Next to creating a life, the finest thing a man can do is save one
.- Abraham Lincoln
It is an undeniable fact that medical profession is a noble profession as it
deals with human life which is given the highest importance among anything
present on earth. It is the utmost responsibility of the medical practitioner to
ensure their patients safety while treating them. However it should also be
noted that To Err Is Human
it is natural for human beings to make mistakes and
doctors are no exception to it.
Not every time but in some crucial circumstances
there is a possibility of making mistake. It is important for doctors to perform
their duty with expertise skill and caution when there is failure in performing
the duty it amounts to medical negligence. It is not good for them to handle
their patients without proper technical training and specialization.
recent times the cases on medical negligence is being increased, whatever may be
the reason but the ultimate sufferers are the innocent public who consult
doctors with a firm belief of finding a cure to their health problems and it was
found important to establish laws on medical negligence to provide with a relief
to claim damages occurred to the patient and also punishments for the
professionals negligent behaviour.
This article provides with the detailed explanation on the legal resource or
legal remedies that is available against medical negligence. Various laws
available under which the affected patient or the party related to the affected
patient are as follows:
To whom it is Applicable?
Persons to whom the above acts applicable are:
- Consumer Protection Act 1986
- Criminal law
- Other Laws
- To all the Medical Practitioners
- All private or trust hospitals, nursing homes and polyclinics
- The Government hospitals and doctors
- All laboratories, blood banks and x-ray clinics
- The nurses and paramedical staff
- Medical stores
- Pharmaceutical company
- Quacks jointly and severally.
- The aggrieved patient
- Legal heirs or legal Representative.
- State and Central government
Examples Of Medical Negligence:
There are some errors that are more frequently reported than others. The five
most common examples of medical negligence cases are:
MisdiagnosisThe most common example of medical negligence is misdiagnosis or delayed
diagnosis or failure to diagnose. Perhaps due to a loss of focus, incompetence,
or unavailability of the right tools, some medical practitioners diagnose their
patients wrongly, thereby hindering them from getting the right treatment they
need for their condition. Failing to diagnose a patient correctly can prolong an
ailment, cost the patient more money, and even cause a permanent injury to the
Improper or wrong medication Prescribing incorrect medication is one of the common cases of medical
negligence reported. This may happen when a doctor write an incorrect dosage
for a patient or prescribing of wrong drug for the patient's illness or
receives the medication of another patient.
Anesthesia Administration:Anesthesiologists Not only do they provide pain relief for the patients, they
also have control over the patient's life functions, including breathing, body
temperature, blood pressure, and heart rate. Anesthesiologists are responsible
for the safe delivery of anesthesia to the patients. They are responsible for
pre-operative evaluation, consulting with the surgical staff and post-operative
management of the patients. Anesthesia mistakes happen with major operations as
well as with common elective procedures. An anesthesia error can cause severe
permanent brain damage or death to a patient. Anesthesia errors happen every day
in hospitals, doctor's offices, and surgical centres. Anesthetists and
Anesthesiologists play a vital role in surgeries.
Surgical ErrorNegligence during surgery is the most common case of medical negligence.
Surgical errors may occur due to various reasons it includes improper
preparation, Lack of skills, Taking shortcuts during surgery to save time or
resources. Communication failures may include surgical staff not communicating
properly with one another, mistakes such as the doctor marking the wrong site
for the surgery, and miscommunication about medication dosage that the patient
should have after surgery, performing the incorrect procedure, performing
unnecessary surgery. Damaging other organs, nerves, or tissues during surgery,
Leaving medical equipment and foreign objects inside the patient, providing
inadequate post-operative care, including failing to recognize and treat the
symptoms of surgical complications. Reasons may differ but the outcome does not
provide any good to the patient.
Consumer Protection Act, 1986
- A consumer is a buyer who buys a good for consumption not having an idea
of resale it also includes consumption of services. The consumer protection
act was introduced in the year 1986 for public benefit, provide speedy
remedy to the public, to recognise their rights, providing low cost remedy, to get
compensation without any complicated proceedings.
- When it comes to medical negligence it was decided in a land mark judgement In the case Indian Medical Association vs. V.P. Santha –III (1995)
CPJ 1(SC), service provided by almost every doctor is covered under this act.
After this judgement an aggrieved person can claim damages for medical
negligence against a doctor or a hospital.
- The remedy under this act is an alternative in addition to that already
available to the aggrieved person by way of a civil suit. In the
complaint/appeal/petition submitted under the act, a consumer is required to
pay a nominal fee.
- The consumer forum consist of a 3-Tire structure of the National and
state commission and district forums
Any aggrieved party shall claim for damages through the consumer forums
District ForumIt is established in each district of the state. There are three members, a
district judge is the president of the forum and with other two members. The
District forum can entertain claim up to 20 Lakhs. Appeal can be made to the
State commission against the order of district forum.
State CommissionIt is established in each state. There are three members, a High Court judge is
the president of the forum and with other two members. The State commission can
entertain claim from 20 Lakhs to 100 lakhs. Appeal can be made to the National
commission against the order of State Commission.
National CommissionIt is established in Delhi. There are five members, a Supreme Court judge is the
president of the forum and with other four members. The National Commission can
entertain claim more than 100 Lakhs. Appeal can be made to the Supreme Court
against the order of National Commission.
The time limit to file an Appeal is 30 days from the date of the order and it is
not the date of pronouncement but the date on which the certified copy of the
order was available.
- The Aggrieved patient or a Registered Consumer Organisation or the state
or Central government, the legal heirs or representatives of the aggrieved
patients can sue a doctor for medical negligence under the consumer protection
- Section 2(c) of the act provides that a complaint can be given for
unfair trade practice or restrictive trade practice. In case of medical
negligence wrong representation about qualification or facilities available
may be called unfair trade practice.
- The time limit to file a complaint for medical negligence is 2years
under the consumer protection act 1986 from the Date of injury.
Medical Negligence In Criminal Law:
Under Criminal law when it is proved that the negligent act is performed with
Mens Rea (guilty mind) he shall be punished under the criminal law now because
of Code of Criminal Procedure (C.C.P.) amendment - 1973, patient may get
compensation too. The intention to behave in such negligent way shall be proved
to make a doctor liable under criminal law. There are also protection given
under the Indian penal code for the doctor who act under good faith.
Prosecution under Sec 304A of IPC:
Doctors can be prosecuted for an offence of which rashness or negligence is an
essential ingredient, but they are to be protected from frivolous and unjust
- Many a complainant prefers recourse to criminal process as a tool for
pressurizing the medical professional for extracting uncalled for or unjust
compensation. Such malicious proceedings have to be guarded against.
- A private complaint may not be entertained unless the complainant has
produced prima facie evidence before the Court in the form of a credible
opinion given by another competent doctor to support the charge of rashness
or negligence on the part of the accused doctor.
- The Investigating Officer, before proceeding against the doctor should
obtain an independent and competent medical opinion preferably from a Doctor
in Govt. service.
- A doctor may not be arrested in routine, unless his arrest is necessary
for furthering the investigation or for collecting evidence or the Doctor
would not make himself available to face prosecution unless arrested.
- Section 312 to 316(Causing Miscarriage), Section 319 to 322(Causing
grievous hurt), Section 336 to 339(Act of endangering life or personal
safety of others), Section 345(wrongful confinement) of the Indian Penal
Code directly and indirectly deals with Criminal medical negligence.
The Indian Medical Council Act 1956Any person incurred damages due to the act any doctor's negligence can file a
complaint with the respective council. However the council has the power to
punish the doctor and cancel their registration for their negligent behaviour
but does not have the power to provide compensation for the victim of such
misconduct. Since last few years the Indian Medical Council has started taking
harsh steps for improvement in standard of medical practice and medical ethics.
Civil LawsBefore the introduction of the consumer protection act the claims on medical
negligence is claimed under the Contract law even in the present damages can be
claimed under civil law but after the introduction of the consumer protection
act the civil law remedy is given less importance. There is a specific contact
between the doctor and the patient either be oral, written or implied terms
agreed upon by the patient or his representatives and the doctor or hospital.
Consent for treatment on payment of fees on the part of a patient can be treated
as an implied contract with the doctor, who by undertaking treatment on
acceptance of fees, promises to exercise proper care and skill. Breach of
contract When a contract has been broken, if a sum is named in the contract as
the amount to be paid in case of such breach, or if the contract contains any
other stipulation by way of penalty, the party complaining of the breach is
entitled, whether or not actual damage or loss is proved to have been caused
thereby, to receive from the party who has broken the contract reasonable
- Indian Medical Association vs. V.P. Santha –III (1995) CPJ 1(SC)
As a result of this judgment, medical profession has been brought under the
Section 2(1) (o) of CPA, 1986 and also, it has included the following categories
of doctors/hospitals under this Section.
- All medical / dental practitioners doing independent medical / dental
practice unless rendering only free service.
- Private hospitals charging all patients.
- All hospitals having free as well as paying patients and all the paying
and free category patients receiving treatment in such hospitals.
- Medical / dental practitioners and hospitals paid by an insurance firm
for the treatment of a client or an employment for that of an employee.
- It exempts only those hospitals and the medical / dental practitioners
of such hospitals which offer free service to all patients.
- Further, this judgment concedes that the summary procedure prescribed by
the CPA would suit only glaring cases of negligence and in complaints
involving complicated issues requiring recording of the evidence of experts,
the complainant can be asked to approach the civil courts.
- Also, this judgment says that the deficiency in service means only
negligence in a medical negligence case and it would be determined under CPA
by applying the same test as is applied in an action for damages for
negligence in a civil court.
- As a result of this judgment, virtually all private and government
hospitals and the doctors employed by them and the independent medical /
dental practitioners except primary health centres, birth control measures,
anti-malaria drive and other such welfare activities can be sued under the CPA.
- Fortis Escorts Hospital v Smt. Meenu Jain. FA: 747/12 – 14/5/13 – Raj.
- Patient was forced to purchase injections from the hospital itself at
Rs.18,990/-, which was available at 30% to 40% discount in the market.
- The contended that no money in excess to the maximum retail price was
charged - hospital does not allow the patients to purchase medicines from
outside in order to ensure the quality and genuineness of the medicines and
for the welfare of the patients – signed general consent form.
- It was held that in a critical condition, was not supposed to go through
the terms and conditions of the admission and signatures in a routine
manner. Hospital was in a dominating position over patient adverse inference
of undue influence can very well be drawn against the hospital.
- Hospital authorities indirectly imposed unjustified and unreasonable
conditions by way of compelling them to purchase the injections from the
hospital. Amounted to restrictive trade practice and unfair trade practice.
- Also entitled to get from the hospital the information as to what was
the price of the drugs or injections and what was their batch number and
expiry date which were not furnished. direct the hospital not to repeat such
unfair trade practice in future as it is within jurisdiction under u/s 14
(1) (f) of CPA.
- Heirs of A. Shah v Bombay Hosp. 1992 (II) CPR 154.
- The complainant approached Medical Councils but they replied that they
had no statutory power and authority to look into such case.
- It was observed that: we find that despite the frantic efforts on the
part of the complainant to approach the different authorities, no cognizance
of the complaint was taken by any medical organization, we are deeply
grieved to note the inaction on the part of these highest professional
bodies meant for the observance of the professional conduct of the
practicing doctors and the hospitals.
- State of Haryana v Smt. Santra. I (2000) CPJ 53 (SC)
- Negligence has many manifestations - it may be active negligence,
collateral negligence, comparative negligence, concurrent negligence,
continued negligence, criminal negligence, gross negligence, hazardous
negligence, active and passive negligence, will full or reckless negligence
or negligence per se.
- It is defined in Black's Law Dictionary as under: Negligence per se:
Conduct, whether of action or omission, which may be declared and treated as
negligence without any argument or proof as to the particular surrounding
circumstances, either because it is in violation of a statute or valid
Municipal ordinance, or because it is so palpably opposed to the dictates of
common prudence that it can be said without hesitation or doubt that no
careful person would have been guilty of it. As a general rule, the
violation of a public duty, enjoined by law for the protection of person or
property, so constitutes.
- It was also observed that where a person is guilty of negligence per se,
no further proof is needed.
- Dr.Laxman Joshi v Dr.Godbole. AIR (1989) SC 128.
- A 20 yr. old boy had accidental fracture femur - doctor performed
reduction without anesthesia, alleged excessive force caused shock and death
- doctor contended that Inj. Morphine was given and death was due to Cerebral
- The Trial Court held the doctor liable and observed that excessive force
without anesthesia resulted in embolism or shock was the proximate cause of
- The High Court upheld and observed that doctor's case that the boy died
of cerebral embolism was merely a cloak used for supressing the real cause of death
- The Supreme Court Observed:
The duties which a doctor owes to his patient are clear. A person 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 give or a duty of care in
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 not a very low degree of
care and competence judged in the light of the particular circumstances of
each case is what law requires.
Case laws under section 304A of IPC:
Place For Thought
- Sukaroo Kobiraj. (1887) 14 Cal 566.
Cut piles with ordinary knife lead to bleeding and the patient died
- Jugankhan. AIR 1965 SC 831.
Homeopath, administered herbals, without studying its effect, death due to
- De Souza. (1920) 42 All 272.
Compounder without reading label of bottle prepared fever mixture (contained
strychnine instead quinine) seven people died.
- State of MP v Jagdish Baloi. 1992 Cr. LJ 746 MP.
High speed car knocked down pedestrian walking on left side of road cause death
car break down the Fencing stuck in ditch Res applied.
The concept of Bolam test arrived from the case Bolam Vs Friern Hospital
. Medical negligence cases are briefly decided under the
basis of Bolam Test. The bolam test talks about the exercise of ordinary skill
of an ordinary competent man exercising that particular art. In simple words it
means that the person who procures the ordinary skill of performing the activity
can perform such activity there is no necessity to have an expert knowledge. The
Bolam test usually favours the professionals. In the Case Bolam v Friern
. (1957) 2 AllER 118.
From the above case it can be noted that:
- A patient, suffering from depression was admitted to a mental hospital
advised ECT but doctor did not warn about slight risk of bone
fracture involved in accordance with normal practice the doctor did not
administer relaxant or apply any form of manual restraint patient suffered
bilateral fracture of acetabula.
- Complaint Alleged that the Doctor 1. Failed to administer, a suitable
relaxant 2. Failing to warn the patient of the risk involved in ECT 3. Failing
to provide sufficient manual control.
- Experts witnessed both the sides. The defendant witness provides that
witness testified that there was a large body of competent medical opinion
opposed to use relaxant,the more restraint there was more like hood there was
of a fracture - it was not desirable to warn, unless asked.
- It was observed that: a man need not possess the highest expert skill,
it is well established law that it is sufficient if he exercises the
ordinary skill of an ordinary competent man exercising that particular art.
- A doctor is not guilty of negligence if he has acted in accordance with
a practice accepted as proper by reasonable body of medical men skilled in
that particular art.
- A doctor is not negligent if he is acting in accordance with such a
practice merely because there is a body of opinion that takes a contrary
- If proper practice requires some warning to be given, the second
question is, if a warning had been given, would it have made any difference.
- The case made a Ruling that a doctor accused of medical negligence
needed only to find an expert who would testify to having done the same
- This test expects standards which must be in accordance with a
responsible body of opinion, even if others differ in opinion. In other
words, the Bolam
test states that If a doctor reaches the standard of a responsible body of
medical opinion, he is not negligent.
- This test however subject to criticisms has it is overly relying on
- Even though Bolam test is applied the doctor should not forget that when a
patient is fully in a judgement of believing the words of the doctor and his
ability he should carefully perform his duty with full care and skill.
- New standards on the application of the Bolam test shall be framed.
- Medical Negligence (Truth Revealed): Medical & Law: Dr. Mahendra Joshi.