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Medical negligence, now days have become one of the serious issues in India. Our 
experience tells us that medical profession, one of the noblest professions, is not immune to 
negligence which at times results in death of patient or complete / partial impairment of 
limbs, or culminates into another misery. There are instances wherein most incompetent or 
ill/under educated doctors, on their volition, have made prey the innocent patients. The 
magnitude of negligence or deliberate conduct of the medical professionals has many times 
led to litigation. 
The present paper aims to analyze the concept of negligence in medical 
profession in the light of interpretation of law by the Supreme Court of India. 
Electronic copy available at: http://ssrn.com/abstract=2354282 Electronic copy available at: 
The researcher has adopted a purely doctrinal method of research. The researcher had made 
extensive use of the library and also the internet sources. 
Aims and Objectives 
The aim of the project is to present a detailed study on medical negligence in India. 
Sources of data 
Following secondary sources of data have been used in this project 
➢ Books 
➢ Websites 
➢ Articles 
Method of writing 
The method of writing followed in the course of this project is primarily analytical. 
Mode of Citation 
The researcher has followed a uniform mode of citation through the course of this research 
1. Introduction ........................................................................p6 
2. Negligence ......................................................................p7 
3. Professionals ......................................................................p16 
4. Negligence by Medical professionals .....................................................p17 
5. Medical Negligence: A civil Wrong or Criminal Offence ...............................p24 
6. Medical Negligence and Hospitals ........................................................p25 
7. Medical Professions: Whether comes under Consumer protection Act .............p34 
8. Conclusion ..................................................................................p35 
9. Bibliography...................................................................................p36 
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 Vs. State of Punjab 
17. Joseph @ Pappachan v. Dr. George Moonjerly 
18. Kusum Sharma v. Batra Hospital 
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. Vs. 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 
39. State of Haryana v. Santra 
40. State of Punjab v. Shiv Ram 
Medical profession is the one of the noblest profession among all other profession 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. 
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. 
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. 
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: 
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 
1 Law of Torts, Ratanlal & Dhirajlal, Twenty-fourth Edition 2002, edited by Justice G.P. Singh; pp.441-442 
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 foresee ability of injury: 
Whether the defendant owes a duty to the plaintiff or not depends on reasonable forseeability 
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. 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 views... What to 
one judge may seem far-fetched to another both natural and probable. 

Bourhill v.Young, (1943) A.C 92 3 
(1943) A.C. 448 
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. 
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 

(1962) 1 All E.R.431 5 
A.I.R. 1997 Mad.257 6 
A.I.R. 1980 cal 165 7 
A.I.R. 1969 Del 183 8 
A.I.R. 1986 Raj 176 9 
A.I.R. 1966 S.C. 1750 
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 
In Mata Prasad v. Union of India10 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 Singh11 , 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: 
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 defendeant 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 defendant‟s servant, while driving a lorry, suddenly died, which 
resulted in an accident and consequent injury to the plaintiff. The driver appeared to be quite 
A.I.R. 1978 All, 303 11 
1987 ACJ 133 12 
(1917) 19 Bom L.R. 778 13 
(1938) I All E. R. 532 
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 foresee ability 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. 
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 
(1932) 146 L.T. .391 15 
A.I.R.(1974) Orissa 207 16 
(1951) A.C. 850 
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 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 plaintiff‟s 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 
(1856) 11 Ex 781 
failed to provide a device whereby the snapped wire would have automatically become dead and 
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 Defendant‟s delivery 
man took a cylinder into the plaintiff‟s 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 plaintiff‟s 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 defendant‟s 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 
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 
3. Breach of Duty must have caused the Damage: 
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 20 
A.I.R. 1989 ACJ 998 
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 breaks, 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 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: 
1. That the “thing” causing the damage was in the control of the defendant or his 
servants, or agents; 
AIR 1982 Mad 104 
2. That accident must be such as would not in the ordinary course of things have 
happened without negligence; and 
3. That there is absence of explanation of the actual cause of the accident. 
In Municipal Corporation of Delhi v. Subhagwanti & Ors22, the Clock Tower at Chandani 
Chowk in Delhi, collapsed causing death of the plaintiff‟s 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). 
Similarly in Acchutrao Haribhau Khodwa v. State of Maharashtra,23 the plaintiff‟s 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 
(1974) 1 S C C 690 23 
AIR 1996 SC 2377 
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. 
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. 
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, professional 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. 
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 theses duties will support an action for negligence by patient. 
In Jacob Mathew 24case, 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 
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 
(i) lata culpa, gross neglect 
(ii) levis culpa, ordinary neglect, and 
(2005) 6 SCC 1 25 Smt. Madhubala vs. Government of NCT of Delhi; Delhi High Court, 8 April 2005, Citation: 
2005 Indlaw DEL 209 = 2005 (118) DLT 515 
(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 
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 Vs. 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 
(1957) 2 All ER, 27 
(2005) 6 SCC 1 
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 
In Achutrao Haribhau Khodwa v. State of Maharashtra29 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." 
In Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia & Anr.30 the Apex Court has 
specifically laid down the following principles for holding doctors negligent: 
AIR 1969 SC 128 29 
AIR 1996 SC 2377 30 (1998) 4 SCC 39 at 47, 
“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 UP 31, 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. 
Further, in State of Haryana v. Santra32 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 Ram33 , 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 
AIR 1989 SC 1570 32 
(2000) 5 SCC 182 33 
(2005) 7 SC 1 
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 Patel34, 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 Hospital35, the Hon‟ble 
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 
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. 
34 AIR 1996 SC 2111 35 
(2010) 3 SCC 480 
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 
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 a 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 
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 hon‟ble 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 virtue of 
Article 141 of the Constitution of India.36 Thus the above principles must be taken as „law of 
the land on medical negligence‟. 
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.”37 
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.38 
Article 141 reads: “Law declared by the Supreme Court shall be binding on all courts within the territory of 
India”. 37 1937) 2 All ER 552 (HL) 38 
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. In civil 
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. 
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 deficiency in services within a stipulated time 
of 90 -150 days. 
Cases, which do not come under the purview of Consumer Protection Act, 1986 (e.g., cases 
where treatment is routinely provided free of cost at non-government or government 
hospitals, health centers, 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. (Syed Akbar v. State 
of Karnataka, (1980) 1 SCC 30, para 28 refers) 39 
(2005) 6 SCC 1; Also see, Dr. Suresh Gupta v. Govt. of N.C.T. of Delhi, AIR 2004 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 service6. In India, a provision in respect of medical records has been made in 
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 hours7. 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 Pradesh40 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 vs 
Griffiths, (2002) 2 AII ER 474]. 
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 medicolegal charges etc. are examples where 
hospitals can face litigations. A patient can file a complaint in Consumer Court if the hospital 
[2003 (1) CLD 81 (AP SCDRC)], 
charges fees in excess of that mentioned in the list of charges displayed or disclosed or agreed 
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 individual‟s 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 
As applicable to any other organization, hospitals too cannot blanketly refuse to give 
employment on the basis of an individual‟s HIV status. It depends on what job a particular 
person is to be employed for. A sero-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 sero positive or develops 
AIDS, the hospital should review that person‟s 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 
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 doctor‟s name creating an impression and misleading the patients that the 
doctor possesses PG degree in Gynecology 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 Moonjerly41, 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 
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 surgeon‟s 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. 
[1994 (1) KLJ 782 (Ker. HC)] 
In another judgment by the Madras High Court in Aparna Dutta v. Apollo Hospitals Enterprises 
Ltd.42, 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 defense 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.43, 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 doctor‟s 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 
The hospital authorities are not only responsible for their nursing and other staff, doctors, etc. 
but also for the anesthetists and surgeons, who practice independently but admit/ operate a 
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 
[2002 ACJ 954 (Mad. HC)] 43 [2003 (2) CPJ 160 (NCDRC)] 
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 master- 
servant 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 hospital‟s patients. Quite often 
foreign doctors undertake operations in India and it cannot be maintained that the post 
operative 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 
compensation paid to the complainant may be recovered from the government doctors whose 
negligence has been established. The Honorable Supreme Court in Achutrao & ors v. State of 
Maharashtra & Ors 44 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 
[JT 1996(2) SC 664] 
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 & Ors45, 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 Rajasthan46, 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 Ors47, where patient 
had died following post partum sterilization, the Court found negligence on part of the 
defendants and liability was fixed on State Government, anesthesiologists and other staff 
instead of holding only the State vicariously liable. 
The Honorable Punjab and Haryana High Court, in Punjab State v. Surinder Kaur48, 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 
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 anesthetist or an 
assistant is essentially a lapse on the part of hospital authorities and are thus liable for 
[(2005) 5 SCC 182] 46 
[AIR 1996 Raj. HC 80] 47 
[AIR 2001 Ker. HC (DB) 398] 48 
[2001 ACJ 1266 (P&H-HC] 
In R. P. Sharma v. State of Rajasthan49, 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 Bengal50, 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]. 
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 
[AIR 2002 Raj. HC (Jpr. Bench) 104] 50 
[1996 (4) SC 260] 
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. 
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 officer‟s service was not a personal service 
so as to constitute an exception to the application of the Consumer Protection Act.”51 
In Indian Medical Association v. V.P. Shantha and Ors.52, the apex court has put an end to 
this controversy and has held that patients aggrieved by any deficiency in treatment, from 
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. 
I (1991) C.P.J. 1685 52 
AIR 1996 SC 550; the apex court has laid down 12 important principles stating the law with definite terms in this 
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 
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 one‟s employer under 
the service conditions. 
Thus, after critically analyzing the present paper I came up to following 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”. 
The last part of this paper 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. Shantha53, Jacob Mathew54 and Kusum Sharma55, 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 Hon‟ble 
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. 
1. Statutes 
The Constitution of India 
The Consumer Protection Act, 1986 
The Medical Council Act, 1956 
Indian Penal Code, 1860 
2. Books 
WHV Rogers, Winfield and Jolowicz on Tort, Sweet & Maxwell, International Student Edition, 
1998 . 
Laxminath and M Sridhar, Ramaswamy Iyer‟s 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. 
3. Websites 
http://legalservicesindia.com/article/article/medical-negligence-in-india-944- .html 
Indian Medical Association v. V.P. Shantha, AIR 1996 SC 550 54 
Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 55 
Kusum Sharma v. Batra Hospital, (2010) 3 SCC 480