Medical Negligence India

April 22, 2021
Medical & Medicines

By Priya Adlakha and Nihit Nagpal

Medical profession is considered to be a noble profession however, it has been time and again placed under scrutiny and so have all persons working in this profession. Medical negligence is considered to be one of the most crucial concerns not just in our country but throughout the world. The primary reason is that numerous cases have been reported where an under qualified medical professional has been taken under inquiry for not taking reasonable care during the time of operation, diagnosis, etc.

What is medical negligence?

While considering the issue, the Hon’ble Supreme Court in Kusum Sharma & Ors. v. Batra Hospital & Medical Research Centre and Ors placed reference to the Halsbury’s Laws of England, 4th Edn., Vol. 26 pp. 17-18, wherein it was defined as “22. Negligence. – Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.”[1]

Thus, there are 3 components of medical negligence:

  • Existence of legal duty
  • Breach of legal duty
  • Damage caused by such breach

There are various kinds of situations which amount to medical negligence by a medical professional such as incorrect diagnosis, deferred diagnosis, inaccurate surgery, long term negligent treatment, childbirth and labor malpractice, needless surgery and erroneous administration of anesthesia etc.

In Vinod Jain vs. Santokba Durlabhji Memorial Hospital and Ors. [2], the Hon’ble Supreme Court observed that the test for negligence shall be from the view point that a doctor who has been accredited with a special skill or competence but does not possess highest expert skill, it would in such case be sufficient that he exercises skill of an ordinary competent man under similar scenario. This is primarily done for greater good of the community at large, to prevent the doctors from thinking about their own safety instead of the safety of the patients.

What does not amount to medical negligence?

If a patient has suffered an injury the doctor might not be held liable for negligence. In case of error of judgement by the doctor, he shall not be charged against any such actions. Even doctors are humans and, hence are prone to make mistakes, and therefore, they shall be allowed some relief. Merely based on the fact that the decision of the doctor did not turn out to be favorable, he cannot be held against such error in judgement. The Courts have observed that merely because the doctor choose an different procedure/ treatment to cure the problem and it did not work as expected, will not make him liable. One must prove that there was breach of duty on his part. A doctor performing his duty with due care and caution could not be held liable for negligence.[3]  However, where error in judgement was due to a negligent act, it shall then be termed breach of duty and the doctor shall be held liable for his actions.

Duty of Care

The Hon’ble Supreme Court in Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole[4] had observed that every doctor must exercise reasonable “standard of care” that are set out in the profession. Any breach towards these duties shall hold him liable for medical negligence.

The National Consumer Disputes Redressal Commission in Chandigarh Clinical Laboratory vs Jagjeet Kaur upheld the findings of the District and State commission wherein the appellant was directed to pay the complainant a compensation of Rs.25,000 along with cost of Rs. 2,000. The appellant laboratory had issued the patient with wrong reports for which the Hon’ble Commission held that the appellant had “duty of care” to give accurate findings to the patient and failure of the appellant to take due care shall amount to medical negligence.[5]

When does the liability arise?

A medical professional or hospital shall be held liable for all actions against the patients where they have not taken proper standard of care and it has resulted in suffering on part of the patient. The burden of proof shall lie on the complainant to prove a case of negligence. They have to first establish that there was a duty of care on part of the accused and that, there was breach of such duty.

The State Consumer Disputes Redressal Commission of Jharkhand in Jagdish Prasad Singh v. Dr. A.K.Chatterjee directed the opposite party to pay a sum of Rs. 25,000 to the complainant as compensation for his mental agony and physical harassment and Rs. 5,000 as litigation cost. It was observed that the accused had failed to take due care to return the precise findings in the reports. Whether harm came to the patient or not would not be the criteria for case against negligence.

However, in some case the courts use the principle of “ipsa loquitur” which means things speak for itself.  In such a scenario, it is presumed that the medical professional has acted beneath the set standard of care causing negligence. Under this principle it is presumed that the injury could not have been caused from anything but the negligence on part of the medical professional. In practice, the use of this principle by the judge would mean that the negligence has already ensued. Here the burden shifts onto the doctor to prove the case otherwise. Few examples are leaving an object inside the patient’s body or operating the wrong patient.

Remedies- Medical Negligence

  1. Medical Council of India

An aggrieved party can file a complaint of negligence against a medical practitioner to the concerned State Medical Council as they have the power to take action against the concerned doctor by suspending or cancelling his registration. However, the Indian Medical Council Act, 1956 does not give them the power to compensate the aggrieved party.

The accused is required to file a complaint to the council precisely specifying all the facts and relevant details in the concerned matter. The council shall then allow the accused 30 days’ time to submit his reply. If the council is not satisfied with the reply then they shall call upon both the parties to present evidence in support of their claims.

  • Civil liability under Consumer Forum

An aggrieved person can approach the consumer courts to file a case against the accused person and the hospital. In Indian Medical Association vs. V.P. Santha[6] the Hon’ble Supreme Court observed that the medical practitioners are covered under the Consumer Protection Act, 1986 and the medical services rendered by them should be treated as services under section 2(1) (o) of the Consumer Protection Act, 1986. Similarly under the new Consumer Protection Act, 2019, the medical services shall fall under the ambit of services as mentioned in section 2(42) of the new Act. Any matter in medical negligence on the part of the service provider will be considered as deficiency under section 42(11) of the new Consumer Protection Act, 2019.

Any aggrieved person can claim damages for medical negligence against a doctor or a hospital. Section 69(1) of the Consumer Protection Act, 2019 lays down the time limit within which a complaint for medical negligence must be filed as 2 years from the date of injury.

  • Criminal liability

Under various provisions of Indian Penal Code, 1860 any person who acts negligently or rashly that results in threat to human life or personal safety or; results in death of a person then the person shall be punished with imprisonment and/or fine. However the court have observed that in a matter of negligence where a criminal case is being perused, the element of “mens rea” must be shown to exist. To check for criminal liability, it must be clearly shown that the accused did something or failed to do something which in the given circumstances no other medical professional in his ordinary senses and prudence would have done or failed to do.[7]

The aggrieved party will first file a complaint with the local police authority against the concerned person/persons. If no action is taken, the aggrieved party can file a criminal complaint under Criminal Procedure Code, 1973.


The patients while in pain approach the doctors for their treatment with a simple hope of speedy recovery. However, sometimes there are situations where the treatment do not go as planned, it may be because the result of natural course of life or due to the doctor’s fault. One thing which should be kept in mind is the fact that even they are humans and prone to making mistakes. However, any harm due to the negligent act on part of the doctor or medical staff shall attract liability. Any person aggrieved due to the medical negligence shall approach the abovementioned authorities/courts for compensation

[1] (2010) 3 SCC 480

[2] AIR2019SC1143

[3] Achutrao Haribhau khodwa and Ors v. the State of Maharashtra: 1996 SCC (2) 634

[4] 1969 AIR 128

[5] IV (2007) CPJ 157 NC

[6] 1995 SCC (6) 651

[7] Malay Kumar Ganguly  vs. Sukumar Mukherjee and Ors: AIR2010SC1162

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