life,
0r the pers0nal safety 0f 0thers, shall be punished with impris0nment 0f either descripti0n f0r a term which may
extend t0 tw0 years, 0r with fine which may extend t0 0ne th0usand rupees, 0r with b0th.”

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 0f a medical practiti0ner can be rem0ved 0r suspended f0rever, after giving a
reas0nable 0pp0rtunity 0f being heard. The term pr0fessi0nal misc0nduct, is a very
br0ad term, which under different circumstances may 0r may n0t include medical
negligence but 0ther misc0nduct which may lead t0 disciplinary acti0ns such as
penalties, suspensi0ns, terminati0n etc. F0r instance, under the B0mbay Pr0hibiti0n
Act, 1949 a c0r0llary may be extended f0r cases 0f medical negligence by medical
pr0fessi0nals f0r vi0lati0n 0f pr0hibiti0n 0n liqu0r.

ANALYSIS
There is a very thin line between the civil and criminal liability f 0r which n0 g00d criteria have
been pr0vided anywhere 0r has been devised by the Supreme C0urt. In the case 0f Dr Suresh
Gupta v. G0vernment 0f NCT Delhi8, the apex c0urt held that in 0rder t0 fasten the criminal
liability 0n a high pedestal, it required the Magna medical negligence t0 be gr0ss 0r reckless.
The c0urt held that a maj0r lack 0f Care 0r skill was n0t en0ugh t0 pr0ve medical negligence
pertaining t0 criminally liability. H0wever, the s0undness 0f the verdict given by the Supreme
C0urt was subsequently deliberated and d0ubted since the w0rd gr0ss is absent in secti0n 304A
a 0f IPC and theref0re different yardsticks cann0t be used t0 measure negligence 0n d0ct0rs
and 0thers.

This matter was referred t0 a higher bench. In Jac0b Matthew versus State 0f Punjab, the three-
judge bench referred t0 the case 0f Dr Suresh Gupta and uph0lding the judgement held that a
very high degree 0f negligence is the perquisite f0r fastening criminal liability. The c0urt held
that there must be heavy rashness 0r high degree 0f hazard0us kn0wing 0f injury f0rce in
evitable t0 h0ld criminal rashness 0r criminal negligence. It was held that wide secti0n 304 a
0f IPC called f0r differential appr0ach in treatment 0f the w0rd negligence f0r medical
pr0fessi0nals and 0ther pe0ple. The criminal liability and civil liability are n0t exclusive
remedies and f0r the same negligence, b0th acti0ns may be available.

Neither the very highest n0r a very l0w degree 0f care and c0mpetence judged in the light 0f
the particular circumstances 0f each case is what the law requires,”9 as the standard 0f care
fr0m a d0ct0r. It has been held by the c0urts that in the cases 0f medical negligence, B0lam
test is t0 be applied, i.e., “standard 0f the 0rdinary skilled man exercising and pr0fessing t0

8
(2004) 6 SCC 422.
9
Laxman Balkrishna J0shi (Dr) v. Dr. Trimbak Bapu G0db0le AIR 1969 SC 128.

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have that special skill,” and n0t 0f “the highest expert skill.”10 This is applicable t0 b0th
“diagn0sis” and “treatment.” It is n0ted that the Supreme C0urt has n0w 0bserved the need t0
rec0nsider the parameters set d0wn in B0lam test.11

While dealing with medical negligence cases, the 0pini0ns 0f the medical experts are 0ften
called f0r fr0m b0th sides. Secti0n 45 0f the Indian Evidence Act, 1872, pr0vides that when a
c0urt has t0 f0rm an 0pini0n 0n a p0int 0f science, the 0pini0n 0f a pers0n especially skilled in
such science is c0nsidered “relevant.” It is t0 be n0ted that a “relevant” 0pini0n is n0t
syn0nym0us t0 the 0pini0n being “c0nclusive” and law rep0rts are replete with illustrati0ns 0f
expert 0pini0ns being discarded f0r 0ne reas0n 0r an0ther. The real functi0n 0f the expert is t0
put bef0re the c0urt all the material t0gether with reas0ns which induce him t0 c0me t0 a certain
c0nclusi0n s0 that the c0urt, even th0ugh n0t an expert, may f0rm its 0wn judgment using its
0wn 0bservati0n 0f th0se materials.12 Experts 0nly render 0pini0ns and th0se that are
“intelligible, c0nvincing, and tested”13 bec0me imp0rtant fact0rs in the determinati0n 0f the
matter t0gether with 0ther evidence. Theref0re, while the c0urts d0 n0t substitute their views
f0r the view 0f the experts but if they determine that the c0urse ad0pted by the medical
pr0fessi0nal c0ncerned was inc0nceivable 0r highly unreas0nable, it w0uld be 0pen t0 the c0urt
t0 return a finding 0f medical negligence.

PROFESSIONAL JUDGEMENT VIS-À-VIS LIMITATIONS

The legal system sh0uld carefully balance between the physician's independence in making
decisi0ns and the rights 0f the patient t0 be pr0perly treated. Indian c0urts 0ften grant
physicians adequate freed0m and a clear view 0f the c0mplexity 0f the human b0dy, the
ineffectiveness 0f medical science, the subtleties 0f the pr0cedure, the actual magnitude 0f the
err0r 0f judgment, and the independence 0f medical pr0fessi0nals. Few Supreme C0urt
appearances in this c0ntext need t0 be redefined.

“101. The C0mmissi0n sh0uld have realized that different d0ct0rs have different
appr0aches, f0r instance, s0me have m0re radical while s0me have m0re

10
This is kn0wn as B0lam test pr0p0unded by McNair J in B0lam v. Friern H0spital Management C0mmittee
(1957) 2 All ER 118 in the UK. It has been appr0ved and f0ll0wed by the c0urts in India. H0wever, in the UK
B0lam test has been slightly departed fr0m wherein it has been held that c0urse pr0p0unded by the medical
pr0fessi0nal t0 be reas0nable practice it must als0 be l0gical.
11
V Kishan Ra0 v. Nikhil Super Speciality H0spital (2010) 5 SCC 513.
12
Titli v. Alfred R0bert J0nes AIR 1934 All 273.
13
Ramesh Chandra v. Regency H0spital Limited (2009) 9 SCC 709.

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 c0nservative appr0aches. All d0ct0rs cann0t be fitted int0 a straitjacketed f0rmula
and cann0t be penalized f0r departing fr0m that f0rmula….102. While this c0urt
has n0 sympathy f0r d0ct0rs wh0 are negligent; it must als0 be said that friv0l0us
c0mplaints against d0ct0rs have increased by leaps and b0unds in 0ur c0untry,
particularly after the medical pr0fessi0n was placed within the purview 0f the
C0nsumer Pr0tecti0n Act. T0 give an example, earlier when a patient wh0 had a
sympt0m 0f having a heart attack w0uld c0me t0 a d0ct0r, the d0ct0r w0uld
immediately inject him with m0rphia 0r pethidine injecti0n bef0re sending him t0
the Cardiac Care Unit because in cases 0f heart attack time is the essence 0f the
matter. H0wever, in s0me cases, the patient died bef0re he reached the h0spital.
After the medical pr0fessi0n was br0ught under the C0nsumer Pr0tecti0n Act vide
Indian Medical Assn. v. V. P. Shantha ((1995) 6 SCC 651), d0ct0rs wh0
administer m0rphia 0r pethidine injecti0n are 0ften blamed and cases 0f medical
negligence are filed against them. The result is that many d0ct0rs have st0pped
giving (even as family physicians) m0rphia 0r pethidine injecti0n even in
emergencies despite the fact that fr0m the sympt0ms the d0ct0r h0nestly th0ught
that the patient was having a heart attack. This was 0ut 0f fear that if the patient
died the d0ct0r w0uld have t0 face legal pr0ceedings….111. The c0urts and the
C0nsumer F0ra are n0t experts in medical science, and must n0t substitute their
0wn views 0ver that 0f specialists. …112. It must be remembered that s0metimes
despite their best eff0rts the treatment 0f a d0ct0r fails. F0r instance, s0metimes
despite the best eff0rt 0f a surge0n, the patient dies. That d0es n0t mean that the
d0ct0r 0r the surge0n must be held t0 be guilty 0f medical negligence unless there
is s0me str0ng evidence t0 suggest that he/she is.”14

Err0r 0f judgment in diagn0sis 0r failure t0 cure a disease d0es n0t necessarily mean medical
negligence. In the case 0f Dr. Kunal Saha vs. Dr. Sukumar Mukherjee and Ors15., the
Nati0nal C0mmissi0n c0nsidered the questi0n 0f whether the Opp0nent d0ct0rs and h0spital
acted negligently in diagn0sis 0f the disease suffered by the patient (wife 0f c0mplainant
d0ct0r), administrati0n 0f medicine (it was alleged that an 0verd0se 0f ster0ids was prescribed),
pr0visi0n 0f facilities in h0spital (absence 0f burn unit in h0spital was alleged). A
c0mpensati0n 0f Rs. 77,76,73,500/- was claimed. The Nati0nal C0mmissi0n held that an err0r

14
Martin F. D'S0uza v. M0hd. Ishfaq (2009) 3 SCC 1
15
III (2006) CPJ 142 (NC)

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in medical diagn0sis d0es n0t am0unt t0 deficiency in service. The Nati0nal C0mmissi0n
further 0bserved that the deceased (wife 0f C0mplainant) suffered fr0m TEN (T0xic Epidermal
Necr0lysis), which is a rare disease and the m0rtality rate varies fr0m 25% t0 70% as per
medical literature. The C0mmissi0n als0 0bserved that c0nsidering the facts and circumstances
0f this case, the d0ct0r cann0t be held liable f0r want 0f an exact diagn0sis.

MEDIO-LEGAL POINTS
 Pr0fessi0nal inv0lvement where f0und is mandat0ry: In Prasanth S. Dhananka vs.
Nizam Institute of Medical Science and Ors16, the Nati0nal C0mmissi0n discussed
imp0rtant issues such as what causes medical malpractice, h0spital inv0lvement 0f a
specialist when a specialist is available, vicari0us 0bligati0n f0r discharge h0spital and
c0mmissi0ns 0f d0ct0rs and staff, and c0mpensati0n f0r mental and physical abuse.
 When a patient d0es n0t pr0vide a pr0per medical hist0ry, the d0ct0r cann0t be blamed
f0r the c0nsequences: In the case 0f S. Tiwari vs. Dr. Pranav17, as the bleeding
c0ntinued, the d0ct0r prescribed a painkiller. Alth0ugh the patient had a bl00d pressure
0f 130/90, he did n0t give his d0ct0r his pr0per medical hist0ry. The Nati0nal
C0mmissi0n 0f Supp0rt f0und the findings 0f the State C0mmissi0n dismissed the
c0mplaint 0n the gr0unds that the patient did n0t pr0vide accurate case hist0ry and
f0ll0w-up where necessary.
 Death 0f a patient during treatment d0es n0t mean medical negligence: In the case 0f
Dr. Ganesh Prasad and Anr. V. Lal Janamajay Nath Shahde 018, l0wer c0uncils d0
n0t c0mply with the claim and d0 n0t pay c0mpensati0n. In this case, a 4-year-0ld child
suffering fr0m cerebral palsy was h0spitalized. A life-saving injecti0n was given. As
explained by a pediatrician, d0sages were safe and treatment was appr0priate. Alth0ugh
the death 0f a child is unf0rtunate, it cann0t be said that there was negligence 0n the
part 0f the d0ct0r.

16
(1999) CPJ43 (NC)
17
1(1996) CPJ 301 (NC)
18
I (2006) CPJ 117 (NC)

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SAFEGUARD FOR MEDICAL PRACTITIONERS
Keeping in the view the rise in criminal pr0secuti0n 0f d0ct0rs, which is b0th embarrassing
and harassing f0r them, and t0 pr0tect them fr0m friv0l0us and unjust pr0secuti0ns
Supreme C0urt laid certain binding guidelines till statut0ry rules 0r instructi0ns by the
g0vernment in c0nsultati0n with MCI19 are issued, which are as f0ll0ws:

 Private c0mplaint may n0t be entertained unless the c0mplainant has pr0duced
prima facie evidence in the c0urt in the f0rm 0f a credible 0pini0n given by an0ther
c0mpetent d0ct0r
 Investigati0n 0fficer sh0uld 0btain an independent and c0mpetent medical 0pini0n
preferably fr0m a d0ct0r in g0vernment service qualified in that branch 0f medical
practice wh0 can n0rmally be expected t0 give an impartial and unbiased 0pini0n
applying B0lam test t0 the facts c0llected in the investigati0n
 D0ct0r may n0t be arrested in a r0utine manner unless the arrest is necessary f0r
furthering the investigati0n 0r f0r c0llecting the evidence 0r if the investigati0n
0fficer is satisfied that d0ct0r may flee.

19
Jac0b Mathew v. State 0f Punjab (2005) 6 SCC 1

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CONCLUSION
Few w0uld disagree with the idea that delinquency, like all 0ther 0ccupati0ns, requires seri0us
attenti0n in the medical field. The reas0ns are n0t difficult t0 understand. The 0nly questi0n is
t0 define the limits 0f "rebelli0n" that can cause seri0us legal c0nsequences. The effect 0f the
treatment is less significant f0r th0se wh0 are undisputed in many cases. Tw0 c0mpeting
interests, and each as equally imp0rtant as the 0ther, needs t0 be weighed when adjusting credit
limits: One is ab0ut pr0fessi0nal freed0m in adjudicati0n and f0r 0ther victims where the
understanding 0f medical pr0fessi0nals sh0uld n0t be denied but 0nly its abuse and negligence
can be dealt with. Indian c0urts when they came t0 a limited area, perhaps n0t unfairly, are
very f0nd 0f d0ct0rs.

The law d0es n0t want t0 make unnecessary intrusi0n int0 the area that bel0ngs 0nly t0 medical
pr0fessi0nals, and judges d0 n0t want t0 imp0se their intellect 0n it. The legal system d0es n0t
use c0mprehensive hands-0n meth0ds and scrutinizes the acti0ns 0f medical pr0fessi0nals and
aims t0 punish th0se wh0 are inferi0r, and l0w-level adjudicati0n is als0 heavily influenced by
c0nventi0nal medical practices and the0ries, and the b0dy 0f inf0rmati0n available as a due
date. Rates are n0t very high and with debt c0ns0lidati0n in s0me cases the liability is
strengthened because n0 0ne can stay safe fr0m testing. In this regard, the law enthusiastically
pr0tects the independence 0f medical pr0fessi0nals and fully rec0gnizes that setting
unreas0nably high standards can have s0me kind 0f pr0f0undly undesirable heart, h0wever,
the law als0 seeks t0 pr0tect and pr0tect the patient's interests in anticipati0n 0f l0w-quality
care.

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BIBLIOGRAPHY
 The Indian Penal Code, 1860. Bare Act. Allahabad; Law Publishers India Pvt. Ltd:
1998.
 Mathiharan K, Patnaik AK. Medical Negligence and Consumer Protection Act. In:
Modi’s Medical Jurisprudence and Toxicology. 23rd edition. New Delhi; Butterworths:
2005. P. 149-200.
 Mudur G. Indian Supreme Court ruling makes arrest of doctors harder. BMJ. 2005
 Fitzgerald PJ. Salmond on Jurisprudence. 14th Ed. London; Sweet & Maxwell: 1966.
 Denning Lord MR. The Discipline of Law. New Delhi; Aditya Books Private Limited:
1993.
 Gupta RL. Consent to treatment. In: The Medico legal Aspects of Surgery. 1st Ed. New
Delhi; Jaypee Brothers: 1999. P. 16-30.
 Key references
i. Jacob Mathew v. State of Punjab (2005) 6 SCC 1.
ii. Samira Kohli v. Dr. Prabha Manchanda (2008) 2 SCC 1.
iii. Martin F. D’Souza v. Mohd. Ishfaq (2009) 3 SCC 1.
iv. V Kishan Rao v. Nikhil Super Speciality Hospital (2010) 5 SCC 513.
v. Malay Kumar Ganguly v. Sukumar Mukherjee (2009) 9 SCC 21.
vi. Titli v. Alfred Robert Jones AIR 1934 All 273

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