i

Jurisprudence II Project
ON

Study of Medical Negligence with Case Laws

SUBMITTED TO:

Ms. Anukriti Mishra

Faculty, Jurisprudence II

SUBMITTED BY:

Abhinav Surollia

Roll no. 07

SECTION C

SEMESTER VI, B.A. LLB (HONS.)

SUBMITTED ON:

April 4, 2016

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Uparwara Post, Abhanpur, New Raipur – 492002 (C.G.)

 ii

Declaration
I, Abhinav Surollia, of Semester V, Section C, declare that this project submitted to H.N.L.U.,
Raipur is an original work done by me under the able guidance of Ms. Anukriti Mishra, Faculty
of Jurisprudence II. The work is a bona fide creation done by me. Due references in terms of
footnotes have been given wherever necessary.

Abhinav Surollia

Roll No. 07

Section C, Semester V
 iii

Acknowledgements
I feel highly elated to work on the project “Study of Medical Negligence with Case Laws”. The
practical realisation of the project has obligated the assistance of many persons. Firstly I express
my deepest gratitude towards Ms. Anukriti Mishra, Faculty of Jurisprudence II, to provide me
with the opportunity to work on this project. Her able guidance and supervision were of extreme
help in understanding and carrying out the nuances of this project.

I would also like to thank The University and the Vice Chancellor for providing extensive
database resources in the library and for the internet facilities provided by the University.

Some printing errors might have crept in which are deeply regretted. I would be grateful to
receive comments and suggestions to further improve this project.

Abhinav Surollia

Roll No. 07

Section C, Semester V
 iv

Contents

1. Declaration ii
2. Acknowledgements iii
3. Cases referred v
4. Introduction 1
5. Research Methodology 3
5.1 Objectives 3
5.2 Methodology 3
5.3 Questions 3
5.4 Hypothesis 3
5.5 Mode of Citation 3
5.6 Chapterisation 4
5.7 Scope of the Study 4
6. Medical Negligence 5
7. Tests for Determining Medical Negligence 11
8. Liability 18
9. Problems & Suggestion 22
10.Conclusion 24
11.Bibliography 25
 v

Cases referred:
1. Achutrao Haribhau Khodwa v. State of Maharashtra, AIR 1996 SC 2377.
2. Bolam v. Friern Hospital Management Committee, [1957] 1 WLR.

3. Bolitho v. City and Hackney Health Authority, (1997) 4 All ER 771 (HL).
4. Bryant v. Oakpointe Villa Nursing Center, NW2d 864 (2004)
5. Btyth v. Birmingham Water Works Company (1856) 11 Ex 781.
6. Budd v. Nixen, (1971) 6 Cal.3d 195.
7. Donoghue v. Stevenson, [1932] AC 562.
8. Dr. Suresh Gupta vs. Government of N.C.T. of Delhi, AIR 2004 SC 4091.
9. Hedley Byrne v. Heller, (1964) AC 465.
10. Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.
11. Laxman v. Trimbak AIR 1969 SC 128.
12. Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221.

13. Martin F. D'Souza vs. Mohd. Ishfaq, AIR 2009 SC 2049.

14. Poonam Verma v. Aswin patel, AlR 1996 SC 2111.
15. Smt. Madhubala vs. Government of NCT of Delhi, 2005 (118) DLT 515.
16. Stephenson v. Southern Pac. Co., (1894) 102 Cal. 143, 147.
17. V. Kishan Rao vs. Nikhil Super Speciality Hospital, 2010 (5) SCR 1.
 1

Introduction
Since no man is perfect in this world, it is evident that a person who is skilled and has knowledge
over a particular subject can also commit mistakes during his practice. Such mistakes in the
medical profession may lead to minor injuries or some serious kinds of injuries and sometimes
these kinds of mistakes may even cause death. In such situations there arises a need for a remedy
to the injured people so that justice is upheld and this gave rise to the concept of medical
negligence.

Medical Law is undergoing a massive change. Significantly our attitude towards our health,
health services, and the medical professions is changing. There was time when doctors were
given a ‘Godlike’ status and were held in the highest esteem; and patients were intended to be,
well patient; passive and submissive. But this has changed and Doctors are no longer regarded as
infallible and beyond questioning. Doctors especially general practitioners, regard their job as
working with patients to find out what is the best treatment for them. The doctor-patient
relationship, has, according to some, become closer to that of consumer and supplier.

Professional negligence, more specifically, medical negligence is, as the term suggests, relates to
the medical profession and is the result of some irregular conduct on the part of any member of
the profession or related service in discharge of professional duties. But first of all it is essential
for us to analyze what the terms remedy, legal right, legal duty and most importantly negligence
mean. Negligence is the breach of a legal duty to care. Thus legal duty of a person means the
duty the law gives to every person to respect the legal rights of the other. Therefore the legal
right of a person can be defined as the provisions provided by law to protect the interests of its
citizen. We must remember then that where there is a legal right, there is a legal remedy for it.
This is inferred from the maxim “ubi jus ibi remedium.”

Medical negligence can be seen in various fields like when reasonable care is not taken during
operations, during the diagnosis, during delivery of the child, with issues dealing with anesthesia
etc. Since this field is very vast we will limit ourselves in understanding the basic concepts
which are essential for the negligence to be committed. We shall also look into the remedies that
 2

the law provides to these patients and on whom the burden of proof lies and when this burden of
proof shifts to the other party.

Doctors may commit a mistake. Doctors may be negligent. The support staff may be careless.
Two acts of negligence may give rise to a much bigger problem. It may be due to gross
negligence. Anything is possible. In such a scenario, it is critical to determine who was
negligent, and under what circumstances. In a country committed to the rule of law, such matters
are taken to the court and judges are supposed to decide. However, negligence by doctors is
difficult to be determined by judges as they are not trained in medical science. Their decisions
are based on experts‟ opinion. Judges apply the basic principles of law in conjunction with the
law of the land to make a decision. Reasonableness and prudence are the guiding factors.

We would like to go through these principles in the light of some court judgments and try to
understand as to what is expected from a doctor as a reasonable person. As these issues are at the
core of medical profession and hospitals are directly affected by new interpretation of an existing
law regarding medical professionals, it is pertinent to deal with them at the individual level of the
doctor, and also at the employer’s level i.e., hospital.
 3

Research Methodology
Objectives:
The objectives of this project are:
1. To study the concept of Medical Negligence with special reference to Indian
Jurisprudence.
2. To find out tests to determine medical negligence with various case laws.
3. To study the liabilities which may arise out of Medical Negligence?
4. To find out the problems in cases of medical negligence and suggest steps to
overcome those problems.

Methodology:

This research project is descriptive in nature. Accumulation of the information on the topic includes
wide use of sources like books, articles etc. The matter from these sources have been compiled and
analysed to understand the concept.

Websites and dictionary have also been referred to understand things in a better way.

Questions:

1. What is the concept of Medical Negligence?

2. Which are the tests developed through various case laws dealing with Medical
Negligence?
3. How is Medical Negligence covered under various laws such as torts, penal laws etc.?
4. What is the importance of this concept in Jurisprudence?
5. What are the problems of Medical Negligence?

Hypothesis:

Negligence by doctors has to be determined by judges who are not trained in medical
science. They rely on experts’ opinion and decide on the basis of basic principles of
reasonableness and prudence. This brings into a lot of subjectivity into the decision and
the effort is to reduce it and have certain objective criteria. This may sound simple but
 4

is tremendously difficult as medical profession evolves and experimentation helps in its

evolution. Thus, there is a constant tussle between the established procedures and
innovative methods. But, innovation simply for the sake of being different, without any
reason is not acceptable. And, these issues make it extremely challenging to decide
negligence by doctors.

Mode of Citation:

This project follows a uniform Bluebook 19th Ed. Citation format for footnotes and
bibliography.

Chapterisation:

The project broadly has been divided into 6 chapters. Chapter 1 comprises of the
introduction to the topic along with the research methodology that has been adopted in
this project. Chapter 2 comprises of Concept of Medical Negligence and essentials to
constitute medical negligence. Chapter 3 covers up the Tests to Determine Medical
Negligence which have evolved through various landmark cases laws. Chapter 4
constitutes of the Liability in case a professional is medically negligent. Chapter 5 aims
to find out the problems of medical negligence and suggest some ways to overcome
those problems. Chapter 6 is the conclusion of the project which sums up this project in
brief.

Scope of Study:

Due to paucity of time and resources this project does not try to cover the concept of Medical
Negligence in detail. The project tries to cover only the cases which in the knowledge of author
are landmark. The chapters on Liability and Problems are dealt in brief.
 5

Medical Negligence
Winfield1 has defined negligence as a tort which is the breach of a legal duty to take care which
results in damage, undesired by the defendant to the plaintiff. An act involving the above
ingredients is a negligent act. Baron Alderson defines negligence in Btyth v. Birmingham Water
Works Company2 as omission to do something which a reasonable man guided upon by those
consideration which ordinarily regulate human affairs, would do, or doing something which
prudent and reasonable man would not do.
Charlesworth modifies Alderson's definition and defines negligence as a tort which involves a
person's breach of duty that is imposed upon him to take care; resulting in damage to the
complainant.3
The breach of duty may be occasioned either by not doing something which a reasonable man,
under given set of circumstances, would do, or by doing some act which a reasonable prudent
man would not do.4

History shows that the perception about Medical negligence has shifted from crime to Tort
approach. In earlier civilization (code of Hammurabi developed by Babylon's King some 20
Centuries before Christian era) doctor's hands were cut off if the patient died during operation;
Likewise issue of Medical negligence could be found in Islamic law, Mosaic law, charaka
samhita, sushnttha samhita, Manusmriti, Katrtirya's Arthashastre, yajnavllga,s smriti.) Medical
negligence was considered more as a crime than as a tort. With the progress of civilization,
medical negligence was increasingly treated as a tort by the judiciary so that the victim can be
provided with damages. As common law evolved in England, the earliest recorded action against
a medical man was mounted in 1374 when a surgeon, J Mort, was brought before the King's
Bench considering his treatment of an injured hand. He was in fact held not liable, but the court
said that if such a patient proved negligence, the court would provide a remedy.

1
Winfield and Jalou.icz, Tort,5th , p.4.
2
Blyth v. Birmingham Water Works Company, (1856) 11 Ex 781.
3
Charlesrworth & Percy, Negligence, 19th ed, p. 16
4
Poonam Verma v. Aswin patel, AlR 1996 SC 2111.
 6

Medical negligence is the failure of a medical practitioner to provide proper care

and attention and exercise those skills which a prudent, qualified person would do
under similar circumstances. It is a commission or omission of an act by a
medical professional which deviates from the accepted standards of practice of
the medical community, leading to an injury to the patient. It may be defined as a
lack of reasonable care and skill on the part of a medical professional with
respect to the patient, be it his history taking, clinical examination, investigation,
diagnosis, and treatment that has resulted in injury, death, or an unfavorable
outcome. Failure to act in accordance with the medical standards in vogue and
failure to exercise due care and diligence are generally deemed to constitute
medical negligence.5

Everyone is responsible, not only for the result of his or her willful acts, but also for an injury
occasioned to another by his or her want of ordinary care or skill in the management of his or her
property or person. Negligence is not the act itself, but the fact which defines the character of the
act, and makes it a legal wrong.6
The elements of a cause of action in tort of negligence are: 7
(1) a duty to use ordinary care;
(2) breach of that duty;
(3) approximate causal connection between the negligent conduct and the resulting injury
and
(4) resulting damage.
Negligence as a tort is the breach of a legal duty to take care, which results in damage undesired
by the defendant, to the plaintiff. In essence, negligence consists of failure to take reasonable
precautions against risks of injury to others, which one ought to have foreseen and guarded
against.
In legal sense medical negligence is a subset of professional negligence which is a branch of the
general concept of negligence that applies to the situation in which physician who represented

5
Kiran Gupta, The standard of care and proof in medical profession, A shift from Bolam to Bolitho,
XIV-XV National Capital Law Journal 1(2011-2012).
6
Stephenson v. Southern Pac. Co.(1894) 102 Cal. 143, 147.
7
Budd v. Nixen, (1971) 6 Cal.3d 195, 200.
 7

him or herself having special knowledge and art, breaches his or her duty to take care about his
or her patient. The general rules apply in establishing that the physician who owed the duty of
care is in breach of that duty. Once the physician has accepted to treat the patient, the legal
relationship between physician and patient is created, this means a medical relationship is
established and this relationship resulted in duty to take care. The base of this legal relationship
is the rule of "reasonable reliance" by the claimant on the skills of the defendant. Dealing with
the question of duty to take care, the court observed:
Where a person is so placed that others could reasonably rely upon his judgment
or his skill or upon his ability to make careful inquiry, and a person takes it upon
himself to give information or advice to, or allows his information or advice to be
passed on to, another person who, as he knows or should know, will place
reliance upon it, then a duty of care will arise.8

According to common law system of negligence, the medical practitioner has discretion in
choosing the treatment which he proposes to give to the patient and such discretion is wider in
cases of emergency, but, he must bring to his task a reasonable degree of skill9 and knowledge
and must exercise a reasonable degree of care according to the circumstances of each case. 10 A
physician who holds himself out ready to give medical advice and treatment impliedly holds out
that he is possessed of skill and knowledge for such purpose. Then, when he is consulted by a
patient, owes certain duties, namely, a duty of care in deciding whether to undertake the case, a
duty of care in deciding what treatment to give, and a duty of care in the administration of that
treatment.
The criterion for existence of duty of care in giving advice was explained by the court in more
restricted terms as: What can be deduced from the Hedley Byrne case, therefore, is that the
necessary relationship between the maker of a statement or giver of advice (the adviser) and the
recipient who acts in reliance on it (the advisee) may typically be held to exist where:
1. the advice is required for a purpose, whether particularly specified or generally described,
which is made known, either actually or inferentially, to the adviser at the time when the
advice is given,

8
Blyth v. Birmingham Water Works Company, Supra note 2.
9
Hedley Byrne v. Heller, (1964) AC 465.
10
Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.
 8

2. the adviser knows, either actually or inferentially, that his advice will be communicated
to the advisee, either specifically or as a member of an ascertainable class, in order that it
should be used by the advisee for that purpose,
3. it is known, either actually or inferentially, that the advice so communicated is likely to
be acted on by the advisee for that purpose without independent inquiry and
4. it is so acted on by the advisee to his detriment.11

The root of professional negligence can be found in the case of Donoghue v. Stevenson,12 where
a woman succeeded in establishing that a manufacturer of ginger beer owed her a duty of care,
where it had been negligently produced. Following this, the duty concept has expanded into a
coherent judicial test, which must be satisfied in order to claim in negligence. A medical
professional is expected to have the requisite degree of skill and knowledge.

The rule in professional negligence is a little different, for professionals such as medical
practitioners an additional perspective is added through a test known as the Bolam13 test which is
the accepted test in India.
A doctor 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.

This approach has been accepted in the judgment of the Indian Supreme Court in the case of
Jacob Mathew v. State of Punjab.14 The standard of care, when assessing the practice as adopted
is judged in the light of the knowledge available at the time of the incident, and not at the date of
trial.
The Supreme Court in United States has also set forth a two part test in Bryant v. Oakpointe Villa
Nursing Center.15 The Supreme Court stated the following two-part test for distinguishing
between ordinary negligence claims and professional negligence. Therefore, a court must ask

11
Caparo Industries plc v. Dickman(1990) 2 AC 605.
12
Donoghue v. Stevenson[1932] AC 562.
13
Bolam v. Friern Hospital Management Committee, [1957] 1 WLR.
14
Jacob Mathew v. State of Punjab, Supta note 10.
15
Bryant v. Oakpointe Villa Nursing Center, NW2d 864 (2004)
 9

two fundamental questions in determining whether a claim sounds in ordinary negligence or

medical malpractice:
(1) Whether the claim pertains to an action that occurred within the course of a professional
relationship; and
(2) Whether the claim raises questions of medical judgment beyond the realm of common
knowledge and experience. If both these questions are answered in the affirmative, the
action is subject to the procedural and substantive requirements that govern medical
malpractice actions.16

In ordinary negligence cases, the court is fully competent to lay down what the reasonable man
should do in everyday circumstances as judges are aware of and understand everyday
circumstances. But in cases of medical negligence, intricacies of medical science are not,
generally speaking, within judicial knowledge. The judge may not be able to measure the
reasonableness of medical activity of which he has no great level of understanding. Medicine is
perhaps the classic example of a profession in which results are not guaranteed and are not
expected to be guaranteed.
The negligence concept is centered on the principle that every individual should exercise a
minimum degree of ordinary care so as not to cause harm to others. Everyone is responsible, not
only for the result of his or her willful acts, but also for an injury occasioned to another by his or
her want of ordinary care or skill in the management of his or her property or person.
"Negligence is not the act itself, but the fact which defines the character of the act, and makes it a
legal wrong."17 Negligence is a basis for a wide variety of legal claims in the law of torts.
Medical negligence is often confused for medical malpractice, when in fact; negligence is only
one aspect of a meritorious medical malpractice claim.
Negligence can occur at various stages. A health care provider may misdiagnose a problem, fail
to treat the injury or illness properly, administer the wrong medication, and fail to adequately
inform a patient about the risks of a procedure or about alternative treatments. Medical
negligence comprises the majority of professional negligence lawsuits. This is not to say that

16
Id.
17
Stephenson v. Southern Pac. Co.(1894) 102 Cal. 143, 147.
 10

medical professionals are more prone to committing negligence, but that they are the target of
more professional negligence lawsuits.
In terms of medical malpractice tort law, medical negligence is usually the basis for a lawsuit
demanding compensation for an injury caused to a patient by a doctor or other medical
professional. Tort law governs medical negligence. To establish that a provider's negligence was
malpractice, a claimant must establish the following:
a. The healthcare provider owed a duty to the plaintiff;
b. The healthcare provider breached the duty;
c. The healthcare provider's breach caused the injury; and
d. The patient suffered damages because of the defendant's negligence.

Medical negligence occurs when a doctor, dentist, nurse, surgeon or any other medical
professional performs his job in a way that deviates from the accepted medical standard of care.
In keeping with car accident analogy, if a doctor breaks the rules regarding how to treat a patient,
and does something that is "against the rules", then that doctor has failed to perform his duty, and
is said to be negligent.
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Test for Determining Medical Negligence

(Case Laws)
The legal position of medical negligence in India has been described in several leading
judgments.

Bolam’s Case:18
Facts:
In Bolam v. Friern Hospital Management Committee, John Hector Bolam suffered from
depression and was treated at the Friern Hospital in 1954 by E.C.T. (electro-convulsive therapy).
He was not given any relaxant drug, however, nurses were present on either side of the couch to
prevent him from falling off. When he consented for the treatment, the hospital did not warm
him of the risks, particularly that he would be given the treatment without relaxant drugs. He
sustained fractures during the treatment and sued the hospital and claimed damages for
negligence. Experts opined that there were two practices accepted by them: treatment with
relaxant drugs and treatment without relaxant drugs. Regarding the warning also, there were two
practices prevalent: to give the warning to the patients and also to give the warning only when
the patients ask about the risks. The court concluded that the doctors and the hospital were not
negligent.
Judgment:
Mc Nair J. has stated as follows:
“Where you get a situation which involves the use of some special skill or
competence, then the test whether there has been negligence or not is not the test
of the man on the top of a Clapham omnibus, because he has not got this special
skill. The test is the standard of the ordinary skilled man exercising and
professing to have that special skill. A man need not possess the highest expert
skill at the risk of being found negligent. It is well-established law that it is
sufficient if he exercise the ordinary skill of an ordinary competent man
exercising that particular art. A doctor is not guilty of negligence if he has acted
18
Bolam v. Friern Hospital Management Committee, [1957] 1 WLR.
 12

in accordance with a practice accepted as proper by a responsible body of

medical men skilled in that particular art.”

Jacob Mathew’s Case:19

Facts:
In this case, Jacob Mathew v. State of Punjab, a patient was admitted to CMC Hospital,
Ludhiana. He felt difficulty in breathing. No doctor turned up for about 20-25 minutes. Later two
doctors – Dr. Jacob Mathew and Dr. Allen Joseph – came and an oxygen cylinder was brought
and connected to the mouth of the patient. Surprisingly, the breathing problem increased further.
The patient tried to get up. The medical staff asked him to remain in bed. Unfortunately, the
oxygen cylinder was found to be empty. Another cylinder was brought. However, by that time
the patient had died. The matter against doctors, hospital staff and hospital went up to the
Supreme Court of India. The court discussed the matter in great detail and analysed the aspect of
negligence from different perspectives – civil, criminal, torts, by professionals, etc. It was held
that there was no case of criminal rashness or negligence.

Judgment:
The basic principle under which a case of medical negligence as a criminal offence as also a tort
has to be evaluated has been succinctly laid down in Jacob Mathew is which the Court adopted
the test laid down in Bolam in which it has been observed that where you get a situation which
involves the use of some special skill or competence, then the test as to whether there has been
negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not
got this special skill. The test is the standard of the ordinary skilled man exercising and profusely
to have that special skill. A man need not possess the highest expert skill. It is well-established
law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising
that particular art. This judgment had been followed repeatedly not only in India but in other
jurisdictions as well and that it is the statement of law as commonly understood today.

Why the mention of “Clapham omnibus?” The Bolam judgment was pronounced in 1957 and
Clapham, at that time, was a nondescript south London suburb. It represented “ordinary”

19
Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.
 13

London. Omnibus was used at that time for the public bus. Thus, “the man on the top of a
Clapham omnibus” was a hypothetical person, who was reasonably educated and intelligent but
was a non-specialist. The courts used to judge the conduct of any defendant by comparing it with
that of the hypothetical ordinary man.

The Supreme Court in Laxman v. Trimbak20, held:

The duties which a doctor owes to his patient are clear. A person who holds
himself out ready to give medical advice and treatment impliedly undertakes that
he is possessed of skill and knowledge for the purpose. Such a person when
consulted by a patient owes him certain duties viz., a duty of care in deciding
whether to undertake the case, a duty of care in deciding what treatment to give
or a duty of care in the administration of that treatment. A breach of any of those
duties gives a right of action for negligence to the patient. The practitioner must
bring to his task a reasonable degree of skill and knowledge and must exercise a
reasonable degree of care. Neither the very highest nor very low degree of care
and competence judged in the light of the particular circumstances of each case is
what the law requires.

In Achutrao Haribhau Khodwa v. State of Maharashtra21 the Supreme Court said:

The skill of medical practitioners differs from doctor to doctor. The very nature of
the profession is such that there may be more than one course of treatment which
may be advisable for treating a patient. Courts would indeed be slow in
attributing negligence on the part of a doctor if he has performed his duties to the
best of his ability and with due care and caution. Medical opinion may differ with
regard to the course of action to be taken by a doctor treating a patient, but as
long as a doctor acts in a manner which is acceptable to the medical profession
and the Court finds that he has attended on the patient with due care skill and
diligence and if the patient still does not survive or suffers a permanent ailment, it
would be difficult to hold the doctor to be guilty of negligence.

20
Laxman v. Trimbak,AIR 1969 SC 128.
21
Achutrao Haribhau Khodwa v. State of Maharashtra. [AIR 1996 SC 2377].
 14

The classical statement of law in Bolam's case has been widely accepted as decisive of the
standard of care required both of professional men generally and medical practitioners in
particular. It has been invariably cited with approval before the courts in India and applied as a
touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show
that the standard of care and the skill attained was that of the ordinary competent medical
practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged
with negligence acted in accord with the general and approved practice is enough to clear him of
the charge. Two things are pertinent to be noted.
Firstly, the standard of care, when 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.
Secondly, 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 point of time on which
it is suggested as should have been used.

Bolitho’s Case:22

Facts:
In Bolitho v. City and Hackney Health Authority,23 a two year old child, suffered catastrophic
brain damage as a result of cardiac arrest due to respiratory failure. The senior pediatric registrar
did not attend the child, as she ascribed to a school of thought that medical intervention, under
those particular circumstances, would have made no difference to the end result. Liability was
denied on the ground that even if she had attended, she would not have done anything that would
have materially affected the outcome. This view was supported by an impressive and responsible
body of medical opinion.

Judgment:
Lord Wilkinson observed:
The Court is not bound to hold that a defendant doctor escapes liability for
negligent treatment or diagnosis just because he leads evidence from a number of
medical experts who are genuinely of the opinion that the defendant‟s treatment

22
(1997) 4 All ER 771 (HL).
23
Id.
 15

or diagnosis accorded with sound medical practice. The use of these adjectives –
responsible, reasonable and respectable – all show that the Court has to be
satisfied that the exponents of the body of opinion relied upon can demonstrate
that such opinion has a logical basis. In particular in cases involving the
weighing of risks against benefits, the Judge before accepting a body of opinion
as being responsible, reasonable and respectable, will need to be satisfied that in
forming their views the experts have directed their minds to the question of
comparative risks and benefits, and have reached a defensible conclusion on the
matter.
The case laid down that it is not enough for the doctor charged with negligence to prove that he
acted in accord with the approved practice to clear him. The practice he followed must has a
logic basis so as to be responsible, reasonable and respectable. Thus even though there exists a
body of professional opinion sanctioning the defendant’s conduct, the defendant can still be held
negligent if the judge is not satisfied that the opinion is reasonable or responsible. Ultimately the
courts, and only the courts, are the arbiters of what constitute reasonable care. doctors cannot be
judges in their own cause. This is likely to shift the Bolam’s “accepted practice” approach to one
whereby the standard of care is set by the court on the basis of “expected practice.”

Malay Kumar Ganguly v. Dr. Sukumar Mukherjee24

Recently Justice S.B.Sinha in Malay Kumar Ganguly v. Dr. Sukumar Mukherjee25 case has
preferred Bolitho test to Bolam test. The Supreme Court redefined medical negligence saying
that the quality of care to be expected of a medical establishment should be in tune with and
directly proportional to its reputation. The Court extended the ambit of medical negligence cases
to include overdose of medicines, not informing patients about the side effects of drugs, not
taking extra care in case of diseases having high mortality rate and hospitals not providing
fundamental amenities to the patient. The decision also says that the court should take into
account patient‟s legitimate expectations from the hospital or the concerned specialist doctor.

24
(2009) 9 SCC 221.
25
Id.
 16

Facts:
In this case the patient, a lady aged about 36 years, developed fever along with skin rashes. A
doctor was contacted, who after examination of the patient assured of a quick recovery and
advised her to take rest but did not prescribe any medicine. As the skin rashes reappeared more
aggressively, the doctor was again contacted who diagnosed that she was suffering from Anglo-
Neurotic Oedema with allergic vasculitis and prescribed long acting steroid, depomedrol
injection 80 mg twice daily for three days and wysolone which is also a steroid having the
composition of Methyl predinosolone. As the condition of the patient deteriorated rapidly from
bad to worse despite the administration of the said medicines, she was admitted to the hospital
wherein it was found by the attending doctors that the patient has been suffering from Toxic
Epidermal Necrolysis (TEN). Doctors in the hospital prescribed a quick acting steroid
prednisolone at 40 mg three times daily. The condition of the patient continued to deteriorate
further. She was shifted to Breach Candy Hospital, Mumbai wherein she breathed her last after
10 days. The death was caused by over use of steroid and lack of supportive therapy and care on
the part of attending doctors. After a protected trial and hearing and on consideration of the
evidence and material produced on record, the Supreme Court decided that doctors and hospital
were negligent in treating the patient. The court found that there is cleavage of opinion on the
medical protocol for treating TEN patients.
The court found the doctors to be negligent and deficient in providing medical services as:
(1) Patient had rashes all over her body; the doctor should have referred her to a
dermatologist.
(2) Doctor wrongly diagnosed the disease as vasculitis.
(3) The doctor prescribed “Depomedrol” 80 mg twice a day for three days which is certainly
a higher dose in case of a TEN patient and the maximum recommended usage by the drug
manufacturer has also been exceeded. This is a wrongful act on his part. The immediate
adverse effect of overuse of this steroid is immunosupression and chance of infection.
(4) According to general practice, long acting steroids are not advisable in any clinical
condition. Instead of prescribing a quick acting steroid, the prescription of a long acting
steroid without foreseeing its implications is an act of negligence on their part without
exercising any care or caution.
 17

(5) The doctors in hospital, after taking over the treatment of the patient did not take any
remedial measure against the excessive amount of Depomedrol that was already stuck in
the patient’s body. On the other hand, they prescribed an excessive dose of quick acting
steroid.
In the opinion of Court for the death of the patient although doctors and the hospital were
negligent, it cannot be said that they should be held guilty for criminal negligence. For an act to
amount to criminal negligence, the degree of negligence must be of a gross or a very high
degree. A negligence which is not of such a high degree may provide ground for action in civil
law but cannot form the basis of prosecution. The court remitted the case back to the NCDRC for
the purpose of determination of quantum of compensation. NCDRC finally awarded a
compensation of Rs. 1,55,58,750 to be paid by the doctors and the hospital.
 18

Liability
Degree of Negligence

Delhi High Court laid down in 2005 that in civil law, there are three degrees of negligence:26

(i) lata culpa, gross neglect

(ii) levis culpa, ordinary neglect, and
(iii) levissima culpa, slight neglect.

Every act of negligence by the doctor shall not attract punishment. Slight neglect will surely not
be punishable and ordinary neglect, as the name suggests, is also not to be punished. If we club
these two, we get two categories: negligence for which the doctor shall be liable and that
negligence for which the doctor shall not be liable. In most of the cases, the dividing line shall be
quite clear, however, the problem is in those cases where the dividing line is thin. In all such
cases we fall back upon the test laid down in Bolam case and which has been upheld in Jacob
Mathew case.

Civil or Criminal Liability

The liability of the doctor shall be civil or criminal or both. One of the essential elements in
criminal law is mens rea – the guilty mind or an evil intention. The question arises as to whether
in cases of medical negligence – whether slight, ordinary or gross – is there any criminal
liability? As mens rea is essential, it is difficult to argue that the doctor had a guilty mind and
was negligent intentionally. This has been the main argument in most of the cases in which the
decision was to decide about the criminal liability. For instance, in Jacob Mathew, neither the
doctor nor any other hospital staff intentionally connected the empty cylinder. Similarly, in
Bolam, the doctors or the hospital did not want to do something wrong intentionally. At no point
of time, they had a guilty mind.

In Dr. Suresh Gupta’s Case27 the court held that the legal position was quite clear and well
settled that whenever a patient died due to medical negligence, the doctor was liable in civil law

26
Smt. Madhubala vs. Government of NCT of Delhi, 2005 (118) DLT 515.
 19

for paying the compensation. Only when the negligence was so gross and his act was so reckless
as to endanger the life of the patient, criminal law for offence under section 304A of Indian Penal
Code, 1860 will apply.

The section is as follows:

304A – Causing death by negligence – Whoever causes the death of any person by doing any
rash or negligent act not amounting to culpable homicide shall be punished with imprisonment
of either description for a term which may extend to two years, or with fine, or with both.

The court held that the negligence has to be “gross negligence” or “recklessness” for fixing
criminal liability on a doctor. The standard of negligence is much higher as compared to what is
relevant in civil liability cases. It is not simply lack of normal care. It has to be gross lack of
competence or inaction and wanton indifference to the patient’s safety. The court said “…where
a patient’s death results merely from error of judgment or an accident, no criminal liability
should be attached to it. Mere inadvertence or some degree of want of adequate care and caution
might create civil liability but would not suffice to hold him criminally liable.”

The Supreme Court in Jacob Mathew made it very clear as to when a medical professional can
be prosecuted under criminal law for negligence. In the words of the court:

To prosecute a medical professional for negligence under criminal law it must be

shown that the accused did something or failed to do something which in the
given facts and circumstances no medical professional in his ordinary senses and
prudence would have done or failed to do. The hazard taken by the accused
doctor should be of such a nature that the injury which resulted was most likely
imminent.

Martin D’Souza’s Case28

Facts:
This is a case of Martin F. D'Souza vs. Mohd. Ishfaq, regarding kidney transplant and medicines
being administered post-operation wherein there is a dispute about the medicine itself and the

27
Dr. Suresh Gupta vs. Government of N.C.T. of Delhi, AIR 2004 SC 4091.
28
Martin F. D'Souza vs. Mohd. Ishfaq, AIR 2009 SC 2049.
 20

dosage. In 1991, the patient who was suffering from chronic renal failure went to Nanavati
Hospital, Mumbai for kidney transplant. He was undergoing haemodialysis twice a week. Later
he got his kidney transplant done at Prince Aly Khan Hospital. During his treatment at Nanavati
Hospital he did not complain of deafness. At Nanavati Hospital he was prescribed Amikacin of
500 m.g. twice a day for 14 days.

Much later, the patient filed a complaint at the National Consumer Dispute Redressal
Commission, New Delhi and claimed compensation of Rs. 12 lakhs as his hearing had been
affected. He complained that the dosage of Amikacin was excessive and caused hearing loss. The
matter finally went to the Supreme Court. Almost all earlier cases pertaining to medical
negligence have been discussed by the Supreme Court in the instant case and it was held that the
doctor and the hospital were not negligent.

Judgment
Interestingly, this case very strongly defended the position of doctors vis-à-vis the patients. The
court has made an interesting observation: The law, like medicine, is an inexact science. One
cannot predict with certainty an outcome of many cases. It depends on the particular facts and
circumstances of the case, and also the personal notions of the Judge concerned who is hearing
the case. However, the broad and general legal principles relating to medical negligence need to
be understood. Difficulties in application of Mathew guidelines The Supreme Court observed
that there were difficulties in the application of principles as laid down in Jacob Mathew’s case.
For instance:

(1) “The practitioner must bring to his task a reasonable degree of skill and knowledge, and
must exercise a reasonable degree of care. Neither the very highest nor a very low degree
of care and competence is what the law requires.” (as per Jacob Mathew’s case) The
court observed that it is a matter of individual understanding as to what is reasonable and
what is unreasonable. Even experts may disagree on certain issues. They may also
disagree on what is a high level of care and what is a low level of care.
(2) The Jacob Mathew case said that “simple” negligence may result only in civil liability,
but “gross” negligence or recklessness may result in criminal liability. Now, what is
simple negligence and what is gross negligence may not be so easy to be determined.
 21

Experts may not agree on this because the dividing line between the two is quite thin.
Judges as lay men

Thus, Martin D’Souza’s judgment held that it was very difficult or rather impossible to
understand, and therefore, define as to what is “reasonable” and what is “simple” and what is
“gross”. In short, the Martin D’Souza judgment is like a confession by the judges that in cases of
medical negligence, the judges are ill-equipped to make any decision and that too on the finer
aspects of “simple” or “gross” negligence.. A balance has to be achieved and this is what
precisely has been done by another bench of the Supreme Court in Kishan Rao v. Nikhil Super
Speciality Hospital29 case in March 2010.

Kishan Rao’s case30

Facts
Kishan Rao got his wife admitted to Nikhil Super Speciality Hospital in Hyderabad as she was
suffering from fever and complaining of chill. She was not given any treatment for malaria.
Instead she was being treated for typhoid. She did not respond to the treatment. In a very
precarious condition, she was shifted to Yashoda hospital where she died due to cardio
respiratory arrest and malaria.

Kishan Rao filed a case in the District Forum and sought compensation for the negligence of the
Nikhil hospital. The hospital delayed filing the case sheet. Finally, the District Forum decided in
favour of Kishan Rao. Hospital appealed in the State Commission, which overturned the decision
of the District forum on the ground that there was no expert opinion to the effect that the
treatment given by the hospital was wrong or the hospital was negligent. National Commission
upheld this decision. Kishan Rao appealed in the Supreme Court.

Judgment
Court observed that the case was not complicated which required expert opinion as evidence. It
was a simple case of wrong treatment. The court held that it was not bound by the earlier
decision of the same court in Martin D’Souza’s case as that judgment was per incuriam.

29
V. Kishan Rao vs. Nikhil Super Speciality Hospital, 2010 (5) SCR 1.
30
Id.
 22

Problems and Suggestions

Duty:
The idea of negligence can be understood only when there is clarity about the duty of the doctor,
assisting staff and the hospital as a whole. In several cases, there is a problem of overlapping
duties and thus, it becomes difficult to draw a line between the duty of A and B. In any case, the
doctor is under an obligation and is directly liable for the acts performed by him. For the
assisting staff, it is the duty of the hospital and the person himself. Both have a joint and several
liability. Thus, it is advisable to have clear-cut duties laid down for different persons. But, in
practice, this is not so easy.

General Practitioner vs. Specialist:

A number of problems arise when a general practitioner tries to treat a patient who requires
services of a specialist or a super-specialist. On the other hand, there may be problems also in
situation when the general practitioner could have treated a patient, however, forms an opinion
that he cannot do anything and the patient must be taken to a specialist. In such cases, time may
be a crucial factor and by the time the patient is taken to a specialist, it may be too late. In both
the abovementioned situations, it is to be seen that the general practitioner has a very critical role
to play in the treatment of a patient. Agreed that the general practitioner is not supposed to know
everything, however, it is expected that he must guide the patient properly to the best of his
ability. He has to exercise his discretion so that the patient gets the best, at that place and at that
time, taking into account the distance of the nearest specialist, his availability and the condition
of the patient.

Risk and adventure:

A problem often seen is the experimentation mode of some doctors. As they might have been
practising as a doctor for a very long time, they have experience and on the basis of that
experience they would like to deviate from the standard set practice and procedure followed by
others. There is nothing wrong per se. The only problem is when it becomes an unnecessary
experimentation. Risk taking just for adventure is not acceptable. Thus, if a doctor can perform a
 23

difficult surgery in candle light – because there is no electricity connection – it does not make
sense that he insists performing surgery in candle light when there is power available.

Paper work:

Law requires evidence and documentary evidence in the form of case papers has to be
meticulously prepared. The duty of the doctor is to treat the patient, however, it is also important
to document the treatment given and at times the reason why such treatment has been given. The
matters reach a court after several months and years and by that time the only thing on which the
parties can rely in the court is the case file. The oral evidence of doctors and other staff also adds
to the evidence, however, the documentary evidence always gets precedence, until and unless
proved to be forged. It is also important to have transparency in the system and give a copy of all
the papers, reports, films, etc. to the patient.

Electronic Records:

An important improvement in the paper work has been in the shape of electronic records, which
allow easy storage and retrieval. At the same time, several copies can easily be made. There is
also minimal chance of errors creeping in as most of the items are to be selected from a drop-
box. The issue of bad handwriting, very common complaint with doctors, is also easily taken
care of. All new hospitals work with local network of computers and do not transfer papers from
one place to another. There is also no chance of losing a paper.
 24

Conclusion
There are two possibilities in cases of negligence – either it is negligence of the doctor or it is
negligence of the staff. There may be a possibility of negligence, both of the doctor and the staff.
In most of the cases, it will be a case of joint and several liability, and both the doctor and the
hospital will be liable. The division of liability between the two of them will be decided
according to the understanding between the two. As far as determining negligence is considered,
courts have to depend on the advice of experts, except in cases of blatant violation of protocol
and doing things which are considered to be unreasonable and imprudent. The level of
subjectivity in such decisions is quite high and the purpose of law to be certain and specific is
defeated to a large extent. Recent decisions are a good step in the direction of making this murky
area a bit tidy, however, a lot needs to be done by the courts in the shape of clearer judgments so
that the layman can benefit. As of now, the judgments leave a lot of room for discretion, which at
times may be exercised by different persons, including doctors and judicial officers, in an
undesirable manner. The law on the subject needs to be more precise and certain. That will
surely give a better understanding about the “reasonable man”.

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. Further the
professional can be made criminally liable if his act amounts to gross negligence.
 25

Bibliography:
Books:
(1) K.D. Gaur, Textbook on the Indian Penal Code, Universal Law Publishing; Fourth
Edition. (2013)
(2) Tapas Kumar Koley, Medical Negligence and the Law in India: Duties, Reponsibilities,
Rights, OUP India. (2010)
(3) R.K. Bangia, Law of Torts with Consumer Protection, Allahabad Law Agency, 23rd
Edition. (2011)

Articles:
(1) Kiran Gupta, The standard of care and proof in medical profession: shift from Bolam to
Bolitho, XIV-XV National Capital Law Journal 1(2011-2012).
(2) Anurag K. Agarwal, Medical Negligence: Law and Interpretation, IIMA India.
(3) Anurag K. Agarwal, Medical Negligence and Compensation in India: How Much is Just
and Effective?, IIMA India.
(4) Aditya Singhal, The Veracity of Laws relating to Medical Malpractice in India,
International Journal of Scientific and Research nPublications.