Lately, Indian society is pursuing an awareness towards a patient's right.
Let us first analyze the concept of negligence in general.
An action for negligence proceeds upon the idea of an obligation or duty on the
part of the defendant to use care, a breach which results in the plaintiff's
injury. The duty may arise by a statute or otherwise.
Now, as we proceed towards Medical Negligence, a fragment of Torts. In cases of
medical negligence, a claimant shall be seeking damages for physical injury. The
term 'medical negligence' is an omnibus one, which refers to wrongful actions in
professional field of medicine, during the pursuit of their profession while
dealing with patients. Currently medical negligence has become a major
concerning issue which is one of the most praised professions.
This article outlines the basic structure of medical negligence with some legal
phrase and also focuses on explaining malpractices in medical profession and law
made for it.
The consequences of medical negligence can broadly be put into 2 categories
which shall be described further:
- Monetary Liability
- Disciplinary Actions
A monetary damages award paid to the plaintiff by the hospital or medical
provider serves as the legal remedy in the majority of cases of medical
negligence. This can be used to pay for additional medical expenses, hospital
fees, and therapies. In some places, the number of damages that the plaintiff
may receive is occasionally limited to situations involving medical malpractice
or medical negligence. Awards for medical negligence have been limited in order
to stop frivolous lawsuits and demands for excessive compensation.
Another consequence of medical negligence might be the imposition of fines and
subsequent disciplinary action. The Indian Medical Council (IMC) (Professional
Conduct, Etiquette and Ethics) Regulations, 2002, created in accordance with the
IMC Act, 1956, govern professional misconduct by medical practitioners.
A medical practitioner's name may be permanently removed or he may be suspended
if the Medical Council of India (MCI) and the appropriate State Medical Councils
decide to take disciplinary action.
Negligence can be diverted into many fragments out of which we now discuss the
segment of Medical Negligence. It is an offence under Tort, IPC, Indian contract
act and consumer protection act. Medical malpractice, sometimes referred to as
medical negligence, is when a doctor, dentist, nurse, pharmacist, or other
health care provider treats a patient improperly, carelessly, or negligently.
When a healthcare professional deviates from the accepted "standard of care"
when treating a patient, it is considered medical malpractice. Mistakes in the
medical matters can result into minor injuries, serious injuries or sometimes
resulting into the death of a person. We shall consider the fact that no human
is actually perfect in any profession but a situation which could have been
defined yet neglected and resulting to damage to the plaintiff should be held
Such as Failure to provide a safe and suitable situation as promised, as it
relates to inappropriate or broken equipment, improper accommodations or any
medical professional, including a doctor, nurse, hospital staff, or other, who
has violated their responsibility.
Unless there is documented proof to the contrary, it is difficult to ascertain
if the institution engaged in medical negligence. Not every patient death may be
attributed to medical malpractice in and of itself.
Based on either of these two conclusions, the hospital or the doctors working
there may be held liable for negligence:
- They either lacked the necessary expertise they claimed to have,
- or they failed to use the talent they did have in the situation with
The standard for judging whether the defendant engaged in negligence would be
that of a typical competent person utilizing a typical level of ability in that
industry. No expert may legitimately assert that they are the most skilled or
experienced in their particular industry. Even if a skilled professional might
possess superior qualities, this cannot serve as a foundation for evaluating the
work of a professional accused of negligence. The following explanations provide
the key components needed to prepare medical negligence.
Right to life is a fundamental right defined under Article 21 of Constitution of
India which if damaged then the plaintiff is entitled for some compensation by
the wrongdoer i.e., the defendant. In recent judgements where the court has
ordered the defendant to pay large compensation amount to the plaintiff.
This action by the court will ensure that medical practitioners are not neglect
ant. The Indian government is also obligated to ensure public health region
universal access to healthcare. Therefore, it is the responsibility of the court
to balance the rights and interests of all parties considerably involved. If the
damage is done by the defendant to the plaintiff, then the complainant may seek
monetary compensation before the Civil Courts, High Court or the Consumer
Dispute Redressal Forum under the Constitutional Law, Law of Torts/Law of
Contract and the Consumer Protection Act.
- Breach of Duty in Medical Negligence
� When a doctor's practice doesn't live up to the standards, this is proven.
For the majority of tort cases, the test of the "reasonable man" or the
infamous "guy on the Clapham omnibus," who is claimed to be an ordinary
person placed in the identical circumstances, is used.
The criterion of comparable professional practice is instead applied where
there has been a probable breach of professional obligation. The most famous
instance of this professional standard is Bolam v. Friern Hospital Trust.
It centered on a patient who suffered fractures while receiving ECT therapy
and claimed that his anesthetic care was inadequate in part because he was
not given muscular relaxation for the procedure, restrained, or informed of
the risk of fracture.
However, it was determined that carelessness could not be proven because it
was demonstrated that it was not common practice to administer muscle
relaxants at the time, and because conflicting views on the advantages of
muscular relaxation and the increased hazards of the relaxant existed. It
was maintained that it was sufficient for a doctor to behave in accordance
with a procedure that was approved by a trustworthy group of medical
No reasonable doctor would have acted in that way under the identical
conditions, the claimant must demonstrate. However, this is the same test as
for other professional groups where negligence is under consideration. It
has been argued that the existence of a body of opinion that supports a
doctor's actions is in favor of the medical profession, handing
responsibility for deterring other doctors from engaging in the allegedly
negligent behavior to the medical profession.
- Causation and harm in medical negligence
In medical negligence cases, proving causation basically entails
demonstrating that carelessness occurred as a result of an obligation not
being met or a duty not being upheld, which ultimately resulted in a harm.
Establishing causality is the process of proving the aforementioned. In
medical malpractice lawsuits, it can be very challenging to demonstrate
medical negligence. In other words, it is very difficult to establish
causation in such circumstances. In general, it is assumed that there may be
potential problems that could have an impact on the therapy's outcome while
someone is receiving treatment or any surgery for the same.
- Case laws in medical negligence
The complainant, a malaria department officer, brought a lawsuit against the
hospital in V. Krishan Rao v. Nikhil Super Specialty Hospital for treating
his wife in a negligent manner. The fact that the hospital administered the
incorrect drug, causing his wife to receive treatment for typhoid fever
rather than malaria fever, was sufficient to prove causation. According to
the res ipsa loquitor principle, which states that things should speak for
themselves, in this case the complaint was compensated for the harm they had
A second-year engineering student was struck by a bus and sent to a hospital for
treatment in Pravat Kumar Mukherjee Vs. Ruby General Hospital and Ors.
The hospital began treating the youngster since he had a medical insurance card
that stated the insurance provider would pay him Rs. 65,000 in the event of an
accident. When they didn't receive the requested payment of Rs. 15,000 after a
while, the hospital stopped treating the youngster and sent him to another
facility, where he passed on en route. In this case, the defendants were found
responsible for medical malpractice on the basis of humanitarian considerations,
and the plaintiff was given compensation.
In the case of Ms. Neha Kumari and Anr v. Apollo Hospital and Ors (2003)
the National Consumer Disputes Redressal Commission had determined that the
alleged medical negligence had not been proven because the complainant had
complicated congenital abnormalities of the spine and the entire body, as shown
by a pre-operative CT scan.
The Hon'ble Commission, relying on the decision in Basant Seth v. Regency
Hospital O P (1994), rejected the hospital's argument and held that the hospital
is vicariously liable for any wrongdoing alleged by the consultants. This was in
regards to the hospital's vicarious liability for the consultants' negligence.
For the sake of diagnosis, treatment, organ transplant, research, disclosure of
medical information, and educational and medico-legal objectives, there is a
legal obligation to get prior agreement (from living patients) on the part of
the hospitals and doctors. Hospitals will be held responsible for medical
negligence if prior consent of the parties has not been taken before undertaking
any kind of medical practices on the patient.
In the case of Spring Meadows Hospital and Anr. v. Harjol Ahluwalia
1998, the parents of a child who was left permanently crippled received a
payment of Rs. 5 lacs for their mental anguish in addition to a Rs. 12 lacs
settlement for the child. The hospital was meant to cover the remaining Rs. 12
lacs after the insurance paid its portion.
Although the insurance provider intervened because the nurse who administered
the child's adult dose of Lariago injection was ineligible, the Apex Court made
no mention of this matter when deciding on negligent cases. Therefore, it's
crucial to keep in mind that medical professionals and institutions shouldn't
just get a Professional Indemnity Insurance Policy but also ensure that the
nurses and other hospital personnel who are hired as a result of it are
Medical negligence is a complex category of tort that cannot be categorized as
simple. Medical malpractice has a different form and character. Given the
doctor's training and expertise in the field, there is a very high standard of
care that must be provided to the patient in the case of medical negligence.
There has been a rapid increase in the number of medical negligence cases in
India, raising the question of whether victims should be compensated in
accordance with the Consumer Act of 1986 or whether it is time to enact
legislation specifically for these situations, where patients suffered as a
result of the carelessness of doctors and other medical professionals who owed
them a duty of care and breached it.
In most cases, the hospital management is responsible for any negligence on the
part of such employees. Patients visit the hospital and frequently end up
staying there since they rely on it to provide them with expensive medical
treatments. In exchange, the hospital is expected to provide these kinds of
secured medical services, and in the event of a service gap or in cases where
the procedure was carried out without the necessary care and caution, the
hospital must be held accountable.
Several criteria should be taken into account while handing down judgments in
medical negligence cases, according to an examination of the most prominent
medical negligence cases in India. Given their experience in that sector and the
always evolving nature of medical practices, doctors just need to behave with
the utmost care, abstain from negligence, and constantly think of innovative
ways to treat their patients. The interests of patients and physicians must be
balanced. It is now time to create new avenues for protecting both patients' and
Written By: Aditi Dawange