Required Higher Judicial Threshold To Adjudicate Medical Negligence: Urgent Need Of Reforms To Protect Licensed Physicians

Abstract

Medical negligence litigation in India has increasingly exposed licensed physicians to the risk of criminal prosecution and civil liability under standards that remain inconsistently applied. Landmark Supreme Court judgments such as Jacob Mathew v. State of Punjab and Martin D’Souza v. Mohd. Ishfaq sought to establish safeguards against frivolous or ill founded claims, emphasizing the need for judicial restraint and reliance on expert medical testimony. Yet, in practice, lower courts often bypass these thresholds, resulting in undue harassment of practitioners and erosion of professional confidence.

This paper argues for the urgent adoption of higher judicial thresholds in adjudicating medical negligence, drawing inspiration from the Connecticut Medical Malpractice Law provisions that mandate expert certification and preliminary review before trial. Such reforms would align Indian jurisprudence with global best practices, ensuring that only prima facie credible cases proceed, thereby balancing patient rights with physician protection. By integrating Connecticut’s statutory safeguards with the principles articulated in Jacob Mathew and Martin D’Souza, India can move toward a more equitable medico legal framework that upholds justice, preserves medical autonomy, and restores trust in the healthcare system.

Key Words

• Medical negligence
• Judicial threshold
• Physician protection
• Connecticut Medical Malpractice Law
• Jacob Mathew case
• Martin D’Souza case
• Medico legal reform

Core Legal Distinction Between Ordinary Negligence and Medical Negligence

Q. There is a basic and vital difference between negligent act of an ordinary person and that of treating physician (registered medical practitioner). While all physical injuries caused by an ordinary person, by a negligent act, are actionable ab initio, the opposite is true for medical acts.

All surgical procedures are to cause, intentionally, what is technically an injury, mostly grievous injuries under Sec 116, punishable under Sec 117 of the BNS. A surgeon, however, is duty bound to cause these injuries in the interest of the patient for his long term benefit. All medical interventions, invasive or non invasive, amount to injuries.

Ordinary Negligence Standard

• A negligent act by an ordinary person is actionable if it has the potential to cause injury.
• Actual injury is not always required.
• Examples include rash or drunken driving.

Medical Negligence Standard

• Medical negligence is not actionable unless there is injury.
• The act must also be illegal.
• Non injurious medical negligence acts fall within the jurisdiction of the Medical Council.

Question of Legal Justification

How justified it is to adjudicate medical negligence under the same legal principles as applied to negligence act of a non-medical person?

AI

Medical negligence cannot be adjudicated under exactly the same principles as ordinary negligence, because the physician’s duty inherently involves intentional injury for therapeutic benefit, whereas ordinary negligence involves unintended harm. Courts in India recognize this distinction, but still apply the broader negligence framework of tort law, with modifications to account for medical context.

Key Differences Between Ordinary Negligence and Medical Negligence

Nature of the Act

• Ordinary negligence: Any careless act that foreseeably causes harm (e.g., rash driving). Liability arises even if no injury occurs, provided the act had the potential to cause harm.
• Medical negligence: Physicians intentionally cause “injuries” (incisions, amputations, radiation) as part of treatment. These are lawful if done with consent and skill. Liability arises only when harm results from a breach of professional duty.

Consent and Legality

• Ordinary acts of negligence lack lawful justification.
• Medical acts are shielded by informed consent and professional duty. Without consent or if performed illegally, even therapeutic acts may become actionable.

Threshold for Actionability

• Ordinary negligence: Potential harm is enough (rash driving actionable even without accident).
• Medical negligence: Requires actual injury plus proof of breach of duty (e.g., wrong drug, wrong site surgery). Non-injurious lapses fall under disciplinary jurisdiction of the Medical Council.

Indian Legal Position

• Civil Liability: Medical negligence is treated as a civil wrong under tort law and adjudicated in consumer forums and civil courts.
• Criminal Liability: Only gross negligence leading to death or grievous injury attracts criminal liability under IPC/BNS provisions. Courts have repeatedly held that doctors should not be prosecuted for every mishap unless negligence is “gross”.
• Professional Oversight: Non-injurious negligence (e.g., poor record keeping, delayed diagnosis without harm) is handled by Medical Councils through disciplinary action.

Why Different Principles Are Justified

1. Doctrine of Therapeutic Privilege: Physicians are legally permitted to cause injuries for patient benefit. This makes their acts fundamentally different from ordinary negligence.
2. Higher Standard of Care: Doctors are judged against the “reasonable competent practitioner” standard, not the “reasonable man” standard.
3. Balancing Innovation and Liability: Overextending liability discourages medical practice and innovation. Courts therefore demand proof of injury and illegality before holding doctors liable.
4. Public Policy Consideration: Equating medical acts with ordinary negligence would criminalize routine surgeries, undermining healthcare delivery.

Risks of Applying Ordinary Negligence Principles to Medicine

• Over-criminalization: Every surgical cut could be treated as grievous hurt under Sec 116 BNS.
• Defensive Medicine: Doctors may avoid risky but necessary procedures to escape liability.
• Erosion of Trust: Patients may lose confidence if every adverse outcome is treated as negligence.

Conclusion

It is not justified to adjudicate medical negligence under the same principles as ordinary negligence. While both share the core idea of duty–breach–damage, medical negligence requires a specialized framework that accounts for:

• the intentional yet lawful infliction of injury,
• the necessity of consent,
• the higher professional standard of care, and
• the distinction between injurious vs. non-injurious lapses.

Thus, medical negligence is rightly treated as a civil wrong with professional oversight, and only gross, injurious breaches cross into criminal liability.

Q. Medical Negligence Is Actionable When It Causes Bodily Injuries. All Injuries Are Defined in BNS. How It Can Be a Civil Wrong?

AI: >

This is a sharp and important question. Let’s unpack it carefully:

The Legal Puzzle

You are right:

• Under the Bharatiya Nyaya Sanhita (BNS), all bodily injuries are defined and categorized (simple, grievous, etc.).
• A doctor’s act, when negligent, may indeed result in such injuries.

So why do courts often treat medical negligence as a civil wrong (tort) rather than automatically a criminal wrong?

Distinction Between Civil Wrong and Criminal Wrong

Civil Wrong (Tort/Consumer Law)	Criminal Wrong (BNS/IPC)
Focus: Compensation to the patient.	Focus: Punishment of the doctor.
Standard: Breach of duty of care by a doctor judged against the “reasonable competent practitioner” test.	Standard: Requires gross negligence or recklessness, not mere error.
Injury: Must be proven, but the remedy is damages (money, corrective treatment, etc.).	Injury: Must be grievous or fatal, and caused by conduct that is illegal or beyond accepted medical practice.
Jurisdiction: Consumer forums, civil courts.	Jurisdiction: Criminal courts.

Judicial Reasoning in India

Indian courts (notably in Jacob Mathew v. State of Punjab, 2005) have drawn a protective line:

• Every medical injury is not criminal.
• Only gross negligence (e.g., operating without anesthesia, leaving instruments inside the body, prescribing wrong drug knowingly) crosses into criminal liability.
• Otherwise, negligence is treated as a civil wrong, actionable for damages, because medicine inherently involves risk and intentional injury for therapeutic benefit.

Why Medical Negligence Is Civil Wrong First

1. Therapeutic Intent: Injuries are lawful if done with consent and skill. Negligence here is a breach of duty, not an unlawful assault.
2. Public Policy: Criminalizing every medical error would paralyze healthcare delivery.
3. Remedial Focus: Patients primarily need compensation and corrective care, which civil law provides.
4. Professional Oversight: Non-injurious negligence is handled by Medical Councils, reinforcing that not all lapses are crimes.

Conclusion

Medical negligence is actionable as a civil wrong because:

• The injury, though real, arises in a lawful therapeutic context.
• The law distinguishes between compensable harm (civil liability) and punishable misconduct (criminal liability).
• Only when negligence is gross, reckless, or illegal does it escalate into a criminal wrong under BNS.

So, while all injuries are defined in BNS, not all medically caused injuries are criminally actionable. The default route is civil liability, unless the facts show gross illegality.

Jacob Mathew v. State of Punjab, Supreme Court of India, 2005 – landmark case distinguishing civil and criminal medical negligence.

Question on Civil and Criminal Liability

Q. There is total mix-up between ‘civil wrong’ and ‘civil liability’ for criminal wrong (criminal offence). What is the basis to determine whether the offence caused, medical negligence, is civil or criminal? Who determines it? Does causing death by medical negligence, which, under the law is culpable homicide not amounting to murder, become a civil offence because the bereaved family chooses to file a complaint for monetary compensation only?

Acts of civil wrongs were well defined in V P Shantha v. MCI judgment viz operating on a wrong person, operating on wrong side, leaving swabs or instruments inside a body cavity or administrating a drug to a patient who is sensitive and allergic to the medicine administered, as detailed by you. To this are added administrative lapses of excess charges, unnecessary charges, wrong billing, inadequate infrastructural facilities etc.

Is not prosecuting a licensed medical practitioner for civil liability for a criminal offence under the summary trial of the Consumer Protection Act a judicial excess?

AI: Direct Answer

The distinction between civil wrong and criminal wrong in medical negligence depends on the nature of the act, the degree of negligence, and the forum where the complaint is filed. Civil liability arises when compensation is sought (tort or Consumer Protection Act), while criminal liability arises when the act meets the threshold of gross negligence under the Indian Penal Code (IPC).

The determination is made by the judicial authority—consumer forums for civil claims, and criminal courts for offences under IPC. A family’s choice to seek only compensation does not convert a criminal offence into a civil wrong; it merely limits the remedy pursued.

Basis of Civil vs Criminal Medical Negligence

Civil Wrong (Tort/Consumer Protection Act)

• Focuses on compensation for harm caused.
• Examples: wrong patient operated, wrong side surgery, leaving instruments inside, allergic drug administration (as noted in V.P. Shantha v. MCI).
• Administrative lapses like overcharging, wrong billing, or poor infrastructure also fall here.

Criminal Wrong (IPC)

• Requires gross negligence or recklessness, not mere error.
• Sections 304A (causing death by negligence), 337, 338 IPC apply.
• The Supreme Court in Jacob Mathew v. State of Punjab (2005) held that criminal liability requires a higher threshold—ordinary negligence is insufficient.

Civil vs Criminal: Core Distinction

Aspect	Civil Wrong	Criminal Wrong
Primary Focus	Compensation for harm caused.	Gross negligence or recklessness.
Nature of Fault	Negligence or administrative lapse.	Higher threshold than mere error.
Relevant Law	Tort / Consumer Protection Act.	IPC (Sections 304A, 337, 338).

Who Determines It?

• Consumer Forums → Decide civil liability under the Consumer Protection Act (CPA).
• Civil Courts → Handle tort claims for damages.
• Criminal Courts → Decide criminal liability under IPC.
• Judicial Officer’s Discretion → The forum and statute chosen determine whether the case is treated as civil or criminal.

Key Clarifications

• Choice of Remedy: If the bereaved family files only for compensation, the matter remains civil. But this does not erase the possibility of criminal prosecution if the State or complainant initiates proceedings under IPC.
• Culpable Homicide vs Negligence: Causing death by medical negligence is usually prosecuted under Section 304A IPC (death by negligence), not under culpable homicide (Section 299/304 IPC), unless there is intent or knowledge. Courts have consistently resisted equating medical negligence with culpable homicide.
• Judicial Excess Concern: Using the summary trial procedure of the Consumer Protection Act to adjudicate what is essentially a criminal offence would indeed be judicial excess. CPA forums are designed for consumer disputes and compensation, not for determining criminal guilt.

Risks and Trade-offs

• Risk of Over-criminalization: Doctors may face harassment if ordinary negligence is treated as criminal.
• Risk of Under-accountability: Patients may feel justice is denied if gross negligence is diluted into mere compensation.
• Judicial Safeguards: Courts emphasize that criminal liability must be reserved for gross or reckless acts, protecting practitioners from frivolous criminal charges.

Conclusion

• Civil vs Criminal Liability is not interchangeable.
• Civil wrongs (compensation) are adjudicated by consumer forums or civil courts.
• Criminal wrongs (punishment) are adjudicated by criminal courts under IPC.
• A family’s choice to seek damages does not negate criminal liability if the act meets IPC standards.
• Treating criminal offences as civil disputes under CPA is judicial excess and has been cautioned against by the Supreme Court.

Core Question on Medical Negligence

Q. To consider and prosecute ab initio a case of homicide by medical negligence as a civil offence for compensation, is different than after judicial determination that the alleged negligent act does not attract criminal liability. To consider it ab initio a civil negligence would require much higher ‘judicial threshold’. A civil trial for compensation for medical homicide, is more injurious to a medical practitioner than the monetary penalty. The Jacob Mathew judgment though a great help to prevent criminal harassment of licensed physician, does not cover the generally resorted civil harassment of practicing physicians. Way forward?

Analytical Response

AI: > You’ve raised a very sharp and nuanced point: the civil harassment of physicians through compensation claims is often overlooked compared to the criminal harassment that Jacob Mathew v. State of Punjab (2005) sought to curb. Let’s break this down and then explore a possible way forward.

Distinction You Highlighted

• Ab Initio Civil Treatment of Medical Homicide: If a case of death due to alleged medical negligence is treated from the outset as a civil wrong (compensation claim), without first judicially determining whether criminal liability exists, the threshold for negligence is lower. This exposes doctors to prolonged litigation, reputational damage, and financial strain even when criminal liability is absent.
• Judicial Determination First: If courts first decide whether the act meets criminal standards (gross negligence, recklessness), only then can civil liability follow. This sequencing protects practitioners from being dragged into civil forums for what is essentially alleged homicide.

Why Civil Harassment Hurts More

• Reputation: A civil trial for “medical homicide” brands the practitioner as negligent in the public eye, regardless of outcome.
• Process as Punishment: Endless consumer forum litigation, even if compensation is modest, drains time, energy, and credibility.
• Lower Threshold: Civil negligence requires only proof of breach of duty and causation, not gross negligence. This makes doctors vulnerable to claims for every adverse outcome.

Jacob Mathew Judgment – Limits

• Contribution: Raised the threshold for criminal liability, requiring gross negligence for prosecution under IPC.
• Gap: Did not address the misuse of civil forums (Consumer Protection Act, tort suits) where negligence is presumed from adverse outcomes or administrative lapses.

Way Forward – Possible Reforms

Here are structured directions that legal and medical communities could pursue:

1. Legislative Clarification

• Amend the Consumer Protection Act to explicitly exclude cases of “medical homicide” from summary trial jurisdiction.
• Require that any case involving death first undergo judicial determination in a civil court before compensation forums can hear it.

2. Specialized Medical Tribunals

• Establish Medical Negligence Tribunals staffed by judges and medical experts.
• These tribunals could filter frivolous claims, balance patient rights with practitioner protection, and ensure technical evidence is properly weighed.

3. Threshold for Civil Liability

• Introduce a statutory requirement of prima facie expert medical opinion before admitting civil compensation claims involving death.
• This mirrors the safeguard Jacob Mathew introduced for criminal cases.

4. Professional Indemnity & Mediation

• Strengthen mandatory indemnity insurance for physicians, so compensation is handled without personal harassment.
• Encourage pre-litigation mediation for compensation disputes, reducing adversarial trials.

5. Judicial Discipline

• High Courts/Supreme Court could issue guidelines preventing consumer forums from treating medical homicide cases as mere “service deficiency.”
• This would restore the distinction between tortious negligence and criminal negligence.

Conclusion

The way forward lies in raising the judicial threshold for civil liability in medical homicide cases, just as Jacob Mathew did for criminal liability. Without this, physicians remain exposed to civil harassment that is often more damaging than monetary penalties.

• Legislative amendment + specialized tribunals + expert opinion safeguards are the three pillars that could balance patient rights with practitioner protection.
• Until then, practitioners must rely on indemnity insurance, professional associations, and judicial precedents to resist civil harassment.

Question for Consideration

Apropos Jacob Mathew and Martin D’Souza judgments, I learn, the SC has been approached to issue clear guidelines. I hope the Apex Court issues clear guidelines, just like the Connecticut Law on Medical Malpractice, relevant parts of which are reproduced below, making a certificate of good faith belief based on independent medical opinion to the effect, prerequisite for filing a medical malpractice complaint. Your considered comments?

Connecticut Law on Medical Malpractice – Abstract

Requirement	Statutory Provision
Good Faith Belief Before Filing	“No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.” Conn. Gen. Stat. § 52-190a(a) (2025). [Emphasis added.]
Certificate Requirement	“The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant.” Conn. Gen. Stat. § 52-190a(a) (2025).
Written Expert Opinion	“To show the existence of such good faith, the claimant or the claimant’s attorney, and any apportionment complainant or the apportionment complainant’s attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.” Conn. Gen. Stat. § 52-190a(a) (2025).

Closing Observation

You are right to draw parallels: the Supreme Court of India has indeed been urged to issue clear statutory guidelines on medical negligence, and a framework akin to Connecticut’s “certificate of good faith” requirement could provide much-needed balance between protecting patients and shielding doctors from frivolous litigation.

Current Indian Context

• Jacob Mathew v. State of Punjab (2005): The Court held that doctors should not be prosecuted for criminal negligence unless there is gross negligence and directed the government to frame statutory rules for prosecution.
• Martin D’Souza v. Mohd. Ishfaq (2009): The Court emphasized that consumer forums and courts must first obtain an expert medical opinion before proceeding against doctors.
• Present Situation: Despite these directions, no comprehensive statutory framework has been enacted. A PIL now seeks urgent guidelines, highlighting “20 Years of Inaction” since Jacob Mathew.

Why Connecticut’s Model Is Relevant

The Connecticut statute requires:

• Reasonable Inquiry: Attorneys must certify they have investigated and found grounds for a good faith belief.
• Certificate of Good Faith: Mandatory filing with the complaint.
• Independent Expert Opinion: A written, signed opinion from a “similar health care provider” confirming prima facie evidence of negligence.

This system filters out weak or speculative claims at the threshold, ensuring only cases with credible medical backing proceed.

Potential Benefits for India

• Prevents Harassment of Doctors: Many practitioners fear frivolous complaints; a certificate requirement would reduce such risks.
• Strengthens Patient Protection: Genuine victims still retain access to justice, but with expert validation.
• Judicial Efficiency: Courts avoid being clogged with baseless cases, focusing resources on serious matters.
• Professional Accountability: Encourages peer review and medical self-regulation.

Challenges & Trade-offs

• Access to Experts: In India, rural or poor patients may struggle to obtain independent medical opinions. Safeguards would be needed to avoid denying justice to the underprivileged.
• Risk of Bias: Doctors certifying against peers may face professional pressure. A neutral panel system (perhaps under Medical Council / NMC) could mitigate this.
• Implementation: Requires statutory clarity—who qualifies as “similar health care provider,” timelines, and costs.

Considered Comment

If the Supreme Court adopts a Connecticut-style prerequisite, it would harmonize with its own earlier directions in Jacob Mathew and Martin D’Souza.

Such a framework could be tailored to India by:

• Mandating independent medical board opinions rather than individual doctors.
• Providing state-funded expert panels for indigent patients.
• Ensuring uniform definitions of negligence across civil and criminal contexts.

This would strike a middle path: protecting doctors from harassment while ensuring patients with genuine grievances are not silenced.

In short, the Connecticut model offers a tested, balanced template. If adapted thoughtfully, it could finally give India the medico-legal clarity that Jacob Mathew and Martin D’Souza envisioned but left incomplete.

Comparative Framework Question

Q. Please draft a comparative framework proposal—showing how Connecticut’s provisions could be adapted into Indian statutory language.

AI: >

Here’s a comparative framework proposal that adapts the Connecticut model into an Indian statutory context. I’ve drafted it in a way that could serve as a policy note or draft bill language for advocacy before the Supreme Court or legislature.

Comparative Framework Proposal

Adapting Connecticut’s Medical Malpractice Statute into Indian Law

1. Purpose

To establish clear statutory safeguards against frivolous medical negligence complaints while ensuring genuine victims retain access to justice. This proposal harmonizes the principles laid down in Jacob Mathew v. State of Punjab (2005) and Martin D’Souza v. Mohd. Ishfaq (2009) with the tested Connecticut model.

2. Key Comparative Elements

Connecticut Law (Conn. Gen. Stat. § 52-190a)	Proposed Indian Adaptation
Reasonable Inquiry: Attorney must certify that a good faith belief exists after inquiry.	Preliminary Scrutiny: Complainant or counsel must certify that reasonable inquiry has been made to establish prima facie negligence.
Certificate of Good Faith: Complaint must contain a certificate affirming good faith belief.	Certificate of Prima Facie Negligence: Every complaint must be accompanied by a certificate signed by the complainant’s counsel affirming good faith belief.
Written Opinion Letter: Must obtain a signed opinion from a “similar health care provider.”	Independent Expert Opinion: A written opinion from a registered medical practitioner of the same specialty, empanelled by the National Medical Commission (NMC) or State Medical Council, must accompany the complaint.
Definition of Similar Provider: Defined under § 52-184c.	Definition of Similar Provider: A practitioner with equivalent qualifications and at least 10 years’ standing in the same specialty.
Threshold Requirement: Complaint cannot proceed without certificate and opinion letter.	Threshold Requirement: Courts/consumer forums shall not admit complaints lacking certificate and expert opinion.

3. Draft Statutory Language (India)

Section X: Filing of Medical Negligence Complaints

1. No civil or criminal complaint alleging medical negligence shall be entertained unless the complainant or their counsel certifies, after reasonable inquiry, that there exists a good faith belief of negligence in the care or treatment provided.
2. Certificate of Prima Facie Negligence: Every complaint shall contain a certificate signed by the complainant’s counsel or the complainant, affirming that such reasonable inquiry gave rise to a good faith belief that grounds exist for action against each named defendant.
3. Independent Expert Opinion: To demonstrate good faith, the complainant shall obtain a written and signed opinion from a registered medical practitioner of the same specialty, empanelled by the National Medical Commission or State Medical Council, stating that there appears to be evidence of medical negligence, with a detailed basis for such opinion.
4. Definition of Similar Provider: For the purposes of this section, “similar health care provider” means a medical practitioner possessing equivalent qualifications and at least ten years of standing in the same specialty as the defendant.
5. Threshold Requirement: No complaint shall be admitted by any court, consumer forum, or authority unless accompanied by the certificate and expert opinion as prescribed herein.
6. Safeguard for Indigent Patients: Where the complainant is unable to afford expert opinion, the court may direct the NMC/State Medical Council to provide such opinion free of cost from its empanelled experts.

4. Advantages of This Framework

• Protects doctors from harassment and frivolous litigation.
• Empowers patients with genuine grievances to pursue justice with credible backing.
• Aligns with SC precedents (Jacob Mathew, Martin D’Souza).
• Introduces uniformity across civil and criminal negligence complaints.
• Ensures access equity through state-funded expert panels for poor patients.

5. Next Steps

• Present draft to the Supreme Court in ongoing PILs seeking guidelines.
• Recommend legislative adoption via amendment to the Consumer Protection Act and Indian Penal Code.
• Establish NMC/State Medical Council expert panels to operationalize the requirement.

Written By: Dr Shri Gopal Kabra
MBBS, LLB, MSc, MS(Anatomy), MS(Surgery), Bhagwan Mahaveer Cancer Hospital, Jaipur-302017
Email: [email protected]   Telephone: 8003516198