Medical Negligence and Law in India

Running head: MEDICAL NEGLIGENCE AND LAW IN INDIA
MEDICAL NEGLIGENCE AND LAW IN INDIA
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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.

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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.

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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.
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