RAJIV GANDHI NATIONAL UNIVERSITY OF LAW

PATIALA

SEMINAR PAPER
LEGAL METHOD AND RESEARCH METHODOLOGY

TOPIC : MEDICAL NEGLIGENCE : AN ANALYSIS OF

RECENT JUDICIAL INTERPRETATIONS

SUBMITTED TO: SUBMITTED BY:

Dr. ANAND PAWAR AYUSH SUNDARKA

PROFESSOR OF LAW 18532

 ACKNOWLEDGEMENTS

I take this opportunity to express my profound gratitude and

deep regards to my Professor Dr. Anand Pawar for his
exemplary guidance, monitoring and constant encouragement
throughout the course of this project. The blessing, help and
guidance given by him time to time shall carry me a long way in
the journey of life on which I am about to embark.
I also take opportunity to express a deep sense of gratitude to
this university for its cordial support, valuable information, and
guidance which helped me in completing this task through
various stages.
Lastly, I would like to thank almighty god, my parents and
friends for their constant encouragement without which this
assignment would not have been possible.
 TABLE OF CONTENTS

CONTENTS PAGE NUMBER

Chapter 1 1-4
Introduction

1.1 What is Medical Negligence?

1.2 Right to Health is a Constitutional Right
1.3 Doctor-Patient Relationship

Chapter 2 5-9
Medical Negligence and Different Laws in India

2.1 Medical Negligence under Law of Torts

2.2 Medical Negligence under Consumer Protection Act

2.3 Medical Negligence under Section 304A of IPC,1860

2.4 Position under Law of Torts and Consumer Protection Act, 1986 – A
comparative Study

Chapter 3 10-13
Emerging trends and new challenges in the cases of Medical Negligence

3.1 Liability of Surgeons

3.2 Liability of Hospitals and Nursing Homes

Chapter 4 14-17
JUDICIAL INTERPRETATION OF MEDICAL NEGLIGENCE LIABILITY

4.1 Recent Judicial Interpretations

4.2 No Cure/No Success is not Negligence

4.3 Principles to be followed while deciding cases of Medical Negligence

Chapter 5 18-19
Conclusion and Suggestions
 CH. 1. INTRODUCTION

Negligence is the breach of a duty caused by omission to do something which is a reasonable

man guided by those considerations which ordinarily regulate the conduct of human affairs
would do, or do something which a prudent and reasonable man would not do. Negligence
becomes actionable on account of injury resulting from the act or omission amounting to
negligence attributable to the person sued. The essential components of negligence, as
recognized, are three: “duty”, “breach” and “resulting damage”.

1.1 What is Medical Negligence?

Medical Negligence is not defined in any Code or Act. So far, no legislature has made any
attempt to define it. Even the medico-legal jurists have not come forward to provide a specific
meaning to this expression. ‘Medical Negligence’ is always an outcome of doctor-patient inter se
conduct and relationship, which lacks uniformity. The issue of medical negligence is a
complicated one as medical professionals deal with human body. 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. Medical
opinion may differ with regard to the course of action adopted by a doctor treating a patient.
Further the concept of medical negligence may be studied with reference to the extent of
approach of a medical professional towards three under mentioned concepts, which generally
work as guidelines to determine the factum of medical negligence or otherwise in a particular
case.

1) Duty of care in providing appropriate treatment.

2) Duty of care in accepting the patient for treatment.
3) Breach of duty or commission of negligence in any of them and damage caused by such
breach.

So, in other words, medical negligence is result of some irregular conduct on the part of any
member of the profession or related services in discharge of professional duties. Broadly
speaking medical negligence means negligence resulting from the failure on the part of the

1
doctor to act in accordance with medical standards in vogue, which are being practiced by an
ordinary and reasonably competent man, practicing on the same branch of medicine or surgery.
Moreover, negligence in medical care, may be at patient and his attendants level particularly at
post operative care stage and it may contribute to some extent medical negligence alleged to be
committed by medical professionals. Further, one of the tests of medical negligence is that
something which is required under medical practice to be done was not done or what was done
was contradicted at the same time, it is also a settled principle of law that a specialist is required
to know the latest technique for management of the patient and if he is ignorant about it, then he
could be considered to be negligent in following his profession.

1.2 Right to health is a constitutional right

The preservation of human life is of paramount importance. It is so, on the account of the fact
that once life is lost, it cannot be reverted back as resurrection is beyond the capacity of a man.
In State of Punjab v. Mohinder Singh Chawla1 the court opined that Right to life enshrined in
Article 21 of the Constitution of India includes right to health. Health is a wealth to a man as it is
required for a man to earn his living, sustain his dignity indeed, an integral part of the said
article. The dream of healthy nation is enshrined in the Directive Principles of State Policy also
as an integral part of the Constitution.

Article 21 of the Constitution of India casts obligation on state and medical professionals to
preserve life. Every doctor whether at a government hospital or otherwise has the professional
obligation as well to extend his services with due expertise for protecting life. No law or state
action can intervene to avoid or delay the discharge of the paramount obligation cast upon the
members of medical profession. The obligation being total, absolute and paramount laws of
procedure whether in statutes or otherwise, which would interfere with the discharge of this
obligation cannot be sustained and must therefore, give away2

1.3 Doctor-Patient Relationship

1
AIR 1997 SC 1225
2
Pt. Parmanand Katara v. Union of India, AIR 1989 SC 2039: 1989 SCC (Cr) 221: 1989(3) SCR 997: 1989(3)
Crimes 156 (SC).

2
The most pious profession in this world is Medical Profession because the doctor is placed
second only to Almighty God. Medical Profession is considered to be humanitarian profession
and humane in its application. It is a perfect blend of Science and humanities. The sole aim of
this profession is to improve the quality of life of human beings by curbing down deadly diseases
by the way of research in Medical Sciences. However, in recent times, the doctor patient
relationship has undergone serious changes.

The relationship between the doctor and patient based on trust and confidence is now a talk of
olden days. Commercialization has made almost all professional fields corrupt and hollow and
the medical profession is no exception to the case. The doctor-patient relationship has, thus,
deteriorated considerably. In Spring Meadows Hospital, New Delhi v. Harjot Ahluwalia3 the
Supreme Court opined that in recent days, we are dealing with a problem which centres round
medical ethics wherein big hospitals mercilessly extract money from poor patients and their
families in the grab of doing service to Humanity, and yet do not provide with necessary
facilities. On the other hand, the dissatisfied patients have also taken hospitals as an easy target.
It is however difficult to raise an action of Negligence and establish it because the standard of
duty of care is a difficult task to prove.

Thus, the relationship between the doctor and patient is not always balanced. In this case, it was
also held that in recent days, the increased pressure on the hospitals and the failing standards of
professional competence and in addition to both the increasing complexity of diagnostic methods
have contributed to Medical Negligence. The awareness among people has also increased due to
which the cases of medical negligence is coming to light more often. In Indian Medical
Association v. V.P. Shantha4, the Supreme Court held that the relationship of doctor and patient
is based on certain degrees of mutual trust and confidence, therefore the services rendered by the
doctors can be regarded as personal service but because there is no master-servant relationship,
the contract between the two cannot be considered as a contact of personal service, rather, it can
only be considered as a contract for services.

3
1998 CTJ 81 (SC) CP: 1998(1) CPR 1 (SC) [Para 9]
4
AIR 1995 SC 1(20)

3
When a doctor accepts to treat any person, it is an implied contract. Default on the part of either
party renders that party liable to have the damages assessed against it if the default has resulted
in either physical or mental injury or monetary loss to the other party, as for example, wrong
diagnosis, and unnecessary surgery, criminal abortion, divulging professional secrets, non-
payment of doctors fees etc.5

5
Parikh’s Text Book of Medical Jurisprudence and Toxicology, Fifth Edition at page 2.

4
 CH. 2. MEDICAL NEGLIGENCE AND DIFFERENT LAWS IN
INDIA

The Concept of Medical Negligence has been incorporated in Indian Laws in three wide
categories i.e. Criminal Negligence under Criminal Law, Civil Negligence under law of Torts
and Negligence under Consumer Protection Act. There are different provisions in these three
laws which cover Medical Negligence and provides for remedy in the form of Compensation and
Punishment.

2.1 Medical Negligence under Law of Torts

The position under law of torts regarding medical negligence is very important because it covers
that aspect which is not covered by Consumer Protection Act. Under Law of Torts, a doctor can
be held liable for negligence even if the services provided is for free. So, this can be asserted that
where the jurisdiction of Consumer Protection Act ends, the jurisdiction of Law of Tort begins.

The cases where the services provided by hospitals and doctors do not fall within the meaning of
“Services” as defined under Consumer Protection Act are covered by Law of Torts. The patient
can claim compensation on account of negligence by doctor or hospital under Law of Torts. The
burden of proof in this case, lies upon the patient and he has to prove that the doctor or the
hospital was negligent because of which he has suffered injury. The persons who offer medical
services implicitly state that they have the skill and knowledge to do so. They also impliedly
undertake that they have the skill to decide whether to take a case, decide treatment and
administer the treatment and this is known as “implied undertaking” on the part of Medical
Practitioner. Such cases of negligence may include transfusion of blood of incorrect blood
groups, leaving a foreign substance in patient’s abdomen after operation, removal of organs
without consent, and administering wrong medicine which leads to injury6.

However, certain things have to be proved before making a doctor liable for negligence. The
Doctor accused of negligence must have committed an act or omission as against his duty to care

6
Talha Abdul Rahman, “ Medical Negligence and Doctor’s Liability”, Indian Journal of Medical Ethics, April-June,
2005.

5
and this must have caused some harm to the party. Expert Opinions and evidences present in
Medical Sciences must be cited by the patient to prove his allegation7.

2.2 Medical Negligence under Consumer Protection Act

“Whether the service rendered by a medical practitioner, covered under the definition of
‘Service’ under Section 2(1)(o) of Consumer Protection Act?”

The Apex Court has settled down the position regarding this question in the landmark decision of
Indian Medical Association v. V.P. Shantha8. By this decision, the Court brought the
negligence by the medical practitioners within the ambit of this Act. The term ‘Service’ as
defined under Sec. 2(1)(o) includes the service rendered by the Medical Practitioners. The
service so rendered for consideration by way of consultation, diagnosis and treatment, both
medicinal and surgical, by private practitioners, hospitals and nursing homes has been included
within the meaning of ‘Service’. The person who has availed such service is known to be
consumer, and he can sue the medical practitioner for the negligence committed on his part. But,
what makes the scope of Consumer Protection Act narrower than that of Law of Torts, is the
services which are taken free of cost like in Government Hospitals or any such hospital where
every patient is rendered free medical service. Such services have been expressly excluded from
the purview of this Act. Some important points from the Judgment which make a clear-cut
distinction between ‘services rendered free of cost’ and ‘services rendered in lieu of
consideration’ are listed below9.

1. Service rendered to a patient by a medical practitioner (except where the doctor renders
service free of cost to every patient or under a contract of personal service) by way of
consultation, diagnosis and treatment, medicinal and surgical, would fall within the ambit
of ‘service’ as defined in Section 2(1)(o) of the Act.
2. Service rendered free of charge by a medical practitioner attached to a hospital/nursing
home or a medical officer employed in a hospital/nursing home where such services are
rendered free of charge to everybody, would not be service as defined in the Section

7
Dr. Lakshman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 (SC) 128.
8
Supra note 4.
9
Tapas Kumar, MedicalNegligence and the Law in India, Oxford University Press, New Delhi,
2010 p. 231
6
 2(1)(o) of the Act, the payment of a token amount for registration purpose only at
hospital/nursing home would not alter the position.
3. Service rendered at a non- Government hospital/Nursing home where no charge
whatsoever is made from any person availing the service and all patients (rich and poor)
are given free service – is outside the purview of the expression ‘service’ as defined in
Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only
at the hospital/Nursing home would not alter the position.
4. Service rendered at a non-Government hospital/Nursing home where charges are required
to be paid by the persons who are in a position to pay and persons who cannot afford to
pay are rendered service free of charge would fall within the ambit of the expression
‘service’ as defined in Section 2(1)(o) of the Act irrespective of the fact that the service is
rendered free of charge to persons who are not in a position to pay for such services. Free
services would also be ‘service’ and the recipient a ‘consumer’ under the Act.
5. Service rendered by a medical practitioner or hospital/Nursing home cannot be regarded
as service rendered free of charge, if the person availing the service has taken an
insurance policy for medical care whereunder the charges for consultation, diagnosis and
medical treatment are borne by the insurance company and such service would fall within
the ambit of ‘service’ as defined in Section 2(1)(o) of the Act.

The judgment has expressly provided the answer to the question and made a clear-cut
distinction between services rendered free of cost and services rendered for consideration.
The Apex Court through this judgment has brought the “services rendered for consideration”
within the meaning of ‘services’ under Section 2(1)(o) of the Act and excluded from its
purview “services rendered free of cost”.

2.3 Medical Negligence under Section 304-A of IPC

The degree has always been one of the most important factors which determine the
distinction between civil and criminal liability in the cases of Negligence. In Kurban

7
 Hussein v. State of Maharashtra10, the case in which sec. 304-A was under consideration, it
was stated that-

“To impose criminal liability under Section 304-A, it is necessary that the death should have
been the direct result of rash and negligent act of the accused, without other person’s
intervention”.

The position is criminal law is far different from other laws. The Indian Penal Code Provides
for “Death by Rash and Negligent Act” under Section 304-A which also covers cases of
medical negligence if the death of patient is caused as the direct result of the negligent act of
the Doctor. Also, the negligence should be gross or a result of a reckless act of a higher
degree than the same in civil cases.

The apex court in Jacob Mathew v. State of Punjab11, 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.”

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 a very high degree.

On the other hand, Sections 80 and 88 of the Indian Penal Code contain defenses for doctors
accused of criminal liability. Under Section 80 (accident in doing a lawful act) nothing is an
offence that is done by accident or misfortune and without any criminal intention or
knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper
care and caution. According to Section 88, a person cannot be accused of an offence if she/
he performs an act in good faith for the other’s benefit, does not intend to cause harm even if
there is a risk, and the patient has explicitly or implicitly given consent.

10
Sir Lawrence Jenkins in Emperor v. Omkar Rampratap, 4 BOM LR 679
11
2005 SCC 6 (1)

8
2.4 Position under Law of Torts and Consumer Protection Act, 1986 – A
comparative Study

Before the enforcement of the Consumer Protection Act, the field of medical negligence was
governed only by the law of torts. But with the enactment of Consumer Protection Act, the
victims of medical negligence has one more remedy where they can claim compensation as
consumers for deficiency in services. The remedy under law of torts gain importance by the
virtue of it being wider in scope than the remedy under Consumer Protection Act.

Under Law of torts, a patient can claim compensation for medical negligence on the part of
doctor/hospital/nursing home even when the services have been undertaken free of cost. On
the other hand, a doctor or hospital or nursing home is liable under Consumer Protection Act
only when the services rendered by the doctor were for some consideration. Only then, the
services by such medical practitioner fall within the ambit of the meaning of “Services” as
envisaged under Section 2(1)(o) of the Consumer Protection Act.

To conclude on this aspect, we can safely hold that the Law of Torts is wider in scope than
Consumer Protection Act because it provides remedy to the aggrieved patient in both
situations, where the services were undertaken free of cost and also, where the services were
rendered by doctors for some consideration. So, it can be asserted that where the jurisdiction
of Consumer Protection Act ends, jurisdiction of Law of Torts begins.

9
 CH. 3. EMERGING TRENDS AND NEW CHALLANGES IN
THE CASES OF MEDICAL NEGLIGENCE

3.1 Liability of Surgeons

The Surgeon is the most responsible person in the operation theatre for conducting surgery.
He is under the duty to thoroughly examine the pathological reports before initiating surgery.
He is also under the duty to explain the facts within his special knowledge. In Reji Mathew
and anr. v. Dr. Radhakrishnan and anr.12, it was held “ the decision to proceed with the
surgery should be a joint one, that means the assessment of the risk is made by anaesthetist,
surgeon, and internist.”

It is the first and foremost duty of a doctor to examine the X-ray report and other
pathological tests including blood sugar and blood group before performing operation.
Going ahead with the surgery without such reports is negligence on the part of the surgeon.13

In the operation theatre for conducting a surgery, the surgeon is the most responsible person
and he cannot run from his responsibility, putting the responsibility on some other person
like anaesthetist and other medical staff.

However, the inherent risks of surgery have also been recognized. The Supreme Court in
A.S. Mittal and others vs. State of U.P. & others14 recognized the dangers which are
inherent in surgical operations. It noted, “Mistakes will occur on occasions despite the
exercise of reasonable skill and care”.

3.2 Liability of Hospitals and Nursing Homes

The liability of a hospital in cases of medical negligence could be direct or vicarious. Direct
liability in this sense would mean a deficiency in the services provided by the hospital thus

12
2004 CTJ 553 (NC) (CP)
13
Dr. Dwivedi Pannag Bhushan v. Balaram Kumar Singh, 2004 (11) CLD 442 (Jharkhand)
14
AIR 1989 SC 1570 = 1989 (3) SCC 223 = 1989 (3) SCR 241

10
making it unsafe and not suitable for treatment. Vicarious liability, on the other hand, would
refer to the liability of the hospital as an employer for the negligent acts of its employees.

Some of the conditions under which a hospital is directly liable are:

1) Improper maintenance of hospital resulting in an injury to or death of the patient.

2) Failure in providing a safe and suitable environment as guaranteed–like when the patient
is affected by malfunctioning equipment, incompetent staff, inadequate accommodation,
etc.
3) Deceptive or misleading signboards, advertisements, and notices, false claims of
availability of certain facilities which may be seen as a deficiency in services or as unfair
trade practices under the Consumer Protection Act and damages can be awarded for such
malpractices.
4) Charging for a facility which was not provided, or charging more than what is mentioned
in the displayed list of charges or agreed.
5) Testing for HIV and Hepatitis B is either mandatory or voluntary. When testing is legally
done without the consent of the patient, it is known as mandatory testing for instance
when screening for blood donors, semen donors or organ donors. In other cases it is
voluntary, and express written consent of the patient is necessary to respect his/her need
to maintain confidentiality.
6) Improper maintenance of records of treatment and failure to hand over such records to the
patient or his authorized attendant/legal authorities within 72 hours, which is in violation
of the Medical Council of India Regulations, 2002.

Also, if such records are not provided to the patient or attendant, it may also amount to
deficiency in services under the Consumer Protection Act, 1986.

The employer is responsible not only for his acts and omissions but also for those of his
employees, as long as such acts occur within the course and scope of employment. This
liability is based upon the maxims “respondent superior” which means “let the master
answer” and “qui facit per alium facit per se” which means “He who acts through another
does the act himself.”

11
 An exception to the above principle is seen in the “borrowed servant doctrine” according to
which the employer shall not be liable for acts of an employee when that employee is
working under the direct supervision of another employer.

For example, when a surgeon employed by one hospital visits another for conducting a
surgery, the other hospital where the surgery is performed would be seen liable for the acts of
the surgeon.

However, in present times most doctors are not employees of the hospital and are
independent contractors instead. Whether or not a doctor is an employee of the hospital
would depend on upon the nature of his/her relationship with the hospital.

But a hospital cannot escape its liability by merely saying that it cannot suo moto perform
any operation or amputation and that it provided only infrastructural facilities, nursing
services, support staff, technicians. The hospital is not only responsible for the staff it
provides but also for independent contractors such as anesthetists/surgeons or doctors in
some cases–who admit or operate a particular case. This was held in the case of Smt. Rekha
Gupta v. Bombay Hospital Trust and Anr.15 by the National Consumer Disputes Redressal
Commission.

In Joseph Alias Pappachan v. Dr. George Moonjerly16, it was held that “persons who run
hospitals 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 staff are negligent in giving treatment, they are just as liable for that
negligence as anyone else who employs others to do his duties for him.’

In the case of negligent acts that take place in government hospitals, it has been held that the
state can be directly liable in case there is a lack of proper facilities, equipment or staff and it
may be vicariously liable for negligent acts of its doctors. In a few cases, the court has even

15
2003(2) CPJ 160 (NCDRC)
16
1995 ACJ 253

12
granted compensation to the complainant paid by the government doctor whose negligence
has been established.

13
 CH. 4. JUDICIAL INTERPRETATION OF MEDICAL
NEGLIGENCE LIABILITY

4.1 Recent Judicial Interpretations

In a recent article published in The Indian Express dated, April 9 th , 2017, states that Supreme
Court pardoned a doctor of medical negligence charge after 20 years of an incident in which a
road accident victim succumbed to injuries at a hospital. The apex court relied on its earlier
verdict to say that in cases where negligence is alleged against professionals like doctors the
court should be careful before instituting criminal proceedings. Doctors in India may be held
liable for their services individually or vicariously unless they come within the exceptions
specified in the case of Indian Medical Association vs V. P. Santha17 Doctors are not liable for
their services individually or vicariously if they do not charge fees. Thus, free treatment at a non-
government hospital, governmental hospital, health center, dispensary or nursing home would
not be considered a “service” as defined in Section 2 (1) (0) of the Consumer Protection Act,
1986. Criminal Negligence Criminal Negligence as per Section 304A of the Indian Penal Code
of 1860 states that whoever causes the death of a person by a rash or negligent act not amounting
to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine,
or with both. In the Santra case, the Supreme Court has pointed out that liability in civil law is
based upon the number of damages incurred; in criminal law, the amount and degree of
negligence is a factor in determining liability. However, certain elements must be established to
determine criminal liability in any particular case, the motive of the offence, the magnitude of
the offence and the character of the offender. Burden of Proof and Chances of Error Generally,
the burden of proof of negligence, carelessness or insufficiency lies with the complainant. The
law requires a higher standard of evidence than otherwise, to support an allegation of negligence
against a doctor. In cases of medical negligence, the patient must establish her/ his claim against
the doctor. In case of Calcutta Medical Research Institute vs Bimalesh Chatterjee,18 it was held
that the responsibility of proving negligence and the resultant deficiency in service was clearly
on the complainant.

17
Supra note 4
18
(1991) 1 CPJ 13 NC

14
4.2 No Cure/No Success is not Negligence

Dr. M. Kochar vs Ispita Seal19– In this recent case, the National Consumer Dispute Redressal
Commission (NCDRC) was confronted with the issue of failure in IVF procedure. The
complainant in the case complained of failure in IVF procedure and demanded compensation
from the Doctor on account of medical negligence. The National Commission in the case held
that “No cure/ no success is not a negligence”, thus fastening the liability upon the treating
doctor is unjustified.

4.3 Principles to be followed while deciding cases of Medical Negligence

Kusum Sharma & Ors v. Batra Hospital &Medical Research20– In this case, the Supreme Court
enumerated the following principles to be followed while deciding whether medical professional
is guilty of medical negligence:

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 the prosecution must be culpable or gross and not the
negligence merely based upon an 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 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.
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.

19
I(2018)CPJ41(NC)
20
AIR2010SC1050

15
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 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 the
medical professionals are not unnecessary harassed or humiliated so that they
can perform their professional duties without fear and apprehension.

10. The medical practitioners at times also have to be saved from such a class of
complainants who 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

16
 perform their duties with reasonable skill and competence and in the interest
of the patients. The interest and welfare of the patients have to be paramount
for the medical professionals.

No straightjacket formula to determine as to when the cause of action has

accrued to the Customer
V.N.Shrikhande vs Anita Sena Fernandes21 - In this case, the Supreme Court had held
that in cases of medical negligence, no straitjacket formula can be applied for determining
as to when the cause of action has accrued to the consumer. Each case is to be decided on its
own facts. If the effect of negligence on the doctor’s part or any person associated with him is
patent, the cause of action will be deemed to have arisen on the date when the act of negligence
was done. If, on the other hand, the effect of negligence is latent, then the cause of action will
arise on the date when the patient or his representative- complainant discovers the harm/injury
caused due to such act or the date when the patient or his representative-complainant could have,
by exercise of reasonable diligence discovered the act constituting negligence.

21
[(2011) 1 SCC 53]-

17
 CH. 5. CONCLUSION AND SUGGESTIONS

Conclusion

The foregoing discussion reflects that how a patient who intends to sue the doctor or hospital for
medical negligence may resort to different mechanisms available under the Constitution and
various statutes. In our country, there is no specific law which exclusively deals with the rights
and obligations of the health care providers and patients. A person can get remedies for medical
negligence under the Indian Constitution for protecting his right to health or can get
compensation under the Consumer Protection Act, 1986. Strictly speaking, the Constitution of
India does not guarantee any special rights to the patient. The patient’s rights are basically
derivative rights, which emanates from the obligation of the health care provider. The Supreme
Court in various cases has viewed that the right to life as enshrined in Article 21 of the
Constitution of India includes the right to health and medical treatment. The right to life would
be meaningless unless medical care is assured to a sick person [52] . Article 19(1) provides six
fundamental freedoms to all its citizens which can be restricted only on grounds mentioned in
Clauses (2) to (6) of Article 19 of the Constitution. These fundamental freedoms can be
effectively enjoyed only if a person has healthy life to live with dignity and free from any kind of
disease or exploitation which further ensured by the mandate of Article 21 of the Constitution.
When breach of this right occurs, the health care provider will be held liable for negligence.
Also, any person whose rights have been infringed can move the Supreme Court under article 32
of the Constitution. The court has liberalized traditional rule that “only a person who has suffered
injury by reason of his legal right or interest is entitled to seek judicial redress11. The Supreme
Court has enlarged the rights of citizens under which any person or group of person or public
spiritual individual may move the Supreme Court or High Court for the enforcement of
fundamental rights of people who are unable to approach the court due to their illiteracy or social
or economic condition. The law of torts, providing for a residuary remedy, i.e. when no other
legal remedy is available under any law time being in force, the tortiuous remedies may be
invoked. The law relating negligence as a tort is very well developed and is capable to meet
newer kinds of cases because the emphasis of negligence as a tort is on D.B.D formula, i.e. Duty

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owed by the defendant to the plaintiff; Breach of duty by defendant; and the damage caused as a
result of the breach of the duty.

Suggestions

Disciplinary Action Complaint before the Medical Council of India

The Medical council of India grants recognition to medical degrees granted by universities or
medical institutions in India and such other qualifications granted by medical institutions in
foreign countries. It lays down and prescribes the minimum standards of medical education
required for granting recognition to the degrees awarded by Universities in India. Furthermore,
the Council is empowered to have disciplinary control over the medical practitioners including
the power to remove the names of medical practitioners permanently or for a specific period
from the medical registers when after due inquiry they are found to have been guilty of serious
professional misconduct.

Recommendatory Action Complaint before Human Rights Commission

Irrespective of different remedies medical negligence and medical malpractice discussed above,
there is yet an alternative mechanism for the protection of patients’ rights under National and
State Humans Rights Commission (NHRC and SHRC). Each patient irrespective of its caste,
creed, religion, economic status enjoys various Human Rights including Right to Life. Human
Right Commissions at national and state level protects are guardian of these rights. For instance,
NHRC/SHRC can hold the state accountable for violation of human rights of patients. NHRC
can play vital role in fulfillment of national and international human rights norms. Patient can
file complaints regarding violation of human rights before NHRC/SHRC as the case may be.
NHRC/SHRC then seeks explanations from the government for such violations and can also
initiate proceedings including independent investigation, issuance of summons to witness,
examination on oath etc. Thus, NHRC/SHRC is endowed with the powers of a Civil Court. It
persuades the state to pay compensation to the victims, patients in present case and also
recommends for the grants of immediate interim relief to the victim or his/her family.

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 BIBLIOGRAPHY

Books Referred:

1. M.P. Jain, Indian Constitutional Law, Lexis Nexis, Gurgaon, 2018.

2. H.M. Seervai, Constitutional Law of India, Volume II, Universal Law
Publishing CO. Pvt. Ltd., New Delhi, 2006.
3. Narendra Kumar, Constitutional Law of India, Allahabad Law Agency,
Allahabad, 2017.
4. Landmark Judgments, Universal Law Publishing, Lexis Nexis, Gurgaon,
2018.

Websites Referred:

1. www.manupatrafst.in
2. http://www.olivegreens.co.in/blog/are-we-ready-for-a-uniform-civil-code/
3. http://www.legalserviceindia.com/helpline/marriage.htm/
4. https://blogs.timesofindia.indiatimes.com/toi-editorials/time-for-ucc-if-unifying-india-is-
modis-mantra-uniform-civil-code-with-minority-backing-will-transform-indian-society/

Reports Referred:

1) PREVENTING BIGAMY via CONVERSION TO ISLAM – A PROPOSAL FOR GIVING

STATUTORY EFFECT TO SUPREME COURT RULINGS (LAW COMMISSION OF INDIA,
REPORT NO. 227)

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