MEDICAL NEGIGIENCE UNDER CONSUMER PROTECTION

ACT, 1986
INTRODUCTION
Any negligence by an act or omission of a medical practitioner in
performing his/her duty is known as medical negligence. Medical
negligence happens when the medical practitioner fails to provide
the care which is expected in each case thus resulting in injury or
death of the patient.
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 ordinarily employed
in the same or similar field of medicine as defendant, and the use
of reasonable care and diligence In medical negligence cases it is
the duty of the patient or his/her relatives to establish that:
1.

there was a duty which the medical practitioner owed to the

patient;

2.

there was a breach of duty;

3.

the breach resulted in injury to the patient;

4.

the injury resulted in causing damages.

Medical negligence is a combination of two words. The second

word solely describes the meaning, though the meaning of
negligence has not been described in a proper way but it is an act
recklessly done by a person resulting in foreseeable damages to
the other. Negligence is an offense under tort, IPC, Indian
Contracts Act, Consumer Protection Act and many more. Medical
Negligence basically is the misconduct by a medical practitioner

or doctor by not providing enough care resulting in breach of their

duties and harming the patients which are their consumers. A
professional is deemed to be an expert in that field at least; a
patient getting treated under any doctor surely expects to get
healed and at least expects the doctor to be careful while
performing his duties. Medical negligence has caused many
deaths as well as adverse results to the patients health. My Thesis
focuses on explaining medical negligence under Consumer
Protection Act 1986 and landmark as well as recent cases in India.
This provides information on liability that can be incurred by the
victim of the Medical Negligence. It aims at providing information
about the topic to create as much awareness as possible.
Consumerism is now firmly established in the medical practice
and the notion that blame may be attributed and compensated
has a high priority
Negligence can be generally defined as Conduct that is culpable
because it falls short of what a reasonable person would do to
protect another individual from foreseeable risks of harm.
Tort law is the name given to a body of law that addresses, and
provides remedies for, civil wrongs not arising out of contractual
obligations. Tort liability performs two primary functions. First,
by providing compensation it acts as a source of insurance.
Second, by imposing sanctions on persons found negligent, it
deters future negligent behavior. Torts fall into three general
categories: intentional torts, negligent torts and strict liability
torts. Intentional torts are those wrongs which the injurer knew
or should have known would occur through his actions or
inactions. Negligent torts occur when the injurer's actions were
unreasonably unsafe. Strict liability wrongs do not depend on the
degree of carefulness adopted by the injurer, but are established

when a particular action causes damage. According to the Indian

law, cases of medical negligence fall under negligent torts.
Medical negligence is a complicated subject, since medical
treatments are inherently risky. A medical treatment always
involves a basic risk that something might go wrong. In addition,
human body of patients can react differently to the same
treatment. There are occasions when patients are harmed as a
consequence of their treatment or absence or even delay of it.

DEFINITIONS AND LEGAL PROVISIONS

RELATING TO MEDICAL NEGLIGENCE UNDER
CONSUMER PROTECTION ACT 1986
Consumer
A consumer is any person who hires or avails of any services for a
consideration, and includes any beneficiary of such service other
than the person who hires or avails of the service, when such
services are availed of with the approval of the first mentioned
person. Further it is defined under section 2(vi) of the Consumer
Protection Act, 1986.
Service
Service means service of any description which is made available
to the potential users, but does not include rendering of any
service free of charge or under a contract of personal service.
Deficiency
Deficiency means any fault, imperfection, shortcoming or
inadequacy in the quality, nature and manner of performance,
which is required to be maintained by or under any law for the

time being in force or has been undertaken to be performed by a

person in pursuance of a contract or otherwise in relation to any
service. It is defined under section 2(g) of the Consumer
Protection Act, 1986.
Negligence
There are distinct definitions for negligence. It is the omission to
do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human
affairs, would do or doing something which a prudent and
reasonable man would not do. It must be determined in all cases
by reference to the situation and knowledge of the parties and all
the attendant circumstances. Conduct which is below the
standard behavior established generally for protection of others
against unreasonable risk of harm is negligence. As per Winfield,
Negligence as a tort is the breach of a legal duty to the care which
results in damage, undesired by the defendant, to the plaintiff.
Negligence doesnt arise just because of a wrongful conduct by a
person; it is essential that that misconduct has caused a
foreseeable harm to the other. If theres no harm, theres no
negligence. In King v. Phillips, it was observed that the question
of negligence arises only when there is a direct harm to the
plaintiff by the misconduct and the harm should be foreseeable.
Damage is an important ingredient to bring negligence under tort.
In the case of Hunter v. Hanley1, Lord President Clyde gave a
concise and succinct definition of medical negligence, he said:
The true test for establishing negligence in diagnosis or
treatment on the part of the doctor is whether he has been
proved to be guilty of such failure as no doctor of ordinary skill
would have been guilty of, if acting with reasonable care.

Medical Negligence
Medical Negligence may be defined as want of reasonable degree
of care or skill or willful negligence on the part of the medical
practitioner in the treatment of a patient with whom a
relationship of professional attendant is established, so as to lead
to bodily injury or to loss of life.
Standard of care
The standard of care is defined as what a reasonably
prudent medical provider would or would not have done under
the same or similar circumstances.
Complaint
A complaint is an allegation in writing made by a Complainant,
i.e., a consumer that he or she has suffered loss or damage as a
result of any deficiency of service.
Procedure For Filing Complaint:
A complaint can be filed in
1) The District Forum if the value of services and compensation
claimed is less than 20 lakh rupees,
2) Before the State Commission, if the value of the goods or
services and the compensation claimed does not exceed more
than 1 crore rupees, or
3) In the National Commission, if the value of the goods or
services and the compensation exceeds more than 1 crore rupees.
Cost involved in filing a complaint:
There is a minimal fee for filing a complaint before the district
consumer redressal forums.

Provision for appeal:

An appeal against the decision of the District Forum can be filed
before the State Commission. An appeal will then go from the
State Commission to the National Commission and from the
National Commission to the Supreme Court. The time limit
within which the appeal should be filed is 30 days from the date of
the decision in all cases.

Powers of the consumer redressal forums:

The forums have a variety of powers. They are:
1)

The summoning and enforcing of the attendance of any

defendant or witness and examining the witness under
oath,

2)

the discovery and production of any document or other

material object producible as evidence,

3)

The reception of evidence on affidavits,

4)

The summoning of any expert evidence or testimony,

5)

The requisitioning of the report of the concerned analysis

or test from the appropriate laboratory or from any other
relevant source,

6)

Issuing of any commission for the examination of any

witness, and

7)

Any other matter which may be prescribed.

Adjudication Of Liability
The process before the competent forum will be set in motion in
the following manner. When the Complainant files a written
complaint, the forum, after admitting the complaint, sends a
written notice to the opposite party asking for a written version to
be submitted within 30 days. Thereafter, subsequent to proper
scrutiny, the forum would ask for either filing of an affidavit or

production of evidence in the form of interrogatories, expert

evidence, medical literature, and judicial decisions.

LIABILITY OF MEDICAL PROFESSIONALS AND

HOSPITALS FOR NEGLIGENCE

The liability of the person committing the wrong can be of three

types depending on the harm or the injury suffered by the injured
person they are
Civil Liability- Civil liability usually includes the claim for
damages suffered in the form of compensation. If there is any
breach of duty of care while operating or while the patient is
under the supervision of the hospital or the medical professional
they are held to be vicariously liable for such wrong committed
and further are liable to pay damages in the form of
compensation. At times the senior doctors are even held
vicariously liable for the wrongs committed by the junior doctors.
If someone is an employee of a hospital, the hospital is
responsible if that employee hurts a patient by acting
incompetently. In other words, if the employee is negligent (is not
reasonably cautious when treating or dealing with a patient), the
hospital is on the hook for any resulting injuries to the patient. In
Mr. M Ramesh Reddy v. State of Andhra Pradesh 1, the hospital
authorities were held to be negligent, inter alia, for not keeping
the bathroom clean, which resulted in the fall of an obstetrics
patient in the bathroom leading to her death. A compensation of
Rs. 1 Lac was awarded against the hospital.
Criminal Liability- There may be an occasion when the patient
has died after the treatment and criminal case is filed under
Section 304A of the Indian Penal Code for allegedly causing death
by rash or negligent act. According to S. 304A of the IPC, whoever
causes the death of any person by a rash or negligent act not
amounting to culpable homicide shall be punished by
imprisonment for up to two years, or by fine, or both. Hospitals
can be charged with negligence for transmission of infection
1

(2003) 1 APSCDRC 81

including HIV, HBsAg, etc. if any patient develops such infection

during the course of treatment in the hospital and it is proved that
the same has occurred on account of lapse on part of the hospital

JUDICIAL PRONOUNCEMENTS ON MEDICAL

NEGLIGENCE
The Indian judiciary has been pro-active when it comes to such a
sensitive topic of medical malpractice and negligence. Over the years
the judiciary has provided for different laws and procedures to deal
with such cases and made an effort to protect the patients alongside
safeguarding the doctors against vicious claims. Beginning with the
efforts of the judiciary to include medical services within the ambit of
consumer protection act to providing directions regarding doctors
liability and quantum of compensation, the judiciary has tried to fill for
all the shortcomings of the legislations.
1.BOLAM

Vs.

FRIERN

HOSPITAL

MANAGEMENT

COMMITTEE.
Bolam v Friern Hospital Management Committee 2, is an English tort
law case that lays down the typical rule for assessing the appropriate
standard of reasonable care in negligence cases involving skilled
professionals (e.g. doctors): the Bolam test. Where the defendant has
represented him or herself as having more than average skills and
abilities, this test expects standards which must be in accordance with a
responsible body of opinion, even if others differ in opinion. In other
words, the Bolam test states that "If a doctor reaches the standard of a
responsible body of medical opinion, he is not negligent".
Mr Bolam was a voluntary patient at Friern Hospital, a mental health
institution run by the Friern Hospital Management Committee. He
2

(1957) 1 WLR 582

agreed to undergo electro-convulsive therapy. He was not given any

muscle relaxant, and his body was not restrained during the procedure.
He flailed about violently before the procedure was stopped, and he
suffered some serious injuries, including fractures of the acetabula. He
sued the Committee for compensation. He argued they were negligent
for (1) not issuing relaxants (2) not restraining him (3) not warning him
about the risks involved.
McNair J at the first instance noted that expert witnesses had
confirmed, much medical opinion was opposed to the use of relaxant
drugs, and that manual restraints could sometimes increase the risk of
fracture. Moreover, it was the common practice of the profession to not
warn patients of the risk of treatment (when it is small) unless they are
asked. He held that what was common practice in a particular
profession was highly relevant to the standard of care required. A
person falls below the appropriate standard, and is negligent, if he fails
to do what a reasonable person would in the circumstances. But when a
person professes to have professional skills, as doctors do, the standard
of care must be higher. "It is just a question of expression," said McNair
J. "I myself would prefer to put it this way, that he 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
art. I do not think there is much difference in sense. It is just a different
way of expressing the same thought. Putting it the other way round, a
man is not negligent, if he is acting in accordance with such a practice,
merely because there is a body of opinion who would take a contrary
view. At the same time, that does not mean that a medical man can
obstinately and pig-headedly carry on with some old technique if it has
been proved to be contrary to what is really substantially the whole of
informed medical opinion. Otherwise you might get men today saying:
"I do not believe in anesthetics. I do not believe in antiseptics. I am
going to continue to do my surgery in the way it was done in the

eighteenth century." That clearly would be wrong. In this case, the

jury delivered a verdict in favor of the defendant hospital. Given the
general medical opinions about what was acceptable electro-shock
practice, they had not been negligent in the way they carried out the
treatment. That passage is quoted very frequently, and has served as the
basic rule for professional negligence over the last fifty years.

2. Indian Medical Association Vs. V.P. Shantha and Ors 3.

Honble Supreme Court of India vide judgment dated 13/11/1995 laid
down the scope ofthe Consumer Protection Act, 1986 vis a vis the
medical services:
(1) Service rendered to a patient by a medical practitioner (except
where the doctor renders service free of charge to every patient or
under a contract of personal service), by way of consultation, diagnosis
and treatment, both medicinal and surgical, would fall within the ambit
of 'service' as defined in Section 2(1) (o) of the Act.
(2) The fact that medical practitioners belong to the medical profession
and are subject to the disciplinary control of the Medical Council of
India and/or State Medical Councils constituted under the provisions of
the Indian Medical Council Act would not exclude the services rendered
by them from the ambit of the Act.
(3) A 'contract of personal service' has to be distinguished from a
'contract for personal services'. In the absence of a relationship of
master and servant between the patient and medical practitioner, the
service rendered by a medical practitioner to the patient cannot be
regarded as service rendered under a 'contract of personal service'.
Such service is service rendered under a `contract for personal services'
and is not covered by exclusionary clause of the definition of 'service'
3

(1995) 6 SCC 651

contained in Section 2(1) (o) of the Act. (it means that the doctor never
becomes an employee of a patient)
(4) The expression 'contract of personal service' in Section 2(1) (o) of
the Act cannot be confined to contracts for employment of domestic
servants only and the said expression would include the employment of
a medical officer for the purpose of rendering medical service to the
employer. The service rendered by a medical officer to his employer
under the contract of employment would be outside the purview of
service as defined in Section 2(1) (o) of the Act.
(5) Service rendered free of charge by a medical practitioner attached to
a hospital/Nursing home or a medical officer employed in a
hospital/Nursing home where such services are rendered free of charge
to everybody, would not be "service" as defined in Section 2(1) (o) of the
Act. The payment of a token amount for registration purpose only at the
hospital/nursing home would not alter the Position.
(6) Service rendered at a non-Government hospital/Nursing home
where no charge whatsoever is made from any person availing the
service and all patients (rich and poor) are given free service - is outside
the purview of the expression 'service' as defined in Section 2(1) (o) of
the Act. The payment of a token amount for registration purpose only at
the hospital/Nursing home would not alter the Position.
(7) Service rendered at a non-Government hospital/Nursing home
where charges are required to be paid by the persons availing such
services falls within the purview of the expression 'service' as defined in
Section 2(1) (o) of the Act.
(8) Service rendered at a non-Government hospital/Nursing home
where charges are required to be paid by persons who are in a position
to pay and persons who cannot afford to pay are rendered service free
of charge would fall within the ambit of the expression 'service' as

defined in Section 2(1) (o) of the Act irrespective of the fact that the
service is rendered free of charge to persons who are not in a position to
pay for such services. Free service, would also be "service" and the
recipient a "consumer" under the Act.
(9)

Service

rendered

at

Government

hospital/health

centre/dispensary where no charge whatsoever is made from any

person availing the services and all patients (rich and poor) are given
free service - is outside the purview of the expression 'service' as
defined in Section 2(1) (o) of the Act. The payment of a token amount
for registration purpose only at the hospital/nursing home would not
alter the position.
(10)

Service

rendered

at

Government

hospital/health

centre/dispensary where services are rendered on payment of charges

and also rendered free of charge to other persons availing such services
would fall within the ambit of the expression service as defined in
Section 2(1) (o) of the Act irrespective of the fact that the service is
rendered free of charge to persons who do not pay for such service. Free
service would also be "service" and the recipient a "consumer" under
the Act.
(11) Service rendered by a medical practitioner or hospital/nursing
home cannot be regarded as service rendered free of charge, if the
person availing the service has taken an insurance policy for medical
care where under the charges for consultation, diagnosis and medical
treatment are borne by the insurance company and such service would
fall within the ambit of 'service' as defined in Section 2(1) (o) of the Act.
(12) Similarly, where, as a part of the conditions of service, the
employer bears the expenses of medical treatment of an employee and
his family members dependent on him, the service rendered to such an
employee and his family members by a medical practitioner or a

hospital/nursing home would not be free of charge and would

constitute 'service' under Section 2(1) (o) of the Act.
3. Jacob Mathew Vs. State of Punjab and Anr.4
On August 5, 2005, a Supreme Court bench of Chief Justice R C Lahoti,
Justice G P Mathur and Justice P K Balasubramanyan while
pronouncing its judgement in the case of Jacob Mathew Vs. State of
Punjab came to the rescue of doctors accused of medical negligence and
criminal action. This judgment has been followed in many subsequent
cases of similar nature.
In the judgement, the apex court observed: A medical practitioner
faced with an emergency ordinarily tries his best to redeem the patient
out of his suffering. He does not gain anything by acting with
negligence or by omitting to do an act A surgeon with shaky hands
under fear of legal action cannot perform a successful operation and a
quivering physician cannot administer an end-dose to his patients
Blame is a powerful weapon. Its inappropriate use distorts tolerant and
constructive relations between people.
The courts observations can be summed up as following:
(1)

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

something which a reasonable man guided by those
considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a prudent
and reasonable man would not do. The definition of
negligence as given in Law of Torts, the essential components

(2)

of negligence are three: duty, breach and resulting damage.

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, in particular a doctor,

(2005) 6 SCC 1

additional considerations apply. A case of occupational

negligence is different from one of professional negligence. A
simple lack of care, an error of judgment or an accident is not
proof of negligence on the part of a medical professional. So
long as a doctor follows a practice acceptable to the medical
profession of that day, he cannot be held liable for negligence
merely because a better alternative course or method of
treatment was also available or simply because a more skilled
doctor would not have chosen to follow or resort to that
practice or procedure which the accused followed. When it
comes to the failure of taking precautions what has to be seen
is whether those precautions were taken which the ordinary
experience of men has found to be sufficient; 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 assessing the practice as adopted, is judged in the light
of knowledge available at the time of the incident, and not at
the date of trial. Similarly, when the charge of negligence
arises out of failure to use some particular equipment, the
charge would fail if the equipment was not generally available
at that particular time (that is, the time of the incident) at
(3)

which it is suggested it should have been used.

A professional may be held liable for negligence on one of the
two findings: either he was not possessed of the requisite skill
which he professed to have possessed, or, he did not exercise,
with reasonable competence in the given case, the skill which
he did possess. The standard to be applied for judging,
whether the person charged has been negligent or not, would
be that of an ordinary competent person exercising ordinary
skill in that profession. It is not possible for every professional
to possess the highest level of expertise or skills 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
(4)

professional proceeded against on indictment of negligence.

The test for determining medical negligence as laid down in

(5)

Bolams5 case holds good in its applicability in India.

A private complaint may not be entertained unless the
complainant has produced prima facie evidence before the
Court in the form of a credible opinion given by another
competent doctor to support the charge of rashness or
negligence on the part of the accused doctor. The investigating
officer should, before proceeding against the doctor accused of
rash or negligent act or omission, obtain an independent and
competent medical opinion preferably from a doctor in
government service qualified in that branch of medical
practice who can normally be expected to give an impartial
and unbiased opinion applying Bolams test to the facts
collected in the investigation. A doctor accused of rashness or
negligence, may not be arrested in a routine manner (simply
because a charge has been levelled against him). Unless his
arrest is necessary for furthering the investigation or for
collecting evidence or unless the investigation officer feels
satisfied that the doctor proceeded against would not make
himself available to face the prosecution unless arrested, the
arrest may be withheld.

4. Martin F. D'Souza v. Mohd. Ishfaq6

Precautions which doctor/hospitals/nursing homes should take:
a. Current practices regarding infrastructure, suitable paramedical and

[1957] 1 WLR 582

(2009) 3 SCC 1

other staff and hygiene should be observed strictly.

b. No prescription should ordinarily be given without actual
examination. The tendency to give prescription over the telephone,
except in an acute emergency, should be avoided.
c. A doctor should not merely go by the version of the patient regarding
his symptoms, but should also make his own analysis by performing
tests and investigations where necessary.
d. A doctor should not experiment unless necessary and even then he
should ordinarily get a written consent from the patient.
e. An expert should be consulted in case of any doubt.
f. Full record of the diagnosis, treatment, etc. should be maintained.
Every doctor whether at a Government hospital or otherwise has the
professional obligation to extend his services for protecting life. The
obligation being total, absolute and paramount, laws of procedure
whether in statutes or otherwise cannot be sustained and, therefore,
must give way. It is the duty of the doctor in an emergency to begin
treatment of the patient and he should not await the arrival of the
police or to complete the legal formalities. The life of a person is far
more important than legal formalities. This view is in accordance with
the Hippocratic Oath of doctors.

5. V. Kishan Rao v. Nikhil Super Speciality Hospital and

Anr.7
It is basic law that only the complainant should prove his case. Here is
an exception where respondent is expected to prove he had not done
anything wrong.
7

(2009) 9 SCC 221

The appellant, who happens to be the original complainant, is an officer

in the malaria department and he got his wife admitted in the
respondent hospital on 20.07.2002 as his wife was suffering from fever
which was intermittent in nature and was complaining of chill. The
appellant alleged that his wife was subjected to certain tests by the
respondent but the test did not show that she was suffering from
malaria. It was also alleged that his wife was not responding to the
medicine given by the respondent. Then on 23rd July 2002
complainants wife was complaining of respiratory trouble and the
complainant also brought it to the notice of the authorities of the
respondent who gave artificial oxygen to the patient. The appellant
alleged that it is a case of wrong treatment in as much as the patient
was not treated for malaria when the complaint is of intermittent fever
and chill. Instead the respondent treated the patient for typhoid and as
a result of which the condition of the patient deteriorated. When the
condition became very very critical the patient was removed to Yashoda
Hospital but patient could not be revived.
In the instant case, respondent has admitted in his evidence that the
patient was not treated for malaria. Of course evidence shows that of
the several injections given to the patient, only one was of Lariago.
Apart from Lariago, several other injections were also administered to
the patient. Lariago may be one injection for treating malaria but the
finding of Yashoda Hospital shows that smear for malarial parasite was
positive. There is thus a definite indication of malaria, but so far as
Widal test was conducted for typhoid it was found negative. Even in
such a situation the patient was treated for typhoid and not for malaria
by the respondent and when the condition of the patient worsened
critically, she was sent to Yashoda Hospital in a condition with no
pulse, no BP and in an unconscious state with pupils dilated. As a result
of which the patient had to be put on a ventilator. In such a case where
negligence is evident, the principle of res ipsa loquitur operates and the

complainant does not have to prove anything as the thing (res) proves
itself. In such a case it is for the respondent to prove that he has taken
care and done his duty to repel the charge of negligence.

CONCLUSION
This thesis has analyzed the issue of Medical Negligence from a Law
and Social perspective. From the perspective of law, the Medical
Negligence law in India has evolved overtime from being governed by
the law of torts to being a part of the Consumer Protection Act since
1995158. The legal framework and the objective it is designed to serve
are complicated not only by differences between the idealized
theoretical arguments and reality but also by the peculiarities possessed
by the medical market. The economic rationale of the law dictates an
optimal level of compensation exactly equal to the loss suffered by the
patient, neither more nor less. Further, given the inherent riskiness of

medical treatments, a negligence rule of liability scores over strict

liability since it avoids over deterrence of doctors, by not holding the
doctor liable for every injury in theory. But, the real world is
characterized by the lack of perfect information on the part of courts
and individuals regarding the optimal level of care. This creates more
problems than the legal framework attempts to address. In the absence
of correct signals to the agents involved, the system becomes riddled
with the problems of defensive medicine and rising health care costs.
A professional is liable both under law of contract and tort. In general a
professional man owes to his client a duty in tort as well as in contract
to exercise reasonable care in giving advice or performing services.
Liability in contract depends on the express or implied terms agreed
upon by the patient and the medical man. While tortious duties of
professional man are limited to taking reasonable care, the contractual
duties are generally more onerous in nature. Indian Supreme Court in
Rajkot Municipal Case held that if the claim depends upon proof of
contract, action does not lie in tort. If the claim arises from relationship
between the parties independent of the contract, an action would lie in
tort at the election of the plaintiff, although he might alternatively have
pleaded in contract Where the breach of duty alleged arises of a liability
independently of the personal obligation undertaken by contract, it is
tort even though it may happen to be a contract between the parties, if
the duty in fact arises independently of that contract A contract is
founded upon mutual consent and agreement. A tort is inflicted against
or without consent. A contract requires privity of parties. In tort no
privity between parties is needed. A tort is violation of right in rent, a
right vested in some determinate person, either personally or as a
member of the community, and available against the world at large,
whereas a breach of a contract is an infringement to a right in
personam, i.e. of a right available only against some determinate person
or body. In a breach of contract, the motive for breach is immaterial

while in a tort it is often taken into consideration. In a breach of

contract, damages are only compensation. Where the injury is caused to
a person, character or feelings and the facts disclosed improper motive
or conduct which aggravates the plaintiffs injury, he may be awarded
exemplary damages to punish the defendant and to deter him in future
in certain cases in tort but rarely in a contract. The same act may
amount to a tort and a breach of contract as well.
Another thing that deserves to be mentioned is that, the incidence of
medical negligence is quite distinct from the filing of claims. A defining
feature of the medical liability system is that most events of medical
negligence do not result in a legal claim, and most claims of Medical
Negligence are not tied to any act of negligence. Possible reasons for
this could be that the injury was too minor to warrant a lawsuit, or that
lawyers are only willing to take on claims for attractive clients.
Alternatively, some people are simply not litigious in nature, or do not
wish to damage a long-standing relationship with their doctor,
especially. Yet another explanation is that patients simply do not
recognize that they have suffered an injury due to negligence.
The economic rationale for the law is also rendered inefficient by the
presence of medical insurance. Though medical insurance serves the
purpose of spreading risks, it also negates the deterrence effect of tort
law on doctors. But, looking at the current situation where most of the
doctors and young patient have not availed for insurance services, there
is a definite need to establish a stronger market of insurance in the
medical field.
On the scrutiny of leading medical negligence cases of India, certain
principles should be taken into consideration while pronouncing the
judgment in medical negligence cases.
1.

Negligence should be guided upon the principle of reasonableness

of common man prudence and negligence must be established in

order to give the compensation in certain cases.

2.

Medical profession requires certain degree of skill and knowledge,

so the standard of care in cases of medical professional is
generally high and should also be taken into account while giving
the judgment.

3.

A medical professional can be only held liable, when the standard

of care is reasonably is less than the reasonable care that should
be taken from a competent practitioner in that field.

4.

When a choice has to be made between certain circumstance when

there is higher risk involved and greater success is involved and
lesser risk with higher chances of failure, the facts and
circumstances of the individual case should be taken into the
consideration.

5.

No negligence will apply on medical professional, when he

performs his duty with the utmost care that should be taken, and
he had taken all the precaution.

6.

Medical professional should not be harassed unreasonably and

unwanted apprehension and fear should not be created on the
medical fraternity that they can give their best in certain cases
where it is required, they should be given some liberty in certain
peculiar situation where they need to make their judgment
without any apprehension freely. So that it can be beneficial for
the society.