Medical Negligence Laws: Life Saviours or Monetary Gluttons?

A great deal of judicial intervention is required when we come to discuss the topic of Medical Negligence Laws in India. Where innocent patient looks up to the Doctors as the last hope or as the final divine call there exist certain kinds of doctors who view their noble profession as a means of exploiting people’s innocence for their own monetary upliftment. Such miscreants degrade the nature of service and respect of hardworking doctors and cause a deep gash in the faith that people keep with them in terms of the well-being of their health. Such gluttons do not realize the consequences of not treating their patients with due care. Their lack of reasonable care and failure to act in accordance with the standard medical procedures causes injuries, deaths, amongst unfavourable outcomes.

Negligence and it’s Various Components

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 an injury to his person or property.[2]

Failure of medical negligence is not necessarily only defined in terms of lack of care during operations and its subsequent side effects but also refers to the lack of reasonable and due care and diligence.

The components of Medical Negligence as given and directed by Winfield are: –

Existence of a Legal Duty: A legal duty to exercise due care on the part of the party against whom the complaint is lodged of towards the party lodging the complaint. In the present context, the person who approaches is the patient with the specialized person being the doctor. In the case of Parmanand Kataria v. Union of India[3] it was held by the Supreme Court that “every doctor, at the governmental hospital or elsewhere, has a professional obligation to extend his services with due expertise for protecting life”.

Breach of the Legal Duty: Breach of the said duty when an individual fails to perform what his contemporaries would have under given similar situations and circumstances. When looked into the case of Laxman v. Trimback[4] the Supreme Court observed that when a Doctor treats his patients it his responsibility to perform his tasks not only with reasonable degree of skill and knowledge but also with reasonable degree of care.

Damage caused by Breach of such a Duty: Consequential damages and injuries are to be compensated with just, fair and reasonable means and also keeping in view the facts and circumstances of the case.

Consequences of Medical Negligence

Criminal Liability: Section 304A[5] of the Indian Penal Code,1860 (IPC) elaborates that a person who causes the death of another due to his negligent or rash behaviour is punishable in the eyes of law. In the case of Kurban Hussein v. the State of Maharashtra[6] it was held by the Court that

To impose criminal liability under Section 304-A, it is necessary that the death should have been the direct result of rash and negligent act of the accused, without other person’s intervention.

In terms of medical negligence, this can be understood as that incase a doctor due to his gross negligence or malicious intent causes the death of a patient or even if it be the negligence of his employees and servants, he will be held vicariously liable.

Although on account of exceptions sections 80[7] and 88[8] of the IPC contains defences for doctors who have been criminally accused of offences.

In the case of Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Center and Ors the Supreme Court enumerated certain principles which would help in deciding that whether the actions of a medical professional make him guilty of any kind of medical negligence:

  • If the medical professional is found to be following the laid norms and principles and is taking the required due care then it is wrong to say that the professional has been negligent unless there exists a body of opinion holding contrary view.
  • In the event where a doctor is specialized in a certain set of skill it is not necessary that he may not possess the highest degree of efficiency in it but if he puts those skills to use in an ordinary manner it should be considered a sufficient treatment.
  • When a physician undertakes a task and possesses the requisite skills, he can never give full assurance of recovery. His skills are indeed an implied assurance but a full recovery cannot be guaranteed even though he exercises his skills with all the required due care and diligence.

Civil Liability

A person possessing special knowledge in a particular field and who uses this specialized knowledge for saving the lives of people is bound to owe a duty of care to the person whom he is treating. Cases for medical negligence may be initiated under the Consumer Protection Act or by means of filing a suit in civil court against private medical institutions or practitioners not providing medical care free of charges. Civil liability comes as monetary compensatory relief in favour of the patients treated at the hands of negligent doctors. They could even be held liable vicariously. With the help of Lok Adalats constituted under the Legal Services Authority Act, 1987, a complainant can seek relief as the meaning of ‘services’ in hospitals or dispensary are considered as ‘public utility services’ where first conciliation is attempted and thereafter merits of the matter are chalked out. Permanent Lok Adalats have powers similar to a civil court in matters of summoning and enforcing attendance of witnesses and their jurisdiction includes of matters up to rupees one crore.


[2] Law of Torts, Ratanlal & Dhirajlal, Twenty-fourth Edition 2002, edited by Justice G.P. Singh; pp.441-442

[3] AIR 1989 SC 2039.

[4] (1910) 12 BOMLR 686

[5] whoever causes the death of a person by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine or with both.

[6] 1965 AIR 1616, 1965 SCR (2) 622

[7] Nothing is an offense that 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.

[8] A person cannot be accused of an offense if she/ he performs an act in good faith for the other’s benefit, does not intend to cause harm even if there is a risk, and the patient has explicitly or implicitly given consent.

Sarvashreshth Ballabh from Department of Law, University of Calcutta

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