Medical Negligence: An Analysis of

Recent Judicial Interpretations

 Introduction
 What is Medical Negligence?
An outcome of doctor-patient inter se conduct and relationship, which lacks uniformity.
Negligence resulting from the failure on the part of the doctor to act in accordance with
medical standards, which are being practiced by an ordinary and reasonably competent
man, practicing on the same branch of medicine or surgery.
Essesntial requirements to constitute medical negligence:
 Duty of care in providing appropriate treatment.
 Duty of care in accepting the patient for treatment.
 Breach of duty or commission of negligence in any of them and damage caused by such
breach.
 Right to Health is a Constitutional Right
Article 21 casts an obligation on state and medical professionals to preserve life.
The dream of healthy nation is also enshrined in the Directive Principles of State Policy,
as an integral part of the Constitution.
State of Punjab v. Mohinder Singh Chawla, 1997
Right to life enshrined in Article 21 of the Constitution of India includes right to health.
 Doctor-Patient Relationship
The relationship between doctor and patient is based on certain degrees of mutual trust
and confidence.
In recent times, the doctor patient relationship has undergone serious changes.
Commercialization has made almost all professional fields corrupt and hollow and the
medical profession is no exception to the case.

Spring Meadows Hospital, New Delhi v. Harjot Ahluwalia,1998

Supreme Court opined “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, dissatisfied patients have also taken hospitals as
an easy target.
 Medical Negligence and Different Laws in India

 Medical Negligence under Law of Torts

Covers both aspects, “Services for free” and “Services in lieu of Consideration or fees”.
The patient can claim compensation on account of negligence by doctor or hospital under
Law of Torts.
Burden of Proof lies on Patient who inserts medical negligence.
Expert Opinions and evidences present in Medical Sciences must be cited by the patient
to prove his allegation.
 Medical Negligence under Consumer Protection Act,1986
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’.
Indian Medical Association v. V.P. Shantha,1995
Supreme Court brought negligence by the medical practitioners within the ambit of this
Act.
Narrower than law of torts as it covers “services rendered in lieu of some consideration or
fees” only.
Does not cover services rendered for free.
 Medical Negligence under Section 304A of IPC,1860
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.
Negligence should be gross or a result of a reckless act of a higher degree than the same in
civil cases.
Jacob Mathew v. State of Punjab,2005
The Apex Court explained “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 expression “rash and negligent act” occurring in section 304-A of the I.P.C should be
qualified by the word ‘grossly’.”
Emerging Trends in Medical Negligence Liability

 Liability of Surgeons
Duty to thoroughly examine the pathological reports before initiating surgery.
Duty to explain the facts within his special knowledge.

Dr. Dwivedi Pannag Bhushan v. Balaram Kumar Singh, 2004

“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.”

Inherent risks of Surgery have been also recognized.

A.S. Mittal and others vs. State of U.P. & others, 1989
The Apex Court noted “Mistakes will occur on occasions despite the exercise of
reasonable skill and care”.
 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 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.
 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.
 Judicial Interpretation of Medical Negligence
Liability

 Recent Judicial Interpretations

No Cure/No Success is not Negligence

Dr. M. Kochar vs Ispita Seal, I(2018)CPJ41(NC)

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.
 No straightjacket formula to determine as to when
the cause of action has accrued to the Customer
V.N.Shrikhande vs Anita Sena Fernandes,2011
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
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