There are many levels of truth. Alan Dershowitz
Justice? You get justice in the next world, in this world you have the law.
Personal experiences affect the facts that judges choose to see. Sonia Sotomayor
Since negligence has no specific definition, it has been roughly defined as:
breach of a 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 and reasonable man would
The basic ingredient of negligence as per this definition is breach of duty,
duty of care.
Both 'duty' and 'care', in turn, are not specifically defined, in tangible
terms, when juxtaposed with medical negligence.
In Jacob Mathew vs State Of Punjab & Anr,
2005, case, quoting from Dr. Laxman
Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr. (1969) , the learned Bench
The duties which a doctor owes to his patients came up for consideration. The
Court held that a person who holds himself out ready to give medical advice and
treatment impliedly undertakes that he is possessed of skill and knowledge for
that purpose. Such a person when consulted by a patient owes him certain duties,
viz., a duty of care in deciding whether to undertake the case, a duty of care
in deciding what treatment to be given or a duty of care in the administration
of that treatment. A breach of any of those duties gives a right of action for
negligence to the patient.
This has been quoted, followed and approved in A.S.. Mittal vs. State of U.P.
AIR 1989; Poonam Verma vs Ashwin Patel & Ors, 1996; Kusum Sharma And Ors. vs
Batra Hospital & Medical Research, 2000; M.S. Grewal & Anr vs Deep Chand Sood &
Ors, 2001; Jacob Mathew vs State Of Punjab & Anr, 2005; and Mr. Micheal
Rodrigues, vs Dr. Shantaram N. Surme, 2014.
Every bench while defining duty of care has tried to semantically refine and
virtually redefine it but without concretizing it in tangible medical terms.
What is an example of duty and care?
For example, a doctor would owe you a duty of care to make sure that they give
you proper medical attention, but would not owe you a duty of care in other
areas like taking care of your finances.
Elements of "duty of care"
"It is a duty to avoid doing or omitting to do something, which may have as its
reasonable and powerful consequences, injury to others. The duty is owed to
those to whom such injury may reasonably and probably be anticipated if the duty
is not observed.
What are the essentials of duty of care?
Duty of care is the most important essential for evaluating an act as
negligence. This means that the law imposes a legal duty of care upon a person
towards the other or others while performing a certain act so that one would
take reasonable care to avoid such harms that could reasonably be foreseen by
What is the duty of due care?
Due care, also referred to as ordinary care and reasonable care, is the standard
of care where a reasonable person would exercise in the same situation or under
similar circumstances. This standard of care is used in a tort action to
determine whether a person was negligent.
What is another word for duty of care?
Responsibility to make sure people are safe and well.
Synonyms: Responsibilities and responsibility. accountability. responsibility.
How do you determine if there is a duty of care?
A duty of care is a legal obligation to avoid causing harm and arises where harm
is 'reasonably foreseeable' if care is not taken. There must be a sufficient
relationship of closeness (sometimes referred to as 'proximity') between the two
people in order for a duty of care to exist.
What is the basic principle of duty of care?
The "duty of care" refers to the obligations placed on people to act towards
others in a certain way, in accordance with certain standards. The term can have
a different meaning depending on the legal context in which it is being used.
What are the 4 elements of negligence?
A negligence claim requires that the person bringing the claim (the plaintiff)
establish four distinct elements: duty of care, breach, causation, and damages.
What are the principles of care?
The Standards are built upon five principles; dignity and respect, compassion,
be included, responsive care and support and wellbeing.
What does it mean to have a duty?
DEFINITIONS. if you have a duty, responsibility etc, you should or must do
something. I have a duty to report anything suspicious to the police. Employers
have an obligation to provide safe working conditions.
What are the elements required to prove negligence?
What are the elements of negligence?
How do you determine negligence?
- The defendant must have owed a duty of care to the plaintiff.
- The defendant must have breached the duty.
- The defendant's breach must have been the direct cause of injury.
- The defendant must have been able to foresee that harm would occur.
Proving Negligence. Most civil lawsuits for injuries allege the wrongdoer was
negligent. To win in a negligence lawsuit, the victim must establish 4 elements:
What are the steps for negligence?
- the wrongdoer owed a duty to the victim,
- the wrongdoer breached the duty,
- the breach caused the injury
- the victim suffered damages.
Negligence claims must prove four things in court: duty, breach, causation, and
damages/harm. Generally speaking, when someone acts in a careless way and causes
an injury to another person, under the legal principle of "negligence" the
careless person will be legally liable for any resulting harm.
In the celebrated Jacob Mathew case, negligence and duty of care has been
discussed in great details. The case is detailed hereunder to enable medical
professionals to understand the judicial thought process or judicial perception
of negligence and its assessment parameters, or what they call ingredients.
It has to be matched with medical perception of the same to be able to
effectively contest a medical negligence suit. At the end of the case details,
medical perception is discussed. Mismatch between the judicial and the medical
perception is highlighted.
Jacob Mathew vs State Of Punjab & Anr on 5 August, 2005
The contexts in which duty of care appears in the judgment:
"Negligence as a tort: The jurisprudential concept of negligence defies any
precise definition. Eminent jurists and leading judgments have assigned various
meanings to negligence."
Duty of care and medical negligence are intertwined and two faces of the same
coin. The Hon'ble Bench was acutely conscious of the fact that negligence being
a tort, is difficult to define or concretize, and hence the variance in its
judicial perception and meaning amongst the eminent jurists of highest court of
Even the instant case of Jacob Mathew before the three judge Bench, is a
reference from the two judge Bench who differed with the decision of the other
two judge Bench of the court.
"The matter came up for hearing before a Bench of two learned judges of this
Court. Reliance was placed by the appellant on a recent two-judge Bench decision
of this Court in Dr. Suresh Gupta v. Govt. of NCT of Delhi and Anr. (2004) 6 SCC
422. The Bench hearing this appeal doubted the correctness of the view taken in
Dr. Suresh Gupta's case and vide order dated 9.9.2004 expressed the opinion that
the matter called for consideration by a Bench of three Judges. This is how the
case has come up for hearing before this Bench."
To resolve the conflict the three judge Bench has discussed in great detail the
Duty of Care and Medical Negligence.
"The concept as has been acceptable to Indian jurisprudential thought is
well-stated in the Law of Torts, Ratanlal & Dhirajlal (Twenty-fourth Edition
2002, edited by Justice G.P. Singh). It is stated (at p.441-442) "Negligence is
the breach of a 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 and reasonable man
would not do.
Actionable negligence consists in the neglect of the use of ordinary care or
skill towards a person to whom the defendant owes the duty of observing ordinary
care and skill, by which neglect the plaintiff has suffered injury to his person
The definition involves three constituents of negligence:
- 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 the
- breach of the said duty; and
- consequential damage.
Cause of action for negligence arises only when damage occurs; for, damage is
a necessary ingredient of this tort.
Adding other dimensions for assessing breach of duty as negligence it is
"According to Charlesworth & Percy on Negligence (Tenth Edition, 2001), in
current forensic speech, negligence has three meanings. They are: (i) a state of
mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the
breach of duty to take care that is imposed by either common or statute law. All
three meanings are applicable in different circumstances but any one of them
does not necessarily exclude the other meanings. (Para 1.01) The essential
components of negligence, as recognized, are three: "duty", "breach" and
"resulting damage", that is to say:
- the existence of a duty to take care, which is owed by the defendant to
- the failure to attain that standard of care, prescribed by the law,
thereby committing a breach of such duty; and
- damage, which is both causally connected with such breach and recognized
by the law, has been suffered by the complainant. (Para 1.23) If the
claimant satisfies the court on the evidence that these three ingredients
are made out, the defendant should be held liable in negligence. (Para 1.24)
Negligence as a tort and as a crime The term 'negligence' is used for the
purpose of fastening the defendant with liability under the Civil Law and,
at times, under the Criminal Law.
It is contended on behalf of the respondents that in both the jurisdictions,
negligence is negligence, and jurisprudentially no distinction can be drawn
between negligence under civil law and negligence under criminal law. The
submission so made cannot be countenanced inasmuch as it is based upon a total
departure from the established terrain of thought running ever since the
beginning of the emergence of the concept of negligence upto the modern times.
Generally speaking, it is the amount of damages incurred which is determinative
of the extent of liability in tort; but in criminal law it is not the amount of
damages but the amount and degree of negligence that is determinative of
liability. To fasten liability in Criminal Law, the degree of negligence has to
be higher than that of negligence enough to fasten liability for damages in
Civil Law. The essential ingredient of mens rea cannot be excluded from
consideration when the charge in a criminal court consists of criminal
In R. v. Lawrence,  1 All ER 974 (HL), Lord Diplock spoke in a Bench of
five and the other Law Lords agreed with him. He reiterated his opinion in R. v.
Caldwell 1981(1) All ER 961 (HL) and dealt with the concept of recklessness as
constituting mens rea in criminal law. His Lordship warned against adopting the
simplistic approach of treating all problems of criminal liability as soluble by
classifying the test of liability as being "subjective" or "objective", and
"Recklessness on the part of the doer of an act does presuppose that there is
something in the circumstances that would have drawn the attention of an
ordinary prudent individual to the possibility that his act was capable of
causing the kind of serious harmful consequences that the section which creates
the offence was intended to prevent, and that the risk of those harmful
consequences occurring was not so slight that an ordinary prudent individual
would feel justified in treating them as negligible.
It is only when this is so that the doer of the act is acting 'recklessly' if,
before doing the act, he either fails to give any thought to the possibility of
there being any such risk or, having recognized that there was such risk, he
nevertheless goes on to do it."
Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr. (1969) 1 SCR
206 was a case under Fatal Accidents Act, 1855. It does not make a reference to
any other decided case. The duties which a doctor owes to his patients came up
for consideration. The Court held that a person who holds himself out ready to
give medical advice and treatment impliedly undertakes that he is possessed of
skill and knowledge for that purpose. Such a person when consulted by a patient
owes him certain duties, viz., a duty of care in deciding whether to undertake
the case, a duty of care in deciding what treatment to be given or a duty of
care in the administration of that treatment.
A breach of any of those duties gives a right of action for negligence to the
patient. The practitioner must bring to his task a reasonable degree of skill
and knowledge and must exercise a reasonable degree of care. Neither the very
highest nor a very low degree of care and competence judged in the light of the
particular circumstances of each case is what the law requires. The doctor no
doubt has a discretion in choosing treatment which he proposes to give to the
patient and such discretion is relatively ampler in cases of emergency.
In this case, the death of patient was caused due to shock resulting from
reduction of the fracture attempted by doctor without taking the elementary
caution of giving anaesthetic to the patient. The doctor was held guilty of
negligence and liability for damages in civil law. We hasten to add that
criminal negligence or liability under criminal law was not an issue before the
Court as it did not arise and hence was not considered.
The term Negligence has been derived from a Latin term negligentia, which
basically means failing to pick up. Since, it does not have any specific
definition, it can be roughly defined as:
breach of a 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 and reasonable man would
Going by this definition, it is quite clear that there is something called a
duty of care, which when breached constitutes a tort of negligence. So, what
exactly does duty of care mean?
As discussed earlier, the concept of duty of care was evolved for the very first
time in the landmark case of Donoghue v Stevenson, where the plaintiff found a
snail in the can of ginger beer and thus filed a case against the defendant.
Before the judgment in this case, there was no concept of duty and care and
plaintiff could only bring a case if a contract had been breached.
Hence, this case holds a profound value today also and the reasoning provided by
the initiated, Lord Atkin i.e., also k/a the neighborhood principle was proven
as the firm bedrock of the principle of duty of care. The neighborhood principle
goes like, a person must take a reasonable care to avert such foreseeable acts
or omissions, which holds the capacity to injure his/her neighbor, a neighbor in
this context can be defined as a person who directly get affected by the
aforementioned acts or omissions."
Perceptions of a medical professional
The four basic ingredients of negligence viz Duty to care, Breach of duty
(dereliction), Damage and Direct correlation between deficiency and damage are
the well established jurisprudential concepts or principles to, medically
speaking, diagnose medical negligence. However, the diagnostic legal criteria,
being too subjective and ill-defined, are difficult for a medical practitioner
to integrate with the highly complex treatment methodology. Legal luminaries,
lacking medical knowledge, too find it difficult to apply these dry legal
principles in dynamic disease episode; hence the wide variance in the judgments
of the Apex court.
Duty to care: The duty for a medical practitioner is his legally obligatory
response to a diseased patient. A duly qualified and licensed practitioner can
not escape it.
Duty of care to select a patient: As part of his obligatory duty a medical
practitioner can not refuse to attend a patient in emergency. However, for
elective patients the practitioner specialist has an undeniable, inalienable
right to deny his services. It is professional freedom. In such a case no duty
to care arises. Duty to care ensues only when a patient is accepted for
treatment; the acceptance maybe implied (almost all cases) or express, free or
Care: In medical matters, for a judge, care means what he or a patient thinks
what a doctor should do when he approaches a doctor for treatment of his
ailment. Objectively defined, for a doctor care means to treat the patient, to
fulfill his or her medical needs. The needs are diagnostic and therapeutic. The
only way that a doctor can prove that he has fulfilled his duty to care, is by
submitting the patient's chronological record detailing the diagnosis and
Competence: That the doctor has due competence is established by placing before
the court, his basic MBBS degree, specialty and super-specialty qualifications,
their due registration and license to practice, and his experience in the field.
This is the only way the court can asses the competence of a medical specialist.
Caution: Anticipation of known adverse consequences and taking steps to prevent
their occurrence is caution. The objective criteria for verifying it is the
informed consent taken. The consent document is proof that he was conscious and
aware of possible adverse consequences and assured the patient that he is
trained to prevent it, and will do so to the best of his endeavour.
Any adverse consequence due to error in judgment or accident, does not lead to
Section 80 in The Indian Penal Code
Accident in doing a lawful act.-Nothing is an offence which 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.
Application of competence with knowledge, skill and caution in a specific
medical act, say in performing Laparoscopic Assisted Vaginal Hysterectomy with
Salpingio Oophorectomy operation or a case of Dangue Hemorrhagic Shock Syndrome,
can only be assessed and commented upon by the medical experts in the field.
Subjective application of legal principles without there being a expert opinion
in the specific case, is travesty of justice as detailed, discussed and
elaborated by the Apex Court in Dr. Harsih Kumar Khurana vs Joginder Singh.
"Every death of a patient cannot on the face of it be considered as death due to
medical negligence unless there is material on record to suggest to that
"To indicate negligence there should be material available on record or else
appropriate medical evidence should be tendered."
"The conclusion reached by the NCDRC on first aspect appears to be an assumption
without the backing of medical evidence."
"Without reference to the evidence, mere assumption would not be sufficient is
the legal position laid down in the decisions referred above."
"To arrive at the conclusion that there was negligence, the medical evidence to
point out negligence in administering anaesthesia even in that situation was
required to be
tendered since the adjudicating authority is not an expert in the field of
medicine to record an independent opinion."
"As already noted, there was no contrary medical evidence placed on record to
establish that the situation had arisen due to the medical negligence on the
part of the doctors."
"The conclusion reached to that effect is purely on applying the legal
principles, without having any contra medical evidence on record"
Dereliction of duty, breach of duty to care or deficiency or deficiency: Nothing
which is done without due care and attention (competence care and caution) is in
Section 52 in The Indian Penal Code
"Good faith".-Nothing is said to be done or believed in "good faith" which
is done or believed without due care and attention.
Once the competence, caution and due care are evidenced and good faith proved,
the defendant doctor should get exemption under the statutory provisions of IPC
Section 88 in The Indian Penal Code
Act not intended to cause death, done by consent in good faith for person's
benefit.-Nothing which is not intended to cause death, is an offence by reason
of any harm which it may cause, or be intended by the doer to cause, or be known
by the doer to be likely to cause, to any person for whose benefit it is done in
good faith, and who has given a consent, whether express or implied, to suffer
that harm, or to take the risk of that harm.
Deficiency in care (error of judgment or accidental injury) is not carelessness.
A medical practitioner can be prosecuted for Malafide only, once his competence
and care are established.
Standard of care, level of care: What an practitioner with and ordinary prudence
and skill would have done, in the specific case, is assessed by the imprecise,
outdated and subjective judicial fiction of Bolam Test. It is respectfully
submitted that this should be done by retrospective review of the patient-record
by the medical practitioner's peers.
Application of legal principles to asses civil or criminal medical negligence,
unsupported by independent expert medical evidence, results into gross
injustice. Gross acts of operating on wrong person, wrong side or wrong organ
etc as detailed in Indian Medical Association vs V P Santhana
, require no
medical evidence to establish liability, and are, therefore exceptions.
Damage: It has to be physical, physiological or functional bodily damage,
certified by a medical practitioner. Patient's allegations, however probable or
possible in the case, should not be accepted in the absence of supporting
Direct causal correlation between the alleged deficiency or dereliction and
damage: The alleged damage must be demonstrated, by medical evidence, to be the
direct result of the alleged deficiency. For negligence to be established all
the four ingredients must be established.
To assign a cause of death to be direct consequence of a particular deficiency
alleged, requires much higher level of expert medical evidence. Application of
legal principles of proximity and preponderance of probability in itself is not
sufficient to establish cause of death. Post mortem by medical jurist is a must
in all disputed cases.
However, in case of a hospital death, where negligence is alleged after disposal
of a body, court should order a verbal autopsy by a board of medical jurists.
Verbal autopsy is retrospective review of a death-case by an expert board of
medical jurists. The treating physician or physicians must be examined and their
submissions recorded. The court should decide on the basis of the report of the
The court should provide opportunity to the accused physician to submit opinion
of another expert board to controvert the findings of jurists. The court too in
its discretion, refer the case to jurists of higher institution, a medical
college or AIIMS or PGI.
For establishing medical negligence all the four ingredients of negligence must
be proved, irrespective of the judicial forum where a case is filed. Assigning
civil or criminal liability on the basis of gravity of error or gravity of
damage, is an independent decision that follows establishment of negligence.
Award Winning Article Is Written By: Dr.Shri Gopal Kabra
Ph no: 8003516198
Authentication No: JL356200500866-15-0723