Medical Negligence in India

Table of Contents
 Introduction 
 Medical Negligence
o Medical negligence definition
o Examples of medical negligence
 What does not come under medical negligence
 Types of medical negligence
 Essentials of medical negligence
 Standard of care 
 Duty of care
 Burden of proof
 Proof of negligence
o Steps to proving a medical malpractice claim
 When does the liability arise
 Res ipsa loquitur
o How to prove a res ipsa loquitur case?
o Some Examples of Res Ipsa Medical Cases
 Filing a complaint
o Medical negligence complaint
 What is the cost involved in filing a complaint?
 Adjudication of liability
o Steps to follow under Medical Negligence Case
o Step by step procedure 
o Collection of evidence related to Medical Negligence
o Challenges faced by the victims of Medical Negligence
o Necessary test to determine Medical Negligence
 Medical negligence complaint in criminal court
o Provisions 
o Defences 
o Expert opinion
 Medical negligence complaint in civil cases  
o Compensation claim
 Medical negligence cases in consumer courts
o Who is a consumer
o When can a complaint be filed
o Who can file a complaint
o Forums in which one can file a complaint
o Compensation claim
o Appeal by doctor 
 Medical negligence cases in high courts/ supreme courts
 Medical negligence cases in India 
o Medical Negligence cases
 Supreme court judgement on medical negligence
 Conclusion
o References 

Introduction 
Medical negligence has become one of the serious issues in the country in
recent years. Even the medical profession, which is known to be one of the
noblest professions, is not immune to negligence which often results in the
death of the patient or complete/partial impairment or any other misery
which has adverse effects on the patient’s health. There are instances where
doctors who are under-educated leads to the proceedings in the court of law
due to the magnitude of negligence or deliberate conduct shown by the
doctors. 

Around 52 lakh medical injuries are recorded every year in India out of which
98,000 people in the country lose their lives in a year because of medical
negligence. It is really a serious concern for the entire nation that 10 people
fall victim to medical negligence every minute and more than 11 people die
every hour in the country due to this medical error.
(Source: https://www.indiamedicaltimes.com/2016/05/25/98000-people-
lose-their-lives-because-of-medical-negligence/)

It is no surprise that even the slightest mistake made by a doctor can have
life-altering effects on the patients. So, it is the duty of a doctor to take
proper care to avoid such happenings.

Medical Negligence
Commission of mistakes or Negligence within the health profession could
result in minor injuries or even lead to some serious injuries and these
mistakes could even lead to death. Since no one is perfect in this world, a
person who is skilled and has knowledge of a particular subject can also
commit mistakes. To err is human but to replicate the same mistake due to
one’s carelessness is negligence. 

The fundamental reason behind medical negligence is that the carelessness

of the doctors or medical professionals are often ascertained in various cases
where reasonable care is not taken during the diagnosis, during operations,
while injecting anesthesia, etc.

Medical negligence definition

We can define ‘Medical negligence’ as the improper or unskilled treatment of
a patient by a medical practitioner. This includes negligence in taking care
from a nurse, physician, surgeon, pharmacist, or any other medical
practitioner. Medical negligence leads to ‘Medical malpractices’ where the
victims suffer some sort of injury from the treatment given by a doctor or
any other medical practitioner or health care professional.
Examples of medical negligence
Some examples of medical negligence are as follows: 

 improper administration of medicines.

 performing the wrong or inappropriate type of surgery.
 not giving proper medical advice.
 leaving any foreign object in the body of the patient such as a
sponge or bandage, etc. after the surgery.

What does not come under medical

negligence
A doctor is not liable in all cases where a patient has suffered an injury. He
might have a valid defense that he has not breached the duty of care. 

The error of judgment can be of two types: 

 An error of judgment – In such cases, it has been recognized that it

doesn’t amount to a breach of duty. Merely because a doctor’s
decision turned out to be wrong, we cannot make him liable for
medical negligence.
 The error of judgment due to negligence – If all the factors were
considered before coming to a decision then it would be called an
error of judgment due to negligence. This amounts to a breach of
duty. 

Types of medical negligence

Medical negligence can occur in different ways. Generally, it occurs when a
medical professional deviates from the standard of care that is required. 

So, we can say that any kind of deviation from the accepted standards of
medication and care is considered to be medical negligence and if it causes
injury to a patient then the doctor who operated on him, other staff and/or
hospital may be held liable for this.

Some of the common categories of medical negligence are as follows:

 Wrong diagnosis – When someone goes to a hospital, clinic or

medical room, etc. the first step after admittance is the diagnosis.
Diagnosing symptoms correctly is critical and important to provide
 medical care to any patient. However, if a patient is not treated
properly due to any mistake in diagnosis, the doctor can be made
liable for any further injury or damages caused as a result of the
wrong diagnosis.
 Delay in diagnosis – A delayed diagnosis is treated as medical
negligence if another doctor would have reasonably diagnosed the
same condition in a timely fashion. A delay in diagnosis can cause
undue injury to the patient if the illness or injury is left to worsen
with time rather than being treated. Obviously, any delay in the
identification and treatment of an injury can reduce the chance of
recovery for the patient.
 Error in surgery – Surgical operations require an enormous level
of skill and it should be done with due care and caution because
even the slightest mistakes can have profound effects on the
patient. The wrong-site surgery, lacerations of any internal organ,
severe blood loss, or a foreign object being left in the body of the
patients, all this comes under Surgical error.
 Unnecessary surgery – Unnecessary surgery is usually associated
with the misdiagnosis of patient symptoms or a medical decision
without proper consideration of other options or risks. Alternatively,
sometimes surgery is chosen over conventional treatments for their
expediency and ease compared to other alternatives.
 Errors in the administration of anesthesia – Anesthesia is a
risky part of any major medical operation and requires a specialist
(anesthesiologist) to administer and monitor its effect on the
patient. Prior to any medical procedure requiring anesthesia, the
anesthesiologist has to review the patient’s condition, history,
medications, etc.  to determine the most suitable of all the medicine
to use. Anesthesia malpractice can happen even during the pre-
operation medical review or during the procedure itself.
 Childbirth and labor malpractice – Childbirth is a difficult event
for a woman and it becomes worse if not handled properly by the
doctors and nurses. There are many instances of medical negligence
during childbirth including the mishandling of a difficult birth,
complications with induced labor, misdiagnosis of a newborn
medical condition, etc.
 Long-Term negligent treatment – Medical negligence can also
occur in subtle ways over the course of a long treatment period.
Usually, the negligence can take the shape of a failure to follow up
with treatment, or a doctor’s failure to monitor the effects of the
treatment properly.

Essentials of medical negligence

The term ‘Medical negligence’ consists of two words – medical and
negligence. Negligence is solely the failure to exercise reasonable care.
Medical negligence is no different. It is only that, in case of medical
negligence, the doctor is the defendant.

In an action for negligence, the following essentials are required:

 The defendant owed a duty of care to the plaintiff.

 The defendant made a breach of that duty.
 The plaintiff suffered damage as a consequence of that breach.
A doctor owes certain duties of care to his patients, they are as follows:

 It is his duty to decide whether he wants to undertake the case or

not,
 It is his duty to decide what treatment to give and;
 It is his duty to decide the administration of treatment.
If a doctor fails to perform the aforesaid duties it results in breach of duty
and gives a right of action to the patient. A breach of duty is committed by a
doctor when he does not perform the degree of care like a reasonable doctor.

In Kusum Sharma v. Batra Hospital[1], it was held by the Supreme Court

that a doctor often adopts a procedure which involves a higher element of
risk, but in doing so he honestly believes that it will provide greater chances
of success for the patient. If a doctor has taken a higher risk to redeem the
patient out of his/her suffering and it did not yield the desired result, this
may not amount to medical negligence.

In Jasbir Kaur v. State of Punjab[2], a newly born child was found missing
from the bed in a hospital. The child was found bleeding and near the wash-
basin of the bathroom. The hospital authorities argued that the child had
been taken away by a cat which caused the damage to him. The court held
that the hospital authorities were negligent and had not taken due care and
precaution. Thus, awarded the compensation amounting to Rs. 1 lakh.

Standard of care 
A standard of care specifies the appropriate treatment and medication
procedure as per the requirements that should be taken into account by a
doctor while providing the treatment to his patients. The care should not be
of the highest degree nor the lowest.

Here, the degree means the level of care an ordinary health care
professional, with the same training and experience, would render in similar
circumstances in the same community. This is the critical question in medical
malpractice cases and if the answer is “no,” and you suffered injury as a
result of the poor treatment, you may file a suit for medical malpractice.
In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole
and Anr.[3], the Supreme Court held that a doctor has certain aforesaid
duties and a breach of any of those duties can make him liable for medical
negligence. A doctor is required to exercise a reasonable degree of care that
is set for this profession.

Duty of care
A duty of care in cases of medical negligence is an obligation on one party
(doctor) to take care to prevent harm being suffered by another (patient).
Generally, doctors owe an obligation to take care of their patients. 

There are certain requirements to establish a duty of care. They are as

follows:

 A physician is not asked to deal with everyone but when he is taking

a case then he should deal with it with proper care and in
accordance with the set standard of care. A doctor or clinical
practitioner prescribing a patient to seek a provider of an extra
health practitioner is acceptable. However, when there is an
emergency, a medical professional ought to deal with the patient.
No health care professional shall immediately resist dealing with the
case unless it is out of the area of his expertise.
 The physician should never stretch nor reduce the gravity of a
patient’s condition. He will have to make sure that he gives proper
treatment to the patient considering the type of ailment the person
is suffering from.
 A doctor must have patience as he cannot do without it. The
confidentiality of the details of the patient should be kept secret.
However, in a few cases, he can reveal the details if he feels that it
is his duty to do so. For instance, if there is a disease that is
spreading and is dangerous for people then he can make it public
and let others know about it.
 A physician or a doctor is free to choose whom he wants to treat but
in case of emergency he cannot deny dealing with the patient. But
after undertaking a case, the health care professional cannot
withdraw from the case without informing the family members of
the sufferer. A temporarily or fully registered medical practitioner
should not voluntarily commit any act of negligence that deprives
his patients of the standard of care.
 When a physician who deals with a particular problem and has
expertise in that field is unavailable and another physician is sent
for the treatment, the acting doctor is entitled to get his charges but
should ensure the patient’s approval or permission to resign on the
coming of the physician engaged.
Burden of proof
The burden of proof of negligence generally lies with the complainant. The
law requires a higher standard of evidence to support an allegation of
negligence against any doctor. In cases of medical negligence, the patient
must establish a claim against the doctor in order to succeed.

In Calcutta Medical Research Institute vs Bimalesh Chatterjee[4], it was held

that the onus of proving proofs against negligence and deficiency in service
was clearly on the complainant. 

Proof of negligence
It has been held in different judgments to charge a doctor for medical
negligence the burden of proof lies upon the person who alleges negligence
against him (patient). It is a known fact that things can go wrong even with
the specialists. And the guilt or negligence can only be established if his acts
fall below the standard of care that he ought to take.

Steps to proving a medical malpractice claim

 The first thing you need to prove is that there exists a doctor-
patient relationship. This is the easiest step that one can take in
order to prove medical negligence.
 The next thing you should do is prove that your doctor did not meet
the set standards required as an obligation for this profession.
 Then prove that you have suffered an injury as a result of that
medical negligence.
 The proof of damages must be presented and this includes all the
harm you have suffered due to the negligent behavior of the doctor.
 All the above-mentioned elements should be proved in order to
succeed in a claim against medical negligence.

When does the liability arise

Generally, the liability of a doctor arises when the patient suffers injury due
to the substandard conduct of the doctor, which was far below the
reasonable standard of care. Hence, the patient should establish that there
exists a duty which the doctor needs to follow and then the next step is to
prove breach of duty.
Normally the liability arises only when the complainant is ready to discharge
the burden on him of proving negligence. However, in some cases the
principle of “res ipsa loquitor” which implies that the thing speaks for itself,
can come into action. Mostly the doctor is liable only for his own acts but
there are some cases in which a doctor can also be made vicariously liable
for the acts of another. For example, when a junior doctor is working for the
senior doctor commits an error then it becomes the responsibility of the
senior making him vicariously liable.

Res ipsa loquitur

The Latin maxim “res ipsa loquitur” means that “the thing speaks for
itself.” 

In terms of medical malpractice, it refers to the cases where the doctor’s

treatment was far below the set standards of care under that negligence is
assumed.

The doctrine assumes the following:

 Nature of injury gives the clue that without negligence it could not
have happened.  
 There was no involvement of the patient himself in the injury in any
way.  
 The injury happened under the circumstances which were under the
supervision and control of the doctor.
It means that by applying the principle the judge has accepted that the
negligence has occurred. After this, the doctor will have to rebut this thing
and if he fails to do so then the patient would be considered as successful in
the case of medical negligence.

How to prove a res ipsa loquitur case?

The injured party must prove that the physician breached the duty of care by
failing to adhere to the set standards of care a doctor must follow. The
breach must be demonstrated by an expert’s attestation. In res ipsa
negligence cases expert declaration about the standard of care is not really
required. 

In order to prove a res ipsa case, the following must be done: 

  It is well known to everyone that if a case seems like it could never
happen without negligence on the part of the doctor then this
directly proves that it falls under the category of res ipsa cases.
 The equipment or manner of treatment that caused the damage was
under the doctor’s control at all times.
 The injury was the one which the injured person couldn’t assume
voluntarily.

Some Examples of Res Ipsa Medical Cases

Some common scenarios of res ipsa cases are given below: 

 Leaving some object inside the body of the patient after surgery.
 If a wrong patient gets operated.
 If the wrong part of the patient gets operated.

Filing a complaint
Being in a noble profession the practitioner must take a reasonable degree of
skill and care and must exercise a reasonable degree of care. The law
requires neither the very highest nor a very low degree of care and skill and
is different for different cases. If he fails to do so then a complaint can be
filed against him.

Medical negligence complaint

A complaint is an allegation made by a complainant. It is in written form. It
consists of the statements and some important facts to establish a case that
a consumer has suffered loss or damage due to deficiency of any service. 

What is the cost involved in filing a

complaint?
A minimal fee is required for filing a complaint before the district consumer
redressal forum for medical negligence cases.

Adjudication of liability
When a complaint against medical negligence is filed, the forum sends a
notice to the opposite party to submit its version of the case within 30 days
after admitting the complaint. After doing proper scrutiny the forum will ask
either for filing an affidavit or for producing evidence in the form of judicial
precedents, expert opinion, etc.

Steps to follow under Medical Negligence Case

 A complaint must be filed in the State Medical Council – If you
are a victim of medical negligence then the first necessary step is to
file a complaint against the doctor in the State Medical Council. The
complaint can be filed in the state consumer court and a criminal
suit can also be brought against the doctor or hospital authorities. 


o If the main motive behind filing a complaint is to seek
monetary compensation then the complaint must be filed in
the consumer court in order to finish the case as soon as
possible.
oThe consumer courts can suspend the license of the doctor
if it is the case of rarest of the rare medical negligence.
 Go to a Patient-Advocate – The other step that proves very useful
in medical negligence cases is to go to a patient-lawyer.


o If there is any breach of duty from the doctor’s side then a
patient-advocate can clear this picture in the mind of the
patient and ask them to take necessary steps to resolve
the matter.
o The Patient-Advocate can also help the patient in cases if
there should be some compensation due to medical
negligence.

Step by step procedure 

The following steps must be taken:

 A complaint must be filed with the local police and the State Medical
Council.
 If it is filed only with the police, then the police can send the report
to the State Medical Council.
 If the report seems appropriate to the Council then it will send it to
various other courts under the relevant sections.
  If the case is criminal in nature then it will be against the state
versus the hospital or doctor.
 If the council finds that the case is serious and pose a danger to the
life of the patient then it can also suspend the doctor’s license for a
relevant period of time.
 If the council finds him guilty, the facts and circumstances of the
case will decide the punishment to be given to the doctor.
 If the patient is still not satisfied with the judgment then he/she can
make an appeal to the Medical Council of India.
 The consumer courts can help the patient in seeking monetary
compensation. It should be noted that the consumer courts can only
provide you with the compensation it cannot punish the guilty.
 If the complainant is still not satisfied then he can approach the
National Consumer Dispute Redressal Commission.

Collection of evidence related to Medical

Negligence
The collection of evidence should be like this:

 Collect all the medical records.

 As per the guidelines of the Medical Council of India, the patient
should get all the medical records within 72 hours from the date and
time of the appointment.

Challenges faced by the victims of Medical

Negligence
These are some of the challenges that are faced by a complainant in medical
negligence cases:

 If is a time-taking process to decide medical negligence cases. So,

sometimes it leads to the de-motivation of the complainant.
 Sometimes, due to the reputation of the hospital, the doctor has
more chances of winning the case.
 There are some cases in which the doctor already knows that they
have been negligent so they remove all the necessary evidence
which creates a problem for the complainant. 
  You need to know about your insurance policy limits because
sometimes the insurance company itself rejects the case.

Necessary test to determine Medical Negligence

The name of the test is the Custom Test. 

 In this test, it must be proved that the hospital or any of its staff
weren’t negligent in performing its duties. 
 The next thing which should be proved is the method adopted by
the concerned doctor was not ethical.
 In most of the cases, the burden of proof lies upon the Complainant
but sometimes it shifts to the doctor if there is no proper
management done on his part. 

Medical negligence complaint in criminal

court
Hospitals, in many cases, are charged for negligence if HIV, HBsAg, etc. gets
transmitted due to it. So, if anyone develops such disease during his course
of treatment under the supervision of his doctor and the same is proved that
it has occurred on account of careless and negligent behaviour on the part of
the hospital then the hospital will be held liable for failing to consider the
reasonable standards given to them in the form of duty to care and standard
of care.

However, if the elements like the motive or intention, the magnitude of the
offense and the character of the accused are established then it makes him
liable under the criminal law.  

Provisions 
 According to Section 304-A of the Indian Penal Code, 1860,  if a
person commits a rash or negligent act which amounts to culpable
homicide then the person will be punished with imprisonment for a
term which may extend to two years or with fine or both.
 According to Section 337 of the Indian Penal Code, 1860, if a person
commits a rash or negligent act due to which human life or personal
safety of others gets threatened. The person will be punished with
imprisonment for a term which may extend to six months or with
fine which may extend to five hundred rupees or both.
  According to Section 338 of the Indian Penal Code, 1860, if a person
commits a rash or negligent act due to which human life or personal
safety of others gets threatened. The person will be punished with
imprisonment for a term which may extend to two years or with fine
which may extend to one thousand rupees or both.

Defences 
 Section 80 of the Indian Penal Code , 1860, says that anything which
happens as a result of an 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 is
not an offense.
 Section 81 of the Indian Penal Code , 1860, states that if anything is
done merely by the reason that it is likely to cause harm but if the
same is done without any intention to cause harm and in good faith
in order to avoid other damages to a person or his property is not
an offense.
 Section 88 of the Indian Penal Code,  1860, says that no one can be
made an accused of any offense if he performs an act in good faith
for the good of other people and does not intend to cause harm
even if there is a risk involved and the patient has given the consent
explicitly or implicitly.

Expert opinion
The Commission cannot constitute itself into an expert body and contradict
the statement of the doctor unless there is something contrary to the record
by way of an expert opinion or, if there is any medical writing relying on
which, the statement can be primarily based. 

The number of medical negligence cases is increasing day by day so expert’s

opinion are important in such cases. 

Medical negligence complaint in civil

cases 
 The position concerning negligence under civil law is extremely
important because it encompasses various elements in it. 
  Under the tort law or civil law, this principle is applicable even if
doctors provide free services. Thus, it can be stated that where the
Consumer Protection Act (CPA) ends, the tort law begins.
 In cases where the services offered by the doctor or the hospital
don’t fall within the definition of ‘services’ under CPA, patients can
claim compensation under the tort law. 
 The onus (burden) of proof is on the patient and he needs to prove
that because of the doctor’s actions, the injury has been caused to
him.

Compensation claim
In Civil liability, the claim for damages is suffered in the form of
compensation. If there is any breach of the duty of care while operating or
under the supervision of the hospital or any doctor. They are vicariously
liable for such wrong committed and are liable to pay damages in the form of
compensation. 

If someone is an employee in a hospital then it is the responsibility of the

hospital if an employee causes harm to a patient by acting negligently.

In Mr M Ramesh Reddy v. State of Andhra Pradesh[5], the hospital

authorities were held to be negligent for not keeping the bathroom clean due
to which an obstetrics patient fell in the bathroom and died therein. The
amount of compensation which was awarded against the hospital was Rs. 1
Lac. 

Medical negligence cases in consumer

courts
All the medical services fall under the purview of the Consumer Protection
Act, 1986. After the judgment of the Supreme Court in Indian Medical
Association vs. V.P. Shantha[6], this medical profession and services have
been brought under the purview of the Act.

In this case, the court discussed the important question of medical

negligence i.e. whether a medical practitioner could be said to rendering
services under Section 2(1)(o) of the Consumer Protection Act, 1986. 

The following points were laid down:

  Medical Services should be treated as the “services” under Section
2(1) (o) of the Consumer Protection Act, 1986. It is not a contract
of personal service as there is no master-servant relationship
between them. 
 Contract of service in Section 2(1) (o) cannot be confined to
contracts for the employment of domestic servants only. The
services rendered to the employer are not covered under the Act.
 Medical Services which are free of charge are not considered under
the purview of Section 2(1)(o) of the Act.
 Medical Services which are rendered by independent doctors and
are free of charge are under the jurisdiction of Section 2(1)(o) of
the Act.
 Medical Services rendered against payment of consideration are also
within the scope of the Act.
 The payment of consideration of a medical service is paid by some
third party and is treated under the ambit of this Act.
 Hospitals in which some persons are exempted from charging
because of their inability to afford or any other financial problems
will be treated as a consumer.
Section 2(1)(o) of the Consumer Protection Act  defines the ‘deficiency of
service’ which means any fault, imperfection, etc. in the quality or manner
of performance that is required to be maintained by or under any law or it
has been undertaken to be performed by a person in pursuance of a contract
or otherwise.

Who is a consumer
According to the Consumer Protection Act, 1986, the consumer is the one
who:

 buys any goods or hires any service.

 uses the goods or hires any service with the approval of any buyer
or the service provider.
 uses the goods and services to earn a livelihood.

When can a complaint be filed

In the following cases a complaint about medical negligence can be filed:

 The liability of a doctor arises only when the patient has suffered an
injury due to his reckless or negligent conduct which was not
 appropriate according to the set standards of the medical
profession.
 He is liable only for those consequences which resulted from a
breach of his duties.
 The plaintiff must prove the breach of duty and causation.
 In case there is no breach then neither the doctor nor the hospital
authorities can be made liable.
 If the possible causes of an injury is the negligence of a third party,
an accident, etc. then it must be proved that the doctor’s negligence
was the most probable cause of the injury to discharge the burden
of proof on the patient (plaintiff).
 Sometimes, ‘res ipsa loquitur’ which means “the thing speaks for
itself” comes into play. In such cases, it can be clearly seen that the
doctor was negligent in performing his duties. This discharges the
burden of proving negligence on the plaintiff.
 Normally a person is liable for his own acts but when the concept of
vicarious liability comes into play when a doctor can be held liable
for the acts of other persons who are responsible for the injury
caused to the plaintiff.

Who can file a complaint

The below mentioned can file a complaint;

 A consumer or 
 Any recognized consumer association whether the consumer is a
member of such association or not, or 
 The central or state government.
A “Recognized consumer association” is a voluntary consumer
association, the one i.e., registered under the Companies Act, 1956 or any
other law for the time being in force.

Forums in which one can file a complaint

The complaints under the Consumer Protection Act for medical negligence
can be filed at: 

Forum/Commission Pecuniary jurisdiction

The District Forum  Less than 20 lakh rupees

 The State Commission  More than 20 lakhs but less than 1 crore

The National Commission More than 1 crore

Compensation claim
The CPA will not be able to help the patients who availed a doctor’s service
free of charge or if he has paid only a nominal registration fee.

However, if a patient did not pay because of some  financial problems or

incapacity to pay, they will still be covered under the Act and will be
considered to be consumers and can sue under the Consumer Protection Act.

Appeal by doctor 
An appeal against any decision of the District Forum can be filed before the
State Commission and if still you are not satisfied then it goes to the National
Commission and the last step that can be taken is to file it in the Supreme
Court from the National Commission. 

The appeal should be filed within 30 days from the date of the decision.

A doctor can make an appeal in the following cases:

 According to Section 80 of the Indian Penal Code, 1860, if anything

happens by accident or misfortune and there was no intention or
knowledge and the act was lawful and was being performed in a
lawful manner by lawful means with proper care and caution is not
an offense.
 According to Section 81 of the Indian Penal Code, 1860,  if anything
is done with the knowledge that it is likely to cause harm and if the
same is done without any intention to cause any harm and in good
faith for avoiding other damage to a person or his property is not an
offense.
 According to Section 88 of the Indian Penal Code, 1860, no one can
be held liable for an act which has been done in good faith for the
benefit of someone and does not intend to cause harm even if there
is any risk involved and the patient has given the consent either
implicitly or explicitly.
Medical negligence cases in high courts/
supreme courts
In State of Haryana v. Smt Santra[7],  the Supreme Court held that it is the
duty of every doctor to act with a  reasonable degree of care. However, no
human in this world is perfect and even specialists make mistakes, a doctor
can be made liable only if he fails to act with such reasonable care that every
doctor with ordinary skills would be able to do.

In Achutrao Haribhau khodwa and Ors v. the State of Maharashtra[8], the

Supreme Court noticed that the medical profession is very wide and there
are a number of admissible courses for the same. Therefore, we cannot hold
a doctor liable as long as he is performing his duty with due care and
caution. Merely because he chooses any other course of action over another,
he is not liable.

In the case of  C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam[9],  the

court dealt with a medical negligence case in which the respondent was
injured while going on a bicycle. He sustained severe injuries and a hairline
fracture of the neck. On considering the various options available the doctor
chose to perform hemiarthroplasty instead of internal fixation procedure. The
surgery was performed the next day. The respondent filed a case against the
doctor for not adopting the internal fixation procedure for the injury. The
Supreme Court held that the appellant’s decision for choosing
hemiarthroplasty for the person who is 42 years of age was not unacceptable
as to make it a case of medical negligence.

In Vinod Jain v. Santokba Durlabhji Memorial Hospital & Anr.[10],  the

Supreme Court has mentioned the factors to be considered while establishing
the liability in medical negligence cases. In this case, the appellant
challenged the NCDRC in the apex court i.e. the Supreme Court of the
country. The Supreme Court upheld NCDRC’s judgment and made the below-
mentioned observations:

 A doctor cannot be said to be negligent if his acts are in accordance

with the set guidelines, merely because a body is there which holds
a contrary view.
 A doctor need not have special expertise in medicine and it is
enough if he exercises ordinary skills that an ordinary man of that
profession would be able to do.
 A doctor cannot give assurance for any recovery as it is not in his
hands and he can only try his best. The only assurance he can give
is that he holds requisite skills in the profession and while
undertaking this he should perform his duties as a reasonable man
 of the profession and in accordance with the standard of care in the
medical profession.  

Medical negligence cases in India 

Medical Negligence cases

In the case of Dr M. Kochar vs Ispita Seal[11],  the National Consumer
Dispute Redressal Commission discussed the issue of failure in the IVF
procedure. The patient filed a complaint against the doctor for medical
negligence for the failure of this procedure. The National Commission held
that no success in operating a patient cannot make a doctor liable for
medical negligence.

Supreme court judgement on medical

negligence
Listed below are some of the landmark supreme court judgments on medical
negligence:

 The landmark judgment in medical negligence cases and the first

judgment that comes into our mind with the highest amount of
compensation granted till date is Dr. Kunal Saha Represented By Sri
… vs Dr. Sukumar Mukherjee And Ors.[12] which is famous as the
Anuradha Saha Case. In this case, the wife was suffering from drug
allergy and the doctors were negligent in prescribing appropriate
medicines for the same which ultimately aggravated her condition
and led to the death of the patient. The court held the doctor liable
for medical negligence and awarded compensation amounting to Rs.
6.08 crore.
 In the case of V.Kishan Rao Vs Nikhil Super Speciality Hospital[13],
where a lady who was to undergo the treatment for malaria fever
was treated differently. An officer in the Malaria Department filed a
suit against the hospital authorities for performing the treatment of
his wife negligently, who was undergoing the treatment for typhoid
fever instead of malaria fever. The husband got the compensation of
Rs 2 lakhs and in this case, the principle of res Ipsa loquitor was
applied.
 In Jacob Mathew .V. State of Punjab[14], the Supreme Court held
that in some cases doctors are bound to take make difficult choices.
Sometimes situations make them go for things involving greater risk
because of higher chances of success in taking that decision. And
there are some cases in which there is lesser risk involved and
 higher chances of failure. So, the decision will depend upon the facts
and circumstances of the case.
 In Juggan Khan v. State of Madhya Pradesh[15], the appellant who
was a registered Homoeopathic medical practitioner. After seeing an
advertisement a woman went to him for the treatment of guinea
worms. After taking the medicine prescribed by him, she started
feeling restless and even after the administration of some antidotes,
she died in the evening. The appellant was convicted for murder
under Section 302  of the IPC. The court held that it was a negligent
act to prescribe poisonous medicines without proper checking and
knowledge of the same.
 In A.S. Mittal and another V State of UP and Others[16], the Apex
Court dealt with the case of a mishap in an ‘Eye Camp’ in Uttar
Pradesh. In the camp, about 108 patients were operated out of
which 88 underwent cataract surgery. Out of all these people 84
suffered permanent damage to the eyesight. It was found that this
mishap was due to normal saline which was used in the operations.
The court held the doctor liable as this amounts to medical
negligence. A PIL was filed in this case under Article 32 of the
Constitution. 
 In the case of Poonam Verma v Ashwin Patel and others[17], the
respondent had a diploma degree in Homoeopathic Medicine and he
administered some allopathic drugs to a patient who was suffering
from high fever. Subsequently, the patient was shifted to a nursing
home where he died. The court held the respondent liable as he was
registered for providing Homoeopathic treatment but not under the
Allopathy system and his actions amounted to medical negligence.
The Supreme court has also defined the term “Medical Negligence”.
 In Spring Meadows Hospital and another v Harjol Ahluwalia[18], a
child who was suffering from typhoid was admitted to the
appellant’s hospital. The nurse gave an injection to the child after
that he collapsed. After taking all the possible steps the child was
shifted to AIIMS. The doctors there informed the parents about the
critical condition of the child. The child had a cardiac arrest because
of the overdose injection that was given to him. The court held the
doctor and the nurse liable to compensate for this negligence. 
 In Bhalchandra Alias Bapu & Another v. State of Maharashtra[19],
the Supreme Court opined that while negligence is an omission to
do something which a reasonable man would do or doing something
that a reasonable man would never do; criminal negligence is the
gross neglect to exercise reasonable care and precaution to guard
against the public as well as against an individual.

Conclusion
Though the doctors are seen as God and patients believe that they will get
better after the treatment and that they would be healed by the treatment
provided. But sometimes it so happens that even the doctors make mistakes
which cost a lot to the patients in so many ways. Also, in some instances the
mistakes made by them are so dangerous that the patient has to face
problems and undergo immense sufferings.

The usage of equipment and medical tools in health care sector should be
made  with due care and caution as it can lead to an injury to the consumer
which may further result in the filing of a complaint against the doctors and
the other authorities involved. Yet, there is no provision which can make the
manufacturers of such unfit equipment liable for the damages.

Another important concern is that the services which are rendered free of
charge are excluded from the scope of the Consumer Protection Act, 1986.
This creates a problem for patients who suffer damages.

People are losing faith in the medical profession due to some serious medical
negligence cases which have made them disabled for their remaining
lives. Some serious introspection and analysis are required to be done for the
Medical profession. It has utterly failed in self-governance. The medical
ethics need to be reformed and developed so as to serve with complete
righteousness.