This extract is taken from Governor-General of India in Council v.

Bhanwari Devi,
1960 SCC OnLine All 88 : 1960 All LJ 770 : AIR 1961 All 14 : 1958-65 ACJ 114  at
page 775
30. The plaintiff's witnesses stated that Tara Chand was a healthy man of sober
habits. Dr. Sen stated that the body was well nourished. He concluded that in the
ordinary course, Tara Chand was likely to live up to 60 years.
This extract is taken from Governor-General of India in Council v. Bhanwari Devi,
1960 SCC OnLine All 88 : 1960 All LJ 770 : AIR 1961 All 14 : 1958-65 ACJ 114  at
page 775
31. Parties were not agreed about the age of Tara Chand at the time of his
death. According to the plaintiff, Tara Chand's age was only 22 years. On the other
hand, according to the defence evidence, Tara Chand's age was 28 years. The
plaintiff's witnesses included a number of persons, who were related to the
deceased. These relations were expected to know Tara Chand's age. The plaintiff
stated that her husband was 22 years old. To the same effect were the statements
of Tara Chand's father and Tara Chand's uncle. The defence witnesses did not claim
previous acquaintance with the deceased. In the bed-head-ticket it was noted that,
the age of the deceased was 28 years. But Dr. Sen explained before the court that,
the age was put down as mentioned by the patient. Dr. Sen did not examine him
from the age point of view. The statement of the deceased to Dr. Sen on the
question of his age is not admissible in evidence under Sec. 32 Indian Evidence Act.
Malkhan Singh (D.W. 8) stated that the injured man's age was about 28 years.
Malkhan Singh does not claim to have been acquainted with the deceased. So
Malkhan Singh's statement on the question of age does not carry weight. The
evidence of the plaintiff's witnesses on the question of age carries greater weight.
Tara Chand's uncle, Sohan Lal stated that, Tara Chand was born in Sambat 1981.
Sohan Lal was not cross-examined on the point. We may therefore accept Sohan
Lal's statement that, Tara Chand was born in Sambat 1981. That corresponds to
1924 A.D. It means that Tara Chand's age in 1946 was 22 years. I hold that Tara
Chand's age at the time of his death was 22 years, and not 28 years as found by the
learned Civil Judge.
This extract is taken from Governor-General of India in Council v. Bhanwari Devi,
1960 SCC OnLine All 88 : 1960 All LJ 770 : AIR 1961 All 14 : 1958-65 ACJ 114  at
page 776
 32. The learned Civil Judge calculated compensation on the footing that, the
expectation of life was 32 years after the actual death by accident. I have found
that, the age at the time of death was 22 years, and not 28 years. So, the
expectation of life has to be increased by six years. Tara Chand was expected to live
for 38 years beyond the time of his accidental death. The amount of compensation
will have therefore to be increased accordingly.
This extract is taken from Governor-General of India in Council v. Bhanwari Devi,
1960 SCC OnLine All 88 : 1960 All LJ 770 : AIR 1961 All 14 : 1958-65 ACJ 114  at
page 776
33. The extra compensation, to which the plaintiff is entitled, is Rs. 65×12×6 = Rs.
4,680/-. By adding Rs. 4,680/- to Rs. 24,960/- allowed by the trial court, the total
compensation comes to Rs. 29,640/-.
This extract is taken from Governor-General of India in Council v. Bhanwari Devi,
1960 SCC OnLine All 88 : 1960 All LJ 770 : AIR 1961 All 14 : 1958-65 ACJ 114  at
page 776
BY THE COURT:— We dismiss the appeal with costs, and allow the crass-objection
with costs. We pass a decree in plaintiff's favour for a sum of Rs. 29,640/- with
proportionate costs. The stay orders dated 6-9-1950 and 7-8-1951 are vacated.

This extract is taken from Apex Institue of Medical Science v. Papia Banerjee,

2016 SCC OnLine NCDRC 2017
8. We have considered the rival contentions. From the record, it is clear that the
appellants have been held responsible for the death of Niloy Banerjee, who on the
fateful night managed to sneak out from the general ward of the hospital, climbed
to the roof and jumped from there resulting in his death. The question is whether
for that episode, the appellant hospital or its directors can be held responsible
under the consumer jurisdiction? In order to find answer to the above question, it
would be seen whether the appellant hospital or its employees in any manner
lacked in taking reasonable care and precaution to ensure personal safety of the
deceased Niloy Banerjee. In this regard, it has to be born in mind that Niloy
Banerjee was an ordinary patient without any history of psychiatric problem,
depression or mental disorder which would have required the hospital authorities
to take extra care and precaution to ensure that the patient may not cause self
harm or harm to someone else. In the instant case, as it is apparent from the
record, Niloy Banerjee, after a surgery and recovery period in ICU was shifted to the
general ward and on the fateful night he managed to sneak out the ward, climbed
to roof and jumped from there, meaning thereby that this is a case of suicide for
which the appellant hospital or its directors cannot be held responsible for
negligence. The question whether or not, the appellant were guilty of negligence in
the context of this case has to be tested on the anvil of reasonableness. Similar
question came up before the Supreme Court of Canada in the matter of
The University Hospital Board v. Gerald Lepine and George Monckton v. Gerald
LepineSCR Supreme Court of Canada (1966) 561 which related to the case of a
psychiatric patient who jumped through the window resulting in permanent
disability. In that case, the hospital authorities were sought to be held liable on the
ground that they had failed in taking reasonable care and precaution expected of
them to prevent harm to the aforesaid psychiatric patient. In the said judgment,
Supreme Court of Canada observed as under:
“This is one of the “hard cases” which could easily make bad law unless one
adheres to established principles of responsibility in the face of the actual situation
as it developed and moved to a rapid and unexpected climax when Lepine emerged
from the bathroom, having given no prior sign of wanting to destroy himself.
The question of whether there was or was not negligence in a given situation has
been dealt with in many judgments and by writers at great length. One principle
emerges upon which there is universal agreement, namely, that whether or not an
act or omission is negligent must be judged not by its consequences alone but also
by considering whether a reasonable person should have anticipated that what
happened might be a natural result of that act or omission. As was said by Lord
Thankerton in Glasgow Corporation v. Muir:
The court must be careful to place itself in the position of the person charged with
the duty and to consider what he or she should have reasonably anticipated as a
natural and probable consequence of neglect and not to give undue weight to the
fact that a distressing accident has happened.
Applying this principle and recognizing the duty which a doctor and a specialist
such as Dr. Monckton owes to his patient and the duty which a hospital owes to a
given patient as an individual, I am impelled to the conclusion that Lepine's sudden
leap through the window was not an event which a reasonable man would have
 foreseen and have been required to take more precautions than were available in
this case. Short of having put Lepine in some restraining device or of keeping him at
ground level, both of which were rejected by the Appellate Division as being
necessary or required, the injuries sustained by Lepine were the result of an impulse
on his part which could not reasonably have been foreseen. To hold otherwise
would, in my judgment, make doctors and hospitals insurers against all such
hazards which they are not.”
This extract is taken from Apex Institue of Medical Science v. Papia Banerjee,
2016 SCC OnLine NCDRC 2017
9. We are inclined to agree with the principles laid down in the said judgment. In
the instant case, Niloy Banerjee had left the general ward, climbed to the roof and
jumped on impulse which a reasonable person would not have foreseen
particularly when Niloy Banerjee was not even psychiatric patient or suffering from
depression or mental disorder. The hospital authorities, in our considered opinion
cannot be held negligent for failing to prevent such unexpected events which a
reasonable person is not expected to foresee. Therefore, in our view, the State
Commission has committed a grave error in holding the appellants guilty of
negligence with regard to the proper care and custody of Niloy Banerjee. Impugned
order, therefore, cannot be sustained.

This extract is taken from Asit Baran Mondal v. Dr. Rita Sinha, 2016 SCC OnLine
NCDRC 1047
12. In our view, complainant made vague averments in his compliant to drag the
doctor to this commission. The Hon'ble Supreme Court in Jacob Mathew's case2005
SCC (Cri) 1369 held that, the onus to prove medical negligence lies largely on the
complainant and that this onus can be discharged by leading cogent evidence. It
also held that, a mere averment in a complaint which is denied by the other side
can, by no stretch of imagination, be said to be evidence by which the case of the
complainant can be said to be proved. In Jacob Mathew case (supra) it has been
observed as under:
“48(1) Negligence is the breach of a duty caused by 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. The definition of negligence as given in Law of Torts,
Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds
good. Negligence becomes actionable on account of injury resulting from the act or
omission amounting to negligence attributable to the person sued. The essential
components of negligence are three: “duty”, “breach” and “resulting damage”.
(2) Negligence in the context of the medical profession necessarily calls for a
treatment with a difference. To infer rashness or negligence on the part of a
professional, in particular a doctor, additional considerations apply. A case of
occupational negligence is different from one of professional negligence. A simple
lack of care, an error of judgment or an accident, is not proof of negligence on the
part of a medical professional. So long as a 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 followed.”
73. In Hucks v. Cole (1968) 118 New LJ 469, Lord Denning speaking for the court
observed as under:—
“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.”
74. In another leading case Maynard v. West Midlands Regional Health
Authority the words of Lord President (Clyde) in Hunter v. Hanley 1955 SLT 213
were referred to and quoted as under:—
“In the realm of diagnosis and treatment there is ample scope for genuine
difference of opinion and one man clearly is not negligent merely because his
conclusion differs from that of other professional men… The true test for
establishing negligence in diagnosis or treatment on the part of a doctor is
whether he has been proved to be guilty of such failure as no doctor of ordinary
skill would be guilty of if acting with ordinary care…”.
This extract is taken from Asit Baran Mondal v. Dr. Rita Sinha, 2016 SCC OnLine
NCDRC 1047
13. Court further observed that,
 81. It is a matter of common knowledge that  after happening of some
unfortunate event, there is a marked tendency to look for a human factor to blame
for an untoward event, a tendency which is closely linked with the desire to punish.
Things have gone wrong and, therefore, somebody must be found to answer for it.  A
professional deserves total protection. The  Penal Code, 1860  has taken care to
ensure that people who act in good faith should not be punished.  Sections 88,
92  and  370  of the Penal Code, 1860 give adequate protection to the professional
and particularly medical professionals
This extract is taken from Asit Baran Mondal v. Dr. Rita Sinha, 2016 SCC OnLine
NCDRC 1047
14. In Achutrao Haribhau Khodwa v. State of Maharashtra(1996) 2 SCC 634 Hon'ble
Supreme Court held as follows:
“The skill of medical practitioners differs from doctor to doctor. The very nature
of the profession is such that there may be more than one course of treatment which
may be advisable for treating a patient. Courts would indeed be slow in attributing
negligence on the part of a doctor if he has performed his duties to the best of his
ability and with due care and caution. Medical opinion may differ with regard to the
course of action to be taken by a doctor treating a patient, but as long as a doctor
acts in a manner which is acceptable to the medical profession, and the Court finds
that he has attended on the patient with due care skill and diligence and  if the
patient still does not survive or suffers a permanent ailment, it would be
difficult to hold the doctor to be guilty of negligence.”

This extract is taken from Medical Negligence-Medical Malpractice-American

Experience, 37 JILI (1995) 390 at page 393
III Obligation of doctor
Besides these factors let us consider some specific obligations of a doctor.
(i) At the very outset it should be borne in mind that “the physician is in a
position of trust and confidence as regards his patient, and it is his duty to
act with the utmost good faith towards the patient. If he knows that he
cannot accomplish a cure, or that the treatment adopted will probably be of
no benefit, it is his duty to advise his patient of these facts.”
 [Hammonds v. Aetna Casualty and Surety Co., 237 P. Supp. 96
(1965): Hales v. Pittman.118 Ariz. 305 576 P 2d 493 (1978).]
(ii) “The fact that a physician or surgeon renders services gratuitously does not
affect his duty to exercise reasonable and ordinary care, skill and diligence.” [
Physicians and Surgeons, 45. S. 132 at 387 (1973). Lum v. S Ploski.449 NYS 2d
297 (1982).]
(iii) “It is one of the fundamental duties of a physician to make a properly skillful
and careful diagnosis of the ailment of a patient, and if he fails to bring to
that diagnosis the proper degree of skill or care or makes an incorrect
diagnosis, he may be held liable to that patient.” [ 41 Physicians and
Surgeons. Am. jur. N.Y. Jurist. S. 92 (1942).] Further the doctormust “inform
himself by the proper tests and examinations of the condition of his patient to
undergo a proposed treatment or operation, so that he may intelligently
exercise the skill of his calling.” [Ibid. S. 94]
(iv) The duty of exercising reasonable skill and diligence “includes not only the
diagnosis and treatment, but also the giving of proper instructions to his
patient in relation to conduct, exercise and the use of an injured limb.”
[Pike v. Honsinger. supra note 3.]
(v) A physician cannot fail to give a patient proper aftercare treatment
or abandon him without risking legal responsibility for any ill effects.
[ ‘Principles of Medical Ethics’ AMA S. 5. (1979): O'Neill v. Montetone Hospital,
202 NYS 2d 436 (1st Dept. 1960).] The doctor is under a duty to give the
patient all necessary care as long as the case requires attention, and an
unwarranted lack of diligence in attending the patient renders the physician
liable for malpractice. [Gerken v. Plumpton, 70 NYS 793 (1st) Dept.
1901); Brown v. Goffe, 125 NYS 458 (1st Dept. 1910).] As early as 1891, the
court said in the charge to the jury : [Becker v. Janinski, 15 NYS 675 (1891).]
When a physician engages… to attend a patient… without limitation of time
he cannot cease his visits except, first, with the consent of the patient,
or secondly, upon giving the patient timely notice so that he may employ another
doctor, or thirdly, when the condition of the patient is such as no longer requires
medical treatment, and of that condition the physician must judge at his peril.
(vi) The complaints, observations and remonstrances of a patient must be
heeded by the physician to a reasonable extent.
 (vii) Informed consent: A doctor may be liable for malpractice if, in rendering
treatment to which the plaintiff consents, he fails to make a frank disclosure
to plaintiff of the risk involved in the procedure. [79 ALR 2d 1028 (1961).]
In Natanson v. Kline, [350 P 2d 1093 (1960).] the plaintiffs left breast had been
removed because of cancer. The surgeon had recommended to the plaintiff
that she have the head radioligist of the hospital give her therapy to the site
of the mastectomy. The plaintiff claimed that she was given a scries of cobalt
irradiation treatments in such a negligent manner that the skin, flesh and
muscles beneath her left arm sloughed away and ribs on her left side were
burned. She sued the radiologist and the hospital. The jury found for the
defendants. The appellate court reversed the judgment and ordered a new
trial. It observed:
On retrial of this case the first issue for the jury to determine should be whether
the administration of cobalt irradiation treatment was given with
the informed consent of the patient, and if it was not, the physician who failed in his
legal obligation is guilty of malpractice no matter how skillfully the treatment may
have been administered and the jury should determine the damages arising from
cobalt irradiation treatment. If the jury should find an informed consent was given
by the patient for such treatment, the jury should next determine whether proper’
skill was used in administering the treatment. [Ibid. at 1104. 1106-7.(Emphasis
added).]
This extract is taken from Medical Negligence-Medical Malpractice-American
Experience, 37 JILI (1995) 390 at page 397
VII Locality rule
Initially in USA the courts applied what was called the ‘locality rule’ in deciding
the standard of care of a doctor. This rule as applied was that a physician's care
would be judged only by the skill and care generally possessed by similar
practitioners in the same or similar locality. This ‘locality rule’ originated over a
hundred years ago. [ See, Smothers v. Hanks.34 Iowa 286 (1872).] The rationale for
the rule was essentially to protect the doctor practicing in small, rural areas from
being evalued and compared to his or her more sophisticated and scientifically
advanced city based colleagues. [ See, Teft v. Wilcox, 6 Kan 46 (1870).] In essence the
rule was made to compensate the manifest inequality existing at that time between
physicians practicing in remote rural areas and those in large urban cities.
Eventually, this rule came under attack and was given up. In the light of modern
conditions where nearly uniform quality of medical school training is imparted
throughout USA and the wide dissemination of new and progressive medical
techniques, discoveries and procedures via professional journals, conferences and
the media, the inequality of opportunity existing between large and small areas
simply does not exist any longer. Now a so-called national standard among medical
specialities has been adopted. [ “Medical Specialities and the Locality Rule”, 14 Stan.
& Rei 884 at 887-89 (1962).] The national standard is a fairly flexible rule which is
basically defined as the degree of knowledge and concomitant medical skill that a
physician under the same or similar circumstances should “reasonably” possess,
that is the “standard” by which the physician should be judged. [ Proof of Facts I
Am. Jur. 2d 373 (1982).]
This extract is taken from Medical Negligence-Medical Malpractice-American
Experience, 37 JILI (1995) 390 at page 397
In India the courts have never applied the ‘locality rule’, perhaps due to the fact
that” medical negligence” is a phenomenon which came into being not too long ago.
But what would one say when a doctor in a government hospital in a small town or
rural area has to operate without proper equipment, and a patient dies; would he
be held guilty of medical negligence?

This extract is taken from Medical Negligence and Consumer Justice: Regulatory

Mechanism Other than Consumer Protection Act, 1986, 19 ALJ (2008-09) 105 at
page 106
(B) Medical Negligence
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.
This extract is taken from Medical Negligence and Consumer Justice: Regulatory
Mechanism Other than Consumer Protection Act, 1986, 19 ALJ (2008-09) 105 at
page 106
In order to prove negligence, the consumer must be able to establish that:—
 1. The doctor owed him a duty of care of a particular standard of professional
conduct
2. The doctor breached that duty
3. The patient suffered actual damage and
4. The doctors conduct was or direct and proximate cause of damage.
This extract is taken from Medical Negligence and Consumer Justice: Regulatory
Mechanism Other than Consumer Protection Act, 1986, 19 ALJ (2008-09) 105 at
page 107
Thus if the doctor does not exhibit the ordinary skills and knowledge, expected
of a doctor of his/her standing to the care of the patient, then there is negligence.
Further, an error of judgment itself does not amount to negligence provided that
the doctor possesses a reasonable degree of profiency and has applied that
proficiency with sufficient degree of diligence. The degree of profiency varies with
the qualifications and experience of the doctor. Naturally, a higher standard of care
is expected on the part of a specialist in the particular speciality due to his
qualification.
This extract is taken from Medical Negligence and Consumer Justice: Regulatory
Mechanism Other than Consumer Protection Act, 1986, 19 ALJ (2008-09) 105 at
page 107
Thus every stage in this relation imposes on the doctor the duty to care and, the
violation there of projects a potential firmament for an action on negligence. These
stages are:—
1. history taking
2. clinical examination
3. prescribing investigations which in the opinion of the doctor are essential
4. suggesting names of hospitals or doctors for investigations
5. diagnosis
6. guidance in the use of ancillary aids, if any, necessary for better and quicker
prognosis
7. instructing the patient on do's and don'ts.
This extract is taken from Medical Negligence and Consumer Justice: Regulatory
Mechanism Other than Consumer Protection Act, 1986, 19 ALJ (2008-09) 105 at
page 107
The conspicuous areas which could clamp liability on doctor are:—
 1. negligence by way of not recording proper history and complaints of the
patient
2. failure to carry out essential investigations
3. wrong diagnosis
4. incorrect advice
5. negligence by way of not cautioning the patient with clarity on what activities
the patient could undertake and what should be avoided
6. negligence in the management of the pre-operative follow-up
7. negligence during surgery
8. introducing untrained, inexperienced and unreliable staff in the team of
doctor's aides.
This extract is taken from Medical Negligence and Consumer Justice: Regulatory
Mechanism Other than Consumer Protection Act, 1986, 19 ALJ (2008-09) 105 at
page 108
The above are the few examples of the medical negligence. The level of
expectation or degree of care varies from case to case and reasonableness of the
care, caution and skill expected of a doctor in a given case based on the
circumstances and fact of every individual case and further it depend on human
ingenuity and can vary with circumstances of the case and evaluating individual.
[ Supra Note 1.]
This extract is taken from Medical Negligence and Consumer Justice: Regulatory
Mechanism Other than Consumer Protection Act, 1986, 19 ALJ (2008-09) 105 at
page 110
The basic philosophy behind these provisions was laid down in Jacob
George v. State of Kerala [(1919) 2 Cr. L.J. 395.] where the Supreme Court said that:
“Life is said to be the most sublime creation of God. It is this belief and
conception which lies at the root of the argument and forceful at that, by much
religious denomination that human beings can not take away life as they can not
give life.”
This extract is taken from Medical Negligence and Consumer Justice: Regulatory
Mechanism Other than Consumer Protection Act, 1986, 19 ALJ (2008-09) 105 at
page 110
The court further said that life is beyond price and it is not only a legal wrong
but a moral sin as well, to take life illegally.
This extract is taken from Medical Negligence and Consumer Justice: Regulatory
Mechanism Other than Consumer Protection Act, 1986, 19 ALJ (2008-09) 105 at
page 115
The Act has not only liberalized the provisions of the Penal Code, 1860 to
expand the grounds on which the termination of pregnancy can be carried on but
intends to provide effective remedy and protection to the consumer of medical
services by making it severely punishable (up to life imprisonment) that even if the
termination is carried on by a qualified and experienced practitioner but not with
the proper care and skill resulting in injury or causing damage to the consumer of
medical service.
This extract is taken from Medical Negligence and Consumer Justice: Regulatory
Mechanism Other than Consumer Protection Act, 1986, 19 ALJ (2008-09) 105 at
page 117
In this way the Code contains the basic philosophy of humanity and human
dignity and intends to protect the consumers of medical services against negligence
and provides a regulatory mechanism of morality, proper/professional care, care
and duties of doctor towards patients and society. An effective notion of consumer
protection is enshrined in the code. Further, in case of violation the doctor may be
removed from the rolls of the Medical Council and will be barred to do practice in
medicines.