What Is Negligence'Negligence may be defined as breach of duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent reasonable man would not do, actionable negligence consists in the neglect of the use of ordinary care or observing ordinary care and skill toward a person to whom the defendant owes a duty of observing ordinary care and skill'.
Constituents For Negligence(1) a legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of duty;
(2) Breach of the same duty; and
(3) Consequential damages.
This very duty depends upon the foseeability of the injury it means if at the time of act or omission he may foresee the injury to the plaintiff him liable owes a duty to prevent that injury and failure to that make him liable.
Negligence is a tort as well as a crime may be used for the purpose of fastening the defendant with the liability under the civil law and, also under the criminal law. In jurisprudence no distinction may be drawn between negligence under civil and criminal law but degree of negligence is high to fasten the liability under criminal laws, essential element of mens rea cannot be discarded while fixing the liability in criminal case. Lord Atkin in his speech in Andrews vs. Director of Public Prosecutions stated 'simple lack of care will constitute a civil liability is not enough; for purposes of criminal law there are degrees of negligence, and very high degree of negligence is required to proved before felony is established'.
Lord Porter said in the his speech in the same case 'a higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability and in Syad Akbar vs.State of Karnataka the supreme court has pointed with reasons with the distinction between negligence in civil and criminal proceedings, namely the proof in civil case mere balance of probabilities is sufficient while in criminal case proof beyond reasonable doubt is required. Negligence must be gross not an error of judgment in both the cases.
Professional Negligence'Profession involves the idea of an occupation requiring purely intellectual skills or of manual skills controlled by the intellectual skill of the operator, as distinguished from an occupation which is substantially production or sale or arrangement for the production or sale of commodities. The line demarcation may vary from time to time. According to Rupert M. Jackson and John L. Powell observed in Indian Medical Association vs. V.P. Shanta that occupations which are regarded as professions have 4 characteristics, they are:
(1) the nature of the work which is skilled and specialized and a substantial part is mental than manual;
(2) to commitment to moral principles which go beyond the general duty of honesty and a wider duty to community which may transcend the duty to a particular client or patient;
(3) professional association which regulates admission and seeks to uphold the standard s of the profession through professional codes on matters of conduct and ethics; and
(4) high status in the community.
Both the authors have in their book mentioned that during 20th century an increasing number of occupations have been seeking and achieving professional status and that this has led inevitably to some blurring feature which traditionally differentiate between professions from other occupations and 7 categories have been identified by them as professions. They are also of the view that in the matter of liability professions differ from occupations for the reason that profession operate in the spheres where success may not be achieved in every case and very often success or failure depends upon factors beyond professional man's control.
Medical profession is one of the oldest professions of the world and is the most humanitarian one. Inherent In the concept of any profession is a code of conduct, containing the basic ethics that underline the moral values that govern professional practice and is aimed at upholding its dignity. Medical Ethics underpins the values at the heart of the practitioner-client relationship. Medical negligence and malpractices by doctors were the grey areas in health care where legal issues operated.
Civil law and negligenceNegligence is the breach of a legal duty to care. It means carelessness in a matter in which the law mandates carefulness. A breach of this duty gives a patient the right to initiate action against negligence.
Persons who offer medical advice and treatment implicitly state that they have the skill and knowledge to do so, that they have the skill to decide whether to take a case, to decide the treatment, and to administer that treatment. This is known as an implied undertaking on the part of a medical professional. In the case of the State of Haryana vs Smt Santra, the Supreme Court held that every doctor has a duty to act with a reasonable degree of care and skill (1).
Doctors in India may be held liable for their services individually or vicariously unless they come within the exceptions specified in the case of Indian Medical Association vs V P Santha . Doctors are not liable for their services individually or vicariously if they do not charge fees. Thus free treatment at a non-government hospital, governmental hospital, health centre, dispensary or nursing home would not be considered a service as defined in Section 2 (1) (0) of the Consumer Protection Act, 1986.
However, no human being is perfect and even the most renowned specialist could make a mistake in detecting or diagnosing the true nature of a disease. A doctor can be held liable for negligence only if one can prove that she/ he is guilty of a failure that no doctor with ordinary skills would be guilty of if acting with reasonable care (3). An error of judgement constitutes negligence only if a reasonably competent professional with the standard skills that the defendant professes to have, and acting with ordinary care, would not have made the same error (4).
In a key decision on this matter in the case of Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole, the Supreme Court held that if a doctor has adopted a practice that is considered proper by a reasonable body of medical professionals who are skilled in that particular field, he or she will not be held negligent only because something went wrong.
Doctors must exercise an ordinary degree of skill (5). However, they cannot give a warranty of the perfection of their skill or a guarantee of cure. If the doctor has adopted the right course of treatment, if she/ he is skilled and has worked with a method and manner best suited to the patient, she/ he cannot be blamed for negligence if the patient is not totally cured (6).
Certain conditions must be satisfied before liability can be considered. The person who is accused must have committed an act of omission or commission; this act must have been in breach of the person's duty; and this must have caused harm to the injured person. The complainant must prove the allegation against the doctor by citing the best evidence available in medical science and by presenting expert opinion (7).
In some situations the complainant can invoke the principle of res ispa loquitur or the thing speaks for itself. In certain circumstances no proof of negligence is required beyond the accident itself. The National Consumer Disputes Redressal Commission applied this principle in Dr Janak Kantimathi Nathan vs Murlidhar Eknath Masane (8).
The principle of res ipsa loquitur comes into operation only when there is proof that the occurrence was unexpected, that the accident could not have happened without negligence and lapses on the part of the doctor, and that the circumstances conclusively show that the doctor and not any other person was negligent.
Criminal negligenceSection 304A of the Indian Penal Code of 1860 states that whoever causes the death of a person by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine, or with both.
In the Santra case, the Supreme Court has pointed out that liability in civil law is based upon the amount of damages incurred; in criminal law, the amount and degree of negligence is a factor in determining liability. However, certain elements must be established to determine criminal liability in any particular case, the motive of the offence, the magnitude of the offence, and the character of the offender.
In Poonam Verma vs Ashwin Patel the Supreme Court distinguished between negligence, rashness, and recklessness (9). A negligent person is one who inadvertently commits an act of omission and violates a positive duty. A person who is rash knows the consequences but foolishly thinks that they will not occur as a result of her/ his act. A reckless person knows the consequences but does not care whether or not they result from her/ his act. Any conduct falling short of recklessness and deliberate wrongdoing should not be the subject of criminal liability.
Thus a doctor cannot be held criminally responsible for a patient's death unless it is shown that she/ he was negligent or incompetent, with such disregard for the life and safety of his patient that it amounted to a crime against the State (10).
Sections 80 and 88 of the Indian Penal Code contain defences for doctors accused of criminal liability. Under Section 80 (accident in doing a lawful act) nothing is an offence that is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. According to Section 88, a person cannot be accused of an offence if she/ he performs an act in good faith for the other's benefit, does not intend to cause harm even if there is a risk, and the patient has explicitly or implicitly given consent.
Burden of proof and chances of error
The burden of proof of negligence, carelessness, or insufficiency generally lies with the complainant. The law requires a higher standard of evidence than otherwise, to support an allegation of negligence against a doctor. In cases of medical negligence the patient must establish her/ his claim against the doctor.
In Calcutta Medical Research Institute vs Bimalesh Chatterjee it was held that the onus of proving negligence and the resultant deficiency in service was clearly on the complainant (11). In Kanhaiya Kumar Singh vs Park Medicare & Research Centre, it was held that negligence has to be established and cannot be presumed (12).
Even after adopting all medical procedures as prescribed, a qualified doctor may commit an error. The National Consumer Disputes Redressal Commission and the Supreme Court have held, in several decisions, that a doctor is not liable for negligence or medical deficiency if some wrong is caused in her/ his treatment or in her/ his diagnosis if she/ he has acted in accordance with the practice accepted as proper by a reasonable body of medical professionals skilled in that particular art, though the result may be wrong. In various kinds of medical and surgical treatment, the likelihood of an accident leading to death cannot be ruled out. It is implied that a patient willingly takes such a risk as part of the doctor-patient relationship and the attendant mutual trust.
Recent Supreme Court rulingsBefore the case of Jacob Mathew vs State of Punjab, the Supreme Court of India delivered two different opinions on doctors' liability. In Mohanan vs Prabha G Nair and another (13), it ruled that a doctor's negligence could be ascertained only by scanning the material and expert evidence that might be presented during a trial. In Suresh Gupta's case in August 2004 the standard of negligence that had to be proved to fix a doctor's or surgeon's criminal liability was set at gross negligence or recklessness.
In Suresh Gupta's case the Supreme Court distinguished between an error of judgement and culpable negligence. It held that criminal prosecution of doctors without adequate medical opinion pointing to their guilt would do great disservice to the community. A doctor cannot be tried for culpable or criminal negligence in all cases of medical mishaps or misfortunes.
A doctor may be liable in a civil case for negligence but mere carelessness or want of due attention and skill cannot be described as so reckless or grossly negligent as to make her/ him criminally liable. The courts held that this distinction was necessary so that the hazards of medical professionals being exposed to civil liability may not unreasonably extend to criminal liability and expose them to the risk of imprisonment for alleged criminal negligence.
Hence the complaint against the doctor must show negligence or rashness of such a degree as to indicate a mental state that can be described as totally apathetic towards the patient. Such gross negligence alone is punishable.
On September 9, 2004, Justices Arijit Pasayat and CK Thakker referred the question of medical negligence to a larger Bench of the Supreme Court. They observed that words such as gross, reckless, competence, and indifference did not occur anywhere in the definition of negligence under Section 304A of the Indian Penal Code and hence they could not agree with the judgement delivered in the case of Dr Suresh Gupta.
The issue was decided in the Supreme Court in the case of Jacob Mathew vs State of Punjab (14). The court directed the central government to frame guidelines to save doctors from unnecessary harassment and undue pressure in performing their duties. It ruled that until the government framed such guidelines, the following guidelines would prevail:
A private complaint of rashness or negligence against a doctor may not be entertained without prima facie evidence in the form of a credible opinion of another competent doctor supporting the charge. In addition, the investigating officer should give an independent opinion, preferably of a government doctor. Finally, a doctor may be arrested only if the investigating officer believes that she/ he would not be available for prosecution unless arrested.
Opinion of Supreme Court in context of ConstitutionMedical profession has its own ethical parameters and code of conduct. 'Services' of medical establishments are more of purchasable commodities and the 'business' altitude has given an impetus to more and more malpractices and instances of neglect. But the question is, whether, on the whole, branding the entire medical community as a delinquent community would serve any purpose or will it cause damage to the patients. The answer is, no doubt, the later. It is not that measures to check such dereliction are absent. Victims of medical negligence, considering action against an erring doctor, have three options.
a. Compensatory mode - Seek financial compensation before the Consumer Disputes Redressal Forum or before Civil Courts
b. Punitive/Deterrent mode - Lodge a criminal complaint against the doctor.
c. Corrective/ Deterrent mode - Complaint to the State Medical Council demanding that the doctor's license be revoked. Jurisdiction of Civil Court was never disputed but its scope was limited for damages only.
In the recent times, professions are developing a tenancy to forget that the self-regulation which Is at the heart of their profession is a privilege and not a right and a profession obtains this privilege In return for an implicit contract with society to provide good competent and accountable service to the public. The self-regulator standards in the profession have shown a decline and this can be attributed to the overwhelming Impact of commercialization of the sector. There are reports against doctors of exploitative medical practices, misuse of diagnostic procedures, brokering deals for sale of human organs, etc. It cannot be denied that black sheep have entered the profession and that the profession has been unable to isolate them effectively. Two basic propositions laid down in law regarding liability for negligence are: firstly, "Breach of Duty" to care and secondly, standard of care, i.e. the practitioner must bring to his task a reasonable degree of skill, knowledge and exercise a reasonable degree of care with caution. Supreme Court has made necessary guidelines for protection in order to secure life and health of individuals.
Medical negligence is from time immemorial, but due to the recent development in consumerism and human rights the cases become very typical regarding the fixation of liability and on what grounds, even if certain parameters have fixed it is very necessary that doctors must not in any way suffer their negligence in spite of remedy under different laws the patient of medical negligence are still suffering and they need additional protection, especially the patients of government hospitals.
Consumer laws may be a great help provided the consumers must be aware of their rights. Investigation is yet another area where the interest of the patient is sacrificed to the greed of the care giver. Headache is one such common symptom, which may range from a tension headache to a brain tumour. It is not uncommon for doctors to request for magnetic resonance imaging (MRI) of the brain for the least of the indications, largely because of the attractive commission (kickback) that they would get from the procedure. These do not qualify under the wilful negligence to be challenged in a court of law, but are they in the best interest of the patient? Is there any law to prevent such unethical practices? A recent World Bank study has revealed that expenditure towards a health event in the family is the second most common cause of impoverishment in India. Among those who seek medical help in India, about 40 per cent have been pushed into poverty. In the absence of a regulating authority to check such malpractices or an agency for accreditation of the hospitals and nursing homes, must not the judiciary provide a redressal mechanism to the common man and save the people from the greedy clutches of the so called saviours of humanity?
1. State of Haryana vs. Smt. Santra (2000) 5 SCC 182:: AIR 2000 SC 3335
2. Indian Medical Association vs V P Santha. AIR 1996 SC 550
3. Observations of Lord President Clyde in Hunter vs Hanley (1955) SLT 213. In: Nathan HL. Medical Negligence. London: Butterworths; 1957.
4. Whitehouse vs. Jordan (1981) 1 All ER 267 the House of Lords.
5. Smt J S Paul vs Dr (Mrs) A Barkataki (2004) 10 CLD 1 (SCDRC - MEGHALAYA).
6. Dr Prem Luthra vs Iftekhar (2004) 11 CLD 37 (SCDRC - UTTARANCHAL); Mrs Savitri Devi vs Union of India IV (2003) CPJ 164; Dr Devendra Madan vs Shakuntala Devi I (2003) CPJ 57 (NC).
7. Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole AIR 1969 (SC)128
8. Dr Janak Kantimathi Nathan vs Murlidhar Eknath Masane 2002 (2) CPR 138.
9. Poonam Verma vs Ashwin Patel (1996) 4 SCC 332
10. House of Lords decision in R vs Adomako (1994) 3 All ER 79
11. Calcutta Medical Research Institute vs Bimalesh Chatterjee I (1999) CPJ 13 (NC)
12. Kanhaiya Kumar Singh vs Park Medicare & Research Centre III (1999) CPJ 9 (NC)
13. Mohanan vs Prabha G Nair and another (2004) CPJ 21(SC), of 2004 Feb 4
14. Criminal Appeal Nos 144-145 of 2004
 State of Haryana vs. Smt. Santra (2000) 5 SCC 182:: AIR 2000 SC 3335
 Indian Medical Association vs V P Santha. AIR 1996 SC 550
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