JAIPUR NATIONAL UNIVERSITY

SEEDLING SCHOOL OF LAW AND GOVERNANCE

ASSIGNMENT
SUBJECT:

RESEARCH PAPER
ON
MEDICAL NEGLIGENCE
APPOINTMENT, REMOVAL, DISCHARGE & RETIREMENT OF TRUSTEES
IN THE INDIAN

Submitted To: Mr.

Submitted By: Sapana Kawat

TRUST ACT

(VII SEMESTER)
B.A.LL.B (HONS
ACKNOWLEDGEMENT
This research paper is made possible through the help and support from everyone, including:
parents, teachers, family, friends, and in essence, all sentient beings. Especially, please allow me
to dedicate my acknowledgment of gratitude toward the following significant advisors and
contributors:
First and foremost, I would like to thank Mr. RavikantBhardwajfor her most support and
encouragement. She kindly read my paper and offered valuable detailed advices on grammar,
organization, and the theme of the paper.
I would also like to thank all my professors who taught me and made me capable of making this
research paper.
Finally, I sincerely thank to my parents, family, and friends, who provide the advice and financial
support. The product of this research paper would not be possible without all of them.
Thank you.

CONTENTS
1.
2.
3.
4.
5.

List of abbreviations........................................................................2
Table of cases..................................................................................3
Abstract...........................................................................................5
Introduction........................ ............................................................6
Medical negligence-

6.
7.
8.
9.

origin..............................................................................................13
Test of liability...........................................................................................15
Provisions under Indian law...........................................................17
Professional misconduct.................................................................21
Consumer protection

act...................................................................................................24
10.Conclusion /
suggestions.....................................................................................32

LIST OF ABBREVIATIONS
Word

Abbreviations

All England Reporter

All E.R.

All India Reporter

AIR

Article

Art.

County Court Judgement

CCJ

Consumer Protection Act

CPA

Indian Council Of Medical Research

ICMR

Indian Medical Association

IMA

International Organization For Consumer Unions

IOCU

Indian Penal Code

IPC

Lawyers Edition

L.Ed.

National Health Service

NHS

Supreme Court

SC

Supreme Court Cases

SCC

Supreme Court Reporter

SCR

World Health Organization

WHO

Weekly Law Reports

WLR

TABLE OF CASES
CASES
AchutraoHaribhauKhodwa. v. State of

CITATION
1996 (2) SCC 634

Maharashtra
A.S. Mittal vs State of Uttar Pradesh
Bolam v. Friern Hospital Management

1989 3 SCC 223

[1957] 1 W.L.R. 582 = [1957] 2 All E.R.

Committee
Bolitho v. City and Hackney Health

118
[1997] 4 All ER 771

Authority
Canterbury v. Spence

409 US 1064 93 S. Ct. 560 34 L.Ed. 2d

Consumer Education and

518 1972 US.

AIR 1995 SC 1922

Research Center v. Union of India

Indian Medical Association Vs VP

111 (1995) CPJ1 (SC); 1995 (3) CPR

Shantha&Ors

412:1995 (6) SCALE 273:1996 CCJ 1

Jacob Mathew vs. State of Punjab

Laxman B Joshi vs T.B. Goldbole
ParamanandKatara v. Union of India
Pt. ParmanandaKatara vs. Union of India
State of Punjab v. Mahinder Singh

(SC))
2005 (6) SCC 1 AIR 2005 SC 3180
1969 SC 128
AIR 1989 SC 2039
989 AIR 2039, 1989 SCR (3) 997
AIR 1997 SC 1225

Chawla
VadivelvsGopalakrishnan

1992 CPJ 764

Abstract

Medical negligence, now days have become one of the serious issues in India. The paper
examines the concept of negligence in medical profession starting with chapter 1 giving brief
introduction. Chapter 2 talks about the origin of medical negligence and doctor patients relation
in 18th and 19th century. Chapter 3 talks about approaches towards determining the liability with
the BOLAM and BOLITHIO tests. Chapter 4 talks about Indian law provisions on medical
negligence and also provisions in torts and Indian Penal Code. Chapter 5 explains the acts
which leads to professional misconduct and amounts to punishment and disciplinary action.
Chapter 6 explains the connection of medical negligence and consumer protection act. It states
the provisions, which make the doctor liable for his act of negligence. Chapter 7 is containing
conclusion and suggestions based on the analysis of my research paper.

CHAPTER -1

INTRODUCTION
Health is considered to be mans most valuable asset since all his activities depend on thestate of
his health. The World Health Organization (WHO) as has defined health:
A state of complete physical, mental, and social well being and not merely the absence
of disease or infirmity.1
According to Chambers Twentieth Century Dictionary2, the meaning of the word disease is
uneasiness or a disorder or want of health in mind or body orailment.
The word health is changing in its contents radically after the WHO defined the term. As per the
Constitution of the WHO, everyone has a right to have the highest standard of Health. Such a
fundamental right shall be available to all without distinction of race, religion and political belief,
economic or socialconditions, also that health of all people is fundamental to the attainment of
peace and security. After the establishment of the WHO, the right to health care was recognized
internationally, and various international conventions recognized the importance of the right to
health care.The objective of the organization is declared as the attainment by people, of the
highest possible level of health3. Recognition of the right to live with dignity is the basic
premises on which human rights law rests. Living with dignity calls for providing adequate
opportunity to develop, to all theindividuals, irrespective of the caste, creed, sex and place of
birth. All the international conventions on human rights seeks to promote right to live with
dignity, and the philosophy behind all human right laws will be meaningless, unless medical
services are made available to all. The preamble to the constitution of the WHO makes this clear.
Medical negligence is the act or omission in treatment of a patient by a medical profession,
which deviates from the accepted medical standard of care. It occurs when a doctor, dentist,
nurse, surgeon or any other medical professional performs their job in a way that deviates from
the accepted medical standard of care i.e. if a doctor breaks the rules regarding how to treat a
patient, and does something that is "against the rules", then that doctor has failed to perform his
duty,

and

is

said

to

be

negligent.

The Supreme Court pronounced that medical profession and professional could also be tried
1 Preamble to the Constitution of the World Health Organization
2Chambers Twentieth Century Dictionary, 1976 (New Delhi. Allied Publishers Ltd.), p. 369.
3 Article 1 of the Constitution of the World Health Organization

under the Consumer Protection Act (CPA), 1986. Though the IMA contested this decree, its plea
was disqualified in the case of Indian Medical Association Vs VP Shantha&Ors.4 Besides this
decree of the Supreme Court bringing the medical profession and professionals under the
purview of the CPA, there exists a provision under Section 304A of IPC, which covers, acts of
medical

professionals.

According to this section,whoever causes the death of the person by doing any rash or
negligence act not amounting to culpable homicide, shall be punished with imprisonment for
either description of a term which may extend to two years, or fine, or with both.
The term deficiency in medical services should extend beyond the doctrinal definition of the
term given under the CPA,1986 for the purpose of promoting human rights 5.The foundation of
this term in fact stems from the International Organization For Consumer Unions 6(IOCU) and
the United Nations Guidelines on Consumer Protection7 . If deficiency in the medical services is
examined in the light of the principles, it can be identified that the following circumstances are
leading to deficiency in medical services:

Denial of access to health service, which include access to basic medical services.
Denial of access to advanced medical treatments which may be life saving procedures.

Failure to provide safety of products in health care services, experimental medicines and clinical
trials on human beings and abuse of diagnostic and curative procedures may also lead to human
right violations. Denial of health care records, commercial trade of human organs and researches
involving human embryo or human cells also need to be evaluated in the context of human rights
law principles.
The question of professional duty to take care of health has immense significance in the present
day world. The WHO is committed to provide health for all. The Directive Principles of State
Policy under the Constitution of India demands the State to make effective provision for public

4111 (1995) CPJ1 (SC); 1995 (3) CPR 412:1995 (6) SCALE 273:1996 CCJ 1 (SC))
5For the definition of the term deficiency, Consumer Protection Act, 1986, Section 2.
6The Montreal Convention of the IOCU adopted the principle that availability of essential services to all people by
eliminating poverty is one of the important goals to be achieved by the consumer groups.
7 Right to get goods and services at reasonable cost is one of the rights recognized by the U.N. Guidelines for
Consumer.

health, and for just and humane conditions of work 8. It is the primary duty of the State to raise
the level of nutrition, the standard of living of its people and the improvement of public health.9
The Supreme Court has declared that right to medical aid as an integral part of the right to life. In
fact, theApex Court has held that right to health and medical care is a fundamental right under
the Constitution of India10. Practice of medicine is rendering great service to the society. Health
care has now been reduced to a business, which determines the patient- doctor relationship.
Today it has almost diminished its fiduciary character. Services of medical establishments are
purchasable commodities and the business mind has given an impetus to more and more
malpractices and instance of negligence. It is not surprising that most of the nursing homes are
not even owned by doctors, but by businessmen and promoters. There are so many stringent
legislations which can check malpractice but the procedures are long and of general apathy.
At present, the medical profession has become commercialized. Practitioners are adopting
deceitful methods to attract the innocent patients and thereby procuring money. Some doctors
suggest their patients to undergo various tests, that too in a particular laboratory which are in
fact, unnecessary. This is particularly so when there is an unethical collusion between that
laboratory and the doctor. There are other doctors who prescribe more medicines than necessary.
There may also exist some understanding between doctor and pharmaceutical companies for
prescribing their product. The medical profession is a nobleprofession and it should not be
brought down to the level of a simple business.
In Pt. ParmanandaKatara vs. Union of India11,
It has been held that held that it is the professional obligation of all doctors, whether government
or private, to extend medical aid to the injured immediately to preserve life without waiting legal
formalities to be complied with by the police under Cr.P.C. Article 21 of the Constitution casts
8 Article 41 and 42 of the Constitution of India
9Article 47 of the Constitution of India.
10 See: ParamanandKatara v. Union of India AIR 1989 SC 2039: Consumer Education and Research Center v.
Union of India, AIR 1995 SC 1922; State of Punjab v. Mahinder Singh
Chawla, AIR 1997 SC 1225.

11989 AIR 2039, 1989 SCR (3) 997

the obligation on the State to preserve life. No law or State action can intervene to delay the
discharge of this paramount obligation of the members of the medical profession. It is an
obligation on the State to preserve life by extending the necessary medical assistance.
Today in India, many doctors have become totally money-minded, and have forgotten their
HippocraticOath12. Since most people in India are poor, medical treatment is becoming more and
more inaccessible.Doctors need scientific knowledge, technical skill and understanding. Those
who use these with courage, humility and wisdom and in accordance with their medical ethics,
provide a uniqueservice to their fellow men and women, and build an enduring edifice of
character within themselves. Doctors shoulder the trust of the patient. A patient approaches him
with all confidence and in hope that he will cure him of his ailments. It is the duty of the doctor
to fulfill his obligationswith proper care. With an idea of protecting the consumers the legislature
has enacted the CPA, 1986 to arm each and every consumer and /or consumer associations with
rights to seek speedy, cheap and efficacious remedies which are proving to be very popular and
effective as well, leaving behind a trail of rulings and findings under which so many people have
benefited.
When law steps in, to provide remedy for negligence or deficiency in service bymedical
practitioner, it gives rise to twin adverse effects. More and more private doctors andhospitalhave,
of necessity, started playing it safe, by subjecting or requiring the patients to undergo
variouscostly diagnostic procedure and test to avoid any allegation of negligence, even though
they mighthave already identified the ailment with reference to the symptoms and medical
history with 90%certainty,by their knowledge and experience. Secondly, more and more doctors
particularlysurgeons in private practice are forced to cover themselves by taking out insurance,
the cost, ofwhich, is also ultimately passed onto the patient, by way of higher fee. The nature of
doctorpatient relationship is on the basis of trust. The extent and nature of information required
to be given bydoctors should continue to be governed by the Bolam13test rather than the
reasonably prudent patient test evolved in Canterburry14 . It is for the doctors to decide, with
12Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
13Bolam v. Friern Hospital Management Committee, Queens Bench Division, 1957, Date of decision - 26
February 1957, Citation: [1957] 1 W.L.R. 582 = [1957] 2 All E.R. 118
14Canterbury v. Spence 409 US 1064 93 S. Ct. 560 34 L.Ed.2d 518 1972 US.

reference to the conditionof the patient, nature of illness, and the prevailing established practices,
how much informationregarding risks and consequences should be given to the patient.
A doctor shall abide by the oath 15 through out his career. If a doctor fails to fulfill any of these
promises, he will be liable for professional misconduct and liable for removal from the rolls.And
they will also be liable for medical negligence under the CPA, 1986.The hospitals are equally
liable for the acts of the Para medical staff and /or its doctors.Nursing homes may also be held
negligent if nurses fail to execute instruction delivered to them atthe time of treatment.
In AchutraoHaribhauKhodwa. v. State of Maharashtra16,the Supreme Court held that ,the State is
liable for acts of negligence committed by doctors in a government- run hospital.The duties that
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 whether 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 a very low degree of care and competence judged in the light of the particular circumstances
of each case is what the law requires.
Supreme Court of India in,Indian Medical Association v. V.P.Shantha17,held that the medical
professionis included within the meaning of service under consumer law. Protest against this
decision arosefrom different corners but the court confirmed their stand.Thus, medical service
comes underConsumer law. No doubt, due to this decision, the doctors became more cautious in
treatments and aform of defensive medication slowly took over. In such cases, the patients would
be advised to undergo several tests even before the preliminary diagnosis, so as to obviate any
litigation againstdoctors. The ultimate sufferer is the patient himself as the treatment becomes
expensive and there isa delay in initiating the treatment.
15Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
161996 (2) SCC 634
17111 (1995) CPJ1 (SC); 1995 (3) CPR 412:1995 (6) SCALE 273:1996 CCJ 1 (SC)

Professional negligence, more specifically, medical negligence is, as the term suggest, related to
the medical profession and is the result of some irregular conduct on the part of any member
ofthe profession or related services in discharge of professional duties. But first of all, it is
important tohighlight the concept of negligence itself so as to enable the readers to analyze the
peculiar problemsin the right perspective having regard to the diversification of the professional
activities prompted byunprecedented advances in the practice of the profession and the subject of
medicine and surgery assuch and the inherent commercialization of various branches thereof
which are rendering all kinds ofservices to the public at large.This issue has created complicated
problems in the society and health care system and hence this area was selected for the study.
The study solely depends on secondary data available in theforms of reports, articles, studies and
surveys conducted by the Government and non-Governmentagencies. Further, legislations,
government reports etc have also been extensively and exhaustivelyreferred.
The testimony may be difficult to understand, particularly in complicated medical aspects and to
a layman in medical subject. A balance has to be maintained in such cases. The doctors who
causedeath or agony by medical negligence should certainly be punished, but it should also
beremembered that like any other profession, the doctors too can make errors of judgment, and if
they are punished for every error no doctor can practice his profession. Indiscriminate
proceeding anddecisions against doctors are counter productive and serve no good. They inhibit
the free exercise ofjudgment by a professional in a particular situation.
According to present legal position, a medical practitioner is not liable to be held negligent
simply because things went wrong from mischance or misadventure or through an error of
judgmentin choosing one reasonable course of treatment in preference to another. He would be
liable onlywhere his conduct fall below that of the standards of a reasonably competent
practitioner in his field. For instance, he would be liable, if he leaves surgical gauze inside the
patient after an operation.
The main objective of the study is to highlight the predominant drawbacks of the existing
medico-legal system. For example, judges of the consumer courts are not experts in medical
science; this itself causes difficulty for them in deciding cases relating to medical negligence.
Moreover, judges have to rely on testimonies of other doctors, which may not be objective in all

cases. Like in all professions and services, doctors too sometimes have a tendency to support
their own colleagues.
This issue has created complicated problems in the society and health care system and hence this
area was selected for the study. The study solely depends on secondary data available in the
forms of reports, articles, studies and surveys conducted by the Government and nonGovernment agencies. Further, legislations, government reports etc have also been extensively
and exhaustively referred.
In todays era doctors are extremely professional, that earning money is the prime objective for
the doctor and the life of patient is secondary to him. Life of a patient should be of prime
importance for a doctor, but in many cases the patients life is on stake due to the negligence and
careless attitude of the doctor toward the patient. A doctor should always maintain due care and
caution while proceeding with the treatment of the patient.

CHAPTER-2
MEDICAL NEGLIGENCE ORIGIN
In common with other contemporary nations, the USA had a brief flirtation with contract law in
the 19th century. However, jurisprudence sat uneasily with the unequal doctorpatient

relationship; patients could not be expected to understand medical nomenclature or esoteric

diagnosis and regimen. Additionally, 19th-century US physicians recoiled at the thought of being
held in the same regard as tradesmen. This echoes a similar anxiety about professional status
across Europe and its colonies in this period. However, in post-revolution North America, elitism
was frowned upon and there, more than anywhere else, the medical profession struggled for
harder and longer to establish itself into a completely amalgamated profession. Revolution also
brought individual liberties and rights thattogether with a decline in religious fatalismled to
a great number of medical lawsuits in 19th-century North America. Lawyers there saw medical
malpractice lawsuits as a source of wealth, which further impaired the burgeoning malpractice
crisis. When, finally, the US medical profession united and raised professional standards,
patients' expectations of the acceptable standard of care went up concurrently. Inevitably,
physicians sought liability insurance: mitigating their individual risk but rendering each and
every insured medical professional a financially worthy prospect for medical litigation.
The trajectory of medical negligence in the USA contrasts with the British experience, where it is
difficult to hold on to one conception through time. Within modern history, we would argue that
there are at least six distinct periods. Each period offers different notions of what negligence has
meant in the past and hints how different it may be again, in the future. During the 18th century
until the mid-19th century, patients had a commanding role: they had a great deal of control over
diagnosis, the law governing negligence claims, and the contractual process between patient and
doctor.
Then from the mid-19th century to the end of that century doctors began to gain the upper hand
through advances in diagnosis, knowledge, skill, technical innovation, and, particularly,
professionalization. However, patients retained the upper hand in law-medical negligence was
viewed very much under the light of a trade contract. For the first half of the 20th century, new
actsin national insurance, pension rights, state doctoring, and votingbrought doctors closer
to the state. There were many developments in state medicine, welfare, and public health. In
English law, doctors were also beginning to gain the upper hand; the law increasingly viewed
doctors' negligence as something apart from regular trade negligence.

The decades leading up to the 1980s could be regarded as perhaps a golden age for doctors in
the UK. During the 1950s, developments in the National Health Service (NHS) and English
courtrooms led to the infamous Bolam18 precedent in 1957, which was a landmark judgment,
empowering doctors within tort law. From then, doctors had complete power of diagnosis and
they essentially governed the law of medical negligence. Patients had fewer rights in law,
diagnosis, and policy than ever before. From the 1980s to the end of the 20th century, the
Conservative government began the gradual introduction of privatization into the NHSa trend
that was continued under Labour. Competition entered the NHS and (some commentators argue)
so did an increase in patients' expectations. Doctors retained the power of diagnosis, and,
essentially, were self-regulating in medical negligence law. Despite this, medical negligence
claims increased. Ethical issues, human rights, patients' rights, and consumer expectations
converged during this time to intensify an increased use of litigation in cases of medical
negligence.
In the 21st century, there have been even greater calls for patients' rights. Although doctors have
retained the power of diagnosis, there has been greater participation from the lay public in ethical
and health administrative considerations. The Bolam precedent has come under increasing
pressure in the law courts, leading to the Bolitho 19 decision, whereby juries, in exceptional
cases, are theoretically allowed to judge between medical experts, although, essentially, changing
nothing in practice from Bolam.

CHAPTER-3
PRINCIPLES OF LIABILITY
THE BOLAM TEST
This was recognised in the classic direction of McNair J. to a jury in BolamvsFriern Hospital
Management Committee20:
18Bolam v. Friern Hospital Management Committee, Queens Bench Division, 1957, Date of decision - 26
February 1957, Citation: [1957] 1 W.L.R. 582 = [1957] 2 All E.R. 118

19
20Bolam v. Friern Hospital Management Committee, Queens Bench Division, 1957, Date of decision - 26
February 1957, Citation: [1957] 1 W.L.R. 582 = [1957] 2 All E.R. 118

A doctor cannot be held guilty of negligence if he has acted with due diligence, care and caution,
also his act should be accepted by proper, skilled medical men who excel in such field. Doctor
should always take the opinion of the general practioners who are competent to advice.
The Bolam test means that today under English law the medical profession sets its own
standard of medical care. This, more than anything else, has led to an awkward connection for
historians assessing negligence in the UK before and after the mid-20th century. Since Bolam,
modern medical negligence law can be whittled down to three fundamental factors: one,
confirming the patient was owed a legal duty of care by the health practitioner who is the
defendant in cases of medical negligence; two, establishing that the defendant was in breach
of that duty of care in failing to reach the standard of care required by law; three, proving that
this breach of duty caused or contributed to the damage or injury to the patient. Establishing
causation was always central to negligence law in history, but the approaches, theories, and
methods to establish it have changed through time. Since Bolam, reasonable practice by a
reasonable practitioner is used in law to establish what the standard of care is and if this had been
breachedand, consequently, if the breach was a causal factor in the outcome. Crucially, the byproduct of a standard of care was that patients' rights moved to the centre of medical
negligence. This provides us with an interesting prism to observe the past.

THE BOLITHO TEST

In the case of Bolitho21, the House of Lords decided in effect that, if the management by a body
of responsible doctors was not demonstrably reasonable, it would not necessarily constitute a
defence. If professional opinion, called in support of a defence case, was not capable of
withstanding logical analysis, then the court would be entitled to hold that the body of opinion
was not reasonable or responsible. More simply put - you cannot defend a case on the basis of a
current practice that is not reasonable or logical.
21Bolitho v. City and Hackney Health Authority [1997] 4 All ER 771

Professionalization, custom standard, and intra-professional etiquette were what the medical
practitioner sought in the 19th century. Medical professionals, then, were more concerned with
the establishment of trust. Without that, there was no patient and therefore no business income.
The Bolam test had profound and unintended implications for UK medical law and also the
language that we use to describe that law; many would argue that it has also perverted the way
that British medicine is practised. Above all, though, Bolam demonstrates why we should use
precise and clearly enunciated terminology when discussing medical negligence. Without
establishing its terms in the past, we fail to comprehend its meaning. Comparing charges of
negligence then and now, without clear enunciation of the terms of that comparison, has created
a warped view of past health-care systems.

CHAPTER-4
STATUTORY PROVISIONS UNDER INDIAN LAW

A physician can be charged with criminal negligence when a patient dies from the effects of
anesthesia during, an operation or other kind of treatment, if it can be proved that the death was
the result if malicious intention, or gross negligence. Before the administration of anesthesia or
performance of an operation, the medical man is expected to follow the accepted precautions.

In such cases, the physician should be able to prove that he used reasonable and ordinary care in
the treatment of his patient to the best of his judgment. He is, however, not liable for an error
judgment. The law expects a duly qualified physician to use that degree of skill and care which
an average man of his qualifications ought to have, and does not expect him to bring the highest
possible degree of skill in the treatment of his patients, or to be able to guarantee cures.
It has long been recognized that criminal liability of a physician may result from a high degree of
negligent conduct. What the law calls criminal negligence is largely a matter of degree; it is
incapable of a precise definition. To prove whether or not it exists is like chasing a mirage. It
requires that any of the following to be established in a case of criminal medical negligence.
Gross Lack of competency or gross inattention, or wanton indifferences to the patients safety,
which may arise from gross ignorance of the science of medicine and surgery or through gross
negligence, either in the application and selection of remedies, lack of proper skill in the use of
instruments and failure to give proper attention to the patient.22
In R. v Bateman (1925)23, Dr. Bateman was prosecuted for manslaughter and the charges of
negligence
i)
ii)

Causing

made
the

Removing

internal
part

against
ruptures

of

the

in

him

performing
uterus

the

along

operations
with

were:
of
the

version;
placenta;

iii) Delay in sending the patient to the infirmary.

The trial court convicted him. But the Court of Appeal held: in order to establish criminal
liability, the facts must be such that, the negligence of the accused went beyond a mere matter of
compensation between subjects and should such disregard for the life and safety of others as to
amount to a crime against the state and conduct punishment.
When a FIR (First Information Report) is filed against a doctor for the death of a patient who
was under his treatment, under this Indian Penal Code Section 304-A the doctor can be arrested.
A doctor charged under this section can obtain bail and if proved guilty, the doctor can be
22 Hampton v State (425 U.S. 484 (1976)
2319 Cr App R 8

punished with a maximum of two years imprisonment or fine or both. But, if the patient is alive,
the doctor is charged under the Indian Penal Code Section 337 and 338.
The Indian Courts have been very careful not to hold qualified physicians criminally (instances
of quacks for criminal negligence are there) liable for patients deaths that are the result of a mere
mistake of judgment in the selection and application of remedies and when the death resulted
merely from an error of judgment or an inadvertent death.

CONSTITUION OF INDIA:
Art 21 states that no person shall be deprived of his life or personal liberty except according to
the procedure established by law.
It is the fundamental right to life.
Art 47 states that it is the duty of the state to raise the level of nutrition and the standard of living
of its people and to improve public health. It is directive principle of state policy and not a
fundamental right.
Art 32 gives every citizen the right to ask the Supreme Court to enforce his or her fundamental
right. The right to enforce is a fundamental right.
THE LAW OF 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 24.
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
24Law of Torts, Ratanlal&Dhirajlal, Twenty-fourth Edition 2002, edited by Justice G.P. Singh; pp.441-442

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
Cause of action for negligence arises only when damage occurs; for, damage is a necessary
ingredient of this tort. Thus, the essential components of negligence are three: 'duty', 'breach' and
'resulting damage'.
Negligence is a tort i.e. a wrong done by a person to another. In medical terms it has been
defined as a mistake by a medical practioner, which no reasonably competent and careful
practioner would have committed.25
Professional
According to the English language, a professional is a person doing or practicing something as a
full-time occupation or for payment or to a make a living; and that person knows the special
conventions, forms of politeness, etc. associated with a certain profession. Professional is
contrasted with amateur a person who does something for pleasure and not for payment.26

Negligence by professionals
The Supreme Court of India discussed the conduct of professionals and what may amount to
negligence by professionals in Jacob Mathews case27:

25 A.S. Mittal vs State of Uttar Pradesh 1989 3 SCC 223

26Oxford Advanced Learners Dictionary of Current English, A. S. Hornby
27Jacob Mathew vs. State of Punjab, Supreme Court of India, August 5, 2005, Citation: 2005 (6) SCC 1 AIR 2005
SC 3180

In the law of negligence, professionals such as lawyers, doctors, architects and others are
included in the category of persons professing some special skill or skilled persons generally.
Any task, which is required to be performed with a special skill, would generally be admitted or
undertaken to be performed only if the person possesses the requisite skill for performing that
task. Any reasonable man entering into a profession which requires a particular level of learning
to be called a professional of that branch, impliedly assures the person dealing with him that the
skill which he professes to possess shall be exercised and exercised with reasonable degree of
care and caution.
The most comprehensive definition has been observed in the case of Laxman B Joshi vs T.B.
Goldbole28 where the judge stated 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 hhe is possessed of skill and knowledge for the purposes. 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 to 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 practioner must bring to his task a reasonable degree of skill and knowledge and must
exercise a reasonable degree of care.

CHAPTER-5
PROFESSIONAL MISCONDUCT
The following acts of commission or omission on the part of a physician shall constitute
28 1969 SC 128

professional misconduct rendering him/her liable for disciplinary action.n order to brig
a successful claim for compensation against a doctor in a forum or court the patient
must prove negligence. It may take the following forms:

Negligent diagnosis
Negligent operation
Failure to listen to a patients complaint
Negligent administration of a wrong drug
Negligent exposure of a patients to the risk of infection
Negligent advice of about the risk of an operation or negligent failure to warn a

patient of such risks

Inadequate supervision or staffing in a nursing home
Negligent administration of an injection, example injecting the wrong solution,
injecting a solution into an artery instead of a vein or into a vein instead of a

muscle or break the needle in the body of the patient.

Leaving an instrument or swab inside a patient during an operation ,failure to
obtain the consent of the patient. Oral consent is insufficient.

(VadivelvsGopalakrishnan )29
Violation of the Regulations:
If
he/she
commits

any

violation

of

Regulations.

If he/she does not maintain the medical records of his/her indoor patients for a
period of three years as per regulation 1.3 and refuses to provide the same within
72 hours when the patient or his/her authorized representative makes a request
for it as per the regulation.If he/she does not display the registration number
accorded to him/her by the State Medical Council or the Medical Council of
India in his clinic, prescriptions and certificatesetc. issued by him or violates the
provisions of regulation.

Adultery or Improper Conduct:

Abuse of professional position by committing adultery or improper conduct with a

patient or by maintaining an improper association with a patient will render a

29 1992 CPJ 764

Physician liable for disciplinary action as provided under the Indian Medical
Council Act, 1956 or the concerned State Medical Council Act.

Conviction by Court of Law:

Conviction by a Court of Law for offences involving moral turpitude / Criminal

acts.

Sex Determination Tests:

On no account sex determination test shall be undertaken with the intent to

terminate the life of a female foetus developing in her mothers womb, unless there
are other absolute indications for termination of pregnancy as specified in the
Medical Termination of Pregnancy Act, 1971. Any act of termination of pregnancy
of normal female foetus amounting to female foeticide shall be regarded as
professional misconduct on the part of the physician leading to penal erasure besides
rendering him liable to criminal proceedings as per the provisions of this Act.

Signing Professional Certificates, Reports and other Documents:

Registered medical practitioners are in certain cases bound by law to give, or may
from time to time be called upon or requested to give certificates, notification,
reports and other documents of similar character signed by them in their
professional capacity for subsequent use in the courts or for administrative purposes
etc. A physician should not contribute to the lay press articles and give interviews
regarding diseases and treatments which may have the effect of advertising himself
or soliciting practices; but is open to write to the lay press under his own name on
matters of public health, hygienic living or to deliver public lectures, give talks on
the radio/TV/internet chat for the same purpose and send announcement of the same
to lay press.

Research:

Clinical drug trials or other research involving patients or volunteers as per the
guidelines of ICMR can be undertaken, provided ethical considerations are borne in
mind. Violation of existing ICMR guidelines in this regard shall constitute
misconduct. Consent taken from the patient for trial of drug or therapy, which is not
as per the guidelines, shall also be construed as misconduct.
PUNISHMENT AND DISCIPLINARY ACTION:
It is made clear that any complaint with regard to professional misconduct can be
brought before the appropriate Medical Council for Disciplinary action. Upon
receipt of any complaint of professional misconduct, the appropriate Medical
Council would hold an enquiry and give opportunity to the registered medical
practitioner to be heard in person or by pleader. If the medical practitioner is found
to be guilty of committing professional misconduct, the appropriate Medical
Council may award such punishment as deemed necessary or may direct the
removal altogether or for a specified period, from the register of the name of the
delinquent registered practitioner. In case the punishment of removal from the
register is for a limited period, the appropriate Council may also direct that the name
so removed shall be restored in the register after the expiry of the period for which
the name was ordered to be removed.Decision on complaint against delinquent
physician shall be taken within a time limit of 6 months.

CHAPTER-6
ROLE OF CONSUMER PROTECTION ACT
Consumer complaints are growing at a fast rate. But at the same time patients belonging to the

lower income groups or those who are illiterate, do not get the benefit of the Act. Doctors often
get away with their act of negligence, because the patients neither have the medical knowledge
nor sufficient evidence to fight his case. All these situations are favorable to the doctors and
corporate medical firms. It is high time that good sense prevails and the learned members of this
noble profession themselves suggest some plausible and effective measures to check
malpractices so that propriety and professional dignity is not put at stake. To start with, the CPA
and also other related laws can be modified and reformed by integrating crucial provision in it.
For example- there should be a mandatory scrutiny of all cases before the same is put into trial.
Medical experts should do this scrutiny and only such cases, which are prima facie act of
negligence, should be subjected to the summary jurisdiction of Consumer Forum. It is also
envisaged that while trying such disputes the Forum should comprise an additional member from
the medical field so that the evidence is adduced and judged in a proper perspective. Another
option is to fix one or two days in a month when the Forum would hear only cases of medical
negligence, before a panel of medical experts who may act like a jury, to pronounce judgment on
any issue of medico-legal importance. Further it must be made obligatory on the part of medical
men to maintain records of their indoor patients for a period of three years and on demand
furnish the same within 72 hours. Most of the misunderstanding and misconceptions based on
mistrust would be resolved if medical records are provided to the patients or their descendants on
time.
The aforesaid modification in the substantive and procedural part of the statute would, inter alia,
ensure two things. One, that false and malicious cases would not see the light of day. Two,
genuine claims will not fail for want of proper testimony. These two things put together would
pave the way for more confidence and trust between the doctors and patients on the one hand and
between doctor patient and the administration of consumer justice on the other. This century has
been the rapid advancement of medical technology and evolution of hospitals into modern health
providing business center. A profession as distinguished from trade is based on high ethical
standards. Medicine has its own ethical parameters and code of conduct. This profession is
rendering a noble service to humanity and has public trust. Any person or professional who serve
the public has to do its duty, neither as a matter of contract, nor in consideration of the fee, but as
an organized public service. The principle of public service is a major component of all

Profession and medical profession cannot be an exception to it.

Consumer Protection Act was enacted in 1986 as to protect the consumer. The Consumer
Protection Bill, 1986 seeks to provide for better protection of the interests of consumers and for
the purpose, to make provision for the establishment of Consumer councils and other authorities
for the settlement of consumer disputes and for matter connected therewith. It seeks, inter alia, to
promote and protect the rights of consumers such as
1. The right to be protected against marketing of goods which are hazardous to life and property;
2. The right to be informed about the quality, quantity, potency, purity, standard and price of
goods to protect the consumer against unfair trade practices;
3. The right to be assured, wherever possible, access to an authority of goods at competitive
prices;
4. The right to be heard and to be assured that consumers interests will receive due consideration
at appropriate forums;
5. The right to seek redressal against unfair trade practices or unscrupulous exploitation of
consumers; and
6. The right to consumer education.
According to the Supreme Court, cases both civil and criminal as well as in Consumer Forum,
are often filed against medical practitioners and hospitals complaining of medical negligence
against doctors, hospitals, or nursing homes, hence the latter would naturally like to know about
their liability. The general principles on this subject have been lucidly and elaborately explained
in the three Judge Bench decisions30 of Court.

30Jacob Mathew vs. State of Punjab and Anr. (2005) 6 SCC 1.

Section 2 of the CPA enables a consumer patient to make a complaint to a redressal forum in
respect of a defective service provided that the service has been paid for. Defective in the context
of a doctors services means negligent. Services do not include a free service or a service given
under a contract of personal service. A personal service has been held to apply to a master and
servant relationship only.
Acknowledging the fact that the human body is a complex organization which can suffer from
malfunction that can be difficult to diagnose correctly even by experienced medical
professionals, the CPA underlines that a medical professional can be held responsible in case
he/she fails to diagnose the medical condition correctly due to lack of knowledge, skills and care
that

is

expected

of

him.

Consequently a mistaken diagnosis cannot be considered as a case of wrong diagnosis and due to
this the consumer forum has sometimes ruled in favour of the doctor concerned. But the failure
to take care when such care has to be exercised by a medical professional, does implicate the
professional

under

medical

negligence

making

him/her

liable

for

punishment.

Under Civil Courts, the aggrieved patients can file a case against the doctor for monetary
compensation for which the patient is to pay Court fees that depends upon the compensation
sought. Probably, due to near acceptance of medical negligence as inevitable by the patients and
their relatives or local settlements, not many cases have reached the apex court of law in the past.
The legal remedies are based on the law of Torts, Section 1-A of the Fatal Accidents Act, 1855
and the Section 357 of Cr. P.C., 1973. But to avail it, aggrieved patients have to wait for years
and

spend

considerable

amount

of

money

on

litigations.

The Civil Court cases take care the route of Sub-Court, District Court, High Court and Supreme
Court.
A written complaint can be filed before the District Consumer Disputes Redressal Forum District
Forum) for pecuniary value/original jurisdiction of upto Rs.20,00,000/-(twenty lakh) and State
Consumer Disputes Redressal Commission (State Commission) for value upto Rs1 crore and

National Consumer Disputes Redressal Commission (National Commission) for value above Rs
1 crore. National Commission has Appellate jurisdiction over the orders passed by the State
Commission and State Commission has Appellate jurisdiction over the orders passed by the
District Forum. However, there is no court fee to be paid to file a complaint in a Consumer
Forum/Commission. Further, a complainant can present his case on his own without the help of a
lawyer. The maximum time limit for a claim to be filed under CPA is 2 years from the date of
occurrence

of

the

cause

of

action.

As per the Consumer Protection Rules, 1987, a complaint filed in the Consumer
Forum/Commission shall be adjudicated, within a period of 90 days from the date of notice by
opposite party and within 150 days if it requires analysis or testing of commodities. There are
also other legal relief (other than CPA & Civil Courts ) where aggrieved patients can file written
complaint
1.

Medical

2.

Monopolies

against
Council
and

of

medical
India

Restrictive

and
Trade

Dental
Practices

professionals:
Council
Commission,

of

India.
(MRTP).

3. Public Interest Litigation.

As a result of the judgment31, medical profession has been brought under the Section 2(1) (o) of
CPA, 1986 and also, it has included the following categories of Doctors/hospitals under this
Section:
1. All medical / dental practitioners doing independent medical / dental practice unless rendering
only free service.

31Indian Medical Association v. V.P.Shantha 111 (1995) CPJ1 (SC); 1995 (3) CPR 412:1995 (6) SCALE 273:1996
CCJ 1 (SC)

2. Private hospitals charging all patients.

3. All hospitals having free as well as paying patients and all the paying and free category
patients receiving treatment in such hospitals.
4. Medical / dental practitioners and hospitals paid by an insurance firm for the treatment of a
client

or

an

employment

for

that

of

an

employee.

It exempts only those hospitals and the medical / dental practitioners of such hospitals which
offer free service to all patients.

CHAPTER-7
CONCLUSION / SUGGESTIONS

The recent Supreme Court judgment has provided respite for medical practitioners. This should
be utilized to reduce unethical practice, to improve doctor- patient relationship and to strive for
service to the humanity. To achieve this, following suggestions are recommended.
1) The Supreme Court in recent judgment states that Statutory Rules or Executive Instructions
incorporating certain guidelines need to be framed and issued by the Government of India and/or
State Governments in consultation with the Medical Council of India.
2) The Continuing Medical Education [CME] workshops should be arranged by Medical
Council of India / State Medical Council to refresh the knowledge of medical practitioners and to
increase awareness among medical practitioners regarding newer technologies and developments
in medical sciences, which will be beneficial to the patients and society at large.
3) Medical Council of India should be strengthened and allotted more powers, including the
creation of an independent investigating mechanism, to implement the different Acts and Rules
as framed by Government of India.
4) A panel should be formed by Medical Council of India / State Medical Council at each district
level which will look after medical negligence cases. The panel should consist of three members
from medical profession, one from judiciary and one from social activist group. The private
complaint regarding medical negligence should proceed to this panel first, which will study the
matter in details. The same judicial procedure is to be followed as followed in cases of
disciplinary control over medical practitioners and it must be time bound inquiry. After inquiry, if
the medical practitioner is found guilty of medical negligence, it will provide punishment in the
form of temporary or permanent erasure of the name of medial practitioners from the medical
Register. The result of the inquiry will be informed to the complainant and the complainant will
decide whether to file a case against the medical practitioner in court or not. This should also
provide scientific basis for investigating agencies to proceed further as per law of the land.
5) The role of disciplinary committee which looks after the violation of code of medical ethics is
crucial as it is necessary in changing scenario to hold inquiry, suomoto regarding unethical
practice among medical practitioner and take necessary action.
6) Health education and awareness programme for people should be conducted and propagated
through media so that common man should be educated regarding intricacies of human body,
disease and treatment. This will help in reducing the litigation cases against medical
practitioners.

7) The limit of penalty imposed on opposite party, if the complaint made against medical
practitioners is found to be frivolous or vexatious (as per the amendment in section 26 of
the CPA in 1993) should be exceeded from present Rs.10000/- to Rs.50000/- so that frivolous
complaints will be reduced.
8) To prevent unnecessary defamation of the medical practitioners in society, a blanket ban
should be placed on print media as well as on electronic media, so that the name of the doctor
and hospital on whom allegations are made regarding medical negligence should not be exposed
till he/she is found guilty and is convicted by the court of law.
I conclude my paper with a few suggestions to be incorporated:
1. Inclusion of an eminent medical person with good repute and competence as a member
of district forum, state commission and national commission.
2. To make a provision not to entertain complaints against doctors on trivial grounds and to
have a sub-committee to scrutinize the complaints and save time for the commission.
3. A provision must be made to check mushrooming of quacks and sternly dealing with
them.
4. Evolve a system to promote efficiency and continuous updating of knowledge by older
generation of doctors.
5. Some capable agency should impartially identify or set norms to determine the cases of
gross negligence from all medical accidents.
6. A reasonable amount of fees to be fixed to file a petition .

BIBLIOGRAPHY
ACTS:

Indian Penal Code, 1860

Constitution Of India, 1950
Consumer Protection Act, 1986
Medical Council Act,1956

BOOKS:

Law of Torts, Ratanlal Dhirajlal

Constitution Of India, M.P.Jain
Medical Law and Ethics, PurushotamBehera

INTERNET SOURCES:

World Health Organization website

Manupatra search