Medical Negligence and Law in India

This paper defines and provides an overview of medical negligence, explains the different laws and remedies that can be sought by patients, and illustrates famous cases of medical negligence in India. It discusses the features of medical negligence, the rights of the patient, and the obligations of the doctor. The paper aims to provide an understanding of the degree of care and competence and the role of the doctors and the patients.

Running head: MEDICAL NEGLIGENCE AND LAW IN INDIA
MEDICAL NEGLIGENCE AND LAW IN INDIA
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1MEDICAL NEGLIGENCE AND LAW IN INDIA
Introduction:
In a medical field, it can be found that many medical negligence cases: it could be
doctor’s mistake or patient negligence for treatment. However, in the end doctors have to
suffer and end up in lose his degree or pay huge amount especially in India. Because in some
cases even asking about the history of patients as an example: dentist asked about the
diabetes to patient and patient has high diabetes and he knows that dentist would not extract
his teeth because of diabetes. Therefore, he lied to doctor and go for treatment but dentist was
not aware of his history and do not have any written record by patient. Dentist did his duty
about asking of history but patient lied and later on sued dentist for negligence.
This is just one case where not even a doctor’s fault but need to suffer. Now a day, medical
negligence case or medical malpractice is too much happening in India. I want to write my
research assignment on MEDICAL NEGLIGENCE AND LAW for the same. I will discuss
on what are the causes, reasons, elements and laws for the same.
The aim of this paper is to define and provide an overview of medical negligence,
explain the different law and remedies that can be sought by the patients in the light of
grievances and injury and illustrations of famous cases of medical negligence in India. In
addition the paper will attempt in understanding of the degree of care and competence and the
role of the doctors and the patients.

2MEDICAL NEGLIGENCE AND LAW IN INDIA
Discussion:
Medical negligence: Definition and overview
The term medical malpractice can be defined as an act of negligence committed by
the medical provider, a medical practitioner or a healthcare professional in the pursuit of his
duty. It has been referred as an omnibus term by scholars as it refers to wrongful actions or
omissions committed by professionals in the field of medicine during the pursuit of their
profession. Broadly it can be understood as performing something one would not commit in
one’s ordinary skill or the failure of the medical practitioner to perform their medical skills in
a proper manner1. Some of the illustrations of malpractices are keeping he rails of the hospital
bed in the upright position or the performance of open-heart surgery without taking the
necessary precautions. Medical malpractices are closely associated with informed consent. A
physician or a health practitioner needs to inform the patient about the potential of risks,
danger and the alternatives. In case the patient is aware of the situations and provide an
informed consent then the physician may able to contest the case. However, in case the
informed consent of the patient is not sought, then case will be registered against the health
practitioner. According to Agarwal (2016), some of the consequences of medical
malpractices in India are criminal liability, monetary liability and disciplinary action.
 Criminal liability is enshrined in IPC (Indian Penal Code), 1860 subsumes criminal
cases that are general and do not specifically cater to the cases pertaining to medical
negligence. For example, Section 304A of IPC is deals with cases related to death
caused by accident due to rash motor driving as well as negligence that leads to the
1 Swapna, L.A., Koppolu, P., Basil, T., Koppolu, D. and Baroudi, K., 2016. Awareness of Consumer Protection
Act among the dental fraternity in India. Journal of Orofacial Sciences, 8(1), p.27.

3MEDICAL NEGLIGENCE AND LAW IN INDIA
death of a patient caused by the medical institution. There are other common
provisions in IPC (Indian Penal Code) that are used in cases pertaining to medical
negligence and medical malpractices. These are Section 337 (causing hurt) and
section 338 (causing grievous hurt)2.
 Civil liability- This refers to the monetary compensation that can be that can be
sought by the aggrieved party in the pursuit of legal remedy before the civil court or
the consumer forums. In this case, the patients seek actions from the from the
imposition of civil liability on the accused medical professional is done by the
dependants associated with the deceased patient or the aggrieved patient himself or
herself. Apart from this, the family of the aggrieved patient or the patient
himself/herself can approach the Lok adalats. In seeking relief to services in a hospital
or dispensary those are considered to be the public utility services, the first step is to
find conciliation and the second step is to make determination of the merits of the
case3. Permanent lok adalats have been rendered with the power similar to that of the
civil courts in specific matters and the jurisdiction in these cases may reach Rs 1
crore.
 Disciplinary action-There may be another consequence of medical negligence -That
could take place through imposition of the penalties on the accused through
disciplinary action. The Indian Medical Council (IMC) governs the professional
misconduct of medical practitioners (Professional Conduct, Etiquette, and Ethics)
2 Agrawal, A., 2016. Medical negligence: Indian legal perspective. Annals of Indian Academy of
Neurology,19(Suppl 1), p.S9.
3 Haripriya, A. and Haripriya, V., 2014. Knowledge about medical law and its negligence among
doctors: A cross-sectional study. Int J Sci Res Publ, 4(5), pp.1-3.
3

4MEDICAL NEGLIGENCE AND LAW IN INDIA
Regulations, 2002, made under IMC Act, 1956. The Medical Council of India and the
State medical councils have the authority to seek appropriate disciplinary action
against the medical practitioner who has been accused. This is done by removing the
name of the person or the cancellation of registration. However, it needs to kept in
mind that professional negligence is an umbrella term and it may not necessarily
subsume medical negligence.
Features of medical negligence
The features of medical negligence should not be understood through the study of the
duty of the physicians, medical practitioners and other healthcare professionals. The
physician has the discretion to decide whether to take a case, the kind of medication to be
prescribed and to have the ultimate decision what should be done with the case4. It is the
discretion of the doctor to decide whether she/he would want to proceed with the case or
whether they do not want to undertake any procedure beyond their control. In all these, the
medical practitioner is expected to demonstrate a degree of knowledge and skill in exercising
a fair degree of care and concern. Negligence can be understood as breach of duty or care that
results in grievous injury and damage of the patients. There needs to be a causal relationship
between injury and the breach of trust for proceeding with the case of liability for negligence.
For example, when a patient is has faced 50 per cent burns and died within a period of 40
days due to wrong blood type transfusion despite receiving the appropriate care it can be said
that it was a case of medical negligence. This is because there is a causal relationship
4 Bagcchi, S., 2015. Medical negligence and substandard drugs caused deaths in Indian sterilisation programme,
report finds.BMJ: British Medical Journal (Online), 351.

5MEDICAL NEGLIGENCE AND LAW IN INDIA
between the wrong transfusion of blood and death that was caused due that negligence. It has
also been found that the line between civil liability and criminal liability often blurs. In the
Dr. Suresh Gupta vs. Govt. Of NCT Delhi, the Supreme Court ruled stated that it was an
incident of gross and reckless violence5. It was found that DR. Suresh Gupta that there was
inadvertence and a certain degree of care that made it a case of civil liability, however it was
not strong enough to call it a case of criminal liability. In this case, a young man lost his life
during the procedure of nasal deformity. This happened because for implanting cuffed
endotracheal tube of proper size to prevent the flow of blood from the wound to the
respiratory passage. The accused was prosecuted under the Section 304A IPC by the High
Court; however the Supreme Court kept it aside. Another case that needs to be discussed in
the light of medical negligence is the three-judge bench hearing of the Jacob Mathew vs.
State of Punjab case. In the context of the Jacob Matthew case, it was decided by the
Supreme Court that the issue of medical negligence have emerged from negligence of the
medical profession in adopting a differential treatment. The incident that took place was that
an aged patient was suffering from terminal cancer and was at an advanced stage.. //he was
experiencing difficulty in breathing and the oxygen cylinder that was attached to the mouth of
the patient was found to be empty. Before there could be any replacement made, the patient
died. During this case, the Supreme repealed the judgement of the High Court and concluded
that doctors cannot be criminally prosecuted. As observed by Agarwal (2016), he would not
be surprised to find that if different benches of the Supreme Court would come up with
different verdicts during each hearing. These two cases provide a glimpse into the
understanding of the medical negligence law in India. In the Dr. Suresh Gupta case and in the
Mathew Jacob case, the law held different views on the subject of medical negligence. It
5 Chopra, A., Goel, V., Gupta, N., Suri, V., Sagar, S. and Kaur, G., 2017. Awareness of Consumer Protection
Act (CPA) among dental fraternity of North India and its implications on the profession. Journal of Dental
Specialities, 5(1), pp.62-65

6MEDICAL NEGLIGENCE AND LAW IN INDIA
needs to be kept in mind that criminal and civil liability are not mutually exclusive and can be
applicable together in the context of medical negligence cases.
In cases that involve medical negligence, the aggrieved party has the initial onus of
proving the allegiance related to medical negligence and after this, the onus shifts on the
medical practitioner or the hospital administration to prove that there was no medical
negligence6. For seeking civil liability, it is not necessary to hold the doctor and the nurses
culpable for what had happened. For example, in case of an allegation that the doctor was
negligent because of his failure to use particular equipment and instead have used wrong
equipment, then the court would give the verdict by assessing the availability of the
equipment at that time. There are times when it is time difficult to prove that the equipment
was available at the time. In the context of cases pertaining to medical negligence, the
opinion of the both the sides are assessed and then the verdict is presented. According to the
Indian Evidence Act, 1872 when the court gives a verdict related to science, it has to seek the
opinion of the person who is an expert in that area and is skilled to provide a deeper insight
into the situation.
Rights of the patient
The doctor-patient relationships plays an important role in the fastening of the liability on
the doctor. The medical practitioner has greater obligation than the patient as the former is
understood to e the authority of knowledge and the latter is considered to be the who has
limited knowledge about medicine and ailments. Therefore, the doctor and the patient share a
fiduciary relationship. The doctor is expected to work in the best interest of the patient and
6 Kakkar, M., Thakkar, R., Karunakaran, A., Mishra, H., Dinesh, A. and Yadav, D., 2015. Professional
Negligence and its Legal Implication in Dental Practice: A Review. Journal of International Oral Health, 7(10),
p.148.

7MEDICAL NEGLIGENCE AND LAW IN INDIA
cannot resort to actions that are against the will of the patient. Patients are increasing
becoming aware about their rights in the Indian society7. According to Joga Rao (2009), there
has been a trend of growing litigation related to the medical professional or the established
liability. There is the patient-centred rights endeavours where there is the protection of the
patients are guaranteed8. In regard to the adjudicating process in respect to the medical
professional liability whether in case of a criminal court or the consumer forum, there are
common principles of law that are related to consent, negligence and breach of
confidentiality. Some of the important information in this light is as follows:
 Any consumer or a consumer recognized by the consumer association also known
as the voluntary consumer registered under the Companies Act, 1956 have the
right to file a case against the medical practitioner or the hospital administration in
the context of medical negligence9.
 The doctor has obligation towards the patients. However, it is not the duty of the
doctor to see that every patient who is visiting to him is cured. On the contrary,
the doctor has to ensure that he renders the patient with a reasonable degree of
competence and care.
 The term reasonable degree of competence and care indicate that an ordinary
competent member of the profession would practise their profession with skills in
the exercise of different circumstances. There is a distinction between standard of
7 Byard, R. and Payne-James, J., 2015. Encyclopedia of forensic and legal medicine. Academic Press.
8 Byard, R. and Payne-James, J., 2015. Encyclopedia of forensic and legal medicine. Academic Press.
9 Pegalis, S.E. and Bal, B.S., 2012. Closed medical negligence claims can drive patient safety and reduce
litigation. Clinical Orthopaedics and Related Research®, 470(5), pp.1398-1404.

8MEDICAL NEGLIGENCE AND LAW IN INDIA
care and degree of care. Standard of care needs to adhered to in all the cases. It
refers to the doctor being reasonable and not necessarily confirming to the highest
degree of care or the lowest degree if possible. The degree of care can be variable
and is contingent on the situation. In other words, it is used in referring to the need
to maintain reasonableness in every situation.
 Liability emerges when the patient has suffered injury due to the actions of the
doctor. However, the doctor is not liable for every injury of the patient. The
doctor is only liable for those injuries that have been a result of a breach of his
duty. With respect to causation, the court is of the opinion all the possible reasons
of the injury needs to be demonstrated by the aggrieved party before an action to
be taken. In case the injury occurs due to the negligence of the third party, or a
breach of duty or an accident, it needs to proved that it was the action of the
doctor that led to the injury of the patien10t. The liability takes place when the
plaintiff is able to shift the accusation on him or her of medical negligence.
Usually, a doctor is held responsible for the acts committed by him or her,
however, there are situations when the doctor may be held responsible for the
behaviour of others. For example, in case of surgery when a junior doctor is part
of the medical team of surgery and there emerges an act of negligence by the
person, the senior doctor will also be held accountable and therefore can be sued11.
10 Mani, R.K., 2015. Constitutional and legal protection for life support limitation in India. Indian journal of
palliative care,21(3), p.258.
11 Singh, K., Sharma, B., Singh, A. and Lal, A., 2017. Legal Liabilities and Duties of a Doctor: Part 1. The
Official Scientific Journal of Delhi Ophthalmological Society, 28(1), pp.47-50.

9MEDICAL NEGLIGENCE AND LAW IN INDIA
 In case of a charge of negligence is brought on the doctor, the burden of proving
the negligence is more on the aggrieved party than the doctor in the context of
India. For example, the landmark judgement of Laxman Balkrishnan vs. Dr.
Trimbak, AIR 1969 SC 128. Another important case related to medical negligence
where the court provided an interesting verdict is the Indian Medical Association
vs. Santha, where the Apex Court was of the view that the skills of the medical
practitioner varies from one physician to another physician.. The complainant
needs to prove the culpability of the doctor in terms of losing his life. Therefore
the complainant or the aggrieved party needs some solid evidence and merely
cannot accuse the aggrieved party. The Supreme Court of India is of the view that
failure of operations and its side effects cannot be termed as medical negligence.
 A medical practitioner needs to adopt standard of care whilst his professional
pursuit. There is post-operative infection or the shortening of legs of the patient,
the patient would not be able to accuse the doctor of medical negligence. In the
judgement of Martin F. D’Souza v. Mohd Ishfaq, the Honourable Supreme Court
of India has stated the medical concerns of the medical professionals about the
adjudicatory process that are embraced by the Courts and Forums in the cases of
alleged medical negligence that are hurled against the doctors12.
 According to the Supreme Court, both civil and criminal cases are filed against the
medical practitioners. Some of the pointers that need to be kept in mind are that
courts and judges are not experts in medical knowledge and therefore are not
specialists. It cannot be denied that the medical profession has become
12 Rai, J.J., Acharya, R.V. and Dave, D., 2013. Knowledge and Awareness among interns and
residents about medical law and negligence in a medical college in Vadodara–A Questionnaire
Study. Journal of Dental and Medical Sciences,3(4), pp.32-8.

10MEDICAL NEGLIGENCE AND LAW IN INDIA
commercialized and physicians tweak the Hippocratic Oath in the pursuit of their
profession however blaming the entire medical fraternity for the actions of few
doctors’ amounts to lacerating their integrity and competence. Despite the best
efforts and competency demonstrated by the doctors, there may emerge failure.
Hence, the doctor should not be held guilty for everything and labelling it as
medical negligence. There are times when the aggrieved party may be guilty. For
instance, a person may have diabetes and prefer to keep it a secret from the dentist
fearing that the dentist would perform the operation. However, when the patient
suffers the dentist is sued under the medical negligence.
Another view is that the legal system needs to strike a balance between the rights of
the patient and the autonomy of the doctor. It has been fund that Indian courts are usually
empathic towards the doctors as they recognize the complexity of the human body. Courts try
to protect the medical professionals; however, the courts do not resort to misplaced
sympathies. The courts recognize that there can be contributory negligence on the part of the
doctors that may contribute to the further worsening of the condition of the patient. To
prevent the occurrences of medical negligence, the Supreme Court has made it mandatory
that medicines should not be provided to anyone without a proper prescription13. A doctor
should not be relying on the versions of the patients completely during medical examination
of the symptoms but should engage in their own analysis that should include investigations
and tests. In case of any doubt, an experienced doctor should be consulted.
13 Tiwari, S.S., Martin, P. and Raman, S., 2017. Governing the Stem Cell Sector in India. In Safety, Ethics and
Regulations(pp. 247-262). Springer, Cham.

11MEDICAL NEGLIGENCE AND LAW IN INDIA
Conclusions:
This paper discussed about medical negligence in the context of India by integrating
the issues of law and health. Medical negligence is a complex and hence, contentious issue as
it involves understanding the human anatomy long with the ethics of medical professionals.
Both civil and criminal liabilities can be brought against the medical practitioner.
Disciplinary action can also be brought against the medical practitioner. One such illustration
would be suspension or cancellation of registration. However, proving the doctor or other
healthcare professionals guilty, the burden lies with the patients. There are situations when
the patient do not take proper responsibility and later sue the doctor of negligence. There
have been discussions on some of the prominent cases concerning medical negligence in
India to understand the nature of the law.
References and bibliography
1. Swapna, L.A., Koppolu, P., Basil, T., Koppolu, D. and Baroudi, K., 2016. Awareness
of Consumer Protection Act among the dental fraternity in India. Journal of Orofacial
Sciences, 8(1), p.27.
2. Agrawal, A., 2016. Medical negligence: Indian legal perspective. Annals of Indian
Academy of Neurology,19(Suppl 1), p.S9.
3. Haripriya, A. and Haripriya, V., 2014. Knowledge about medical law and its
negligence among doctors: A cross-sectional study. Int J Sci Res Publ, 4(5), pp.1-3.

12MEDICAL NEGLIGENCE AND LAW IN INDIA
4. Bagcchi, S., 2015. Medical negligence and substandard drugs caused deaths in Indian
sterilisation programme, report finds.BMJ: British Medical Journal (Online), 351.
5. Murthy, K.K., 2007. Medical negligence and the law. Indian J Med Ethics, 4(3),
pp.116-8.
6. Chopra, A., Goel, V., Gupta, N., Suri, V., Sagar, S. and Kaur, G., 2017. Awareness of
Consumer Protection Act (CPA) among dental fraternity of North India and its
implications on the profession. Journal of Dental Specialities, 5(1), pp.62-65.
7. Kakkar, M., Thakkar, R., Karunakaran, A., Mishra, H., Dinesh, A. and Yadav, D.,
2015. Professional Negligence and its Legal Implication in Dental Practice: A
Review. Journal of International Oral Health, 7(10), p.148.
8. Byard, R. and Payne-James, J., 2015. Encyclopedia of forensic and legal medicine.
Academic Press.
9. Pegalis, S.E. and Bal, B.S., 2012. Closed medical negligence claims can drive patient
safety and reduce litigation. Clinical Orthopaedics and Related Research®, 470(5),
pp.1398-1404.
10. Mani, R.K., 2015. Constitutional and legal protection for life support limitation in
India. Indian journal of palliative care,21(3), p.258.
11. Singh, K., Sharma, B., Singh, A. and Lal, A., 2017. Legal Liabilities and Duties of a
Doctor: Part 1. The Official Scientific Journal of Delhi Ophthalmological
Society, 28(1), pp.47-50.
12. Rai, J.J., Acharya, R.V. and Dave, D., 2013. Knowledge and Awareness among
interns and residents about medical law and negligence in a medical college in
Vadodara–A Questionnaire Study. Journal of Dental and Medical Sciences,3(4),
pp.32-8.

13MEDICAL NEGLIGENCE AND LAW IN INDIA
13. Tiwari, S.S., Martin, P. and Raman, S., 2017. Governing the Stem Cell Sector in
India. In Safety, Ethics and Regulations(pp. 247-262). Springer, Cham.
14. Rao, S.J., 2009. Medical negligence liability under the consumer protection act: A
review of judicial perspective.Indian journal of urology: IJU: journal of the
Urological Society of India, 25(3), p.361.