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HEALTH LAW

Professional
Liability
of
Hospitals

LIST OF CASES
1. Acchutrao Haribhau Khodwa v. State of Maharashtra
2. Andrews v. Director Public Prosecution
3. Aparna Dutta v. Apollo Hospitals Enterprises Ltd
4. Arland v. Taylor
5. Asha Devi Paris v. Stepney Borough Council
6. A.S.Mittal v. State of UP
7. Balton v. Stone
8. Bolam v. Friern Hospital Management Committee
9. Booker v. Wenborn
10. Blyth v. Birmingham Waterworks Co
11. Cates v. Mongini Brothers
12. Devi v. Uttam Bhoi
13. Glasgow Corporation v. Muir
14. Indian Medical Association v. V.P. Shantha and Ors
15. Ishwar Devi v. Union of India
16. Jacob Mathew v. State of Punjab
17. Joseph @ Pappachan v. Dr. George Moonjerly
18. Kusum Sharma v. Batra Hospital

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19. Laxman v. Trimbak


20. Makbool Ahmed v. Bhura Lal
21. Mata Prasad v. Union of India
22. Makbool Ahmed v. Bhura Lal
23. Meadows Hospital & Anr. v. Harjol Ahluwalia & Anr ,
24. M. K. Gourikutty & etc. v. M. K. Madhavan and Ors
25. Mr. M Ramesh Reddy v. State of Andhra Pradesh
26. Municipal Corporation of Delhi v. Subhagwanti & Ors
27. Nirmala v. Tamil Nadu Electricity Board
28. Orissa Road Transport Co. Ltd. v. Umakant Singh
29. Pandian Roadways Corp. v. Karunanithi
30. Paschim Bangal Khet Mazdoor Samity & Ors v. State of West Bengal
31. Poonam Verma v. Ashwin Patel
32. Punjab State v. Surinder Kaur
33. Rajmal v State of Rajasthan
34. R. P. Sharma v. State of Rajasthan
35. Rural transport Service v. Bezlum Bibi
36. Ryan v. Youngs
37. S. Dhanaveni v. State of Tamil Nadu
38. Smt. Rekha Gupta v. Bombay Hospital Trust & Anr

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39. State of Haryana v. Santra


40. State of Punjab v. Shiv Ram

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INTRODUCTION
Medical profession is the one of the noblest profession among all other professions in India.
For a patient, the doctor is like God. And, the God is infallible. But that is what the patient
thinks. In reality, doctors are human beings. And, to err is human. 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.
I 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 employers level i.e., hospital.

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NEGLIGENCE
It is very difficult to define negligence; however, the concept has been accepted in
jurisprudence. The authoritative text on the subject in India is the Law of Torts by Ratanlal
and Dhirajlal.1 Negligence has been discussed as:
Negligence is the breach of a duty caused by 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. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a
person to whom the defendant owes the duty of observing ordinary care and skill, by which
neglect the plaintiff has suffered injury to his person or property.
The definition involves three constituents of negligence:
(1) A legal duty to exercise due care on the part of the party complained of towards the party
complaining the former's conduct within the scope of the duty;
(2) Breach of the said duty; and
(3) Consequential damage.
Essentials
In an action for negligence, the plaintiff has to prove the following essentials:
The defendant owed duty of care to the plaintiff;
The defendant made the breach of that duty;
The defendant suffered damage as consequence thereof.

Let us now discuss these essentials in details


1. Duty of care to the plaintiff:
1 Law of Torts, Ratanlal & Dhirajlal, Twenty-fourth Edition 2002, edited by Justice G.P.
Singh; pp.441-442
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It would be absurd to hold any person liable for his every careless act or even for every
careless act that causes damage. He may only be liable in negligence if he is under a legal
duty to take care. Legal duty is different from the moral, religious or social duty and
therefore, the plaintiff (consumer) has to establish that the wrongdoer owed to him a specific
legal duty to take care of which he has made a breach. A person is only required to meet the
standard of care where he has an obligation or a duty to be careful. Thus it may be said that
the duty is the relation between individuals who imposes upon one a legal obligation for
the benefit of other. Put in other terms the duty is an obligation, recognized by law, to
avoid conduct fraught with unreasonable risk of danger to others. Thus the existence of duty
towards the plaintiff becomes important factor for fixation of the liability of the tortfeasor.
Duty depends on reasonable foreseeability of injury:
Whether the defendant owes a duty to the plaintiff or not depends on reasonable
foreseeability to the plaintiff. If at the time of the act or omission, the defendant could
reasonably foresee injury to the plaintiff he owes a duty to prevent that injury and failure to
do that makes him liable. Duty to take care is the duty to avoid doing or omitting to do
anything, the doing or omitting to do which may have as its reasonable and probable
consequence injury to others, and the duty is owed to those to whom injury may reasonably
and probably be anticipated if the duty is not observed.2
Lord Macmillan explained the standard of foresight of a reasonable man in Glasgow
Corporation v. Muir3 as follows:
The standard of foresight of the reasonable man is, in one sense, an impersonal test.
It eliminates the personal equation and is independent of the idiosyncrasies of the
particular person whose conduct is in question. Some persons are by nature unduly
timorous and imagine every path beset with lions. Others, of more robust
temperament, fail to foresee or nonchalantly disregard even the most obvious
dangers. The reasonable man is presumed to be free both from apprehension and
from over confidence, but there is a sense in which the standard of care of the
reasonable man involves in its application a subjective element.
2 Bourhill v.Young, (1943) A.C 92
3 (1943) A.C. 448.
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It is still left to the judge to decide what, in the circumstances of the particular case, the
reasonable man would have had in contemplation and what accordingly, the party sought to
be made liable ought to have foreseen. Here, there is room of diversity of viewsWhat to
one judge may seem far-fetched to another both natural and probable.
In Booker v. Wenborn4, the defendant boarded a train which had just started moving but kept
the door of carriage open. The door open outside, and created a danger to those standing on
the platform. The plaintiff, a porter, who was standing on the edge of the platform was hit by
the door and injured. It was held that the defendant was liable because a person boarding a
moving train owed a duty of care to a person standing near it on the platform.
In S. Dhanaveni v. State of Tamil Nadu5, the deceased slipped into a pit filled with rain
water in the night. He caught hold of nearby electric pole to avert a fall. Due to leakage of
electricity in the pole, he was electrocuted. The respondent, who maintained the electric pole
was considered negligent and was held liable for the death of the deceased.
In another case named Rural transport Service v. Bezlum Bibi6, the conductor of an
overloaded bus invited the passengers to travel on the roof of the bus. On the way, the bus
swerved on the right side to overtake a cart. One of the passengers on the roof of the bus,
Tahir Seikh, was struck by an overhanging branch of a tree. He fell down and received
multiple injuries on the head, chest etc. and as a consequence thereof he died. In an action by
Bezlum Bibi, the mother of the deceased, it was held that there was negligence on the part of
both the driver and conductor of the bus, and the defendant was held liable for the same. In
this case it was observed that inviting passengers to travel precariously on the top of an
overcrowded bus is itself a rash and negligent act and that part when passengers were being
made to travel on the roof, a greater amount of care and caution on the part of the driver was
called for so that his leaving the metallic track by swerving on the right so close to a tree
with over hanging branch for overtaking a cart while in speed is also a rash and negligent act.
In another case named Ishwar Devi v. Union of India7 it was held negligent to start a bus
before passengers get into it.
4 (1962) 1 All E.R.431
5 A.I.R. 1997 Mad.257
6 A.I.R. 1980 Cal 165
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In Makbool Ahmed v. Bhura Lal8 also it was held that the driver and the conductor owe a
duty of care towards passengers.
In Muncipal Corporation of Delhi v. Subhagwanti9 a clock tower situated in the heart of the
city, i.e. Chandini Chowk, Delhi collapsed causing the death of a number of persons. The
structure was 80 years old whereas its normal life was 40-45 years. The Municipal
Corporation of Delhi, which was having control of the structure had obviously failed to get
the periodical check up and the necessary repairs done. The defendant corporation was,
therefore, held liable to pay compensation for the consequences of the collapse of the
structure.
In Mata Prasad v. Union of India1011 the gates of a railway crossing were open. While the
driver of truck tried to cross the railway line, the truck was hit by an incoming train. It was
held that when the gates of the level crossing were open, the driver of the truck could assume
that there was no danger in crossing the railway track. There was negligence on the part of
the railway administration and they were, therefore held liable.
In case of Orissa Road Transport Co. Ltd. v. Umakant Singh 11, the bus driver was held
liable for the death of two passengers as he tried to cross the level crossing but could not do
so due to mechanical defect in the truck. There was enough time to cross the level crossing
and he was aware of the mechanical defect. Thus, he was held negligent.
No liability when injury not foreseeable:
No liability can be levied on the defendant if it can be proved that he, in any reasonable
circumstances, could not foresee the injury. The following cases will make this point clear:

7 A.I.R. 1969 Del 183


8 A.I.R. 1986 Raj 176
9 A.I.R. 1966 S.C. 1750
10 A.I.R. 1978 All, 303
11 ACJ 133
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In Cates v. Mongini Brothers12, the plaintiff, a lady visitor to a restaurant was injured by the
falling of ceiling fan on her. The reason for the falling of the fan was a latent defect in the
mental suspension rod of the fan. The defect could not have been discovered by a reasonable
man. In an action against defendant who were running the restaurant, it was held that since
the harm was not foreseeable, they were not negligent and therefore were not liable for the
lady plaintiff.
In Ryan v. Youngs13, the defendants servant, while driving a lorry, suddenly died, which
resulted in an accident and consequent injury to the plaintiff. The driver appeared to be quite
healthy and the defendant could not foresee his sudden death. It was held that the accident
was due to an Act of God and the defendant was not liable for the same.
Reasonable foreseeability does not mean remote possibility:
To establish negligence it is not enough to prove that the injury was foreseeable, but a
reasonable likelihood of the injury has to be shown because foresee ability does not include
any idea of likelihood at all. The duty is to guard against probabilities rather than bare
possibilities. In Fardon v. Harcourt Rivington14 , the court set out the reasonable man test for
foresee ability. If the possibility of danger emerging is reasonably apparent, then to take
precautions is negligence; but if the possibility of danger emerging is only a mere possibility
which would never occur to the mind of reasonable man, then there is no negligence in not
having taking extraordinary precautions.
In Devi v. Uttam Bhoi15 a boy of about 7-8 years was hit by a truck at about 2:30p.m. in the
broad daylight, as a result of which he received multiple injuries. It was held that the driver
while negotiating a place frequented by children should have taken greater care as the
behavior of the children is unpredictable. From the nature of injuries received, negligence on
the part of the driver was presumed and he was held liable.

12 (1917) 19 Bom L.R. 778


13 (1938) I All E. R. 532
14 (1932) 146 L.T. 391
15 A.I.R. 1974 Orissa 207
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In Balton v. Stone16, a batsman hit a ball and the ball went over a fence and injured a person
on the adjoin highway. This ground had been used for about 90 years and during the last 30
years, the ball had been hit in the highway on about six occasions but no one had been
injured. The Court of Appeal held that the defendants were liable for negligence. But the
House of Lords held that the defendants were not liable on the basis of negligence.
2. Breach of Duty
The second important essential to hold the tortfeasor liable in negligence is that the defendant
must not only owe a duty of care to the plaintiff, but also he must be in breach of it. The test
for deciding whether there has been a breach of duty was laid down in oft-cited dictum of
Alderson B, in Blyth v. Birmingham Waterworks Co.17 case, wherein it was held that
negligence is breach of duty caused by the omission to do something which a reasonable
man, guided upon those considerations which ordinarily regulate the conduct of human
affairs, would do, or doing something which a prudent and reasonable man would not do.
In the above definition of the breach of duty, the emphasis is on the conduct of a reasonable
man which is a mythical creature of law whose conduct is the standard by which the Courts
measure the conduct of all other persons and find it to be proper or improper in particular
circumstances as they may exist from time to time.
The House of Lords, in Arland v. Taylor has summarized the characteristics of the
reasonable man according to which he is not extraordinary, or unusual creature; he is not
a superhuman; he is not required to display the highest skill of which anyone is capable; he is
not a genius who can perform uncommon feats, nor is he possessed of unusual powers of
foresight. Rather, he is a person of normal intelligence who makes prudence a guide to his
conduct. He does nothing that a prudent man would not do and does not omit to do anything
a prudent person would do. He acts in accord with general and approved practice. His
conduct is guided by considerations which ordinarily regulate the conduct of human affairs.
His conduct is the standard adopted in the community by persons of ordinary intelligence
and prudence. Thus the standard of care to be in determining the breach of duty by the
defendant, the courts are guided by an objective standard whose degree would vary from
16 (1951) A.C. 850
17 (1856) 11 Ex 781
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case to case, i.e. higher the magnitude of risk greater degree of standard of care would be
needed.
Further there are two factors in determining the magnitude of risk, i.e.
(i) the seriousness or the gravity of the injury risked; and
(ii) the likelihood of the injury being in fact caused.
In Nirmala v. Tamil Nadu Electricity Board case, the plaintiffs husband while at work in
his farm was electrocuted and died instantaneously as he came in contact with a live wire
that had snapped. Holding the defendants liable in negligence, the court noted that the
defendants have failed to ensure proper maintenance as a result wires snapped and further
that they had failed to provide a device whereby the snapped wire would have automatically
become dead and harmless.18
In Bhagwat Sarup v. Himalaya Gas Co., the plaintiff booked replacement of a cooking gas
cylinder with the defendant, who had the gas agency in Shimla. The defendants delivery
man took a cylinder into the plaintiffs house. The cap of the cylinder being defective, he
tried to open it by knocking at the same with the axe. This resulted in damage to the cylinder
and leaking of gas therefrom. Some fire was already burning in the kitchen and the leaked
gas caught fire. As a consequence of the fire, the plaintiffs daughter died, some other family
members received severe burn injuries and some property inside the house was destroyed by
fire. It was held that the defendants servant was negligent in opening the cylinder and the
defendant was held liable for consequences of such negligence. So far as the magnitude of
risk is involved, it may be noted that it depends from case to case.
In Paris v. Stepney Borough Council19, the plaintiff who had only one healthy eye was
blinded in the course of employment. The plaintiff contended that the employers omitted to
18 AIR 1984 Mad 201; See, also, Kerala State Electricity Board v. Suresh Kumar, 1986
ACJ 998 wherein a minor boy came in contact with overhead electric wire which had
sagged to 3 feet above the ground, got electrocuted thereby and received burn injuries. The
Electricity Board had a duty to keep the overhead wire 15 feet above the ground. The
Board was held liable for breach of its statutory duty.
19 [1951] AC 367
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provide him with goggles and thus were in breach of their duty to take reasonable care of his
safety because, they must have known that the consequences of an accident to his good eye
would be particularly disastrous. The court held the defendant liable.
In State of M.P. v. Asha Devi20 an accident was caused by police vehicle colliding with a
culvert. The vehicle toppled, as a result of which five constables were killed. The speed of 30
km. at the relevant time was considered to be excessive even though it was a highway,
because when it a crowded road or at the road zigzag and narrow culverts are there, where
only one vehicle can pass, the speed of 30 km. will be high as the vehicle cannot be
controlled in such a situation. Another factor indicating negligence was that 4-5 persons were
sitting by the side of the driver and there was no space to change the gears so as to stop the
vehicle.
3. Breach of Duty must have caused the Damage:
The third and last essential of negligence is that the plaintiff is required to prove the causal
connection between the breach of duty and the damage, i.e. where some fault is attributed to
the defendant, the plaintiff must prove that the defendant was negligent. The same may be
seen in Madras High Court decision in Pandian Roadways Corp. v. Karunanithi. In this
case, three immature boys were riding a bicycle. On seeing some dogs fighting ahead, they
lost the balance and fell down. The driver of a bus saw the boys falling but did not
immediately apply the brakes, as a result of which the bus ran over the right arm of one of
those boys. The failure of the driver to stop the bus was held to be a clear case of negligence
on his part. However, if the plaintiff fails to prove negligence on part of the defendant, the
defendant would not be made liable. This situation may be explained by a case decided by
the House of Lords, wherein the court observed that:
the party seeking to recover compensation for damage must make out that the party
against whom he complains was in the wrong. The burden of proof is clearly upon
him, and he must show that the loss is to be attributed to the negligence of the
opposite party. If at the end, he leaves the case in even scales, and does not satisfy

20 A.I.R. 1989 ACJ 998


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the court that it was occasioned by the negligence or default of the other party, he
cannot succeed.21
The above observation lays emphasis on the neglect of the defendant and imposes a duty
upon the plaintiff to prove the causal linkage between negligent act and the damage, i.e. to
say that the burden of proof in such cases lies on the plaintiff. The initial burden of proof at
least a prima facie case of negligence as against the defendant lies on the plaintiff. However,
there are certain cases wherein the plaintiff need not prove that and the inference of
negligence is drawn from the facts alleged by the plaintiff. There is a presumption of
negligence according to the maxim Res Ipsa Loquitor which means that thing speaks for
itself. When the accident (defect in goods or deficiency in services) explains only one thing
that the accident or such defect in goods/deficiency in service would not have occurred
unless the defendant had been negligent, the law raises a presumption of negligence on the
part of the defendant. The plaintiff, in order to claim benefit of the maxim res ipsa loquitor,
has to meet three important requirements for its application:
(i)

That the thing causing the damage was in the control of the defendant or his
servants, or agents;

(ii) That accident must be such as would not in the ordinary course of things have
happened without negligence; and
(iii)

That there is absence of explanation of the actual cause of the accident.

In Municipal Corporation of Delhi v. Subhagwanti & Ors 22, the Clock Tower at Chandani
Chowk in Delhi, collapsed causing death of the plaintiffs husband, was found to be
exclusive by under the ownership and control of the appellant or its servants. The Chief
Engineer stated that the collapse of the Clock Tower was due to thrust of the arches on the top
portion and the mortar had deteriorated to such an extent that it was without any cementing
properties. The court, on the basis of evidence came to a conclusion that the mere fact that
there was a fall of the Clock Tower tells its own story in raising an inference of negligence so
as to establish a prima facie case against the appellants (the defendants).
21 AIR 1982 Mad 104
22 (1974) 1 S C C 690
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Similarly in Acchutrao Haribhau Khodwa v. State of Maharashtra,23 the plaintiffs wife


was hospitalized in a government hospital and was operated. The doctors while performing a
sterilization operation left the mop in the body of the patient which resulted in formation of
puss and eventually leading to death subsequently. It was held that negligence was writ large
and the surgeon performing that operation and the government were liable as res ipsa
loquitor could be attracted.
Thus from the above it is clear that in order to make a successful claim in tort of negligence,
the plaintiff has to prove three broad essentials. These essentials are equally significant while
deciding consumer grievances either alleging deficiency in services or defects in goods. The
duty of care may accrue through various modes discussed above. However, it may be noted
that existence of duty of care does not pose any serious difficulty in consumer cases as the
cases are directly related to the service provided/or defective goods supplied. But a
beneficiary of services or user of a product may have to prove existence of duty towards him.
As discussed above, it may be kept in mind that the standard of care is to be judged from the
view of a reasonable man. The reasonable man is not a super- human, or a perfectionist but is
a mythical creature which helps the courts in determining the want of standard of care on part
of the defendant. Further that the alleged breach of duty must be legal and not moral, social
etc. This duty may arise by a negligent act in manufacture, supply or sale of defective goods
or deficient services resulting in damage to the consumers. Further that the plaintiff consumer
will have to prove a causal linkage between the breach of duty and the damage suffered by
him. Unless the damage is causally related to the breach of duty of the defendant, the plaintiff
may not succeed in his action for damages.

PROFESSIONALS
According to the English language, a professional is a person doing or practicing something
as a full-time occupation or for payment or to make living and that person knows the special
conventions, forms of politeness, etc. associated with a certain profession. Professionals are
subject to professional code and standards on matters of conduct and ethics, enforced by
professional regulatory authorities and they enjoy high status and respect in the society.

23 AIR 1996 SC 2377


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Professional Liability
It covers all aspects of professionals to follow codes of conduct when providing care or
services in their field. In the event of the failure to adhere to the professional codes of ethics
by the service provider a professional liability claim can be filed for.
Negligence by Professionals
In 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.
A professional may be held liable for negligence on one of the findings of two: one, either he
was not possessed of the requisite skill which he professed to have; or two that, he did not
exercise, with reasonable competence in a given case, the skill which he did profess.

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NEGLIGENCE BY MEDICAL PROFESSIONALS


A person who holds himself out as ready to give medical advice or treatment impliedly
undertakes that he is possessed of skill and knowledge for the purpose. Such a person,
whether he is medical practitioner or not, who is consulted by a patient, owes him certain
duties, namely a duty of care in deciding whether he undertakes the case; a duty of care in
deciding what treatment to give and duty of care in his administration of that treatment. A
breach of any of these duties will support an action for negligence by patient.
In Jacob Mathew24 case, the Supreme Court of India has gone into details of what is the
meaning of negligence by medical professionals.
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, 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

24 (2005) 6 SCC 1
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would fail if the equipment was not generally available at that particular time (that is, the
time of the incident) at which it is suggested it should have been used.
Degree of Negligence
The Delhi High Court laid down in 2005 that in civil law, there are three degrees of
negligence25:
(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.
As regards medical negligence, the legal position has been described in several leading
judgments. Some of these are given below:
Bolam v. Friern Hospital Management Committee26
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

25 Smt. Madhubala v. Government of NCT of Delhi 2005 (118) DLT 515


26 (1957) 2 All ER,
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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.
Jacob Mathew v. State of Punjab27
In this case 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 analyzed 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.
The Supreme Court in Laxman v. Trimbak28 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 Maharashtra 29 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
27 (2005) 6 SCC 1
28 AIR 1969 SC 128 29 AIR 1996 SC 2377
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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."
In Spring Meadows Hospital & Anr. v. Harjol Ahluwalia & Anr.29 the Apex Court has
specifically laid down the following principles for holding doctors negligent:
Gross medical mistake will always result in a finding of negligence. Use of wrong
drug or wrong gas during the course of anaesthetic will frequently lead to the
imposition of liability and in some situations even the principle of res ipsa loquitur
can be applied. Even delegation of responsibility to another may amount to
negligence in certain circumstances. A consultant could be negligent where he
delegates the responsibility to his junior with the knowledge that the junior was
incapable of performing of his duties properly. We are indicating these principles
since in the case in hand certain arguments had been advanced in this regard, which
will be dealt with while answering the questions posed by us.
In A.S.Mittal v. State of U.P.30, an irreparable damage was done to the eyes of some of the
patients who were operated at an eye camp organized by the government of Uttar Pradesh.
Some of the patients who underwent surgery could never see the light of the day, i.e.
whatever little vision they had even that was lost. The apex court coming heavily on the
erring doctors held that, the law recognizes the dangers which are inherent in surgical
operations and that will occur on occasions despite the exercise of reasonable skill and care
but a mistake by a medical practitioner which no reasonably competent and a careful
practitioner would have committed is a negligent one. The compensation was awarded.

29 (1998) 4 SCC 39 at 47,


30 AIR 1989 SC 1570
Page | 19

Further, in State of Haryana v. Santra31 the court upheld the decree awarding damages for
medical negligence on account of the lady having given birth to an unwanted child due to
failure of sterilization operation because it was found on facts that the doctor had operated
only the right fallopian tube and had left the left fallopian tube untouched. The patient was
informed that the operation was successful and was assured that she would not conceive a
child in future. A case of medical negligence was found and a decree for compensation in tort
was held justified.
However, the apex court has explained in State of Punjab v. Shiv Ram32 , that merely
because a woman having undergone a sterilization operation becoming pregnant and
delivering a child thereafter, the operating surgeon or his employer cannot be held liable on
account of the unwarranted pregnancy or unwanted child. Failure due to natural causes, no
method of sterilization being fool proof or guaranteeing 100% success, would not provide
any ground for a claim of compensation. The court after referring to several books on
Gynecology and empirical researches concluded that authoritative text books on
gynecology and empirical researches recognize the failure rate of 0.3% to 7% depending on
the technique chosen out of several recognized and accepted ones.
Poonam Verma v. Ashwin Patel33, reflects yet another reckless act on part of the doctor. In
this case a doctor who was registered as a medical practitioner and was entitled to practice in
homoeopathy was found to be guilty of negligence for prescribing allopathic medicines
resulting in the death of the patient. The doctor was grossly negligent and in clear breach of
duty as a doctor. He defied all sense of logic and forgot his ethics. It is submitted that it
would have been better had the doctor been prosecuted under criminal negligence as he
violated section 15(3) of the Medical Council Act, 1956.
In one of the most recent decision in Kusum Sharma v. Batra Hospital34, the Honble
Supreme Court has settled the law relating medical negligence. Mr. Dalveer Bandari, J.,
scrutinizing the cases of medical negligence both in India and abroad specially that of the
31 (2000) 5 SCC 182
32 (2005) 7 SC 1
33 AIR 1996 SC 2111
34 (2010) 3 SCC 480
Page | 20

United Kingdom has laid down certain basic principles to be kept in view while deciding the
cases of medical negligence. According to the court, while deciding whether the medical
professional is guilty of medical negligence, the following well-known principles must be
kept in view:
1. Negligence is the breach of a duty exercised 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.
2. Negligence is an essential ingredient of the offence. The negligence to be established
by prosecution must be culpable or gross and not the negligence based upon the error
of judgment.
3. The medical professional is expected to bring a reasonable degree of skill and
knowledge and must exercise a reasonable degree of care. Neither very highest nor a
very low degree of care and competence judged in the light of the particular
circumstances of each case is what the law requires.
4. A medical practitioner would be liable only where his conduct fell below that of the
standards of a reasonably competent practitioner in his field.
5. In the realm of diagnosis and treatment there is scope for genuine difference of
opinion and one professional doctor is clearly not negligent merely because his
conclusion differs from that of the other professional doctor.
6. The medical professional is often called upon to adopt a procedure which involves
higher element of risk, but which he honestly believes as providing greater chances of
success for the patient rather than a procedure involving lesser risk but higher
chances of failure. Just because a professional looking to the gravity of illness has
taken higher element of risk to redeem the patient out of his/her suffering which did
not yield the desired result may not amount to negligence.
7. Negligence cannot be attributed to a doctor so long as he performs his duties with
reasonable skill and competence. Merely because the doctor chooses one course of

Page | 21

action in preference to the other one available, he would not be liable if the course of
action chosen by him was acceptable to the medical profession.
8. It would not be conducive to the efficiency of the medical profession if no doctor
could administer medicine without a halter round his neck.
9. It is our bounden duty and obligation of the civil society to ensure that medical
professionals are not unnecessarily harassed or humiliated so that they can perform
their professional duties without fear and apprehension.
10. The medical practitioners at times have to be saved from such a class of complainants
which

use

criminal

process

as

tool

for

pressurizing

the

medical

professionals/hospitals, particularly private hospitals or clinics for extracting uncalled


for compensation. Such malicious proceedings deserve to be discarded against the
medical practitioners.
11. The medical professionals are entitled to get protection so long as they perform their
duties with reasonable skill and competence and in the interest of the patients. The
interest and welfare of the patients have to be paramount for the medical
professionals.
The court did not rest the case here, i.e. by laying down eleven principles for determining the
breach of duty by medical professionals/hospitals, but went a step ahead by observing that,
In our considered view, the aforementioned principles must be kept in view while deciding
the cases of medical negligence. The court further adds a word of caution by stating that,
We should not be understood to have held that doctors can never be prosecuted for
medical negligence. As long as the doctors have performed their duties and exercised
an ordinary degree of professional skill and competence, they cannot be held guilty of
medical negligence. It is imperative that the doctors must be able to perform their
professional duty with free mind.
The above listing of basic principles with a direction that they must be kept in view while
deciding the cases of medical negligence reflects the judicial attitude of the Honble apex
court. It may be noted that any decision, judgment passed by the Supreme Court becomes
law of the land and is automatically binding on all other lower courts in the country by
Page | 22

virtue of Article 141 of the Constitution of India. 35 Thus the above principles must be taken
as law of the land on medical negligence.

35 Article 141 reads: Law declared by the Supreme Court shall be binding on all courts
within the territory of India.
Page | 23

MEDICAL NEGLIGENCE - A CIVIL WRONG OR CRIMINAL


OFFENCE
The term negligence is used for the purpose of fastening the defendant with liability under
civil law (the law of torts) and, at times, under the criminal law. But often it is alleged by the
plaintiffs that negligence is negligence and that no distinction can be drawn between the two
so far as it relates to breach of his duty and resultant damage. Explaining the difference
between the two, Lord Atkin in his speech in Andrews v. Director Public Prosecution, stated:
Simple lack of care such as will constitute civil liability is not enough for
purposes of the criminal law there are degrees of negligence; and a very high degree
of negligence is required to be proved before the felony is established.36
Thus for negligence to be an offence, the element of mens rea (guilty mind) must be shown
to exist and the negligence should be gross or of very high degree.37

36 (1937) 2 All ER 552 (HL)


37 See, Charlesworth & Percy on Negligence, 10th Edn, 2001, para 1.13; A clear distinction
exists between simple lack of care incurring civil liability and very high degree of
negligence which is required in criminal cases. Also there is a marked difference as to
evidence, viz. the proof, in civil and criminal proceedings.
Page | 24

In Criminal law, negligence or recklessness must be of such a high degree as to be held


gross. The apex court in Jacob Mathew v. State of Punjab, has explained that; the
expression rash and negligent act occurring in Section 304-A of the I.P.C should be qualified
by the word grossly. 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 has resulted was most likely imminent. 39 From the above it may be
inferred that the distinction between civil and criminal liability in medical negligence lies in
the conduct of the doctor which should be of gross or reckless or of a very high degree.

MEDICAL NEGLIGENCE AND HOSPITALS


Hospitals in India may be held liable for their services individually or vicariously. They can
be charged with negligence and sued either in criminal/ civil courts or Consumer Courts. As
litigations usually take a long time to reach their logical end in civil courts, medical services
have been brought under the purview of Consumer Protection Act, 1986 wherein the
complainant can be

granted compensation

for

services

deficiency

in

within

stipulated time of 90

-150 days.

Cases, which do not

come

purview of Consumer

Protection Act, 1986

(e.g.,

where

treatment is routinely

provided free of cost

at non-government or

cases

under

the

government hospitals, health centres, dispensaries or nursing homes, etc.) can be taken up
with criminal courts where the health care provider can be charged under Section 304-A IPC
for causing damages amounting to rash and negligent act or in Civil Courts where
compensation is sought in lieu of the damage suffered, as the case may be.
Proceedings, a mere preponderance of probability is sufficient, and the defendant is not
necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings the
persuasion of guilt must amount to such a moral certainty as convinces the mind of the court,
as a reasonable man beyond all reasonable doubt. (Refer Syed Akbar v. State of Karnataka,
(1980) 1 SCC 30, para 28); Also see, Dr. Suresh Gupta v. Govt. of N.C.T. of Delhi, AIR 2004
Page | 25

SC 4091, wherein the court explaining distinction between civil and criminal liability held
that for fixing criminal liability on a doctor or surgeon the standard of negligence required
to be proved should be so high as can be described as gross negligence of recklessness.
mere inadvertence or some degree of want of adequate care and caution might create a civil
liability but would not suffice to hold him criminally liable.
Liability of hospitals in cases of negligence
Hospitals liability with respect to medical negligence can be direct liability or vicarious
liability. Direct liability refers to the deficiency of the hospital itself in providing safe and
suitable environment for treatment as promised. Vicarious liability means the liability of an
employer for the negligent act of its employees. An employer is responsible not only for his
own acts of commission and omission but also for the negligence of its employees, so long as
the act occurs within the course and scope of their employment. This liability is according to
the principle of respondeat superior meaning let the master answer. Employers are also
liable under the common law principle represented in the Latin phrase, "qui facit per alium
facit per se", i.e. the one who acts through another, acts in his or her own interests. This is a
parallel concept to vicarious liability and strict liability in which one person is held liable in
Criminal Law or Tort for the acts or omissions of another. An exception to the above principle
is borrowed servant doctrine according to which the employer is not responsible for
negligent act of one of its employee when that employee is working under direct supervision
of another superior employee [e.g. Where a surgeon employed in one hospital visits another
hospital for the purpose of conducting a surgery, the second hospital where the surgery was
performed would be held liable for the acts of the surgeon].
Direct liability
A hospital can be held directly liable for negligence on many grounds.
Failure to maintain equipments in proper working condition constitutes negligence. In case
of damage occurring to a patient due to absence/ non-working equipment e.g. oxygen
cylinder, suction machine, insulator, ventilator etc. the hospital can be held liable.
Failure to hand over copies of medical records, X-rays, etc., constitutes negligence or
deficiency in service. In India, a provision in respect of medical records has been made in

Page | 26

The Indian Medical Council [Professional Conduct, Etiquette and Ethics] Regulations
2002, Regulations 1.3.1 and 1.3.2 which state that every registered medical practitioner has
to maintain medical records pertaining to its indoor or outdoor patients for a period of at least
three years from the date of commencement of treatment in the prescribed form given by
MCI and if any request is made for medical records either by patient/ authorized attendant or
legal authorities involved, the same may be duly acknowledged and documents be issued
within the period of 72 hours. Also it must not be forgotten that it is the right of every patient
to obtain in writing about his/her medical illness, investigations and treatment given on a
prescription/discharge ticket. Non-providing of medical records to the patients/attendants
may amount to deficiency in service under the Consumer Protection Act, 1986.
Improper maintenance of cleanliness and/or unhygienic condition of hospital premises
amounts to negligence. In Mr. M Ramesh Reddy v. State of Andhra Pradesh38 the hospital
authorities were held to be negligent, inter alia, for not keeping the bathroom clean [in this
case the bathroom was covered with fungus and was slippery], 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.
A curious issue is that of liability in cases of polyclinics. Polyclinic means a place where
doctors of different specialties practice with common staff and other facilities. Since every
doctor is practicing individually, he would be responsible for his own negligence and not for
others. But a particular doctor may also be vicariously liable for negligence of staff of the
polyclinic, if the negligence occurs during the care of his particular patient in addition to the
polyclinic being held liable for the negligence of its staff. The other doctors may get involved
as partners of the polyclinic depending upon the agreement between them.
Where the ambulance service provider, usually a hospital, professes that the ambulance is
equipped with life-saving equipment and such equipment is either absent or non-functioning,
it is liable for negligence in case of a mishap. In the United Kingdom, even delay in arrival
of ambulance has been held negligent on the part of hospital as even a common man knows
the importance of properly equipped ambulance arriving on time in saving a life [Kent v.
Griffiths, (2002) 2 AII ER 474].

38 2003 (1) CLD 81 (AP SCDRC)


Page | 27

Levying of excess/wrong charges is considered as deficiency of service and can be claimed


under Consumer Protection Act and in Civil Court. Charging for a bed facility which was not
provided, taking surcharges, amount taken as medico legal charges etc. are examples where
hospitals can face litigations. A patient can file a complaint in Consumer Court if the hospital
charges fees in excess of that mentioned in the list of charges displayed or disclosed or
agreed upon.
With regards to HIV & HBsAg, most of the hospitals have made it mandatory to get all their
indoor patients investigated for HIV & HBsAg. These investigations are not a part of any
treatment and are done without prior consent of the patient. Carrying out such investigations
without the consent that too for reasons not related to the treatment of the patient can be
considered as unethical practice and either a complaint can be lodged with State Medical
Council or charges/ damages can be claimed through civil litigation or consumer forum. HIV
testing is either mandatory or voluntary. When testing is legally done without the consent of
the person, it is known as mandatory testing e.g., for screening donors of blood, semen,
organs or tissues in order to prevent transmission of HIV to the recipient of the biological
products. In all other circumstances, it has to be voluntary, i.e., with the knowledge and
express written consent of the person as it is necessary to respect the individuals need to
maintain confidentiality.
Hospitals can be charged with negligence for transmission of infection 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.
As applicable to any other organization, hospitals too cannot blankly refuse to give
employment on the basis of an individuals HIV status. It depends on what job a particular
person is to be employed for. A zero-positive individual can be employed if there is no
question of him/her coming in contact with patients or procedures that can result in spread of
infection. If any person on the rolls of a hospital is found to be zero positive or develops
AIDS, the hospital should review that persons staff privileges and determine whether or not
the medical condition interferes with the persons ability to perform on the job and whether
the condition creates a health risk to the patients. The Centre for Disease Control [CDC]
although does not advise that HIV positive individuals be routinely restricted from

Page | 28

performing surgery, it does recommend that the restrictions be determined on a case by case
basis. The employee could be given other duties in the hospital that involves lesser degree of
direct patient care or could be required to use extra safety precautions while dealing with
patients. There is no generally accepted medical evidence that HIV can be transmitted
through normal day to day contact in typical private workplace setting. The CDC has issued
guidelines that recognize that, with the exception of health care workers and personal service
workers who use instruments that pierce skin, no testing or restriction is indicated for
workers known to be infected with HIV but otherwise is able to perform their jobs. If any
hospital does not follow the guidelines and there results an infection of the patient, it can be
held directly responsible for negligence.
Misleading signboards, prescription slips and advertisements of hospitals can be construed as
deficiency in service or unfair trade practice under the Consumer Protection Act, 1986 and
damages can be awarded for such practices. Wrong claims of availability of certain facilities
like some hospitals claiming in their sign boards/prescription slips that 24 hr emergency
services are available in their setup but in fact they lack basic emergency facilities like
services of a doctor round the clock, necessary equipment in working order, intensive care
facilities etc. construes negligence. Wrong depiction of qualifications of doctor like MD
[Gyn.] against a doctors name creating an impression and misleading the patients that the
doctor possesses PG degree in Gynaecology whereas it was obtained from Germany and was
equivalent to MBBS as per rules of MCI may also be construed as negligence [1993 (1) CPR
422 (NCDRC)]. Claiming guaranteed results for operative procedures that do not give
desired outcome also amount to negligence.
Vicarious liability
A hospital can be held vicariously liable on numerous grounds on different occasions.
Several High Court Judgments have held hospitals vicariously liable for damages caused to
the patients by negligent act of their staff. In one judgment of the Kerala High Court in
Joseph @ Pappachan v. Dr. George Moonjerly 39, in support of the following effect stated
that persons who run hospital are in law under the same duty as the humblest doctor:
whenever they accept a patient for treatment, they must use reasonable care and skill to ease
39 1994 (1) KLJ 782 (Ker. HC)
Page | 29

him of his ailment. The hospital authorities cannot, of course, do it by themselves; they have
no ears to listen to the stethoscope, and no hands to hold the surgeons scalpel. They must do
it by the staff which they employ; and if their staffs are negligent in giving treatment, they
are just as liable for that negligence as anyone else who employs other to do his duties for
him.
In another judgment by the Madras High Court in Aparna Dutta v. Apollo Hospitals
Enterprises Ltd.40, it was held that it was the hospital that was offering the medical services.
The terms under which the hospital employs the doctors and surgeons are between them but
because of this it cannot be stated that the hospital cannot be held liable so far as third party
patients are concerned. It is expected from the hospital, to provide such a medical service and
in case where there is deficiency of service or in cases, where the operation has been done
negligently without bestowing normal care and caution, the hospital also must be held liable
and it cannot be allowed to escape from the liability by stating that there is no master-servant
relationship between the hospital, and the surgeon who performed the operation. The hospital
is liable in case of established negligence and it is no more a defence to say that the surgeon
is not a servant employed by the hospital, etc.
In another judgment by the National Consumer Redressal Commission in case of Smt. Rekha
Gupta v. Bombay Hospital Trust & Anr.41, related to negligence of a consultant doctor, the
Commission observed that the hospital who employed all of them whatever the rules were,
has to own up for the conduct of its employees. It cannot escape liability by mere statement
that it only provided infrastructural facilities, services of nursing staff, supporting staff and
technicians and that it cannot suo moto perform or recommend any operation/ amputation.
Any bill including consultant doctors consultation fees are raised by the hospital on the
patient and it deducts 20% commission while remitting fees to the consultant. Whatever be
the outcome of the case, hospital cannot disown their responsibility on these superficial
grounds.
The hospital authorities are not only responsible for their nursing and other staff, doctors, etc.
but also for the anaesthetists and surgeons, who practice independently but admit/ operate a
40 2002 ACJ 954 (Mad. HC)
41 2003 (2) CPJ 160 (NCDRC)
Page | 30

case. It does not matter whether they are permanent or temporary, resident or visiting
consultants, whole or part time. The hospital authorities are usually held liable for the
negligence occurring at the level of any of such personnel. Where an operation is being
performed in a hospital by a consultant surgeon who was not in employment of the hospital
and negligence occurred, it has been held that it was the hospital that was offering medical
services. The terms under which the defendant hospital employs the doctors and surgeons are
between them but because of this it cannot be stated that the hospital cannot be held liable so
far as third party patients are concerned. The patients go and get themselves admitted in the
hospital relying on the hospital to provide them the medical service for which they pay the
necessary fee. It is expected from the hospital, to provide such medical service and in case
where there is deficiency of service or in cases like this, where the operation has been done
negligently without bestowing normal care and caution, the hospital also must be held liable
and it cannot be allowed to escape from the liability due to reason of non-existing masterservant relationship between the hospital and the surgeon.
There are many instances where a senior or super-specialist performs surgery in a centre
where such expertise is not locally available. After the surgery, the post-operative care is left
to the local competent doctor. Failure of the senior/super specialist to personally supervise
the postoperative care may not constitute negligence provided the doctor to whom
responsibility of the post-operative care lies is competent; same applying to a visiting
physician. It has been held by National Consumer Redressal Commission [1993 (3) CPR 414
(NCDRC)] that in case of the operation being performed in an institution, it is the duty of the
institution to render postoperative treatment and care to the hospitals patients. Quite often
foreign doctors undertake operations in India and it cannot be maintained that the postoperative care and treatment shall continue to be provided by the foreign doctor who may no
longer be in the country. But same may not be held in every case if the visiting surgeon never
inquires about the condition of the patient and leaves the patient for postoperative care and
follow up treatment to the competence of the other surgeon who was unable to properly treat
and look after the patient and the patient dies. Here the treating doctor can also be made
party to the negligence.
In many cases of negligence against government hospitals, it has been held that the State is
vicariously liable for negligence of its doctors or staff or even primarily liable where there is
lack of proper equipment or staff. In few cases, court has passed orders to the effect that the

Page | 31

compensation paid to the complainant may be recovered from the government doctors whose
negligence has been established. The Honble Supreme Court in Achutrao & Ors v. State of
Maharashtra & Ors

42

has observed that running a hospital is a welfare activity undertaken

by the Government but it is not an exclusive function or activity of the Government so as to


be regarded as being in exercise of its sovereign power. Hence, the State would be
vicariously liable for the damages which may become payable on account of negligence of
its doctors or other employees.
In another case of Smt. Santra v. State of Haryana & Ors 43, the contention that the State is
not vicariously liable for the negligence of its officers in performing the sterilization
operation was not accepted in view of the above judgment of the Supreme Court of India.
In another case of Rajmal v. State of Rajasthan44, where the patient died of neurogenic shock
following laparoscopic tubal ligation done at a primary health centre, an enquiry committee
constituted on the directions of the Rajasthan High Court found that the doctor was not
negligent in conducting the operation, nor his competence, integrity or efforts were doubted.
It was lack of adequate resuscitative facilities and trained staff that was held responsible for
the death and the State Government was held vicariously liable and was directed to pay
compensation to the husband of the deceased.
In another case of Dr. M. K. Gourikutty & etc. v. M. K. Madhavan and Ors45, where patient
had died following post-partum sterilization, the Court found negligence on part of the
defendants and liability was fixed on State Government, anaesthesiologists and other staff
instead of holding only the State vicariously liable.
The Honble Punjab and Haryana High Court, in Punjab State v. Surinder Kaur 46, has stated
that the doctor working in a government hospital was performing the duty while he/ she was
under the employment of the State and in these circumstances, the master is always
42 JT 1996(2) SC 664
43 (2005) 5 SCC 182
44 AIR 1996 Raj. HC 80
45 AIR 2001 Ker. HC (DB) 398
46 2001 ACJ 1266 (P&H-HC)
Page | 32

responsible for the vicarious liability of the acts committed by the employee in the course of
such employment. It is for the State to determine the liability of the erring doctors. It is their
internal affair but so far as patient is concerned she can recover the amount from the State
Government. It is the duty of the authorities under the State to see that its employees are
available in time in the hospital. If for any reason, a doctor or expert is not available, the
Hospital authorities would have known before hand and some other persons should be
posted. The primary responsibility of the Hospital authorities is to see that there is no
negligence on its part or on the part of its officers. The non-providing of a doctor or
anaesthetist or an assistant is essentially a lapse on the part of hospital authorities and are
thus liable for negligence.
In R. P. Sharma v. State of Rajasthan 47, where a woman died because of mismatched blood
transfusion, the State was held vicariously responsible for the negligent act of its blood bank
officer and the doctor who transfused the blood. It was further held that the State of
Rajasthan is free to recover the amount from those doctors. In Rukmani v. State of Tamil
Nadu [AIR 2003 Mad. HC 352], the Madras High Court observed that in India where the
population is increasing each second and family planning is a national programme, the
doctor as well as the State must be held responsible in damages on account of failure of a
sterilization operation which is directly responsible for an additional birth in the family,
creating additional economic burden on the family.
Compensation can be awarded to an injured person for not being provided treatment in a
Government hospital or for death or injury caused therein because of negligence.
In the case of Paschim Bangal Khet Mazdoor Samity & Ors v. State of West Bengal 48, the
Honorable Supreme Court held that providing adequate medical facilities for the people is an
essential part of the obligations undertaken by the Government in a welfare state. Failure on
the part of government hospital to provide timely medical treatment to a person in need of
such treatment is violation of his right to life guaranteed under Article 21 of Indian
Constitution [death of the patient occurring for not being admitted/ given proper treatment
for want of bed in a government hospital].

47 AIR 2002 Raj. HC (Jpr. Bench) 104


48 1996 (4) SC 260
Page | 33

Appointing practitioners of Alternative Systems of Medicine [Ayurveda/ Unani/ Sidha] or


Homeopaths in hospitals giving services in allopathy too amounts to negligence. It is the
duty of the hospital to provide properly qualified, skilled and experienced doctors for
treatment. The Supreme Court of India has held that there is no scope for a person who is
registered under the Indian Medicine Central Council Act, 1970 [Council for registration of
practitioners of Indian Medicine Ayurveda, Unani and Sidha] and enrolled on the State or
Central Register of Indian Medicine to practice modern scientific medicine [allopathy] in any
of its branches. All that is allowed to such practitioners is to make use of the various modern
advances like radiology reports, laboratory investigations etc. for the purposes of practicing
in their own system. However, if any State law recognizes the qualification of integrated
courses or other qualifications as sufficient qualification for registration in the State
Medical Register, within the meaning of the Indian Medical Council Act, 1956 on being
registered in the State Medical Register, he is eligible to practice allopathic medicine. This
benefit would be available only in those States where the privilege of such right to practice
any system of medicine is conferred by the State law which is for the time being in force,
under which practitioners of Indian Medicine are registered in their State Medical Register.

MEDICAL PROFESSION WHETHER UNDER CONSUMER


PROTECTION ACT
In one of the earliest significant ruling in Vasantha P. Nair v. Smt. V.P. Nair, the National
Commission upholding the decision of Kerala State Commission had held that a patient is a
consumer and the medical assistance was a service and, therefore, in the event of any
deficiency in the performance of medical service the consumer courts can have the
jurisdiction. It was further observed that the medical officers service was not a personal
service so as to constitute an exception to the application of the Consumer Protection Act.49
In Indian Medical Association v. V.P. Shantha and Ors.,50 the apex court has put an end to
this controversy and has held that patients aggrieved by any deficiency in treatment, from

49 I (1991) C.P.J. 1685


50 AIR 1996 SC 550; the apex court has laid down 12 important principles stating the law
with definite terms in this case.
Page | 34

both private clinics and Government hospitals, are entitled to seek damages under the
Consumer Protection Act, 1986. A few important principles laid down in this case include:
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 C.P. Act.
2. The fact that medical practitioners belong to medical profession and are subject to
disciplinary control of the Medical Council of India and, or the State Medical
Councils would not exclude the service rendered by them from the ambit of C.P. Act.
3. The service rendered by a doctor was under a contract for personal service rather than
a contract of personal service and was not covered by the exclusionary clause of the
definition of service contained in the C.P. Act.
4. A service rendered free of charge to everybody would not be service as defined in the
Act.
5. The hospitals and doctors cannot claim it to be a free service if the expenses have
been borne by an insurance company under medical care or by ones employer under
the service conditions.

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
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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.
The last part of this assignment has been devoted to deal
with the cases of medical negligence and consumer
protection, it is noted that the professional negligence
has been put on a higher pedestal, requiring thereby
higher degree of skill and care to be exercised by the
medical professionals. The journey of the law relating
medical negligence has not been smooth. But for V.P.
Shantha51, Jacob Mathew52 and Kusum Sharma53, cases,
the approach adopted by the courts/forums has shown inconsistency. This inconsistency leads
to uncertainty in the minds of the defrauded consumers and make them little complacent
about exercising their rights owing to apprehensions of their success at doorsteps of
consumer forums/courts. Thus it is submitted that as the law on medical negligence appears
to have been settled by the Honble apex court, there is a need to have a settled legal position
in other sectors as well so far as it relates to the consumer protection in India.

51 Indian Medical Association v. V.P. Shantha, AIR 1996 SC 550


52 Jacob Mathew v. State of Punjab, (2005) 6 SCC 1
53 Kusum Sharma v. Batra Hospital, (2010) 3 SCC 480
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BIBLIOGRPHY
Statutes

The Constitution of India

The Consumer Protection Act, 1986

The Medical Council Act, 1956

Indian Penal Code, 1860

Books

WHV Rogers, Winfield and Jolowicz on Tort, Sweet & Maxwell, International
Student Edition, 1998.

Laxminath and M Sridhar, Ramaswamy Iyers The Law of Torts, LexisNexis


Butterworths, Ninth Edn, 2003.

M.K. Balachandran, Consumer Protection Act and Medical Profession, Department


of Consumer Affairs, Govt. of India in association with I.I.P.A., New Delhi, 2006,
Reprint 2008.

Websites

http://legalservicesindia.com/article/article/medical-negligence-in-india-944%20.html

http://medicolegalhelpline.blogspot.in/2009/07/medical-negligence-andhospitals.html

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