Negligence is doing something which a reasonable man would not do and
omitting to do something which a reasonable man would do. The essential
components of negligence are three: ‘duty’, ‘breach’ and ‘resulting damage’.
Every person who enters into a learned profession undertakes to bring to the
exercise of it such care and skill as becomes one belonging to that profession.
A medical professional owes a duty of care towards its patients and breach of
that duty results in medical negligence. A professional does not undertake that
he will perform a cure; nor does he undertake to use the highest possible degree
of skill; but he undertakes to bring a fair, reasonable and competent degree of
The medical profession has been considered reputed since ages because of the
respect people in this profession earns. In India doctors has been given the
status of god as they save our lives and always saves ourselves from various
diseases. A doctor or other medical professional has a duty of care towards his
patient. Breach of that duty cause damage to the patient and here results the
Every person who enters into a learned profession undertakes
to bring to the exercise of it such care and skill as becomes one belonging to
that profession. A surgeon does not undertake that he will perform a cure; nor
does he undertake to use the highest possible degree of skill; but he undertakes
to bring a fair, reasonable, and competent degree of skill.
One is responsible for the direct consequences of his negligent acts where he is
placed in such a position with regard to another that it is obvious that if he
does not use due care in his own conduct, he will cause injury to another.
Black’s Law Dictionary defines negligence to mean:
“the exercise of the standard of care that falls below the legal standard
established to protect others against unreasonable risk of harm, except for
conduct that is intentionally, wantonly, wilfully disregardful of others
Winfield stated that negligence as a tort is the breach of a legal duty to take
care which result in damage, undesired by the defendant, to the plaintiff.
Any reasonable man entering into a profession which requires a particular level
of learning to be called as a professional of that branch, impliedly assures the
person dealing with him that the skill which he professes to possess shall be
exercised with reasonable care and caution. A doctor cannot and does not
guarantee that the result of his treatment would invariably be beneficial, much
less to the extent of 100% for the person operated upon.
The only assurance he
gives or can be understood to have given is that he is possessed of the
requisite skill in that branch of profession which he is practicing and while
undertaking the performance of the task entrusted to him, he would be exercising
his skill with reasonable competence.
According to Blacks’ Law Dictionary, medical negligence is the failure to
provide medical, dental or psychiatric care that is necessary to prevent or to
treat serious physical or emotional injury or illness while medical malpractice
is a doctor’s failure to exercise the degree of care and skill that a physician
or surgeon of the same medical specialty would use under similar circumstance.
When a patient comes to a doctor for care and the doctor accepts the same, at
that moment an implied duty of care arises. Medically speaking, negligence is
the breach of duty owned by a doctor to his patient to exercise reasonable care
and skills, resulting in some bodily, mental and in turn financial loss and
disability. Medical negligence is one category of civil wrong.
The degree of skill and care required by a medical practitioner as explained in
Halsbury’s Law Of England
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, and a person is
not liable in negligence because someone else of greater skill and knowledge
would have prescribed different treatment or operated in a different way; nor is
he guilty of negligence if he has acted in accordance with a practice accepted
as proper by a responsible body of medical men skilled in that particular art,
even though a body of adverse opinion also existed among medical men.
Mc Nair, J in Bolam v/s. Friern Hospital
 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
The Concept Of Medical Negligence
The Apex court in Jacob Mathew v. state of Punjab
‘Negligence is the 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 and
reasonable man would not do. Actionable negligence consists in the neglect of
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 to his person or property’.
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 duty.
Whenever a person approaches another trusting him to possess certain skill, or
special knowledge on a given problem the second party is under an implied legal
duty to exercise due diligence as is expected to act at least in such a manner
as is expected in the ordinary course from his contemporaries. So, it is not
that the legal duty can only be contractual and not otherwise. Failure on the
part of such a person to do something which was incumbent so, that which would
be just and reasonable tantamount to negligence.
- Breach of the said duty
There is a certainly a breach of legal duty if the person exercising the skill
does something which an ordinary man would not have done or fails to do that
which an ordinary prudent man would have done in a similar situation. The
standards are not supposed to be of very high degree or otherwise, but just the
relative kind, that is expected from man in the ordinary course of treatment.
- Consequential damage
The wrong, the injury occasioned by such negligence is liable to be compensated
in terms of money and the courts apply the well settled principles for
determination of the exact liquidated amount. We must remember that no hard and
fast rule can be laid down for universal application. While awarding
compensation, the consumer forum has to take into account all relevant factors
and assess compensation on the basis of accepted legal principles on moderation.
It is for the consumer forum to decide whether the compensation awarded is
reasonable, fair and proper according to the facts and circumstances of the
A simple lack of care, on error of judgement or an accident, is not proof of
negligence on the part of a medical professional. So long as the doctor follows
a practice acceptable to the medical profession of that day, he cannot be held
liable for negligence merely because a better alternative course or method of
treatment was also available or simply because a more skilled doctor would not
have chosen to follow or resort to that practice or procedure which the accused
A professional may be held liable for negligence on one of the two findings:
- He was not possessed of the requisite skills which he professed to have
- He did not exercise, with reasonable competence in the given case, the
skill which he didn’t possess.
The standard to be applied for judging, whether the person charged has been
negligent or not, would be that of an ordinary competent person exercising
ordinary skill in that profession. It is not possible for every professional to
possess the highest level of expertise or skills in that branch which he
practices. A highly skilled professional may be possessed of better qualities,
but that cannot be made the basis or the yardstick for judging the performance
of the professional proceeded against on indictment of negligence.
When a medical practitioner attends to his patient, he owes him following duty
- A duty of care in deciding whether to undertake the case.
- A duty of care in deciding what treatment to give.;
- A duty of care in the administration of the treatment.
A breach of these duties gives right of action for negligence to the
The Standard Of Care Required: The Bolam Test
test was first recognized in an English law case Bolam v/s
Friern Hospital Management Committee
 . facts of this case are that the claimant was
undergoing electroconvulsive therapy as treatment for his mental illness. The
doctor did not give any relaxant drugs and the claimant suffered a serious
fracture. There was divided opinion amongst professionals as to whether relaxant
drugs should be given. If they are given there is a very small risk of death, if
they are not given there is a small risk of fractures. The claimant argued that
the doctor breached the duty of care by not using the relaxant drugs.
It was held that the doctor did not
breach the duty of care. The court stated that if a doctor has acted according
to proper and accepted practice, he is not guilty of negligence.
There was considerable ambiguity on the standard of care required to be
exercised by medical practitioners in order to discharge possible criminal
liability arising out of their acts or omissions.
It is now a settled principle
of law that a medical practitioner will bring to his task a reasonable degree of
skill and knowledge and must exercise a reasonable degree of care. Neither the
very highest nor the very lowest degree of care and competence judged in the
light of circumstances in each case is what the law requires.
Reasonable degree of care and skill means that the degree of care and competence
that an “ordinary competent member of the profession who professes to have those
skills would exercise in the circumstance in question.” At this stage, it may be
necessary to note the distinction between the standard of care and the degree of
The standard of care is a constant and remains the same in all cases. It
is the requirement that the conduct of the doctor be reasonable and need not
necessarily conform to the highest degree of care or the lowest degree of care
possible. The degree of care is a variable and depends on the circumstance. It
is used to refer to what actually amounts to reasonableness in a given
Bolitho Vs. City & Hackney Health Authority 
Facts in brief: A child was brought to a hospital suffering from breathing
abnormalities. The doctor summoned to deal with the matter never received the
summon due to a low battery on her bleep. The child died as a result. The
child’s mother sued for negligence, arguing that the child should have been seen
The house of lords held that there would have to be a logical basis for the
opinion not to intubate. On the facts, it was decided that not intubating the
child in the particular circumstances at hand was not a negligent way to take,
even though the expert opinion on the matter was divided.
The judgement given by house of lords imposes a requirement that the standard
proclaimed must be justified on a logical basis and must have considered the
risks and benefits of competing options. The effect of Bolitho is that the court
will take a more enquiring stance to test the medical evidence offered by both
parties in litigation, in order to reach its own conclusions. Prima facie, the
Bolitho judgement implies that patient’s interest/autonomy is not being
neglected as it was affirmed that medical specialists cannot be free to
adjudicate on their own matters.
Unfortunately, medical negligence occurs every day in Indian hospitals and there
are believed to be almost a million such occurrences every year. Around one in
10 patients are believed to suffer further as a result of their treatment in
hospital and a proportion of these people will go on to claim personal injury
compensation through a medical negligence claim.
The Bolitho test makes it possible to get quick relief as it increases the
burden on the medical practitioner and thus leaves more scope for compensation.
Unlike the Bolam test, the Bolitho test says that the court should not accept a
defence argument as being "reasonable", "respectable" or "responsible"
first assessing whether such opinion is susceptible to logical analysis.
However, where there is a body of medical opinion which represents itself as "reasonable", "respectable" or "responsible"
it will be rare for the court to be
able to hold such opinion to be other than represented. The Bolitho ruling means
that testimony for the medical professional who is alleged to have carried out
the medical negligence can be found to be unreasonable, although this will only
happen in a very small number of cases.
Indubitably Bolitho took a ‘step in right direction’ by way of its recognition
of the need for judicial scrutiny, by way of its recognition of the need for
judicial scrutiny, but its success is contingent upon how far ruling is
In M/S Spring Meadows Hospital Vs. Harjot Ahluwalia
the court observed:
‘The true position is that an error of judgement may, or may not, be negligent,
it depends on the nature of the error. If it is one that would not have been
made by a reasonably competent professional man professing to have the standard
and type of skill that the defendant holds himself out as having, and acting
with ordinary care, then it is negligence. If, on the other hand, it is an error
that such a man, acting with ordinary care, might have made, then it is not
Remedy Available In India
Patients who are sufferer from the negligent acts of medical practitioners can
seek remedy from following various laws:
Action under the law of torts
- Compensatory action
Complaint against doctors, staff or hospital whether private or government
hospitals who committed negligence seeking monetary compensation before civil
court under law of torts or law of contract, high court under constitutional
law, or consumer courts under consumer protection act.
Law of torts circumscribes the principle to compensate the victim for the injury
or loss suffered by him. Since it is in the nature of civil proceeding a civil
court has to be approached to seek the remedy.
Action under law of contracts
Whenever a patient approaches a private health professional for medical care,
the relationship between the hospital and the patient is one of contractual in
nature. The civil suit under law of contract is not maintainable unless the
plaintiff proves that he availed of service of the defendant health carer for
consideration and thus a contractual obligation exists between a patient and the
doctor. No suit can be brought in the civil court for remedies under the law of
contract without hiring the service for
Under consumer protection act, 1986
This act was enacted to provide a simpler and quicker access to redress consumer
grievances. Consumer that has suffered loss or damage as a result of any
deficiency of service can file a complaint under consumer protection act, 1986.
The act ensures that the aggrieved consumer should be provided with remedy
through its three tier quasi-judicial bodies: district forum, state commission
and national commission.
Deficiency of service:
It means any fault, imperfection, shortcomings, or inadequacy in the quality,
nature, or manner of performance that is required to be maintained by or under
any law for the time being in force or has been undertaken by a person in
pursuance of a contract or otherwise in relation to any service.
Patient as a consumer:
In order to file a complaint against the medical practitioner under the ambit of
consumer protection act 1986, the patient should justify with the definition of
consumer which includes a person who have hired or availed of any services for a
consideration. The element of consideration serves as a test to determine
whether a patient is a consumer or not.
- The service must be hired by him
- The service should have been rendered to him.
- For hiring services, he must have paid or promised to pay consideration.
If services are rendered free of charge, it can’t be hired. If a patient gets
free medical treatment in a government hospital or in any charitable hospital,
without payment, is not a consumer.
Medical services covered by sec 2(1)(i) of the act:
To initiate action against medical practitioner under the said act, the services
rendered by medical practitioner, hospital or nursing home should fall within
the definition of services under section 2(1)(i) of the act. The expression
‘service’ has been defined as ‘service of any description which is made
available to potential users’.
In Indian Medical Association V. V.P Shantha
the supreme court observed that the
medical services rendered by the medical practitioners are covered by sec 2 (1)
(i) of the act. It excludes free services or services under a contract of
Remedy under constitution of India
Constitution does not guarantee any special rights to the patient. The patient’s
rights are derivative rights, which emanates from the obligation of the health
care provider. The right to life under article 21 includes the right to health
and medical treatment. the right to life would be meaningless unless medical
care is assured to a sick person. Wherever there is infringement of right to
life and personal liberty the person aggrieved or any public spiritual
individual can move the supreme court or high court by appropriate proceedings
for the enforcement of rights so infringed by the state action. The courts are
empowered to grant compensatory relief if the state fails to preserve the life
or liberty of the citizen. The courts are under obligation to protect the rights
of the citizens, since the courts and laws are made for the people.
Any person whose right has been infringed can move to supreme court under
article 32 of the constitution. The supreme court shall have power to issue
directions or orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo-warrant and certiorari, whichever may be appropriate,
for the enforcement.
Similarly, one can move the high court
by appropriate proceedings for the enforcement of the rights conferred and
guaranteed under the constitution and other laws. (art 226).
2. Punitive action
Criminal complaint against the doctor under Indian penal code
The main object of the criminal law is not to award damages but to ensure that
the doctor is put behind bars for his negligent acts. However, under criminal
procedure code, the court may award compensation to the aggrieved party out of
the fine amount collected from accused. In MARI SINGH AND STATE OF HARYANA VS.
SUKHBIR SINGH the supreme court directed all the criminal courts to exercise
the power of awarding compensation to victims of offence in liberal way that the
victims or their legal representatives may not have to rush to the civil courts
for compensation. It may be argued that incidentally Indian penal code 1860 does
not specify the crime of medical negligence, nonetheless, negligent act of
doctor causing hurt, grievous hurt or death has been brought within the ambit of
the provisions of Indian penal code.
Prosecution under section 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
3. Disciplinary action
- Many a complainant prefers recourse to criminal process as a tool for
pressurizing the medical professional for extracting 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 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.
Complaint seeking disciplinary action against the medical practitioner or the
hospitals as the case may be, before statutory bodies governing the medical
practitioners such as Indian medical council or state medical council.
Complaint before medical council of India
The medical council of India grants recognition to medical degrees granted by
universities or medical institutions in India and such other qualifications
granted by medical institutions in foreign countries. It lays down and
prescribes the minimum standard of medical education required for granting
recognition to the degrees awarded by universities in India.
Furthermore, the council is empowered to have disciplinary control over the
medical practitioner including the power to remove the names of medical
practitioners permanently or for a specific period from the medical registers
when after due enquiry they are found to have been guilty of serious
Grounds to initiate disciplinary action against medical practitioner
It includes conviction of any offence by a court of law and guilty of
Any conduct of the practitioner which brings in disgrace to the professional
status what is known to be ‘serious professional misconduct’ for e.g. adultery
or improper conduct or association with a patient, conviction by a court of law
for offences involving moral turpitude, issuing false certificates, reports and
other documents; issuing certificate of efficiency in modern medicine to
unqualified person or non-medical person; performing an abortion or illegal
operation for which there is no medical, surgical indication, revealing identity
of patient without his permission; performing an operation which results in
sterility, without obtaining the written consent of patient/ relative and
refusing on religious grounds alone to extend medical assistance etc.
Proceedings is initiated by the council
- when a medical practitioner has been convicted by a court of law
- when a complaint is lodged by any person or body against the
Complaint is then placed before the sub-committee or the executive committee
which considers the complaint, causes, further investigation and takes legal
advice. If no prima facie case is made out the complainant is communicated about
If prima facie case is established, issuance of notice to the practitioner
specifying the nature and particulars of the charge and directing him to answer
the charge in writing and to appear before the committee on the appointed day.
4. Recommendatory action
Complaint before human right commission.
Irrespective of different remedies discussed above there is yet an alternate
mechanism for the protection of patient’s rights under the national and state
human rights commissions (NHRC and SHRC). Patients can file complaints regarding
violation of human rights before NHRC/SHRC as the case may be. NHRC/ SHRC then
seeks explanations from the governments for such violations and can also
initiate proceedings including independent investigation, issuance of summons to
witness. Examination on oath etc. it persuades the state to pay compensation to
the victims, patients and also recommends grant of interim relief to the victim
or his/her family.
Conclusions And Suggestion
The above discussion on medical negligence reflects that how a patient who
intends to sue a doctor or hospital for medical negligence have different
mechanism available under constitution and various statutes. In our country an
aggrieved patient can resort to remedies available under the consumer protection
act 1986 as well as under constitution to protect his right to health.
- Doctors should be enlightened on the nature of duties and the
implication of these duties.
- Patients should be made aware of their rights when they suffer any
injury because of negligence on the part of doctors or health care
professionals. They should be properly educated as to their remedies
available to them in any case of breach of duty on the part of health care
Books And Articles
- Supreme court judgement on criminal medical negligence: a challenge to the
profession by M R Hariharan Nair (https://doi.org/10.20529/IJME.2005.056
- Test of medical negligence by kiruthikadhana pal (legalservicesindia.com)
- Law of torts by RK BANGIA; Allahabad law agency publishers.
- Veracity of laws relating to medical malpractice in India by Aditya Singhal
International Journal of Scientific and Research Publications (ISSN:
- Medical negligence and remedies to patients
(Astrea legal associates LLP)
- Breach of duty of care in medical negligence: scope and limitation
By Babatunde, Rashidat Aderayo
- Consumer protection act, 1986
- Indian penal code, 1860
- Criminal procedure code 1973
- Rogers, W.V.H, Winfield and Jolowicz on Tort, (17th Edn., Sweet and
Maxwell International Student Edition, 1998) p.90
- (1957) 2 AllER 118
- AIR 2005 SC 3180
- Philips India ltd. Vs Kunju punnu AIR 1975 Bom 306
- 1957 1 WLR 582
- (1997) 4 ALL ER 771
- (1998) 4 SCC 39
- 1988 SC 2127; 1989 Cr.L.J. J 116 (SC)