Medical negligence has become one of the serious issues in the country in
recent years, often results in the death of the patient or complete/partial
impairment or any other misery which has adverse effects on the patient's
health. The term "medical negligence" is an omnibus one, which has come in vogue
to refer to wrongful actions or omissions of professionals in the field of
medicine, in pursuit of their profession, while dealing with patients.
Negligence, is a breach of duty of care resulting in injury or damage.
The fundamental reason behind medical negligence is that the carelessness of the
doctors or medical professionals are often ascertained in various cases where
reasonable care is not taken during the diagnosis, during operations, while
injecting anaesthesia, etc. Every professional must exercise his profession with
a reasonable degree of care and skill. A surgeon does not undertake that he will
surely perform a cure nor does he profess that he uses the highest possible
degree of skill. He only undertakes to bring a fair, reasonable, and competent
degree of skill.
A doctor is not liable in all cases where a patient has suffered an injury. He
might have a valid defence that he has not breached the duty of care. There are
3 components of medical negligence:
- Existence of legal duty
- Breach of legal duty
- Damage caused by such breach
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 favourable, he
cannot be held against such error in judgement.
The Courts have observed that
merely because the doctor choose a 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. 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.
In Laxman Bapu case
and Poonam Verma case
it was held that, a doctor when
consulted shall have the following duties- 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 the administration of that treatment. A breach of any of these shall
give rise to a right of action for negligence to the patient.
A doctor has a discretion in choosing treatment which proposes to give to the
patient and such discretion is higher in cases of emergency. In Achutrao Khodwa
case, the SC held that the skill of medical practitioners differs from doctor to
doctor and more than one course of treatment can be administered. So, courts
will be careful in attributing negligence on the doctor if he has performed his
duty to the best of his ability with due care and caution.
Types Of Medical Negligence:
Medical negligence can occur in different ways. Generally, it occurs when a
medical professional deviates from the standard of care that is required.
of the common categories of medical negligence are as follows:
- Wrong diagnosis:
When someone goes to a hospital, clinic or medical room,
etc. the first step after admittance is the diagnosis. Diagnosing symptoms
correctly is critical and important to provide medical care to any patient.
However, if a patient is not treated properly due to any mistake in diagnosis,
the doctor can be made liable for any further injury or damages caused as a
result of the wrong diagnosis.
- Delay in diagnosis:
A delayed diagnosis is treated as medical negligence if
another doctor would have reasonably diagnosed the same condition in a timely
fashion. A delay in diagnosis can cause undue injury to the patient if the
illness or injury is left to worsen with time rather than being treated.
Obviously, any delay in the identification and treatment of an injury can reduce
the chance of recovery for the patient.
- Error in surgery:
Surgical operations require an vast level of skill and it
should be done with due care and caution because even the slightest mistakes can
have profound effects on the patient. The wrong-site surgery, lacerations of any
internal organ, severe blood loss, or a foreign object being left in the body of
the patients, all this comes under Surgical error.
- Errors in the administration of Anaesthesia:
Anaesthesia is a risky part of any
major medical operation and requires a specialist (anaesthesiologist) to
administer and monitor its effect on the patient. Prior to any medical procedure
requiring anaesthesia, the anaesthesiologist has to review the patient's
condition, history, medications, etc. to determine the most suitable of all the
medicine to use. Anaesthesia malpractice can happen even during the
pre-operation medical review or during the procedure itself.
In Laxman Joshi v. Trimbak Bapu God bole, the patient suffered from a fractured
limb which the doctor tried to cure by pulling his injured leg using great
physical force. As this was done without anaesthesia, the patient died of shock.
The doctor was held liable for negligenc.
- Childbirth and labor malpractice:
Childbirth is a difficult event for a woman
and it becomes worse if not handled properly by the doctors and nurses. There
are many instances of medical negligence during childbirth including the
mishandling of a difficult birth, complications with induced labor, misdiagnosis
of a new born medical condition, etc.
In Jasbir Kaur v. State of Punjab, a newly born child was found missing from the
bed in a hospital. The child was found bleeding and near the wash-basin of the
bathroom. The hospital authorities argued that the child had been taken away by
a cat which caused the damage to him. The court held that the hospital
authorities were negligent and had not taken due care and precaution. Thus,
awarded the compensation amounting to Rs. 1 lakh.
- Long-Term negligent treatment:
Medical negligence can also occur in subtle
ways over the course of a long treatment period. Usually, the negligence can
take the shape of a failure to follow up with treatment, or a doctor's failure
to monitor the effects of the treatment properly.
Essentials Of Medical Negligence:
The term 'Medical negligence' consists of two words - medical and negligence.
Negligence is solely the failure to exercise reasonable care. Medical negligence
is no different. It is only that, in case of medical negligence, the doctor is
In an action for negligence, the following essentials are required:
- The defendant owed a duty of care to the plaintiff.
- The defendant made a breach of that duty.
- The plaintiff suffered damage as a consequence of that breach.
If a doctor fails to perform the aforesaid duties it results in breach of duty
and gives a right of action to the patient. A breach of duty is committed by a
doctor when he does not perform the degree of care like a reasonable doctor.
In Kusum Sharma v. Batra Hospital
it was held by the Supreme Court that a doctor
often adopts a procedure which involves a higher element of risk, but in doing
so he honestly believes that it will provide greater chances of success for the
patient. If a doctor has taken a higher risk to redeem the patient out of
his/her suffering and it did not yield the desired result, this may not amount
to medical negligence.
In the case of Dr. Laxman Bal Krishna Joshi Vs. Dr. Trimbak Bapu God bole and
, the Supreme Court held that a doctor has certain aforesaid duties and
a breach of any of those duties can make him liable for medical negligence. A
doctor is required to exercise a reasonable degree of care that is set for this
In State of Haryana v. Smt Santra
, the Supreme Court held that it is the
duty of every doctor to act with a reasonable degree of care. However, no human
in this world is perfect and even specialists make mistakes, a doctor can be
made liable only if he fails to act with such reasonable care that every doctor
with ordinary skills would be able to do.
In Wilsher v. Essex Area Health Authority
, the infant plaintiff was placed in a
special care unit and almost suffered near blindness due to excess oxygen. A
junior doctor inserted the device in a vein instead of artery and later
consulted a senior doctor who did the same mistake. It was held that the junior
was not negligible as he had approached the senior, but the senior was
Patients Incapable Of Giving Consent
A doctor cannot lawfully treat adult persons of sound mind which involves
application force without their consent, otherwise will be liable for the tort
of trespass. However, when a patient is incapable of giving his consent, a
doctor can proceed with the treatment given that it is in the best interests of
the patient. This is limited to the cases in which life is to be saved or
patient's mental or physical health must be prevented from being deteriorated.
In cases of persons of unsound mind, the court's prior permission is to be
sought before the treatment is lawfully performed. In F. v. Berkshire Health
Authority, the plaintiff was a mentally handicapped woman, who was an inpatient
in a mental hospital and having sexual relations with the male inpatients. An
application for sterilization was filed in the court on the grounds that it was
in her best interests.
In Samira Kohli v. Prabha Manchanda
, the patient was admitted for laparoscopy,
during the treatment the doctor found that she was suffering from endometriosis.
He performed hysterectomy i.e., removal uterus and ovaries while she was
unconscious with the consent of her mother. It was held that as there was no
emergency, the doctor should have waited to obtain the consent of the plaintiff.
The consent of an adult patient of sound mind is his right to
self-determination. The patient can refuse being treated if he wishes so and
cannot be said to have committed suicide nor have the doctors aided or abetted
A victim of medical negligence who intends to sue an erring health care provider
has the following options:
- Compensatory action:
Seeking 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
- Punitive action:
Filing a criminal complaint against the doctor under the Indian Penal Code.
- Disciplinary action:
Moving the professional bodies like Indian Medical
Council/State Medical Council seeking disciplinary action against the health
care provider concerned.
- Recommendatory action:
Lodging complaint before the National/State Human
Rights Commission seeking compensation.
Liability of Health Care Provider in The Constitutional Law
The Constitution of India does not guarantee any special rights to the patient.
The Supreme Court in various cases has viewed that the right to life as
enshrined in Article 21 of the Constitution of India includes the right to
health and medical treatment. The right to life would be meaningless unless
medical care is assured to a sick person.
Article 19(1) provides six fundamental
freedoms to all its citizens which can be restricted only on grounds mentioned
in Clauses (2) to (6) of Article 19 of the Constitution. These fundamental
freedoms can be effectively enjoyed only if a person has healthy life to live
with dignity and free from any kind of disease or exploitation which further
ensured by the mandate of Article 21 of the Constitution. When breach of this
right occurs, the health care provider will be held liable for negligence.
- Medical Council of India
The grieving party can file a complaint against a medical practitioner to the
concerned State Medical Council as they have the power to take action against by
cancelling or suspending the registration of concerned doctor. The Indian
Medical Council Act, 1956 does not give them the power to compensate the
The accused is required to file a complaint to the council precisely the
relevant details of the 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
People visits doctor with the faith of getting well treated by them. The doctor
can provide preventive health screening and can take the necessary steps to
treat the disease, catching the diseases early can save a person from getting
into the worst condition but the faith is deteriorating day by day with the
increasing cases of medical negligence. The patients approach to the doctor
while in pain and hopes for a successful treatment and speedy recovery.
Sometimes the things don't go as planned while the treatment thus may lead to
severe minor or major injury to the patient which could be due to the fault of
doctor or naturally. However, injury by the negligence on part of doctor or the
staff could make them liable and the necessary action would be taken against
Article By: Reva Sharma
- Law of Torts - R. K Bangia