Medical negligence: Coverage of the profession, duties,

Symposium

ethics, case law, and enlightened defense - A legal

perspective

M. S. Pandit, Shobha Pandit

Corporate Advocates, D- 29, 5th Floor, Mantri Kishore Park, Bhosale Nagar, Pune 411 007, India

ABSTRACT
A patient approaching a doctor expects medical treatment with all the knowledge and skill that the doctor possesses to
bring relief to his medical problem. The relationship takes the shape of a contract retaining the essential elements of tort.
A doctor owes certain duties to his patient and a breach of any of these duties gives a cause of action for negligence against
the doctor. The doctor has a duty to obtain prior informed consent from the patient before carrying out diagnostic tests
and therapeutic management. The services of the doctors are covered under the provisions of the Consumer Protection
Act, 1986 and a patient can seek redressal of grievances from the Consumer Courts. Case laws are an important source of
law in adjudicating various issues of negligence arising out of medical treatment.

Key words:
words Error of judgment, medical negligence, prior informed consent

DOI: 10.4103/0970-1591.56206

WHAT IS MEDICAL NEGLIGENCE? is essentially a tortious liability. A tort is a civil wrong

(right in rem) as against a contractual obligation (right in
The medical profession is considered a noble profession personam) – a breach that attracts judicial intervention by
because it helps in preserving life. We believe life is way of awarding damages. Thus, a patient’s right to receive
God given. Thus, a doctor figures in the scheme of medical attention from doctors and hospitals is essentially
God as he stands to carry out His command. A patient a civil right. The relationship takes the shape of a contract
generally approaches a doctor/hospital based on his/ to some extent because of informed consent, payment of
its reputation. Expectations of a patient are two-fold: fee, and performance of surgery/providing treatment, etc.
doctors and hospitals are expected to provide medical while retaining essential elements of tort.
treatment with all the knowledge and skill at their
command and secondly they will not do anything to In the case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark
harm the patient in any manner either because of their Babu Godbole and Anr., AIR 1969 SC 128 and A.S.Mittal
negligence, carelessness, or reckless attitude of their v. State of U.P., AIR 1989 SC 1570, it was laid down that
staff. Though a doctor may not be in a position to save when a doctor is consulted by a patient, the doctor owes
his patient’s life at all times, he is expected to use his to his patient certain duties which are: (a) duty of care in
special knowledge and skill in the most appropriate deciding whether to undertake the case, (b) duty of care in
manner keeping in mind the interest of the patient who deciding what treatment to give, and (c) duty of care in the
has entrusted his life to him. Therefore, it is expected administration of that treatment. A breach of any of the
that a doctor carry out necessary investigation or seeks above duties may give a cause of action for negligence and the
a report from the patient. Furthermore, unless it is an patient may on that basis recover damages from his doctor.
emergency, he obtains informed consent of the patient In the aforementioned case, the apex court interalia observed
before proceeding with any major treatment, surgical that negligence has many manifestations – it may be active
operation, or even invasive investigation. Failure negligence, collateral negligence, comparative negligence,
of a doctor and hospital to discharge this obligation concurrent negligence, continued negligence, criminal
negligence, gross negligence, hazardous negligence, active
and passive negligence, willful or reckless negligence, or
For correspondence: M.S. Pandit, Corporate advocates, D- 29, negligence per se. Black’s Law Dictionary defines negligence
5th Floor, Mantri Kishore Park, Bhosale Nagar, per se as “conduct, whether of action or omission, which may
Pune 411 007, India. E-mail: panditms@eth.net be declared and treated as negligence without any argument

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 Pandit, et al.: Medical negligence a legal perspective

or proof as to the particular surrounding circumstances, there was no question of someone else giving consent on
either because it is in violation of statute or valid Municipal her behalf. The appellant was temporarily unconscious
ordinance or because it is so palpably opposed to the dictates under anesthesia, and as there was no emergency. The
of common prudence that it can be said without hesitation respondent should have waited until the appellant regained
or doubt that no careful person would have been guilty of it. consciousness and gave proper consent. The question of
As a general rule, the violation of a public duty, enjoined by taking the patient’s mother’s consent does not arise in the
law for the protection of person or property, so constitutes.” absence of emergency. Consent given by her mother is not
a valid or real consent. The question was not about the
Negligence per se correctness of the decision to remove reproductive organs
While deliberating on the absence of basic qualifications of a but failure to obtain consent for removal of the reproductive
homeopathic doctor to practice allopathy in Poonam Verma organs as performance of surgery without taking consent
vs. Ashwin Patel and Ors. (1996) 4 SCC 322, the Supreme amounts to an unauthorized invasion and interference
Court held that a person who does not have knowledge of with the appellant’s body. The respondent was denied the
a particular system of medicine but practices in that system entire fee charged for the surgery and was directed to pay
is a quack. Where a person is guilty of negligence per se, no Rs. 25000/- as compensation for the unauthorized surgery.
further proof is needed.
Coverage of doctors and hospitals under CPA
Duty on the part of a hospital and doctor to obtain prior In the case of the Indian Medical Association vs. V.P. Shanta
consent of a patient and Ors., III (1995) CPJ 1 (SC), the Supreme Court finally
There exists a duty to obtain prior consent (with respect decided on the issue of coverage of medical profession
to living patients) for the purpose of diagnosis, treatment, within the ambit of the Consumer Protection Act, 1986
organ transplant, research purposes, disclosure of medical so that all ambiguity on the subject was cleared. With
records, and teaching and medico-legal purposes. With this epoch making decision, doctors and hospitals became
respect to the dead in regard to pathological post mortem, aware of the fact that as long as they have paid patients,
medico-legal post mortem, organ transplant (for legal heirs), all patients are consumers even if treatment is given free
and for disclosure of medical record, it is important that of charge. While the above mentioned apex court decision
informed consent of the patient is obtained. Consent can recognizes that a small percentage of patients may not
be given in the following ways: respond to treatment, medical literature speaks of such
a. Express Consent: It may be oral or in writing. Though failures despite all the proper care and proper treatment
both these categories of consents are of equal value, given by doctors and hospitals. Failure of family planning
written consent can be considered as superior because operations is a classic example. The apex court does not favor
of its evidential value. saddling medical men with ex gratia awards. Similarly, a
b. Implied Consent: Implied consent may be implied by in a few landmark decisions of the National Commission
patient’s conduct. dealing with hospital death, the National Commission has
c. Tacit Consent: Tacit consent means implied consent recognized the possibility of hospital death despite there
understood without being stated. being no negligence.
d. Surrogate consent: This consent is given by family
members. Generally, courts have held that consent WHERE COMPENSATION WAS AWARDED
of family members with the written approval of 2
physicians sufficiently protects a patient’s interest. In this context, it may be recalled that in the case of the State
e. Advance consent, proxy consent, and presumed consent of Haryana and Ors v. Smt. Santra, I (2000) CPJ 53 (SC) (by S.
are also used. While the term advance consent is the Saghir Ahmad and D.P.Wadhwa, JJ.), the Supreme Court in
consent given by patient in advance, proxy consent a Special Leave Petition upheld the claim for compensation
indicates consent given by an authorized person. As where incomplete sterilization (family planning operation)
mentioned earlier, informed consent obtained after was held to be defective in service. Smt Santra underwent a
explaining all possible risks and side effects is superior family planning operation related only to the right fallopian
to all other forms of consent. tube and the left fallopian tube was not touched, which
indicates that complete sterilization operation was not
The importance of obtaining informed consent performed. A poor laborer woman, who already had many
In the case of Samira Kohli vs. Dr. Prabha Manchanda children and had opted for sterilization, became pregnant
and Ors. I (2008) CPJ 56 (SC), the apex court held that and ultimately gave birth to a female child in spite of a
consent given for diagnostic and operative laparoscopy and sterilization operation that had obviously failed.
“laporotomy if needed” does not amount to consent for a
total hysterectomy with bilateral salpingo opherectomy. Claim for damages was based on the principle that if a person
The appellant was neither a minor nor mentally challenged has committed civil wrong, he must pay compensation by
or incapacitated. As the patient was a competent adult, way of damages to the person wronged. The apex court held:

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Pandit, et al.: Medical negligence a legal perspective

“Maintenance” would obviously include provision for food, Commission for compensation and adequate relief. The case
clothing, residence, education of the children and medical involves the unfortunate death of a young boy, Shri Sumanta
attendance or treatment. The obligation to maintain besides Mukherjee, a student of second year B. Tech., Electrical
being statutory in nature is also personal in the sense that it Engineering. At Netaji Subhash Chandra Bose Engineering
arises from the very existence of the relationship between a College on January 14, 2001 a bus from Calcutta Tramway
parent and the child. Claim for damages, on the contrary, is Corporation crashed with the motorcycle driven by the
based on the principle that if a person has committed civil deceased. Sumanta was conscious after the accident and
wrong, he must pay compensation by way of damages to was taken to the hospital about 1 km from the site of the
the person wronged. accident. He was insured for Rs. 65,000/- under a Mediclaim
Policy issued by the New India Assurance Co. Ltd. When
While elaborating on medical negligence, the apex court he reached the hospital, the deceased was conscious and
observed as follows (abridged): Negligence is a ‘tort’. Every showed the Mediclaim certificate he was carrying in his
doctor who enters into the medical profession has a duty wallet. He also assured that charges for treatment would be
to act with a reasonable degree of care and skill. This is paid and treatment should be started. Acting on this promise,
what is known as ‘implied undertaking’ by a member of the the hospital started treatment in its emergency room by
medical profession that he would use a fair, reasonable and giving moist oxygen, starting suction, and by administering
competent degree of skill. In the case of Bolam V. Friern injection Driphylline, Injection Lycotin, and titanous toxoid.
Hospital Management Committee, (1957) 2 All ER 118, The respondents demanded an immediate payment of Rs.
McNair, J. summed up the law as the following: 15000/- and discontinued treatment as the amount was
not deposited immediately though an assurance to pay the
“The test is the standard of the ordinary skilled man amount was made by the accompanying persons from the
exercising and professing to have that special skill. A man general public. Actually, the crowd collected Rs. 2000/-
need not possess the highest expert skill: It is well established and the amount with the motorcycle of the patient and
law that it is sufficient if he exercises the ordinary skill of an insurance receipt was offered. As the hospital was adamant
ordinary competent man exercising that particular art. In and discontinued treatment after giving treatment for 45
the case of a medical man, negligence means failure to act minutes, the people from the crowd present were forced
in accordance with the standards of reasonably competent to take the patient to National Calcutta Medical College,
medical men at the time. There may be one or more perfectly which is about 7-8 km from the current hospital. The patient
proper standards, and if he confirms with one of these proper died on the way and was declared dead upon arrival at the
standards, then he is not negligent.” National Calcutta Medical College.

In the case of Spring Meadows Hospital and Anr. v Harjol The National Commission allowed the complaint and the
Ahluwalia, 1998 4 SCC 39, a compensation of Rs. 5 lacs was Opponent Ruby Hospital was directed to pay Rs. 10 lakhs
awarded because of mental anguish caused to the parents of to the Complainant for mental pain agony. The Commission
a child who became totally incapacitated for life in addition observed as follows: “This may serve the purpose of bringing
to a compensation of Rs. 12 lacs approx. awarded to the child. about a qualitative change in the attitude of the hospitals
While the amount of Rs. 12 lacs was to be paid by insurer, of providing service to human beings as human beings. A
the balance amount was to be paid by the hospital. Though human touch is necessary; that is their code of conduct; that
the insurance company took a stand since the nurse who is their duty and that is what is required to be implemented.
administered the adult dose of inj. Lariago to the child was In emergency or critical cases, let them discharge their duty/
not qualified, the apex court did not go into this issue while social obligation of rendering service without waiting for
adjudicating negligence related proceeding. Therefore, it fee or for consent”. However, it remains to be seen whether
is important to keep in mind that doctors and hospitals the above award has brought in any attitudinal change in
should not only obtain a Professional Indemnity Insurance the medical fraternity.
Policy, but also take care that nurses and other hospitals
staff engaged by it are qualified. An award was given on the following basis/grounds.
While dealing with the contention that ‘no consideration
MEDICAL ETHICS AND THE TREATMENT OF paid’, ‘deceased or complainant not consumer’ National
ACCIDENT VICTIMS Commission observed as follows (abridged): “Not acceptable.
Persons belonging to the poor class who are provided service
In the case of Pravat Kumar Mukherjee vs. Ruby General free of charge are beneficiaries of service which is hired or
Hospital and Ors, II(2005)CPJ35(NC), the National availed of by the paying class. The status of an emergency or
Commission delivered a landmark decision concerning critically ill patient would be the same as people belonging
treatment of an accident victim by the hospital. The brief to the poor class since both are not in a position to pay. Free
facts of the case are as follows: the complainants are the services would also be services and the recipient would be
parents of the deceased boy. They approached the National the consumer under the Act. Since doctors started treatment

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 Pandit, et al.: Medical negligence a legal perspective

on the deceased due to an emergency, that itself is availing is. As laid down in u.a 141 of the constitution of India, the
of services, may it be free of cost or promised deferred law declared by the Supreme Court is binding in all courts.
payment. Expert evidence pointed out that discontinuance Furthermore, the Constitution of India provides that both
of treatment hastened the death of the patient, which itself the Supreme Court and High Courts of States are the courts
is deficiency in service. Serious negligence and laxity on the of records. So far as the case law laid down by the National
part of the hospital by refusing admission and treatment Commission and State Commission is concerned, they are
facility to the youth who was almost in dying condition, followed by lower fora as a binding precedent though no
defying all medical ethics and a gross violation of the specific provision has been made in the Consumer Protection
Clinical Establishment rules and Act of 1950 as amended in Act, 1986. It is generally accepted that when a point of law
1998. How was a patient who was advised admission at ITU is settled by a decision of a superior authority, it is not to be
was allowed to leave the hospital for treatment elsewhere departed from. Change of a judge shall not affect the settled
without signing any document or risk bond not shown? legal position. A new judge is not supposed to pronounce a
Withdrawal of treatment can not be justified on any ground. new law but is expected to maintain and expound the old
Deficiency is writ large. one. While this appears to restrict the elbow room of new
judges to interpret the law when there is a settled legal
Secondly, while dealing with the contention that there position laid down by his predecessor, this restriction is
was no consent for treatment, the National Commission substantially lifted when the law undergoes amendment.
observed as follows (abridged): “Since emergency treatment There is considerable criticism that Consumer Fora have
is required to be given to a patient who was brought not scrupulously followed the principle laid down by
in seriously injured condition there was no question of superior fora, that is State Commissions of the state and the
waiting for consent. Consent is implicit in such cases. On National Commission and also that even superior fora have
the contrary, a surgeon who fails to perform an emergency often not maintained settled positions laid down by their
operation must prove that the patient refused to undergo predecessors. The decisions of the National Commission and
an operation not only at the initial stage but even after he State Commissions are reported. However, there may not
was informed about the dangerous consequences of not be uniformity with all such decisions. Furthermore, there
undergoing the operation. Waiting for consent of a patient may be conflicting decisions of various State Commissions
or a passer-by who brought the patient to the hospital and National Commissions. Consequently, while some legal
is nothing but absurd and is apparent failure of duty on experts have called for express provision to that effect,
the part of doctor. Deficiency in service was proved and others feel that the principle being followed in respect of the
compensation was granted. Supreme Court and High Courts (since an appeal to Supreme
Court is provided, High Courts are generally not expected
Maintainability of a consumer case when a Motor Accident to entertain consumer related writs though there is no such
Claims Tribunal (MACT) case is pending: The National bar in the Act) may be generally followed even in respect of
Commission held that the MACT case is no bar to complaint the decisions of State and National Commission subject to
under CP Act. Two causes are different and required to be the interpretations if any of High Courts and the final legal
decided by separate tribunals/forums. While the cause of position as laid down by Supreme Court.
action before MACT was rash and negligent driving, due to
which the accident was caused, the cause of action against Clear case of medical negligence (similar to res ipsa
doctors and hospitals is for deficiency in rendering service loquitor?)
– emergency treatment by the doctors or the hospital. An appellant doctor was found by the State Commission
Since both causes are separate and distinct, complaint is to be responsible for leaving ribbon gauze in the right
maintainable. side of the nose after a septoplasty resulting in several
complications. The complainant suffered and had to be
THE IMPORTANCE OF CASE LAW under treatment all the while the National Commission
confirmed the order and observed that it has no option but to
Jurisprudential principle of ‘stare decisis’ is based on a deduce that it was a clear case of medical negligence on the
Latin phrase meaning to stand by decided cases; to uphold part of the appellant. The National Commission in the case
precedents; to maintain the positions laid down by higher of Dr. Ravishankar vs. Jery K. Thomas and Anr, II (2006) CPJ
courts earlier. One of the important characteristics of a good 138 (NC) held that based on the facts and circumstances, the
law is that the law should be definite, lucid, and unambiguous obvious deduction is that the appellant doctor is responsible
with the flexibility to relate to different situations, facts, for leaving behind ribbon gauze resulting in complications.
and circumstances and that justice is done in accordance Medical negligence was proved.
with law. Latin maxim ‘Stare decisis, et non quieta movere’
means it is best to adhere to decisions and not to disturb The brief facts of the case are as follows. The complainant
questions put at rest. The objective is to avoid confusion was having some nasal and breathing problems. He
in the minds of the citizens as to what the law of the land approached the appellant doctor who upon examination

375 Indian Journal of Urology | July-September 2009 |

Pandit, et al.: Medical negligence a legal perspective

advised a septoplasty, which was carried out on August 18, the hospital. A life-saving injection was given. As opined
1999 in second Respondent’s hospital. It is the case of the by the child specialist, doses were safe and the treatment
complainant that after the operation, the pain aggravated was proper. Though the death of the child is unfortunate,
and the breathing problem persisted. After examination, it can not be said that there was negligence on the part of
the complainant was advised to take some antibiotics for the doctor.
major nasal infection. Despite taking these medicines, the
complainant was not getting any relief so he was taken to St. The opinion based on teachings of one school of thought
John’s Hospital. A computed tomography (CT) scan showed may not amount to medical negligence when there are
that there was a deposit inside the nasal cavity for which two responsible schools of thought. Observations of the
an endoscopy was performed at St. John’s hospital. Cotton National Commission in the case of Dr. Subramanyam
gauze was removed from the nasal section on November and Anr. vs. Dr. B. Krishna Rao and Anr., II (1996) CPJ
28, 2000. It was in these circumstances alleging medical 233 (NC) on the question of medical negligence are most
negligence on the part of appellant and second respondent illuminating as it involved a complaint by a well-qualified
a complaint was filed before the State Commission. After doctor against a fellow professional who treated his wife for
hearing perusal of evidence and other material on record, an endoscopic sclerotherapy. It is relevant to note that in
the State Commission held the second respondent guilty of this case the complainant doctor alleged that the moment
medical negligence and directed him to pay a compensation the patient was admitted to the Nursing Home, there was
of Rs. 1 lac with interest @ 6% p.a from the date of complaint total mismanagement to the extent of virtually throwing
along with the cost of Rs. 5000/-. Aggrieved by this order, her into the jaws of death solely because of negligence
the Appellant doctor filed this appeal. and improper rather wrong treatment given to her by the
first opposite party, Dr. Rao. The complainants submitted
Held: heard the counsel for the appellant. As held by the
that the slipshod, callous, and negligent way in which the
State Commission, it is neither the surgery nor the procedure
patient was treated led to her death. Hon’ble Commission
adopted that is under challenge. What is being challenged
observed as follows: “The principles regarding medical
is the leaving behind of cotton gauze after surgery and
negligence are well settled. A doctor can be held guilty of
the non removal of it by the appellant doctor. After going
medical negligence only when he falls short of the standard
through the record maintained at St. John’s hospital, Dr.
of reasonable medical care. A doctor can not be found
Balasubramanium opined that after the CT scan a soft tissue
negligent merely because in a matter of opinion he made
mass (gauze piece) was found retained in the right nasal
cavity that was removed under local anesthesia. an error of judgment. It is also well settled that when there
are genuinely two responsible schools of thought about
CONCLUSION management of a clinical situation the court could do no
greater disservice to the community or advancement of
In these circumstances, deduction is obvious that it was the medical science than to place the hallmark of legality upon
appellant who was responsible for leaving behind ribbon one form of treatment.”
gauze in the right side of the nose after the septoplasty
performed by him on August 18, 1999 resulting in several Error of judgment in diagnosis or failure to cure a disease
complications. Because of this, the complainant suffered does not necessarily mean medical negligence. In the
and had to be under treatment leaving us with no option case of Dr. Kunal Saha vs. Dr. Sukumar Mukherjee and
but to deduce that it was a clear case of medical negligence Ors. III (2006) CPJ 142 (NC), the National Commission
on the part of the appellant. (per Mr. Justice M. B. Shah, President) considered the
question of whether the Opponent doctors and hospital
MEDICO LEGAL – SOME IMPORTANT ISSUES acted negligently in diagnosis of the disease suffered by
the patient (wife of complainant doctor), administration
The death of a patient while undergoing treatment does not of medicine (it was alleged that an overdose of steroids
amount to medical negligence. was prescribed), provision of facilities in hospital (absence
of burn unit in hospital was alleged). A compensation of
In the case of Dr. Ganesh Prasad and Anr. V. Lal Janamajay Rs. 77,76,73,500/- was claimed. The National Commission
Nath Shahdeo, I (2006) CPJ 117 (NC) , the National held that an error in medical diagnosis does not amount
Commission (Order: Per Mrs. Rajalaxmi Rao, Member) to deficiency in service. The National Commission further
reiterated the principle that where proper treatment is observed that the deceased (wife of Complainant) suffered
given, death occurring due to process of disease and its from TEN (Toxic Epidermal Necrolysis), which is a rare
complication, it can not be held that doctors and hospitals disease and the mortality rate varies from 25% to 70% as
are negligent and orders of lower fora do not uphold the per medical literature. The Commission also observed that
claim and award a compensation. In this case, a 4 ½ year considering the facts and circumstances of this case, the
old child suffering from cerebral malaria was admitted to doctor can not be held liable for want of an exact diagnosis.

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 Pandit, et al.: Medical negligence a legal perspective

Role of expert opinion: in the case of Sethuraman The National Commission on the question of whether
Subramniam Iyer vs. Triveni Nursing Home and Anr. I compensation has to be awarded when doctors decide not to
(1998) CPJ 110 (NC), the National Commission dismissed operate and the patient later dies. In the case of Narasimha
the complaint holding that there was no expert evidence Reddy and Ors. Vs. Rohini Hospital and Anr. I (2006)
on behalf of the complainant. Similarly, in ABGP vs. Jog CPJ144 (NC), the National Commission held that when a
Hospital, the complaint was held to be not maintainable. patient could not be operated due to a critical condition,
In Farangi lal Mutneja vs. Shri Guru Harkishan Sahib Eye the doctor can not be held guilty of negligence if the proper
Hospital Sahana and Anr.,IV (2006) CPJ 96, Union Territory course of practice is adopted and reasonable care is taken
Commission, Chandigarh dismissed the claim based on in administration of treatment. Consequently the Revision
medical negligence with following observation: “The O.P. petition filed by the complainant was dismissed.
conducted an eye operation upon the complainant. The
cornea was damaged subsequently, and visibility was lost. When a patient does not give a proper medical history, the
The complainant alleged that proper dilation of an eye was doctor can not be blamed for the consequences. In the case
not done before conducting the cataract operation. Also of S. Tiwari vs. Dr. Pranav 1(1996) CPJ 301 (NC), it was
it was alleged that the operation was done in a hurried alleged that a tooth was extracted without a proper test.
manner. The Medical Council of India, after obtaining the When bleeding continued, the doctor administered a pain
expert opinion of two well known institutions, came to the killer. Though the patient had a blood pressure of 130/90,
conclusion that standard treatment protocol was followed he did not give the doctor his proper medical history. The
and optimal procedures were carried out. Thus there was National Commission upheld the findings of the State
no negligence on the part of the O.P.” Commission and dismissed the complaint on the ground that
the patient did not give a correct case history and follow-up
Medical Literature: In the case of P. Venkata Lakshmi vs. when required.
Dr. Y. Savita Devi, II (2004) CPJ 14 (NC), the National
Hospital is vicariously liable for any wrong claiming on
Commission held that the State Commission ought to have
the part of consultants. In the case of Ms Neha Kumari and
considered the medical literature filed by the complainant
Anr. V Apollo Hospital and Ors. 1 (2003) CPJ 145 (NC), the
and the State Commission had dismissed the complaint on
National Commission held that alleged medical negligence
the grounds that there was no expert evidence and remanded
is not proved as the complainant suffered from complex
the matter.
birth defects of the spine and whole body as evidenced
by a pre-operative CT scan. Two complaints were filed
Quantum of compensation: With regard to the quantum of
claiming a compensation of Rs. 26,90,000 alleging that while
compensation payable to an injured patient, the Supreme
performing an operation (surgery) on the spinal canal, a rod
Court observed in the case of IMA vs. V.P. Shanta and Ors.
was fitted inappropriately at the wrong level that resulted
III (1995) CPJ I (SC), as follows: “A patient who has been in the non functioning of the lower limbs. The Hon’ble
injured by an act of medical negligence has suffered in a way commission held as follows:
which is recognized by the law – and by the public at large
as deserving compensation. This loss may be continuing and “We do not find it is a case of medical negligence as
what may seem like an unduly large award may be little alleged. Complaints have not denied that Neha Kumari
more than that sum which is required to compensate him was suffering from ailments from the very birth and that
for such matters as loss of future earnings and the future she was operated upon when she was only four years of age.
cost of medical or nursing care. To deny a legitimate claim On detailed investigations Neha Kumari was found to have
or to restrict arbitrarily the size of an award would amount multiple congenital complicated problems in Kiphoscoliotic
to substantial injustice. After all, there is no difference in deformity with weakness and wasting right upper limbs and
legal theory between the plaintiff injured through medical (i) complex Khyphoscoliotic deformity of the mid dorsal
negligence and the plaintiff injured in an industrial or motor spine with hemivertibrae of the D and D6 spinal levels and
accident.” spinal bifida of the D and D7 vertebrae….Further filing of
the appeal was delayed and no sufficient cause was shown
Engaging a specialist when available is obligatory. In the to the satisfaction of Commission.
case of Prashanth S. Dhananka vs. Nizam Institute of
Medical Science and Ors (1999) CPJ43 (NC), the National However, on the question of vicarious liability of the
Commission deliberated on important issues such as what hospital for negligence on the part of the consultants, the
constitutes medical negligence, the duty of a hospital to Hon’ble Commission relying on the judgment in Basant
engage a specialist when a specialist is available, vicarious Seth V Regency Hospital O P No.99 of 1994 rejected the
liability of a hospital for omissions and commissions of contention of the hospital and held that the hospital is
doctors and staff, and compensation for mental and physical vicariously liable for any wrong claiming on the part of
torture. consultants.

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Pandit, et al.: Medical negligence a legal perspective

Award of ex-gratia compensation against doctors and otherwise the dignified profession will lose its true worth.”
hospitals is not proper. The decision of the Supreme Court in
the State of Punjab vs. Shiv Ram and Ors., IV (2005) CPJ 14 The apex court further held that merely because a woman
(SC) on a complaint alleging an unsuccessful family planning having undergone a sterilization operation became pregnant
operation due to negligence of the doctor can be said to be an and delivered a child, the operating surgeon or his employer
important milestone for many reasons. Firstly, the Supreme can not be held liable for payment of compensation on
Court held that medical men and hospitals should not be account of unwanted pregnancy or child. A claim in tort is
saddled with damages unless they are found negligent. The sustainable only if there was negligence on the part of surgeon
apex court felt that awarding ex gratia compensation against in performance of a surgery or the surgeon assured 100%
doctors and hospitals without any findings on negligence is exclusion of pregnancy after surgery. Proof of negligence
not proper. The court further held that there is a need for will have to satisfy Bolam’s test. Cause of failure of the
developing a welfare fund or insurance scheme. Failure of sterilization operation may be obtained from laparoscopic
sterilization performed successfully is attributable to causes inspection of the uterine tubes, by an X-ray examination,
other than medical negligence and that the state government or by a pathological examination of the material removed
should think of devising and making provisions for a welfare at a subsequent operation of re-sterilization. The cause of
fund or collaborating with insurance companies. action in the failed sterilization operation arises on account
of negligence of the surgeon and not on account of child
This judgment makes very pragmatic observations in the birth-failure due to natural causes.
midst of several verdicts against medical professionals
and hospitals especially when an award is made based on The apex court reaffirmed the above observations in the
sympathetic considerations. It is heartening to note that State of Haryana and Ors. vs. Raj Rani IV (2005) CPJ28
the apex court looks at the issues relating to the medical (SC) and held as follows: “Doctors can be held liable
profession and medical negligence in a holistic manner and only in cases where failure of operation is attributable
with utmost consideration. to his negligence and not otherwise. Medical negligence
recognized percentage of failure of sterilization operation
In a full bench decision dated August 25, 2005, Mr. Justice due to natural causes depending on techniques chosen for
R.C. Lahoti, former C.J.I observed as follows: “Medical performing surgery. The pregnancy can be for reasons de
profession is one of the oldest professions of the world and hors any negligence of the surgeon. A fallopian tube that is
is the most humanitarian one. There is no better service than cut and sealed may reunite and the woman may conceive
to serve the suffering, wounded, and the sick. Inherent in the though a surgery is performed. Neither can the surgeons
concept of any profession is a code of conduct, containing can be held liable to pay compensation nor can the state
the basic ethics that underline the moral values that govern be held vicariously liable in such cases. However, payment
the professional practice and is aimed at upholding its made by the state will be held as ex gratia payment and the
dignity. Medical ethics underlines the values at the heart money paid to the poor will not be recovered.”
of the practitioner-client relationship. In the recent times,
professionals are developing a tendency to forget that the
self regulation which is at the heart of their profession is
a privilege and not a right and the profession obtains this
privilege in return for an implicit contract with society to How to cite this article: Pandit MS, Pandit S. Medical Negligence: Coverage
provide good, competent and accountable service to the of the profession, duties, ethics, case law, and enlightened defense - A legal
perspective. Indian J Urol 2009;25:372-8.
public. It must always be kept in mind that a doctor is a
Source of Support: Nil, Conflict of Interest: None declared.
noble profession and the aim must be to serve humanity,

| July-September 2009 | Indian Journal of Urology 378