Medical Negligence Cases In India – Adequacy Of Law, Legal Issues

Involved,
Response Of Judiciary And Possible Solutions.

Medicine is of all the arts the most noble, but owing to the ignorance of those who practise it,
and of those who, inconsiderately, form a judgment of them; it is at present far behind all the
other arts.

Hippocrates

Medical negligence meaning:

On basis of various judicial pronouncements essentials of 'Medical Negligence' as are

discernible, in brief and in so far as it is relatable to the medical profession, are as under:

(i) The Doctor must owe a duty of care to the patient;

(ii) The Doctor must have made a breach of that duty; and

(iii) The patient must have suffered damages due to the said breach.

Absence of any of these requirements can result into endanger to the patient’s life.

What Constitutes Medical Negligence:

Failure of an operation and side effects are not negligence. The term negligence is defined as
the absence or lack of care that a reasonable person should have taken in the circumstances of
the case. The mere allegation will not make out a case of negligence, unless it is proved by
reliable evidence and is supported by expert evidence. And unless the negligence of the
doctor is proved, victim is not entitled to any compensation.
What duty owed by doctor towards patients :

. Dr. Laxman Balkrishna Joshi V. Dr. Trimbak Bapu Godbole And Anr.1 The Court held
that a person who holds himself out ready to give medical advice and treatment impliedly
undertakes that he is possessed of skill and knowledge for that 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 be given 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. A doctor, therefore, does not have to ensure that every patient who
comes to him is cured. He has to only ensure that he confers a reasonable degree of care and
competence.

Negligence by professionals in medical:

Bolam Case2 very clearly distinguished between the negligence by an ordinary man and
negligence by a professional in the following words:

But 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 professing 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.
The Supreme Court of India discussed the conduct of professionals and what may amount to
Negligence by professionals in Jacob Mathew’s case3
In the law of negligence, professionals such as lawyers, doctors, architects and others are
included in the category of persons professing some special skill or skilled persons generally.
Any task which is required to be performed with a special skill would generally be admitted
or undertaken to be performed only if the person possesses the requisite skill for performing
that task. Any reasonable man entering into a profession which requires a particular level of

1
AIR 1969 128,1969 SCR (1) 206.
2
Bolam v. Friern Hospital Management Committee, Queen’s Bench Division, 1957, Date of decision - 26
February 1957, Citation: [1957] 1 W.L.R. 582 = [1957] 2 All E.R. 118
3
Jacob Mathew vs. State of Punjab, Supreme Court of India, August 5, 2005, Citation: 2005 (6) SCC 1 = AIR
2005 SC 3180
learning to be called a professional of that branch, impliedly assures the person dealing with
him that the skill which he professes to possess shall be exercised and exercised with
reasonable degree of care and caution.
Judged by this standard, a professional may be held liable for negligence on one of two
findings:
1. Either he was not possessed of the requisite skill which he professed to have
possessed,
2. 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 necessary for every professional to possess the highest level of expertise 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 indictment of negligence.

Civil and criminal liability

The jurisprudential concept of negligence differs in civil and criminal law. What may
be negligence 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. For
an act to amount to criminal negligence, the degree of negligence should be much high
degree. A negligence which is not of such a high degree may provide a ground for action in
civil law but cannot form the basis for prosecution. 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. In Dr. Suresh Gupta’s Case4
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 for paying the
compensation. Only when the negligence was so gross and his act was as reckless as to
endanger the life of the patient, criminal law for offence under section 304A of Indian Penal
Code, 1860 will apply.

4
Dr. Suresh gupta v. Government of nct and others AIR 2004 SC 0579
Res Ipsa Loquitur

The doctrine of res ipsa loquitur means, that the accident speaks for itself or tells its own
story. The normal rule is, that it is for the plaintiff to prove negligence, but, in some cases,
considerable hardship is caused to the plaintiff, as the true cause of the accident is not known
to him, but is solely within the knowledge of the defendant who caused it. The plaintiff can
prove the accident but cannot prove how it happened (so as) to establish negligence on the
part of the defendant. For the applicability of the principle should fulfil three essential
conditions;
 The opposite party must have been in control of things;
 Common knowledge/accepted norms suggesting that the injury/damage/loss, in itself
cannot occur without negligence; and
 The cause of incident/injury must be unknown or unascertainable.
Some of the common instances, where this principle can be invoked, are operation on a
wrong patient or a wrong part of the body, transfusion of improper blood, leaving some
foreign material in the body, performing an abortion or any other operation or surgery which
is prohibited in law, etc.

The law which deals with medical negligence are not sufficient:

Victims of medical negligence, considering action against an erring doctor, have

Three options.
 Compensatory mode - Seek financial compensation before the Consumer Disputes
Redressal Forum or before Civil Courts.
 Punitive/Deterrent mode - Lodge a criminal complaint against the doctor under
section 304A I.P.C.
 Corrective/ Deterrent mode - Complaint to the State Medical Council demanding that
the Doctor’s license be revoked.
New law dealing with medical negligence should be passed by the Parliament and more
stringent measures should be incorporated under it with respect to the said subject :
1. Separate and special Tribunal should be established dealing with cases of medical
negligence
2. Fast track proceeding of the cases of medical negligence
 3. Aggravated fine and enhance punishment for cases of medical negligence.
4. judge’s expert in medical jurisprudence should be appointed in such court.

Opinion Of Supreme Court In Context Of Constitution

The judgment of the Supreme Court in Nilbati Behra V. State of Orissa5 case holds that in
view of the fundamental right to life (Article 21 of the Constitution) the Government cannot
claim "sovereign immunity" for liability for the negligence of its employees. The right to
health and health care is protected under Article 21 of the Constitution of India, as a right to
life and reach of which can move the Supreme Court on High Court through writ petition.
Practice of medicine is capable of rendering great service to the society provided due care,
sincerity, efficiency and skill are observed by doctors. When doctors performed their duties
towards the patient negligently in a Government hospital, the servants of the state violated the
fundamental right of the patient, guaranteed under Article 21 of the Constitution.

Legal Issues Involved, Response Of Judiciary AND POSSIBLE SOLUTION

1) Legal issue -The first Issue Regarding The Medical Negligence Cases Is The ‘Higher
Duty Of Care Rule....

Judicial responses – in cases Dr. Khusaldas Pammandas6, Achutrao Haribhau

Khodwa,7 and Spring Meadows Hospitals V. Harjot Ahluwalia8 are some illustrative
cases where the Supreme Court has applied the ‘higher duty of care rule’ in deciding the
negligence of the doctors. Recently the Supreme Court refrained to take a liberal approach in
establishing medical negligence and emphasized on accountability and higher duty of care in
medical profession in B. Jagadish V. State Of A.P9.

5
(1993) 2 SCC 746: AIR 1993 SC 1960:1993 Cr LJ 2899
6
Dr. Khusaldas Pammandas v.State of M.P., AIR 1960 50.
7
Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634.
8
(1998) 4 SCC 39.
9
(2009) 1 SCC 681.
Possible solution “While doctors who cause death or agony due to medical negligence
should certainly be penalized, it must also be remembered that like all professionals doctors
too can make errors of judgment but if they are punished for this no doctor can practice his
vocation with equanimity. Indiscriminative proceedings and decisions against doctors are
counterproductive and serve society no good.
Before referring matter to court or consumer protection forum a competent doctor or
committee of doctors, specialized in the field relating to which the medical negligence is
attributed and only after that doctor or committee reports that there is prima facie case of
medical negligence should notice be then issued to the concerned doctor or hospital. This is
necessary to avoid harassment to doctors who may not be ultimately found to be negligent”.

2) Legal issue When A Doctor Trespass The Field And Jump Into Another Medical
Field.

Judicial response- Poonam Verma V. Ashwin Patel and Ors 10a doctor registered as
medical practitioner and entitled to practice in Homoeopathy only, prescribed an allopathic
medicine to the patient. As result The patient died. The doctor was held to be negligent and
liable to compensate the wife of the deceased.

Possible solution -, The medical council should prescribed heavy fine and / or
punishment to keep such malpractice under a check.

3) LEGAL ISSUE Doctors Duty To Attend To A Patients Other Than Busy In His Own
Clinic.

Judicial response - Shishir Rajan V. The State Of Tripura11 the petitioner son was
admitted to emergency ward of G.B Hospital, Agartala. The senior specialist Doctor. P. Roy
was not available in the hospital. He was repeatedly called to attend the patient. But he was
busy attending to his private patients and did not bother to come to the hospital to attend the
accident victim. As result patients died.

10
1996 (4) SCC 332.
11
A.I.R 2002 Gauhati 102.
Possible solution- medical ethics should be inculcated in the medical students of our
country so that they go on to became a ethical medical professionals and contribute in the
social welfare of the country by providing there sincere medical services.

4) Legal issue Doctor And Hospital Authority Acting In Callous Manner.

Judicial Response- Gian Chand V Vinod Kumar Sharma12 in this case a minor child
aged 3 year fell into bucket of hot water and sustained burn injury was admitted to surgical
ward and the shifted to children medical care due to burn injury she could not be clothed and
she should not have been exposed to the vagaries of weather besides she should have been
kept in warmest place available. But the appellate that were charge of children warden get
angry as she was surgical case and made shifted to the veranda outside in the month of
January as result she died of pneumonia.
Jasbir Kaur V. State Of Punjab13 – in this case the newly born child was missing from the
government hospital after the hue and cry from the child and relatives the child was found
profusely bleeding condition and with one eye totally gauged out with the eyeball the hospital
authority claimed that the child was taken by the cat who caused damage to him.

POSSIBLE Solution The only solution for the problem is that the doctor and hospital
authority must understand their moral and legal duty towards the patients and the family of
the patients who are ultimately sufferer of the problem

5)LEGAL ISSUE Deficiency In The Service Of The Doctor And Wrongful Treatment Of
The Patients Without Justification.

Judicial responses -C. Sivakar V. Dr. John Mathur & Another14 the
complainant had the problem blockage of urine. The opposite party, a doctor, in an attempt to
perform the operation for curing the problem totally cut off the complainant penis .there was
enormous bleeding and now complainant could not pass the urine and permanently impotent.

12
A.I.R 2008 H.P. 97.
13
A.I.R 1995 P. & H. 278.
14
III (1998) CPJ 436 (TAMIL NADU S.C.D.R.C)
Possible solution The patients by and large are ignorant about the disease or side or
adverse affect of a surgery. Ordinarily the patients are to be informed about the admitted risk,
if any.
Conclusion
Now a day’s medical profession have shown a decline and this can be attributed to the
overwhelming Impact of commercialization of the sector. There are reports against doctors of
exploitative medical practices, misuse of diagnostic procedures, etc. medical profession has
been unable to isolate them effectively. Two basic propositions laid down in law regarding
liability for negligence are: firstly, "Breach of Duty" to care and secondly, standard of care,
i.e. the practitioner must bring to his task a reasonable degree of skill, knowledge and
exercise a reasonable degree of care with caution. Supreme Court has made necessary
guidelines for protection in order to secure life and health of individuals.