Contents
1. Abstract ...................................................................................................................... 2
2. Introduction .............................................................................................................. 2
2.1 Research paragraph .............................................................................................. 2
2.2 Research question ................................................................................................ 2
3. Research objective and methodology, ............................................................... 2
3.1Definition of negligence ..................................................................................... 2
3.2Duty of medical practitioner towards the patient ................................. 3
3.3Liability of Hospitals in Cases of Negligence. .......................................... 3
3.4Position in India................................................................................................... 4
3.5Criminal law and medical negligence .......................................................... 6
3.6Civil law and medical negligence .................................................................. 6
3.7When Does Liability Arise? ............................................................................. 7
4. Conclusion ................................................................................................................. 8
5.bibliograpy……………………………………………………………………………………………………………9
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1. Abstract
Public is getting aware of facts and remedies available to them in case of violation of their rights. Due to this
hospitals are facing complaints regarding facilities, standards of professional competence, and the
appropriateness of their therapeutic and diagnostic method. Patients have filed legal cases against doctors,
have established that the doctors were negligent in their medical service, and have claimed and received
compensation. As a result, a number of legal decisions have been made on what constitutes negligence and
what is required to prove it.
2. Introduction
Medical negligence is the misconduct of a medical practitioner or doctor who does not provide enough care
resulting in breach of their duties and harming the patients. Medical negligence also known as medical
malpractice is improper, unskilled, or negligent treatment of a patient by a physician, pharmacist, or other
health care professional.Medical malpractice occurs when a healthcare centre does not abide the required
standard of care in the treatment of a patient. The standard of care is defined as what a reasonably prudent
medical provider would or would not have done under the same or similar circumstances. The standard of
care is a question of fact in each situation.
2.1)Research paragraph
To know the liability arising from medical negligence.
2.2)Research question
When Does Liability Arise?
3. Research objective and methodology,
The objective of this research paper is to determine the liability of professionals as per the nature of
negligence towards their customer. The analysis of the judgements of the apex court relating to medical
negligence will help to come to a definite and reasonable conclusion.
3.1)Definition of negligence
To determine this, the proper definition of negligence is to found. As per Winfield, “Negligence as a tort is
the breach of a legal duty to the care which results in damage, undesired by the defendant, to the plaintiff.”
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In King v. Phillips1 it was observed that the question of negligence arises only when there is a direct harm to
the plaintiff by the misconduct and the harm should be foreseeable. Damage is an important ingredient to
bring negligence under tort.
3.2)Duty of medical practitioner towards the patient
A doctor or a medical practitioner when attends to his patients, owes him the following duties of care:
1. A duty of care in deciding whether to undertake the case.
2. A duty of care in deciding what treatment to give.
3. A duty of care in the administration of the treatment.
the Supreme Court has held that every doctor “has a duty to act with a reasonable degree of care and
skill” in the case of State of Haryana v. Smt Santra2
3.3)Liability of Hospitals in Cases of Negligence.
The liability of a hospital can be direct or vicarious.
Some of the following examples will give rise to direct liability of the hospital
1. Improper maintenance of hospital resulting in an injury to or death of the patient.
2. Failure in providing a safe and suitable environment as guaranteed–like when the patient is
affected by malfunctioning equipment, incompetent staff, inadequate accommodation, etc.
3. Deceptive or misleading signboards, advertisements, and notices, false claims of availability
of certain facilities which may be seen as a deficiency in services or as unfair trade practices
under the Consumer Protection Act and damages can be awarded for such malpractices.
1
95 N.C. 245 (N.C. 1886)
2
AIR 2000 SC 3335
3
4. Charging for a facility which was not provided, or charging more than what is mentioned in
the displayed list of charges or agreed
The hospital will be vicariously liable for the negligent acts of its employees.
In Pappachan v. Dr. George Moonjerly3, it was held that “persons who run hospitals are in law under
the same duty as the humblest doctor: whenever they accept a patient for treatment, they must use
reasonable care and skill to ease him of his ailment. The hospital authorities cannot, of course, do it
by themselves; they have no ears to listen to the stethoscope, and no hands to hold the surgeon’s
scalpel. They must do it by the staff which they employ; and if their staff are negligent in giving
treatment, they are just as liable for that negligence as anyone else who employs others to do his
duties for him.’
In the case of negligent acts that take place in government hospitals, it has been held that the state
can be directly liable in case there is a lack of proper facilities, equipment or staff and it may be
vicariously liable for negligent acts of its doctors. In a few cases, the court has even granted
compensation to the complainant paid by the government doctor whose negligence has been
established.
3.4)Position in India
The legal framework in India that affects the medical profession and its working, and which prevents
malpractices holds an important place.
Fundamental Rights
Article 21
3
1994 (1) KLJ 782 (Ker. HC)
4
Article 32
Directive Principle of State Policy
Article 41
Article 42
Article 47
Indian Penal Code (IPC)
Section 52
Section 80
Section 81
Section 88
Section 90
Section 92
Section 304-A
Section 337
In the context of Indian law, medical negligence comes under 3 categories; Criminal negligence,
civil negligence and negligence under Consumer Protection Act. Different provisions regarding the
remedy in the form of punishment and compensation are there in 3 laws.
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3.5)Criminal law and medical negligence
Section 304A of the Indian Penal Code of 1860 states that “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.”. the death must also be due to malicious intention
or gross negligence any a time. The doctor will also be responsible vicariously, meaning thereby if
his employee/servant rashly causes the death of a patient. In that case, the employee as well the
doctor will be liable due to the principle of ‘Vicarious Liability’ under Tort law. There are some
sections by which a doctor can take support of while defending. Some of these are mentioned below.
In Kurban Hussein v. the State of Maharashtra4 in the case concerning Section 304 (A) of I.P.C.,
1860, it was stated 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.
Under Section 80 (Accident in doing a lawful act) ‘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.’
According to Section 88 ‘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.’
3.6)Civil law and medical negligence
. Under the torts law or civil law, this principle is applicable even if medical professionals provide
free services. It can be asserted that where Consumer Protection Act ends, tort law begins.
In cases where the services offered by the doctor or the hospital do not fall within the meaning of
‘services’ as defined under CPA, patients can take recourse to tort law under negligence and claim
compensation. Here, burden of proof is on the patient, and he has to prove that because of doctor’s or
the hospital’s negligent act, he suffered injury thereby.
4
(1965) 2 SCR 622
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In the case of the State of Haryana v. Smt Santra5 the Supreme Court held that every doctor “has a
duty to act with a reasonable degree of care and skill.” However, since no human is perfect and even
the most renowned specialist can commit a mistake in diagnosing a disease, a doctor can be held
liable for negligence only if one can prove that she/ he is guilty of a failure that no doctor with
ordinary skills would be guilty of if acting with reasonable care.
3.7)When Does Liability Arise?
The liability of a medical practitioner does not merely arise when the patient has suffered an injury;
it arises when the injury is a direct consequence of the conduct of the doctor when he failed to
exercise reasonable care. In other words, a doctor is not liable for every injury suffered by the
patient. First, existence of a duty of care by the doctor towards the patient has to be established and
then the patient must prove breach of such a duty. In case there was no breach or the injury was not a
direct consequence of the breach, the doctor will not be liable. Thus, the burden of proof lies upon
the complainant.
It was held in Calcutta Medical Research Institute v. Bimalesh Chatterjee6 that the onus of proving
negligence and the resultant deficiency in service was clearly on the complainant.
Negligence does not arrive when there is no success in the job
Dr. M. Kochar vs Ispita Seal7
5
AIR 2000 SC 3335
6
1(1999) CPJ 13(NC)
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Date of Judgement: December 12, 2017
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In this recent case, the National Consumer Dispute Redressal Commission (NCDRC) was confronted
with the issue of failure in IVF procedure. The complainant in the case complained of failure in IVF
procedure and demanded compensation from the Doctor on account of medical negligence. The
National Commission in the case held that “No cure/ no success is not a negligence”, Thus fastening
the liability upon the treating doctor is unjustified.
4. Conclusion
The legislature has implemented laws for medical negligence but has provided immunity for medical
practice under section 80 and 88 of Indian penal code. In order to get remedy, The burden of proof
lies on the plaintiff that the doctor fell below the standard of reasonable care as a prudent doctor
would treat the patient of similar type and treatment. Doctors and medical centres have to be more
prudent since the courts awards examplary damages to one who suffers injury due to medical
negligence
5. Bibliography
Dr.R.K.Bangia , law of torts(ninth Edition) 1986
Prashant Kumar, Self review law(fifteenth edition)
