MEDICAL NEGLIGENCE IN

INDIA & THE LAWS

RELATING TO MEDICAL

MALPRACTICE

Submitted by: Siddharth Arora of I-2 Block, Amity Law School, Noida for

Session 2013-2016

2

Index

1, List of Abbreviations– Page 4

2, Table of Cases – Page 5

3, Research Methodology & Chaptalization Scheme– Page 8

4, Overview of Medical Negligence – Page 9

5, Chapter I: Introduction to Medical Negligence – Page 11

Meaning of Breach of Duty & Care – Page 13

Special note of Jaiprakash Saini v. Director Rajiv Gandhi Cancer In-

stitute & Research Center – Page 16

6, Chapter II: Constitutional PeINRpective of Right to Medical Care and

Subsequent Evolution of Law – Page 17

Special note of Indian Medical Association v. V.P.Shantha – Page 21

7, Chapter III: Laws relating to Medical Negligence – Page 21

Consumer Protection Act & Medical negligence – Page 21

Burden of proof and chances of error – Page 25

Concept of Gross Negligence & Recklessness – Page 26

IPC & Medical Negligence – Page 28

9, Chapter IV: Enforcement Machineries – Page 29

Enforceability under Tort Law – Page 29

Enforcement of Criminal Liability – Page 30

Mens Rea in Negligence – Page 32

Enforcement Mechanism under Indian Consumer Protection Act –

Page 33

3

Appeal & Revision – Page 34

Special Note to Oriental Insurance Co. v. Bahadar Ram – Page 34

10, Chapter V: The Evolution of Medical Jurisprudence through laws and

decisions – Page 37

Landmark Judgements & Judicial Precedents – Page 37

Summarization of the Principles laid down for determining Medical

Negligence – Page 39

11, Chapter VI: Case Study – Page 44

Anuradha Saha Case (Dr. Balram Prasad vs Dr. Kunal Saha &

OINR) of 2013

Calculation of Compensatory Amount & Non-pecuniary damages

Special Note to precedents taken into account of Arun Kumar

Agarwal vs. National Insurance Company

12, Chapter VII: Conclusion– Page 50

13, Bibliography – Page 52

4

List of Abbreviations

AIR : All India Reporter

CrPC : The Code of Criminal Procedure

Edn. : Edition

IPC : Indian Penal Code

NGO : Non- Governmental Organisation

CPR : Cardiopulmonary resuscitation

CPA : Consumer Protection Act

BOM : Bombay (Mumbai)

MP : Madhya Pradesh

IJHINR : Indian Journal of Human Rights Studies

NCRB : National Crime Records Bureau

SCDRC : State Consumer Disputes Redressal Comission

5

Table of Cases

Achutrao Haribhau Khodwa and Other vs State of Maharastra and

Others; 1996 SCC (2) 634, JT 1996 (2) 624

Arun Kumar Agarwal Vs. National Insurance Company

Bolam v. Friern Hosp. Management Committee, (1957)

Calcutta Medical Research Institute vs Bimalesh Chatterjee (1999)

CPJ 13 (NC)

Chameli Singh v. State of U.P. AIR 1996 SC 1051

Consumer Education and Research Center v. Union of India, AIR

1995 SC 1922;

Criminal Appeal Nos 144-145 of 2004

Delhi Development Authority v. J.N. Luthra 1993 II CPJ 934.

Donoghue v. Stevenson, (1932) A.C. 31.H.L.

Dr Janak Kantimathi Nathan vs Murlidhar Eknath Masane of 2002

2002 (2) CPR 138

Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole AIR

1969 (SC)128

Dr Prem Luthra vs Iftekhar (2004) 11 CLD 37 (SCDRC - UT-

TARANCHAL)

Dr. Balram Prasad vs Dr. Kunal Saha & Ors 2013 STPL(Web) 850

SC Rajesh & Ors. Vs. Rajvir Singh and Ors 2013 (6) SCALE 563

Dr. Suresh Gupta vs Govt. Of N.C.T. Of Delhi & Anr on 4 Aug,2004

Dynavox Electronic v. BJS Rampura Jain College 1991(1)CPJ 440

6

Francis Coralie Mullin v. The Administration Union Territory of

Delhi AIR 1981 SC 746

Gold v. Haringey Health Authority, (1987)

House of Lords decision in R vs Adomako (1994) 3 All ER 79

Housing Board vs Dr. S.L. Chaudhry 1991 (1) CPR 515

Indian Medical Association v. V.P.Shantha 111 (1995) CPJ 1 (SC);

1995 (3) CPR 412; 1995 (6) SCALE 273; 1996 CCJ 1 (SC)

Ishwar Das v. Vinay Kumar Gupta 1992 (1) CPR

Jacob Mathew vs State Of Punjab & Anr on 5 August, 2005

Jaiprakash Saini v. Director Rajiv Gandhi Cancer Institute & Re-

search Center,2003 (2) CPR.205.

Jaipur Stock Exchange v C P.Mehta 1991 (1) CPR 26

Kanhaiya Kumar Singh vs Park Medicare & Research Centre of

1999 III (1999) CPJ 9 (NC)

Marikkar Motors Ltd. v Mary Poulsoe 1991 (11) CPR 251

Maynard v. West Midlands Regional Health Authority, (1985)

Mohanan vs Prabha G Nair and another (2004) CPJ 21(SC), of

2004 Feb 4

Oriental Insurance Co. v. Bahadar Ram 1992 CPJ 526

Paramanand Katara v. Union of India, AIR 1989 SC 2039;

Paschim Banghakhet Mazdoor Samity and others v. State of West

Bengal and another (1996) 4 SCC

Phillips India Lev. Kunjupunnu, AIR 1975 Bom.306

Poonam Verma vs Ashwin Patel (1996) 1996 4 SCC 332

7

R v. Lawrence (1981) 1 All ER 974, (1982) AC 510, (1981)2WLR

5249(HC)

Shrivastava v Rarnbiliarilal AIR (1982) M.P.132

Smt J S Paul vs Dr (Mrs) A Barkataki (2004) 10 CLD 1 (SCDRC -

MEGHALAYA)

Spring Meadows Hospital v. Harjol Ahluwalia; AIR 1998 SC 1801

State of Haryana vs. Smt. Santra (2000) 5 SCC 182, AIR 2000 SC

3335

State of Punjab v. Mahinder Singh Chawla, AIR 1997 SC 1225.

State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 8371

T. Anandam And Others Nellore vs M/S. Yashoda Super Speciality

on 25 March, 2009

Union of India v. Nadhu Shah Kapoor II (1993) CPJ 1044

Vincent Panikulangara v. Union of India AIR 1987 SC. 994

Vineetha Ashok v. Lekshmi Hospital KLT 606

Viraj Overseas Pvt, Ltd v. MIs. Hindustan Motors Ltd II (1992) CPJ

360 NC

Wheel World v. Dr. Snit. Janak -Narendra 1991 (11) CPR 632 37

Whitehouse vs. Jordan (1981) 1 All ER 267 the House of Lords

8

Research Methodology & Chaptalization Scheme

For the purpose of study, the dissertation has been divided into 7 chapters. The

1st chapter is an introductory chapter. Further the chapter makes an exhaustive

analysis of the various international conventions and instruments adopted by

the international community to establish and mould the right to health care.

The second chapter narrates the constitutional perspective of right to quality

medical care and its evolution under medical law. In this chapter, an attempt is

made to define and analyse the need for an effective law for controlling medi-

cal negligence cases. It discusses the root causes of the problem and its impact.

The third chapter provides information relating to various common law liabili-

ties under medical negligence. The main liabilities like Penal, tortious, contrac-

tual and corporate liabilities are discussed to provide a better understanding of

medical negligence jurisprudence.

Fourth chapter deals with enforcement mechanism under consumer law. The

consumer courts in India have also been discussed; emphasising on their merits

and demerits and also making suggestion for changes that can be incorporated

into the system.

The fifth chapter is exclusively dedicated to the development of law through

judicial decisions.

The sixth chapter deals with evolution of medical jurisprudence through exist-

ing laws and judicial decisions. The existing laws and judicial decisions have

contributed substantially to the evolution of medical jurisprudence in India. The

eighth chapter makes a study of how this has happened and also discusses the

outcomes.

The final chapter is the concluding chapter which contains the suggestions to

overcome the existing problem in the field of medical profession and make it

worthy of its name.

9

Abstract

Medical malpractice can be defined as a professional negligence by act or

omission by a health care provider in which the treatment to be provided falls

below the accepted standards of practice in the medical community and in turn

causes injury or death to the patient, with most cases involving medical error.

Therefore any negligence by an act or omission of a medical practitioner in

performing his/her duty is referred as medical negligence.1 Medical negligence

is caused when the medical practitioner fails to provide the care which is ex-

pected in each case thus resulting in injury or death of the patient.2

It can be any tort or breach of contract of health care or professional services

rendered by a health care provider to a patient. The standard of skill and care

required of every health care provider in rendering professional services or

health care to a patient shall be that degree of skill and care which is ordinarily

being employed in the same or similar field of medicine as defendant, and with

use of reasonable care and diligence.3

“In medical profession, skills may differ from one doctor to another and there

is always more than one alternative course of treatment is available, which are

all admissible. Negligence can’t be attributed to a doctor so long as he is per-

forming his duties to the best of his ability and with due care and caution.

Merely because the doctor chooses one course of action in preference to the

1 Medical Malpractice, last visited on 30

th March 2015, available at

http://en.wikipedia.org/wiki/Medical_malpractice 2 The Practice of Uncertainty: Voices of Physicians and Patients in Medical Malpractice Claims

by Stephen L. Fielding 3 Medical Negligence Law & Legal Definition, last visited on 30

th March 2015, available at

http://definitions.uslegal.com/m/medical-negligence/

10

other one, he wouldn’t be liable if the course of action chosen by him was ac-

ceptable to the medical profession.”4

With an idea of protecting the consumers The Consumer Protection Act, 1986

was enacted by the legislature to arm each and every consumer and consumer

associations with rights to seek speedy, cheap and efficient remedies which are

proving to be very popular and effective as well, leaving behind a trail of rul-

ings and findings under which so many people have been benefited.

Consumer complaints are growing at a fast rate of 20%. But at the same time

patients who belong to the lower income groups or those who are illiterate, do

not get the benefit of the Act. Doctors often get away with their act of negli-

gence, because the patients neither have the medical knowledge nor sufficient

evidence to fight their case. Therefore these situations are favourable to the

doctors and corporate medical firms.5

4 As observed in Achutrao Haribhau Khodwa and Other vs State of Maharastra and Others;

1996 SCC (2) 634, JT 1996 (2) 624 5 Medical negligence liability under the consumer protection act: A review of judicial perspec-

tive by S. V. Joga Rao of 2009

11

Chapter I

Introduction to the Concept of Medical Negligence

According to present legal position, a medical practitioner is not liable to be

held negligent simply because things went wrong from mischance or misadven-

ture or through an error of judgment in choosing one reasonable course of

treatment in preference to another.6 He would be liable only where his conduct

falls below that of the standards of a reasonably competent practitioner in his

field. For instance, the surgeon is liable, if he leaves surgical gauze inside the

patient after an operation. 7

There may be few cases where an exceptionally brilliant doctor performs an

operation or prescribes a treatment which has never been tried before to save

the life of a patient when no knowable method of treatment is available. If the

patient dies or suffers some serious harm, should the doctor be liable? In such

situation he should not be held liable.8 Science advances by experimentation,

but experiments sometimes end in failure e.g. the operation on the Iranian Sia-

mese twins or the first heart transplant by Dr. Barnad in South Africa. In such

cases it is advisable for the doctor to explain the situation to the patient and

take his written consent.9

The word health is changing in its contents radically after the World Health

Organisation defined the term positively as a state of complete physical, mental

and social wellbeing, and not just the absence of diseases and wellness.10 As

per the Constitution of the World Health Organisation, everyone has a right to

6 Jacob Mathew vs State Of Punjab & Anr on 5 August, 2005

7 Bhishagratna, Kunja Lal; Sushruta Samhita, (1-2) edn., Calcutta (1907)

8 Hospital Administration And Human Resource Management 5Th Ed. By Sharma & Goyal,

Sharma D. K., Goyal R; Page 528 9 T. Anandam And Others Nellore vs M/S. Yashoda Super Speciality on 25 March, 2009

10 Preamble to the Constitution of the World Health Organisation

12

have the highest standard of Health.11 Such a fundamental right shall be availa-

ble to all without distinction of race, religion and political belief, economic or

social condition that health of all people is fundamental to the attainment of

peace and security.12 After the establishment of the World Health Organization,

the right to health care was recognized internationally, and various international

conventions recognized the importance of the right to health care. The objective

of the organization is declared as the attainment by people, of the highest pos-

sible level of health.13

11

Supra.; Note 10 12

Article 22 and 25(1) of the Universal Declaration of Human Right; Article 16 of the African

(Banju) Charter on Human and people's rights, adopted on June 27,1981; Part 1. Article 11 of

European Social Charter,1961; Article 12 of the International Covenant On Economic, Social,

Cultural rights,1966; Article 11 of the American Declaration of the fights and Duties of Man,

adopted by the Ninth International Conference of American States,1948; Declaration 1 of the

International Conference of Primary Health Care, Alma-Ata 1978. The very existence of hu-

man being who are prone to sickness and diseases, very often depend on availability on effi-

cient health care services at the affordable cost. 13

Article 1 of the Constitution of the World Health Organisation

13

Meaning of Breach of Duty & Care

The question of professional duty to take care of health has immense signifi-

cance in the present day world. The WHO is committed to provide health for

all. The Directive Principles of State Policy under the Constitution of India

demands the State to make effective provision for public health, and for just

and humane conditions of work. 14

It is the primary duty of the State to raise the level of nutrition, the standard of

living of its people and the improvement of public health.15 The Supreme Court

has declared that right to medical aid as an integral part of the right to life. It is

an obligation on the State to preserve life by extending required medical assis-

tance.16 In fact the Apex Court has held that right to health and medical care is

a fundamental right under the Constitution of India.17 On jurisprudential analy-

sis of this issue, it is clear that it has become a socio-legal problem.

A person, who holds himself out as ready to give medical advice or treatment,

impliedly undertakes that he is possessed of skill and knowledge for the pur-

pose. Such a person whether he is a registered medical practitioner or not., if he

is consulted by a patient he owes the patient certain duties namely a duty of

care in administration of the treatment.18 A breach of any of these duties will

support an action for negligence by the patient. 19

This principle has also been followed by the Hon'ble Supreme Court in Phillips

India Lev. Kunjupunnu 20and others, relying on English decisions. Similar is

14

Article 41 and 42 of the Constitution of India 15

Article 47 of the Constitution of India 16

State of Punjab v. Mahinder Singh Chawla,; AIR 1997 SC 1225. 17

Paramanand Katara v. Union of India,; AIR 1989 SC 2039; 18

Consumer Education and Research Center v. Union of India,; AIR 1995 SC 1922; 19

The Practice of Uncertainty: Voices of Physicians and Patients in Medical Malpractice Claims

by Stephen L. Fielding 20

Phillips India Lev. Kunjupunnu,; AIR 1975 Bom.306

14

the view of Madhya Pradesh High court21 in Shrivastava v Rarnbiliarilal and

others. It would appear from the above line of decisions that our courts have

mostly relied on English decisions.

Therefore the essential ingredients of actionable negligence in medical profes-

sion are:

(1) Existence of duty to take care whether it is so or not depends on the ques-

tion of proximity 22

(2) Breach of duty to take care

(3) The breach of duty must cause the injury or loss to the defendant

For the analysis of these three components, comprehensive information regard-

ing duty of care, Breach of Injury and duty of care arising out of breach of duty

of care is needed.

Diagnosis of the patient is the yew basis upon which whole of the treatment has

to be carried out; mistaken diagnosis may result in wrong prescription, and

wrong treatment causing harm or injury to the patient. Hence, failure to diag-

nose the patient properly amounts to negligence.23 But medical practitioners are

not infallible. Even a very highly qualified and experienced person may commit

mistake in diagnosis, hence for every mistake in diagnosis he is not to be held

liable. He can be liable, where he fails to do according to the reasonable stand-

ard of care. 24

Mistaken diagnosis is not necessarily negligent diagnosis, unless the symptoms

are so apparent that any reasonably competent and skilful physician could say

21

Shrivastava v Rarnbiliarilal ; AIR (1982) M.P.132 22

Donoghue v. Stevenson, (1932) A.C. 31.H.L. proximate cause of the harm What is proximate

is "that because of convenience of public policy or a rough sense of justice the law arbitrarily

declines to trace a series of events beyond certain point quoted in Fleming, John G., "Law of

Torts" 5th Edn., Sydney p.190. 23

Gold v. Haringey Health Authority, (1987) 24

Supra., Note 1

15

that 'this is disease'. Diagnosis must also be judged in relation to development

in science of medicine at that time. If he fails to observe the later developments

and adheres to original mistaken diagnosis, he may be held to have been negli-

gent.25

The justification in pleading that some other doctor could have done better

doesn’t form ground for litigation. The standard of care is adaptable and flexi-

ble to circumstance as the same standard of skill or competence is not expected

of every medical man. Therefore standard of responsible care cannot be defined

with mathematical precision. Reasonableness of care depends on numerous

factors like advancement of science of medicine, time, place and experience

etc. It must be the standard of care and skill, which any medical man exercising

the professional skill ought to observe.

Medical practitioner is not guilty of negligence if he has acted in accordance

with a practice accepted as proper by a responsible body of medical men skilled

in that particular act, merely because there was a body of opinion that would

take a contrary view.

Thus the judicial decisions affirm that the standard of care required of medical

man is that of the average practitioner of the category (e.g.: Allopathic, Ho-

moeopathic, Ayurvedic, etc.) to which the negligent practitioner belongs. As

already noted, fair and reasonable standard of skill and competence is variable

because some people may be more skilled and some may have only the lowest

standard of skill and competence.26

In Jaiprakash Saini v. Director Rajiv Gandhi Cancer Institute & Research

Center,27 it has been held that in order to decide whether negligence is estab-

lished in any particular case, the alleged act or omission or course of conduct,

complained must be judged not by ideal standard nor in the abstract but

against the background of circumstances in which the treatment in question

was given and the true test for establishing negligence on the part of a doctor is

25

Maynard v. West Midlands Regional Health Authority, (1985) 26

Bolam v. Friern Hosp. Management Committee, (1957) 27

Jaiprakash Saini v. Director Rajiv Gandhi Cancer Institute & Research Center,; 2003 (2)

CPR.205.

16

that whether a doctor of ordinary skill would be guilty if acting with reasonable

care. Merely because a medical procedure fails it cannot be stated that the

medical practitioner is guilty of negligence unless it is proved that the medical

practitioner did not act with sufficient care and skill and the burden of proving

the same, rests upon the person who assists it. So the duty of a medical practi-

tioner arises from the fact that he does something to a human being, which is

likely to cause physical damage unless it is done with proper care and skill.

17

Chapter II

Constitutional Perspective of Right to Medical Care and Subse-

quent Evolution of Law

The Constitution of India not only provides for the health care of the people but

also directs the State to take measures to improve the condition of health care

of the people. The preamble to the Constitution of India has secured to all its

citizens’ justice both social and economic .The Constitution provides a frame-

work for the achievement of the objectives laid down in the preamble.

The right to health has not been integrated directly into the Constitution of In-

dia. The only right that is related to right to health is the right to life guaranteed

under the Constitution.28 The Indian Supreme Court by its innovative judicial

interpretation of the various provisions has given a new content and scope to

the right to life, which has come to stay as a sanctuary for human values. The

Supreme Court has interpreted the right to life as embracing the right to live

with human dignity, which included the quality of life along with all the basic

human needs such as food, clothing, shelter, safe drinking water, education and

health care.29

In State of Punjab v. Mohinder Singh Chawla30 “it was declared that since

the right to health was an integral part of the right to life the govt. has a consti-

tutional obligation to provide health facilities”

In a similar view, in Chameli Singh v. State of U.P.31 “it was held that the

right to life implies the right to food, water, decent environment, education,

medical care and shelter. These constitute the basic human rights known to any

28

Article 21 of the Constitution, which declares, "No person shall be deprived of his life or

personal liberty except according to the procedure established by low". 29

Francis Coralie Mullin v. The Administration Union Territory of Delhi; AIR 1981 SC 746 30

State of Punjab v. Mohinder Singh Chawla (1997); 1997 2 SCC 8371 31

Chameli Singh v. State of U.P.; AIR 1996 SC 1051

18

civilized society. The civil, political; social and cultural rights enshrined in the

Constitution cannot be exercised without these basic rights.”

The Supreme Court, in Paschim Banghakhet Mazdoor Samity and others v.

State of West Bengal and another32, while widening the scope of Art: 21 and

dealing with the government responsibility to provide medical aid to every per-

son in the country; held that “in a welfare State, the primary duty of the gov-

ernment is to secure the welfare of the people. Providing adequate medical

facilities for the people is an obligation undertaken by the government in a wel-

fare State.” So it was contented that the petitioner should be suitably compen-

sated for the breach of his right guaranteed under Art: 21 of the Constitution.

After due regard to the facts and circumstance of the case, compensation was

awarded. The Paschim Banga33 reiterates the position that the right to medical

services is part of the right to life and the State has a duty to provide it either

through the state machinery or through the private sector.

Later in Parmanand Kattara v. Union of India34 “the court made only a dec-

laration that legal or procedural technicalities cannot stand in the way of the

doctor providing emergency medical care to accident victims. Even though this

decision does not impose any positive obligation on doctors of private hospital

to provide medical treatment to accident victims; it was an effective decision

for the enforcement of the right of patient.”

The court again in Vincent Panikulangara v. Union of India35 held that, 'a

healthy body is the very foundation for all human activities'.“ In welfare State,

it is the obligation of the State to ensure the creation and the sustenance of

conditions.”

32

Paschim Banghakhet Mazdoor Samity and others v. State of West Bengal and another

(1996); 1996 4 SCC

Wherein Art 21 imposes an obligation on the state to safeguard the right to life of every per-

son. Preservation of human life is thus of paramount importance. The government hospital

run by the state is duty bound to extent medical assistance for preserving human life. Failure

on the part of the government hospital to provide timely extend medical assistance 33

Maynard v. West Midlands Regional Health Authority, (1985) 34

Parmanand Kattara v. Union of India; AIR 1989 SC. 2039 35

Vincent Panikulangara v. Union of India ; AIR 1987 SC. 994

19

To provide remedy for negligence or deficiency in service by medical practi-

tioner, there is a twin adverse effect.36 Private Doctors and hospitals have, at an

increasing number out of necessity, started playing it safe, by subjecting or re-

quiring the patients to undergo various costly diagnostic procedures and tests to

further avoid any allegation of negligence; though they might be already famil-

iar to the ailment with reference to the symptoms and medical history, by their

knowledge and experience. Secondly, more and more doctors particularly sur-

geons in private practice are being forced to cover themselves by taking out

insurance, for themselves. The costs, of which are ultimately passed onto the

patients, by way of higher fee.

A doctor shall abide by the oath throughout his career. If a doctor fails to fulfil

any of these promises, he will be liable for professional misconduct and liable

for removal from the rolls. And they will also be liable for medical negligence

under the Consumer Protection Act37.

The hospitals are held to be equally liable for the acts of the medical staff and

its doctors. Nursing homes are also to be held negligent if the nurses fail to ex-

ecute instruction delivered to them at the time of treatment.

In Achutrao Haribhau Khodwa v. State of Maharashtra38, the Supreme

Court held that, “the State is liable for acts of negligence committed by doctors

in a government- run hospital.”

Supreme Court of India in Indian Medical Association v. V.P.Shantha39’s

case, held that “the medical profession is included within the meaning of ser-

vice under consumer law. Protest against this decision arose from different

corners but the court confirmed their stand. Thus medical service comes under

36

Samira Kohli vs Dr. Prabha Manchanda & Anr on 16 January, 2008 37

The Consumer Protection Act of 1986 38

Achutrao Haribhau Khodwa. v. State of Maharashtra ; 1996 (2) SCC 634 39

Indian Medical Association v. V.P.Shantha ; 111 (1995) CPJ 1 (SC); 1995 (3) CPR 412; 1995

(6) SCALE 273; 1996 CCJ 1 (SC)

20

Consumer law. No doubt, due to this decision, the doctors became more cau-

tious in treatments and a form of defensive medication slowly took over. In such

cases, the patients are being advised to undergo several tests even before the

preliminary diagnosis, so as to obviate any litigation against doctors. The ulti-

mate sufferer is the patient himself as the treatment becomes expensive and

there is a delay in initiating the treatment.”

21

Chapter 3

Laws Relating to Medical Negligence

With the Consumer Protection Act, 1986 coming into effect, a number of pa-

tients have filed cases against doctors. Public awareness of medical negligence

in India is rapidly growing. Hospital’s managements are increasingly facing

complaints regarding the facilities, standards of professional competence, and

the appropriateness of their therapeutic and diagnostic methods. After the Con-

sumer Protection Act, 1986 has come into force patients filing legal cases

against doctors, have established that the doctors were negligent in their medi-

cal service, and have also claimed and received compensation. Therefore, a

number of legal decisions have been made on what constitutes negligence and

what is required to prove it.40

Persons who offer medical advice and treatment implicitly state that they have

the required skill and knowledge to do so, that they have the skill to decide

whether to take a case, to decide the treatment, and to administer that treatment.

This is referred as an “implied undertaking” on the part of a medical profes-

sional. In the case of the State of Haryana vs Smt Santra, the Supreme Court

held that every doctor “has a duty to act with a reasonable degree of care and

skill” 41

Doctors in India may be held liable for their services individually or vicariously

unless they come within the exceptions specified in the case of Indian Medical

Association vs V P Santha.42 “Doctors are not liable for their services indi-

vidually or vicariously if they do not charge fees. Thus free treatment at a non-

government hospital, governmental hospital, health centre, dispensary or nurs-

40

Indian Journal of Medical Ethics, Volume 3, No 4 of 2007 41

State of Haryana vs. Smt. Santra (2000); 5 SCC 182, AIR 2000 SC 3335 42

Indian Medical Association vs V P Santha; AIR 1996 SC 550

22

ing home would not be considered a “service” as defined in Section 2 (1) (0) of

the Consumer Protection Act, 1986.”

Having said that, no human being is perfect and even the most renowned spe-

cialist can make a mistake in detecting or diagnosing the true nature of a dis-

ease. A doctor can be held liable for negligence only if one can prove that he is

guilty of a failure, which no doctor with ordinary skills would be guilty of he

had acted with reasonable care.43 An error of judgement constitutes negligence

only if a reasonably competent professional with the standard skills that the

defendant professes to have, and acting with ordinary care, would not have

made the same error.44

In a key decision on this matter in the case of Dr Laxman Balkrishna Joshi vs

Dr Trimbak Bapu Godbole, the Supreme Court held that “if a doctor has

adopted a practice that is considered “proper” by a reasonable body of medi-

cal professionals who are skilled in that particular field, he or she will not be

held negligent only because something went wrong.”

Doctors have an obligation to exercise an ordinary degree of skill.45 But, they

cannot give a warranty of the perfection of their skill or a guarantee of cure. If

the doctor has adopted the right course of treatment, if the doctor is skilled and

has worked with a method and manner best suited to the patient, he cannot be

blamed for negligence if the patient is not fully cured.46

43

Observations of Lord President Clyde in Hunter vs Hanley (1955) SLT 213 In: Nathan HL.

Medical Negligence; London, Butterworths; 1957 44

Whitehouse vs. Jordan (1981) 1 All ER 267 the House of Lords 45

Smt J S Paul vs Dr (Mrs) A Barkataki (2004); 10 CLD 1 (SCDRC - MEGHALAYA) 46

Dr Prem Luthra vs Iftekhar (2004); 11 CLD 37 (SCDRC - UTTARANCHAL)

23

Certain set of conditions must be satisfied before liability can be considered.

The person who is accused must have committed an act of omission or com-

mission; the said act must have been in breach of the person’s duty; and which

must have caused harm to the injured person. The complainant should prove

the allegation against the doctor by citing the best evidence available in medical

science and presentation by way of expert opinion.47

The complainant in some situations can invoke the principle of res ispa loquitur

or “the thing speaks for itself”. In certain circumstances no proof of negligence

is required beyond the accident itself. The National Consumer Disputes Re-

dressal Commission applied this principle in Dr Janak Kantimathi Nathan vs

Murlidhar Eknath Masane.48

The principle of res ipsa loquitur49 comes into operation only when there is

proof that the occurrence was unexpected, that the accident could not have

happened without negligence and lapses on the part of the doctor, and that the

circumstances conclusively show that the doctor and not any other person was

negligent.

Section 304A of the Indian Penal Code of 1860, Causing death by negli-

gence.—Whoever causes the death of any person by doing any rash or negli-

gent act not amounting to culpable homicide, shall be punished with imprison-

ment of either description for a term which may extend to two years, or with

fine, or with both.

47

Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole ; AIR 1969 (SC)128 48

Dr Janak Kantimathi Nathan vs Murlidhar Eknath Masane of 2002 ; 2002 (2) CPR 138 49

Latin for "the thing speaks for itself," a doctrine of law that one is presumed to be negligent

if he/she/it had exclusive control of whatever caused the injury even though there is no spe-

cific evidence of an act of negligence, and without negligence the accident would not have

happened. Examples: a) a load of bricks on the roof of a building being constructed by High-

rise Construction Co. falls and injures Paul Pedestrian below, and Highrise is liable for Pedes-

trian's injury even though no one saw the load fall. b) While under anesthetic, Isabel Patient's

nerve in her arm is damaged although it was not part of the surgical procedure, and she is

unaware of which of a dozen medical people in the room caused the damage. Under res ipsa

loquitur all those connected with the operation are liable for negligence.

24

In Poonam Verma vs Ashwin Patel the Supreme Court distinguished between

negligence, rashness, and recklessness.50 A negligent person is one who inad-

vertently commits an act of omission and violates a positive duty. A person

who is rash knows the consequences but foolishly thinks that they will not oc-

cur as a result of her/ his act. A reckless person knows the consequences but

does not care whether or not they result from her/ his act. Any conduct falling

short of recklessness and deliberate wrongdoing should not be the subject of

criminal liability.

Thus a doctor cannot be held criminally responsible for a patient’s death unless

it is shown that she/ he was negligent or incompetent, with such disregard for

the life and safety of his patient that it amounted to a crime against the State.51

Sections 80 and 88 of the Indian Penal Code contain defences for doctors ac-

cused of criminal liability. Under Section 80 Accident in doing a lawful act.—

nothing is an offence which 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, Act not intended to cause death, done by consent in

good faith for person’s benefit.—Nothing which is not intended to cause death,

is an offence by reason of any harm which it may cause, or be intended by the

doer to cause, or be known by the doer to be likely to cause, to any person for

whose benefit it is done in good faith, and who has given a consent, whether

express or implied, to suffer that harm, or to take the risk of that harm.

50

Poonam Verma vs Ashwin Patel (1996) ; 1996 4 SCC 332 51

House of Lords decision in R vs Adomako (1994) ; 1994 3 All ER 79

25

Burden of proof and chances of error

The burden of proof of negligence, carelessness, or insufficiency generally lies

with the complainant. The law requires a higher standard of evidence than oth-

erwise, to support an allegation of negligence against a doctor. In cases of med-

ical negligence the patient must establish her/ his claim against the doctor.52

In Calcutta Medical Research Institute vs Bimalesh Chatterjee it was held

that the onus of proving negligence and the resultant deficiency in service was

clearly on the complainant.53 In Kanhaiya Kumar Singh vs Park Medicare

& Research Centre, it was held that negligence has to be established and can-

not be presumed.54

Even after adopting all medical procedures as prescribed, a qualified doctor

may commit an error. The National Consumer Disputes Redressal Commission

55and the Supreme Court have held, in several decisions, that a doctor is not

liable for negligence or medical deficiency if some wrong is caused in his

treatment or in his diagnosis if she/ he has acted in accordance with the practice

accepted as proper by a reasonable body of medical professionals skilled in that

particular art, though the result may be wrong. In various kinds of medical and

surgical treatment, the likelihood of an accident leading to death cannot be

ruled out. It is implied that a patient willingly takes such a risk as part of the

doctor-patient relationship and the attendant mutual trust.56

52

Law & Practice of Disability Consequent to Medical Negligence (with Human Disability Eval-

uation of Personal Injuries - Principles, Practice and Law) by Dr. B.V.Subrahmanyam 53

Calcutta Medical Research Institute vs Bimalesh Chatterjee ; (1999) CPJ 13 (NC) 54

Kanhaiya Kumar Singh vs Park Medicare & Research Centre of 1999; III (1999) CPJ 9 (NC) 55

The National Consumer Disputes Redressal Commission (NCDRC), India is a quasi-judicial

commission in India which was set up in 1988 under the Consumer Protection Act, 1986. 56

Paschim Banghakhet Mazdoor Samity and others v. State of West Bengal and another

(1996); 1996 4 SCC

26

Concept of Gross Negligence & Recklessness

Before the case of Jacob Matthew’s case, the Supreme Court of India delivered

two different opinions on doctors’ liability. In Mohanan vs Prabha G Nair

and another57, it ruled that a doctor’s negligence could be ascertained only by

scanning the material and expert evidence that might be presented during a tri-

al. In Suresh Gupta’s case in August 2004 the standard of negligence that had

to be proved to fix a doctor’s or surgeon’s criminal liability was set at “gross

negligence” or “recklessness.”58

In Suresh Gupta’s case the Supreme Court distinguished between an error of

judgement and culpable negligence. It held that criminal prosecution of doctors

without adequate medical opinion pointing to their guilt would be a great dis-

service to the community. A doctor cannot be tried for culpable or criminal

negligence in all cases of medical mishaps or misfortunes.

A doctor may be liable in a civil case for negligence but mere carelessness or

want of due attention and skill cannot be described as so reckless or grossly

negligent as to make her/ him criminally liable. The courts held that this dis-

tinction was necessary so that the hazards of medical professionals being ex-

posed to civil liability may not unreasonably extend to criminal liability and

expose them to the risk of imprisonment for alleged criminal negligence.

Hence the complaint against the doctor must show negligence or rashness of

such a degree as to indicate a mental state that can be described as totally apa-

thetic towards the patient. Such gross negligence alone is punishable.

57

Mohanan vs Prabha G Nair and another (2004) ; CPJ 21(SC), of 2004 Feb 4 58

Dr. Suresh Gupta vs Govt. Of N.C.T. Of Delhi & Anr on 4 August, 2004

27

On September 9, 2004, Justices Arijit Pasayat and CK Thakker referred the

question of medical negligence to a larger Bench of the Supreme Court. They

observed that words such as “gross”, “reckless”, “competence”, and “indif-

ference” did not occur anywhere in the definition of “negligence” under Sec-

tion 304A of the Indian Penal Code and hence they could not agree with the

judgement delivered in the case of Dr Suresh Gupta.

The issue was decided in the Supreme Court in the case of Jacob Mathew vs

State of Punjab.59 The court directed the central government to frame guide-

lines to save doctors from unnecessary harassment and undue pressure in per-

forming their duties. It ruled that until the government framed such guidelines,

the following guidelines should prevail:

A private complaint of rashness or negligence against a doctor may not be en-

tertained without prima facie evidence in the form of a credible opinion of an-

other competent doctor supporting the charge. In addition, the investigating

officer should give an independent opinion, preferably of a government doctor.

Finally, a doctor may be arrested only if the investigating officer believes that

he wouldn’t be available for prosecution unless arrested.

59

Jacob Mathew vs State of Punjab; Criminal Appeal Nos 144-145 of 2004

28

IPC & Medical Negligence

Indian Penal Code, 1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and

338 contain the law of medical malpractice in India.

A physician can be charged with criminal negligence when a patient dies from

the effects of anaesthesia during, an operation or other kind of treatment, if it

can be proved that the death was the result if malicious intention, or gross neg-

ligence. Before the administration of anaesthesia or performance of an opera-

tion, the medical man is expected to follow the accepted precautions.

In such cases, the physician should be able to prove that he used reasonable and

ordinary care in the treatment of his patient to the best of his judgment. He is,

however, not liable for an error judgment. The law expects a duly qualified

physician to use that degree of skill and care which an average man of his qual-

ifications ought to have, and does not expect him to bring the highest possible

degree of skill in the treatment of his patients, or to be able to guarantee cures.

It has long been recognized that criminal liability of a physician may result

from a high degree of negligent conduct. What the law calls criminal negli-

gence is largely a matter of degree; it is incapable of a precise definition. To

prove whether or not it exists is like chasing a mirage. It requires that any of the

following to be established in a case of criminal medical negligence.

When a FIR is filed against a doctor for the death of a patient who was under

his treatment, under this Indian Penal Code Section 304-A the doctor can be

arrested. A doctor charged under this section can obtain bail and if proved

guilty, the doctor can be punished with a maximum of two years imprisonment

or fine or both. But, if the patient is alive, the doctor is charged under the Indi-

an Penal Code Section 337 and 338.60

60

Consumer Protection Act and Medical Profession - Indian Penal Code and Medical Negli-

gence, available at medindia.net last visited on 30th

March 2015

29

Chapter IV

Enforcement Machineries

The civil liability is enforced through the civil court system and consumer lia-

bility is enforced through the consumer court. The common law enforcement

under Tort law is being discussed below.

Enforceability under Tort Law

The damages are awarded by the Civil Court, and each and every suit shall be

instituted in the Court of the lowest grade competent to try it. A suit for com-

pensation may be instituted at the option of the plaintiff either in the court with-

in the local limits of whose jurisdiction the wrong is done, the cause of action

arises or in the court within the local limits of whose jurisdiction the defendant

resides, or carries on business, or personally works for gain. A huge amount of

court fee is required to be paid in any suit for compensation on the allegation of

medical negligence. Moreover a much quicker and cheaper remedy is available

to the consumer of medical service under different Consumer Disputes Re-

dressal Agencies established by the Consumer Protection Act 1986.Another

common law enforcement system is through the Criminal Court.

30

Enforcement of Criminal Liability

Criminal Liability is mainly enforced though the criminal court with respect to

the provisions of Indian Penal Code and Criminal Procedure code. The extent

of liability in tort depends on the extent of darn ages, but the extent of liability

in criminal law depends on the amount and degree of negligence. Now unliqui-

dated damages are awarded in criminal liability.

This distinction between tort and crime has been reduced in England by giving

power to the criminal courts to award compensation to the victims while pass-

ing judgment of conviction. By way of interpretation of section 357 of the Code

of Criminal Procedure 1973, the Supreme Court has observed that the Criminal

Court may order the accused to pay some amount by way of compensation to

victim who has suffered by action of the accused.

It may be noted that this power of criminal courts to award compensation is not

ancillary to other sentence, but it is in addition thereto. In Harikrishnan's case61

the Supreme Court has directed all criminal courts to exercise the power of

awarding compensation to victims of offences in such a liberal way, that the

victims or their legal heirs may not have to rush to the civil court for compensa-

tion.62

By authorizing the Criminal Courts to award compensation on consideration of

the nature of the crime, justness of claim of the victim, and ability of the ac-

cused to pay, the distinction between tort and crime has been reduced to a large

61

Hari Kishan & Anr vs Sukhbir Singh & Ors; AIR 1988 SC 2127 62

What Is Medical Negligence? When and How to File a Case pertaining to Medical Negli-

gence? available at vakilno1.com

31

extent, that the degree of negligence in Criminal liability is higher than that of

negligence in tortious liability. But when we discuss Negligence in the context

of criminal liability the expression Mens Rea becomes relevant. 63

63

Mens Rea: Intention, Recklessness, Negligence and Gross Negligence, last visited on 28th

March 2015, available at

https://bookshop.blackwell.co.uk/extracts/9780199228287_loveless.pdf

32

Mens Rea in Negligence

The expression Mens Rea is used to mean the mental state expressly or im-

pliedly mentioned in the definition of crime charged. An act done doesn’t make

a person guilty unless the mind is guilty. The Mens Rea in criminal negligence

was defined by Lord Diplock64 in the following way "without having given any

thought to the possibility of there being such risk or having recognised that

there was some risk involved, had nevertheless gone on to take it"

In order for the act to amount to criminal rashness or criminal negligence one

must find out whether that rashness has been of such a degree that injury must

most likely to be occasioned thereby. The criminality lies in running the risk or

doing such an act with recklessness and indifference to the consequences.65

64

R v. Lawrence (1981) ; 1 All ER 974, (1982) AC 510, (1981)2WLR 5249(HC) 65

Dr. Krishnaprasad vs State of Karnataka of 1989

33

Enforcement Mechanism under Indian Consumer Protection

Act

The agencies which have been constituted under the Act for redressal of con-

sumer grievances are to adjudicate disputes at the district, State and National

level. The District Consumer Disputes Redressal Forum in each district of the

State established by the State Government is also known

as District Forum. It is the first court in the hierarchy. Then, there is State Con-

sumer Disputes Redressal Commission known as the State Commission, also

established by the State Government. In both the cases, the approval of the

Central Government is required. Finally, there is the National Consumer Dis-

pute Redressal Commission established by the Central Government. Esttblish-

ment of all the aforesaid various agencies have to be done by notification. In-

terestingly, all the States in the country did not achieve the distinction of having

a Forum in each and every district, thus time and again public spirited bodies

agitated the issue and appropriate directions were issued to the government

concerned.

It is pertinent to mention that the consumer agencies as constituted under the

Act are to comprise of one judicial member and others having adequate

knowledge or experiences of, or having shown capacity in dealing with prob-

lems relating to economics, law, commerce, accountancy, industry, public af-

fairs or administration, one of whom shall be a woman. To deal with cases of

medical negligence, expert knowledge of science is also required. It is advisa-

ble that the agencies should also have at least one medical man to adjudicate

such disputes.66 In the alternative, Forums can also try cases of medical negli-

gence with a panel of medical expert as a jury on special days in a week or

month so fixed.

66

Section 10 of the Consumer Protection Act of 1986

34

Appeal and Revision

As earlier stated, subject to the pecuniary limits, the District Forum is the first

court in the hierarchy of agencies under the Act.67The State Commission has

jurisdiction to entertain appeals against the orders of any District Forum within

the state. Any person aggrieved by an order of the District Forum may prefer an

appeal to the State Commission within thirty days from date of the order.68

However, delay in filing an appeal may be condoned if sufficient cause is

shown. Similarly, the National Commission has jurisdiction to entertain appeals

against the orders made by a State Commission. 69The person aggrieved by an

order made by the State Commission may prefer an appeal to the National

Commission within a period of thirty days from the date of the order. Delay in

filing maybe condoned, provided sufficient cause is shown for not filing an

appeal within the time. Furthermore, any person aggrieved by an order made by

the National Commission in exercise of its powers to entertain complaints may

prefer an appeal against such order within thirty days to the Supreme Court. 70

Revisionary power is also allowed by this law.

Apart from appellate jurisdiction, the State Commission and the National

Commission have been vested with powers of revision.71 There is no limitation

period for filling a revision petition. These powers are analogous to those con-

ferred on civil court of competent jurisdiction under section 115 of the code of

Civil Procedure, 1908. In the Consumer Protection Act 1986, all the provisions

are enshrined which regulate the adjudication of consumer disputes in accord-

ance with established principles of law and statutory codes obviating any scope

for arbitrariness, bias or non-application of judicial mind.

There are checks over the judgments of trial agencies by the superior Commis-

sion, wherever the question of jurisdiction has to be decided, so even under an

67

Section 17 (a) (ii) of the Consumer Protection Act of 1986 68

Section 15 of the Consumer Protection Act of 1986 69

Section 21(a) (ii) of the Consumer Protection Act of 1986 70

Supra., Note 57 71

Section 17 (b) and Section 21 (b) of the Consumer Protection Act of 1986

35

Act which postulates summary trial, provisions have been incorporated to settle

the law through a systematic hierarchy of courts. Although, a final judgment

pronounced after hearing and evidence of the parties can be assailed by availing

the remedy of appeal, sometimes even the final order may be affected by ap-

parent jurisdictional questions, making way for a revision to be filed.

Where no sufficient cause was established for condo nation of delay, the appeal

was dismissed in Oriental Insurance Co. v. Bahadar Ram.72 A compliant

was dismissed in default because of absence of complainant and his counsel.

An application was filed for restoration. Pendency of such application does not

stop the time and appeal that must be filed within thirty days as in Viraj Over-

seas Pvt, Ltd v. MIs. Hindustan Motors Ltd.73 Where an appeal itself is dis-

missed in default; another appeal is not maintainable before the State Commis-

sion. In Ishwar Das v. Vinay Kumar Gupta,74 it has also been laid down that

an autonomous Board or Cooperation is not more privileged than a private par-

ty, for praying for condo nation of delay in filing an appeal.

In another case 75 it was stated that when an order was passed by the District

Forum in the absence of the appellant who received it by postal delay was ex-

plained in Dynavox Electronic v. B.J.S . Rampura Jain College.76 Limitation

starts from the date of knowledge of the order and was referred in Marikkar

Motors Ltd. v Mary Poulsoe.77 Ignorance of law is no excuse.78

There is no appeal against an interlocutory order. It can be treated and disposed

of as revision petition.79 An appeal can be filed beyond limitation period with a

plea for condo nation on the ground that review petition was pursued, and dis-

72

Oriental Insurance Co. v. Bahadar Ram; 1992 CPJ 526 73

Viraj Overseas Pvt, Ltd v. MIs. Hindustan Motors Ltd; II (1992) CPJ 360 NC 74

Ishwar Das v. Vinay Kumar Gupta;; 1992 (1) CPR 75

Housing Board vs Dr. S.L. Chaudhry ; 1991 (1) CPR 515 76

Dynavox Electronic v. B.J.S . Rampura Jain College; 1991(1)CPJ 440 77

Marikkar Motors Ltd. v Mary Poulsoe; 1991 (11) CPR 251 78

Wheel World v. Dr. Snit. Janak -Narendra; 1991 (11) CPR 632 37 79

Jaipur Stock Exchange v C P.Mehta ; 1991 (1) CPR 26

36

missed as the Act has no provision for any review.80 Delay occasioned while

the appeal papers are examined by various officers of the appellant cannot be

condoned.81 Even though such speedy system is provided in the statute practi-

cally the court could not implement it in proper way. The court has power to

issue stay order.

80

Union of India v. Nadhu Shah Kapoor ; II (1993) CPJ 1044 81

Delhi Development Authority v. J.N. Luthra ; 1993 II CPJ 934.

37

Chapter V

The Evolution of Medical Jurisprudence through laws and deci-

sions

The Apex in the recent years has based its decisions on a balanced note.

Wherein though the rights of the patients has been given the upper hand the

apex in its view has kept an eye to maintain the interest and safeguard the inter-

est of the practitioners; the following which can be better understood with the

landmark judicial precedents which have paved a way for the evolution of med-

ical negligence.

Landmark Judgements and Judicial Precedents

The main source of evolution of law is through judicial decisions. The follow-

ing are the discussions relating to judicial law making in India. Court rendered

some land mark decisions like in Indian Medical Association v. VP. Shanta82

wherein the medical profession was included within the meaning of deficien-

cy in services under Consumer Law. This decision contributed speedy, inex-

pensive, accessible and expeditious remedy to the complainant. Supreme Court

at the same time criticised the competency of consumer court to appreciate

medical evidence. This was a revolutionary outcome of the judicial decision. 83

In the case of Achutrao Harthaukhodwa and ors v. State of Maharashtra84

the court had adopted a uniform rule for typical case of negligence. Supreme

82

Chameli Singh v. State of U.P.; AIR 1996 SC 1051 83

A La d ark Tur i I dia s Medi al Neglige e La y Gayathri Vaidya atha 84

State of Punjab v. Mohinder Singh Chawla (1997); 1997 2 SCC 8371

38

Court took the same stand in several other decisions. The rule laid down was

that if there is any case of 'Res Ipsa Loquitur' court would decide the matter

in favour of complainant and declare the case as a typical case of negligence.

85

In Vineetha Ashok v. Lekshmi Hospital86 the court declared that if there is

any mistake in the process of diagnosis, it cannot be considered as a case for

medical negligence. Thus the court made a valuable contribution in uphold-

ing the professional freedom of doctors.

In Poonam Varma's87 decision, the court framed a new law to avoid the service

of quack- doctor. It was an endeavour from the part of the court to uphold the

dignity of medical profession. Here the court had taken a strict stand to improve

the standard and quality of profession.

In Spring Medow 's Hospital case,88 court declared that “the parents can act as

potential consumers on behalf of minor child. They can bring the compensa-

tion suit before court. This was the positive stand of court to provide maxi-

mum access to justice.”

85

State of Haryana vs. Smt. Santra (2000); 5 SCC 182, AIR 2000 SC 3335 86

Vineetha Ashok v. Lekshmi Hospital; KLT 606 87

Indian Medical Association vs V P Santha; AIR 1996 SC 550 88

Spring Meadows Hospital v. Harjol Ahluwalia; AIR 1998 SC 1801

39

Summarization of the Principles laid down for determining

Medical Negligence

The Supreme Court decided a number of cases in this area, and doing so they

largely referred to English cases. They adopted the principles of English law to

decide the case. The following are the outcome of this study in brief relating to

law of medical negligence that developed through judicial decisions

i. Negligence is the breach of a duty caused by omission to do something

which a reasonable man guided by those consideration which ordinari-

ly regulate the conduct of human affairs would do, or for something

which a prudent and reasonable man wouldn’t do. Negligence becomes

actionable on account of injury which resulted from the act or omission

amounting to negligence attributable to the being person sued. The es-

sential components of negligence are three, 'duty' `breach of duty' and

'damage'

ii. Negligence in the context of medical profession necessarily calls for a

treatment with a difference. To infer rashness or negligence on the part

of a professional, herein particular a doctor, additional consideration

applies. A case of occupational negligence is different from that of pro-

fessional negligence. An error of judgement or a simple lack of care al-

so an accident, is not proof of negligence on the part of a medical pro-

fessional. So long as he cannot be held liable for negligence merely be-

cause a better alternative course or method of treatment was also

available or simply because a more skilled doctor wouldn’t have chosen

to follow or resort to that practice or procedure which the accused fol-

lowed.

iii. When it comes to the failure of taking precautions it can be checked

whether those precautions were taken without the standard of an ordi-

40

nary medical practitioner, which has found to be sufficient in this situa-

tion. A failure to use special or extraordinary precautions which might

have prevented the particular happening cannot be the standard for

judging the alleged negligence. So, also the standard of care, while as-

sessing the practice as adopted is judged in the purview of knowledge

available at the time of the incident, and not at the date of trial. Similar-

ly, when the charge of negligence arises out of failure to use some par-

ticular equipment, the charge will fail if the equipment was not general-

ly available at that particular time (that is, the time of the incident) at

which it is suggested it should have been used.

iv. A professional may be held liable for negligence on one of the two find-

ings; either he was not possessed of the requisite skill which he pro-

fessed to have possessed, or, that he did not exercise, with reasonable

competence in the said case, the skill which he did possess. The stand-

ard to be applied for judging , whether the person charged has been

negligent or not, will be that of an ordinary competent person exercis-

ing ordinary skill in that profession. It is not possible for every profes-

sional to possess the highest level of expertise or skill in that branch

which he practices. A highly skilled professional may be possessed of

better qualities, but that cannot be made the basis or the Yardstick for

judging the performance of the professional proceeded against on in-

dictment of negligence.

v. The test for determining medical negligence as laid down in Bolam's

Case89

holds good in its applicability in India. The jurisprudential con-

89

Bolam test: A test that arose from English tort law, which is used to assess medical negli-

gence. Bolam holds that the law imposes a duty of care between a doctor and his patient, but

the standard of that care is a matter of medical judgement.

Under Bolam, the plaintiff seeking to prove medical negligence needs to (1) show that there

was a duty of care between the doctor or nurse and the patient, which is usually a straight-

forward exercise, and (2) that the act or omission of the doctor or nurse breached the duty of

care. In Bolam v Friern Hospital Management Committee (1957), the court held that there is

no breach of standard of care if a responsible body of similar professionals support the prac-

tice that caused the injury, even if the practice was not the standard of care. The ruling meant

41

cept of negligence differs in civil and criminal law. What may be negli-

gence in civil law may not necessarily be negligence in criminal law.

For negligence to amount to an offence, the element of Mens Rea must

be shown to exist. An act to be amounting to criminal negligence, the

degree of negligence should be much higher ie, gross or of a very high

degree. Negligence which is neither gross nor of a higher degree may

provide a ground for action in civil law but cannot form the basis of

prosecution.

vi. The word 'gross' has not been used in section 304 A of IPC, yet it is set-

tled that in criminal law, negligence or recklessness, to be so held, must

be of such a high degree as to be 'gross'. The expression rash or negli-

gent act 'as occurring in section 304A of the IPC has to be read as

'grossly'

vii. To prosecute a medical professional for negligence under criminal law

it must be shown that the accused did something or failed to do some-

thing which resulted in the cause of action.

viii. Res Ipsa Loquitur is only a rule of evidence and operates in the domain

of civil law especially in cases of torts and helps in determining the

onus of proof in actions relating to negligence. It can’t be pressed in

service for determining per se the liability for negligence within the

domain of criminal law. Res Ipsa Loquitur has, if at all, a limited appli-

cation in trial on a charge of criminal negligence. 90

ix. A doctor has to seek and secure the consent of the patient before com-

mencing a "treatment" (the "treatment includes surgery also). The con-

sent so obtained should be real and valid which means that the patient

should have the capacity and competence to consent and his consent

that the accused doctor needs only to find an expert who would testify to having done the

same thing. 90

State of Haryana vs. Smt. Santra (2000); 5 SCC 182, AIR 2000 SC 3335

42

should be voluntary, and his consent should be on the basis of adequate

information concerning the nature of the treatment procedure, so that

he knows what he is consenting to.

x. The "adequate information" to be furnished by the doctor (or a member

of his team) who is treating the patient, should enable the patient to

make a balanced judgment as to whether he should submit himself to

the particular treatment or not. This means that the doctor should dis-

close (a) nature and procedure of the treatment and its purpose, bene-

fits and effect (b) alternatives if any available (c) an outline of the sub-

stantial risks; and (d) adverse consequences of refusing treatment. Also

there is no required need to explain remote or theoretical risks involved

which may frighten or confuse a patient and result in refusal of consent

for a necessary treatment. Similarly, there isn’t need to explain the re-

mote or theoretical risks of refusal to take treatment which may per-

suade a patient to undergo a fanciful or unnecessary treatment. A bal-

ance should be achieved between the need for disclosing necessary and

adequate information and at the same time avoiding the possibility of

the patient being deterred from agreeing to a necessary treatment or of-

fering to undergo an unnecessary treatment.

xi. Consent given only for a diagnosis procedure cannot be considered as

consent for therapeutic treatment. Consent given for a specific treat-

ment procedure isn’t valid for conducting some other treatment proce-

dure. The sole fact that the unauthorized additional surgery is benefi-

cial to the patient., or that it will save considerable time and expense to

the patient., or would be able to relieve the patient from pain and suf-

fering in future, are not grounds of defence in an action in tort for neg-

ligence or assault and battery. The exception to this rule is where the

additional procedure through unauthorized, is necessary in order to

save the life or preserve the health of the patient and it would be termed

43

unreasonable to delay such unauthorized procedure until patient re-

gains consciousness and takes a decision. 91

xii. There can be a common consent for diagnostic and operative procedure

where they are contemplated. There can also be a common consent or a

particular surgical procedure and an additional or further procedure

that may become necessary during the course of surgery.

Thus, several landmark judgements have made a strong impact on the medical

jurisprudence in India; keeping in view the interest of the medical practitioners

and also the rights of the patients.

91

Liberalizing consent - Supreme Court's prefere e for real o se t o er i for ed on-

se t , last visited on 1st

April 2015, available at

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2747446/

44

Chapter VI:

Case Study: Anuradha Saha Case

(Dr. Balram Prasad vs Dr. Kunal Saha & Ors) of 2013

The Supreme Court in matter of 'Dr. Balram Prasad vs. Dr. Kunal Saha &

Ors.'92; connected cross appeals has recently awarded a historic verdict having

a major impact on medical negligence and standard of medical care in India.93

Excerpt

The Supreme Court vide its Judgment enhanced the compensation amount of

Rs 1.73 crore, which was awarded by the National Consumer Dispute

Redressal Commission (NCDRC) in 2011 to the tune of Rs 5.96 crore and

asked the Kolkata- based Advanced Medicare and Research Institute (AMRI)

and the doctors to pay the amount and also asked to pay interest at the rate of 6

per cent from the date of filing of the complaint in 1999 till the actual date of

payment to Kunal Saha who herein is a US-based Indian-Origin doctor; award-

ed for medical negligence, which led to the death of his wife in 1998.

The NCDRC earlier found no negligence by doctors or AMRI and had dis-

missed the case in 2006. The Supreme Court in 2009 had held AMRI and the

doctors guilty of negligence and the case was referred to the NCDRC for the

sole purpose of determining quantum of compensation.

92

Dr. Balram Prasad Vs. Dr. Kunal Saha & Ors; 2013 STPL(Web) 850 SC 93

Other Connected Cross Appeals: Civil Appeal No.2867 of 2012 with Civil Appeal No.692 of

2012 with Civil Appeal No.2866 of 2012 with Civil Appeal No.731 of 2012 Civil Appeal No.858

of 2012-Decided on 24-10-2013

45

The National Consumer Dispute Redressal Commission (NCDRC) earlier in

2011 had awarded Rs.1.73 crore to Mr. Saha. Cross appeals were also filed by

AMRI and three doctors against the Commission's award. The Apex Court in

its Judgment had therefore partly allowed the appeals of claimant.

Hon'ble Apex court held that the three doctors and the hospital were culpable to

civil liability for medical negligence which had led to the death of Anuradha.

Facts

Anuradha, a child psychologist and wife of claimant Dr. Kunal Saha, who had

come to her home town Kolkata in March 1998 on a summer vacation. De-

ceased complained of skin rashes on April 25 and consulted Dr Sukumar

Mukherjee, who, advised her only to take rest without prescribing any medi-

cine. However, skin rashes resurfaced again with greater passion in early May.

Dr Mukherjee prescribed Depomedrol injection 80 mg twice daily to be taken

on daily basis, however this prescription of Dr. Mukherjee was not approved by

experts at the apex court, at the apex court. Administration of injection led to

deterioration of Anuradha's condition, following which she had to be admitted

at AMRI on 11 May under Dr Mukherjee's supervision and subsequently she

was shifted to Mumbai's Breach Candy Hospital, and her diagnosis stated that

she was diagnosed to be suffering from lifethreatening disease called toxic epi-

dermal necrolysis (TEN). Anuradha succumbed to her ailment on May 28,

1998.94

Contention for Appeal

Dr. Saha had filed both criminal as well as civil case against the doctors and

hospitals on the basis of gross negligence on their part during the treatment,

which led the death of her wife.

94

Indian Medical Association vs V P Santha; AIR 1996 SC 550

46

Hon'ble Supreme Court in 2009 absolved the doctors and the hospitals of crim-

inal liability for medical negligence, however held them culpable of civil liabil-

ities.

The Apex Court held that the deceased was earning $ 30,000 per annum at the

time of her death. The appellant-doctors and the Hospital could not produce

any evidence to rebut the claims of the claimant regarding the qualification of

her wife. Further $30,000 per annum earned by the deceased during the time of

her death was not from a regular source of income and she would have earned

lot more had it been a regular source of income, having regard to her qualifica-

tion and the job for which she was entitled to. 95

Calculation of Compensatory Amount & Non-pecuniary dam-

ages

Therefore, while determining the income of the deceased, Apex Court relied on

the evidence on record for the purpose of determining the just, fair and reason-

able compensation and her earning was determined at $40,000 per annum on a

regular job. The multiplier method was applied for loss of income of deceased

and estimating the life expectancy of a healthy person in the present age as 70

years, the Apex Court was inclined to award compensation accordingly by mul-

tiplying the total loss of income by 30. Keeping in view the value of Indian

currency, the current value of Indian Rupee was taken at a stable rate of Rs.55/-

per 1$ and accordingly under the head of 'loss of income of the deceased' the

claimant was held entitled to an amount of Rs.5,72,00,550/- which is calculated

as ($40,000+(30/100x40,000$)-(1/3 x 52,000$) x 30 x Rs.55/- ) =

Rs.5,72,00,550/-.

95

Medical Negligence - Legal Aspect In India, Article by Rohit K. Gupta and Vijaya Singh of

June 16 2014

47

In respect to claim of medical treatment of deceased at Kolkata and Mumbai,

the compensation was enhanced to the tune of Rs. 7,00,000/-. The claimant was

also awarded an amount of Rs.1,50,000/- as compensation towards Travel and

Hotel expenses at Bombay.

Hon'ble Apex Court while calculating Non-pecuniary damages has considered

various facts and precedents e.g. Arun Kumar Agarwal Vs. National Insurance

Company96, wherein it has been held that in India the courts have recognized

that the contribution made by the wife to the house is invaluable and cannot be

computed in terms of money.

The gratuitous services rendered by the wife with true love and affection to the

children and her husband and managing the household affairs cannot be equat-

ed with the services rendered by others. A wife/mother does not work by the

clock. She is in the constant attendance of the family throughout the day and

night unless she is employed and is required to attend the employer's work for

particular hours. She takes care of all the requirements of the husband and chil-

dren including cooking of food, washing of clothes, etc. She teaches small chil-

dren and provides invaluable guidance to them for their future life. A house-

keeper or maidservant can do the household work, such as cooking food, wash-

ing clothes and utensils, keeping the house clean, etc., but she can never be a

substitute for a wife/mother who renders selfless service to her husband and

children. It was also observed that it is not possible to quantify any amount in

lieu of the services rendered by the wife/mother to the family i.e. the husband

and children. 97

However, for the purpose of award of compensation to the dependants, some

pecuniary estimate has to be made of the services of the housewife/mother. In

96

Section 2(m) in THE WEALTH-TAX ACT, 1957

m) net wealth means the amount by which the aggregate value computed in accordance

with the provisions of this Act of all the assets, wherever located, belonging to the assessee

on the valuation date, including assets required to be included in his net wealth as on that

date under this Act, is in excess of the aggregate value of all the debts owed by the assessee

37 (on the valuation date which have been incurred in relation to the said assets); 97

A La d ark Tur i I dia s Medi al Neglige e La last visited on 31st

March 2015, availa-

ble at

http://india.blogs.nytimes.com/2013/10/31/a-landmark-turn-in-indias-medical-negligence-

law/

48

that context, the term "services" is required to be given a broad meaning and

must be construed by taking into account the loss of personal care and attention

given by the deceased to her children as a mother and to her husband as a wife.

They are entitled to adequate compensation in lieu of the loss of gratuitous ser-

vices rendered by the deceased. The amount payable to the dependants cannot

be diminished on the ground that some close relation like a grandmother may

volunteer to render some of the services to the family which the deceased was

giving earlier.

Judgement

In a three judge Bench decision Apex Court in the case of Rajesh & Ors. Vs.

Rajvir Singh and Ors.,98 this Court held that "The concept of non-pecuniary

damage for loss of consortium is one of the major heads of award of compensa-

tion in other parts of the world more particularly in the United States of Ameri-

ca, Australia, etc. English Courts have also recognized the right of a spouse to

get compensation even during the period of temporary disablement. By loss of

consortium, the courts have made an attempt to compensate the loss of spouse's

affection, comfort, solace, companionship, society, assistance, protection, care

and sexual relations during the future years. Unlike the compensation awarded

in other countries and other jurisdictions, since the legal heirs are otherwise

adequately compensated for the pecuniary loss, it would not be proper to award

a major amount under this head. Keeping in view all these, the Apex Court

awarded Rupees One Lakh for loss of consortium."99

The claim of Rs.4,50,00,000/- by the claimant Under the heading of loss due to

pain and suffering was held excessive. A lump sum amount of Rs.10 lakhs was

98

Rajesh & Ors. Vs. Rajvir Singh and Ors; 2013 (6) SCALE 563 99

Medical negligence: Will the Anuradha Saha case set a precedent?, last visited on 15th

March 2015, available at

http://www.livemint.com/Politics/rYITtOKCr3IO0iexKbvc6K/Medical-negligence-Will-

Anuradha-Saha-case-set-precedent.html?utm_source=copy

49

awarded to the claimant following the Nizam Institute's case and also applying

the principles laid in Kemp and Kemp on the "Quantum of Damages", under

the head of 'pain and suffering of the claimant's wife during the course of

treatment'.

In summary, the details of compensation under different heads are hereunder:

Loss of income of the Deceased : Rs.5,72,00,550/- For Medical treatment in

Kolkata and Mumbai :Rs. 7,00,000/-Travel and Hotel expenses at Mumbai::

Rs. 1,50,000/-Loss of consortium : Rs. 1,00,000/- Pain and suffering : Rs.

10,00,000/-Cost of litigation: : Rs. 11,50,000/-

Citing an earlier apex court judgment holding the right to health a fundamental

right guaranteed under the Constitution's Article 21, the court said doctors and

hospitals are to be dealt with strictly if found "negligent with the patients who

come to them pawning all their money with the hope to live a better life with

dignity". "The patients irrespective of their social, cultural and economic back-

ground are entitled to be treated with dignity which not only forms their fun-

damental right but also their human right".

Conclusion

Noting an increasing number of medical negligence cases coming before the

consumer forums, the court said it hopes this verdict "acts as a deterrent and a

reminder to those doctors, hospitals, the nursing homes and other connected

establishments who do not take their responsibility seriously".100

100

A La d ark Tur i I dia s Medi al Neglige e La ; New York Times by Gayathri

Vaidyanathan, last visited on 31st

of March 2015, available at Ministry of External Affairs

http://www.mea.gov.in/mediabriefings.htm?dtl/22423/A+Landmark+Turn+in+Indias+Medical

+Negligence+Law

50

Chapter VII

Conclusion

Some plausible and effective measures to check malpractices so that propriety

and professional dignity is not put at stake; To start with, the Consumer Protec-

tion Act and also other related laws can be modified and reformed by integrat-

ing crucial provision in it.

i. There should be mandated a scrutiny of all cases before the same is put

into trial. The scrutiny should be done by medical experts and only such

cases which are prima facie act of negligence, should be subjected to

the summary jurisdiction of Consumer Forum. It should be also fore-

seen that while trying such disputes the Forum should comprise an addi-

tional member from the medical field so that the evidence is cited and

judged in a proper perspective.

ii. Fixing one or two days in a month wherein the Forum would hear only

cases of medical negligence. The cases should be heard before a panel

of medical experts who may act like a jury. And in turn pronounce

judgment on any issue of medico-legal importance.

iii. It must be made obligatory on the part of medical men to maintain rec-

ords of their indoor patients for a period of three years. And furnish the

same within 72 hours of being demanded. The misunderstandings and

misconceptions based on mistrust would be resolved if medical records

are provided to the patients or their descendants timely.

51

iv. The above modifications in the substantive and procedural part of the

statute would, inter alia, ensure two things:

Those false and malicious cases would not see the light of day.

& secondly genuine claims will not fail for want of proper testimony.

These two things put together would pave the way for more confidence and

trust between the doctors and patients on the one hand and between doctor pa-

tient and the administration of consumer justice on the other.

52

Bibliography

Books Referred

Medical Negligence and the Law in India: Duties, Responsibilities,

Rights by Tapas Kumar Koley

Anil Aggrawal's Internet Journal of Forensic Medicine and Toxicology

Medical Negligence 4th Edition by Professor Michael Jones

Medical Malpractice by Sloan, Frank A., Chepke, Lindsey M.

Medical Negligence by Michael A Jones

Medical Negligence & Compensation by Ram Shelkar

Medical Negligence in India by Shweta Thakur & Vikram Singh Jaswal

Medical Negligence and Compensation by Dr. Jagdish Singh & Vishwa

Bhushan

The Law Relating to Medical Profession & Medical Negligence by P.S.

Narayana

Law of Medical Negligence and Compensation With Supplement by

R.K.Bag

Medical Profession and the Consumer Protection by Dr. Niraj Kumar

Law Relating to Medical Negligence by Yetukuri Venkateswara Rao

Health Care & Rights of Patients of Voluntary Health Association of

India (VHAI)

Law & Practice of Disability Consequent to Medical Negligence (with

Human Disability Evaluation of Personal Injuries - Principles, Practice

and Law) by Dr. B.V.Subrahmanyam

Unhealed Wounds: Medical Malpractice in the Twentieth Century by

Neal C. Hogan

Medical Malpractice: A Comprehensive Analysis by Vasanthakumar N.

Bhat

The Practice of Uncertainty: Voices of Physicians and Patients in Medi-

cal Malpractice Claims by Stephen L. Fielding

53

Articles & Journals

Medical Negligence: Law and Interpretation by Anurag K. Agarwal of

2011

Medical negligence liability under the consumer protection act: A re-

view of judicial perspective by S. V. Joga Rao of 2009

Medical Malpractice by Loiacono, Kristin of 2013

What Is Medical Negligence? When and How to File a Case pertaining

to Medical Negligence? available at vakilno1.com

Medical Negligence - Legal Aspect In India by Rohit K. Gupta and Vi-

jaya Singh

Important cases on medical negligence in India by Amartya Bag

A Landmark Turn in India’s Medical Negligence Law by Gayathri

Vaidyanathan

Medical negligence: Will the Anuradha Saha case set a precedent? by

Vidya Krishnan