September 7, 2022 In Consumer Laws, Criminal Law


What is medical negligence?

While considering the issue, the Hon’ble Supreme Court in Kusum Sharma & Ors. v. Batra Hospital & Medical Research Centre and Ors placed reference to the Halsbury’s Laws of England, 4th Edn., Vol. 26 pp. 17-18, wherein it was defined as “22. Negligence. – Duties owed to the patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is 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 a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.”1

Thus, there are 3 components of medical negligence:

  • Existence of legal duty
  • Breach of legal duty
  • Damage caused by such breach

There are various kinds of situations which amount to medical negligence by a medical professional such as incorrect diagnosis, deferred diagnosis, inaccurate surgery, long-term negligent treatment, childbirth and labour malpractice, needless surgery and erroneous administration of anaesthesia etc.

In Vinod Jain vs. Saxtuba Durlabhji Memorial Hospital and Ors2, the Hon’ble Supreme Court observed that the test for negligence shall be from the viewpoint that a doctor who has been accredited with a special skill or competence but does not possess the highest expert skill, it would in such case be sufficient that he exercises skill of an ordinary competent man under a similar scenario. This is primarily done for the greater good of the community at large, to prevent the doctors from thinking about their safety instead of the safety of the patients.

What does not amount to medical negligence?

If a patient has suffered an injury the doctor might not be held liable for negligence. In case of error of judgement by the doctor, he shall not be charged with any such actions. Even doctors are humans and, hence are prone to make mistakes, and therefore, they shall be allowed some relief. Merely based on the fact that the decision of the doctor did not turn out to be favourable, he cannot be held against such error in judgement. The Courts have observed that merely because the doctor choose a different procedure/ treatment to cure the problem and it did not work as expected, will not make him liable. One must prove that there was a breach of duty on his part. A doctor performing his duty with due care and caution could not be held liable for negligence.3 However, where an error in judgement was due to a negligent act, it shall then be termed breach of duty and the doctor shall be held liable for his actions.

Duty of Care

The Hon’ble Supreme Court in Dr. Laxman Balkrishna Joshi Vs. Dr Trimbak Bapu Godbole4 had standards that every doctor must exercise reasonable “standard of care” that are set out in the profession. Any breach of these duties shall hold him liable for medical negligence.

The National Consumer Disputes Redressal Commission in Chandigarh Clinical Laboratory vs Jagjeet Kaur upheld the findings of the District and State commission wherein the appellant was directed to pay the complainant a compensation of Rs.25,000 along with a cost of Rs. 2,000. The appellant laboratory had issued the patient with wrong reports for which the Hon’ble Commission held that the appellant had a “duty of care” to give accurate findings to the patient and failure of the appellant to take due care shall amount to medical negligence.5

Civil liability under Consumer Forum

An aggrieved person can approach the consumer courts to file a case against the accused person and the hospital. In Indian Medical Association vs. V.P. Santha6, the Hon’ble Supreme Court observed that the medical practitioners are covered under the Consumer Protection Act, 1986 and the medical services rendered by them should be treated as services under section 2(1) (o) of the Consumer Protection Act, 1986. Similarly, under the new Consumer Protection Act, 2019, medical services shall fall under the ambit of services as mentioned in section 2(42) of the new Act. Any matter of medical negligence on the part of the service provider will be considered a deficiency under section 42(11) of the new Consumer Protection Act, 2019.

Any aggrieved person can claim damages for medical negligence against a doctor or a hospital. Section 69(1) of the Consumer Protection Act, 2019 lays down the time limit within which a complaint for medical negligence must be filed as 2 years from the date of injury.

Criminal liability

Under various provisions of the Indian Penal Code, 1860 any person who acts negligently or rashly that results in a threat to human life or personal safety or; results in the death of a person than person shall be punished with imprisonment and/or fine. However, the court has observed that in a matter of negligence where a criminal case is being perused, the element of “mens rea” must be shown to exist. To check for criminal liability, it must be clearly shown that the accused did something or failed to do something which in the given circumstances no other medical professional in his ordinary senses and prudence would have done or failed to do.7

The aggrieved party will first file a complaint with the local police authority against the concerned person/persons. If no action is taken, the aggrieved party can file a criminal complaint under the Criminal Procedure Code, 1973.

Veena Sethi(Deceased) vs Dr J.B. Ratti, on 4 November 2008

  • complainant inquired about the details of the liposuction technique as advertised in the newspaper the Hindustan Times. accused assured her that an opening of only 4 to 4 mm diameter would be made on a hidden part of the body to remove the fat and that she could go back on the same day and attend to her daily routine without discomfort.
  • She inquired about the details of the liposuction technique as advertised in the newspaper the Hindustan Times. accused assured her that an opening of only 4 to 4 mm diameter would be made on a hidden part of the body to remove the fat and that she could go back on the same day and attend to her daily routine without discomfort.
  • As against this the accused vehemently denied that there was any allurement and/or the complainant was allured by the said advertisement.
  • accused assured the complaining t that an opening of only 3 to 4 mm would be made on a hidden part of the body to remove the fat. Their e were a series of discussions and megs and whereupon the correct procedure and process were explained to the complainant.
  • However, the corrective measures were to be ed which was not cared for by the complainant and she did not follow the same with Theactly the same was the condition of the complainant when she came to OP NO.1.during detailed discussions held with the complainant mentioned and, explained by the accused and understood by the complainant the type of treatment required for the correction of aforesaid deformity in the upper arms.
  • As already stated abas informed her that lipoplasty involves liposuction and excision of extra fat and skin. The complainant also took the information brochure from OP No.1.
  • The complainant told OP No. It is pertinent to mention here that the complainant is a lady who was very obese and who had huge deposits of fat all over her body.
  • There is no ambiguity or doubt of whatsoever nature as to what was advised and agreed to and accepted and signed and acknowledged by the complainant herself i.e. There was admission and acceptance on the part of the complainant for the treatment.
  • Surgeons were negligent on their part and were held liable for that she was paid Rs.20,000/- towards refund of fees for the operation and interest from the date of operation up to the date of filing this complaint amounting to Rs.6,800/-  Rs.50,000/- to the complainant towards expenses incurred on her treatment after the operation.  Rs.10,00,000/-towards damages for mental trauma and agony.

Case Summary: Jacob Mathew vs. the State of Punjab


  • Petitioner-Dr. Jacob Mathew
  • Respondent-State of Punjab

The list of considered cases is given below:

  1. Andrew Vs. Director of Public Prosecutions
  2. Syed Akbar Vs. State of Karnataka
  3. Bhalchandra Waman Pathe Vs. State of Maharashtra

The honourable Supreme Court decided the appeal on the ground that the complaint has not alleged that the accused persons were not qualified doctors to treat the patient whom the complaint agrees to treat. There is an allegation about none availability of an oxygen cylinder.

Due to hospital management gas cylinder was not available or the oxygen gas cylinder was found empty. Hence, the hospital may be liable in civil law. The doctors (appellant) cannot be held guilty of the offence u/s 304A IPC hence, the honourable Supreme Court allows the appeals and quest the prosecution proceeded u/s 304A / 34 IPC.

The patient asserting medicinal negligence should, for the most part, demonstrate four components to make out an effective case of malpractice[v].

These components include:

  1. the presence of a legal obligation concerning the doctor to give care or treatment to the patient
  2. failure to stick to the guidelines by the doctor while treating the patient ultimately resulting in a breach of duty
  3. a connection between negligence and damage to the patient
  4. the presence of harms that stream from the damage to such an extent that the legal system can give a review.

The elements of medical negligence talk about the legal obligation of the doctor existing toward the patient; this obligation becomes possibly the most important factor at whatever point a relationship is built up between the patient and doctor.

The general thought of a lawful obligation is that in a socialized society, every individual owes an obligation of reasonable consideration to other people. Based on this obligation, when a doctor gives administration to a patient, the doctor owes a duty of care to the patient. A patient can’t make a doctor liable for the breach of his duty if there is no relationship between them.

When a relationship is built up, for example, covering patients for his co-worker, being a part of the clinic where needy patients are dealt with, or giving medical assistance to a mishap injured individual by the roadside, an obligation of reasonable care pursues. The court considers certain actions of the doctor to be an exception to the primary element of medical negligence. Those actions can be the doctor acting nonprofessional and seeing the patient outside the clinic and hospital, as in these cases there is no considerable relationship between doctor and patient

The patient can use the concept of standard of care as a witness to prove that there has been a breach of duty. The standard of care refers to the care which generally the patients receive from health care professionals. To prove this element, the reports are necessary to be produced by the expert in front of the court. A therapeutic negligence guarantee by and large closes with an estimation of harms

Res Ipsa Loquitur And Its Application In Medical Negligence

Medical negligence is seen to be a recurrent venture within the field of medical practice. Negligence as defined by the court in Jacob Mathew v. the State of Punjab,[i] is the breach of duty which one party owes to another. The duty can be in the form of an act or omission and it is referred to as the duty of care due to the negligence of which it causes an injury to the person. In the case of medical negligence, it is the failure of medical practitioners to exercise certain acts or omissions while discharging their duties concerning their patients.

Generally, it has been observed that in most negligence cases the burden of proof lies with the plaintiff but during medical negligence, it becomes hard for the plaintiff to prove the negligence caused by the defendant to him. The medical field is considered to be complicated to be understood by an average patient and mostly the patients are unconscious when the act performed causes damage. Therefore to prove that the damage is caused to him due to malpractice performed by the doctor becomes difficult. [ii]

This gives rise to the concept of Res Ipsa Loquitur. It is a Latin phrase which means things speak for themselves. It acts as an evidentiary rule in personal injury law. Through the doctrine of Res Ipsa Loquitur, the plaintiff only has to present certain circumstantial evidence or facts which will shift the burden of proof on the defendant to prove that the act done by him/ her was not the act of negligence. Circumstantial evidence involves certain facts which will point out the negligence on the part of the defendant as the logical conclusion and it need not have to be presented or demonstrated in front of the court.[iii] This doctrine has been explained in Halsbury’s Laws of England.

It has been considered to be an exception to the general rule. The general rule says that the plaintiff must prove that the harm or damage caused to him/her by the defendant was due to negligence on the defendant’s part.

The doctrine of Res Ipsa Loquitur shifts the burden of proof from the plaintiff to the defendant where now the defendant has to prove that the act which is considered negligence by the plaintiff can reasonably happen and without him being negligent. This doctrine which is used as an exception is not the rule of law but a rule of evidence which gives the upper hand to the plaintiff and disposes of him/her from the obligation of proving the negligence.[iv]

Elements Of Medical Negligence

Elements Of Res Ipsa Loquitur

The doctrine of Res Ipsa Loquitur has three elements:

  1. the injury that had occurred under the circumstances must be explicit and can only occur due to someone’s negligence and it cannot occur in the ordinary situations
  2. the injury caused by the defendant to the plaintiff must have been done with the use of some instrument which was exclusively under the control of the defendant
  3. the injury caused to the plaintiff must be under the scope of the defendant’s duty and it must not be due to the voluntary act or the contribution from the plaintiff’s side[vi]

The first condition of the doctrine is satisfied if there is a reasonable prospect that the event that had occurred would not have occurred if there was no negligence on the defendant’s part. This is the difficult element to prove because the plaintiff being the layman concerning medical science cannot prove the medical negligence based on his/her common knowledge.

To deal with such situations, the Washington court[vii] has provided three incidents where the first element of the doctrine will be justified:

  1. leaving foreign objects like scissors, sponges or any such objects in the body of the patient will be considered as an act done due to negligence thus causing an injury to the patient
  2. the result caused should not be the exclusion of negligence
  3. when the result is presented by the experts who work in the medical field which is enough to draw an inference that the incident that had caused an injury to the plaintiff was due to the negligence

This can further be understood with an example. In Jasbir Kaur v. the State of Punjab,[viii] due to the negligence of the staff, the newly born child was carried away by the cat which was later to be found bleeding in the bathroom. The Court held the hospital authorities to be guilty because of breaching the duty of care and being negligent on their part which resulted in the cause of this unusual incident.

In Pederson v. Dumouchel,[ix] the court ruled that the plaintiff will be allowed the applicability of the doctrine res ipsa loquitur. Here, the plaintiff had gone through brain damage and during the surgery, he was given anaesthesia from which he woke up after a month which shows medical negligence.

Similarly, in Horner v. Northern Pacific Beneficial Association Hospitals, Inc.[x] the results from the medical experts were produced in the court which proved that the injury to the brachial-plexus nerve happened due to the overdosage of aesthesia which was enough to give the plaintiff the benefit of the doctrine res ipsa loquitur. Due to the excessive anaesthesia, the plaintiff woke with paralysis in her right arm. It was not required for her to bring the evidence or exact cause for the injury. The medical expert’s reports were enough to give her the benefit of the doctrine which translates to that things speak for themselves.

The second criterion of the doctrine can only be fulfilled by the presence of any instrument or object which was completely under the control of the defendant and it was that object or instrument which caused the injury to the plaintiff. The plaintiff has to prove in court that he/she was in such a position that when the harm or damage was done to him/her, he/she was not in the condition to avoid it or stop it.

This second criterion is mentioned because, during the medical treatment, the plaintiff is in an unconscious state where he/she is not able to understand whether the surgery done to him/her by the defendant is causing harm or injury to him/her. The plaintiff is not in the state to understand medical negligence. [xi]

This element can be explained further with the help of the case Scenarios v. Haas.

In this case, the plaintiff went to the hospital for her regular obstetrical case. She was given a few doses of the spinal anaesthetic by the defendant. After a few days, she felt pain in her legs and she had difficulty moving her legs. She went to another hospital where she was diagnosed with a back brace which was fitted to her torso and due to which she was having crutches. The court held the defendant guilty and gave the plaintiff the benefit of the doctrine of Res Ipsa Loquitur passing the judgment that there was medical negligence on the defendant’s part.[xii]

In Cho v. Kempler,[xiii] due to the medical negligence of the defendant, the plaintiff suffered from the injury. After the first operation, the plaintiff suffered from severe pain on the left side of the face and the defendant knew that the surgery went wrong.

He did the second operation on that patient. During the second operation, the doctors came to know that in the first operation, the plaintiff’s facial nerve was completely severed. The court held that the defendant was completely responsible for the cause of injury as that incident would not have happened in ordinary cases and it happened because the defendant was acting negligently.

The third element of the doctrine talks about no voluntary action or contribution that should be shown on the plaintiff’s part. The injury or damage caused to the plaintiff must be due to the breach of duty of care of the defendant and that act or omission must not involve the voluntary act or contribution of the plaintiff. This criterion is only satisfied when the plaintiff is in an unconscious state of mind during the surgery.[xiv]

Once all the three criteria have been satisfied, the court has to give the plaintiff the benefit of the doctrine res ipsa loquitur and it will conclude through the facts that the act or omission by the defendant was negligent if the defendant will not present a satisfactory explanation in front of the court.

The court has tried to explain the situation in Younger v. Webster case, where the court said that not permitting the doctrine to the patient will be unjustifiable as the patient is unconsciously submitting himself to the medical personnel for care and during that period some injury is caused to him/her from the instruments or the object used for the treatment. The permanent injury caused to him was due to someone else’s negligence and due to the doctor’s negligence, he/she would not be able to recover unless those facts are revealed showing the liability of the doctors and nurses. [xv]

The Exception To The Applicability Of The Doctrine

There has been an exception where the court has denied the plaintiff’s plea due to the lack of medical proof by the experts. In Swanson v. Brigham case, [xvi] the court denied the plea of the plaintiff based on Res Ipsa Loquitur. In the mentioned case, there was the death of the fifteen-year-old plaintiff during the treatment of infectious mononucleosis due to asphyxiation.

Due to the lack of medical testimony by the expert, the court denied the doctrine and ruled that since the first criteria of the doctrine of res ipsa loquitur are not satisfied, it will not be applicable.
There have been cases which can be held as an exception to this doctrine. In McLean v. Weir, Goff and Royal Inland Hospital,[xvii] the plaintiff wanted to sue the doctor for his suffering based on the doctrine but does not want to call an expert.

The defendant called an expert and it was proved that whatever injury happened to the plaintiff was not because of negligence.
The two reasons are provided by Kennedy and Grubb which explains why the doctrine of res ipsa loquitur should not be made available to the plaintiff in medical negligence cases.

Those are:

  1. Medical practices involve many uncertainties which are part of an inexact science.
  2. Modern developments in the medical fields have resulted in the discovery of evidence by the proper practice of maintaining and recording accurate medical records carefully which informs the plaintiff what happened. Therefore, a plaintiff is not at the disadvantage of not knowing anything. [xviii]

In Morris v. Winsbury White, [xix] the court held that the applicability of the doctrine is not possible because the plaintiff was treated by a lot of nurses and sisters and two medical officers and not by the defendant alone. So any injury that happened during the course of treatment cannot be regarded as negligence because of the defendant and everyone was performing their ordinary hospital duties.

The prevailing judicial position concerning the invocation of the doctrine of res ipsa loquitur seems to be that even as it enjoys the applicability of medical negligence instances its cost is seldom conclusive. It seems that the application of the beneficiaries of the doctrine to medical negligence instances is that it prevents a defendant from averting responsibility with the aid of surely electing not to offer proof under occasions in which he is aware of or must realize what passed off.

Without the energy to draw inferences of negligence afforded to the court via making use of the doctrine, it (the court) might be denied the proof of the defendant in a few instances, which in turn might render the court powerless to research the case to the total.

Whilst it’s miles flawlessly understandable that the courts constantly endeavour to contain the principle as some distance as possible in regards to its application to clinical negligence instances because matters can and do in truth pass wrong within the practice of medicine, but cautious and skilful the scientific practitioner, it’s far submitted that it remains an essential evidentiary device inside the Armory of a plaintiff who’s now and then unable to identify the operator or method responsible for his injury. Responsible application of the doctrine in deserving instances prevents viable injustice to a plaintiff while requiring the defendant merely to gentle an ideal ex

Shri. Ajay Kumar Khanna vs The Proprietor, Jewel Nursing … on 21 September 2010

4. It is a specific case of the complainant that so far as the liposuction and abdominoplasty operation is concerned and if there are any deficiencies, negligence and/or sub-standard service rendered while conducting the said operation, it is the opponent no.2/Dr.Kapasi who is responsible.

Therefore, while considering the present complaint the State Commission has to consider it in two parts, namely, the first part will have to be considered whether liposuction and abdominoplasty operation which has been carried out by opponent no.2 suffers from a deficiency in service as provided in Consumer Protection Act, 1986, so that liability can be fixed as against opponent no.2 and, secondly, the State Commission will have to consider as to whether the post-operative treatment given by either of the opponent nos. 1 and 3 was of the particular standard or there were deficiencies on their part and lastly, if there were post-operative deficiencies on the part of the hospital which of the hospitals, namely, whether opponent no.1 and/or opponent no.3 is responsible for the said liability.

Smt.Purnima Mishra vs Kalda Cosmetic Surgery Institute on 2 August 2018

51. based on the above discussions, we are of the view that the complainant is entitled to get a lump sum amount of Rs.10,00,000/- (Rupees Ten Lakhs) towards compensation from O.P. No.1.

52. Therefore, the complaint filed by the complainant, is partly allowed and it is directed that:-

(i) The O.P. No.1 will pay a sum of Rs.10,00,000/- (Rupees Ten Lakhs) towards compensation to the complainant, within two months from the date of this order along with simple interest @ 9% p.a. till realization.

(ii) The O.P. No.1 will also pay a sum of Rs.15,000/- (Rupees Fifteen Thousand) towards the cost of litigation to the complainant

Section 15(3) in The Indian Medical Council Act, 1956

(3) Any person who acts in contravention of any provision of sub-section (2) shall be punished with imprisonment for a term which may extend to one year, or with a fine which may extend to one thousand rupees, or with both.]

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Comment (1)

gate io airdrop

Mar 3, 2023, 9:54 am

I agree with your point of view, your article has given me a lot of help and benefited me a lot. Thanks. Hope you continue to write such excellent articles.


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