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
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
neighbor in this context can be defined as a person who directly get affected by
the aforementioned acts or omissions.
Needless to say, to avoid the breach of duty of care towards the neighbor, that
duty has to exist in the first place. Along with that, the plaintiff must have
suffered a damage also to avail the tort of negligence.
To sum it up, the following three conditions must be satisfied in order to
establish the tort of negligence:
- There must exist a duty of care, which is owed by the defendant to the
- That standard duty of care must be violated by the defendant; and
- A legally recognized damage should be suffered by the plaintiff, as a
result of the concerned breach of duty.
This could be understood more comprehensively through the comparison of two
cases, before and after the introduction of the principle of duty of care, which
would simultaneously explicate the need of the principle also.
The first case is Winterbottom v Wright
(1842), in this case, the
defendant had contracted with the Postmaster General to keep a horse drawn mail
coach in a safe and secure state. However, the Postmaster had contracted with
Winterbottom (plaintiff) also to drive the same coach as directed by him. While
driving, the coach broke down due to the lack of repair work and plaintiff filed
a case against the defendant. The court held that, since there existed no legal
contract between the plaintiff and the defendant, therefore Winterbottom have to
right to sue Wright (defendant).
The second case is Grant v Australian Knitting Mills
(1935), in this
case, the plaintiff (Dr. Grant) purchased two sets of underwear manufactured by
AKM (defendant). Later, the plaintiff developed severe skin disorder and
consequently was hospitalized for a year as the bisulfate chemical was not
properly rinsed from the garment by the defendant. The court held that there was
a duty of care between Dr. Grant and AKM and undoubtedly, AKM had breached that
duty due to which the plaintiff had to suffer severe damage. Hence, the
defendant was made liable for the tort of negligence.
The noteworthy point in the aforementioned cases is the reasoning behind the
judgment. In the first case, evidently, Wright had acted negligently but since
the neighborhood principle was not introduced till then, the court applied the
principle of privity of contract. Another case very much similar in facts and
court being cognizant of the judgment of Donoghue v Stevenson, applied the
principle of duty of care and made the defendant liable for the negligent act.
Duty of Care in the Medical Profession
Whether it is medical or any other profession, as per the Law of torts, Dr. R.K.
Bangia (Twenty-first Edition 2008), a professional may be held liable for
negligence based on one of the two findings listed below:
- Either he lacked the necessary skill, which he claimed to have
- He did not exercise the skill with reasonable care.
Additionally, Bolam test
was laid down in the case of Bolam v Friern
Hospital Management Committee ,
where the patient (plaintiff) filed a
case against FHMC, whose employed doctor did not give the muscle relaxant drugs
before giving the electro-convulsive therapy to the plaintiff, due to which, he
suffered several injuries. The court held the doctor not liable on the basis of
the landmark rational as put forward by McNair J:
A man is neither required to possess or practice any special skill nor he has to
be an apostle in his profession. It is well established law that it is
sufficient if he exercises the ordinary skill of an ordinary competent man
exercising that particular art. Mere exercising an ordinary skill does not
amount to breach of duty of care.
Although in the case of Hucks v. Cole (1968)
, where the doctor refused to
treat the patient with penicillin, who was suffering from some septic spots on
skin, the doctor as made liable yet the opinion of Lord Denning:
A medical practitioner was not to be held liable simply because things went
wrong from mischance or misadventure or through an error of judgment in choosing
one reasonable course of treatment in preference of another. A medical
practitioner would be liable only where his conduct fell below that of the
standards of a reasonably competent practitioner in his field was taken as a
reference for future cases.
Another paramount rationale was laid down in the case of Maynard v. West
Midlands Regional Health Authority (1985). In this case Lord Scarman reasoned
If a body professional opinion, equally competent has supported the act of the
medical practitioner and would have performed the same as that practitioner than
it is enough to clear the possibility of negligence in such case. Similar thing
was held by the Supreme Court of India in the case of Dr Laxman Balkrishna
Joshi v. Dr Trimbak Bapu Godbole
Charlesworth & Percy in their celebrated work on Negligence has very beautifully
summed up all the salient points to establish the liability for negligence in
medical profession. The points are as follows
- There exists a usual or normal practice for any concerned case
- The medical practitioner has failed to perform it; and,
- No professional man with ordinary skill would have taken the course as
adopted by the doctor.
Now, applying the 3 set necessary conditions in the following case of
Smt.Santra v. State of Haryana
, Smt. Santra underwent a surgery for
sterilization but the medical practitioner operated only fallopian tube and left
the second one unattended. Later, the poor woman (plaintiff) already nurturing 8
children got pregnant.
Here, a normal practice for the operation was existing, the doctor failed to
perform that ordinary practice and obviously no other professional would have
left a fallopian tube untouched in the operation of sterilization. Hence, this
was a clear-cut case of medical negligence as all the pre mentioned 3 conditions
were satisfied and thus, the Apex court ordered to grant the compensation to the
Res ipsa loquitur and Medical Negligence
Res ipsa loquitur is a Latin maxim, which means The thing speaks for itself
It is applied, when no additional proof is required and the accident itself
works as a sufficient evidence. However, in the case of medical negligence,
following conditions were considered by the court as happened in the case of
Dr Janak Kantimathi Nathan v. Murlidhar Eknath Masane
- There should be sufficient evidence that the situation was unexpected;
- The situation was not possible without a negligent act and lapses on the
part of the medical practitioner; and,
- Doctor and not any other person was negligent.
In the case of Ratcliffe v Plymouth and Torbay Health Authority
the court laid down another exemplary principle, Res ipsa loquitur is not a
principle of law and it does not relate to or raise any presumption. It is
merely a guide to help identify when a prima facie case is being made out. Where
expert and factual evidence is being called on both sides at trial its
usefulness will normally have been long since exhausted.
Once the above mentioned three conditions are fulfilled, the court may draw an
inference of negligence against the defendant and consequently the burden of
proof shifts to the part of defendant.
In the case of Nizam Institute of Medical Sciences v. Prasanth S. Dhananka
, where a hospital was held liable and the plaintiff was granted
Rs.1,00,00,000/- as a compensation because the plaintiff got infected with acute
paraplegia with an entire loss of control over his lower limbs due to the
negligent act of the doctor, it was observed that:
once the preliminary burden has been dispensed by the aggrieved patient by
establishing a case of medical negligence by the medical practitioner or the
hospital related to, the burden of proof subsequently shifts on to the medical
practitioners treating the patient or the hospital and it is for them to
convince the court that there was no negligence or violation of duties on their
Role of Consumer Protection Act, 1986
Concerning medical negligence, patients are given right under the Consumer
Protection Act, 1986 to file a case. The act was passed with an aim to enhance
security to the consumers and to provide more provisions for the consumer
disputes settlement and other disputes associated with that.
Section 14(1)(d) of this act states that, any consumer who has suffered loss or
injury due to the negligence on the part of the opposite party will be
Initially it was disputed whether this would cover the medical profession or
not? Supreme Court in the case of Indian Medical Association v. V.P. Shantha,
brought medical profession and services under the purview of this act.
However, the act is not totally against the medical practitioners and provide
defense to them under Section 2 (1)(0), it states that:
service means service of any description which is made available to potential 2
[users and includes, but not limited to, the provision of] facilities in
connection with banking, financing, insurance, transport, processing, supply of
electrical or other energy, board or lodging or both, 3 [housing construction,]
entertainment, amusement or the purveying of news or other information, but does
not include the rendering of any service free of charge or under a contract of
personal service. which basically means, if the doctor does not charge any fee
for his service than that work would not be counted as a service as per this
section and hence, would not come under the ambit of this act.
Incidents of medical negligence are burgeoning like anything, which makes it a
well demanded topic. Negligence is proven when a person breaches the existing
duty of care towards his/her neighbor which results in further injury to the
latter. Keeping this concept at the bedrock, various new principles were placed
on after another on it, in the field of medical negligence.
The crux of all the profound judgments was put forward by Charlesworth & Percy,
which are followed till date. Consumer Act, 1986 was passed to improve the
security of the consumer with an exception as Section 2 (1) (0), according to
which, doctors are not made liable.
Award Winning Article Is Written By: Mr.Rishabh Shukla
Authentication No: MA34120083706-22-0521