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NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

MEDICAL NEGLIGENCE IN INDIA


PROJECT ON LAW OF TORTS-I

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ACKNOWLEDGEMENT
I extend my sincere gratitude to everyone who helped me with the project. I am very thankful
towards our Law of Torts teacher, Professor Kavita Singh, who has been a wonderful mentor
and been a constant support throughout. The good wishes and assistance given by her from
time to time shall carry us a long way in the journey of life on which we are about to embark.
I am also thankful to the Library Administration for the provision of necessary books and
texts needed for the completion of this project. Finally, I would like to thank my parents,
classmates and seniors for all their guidance.

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TABLE OF CONTENTS

STATEMENT OF PROBLEM 4

OBJECTIVES OF THE PROJECT 5

REVIEW OF LITERATURE 6

RESEARCH METHODOLOGY 7

INTRODUCTION 8

NEGLIGENCE 9

PROFESSIONAL AND MEDICAL NEGLIGENCE 10

CASE LAWS 13

CONCLUSION 19

BIBLIOGRAPHY 20

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STATEMENT OF PROBLEM

This project seeks to study the evolution of Medical Negligence as a tort in India. This has
been done through various case laws.

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REVIEW OF LITERATURE

1. Ratanlal & Dhirajlal, Law of Torts (2016)

This book extensively covers the latest developments in the Law of Torts through
exhaustive notes and notable decisions of the Supreme Court and the High Courts.
Tortious liabilities such as Negligence, Defamation, Trespass, Nuisance etc. have been
thoroughly explained.

2. Bangia, R.K, Law of Torts (2017)

Bangia’s book on Law of Torts covers various topics under tortious liability and explains
the evolution of such torts through various case laws. The concepts are explained in a
brief and precise format.

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OBJECTIVES OF THE PROJECT
Medical Negligence has certainly become one of the most widespread, not to mention
controversial topic in the world. It is this nature of the system that has prompted me to take it
as the subject of my project work. In this project, we will try to study and comprehend:

1. Meaning and Essentials of Negligence


2. Meaning of Professional Negligence
3. Evolution of Medical Negligence as a tort (through case laws)

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RESEARCH METHODOLOGY

The method used in the research for this paper is doctrinal. The theories have been extracted
from various sources including books, journals and websites. It was then organized in a
coherent manner and analyzed thoroughly following which it was arranged in a logical
structure. Hence, the objectives of the study were reached and the project work was
completed.

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INTRODUCTION
Man is a social animal who believes and wants order in his life and surroundings. This is one
of the primary reasons that he created the concept of law. This creation helped every
individual to seek remedy in case he/she was unjustly injured by the acts of another
individual or group of individuals. This remedy came in the form of compensation or
punishment to the person who committed the wrongful act. The societies in the beginning
were rudimentary and so were the laws of the societies. Laws have grown with the growth of
society. This establishes a relationship between law and society, where law is an instrument
of social change, and as Pound would put it law must be stable, but it must not stand still.

Fast advancements in the medical field in the last century have reformed the field of medical
practice. Among every one of these improvements, the medical profession in India is at
intersection facing numerous moral and lawful difficulties in the act of the profession. The
medical sector that was once viewed as honourable is presently considered alongside
different professions in the obligation of paying for damages. A patient considers his doctor
as God who can do no wrong. In reality, doctors are human beings. And, to err is human.
Doctors may commit a mistake. They may be negligent. The support staff may be careless.
Two acts of negligence may give rise to a much bigger problem. In such a scenario, it is
critical to determine who was negligent, and under what circumstances.

In a country committed to the rule of law, such matters are taken to the court and judges are
supposed to decide. However, negligence by doctors is difficult to be determined by judges as
they are not trained in medical science. Their decisions are based on experts’ opinion. Judges
apply the basic principles of law in conjunction with the law of the land to make a decision.
Reasonableness and prudence are the guiding factors. In the context of Indian law, medical
negligence comes under 3 categories; Criminal negligence, civil negligence and negligence
under Consumer Protection Act. Different provisions regarding the remedy in the form of
punishment and compensation are there in three laws. The following is an analytical
comparison of the laws mentioned above about medical negligence. This project studies the
legal scenario of medical negligence in India in the light of various court judgments and tries
to understand as to what is expected from a doctor as a reasonable person and the liability of
the employer i.e. hospital.

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NEGLIGENCE
Negligence is the breach of a duty caused by the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a prudent and reasonable man would not
do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a
person to whom the defendant owes the duty of observing ordinary care and skill, by which
neglect the plaintiff has suffered injury to his person or property.1 According to Winfield,
“Negligence as a tort is the breach of a legal duty to take care which results in damage,
undesired by the defendant to the plaintiff”

The first definition involves three constituents of negligence:


(1) A legal duty to exercise due care on the part of the party complained of towards the party
complaining the former's conduct within the scope of the duty;
(2) Breach of the said duty; and
(3) Consequential damage.

Essentials

In an action for negligence, the plaintiff has to prove the following essentials:
The defendant owed duty of care to the plaintiff;

The defendant made the breach of that duty;

The defendant suffered damage as consequence thereof.

1
Law of Torts, Ratanlal & Dhirajlal, Twenty-seventh Edition 2016, edited by Justice G.P. Singh; page-470
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PROFESSIONAL NEGLIGENCE

According to the dictionary, meaning of the word professional is “A person, who is a member
of a professional body due to the education qualification and follows the prescribed code of
conduct.”

Professional Liability
It covers all aspects that professionals have to follow: codes of conduct when providing care
or services in their field. In the event of the failure to adhere to the professional codes of
ethics by the service provider a professional liability claim can be filed for.

Negligence by Professionals

The Supreme Court in Jacob Mathew v. State of Punjab2 explained this concept:

“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 with reasonable degree of care and
caution. He does not assure his client of the result. A lawyer does not tell his client that the
client shall win the case in all circumstances. A physician would not assure the patient of full
recovery in every case. A surgeon does not and cannot guarantee that the result of the surgery
would invariably be beneficial, much less to the extent of 100% for the person operated on.
The only assurance with such a professional can give or to be understood to have given by
implication is that he is possessed of that requisite skill in that branch of profession which he
is practising and while undertaking that performance of the task entrusted to him he would be
exercising his skill with reasonable competence. This is what the person approaching the
professional can expect. Judged by this standard, a professional maybe held liable for
negligence on one of two findings: either he was not possessed with the requisite skill which
he professed to have possessed, or, he did not exercise, with reasonable competence in the
given case, the skill which he did possess.”

2
Jacob Mathew v. State of Punjab, AIR 2005 SC 3180
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Since India’s laws and judgements are a lot based on the common law system, it’s important
to look into certain English cases as well. The Honourable Court in the above case referred to
the decision of Bolam v. Friern Hospital Management Committee3, wherein Mc Nair,J
observed

“Where you get a situation which involves the use of some special skill or competence, then
the test as to whether there has been negligence or not is not the test of the man on the top of
a Clapham omnibus. The test is the standard of the ordinary skilled man exercising and
professing to have that special skill”

The degree of skill and care required by a medical practitioner as explained in Halsbury’s
Laws of England4 is:

“The practitioner must bring to his task a reasonable degree of skill and knowledge, and must
exercise a reasonable degree of care. Neither the 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, and a person is not liable in negligence because someone else of greater skill and
knowledge would have prescribed different treatment or operated in a different way; nor is he
guilty of negligence if he has acted in accordance with a practice accepted as proper by a
responsible body of medical men skilled in that particular art, even though a body of adverse
opinion also existed among medical men.”

The above explanation clearly states that transgressing from the usual practice is not
necessarily an evidence of negligence. To establish liability on that basis it must be shown

1. That there is a usual and normal practice


2. That the defendant has not adopted it
3. That the course adopted is one that no professional man of ordinary skill would have
taken had been acting with ordinary care.

Negligence by Medical Professionals

A doctor when consulted by a patient owes him certain duties, namely a duty of care in deciding
whether to undertake the case; a duty of care in deciding what treatment to give and duty of care

3
Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582
4
Fourth Edition, Vol.30, Para 35. Quoted in Jacob Mathew v. State of Punjab AIR 2005 SC 3180
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in the administration of that treatment. A patient can file a case against the doctor for negligence
if any of these rights are violated.

In Jacob Mathew v. State of Punjab5 case, the Supreme Court of India has gone into details of the
meaning of negligence by medical professionals. “A simple lack of care, an error of judgment or
an accident, is not proof of negligence on the part of a medical professional. So long as a doctor
follows a practice acceptable to the medical profession of that day, he cannot be held liable for
negligence merely because a better alternative course or method of treatment was also available
or simply because a more skilled doctor would not have chosen to follow or resort to that practice
or procedure which the accused followed. When it comes to the failure of taking precautions what
has to be seen is whether those precautions were taken which the ordinary experience of men has
found to be sufficient; a failure to use special or extraordinary precautions which might have
prevented the particular happening cannot be the standard for judging the alleged negligence.
So also, the standard of care, while assessing the practice as adopted, is judged in the light of
knowledge available at the time of the incident, and not at the date of trial. Similarly, when the
charge of negligence arises out of failure to use some particular equipment, the charge would fail
if the equipment was not generally available at that particular time (that is, the time of the
incident) at which it is suggested it should have been used.”

Degree of Negligence

The Delhi High Court laid down in 2005 that in civil law, there are three degrees of negligence 6:

(i) lata culpa, gross neglect


(ii) levis culpa, ordinary neglect,
(iii)levissima culpa, slight neglect.

Every act of negligence by the doctor shall not attract punishment. Slight neglect will surely
not be punishable and ordinary neglect, as the name suggests, is also not to be punished. If we

5
Jacob Mathew v. State of Punjab, AIR 2005 SC 3180
6
Smt. Madhubala vs. Government of NCT of Delhi; Delhi High Court, 8 April 2005
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club these two, we get two categories: negligence for which the doctor shall be liable and that
negligence for which the doctor shall not be liable. In most of the cases, the dividing line
shall be quite clear, however, the problem is in those cases where the dividing line is thin.

Doctor’s duty of care

When a medical practitioner attends to hi patient, he owes him certain duties of care7

1) A duty of care in deciding whether to undertake the case;


2) A duty of care in deciding what treatment as advise;
3) A duty of care in the administration of the treatment.

CASE LAWS

CASE 1: Jacob Mathew v. State of Punjab8

Facts: On February 15, 1995, the informant's father, was admitted as a patient in the private
ward of a hospital. On February 22, 1995 at about 11 p.m., the patient felt difficulty in
breathing. The complainant's elder brother, who was present in the room contacted the duty
nurse, who in turn called a doctor to attend to the patient. No doctor turned up for 20-25
minutes. Then doctors came to the room of the patient. An oxygen cylinder was brought and
connected to the mouth of the patient, but the breathing problem increased further. The
patient tried to get up, but the medical staff asked him to remain in the bed. The oxygen
cylinder was found to be empty. There was no other gas cylinder available in the room. Son
of the patient went to the adjoining room and brought a gas cylinder. However, there was no
arrangement to make the gas cylinder functional and meanwhile, 5-7 minutes were wasted.
By this time, another doctor came and declared that the patient was dead. The complaint as
per records reads as follows. “The death of my father has occurred due to the carelessness of
doctors and nurses and non availability of oxygen cylinder and the empty cylinder was fixed
on the mouth of my father and his breathing was totally stopped hence my father died. I sent

7
Dr. L.B. Joshi v. T.B.Godbole, AIR 1969 185
8
Jacob Mathew v. State of Punjab, AIR 2005 SC 3180
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the dead body of my father to my village for cremation and for information I have come to
you. Suitable action be done.”
Judgement: The court discussed the matter in great detail and analyzed the aspect of negligence
from different perspectives – civil, criminal, torts, by professionals, etc. It was held that there was
no case of criminal rashness or negligence. What might be negligence in civil law might not
necessarily be negligence in criminal law. The court observed: “Generally speaking, it is the
amount of damages incurred which is determinative of the extent of liability in tort, but in
criminal law it is the amount and degree of negligence that is determinative of the liability. To
fasten liability in criminal law, the degree of negligence has to be higher than that of negligence
enough to fasten liability for damages in civil law, i.e. gross nor of a very high degree.”
Negligence to amount to a criminal offence, the court ruled, element of mens rea must be shown
to exist. The court also validated the application of Bolam test9 in India.

CASE 2: Achutrao Haribhau Khodwa v. State of Maharashtra10

Facts: A mop(towel) was left inside a woman’s peritoneal cavity while she was operated for
sterilization in a Government hospital causing peritonitis which resulted in her death.
Presumption of negligence by the doctor performing the operation was raised.

Judgement: The conclusion of negligence was drawn against the doctors by applying the
principle of res ipsa loquitor and the Government was held vicariously liable.

CASE 3: Dr. N.Ummar v. K.M.Hameed11

Facts: Biopsy was conducted on the patient by a pathologist and illness was wrongly
diagnosed as Tuberculosis, while the patient actually suffered from cancer. As a result of the
wrong diagnosis by the doctor, the patient died.

Judgement: The Kerala High Court said that it was a clear case of medical negligence. The
court observed: “When a person who possesses sufficient qualifications in the field, is ready
to give medical advice and treatment as an expert in that field, he impliedly undertakes that

9
A test that arose from English tort law, used to assess medical negligence.
10
Achutrao Haribhau Khodwa v. State of Maharashtra, AIR 1996 SC 2377
11
Dr. N.Ummar v. K.M.Hameed, AIR 2014 Kerala HC 257
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he possesses all sufficient skill and knowledge for such medical advice or treatment. Such a
person has a duty to diagnose the illness and to decide the treatment to be given and the
proper medicines to be administered.”

CASE 4: Sishir Rajan Saha v. The State of Tripura12

Facts: Ashim Saha, the petitioner’s son, met with an accident while travelling on his scooter.
He was admitted to the emergency ward of the G.B. Hospital, Agartala. The Senior Specialist
Doctor, P.Roy was unavailable at that time. Despite repeated calls he didn’t come to the
hospital as he was busy attending to his private patients. The patient succumbed to injuries.

Judgement: The doctor was held liable and was asked to pay Rs.1,25,000 as compensation
for the death of the petitioner’s son.

CASE 5: Jasbir Kaur v. State of Punjab13


Facts: A newly born child was found missing on the night of 25th June,1993 from the bed in
a government run hospital, in Amritsar. After a lot of search, the child was found in a
bleeding condition and with one eye totally injured with the eyeball out, in the bathroom. The
hospital authorities contended that the child had been taken away by a cat, who caused
damage to him. Question of negligence on part of the hospital was raised.

Judgement: The parents of the baby were given 1 lakh as compensation.

CASE 6: Pushpaleela v. State of Karnataka14

Facts: A free eye camp was organised by a social service organisation on 28th and 29th of
January,1988, where 151 people were operated upon for cataract problem. Most of these
people suffered from severe pain and various infections after the surgery. Many people lost
sight in on eye and many others lost the sight in both the eyes. An enquiry was made and the
final report stated that , the guidelines laid down by the Government of India for such eye
camps were not followed, and the procedure adopted for sterilization was not upto the mark.
The doctors who performed the operation were careless and negligent in many ways.

12
Sishir Rajan Saha v. The State of Tripura,AIR 2002 Punjab and Haryana HC 102
13
Jasbir Kaur v. State of Punjab, AIR 1995 Punjab and Haryana HC 278
14
Pushpaleela v. State of Karnataka,AIR 1999 Karnataka HC 119
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Judgement: The court directed the government to pay Rs.5000 as a temporary compensation
to 4 people who had become totally blind and also ordered the government to pay Rs.250 per
month to each of the 66 victims.

CASE 7: Indian Medical Association v. V.P Shantha and Others15

Facts: First issue which was raised in petition dealt with services of medical practitioner are
services under Consumer Protection Act, 1986. It was contended from the side of respondent
IMA that law distinguishes between profession and occupation and the Act include only
occupational services not those of professional services under Section 2(1)(o) of the Act. So,
medical profession being a professional service should not be covered under the Act.
Other argument which was raised by respondent was that “service” does not include any
such term medical service, so medical service are not in the purview of the Act. The court
noticed that medical professionals did not enjoy any immunity from being sued under torts ad
contracts.

Judgement: It was held by the Court that medical services will be treated as services as in
accordance with Section 2(1) (o) of the Act, hereinafter the potential user will be said
consumer of medical services. The court observed: “ In devising a rational approach to
professional liability which must provide proper protection to the consumers, the court must
require that professional men should possess a certain minimum degree of competence and
secondly, they should exercise reasonable care in discharge of their duties. A professional
owes to his client a duty in tort as well as in contract to exercise reasonable care in giving
advice or rendering services.”

CASE 8: Poonam Verma v. Ashwin Patel and Others16

Facts: A homeopathic doctor prescribed an allopathic medicine to a patient. As a result the


patient died

15
Indian Medical Association v. V.P Shantha and Others, 1994 SC 651
16
Poonam Verma v. Ashwin Patel and Others,1996 Volume IV SC 332
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Judgement: The doctor was held to be negligent and liable to compensate the wife of the
deceased for her husband’s death. He was held under a statutory duty not to cross the field of
any other system of medicine. Hence his conduct amounted to negligence per se actionable in
civil law.

CASE 9: R.P. Sharma v. State of Rajasthan17

Facts: The petitioner’s wife was admitted to SMS Hospital, Jaipur (government hospital) for
operation of removal of gallstone. After the operation the surgeon advised transfusion of
blood group O +ive to the patient. Due to the negligence of the hospital staff the bottle was
of another blood group. The patient gradually lost her eyesight and she died.

Judgements: The state was held vicariously liable for the death caused due to the negligence
of the hospital staff

CASE 10: Dr. Tokugha v. Apollo Hospitals Enterprise Limited18

Facts: The appellant’s marriage was called off because of disclosur by the Apollo Hospital,
Madras that the appellant was HIV(+). The appellant claimed that the hospital’s disclosure
was against medical ethics.

Judgement: The appeal was dismissed on several grounds. The court held that rule of
confidentiality was subject to certain exceptions when the situations demand disclosure of a
patient’s health condition in public interest-to save others from any potential risks. The court
also emphasised on the point that right to privacy was not an absolute right if such a right
endangered another person’s right to life. In this case the fiancée would have been inflicted
with HIV if the hospital had not informed her at the right time.

CASE 11: State of Haryana v. Smt.Santra19

17
R.P. Sharma v. State of Rajasthan, AIR 2002 Rajasthan HC 104
18
Dr. Tokugha v. Apollo Hospitals Enterprise Limited, AIR 1999 SC 495
19
State of Haryana v. Smt.Santra, AIR 2000 SC 1488
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Facts: Smt. Santra, a labourer approached the CMO, Gurugram, in 1988, for her sterilisation
under the State sponsored Family Planning programme She became pregnant after the
operation and gave birth to a child as the doctor who did the sterilisation surgery was
negligent. The birth of another kid increased the economic burden of the family. . It was
found on facts that the doctor had operated only the right fallopian tube and had left the left
fallopian tube untouched. The patient was informed that the operation was successful and was
assured that she would not conceive a child in future

Judgement: Both the doctor and state were held liable for the doctor’s negligence and was
asked to pay compensation to the family.

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CONCLUSION

The field of medicine has been abused by many corporate hospitals that treat patients as
revenue generating clumps of tissue – to be pricked, prodded and cut open at the slightest
pretext. However, when goals shift from honest treatment to cold revenue targets,
unnecessary intervention becomes the norm. Doctors at prestigious branded hospitals
routinely demand extensive blood-work and nuclear-imaging for a lot of their patients – and
when everything comes back normal, the patient heaves a sigh of relief and thanks the Doctor
for ‘being so cautious’! The cycle goes on and on, till the unfortunate time a patient actually
suffers from a serious underlying condition that needs urgent treatment.

In the midst of this mess, the only messiah, so to speak, has been the Indian judiciary. The
legal system, though, has to strike a careful balance between the autonomy of a doctor to
make judgments and the rights of a patient to be dealt with fairly. Sadly, gone are the days
when you could trust your doctor’s advice with blindfolds. With the unavoidable advent of
profiteering in medical treatment – it is now absolutely critical that patients know their rights.

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BIBLIOGRAPHY

STATUTES

1. The Constitution of India


2. The Consumer Protection Act, 1986
3. The Medical Council Act, 1956
4. Indian Penal Code, 1860

BOOKS

1. Ratanlal & Dhirajlal, Law of Torts, Negligence by Professionals, 27th Edition, 2016,
Page 535
2. Bangia, R K, Law of Torts, Professional and Medical Negligence, 24th Edition, 2017,
Page 262

INTERNET

1. http://www.iosrjournals.org/iosr-jhss/papers/Vol.%2021%20Issue10/Version-
7/A2110070106.pdf
2. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5109761/
3. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779962/
4. http://www.indiamedicaltimes.com/2015/08/06/review-salient-points-of-jacob-
mathew-vs-state-of-punjab-judgement/
5. https://www.researchgate.net/publication/221833087_Medical_negligence-
_Meaning_and_Scope_in_India
6. https://www.mciindia.org/ActivitiWebClient/actnamendments/theMedicalCouncilAct
1956
7. http://www.medindia.net/doctors/CPA/case-1.asp
8. www.manupatra.com

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