Consumer Rights protection

Medical Negligence Liability- India

An act of medical negligence may attract the following liabilities under Civil and Criminal law in India:Civil liability as under Law of Torts and breach of contract

a. Civil liability as under Law of Torts and breach of contract

b. Criminal liability under the Indian Penal Code, 1860

As per the Supreme Court’s guidelines in the landmark case of Jacob Mathew[1], negligence differs under both civil and criminal law. Under civil law, especially Tort, the amount of damages incurred determines the extent of liability. Unlike under criminal law, wherein to establish criminal liability on part of the medical professional, the standard of negligence to be proved must be high enough to be construed as ‘gross negligence’ or ‘recklessness’. It must possess the ingredient of mens rea (guilty intent).

Medical Negligence- Burden of proof – The onus or burden of proof in medical negligence cases in India lies upon the complainant. In civil law, the doctrine of res ipsa loquitor (negligence from the very nature of accident) is applied to determine the burden of proof.

Legal remedies available in the event of medical negligence[2]

a. Complaint to State Medical Council;

b. Filing a civil suit citing Tort or breach of contract;

c. Filing a criminal suit citing ‘gross negligence’;

d. Complaint under the Consumer Protection Act, 2019

  1. What constitutes as medical negligence?

Medical negligence is defined as failure to act in accordance with the standards of reasonably competent medical men at the time[3]. As per the Halsbury Law of England, an act of medical negligence would possess the following essentials[4]:

a. A duty of medical professional to exercise due care while engaging in medical practices towards patient;

b. A breach of such duty by the medial professional;

c. Damages or injury caused to the patient due to such breach

Test for determining medical negligence –

In India, the Bolam Test as laid down in Bolam vs. Friem Hospital Management Committee[5]judges whether the person charged has been negligent prk not, would be that of an ordinary competent person exercising ordinary skill in that profession. Therefore, an act of medical negligence may occur wherein the medical professional either did not possess the requisite skill and knowledge, or, did not exercise the same with reasonable competence. It is not expedient that medical professionals must possess the highest level of expertise or skills in their discipline. It is only expected of them to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.

Since there are more than one reasonable ways to perform medical functions. Preference given to one over the other, error in judgment while determining the most appropriate course of treatment over others or mere misfortunes cannot be construed as negligence.

When a medical practitioner attends to a patient, such a practitioner is liable for the following:

a. A duty of care in deciding whether to undertake a case. A blatant refusal to attend to a patient would be regarded as medical negligence.

b. A duty of care in deciding what treatment to give

c. A duty of care in the administration of the treatment

The following acts are a few examples of medical negligence:

  • Failure to attend to a patient
  • Performing medical procedures in a callous manner
  • Leaving foreign particles inside the patient’s body post-surgery
  • Breach of doctor-patient confidentiality
  • Removal of organs without due cause
  • Lack of preventive measures taken by the hospital staff
  • Failure of sterilisation of operation wards

2. Burden of proof in medical negligence cases

In an act of medical negligence, the burden of proof regarding medical negligence towards a practitioner or hospital ordinarily rests upon the complainant in civil suits or the plaintiff in criminal suits. Once the complainant sufficiently establishes a prima facie case, the burden shifts upon the shoulders of such practitioner or hospital to show beyond reasonable doubt that no act of negligence was undertaken. Furthermore, the doctrine of res ipsa loquitor i.e. negligence from the very nature of accident is applied to determine the burden of proof especially in Torts[6].

In a criminal suit, in order to establish a prima facie case of negligence, a complaint must have evidence in the form of credible opinion of another competent medical professional. Absence of an expert opinion regarding medical negligence or insufficient substantial evidence to show gross negligence can result in dismissal of such criminal prosecution[7]. Defences as under Sections 80 (Accident), 81 (Act likely to cause harm, but done without criminal intent and to prevent other harm) and Section 88 (Act not intended to cause death, performed under good faith for such person’s benefit and by his consent) of the Indian Penal Code, 1860, can be pleaded by medical professionals.

In Dr. Tokugha Yeptomi vs. Apollo Hospital Enterprises Ltd. and Anr.[8] disclosure of HIV records of the patient to his fiancée was not held as medical negligence as the Code of Medical Ethics carves out an exception to the rule of confidentiality and permits the disclosure of medical records if there is an immediate or future health risk to others. The Supreme Court had opined that patient’s right to privacy is enshrined under Article 21 of the Constitution, however, the same is not absolute and subject to the protection of rights and freedom of others.

3. Medical negligence liability under the Consumer Protection Act, 2019

As per the Supreme Court’s ruling in Indian Medical Association vs. V.P. Shantha and Ors.[9] patients aggrieved by any deficiency in treatment, from both private clinics and Govt. hospitals, are entitled to seek damages under the Consumer Protection Act, 1956, as services rendered to a patient by a medical practitioner by way of consultation, diagnosis and treatment, both medical and surgical, would fall within the ambit of ‘service’ as per Section 2(1)(o) (now Section 2(42)[10]) of the Consumer Protection Act. Services of medical nature are categorised as contract for personal service and not as a contract of personal service. 

As per Section 2(7)(ii)[11] of the Consumer Protection Act, 2019 a ‘consumer’ is defined as a person who hires or avails any service for a consideration and any deficiency in the service by way of any act of negligence or omission or commission by a person which causes injury to the consumer[12] is sufficient to institute a complaint. As per Section 2 (23), injury under the Act is deemed to include any injury caused to any person, in body or mind[13].

Note – Any service offered by the medical professional free of charge will not fall within the ambit of the Act.

In lieu of the same, a complaint can be filed in writing at the District, State or National level in accordance with the Act and Rules[14]. Jurisdiction to entertain a fresh complaint is dependent upon the quantum of compensation paid in exchange for such medical service –

a. District Commission – consideration does not exceed INR 1 crore

b. State Commission – consideration exceeds INR 1 crore but does not exceed INR 10 crore

c. National Commission – consideration exceeds INR 10 crore

4. Payment of compensation in medical negligence cases

The right to receive compensation can be exercised against the person guilty of such medical negligence. A patient can receive pecuniary compensation or damages by either – a) filing a civil suit of Tort or b) by filing a complaint as under the Consumer Protection Act, 2019. As such there is no fixed amount of damages to be granted in an act of medical negligence and each case is determined independently depending upon the severity of negligence. The nature of this profession implies diagnosis and treatment will differ from doctor to doctor and hence, an act of negligence has to be determined with an acute reasoning[15].

Factors such as loss of income from such negligence, medical costs incurred and imminent, even emotional loss is factored in by Courts and Tribunals while determining the amount of damages. Removal of uterus of an unmarried woman without her consent did not only result in physical injuries but also lead to suffering of post-traumatic stress disorder and was awarded compensation worth INR 2 lacs by the hospital[16]. Leaving foreign matters behind in patient’s body attract a heavier penalty as the same results in severe physical pain and further medical treatments.

Compensation will not be awarded in cases where the medical procedures were conducted free of cost in Government hospitals as the same do not fall in the purview of ‘service’ as per the Consumer Protection Act, 2019[17].


[1] Jacob Mathew vs. State Of Punjab and Anr. (2005) 6 SCC 1

[2] Progress in Medicine: Compensation and medical negligence in India: Does the system need a quick fix or an overhaul?; https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5109756/#ref4; accessed on June 05, 2020

[3] Moni v. State of Kerala SA. No. 832 of 2000(G)

[4] Ibid Halsbury’s Laws of England, 4th Edn., Vol.26 pp.17-18

[5] (1957) 1 WLR 582

[6]Supra Note 3

[7] Sudesh Vs. State Of UP. 2012 Cr LJ 1460 (All)

[8] 1998 CPJ 132 (SC); http://courtverdict.com/supreme-court-of-india/dr-tokugha-yepthomi-vs-apollo-hospital-enterprises-ltd-anr; accessed on June 04, 2020

[9] III (1995) C.P.J. 1 (SC); AIR 1996 S.C. 550

[10] Section 2(42) Service – means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service; https://consumeraffairs.nic.in/sites/default/files/CP%20Act%202019.pdf; accessed on June 05, 2020

[11] Section 2(7)(ii) Consumer –  hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose; https://consumeraffairs.nic.in/sites/default/files/CP%20Act%202019.pdf; accessed on June 05, 2020

[12] Section 2(11) Deficiency; https://consumeraffairs.nic.in/sites/default/files/CP%20Act%202019.pdf; accessed on June 05, 2020

[13] Section 2 (23) “injury” means any harm whatever illegally caused to any person, in body, mind or property; https://consumeraffairs.nic.in/sites/default/files/CP%20Act%202019.pdf; accessed on June 05, 2020

[14] Section 2(6), 34, 47 and 58 of the Consumer Protection Act, 2019; https://consumeraffairs.nic.in/sites/default/files/CP%20Act%202019.pdf; accessed on June 05, 2020

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

[16] Lakshmi Rajan vs. Malar Hospital Ltd. III (1998) CPJ 586 (Tamil Nadu SCDRC)

[17] Paramjit Kaur vs. State of Punjab II (1997) CPJ 394 (Punjab SCDRC)

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