Medical Negligence – An analysis

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It is difficult to define carelessness categorically because there is no consensus on the subject; yet, it is a hotly debated topic in Tort law. This article discusses about medical negligence in detail with broadly signifying its essentials and duty of care and standard of care. The concept of Bolam test along with its evolution is also discussed. This article also throws light on the case of V P Shantha along with the relation of medical negligence with consumer protection act of 1986 with specific attention to the definition of “service”. This article addresses the relation of medical negligence with criminal and civil law.


  1. Introduction
  2. Medical negligence
  3. Bolam vs. Friern Hospital Management Committee (1957)
  4. Criminal Law and Medical Negligence
  5. Consumer Protection Act and Medical Negligence
  6. Civil Law and Medical Negligence
  7. Conclusions
  • Introduction

“When you have a lot of authority, you have to be prepared to take on a lot of responsibility”. In Indian tradition, doctors are ranked next to God Himself – “Vaidyo Narayano Harihi.” Doctors take the Hippocratic oath, in which they swear to treat patients to the best of their abilities, to protect a patient’s privacy, to convey the secrets of medicine to future generations, and so on.

Negligence is defined as a failure to exercise reasonable care as a result of which an injury occurs. Negligence precludes wrongdoing because the two are mutually exclusive. Except in circumstances where the law has imposed a duty of carefulness, carelessness is neither culpable nor a basis for legal culpability.

The medical profession is one segment of society where such a duty has been imposed in the strictest meaning. It is not enough for a medical professional to have acted in good faith to the best of their knowledge and belief. A medical professional is required to possess the necessary expertise and knowledge.[1]

  • Medical negligence

Medical negligence is a type of tort (civil wrong) that belongs to the larger category of professional negligence. In every situation, the question would be whether the medical practitioner had met the legal standard for due care. On the other hand, medical malpractice is more than just a caregiver’s negligence; it’s an intentional decision by the caregiver to offer and force a product, procedure, or investigation on a patient for monetary gain, either individually or for the institution.[2]

According to the case of Moni v. Kerala State, “Negligence in the context of medical personnel is failing to operate in accordance with the norms of reasonably competent medical men at the moment.” There may be one or more fully correct standards, and he is not negligent if he follows one of these proper standards.”[3] As a result, there are three essentials of negligence: 

  1. The existence of a duty to take care, which the doctor owes to the complainant;
  2. The failure to attain that standard of care, prescribed by the law, thereby committing the breach of such duty;
  3. Damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant.[4]

Duty of Care

The term “duty” refers to a connection in which one party owes the other an obligation to exercise reasonable care for the benefit of the other. A doctor’s responsibilities to his patient are well defined. When someone declares oneself ready to provide medical advice and treatment, he implies that he possesses the necessary expertise and knowledge. When patients consult with such a person, they owe patients certain responsibilities.

  1. A responsibility to exercise caution when considering whether or not to pursue the matter.
  2. An obligation to use caution while determining what treatment to administer.
  3. A duty of care in the treatment’s administration.

Standard of Care

It is now a well-established legal notion that a medical practitioner must bring a reasonable level of expertise and understanding to his work and exercise a reasonable level of care (standard of care). The law does not demand the highest or the lowest level of care and competency, as determined by the facts in each situation.

The degree of care and competence that an “ordinary competent member of the profession who professes to have such skills would practise in the context in question” is referred to as a “reasonable degree of care and skill.”

The difference between the standard of care and the degree of care. The standard of care is steady and consistent and stays the same in all cases. It is necessary that the doctor’s actions be reasonable and do not have to adhere to the greatest or lowest degree of care feasible. The degree of care is a variable that varies depending on the situation. It’s a term that describes what constitutes reasonableness in a certain situation.

Negligence by Professionals

In Jacob Mathew vs the State of Punjab, the Supreme Court of India, in its verdict, stated that “Any task that necessitates the use of a special expertise would normally be accepted or undertaken only if the person possesses the necessary skill. Any rational man who enters a profession that needs a certain level of understanding to be considered a professional of that area implicitly ensures the person dealing with him that the competence he claims to possess will be handled with a reasonable degree of care and caution”.[5]

When evaluating the practice as applied, the standard of care is judged in light of the knowledge known at the time (of the occurrence) and not at the time of the trial. A simple lack of care, a lapse in judgment, or an accident is not evidence of medical professional negligence.

A doctor cannot be held accountable for negligence simply because a better alternative course or technique of treatment was also accessible or just because a more qualified doctor would not have decided to follow or resort to the accused’s practice or procedure. Every professional cannot claim to have the highest level of experience or skills in the field they work.

  • Bolam vs Friern Hospital Management Committee (1957)

It establishes the professional standard of care for a healthcare provider. It was about a patient who broke his bones while receiving electro-convulsive treatment. Mr Bolam sought compensation on the basis that his anaesthesia had been negligent because:

Mr Bolam claimed that his anaesthetic was negligent since the anaesthetist failed to deliver muscle relaxation before the procedure. During the process, Mr Bolam was not restrained. Doctors had not cautioned him about the dangers and risks he was about to face.

Mr Bolam’s claim was rejected. It was not common practice at the time to offer patients muscle relaxation. Some clinicians believe that giving a muscle relaxant or restraint to a patient could increase the chance of fracture. Furthermore, unless the patient particularly requested it, patients were not routinely informed of the minor hazards connected with ECT.

The team of doctors had followed standard medical procedures in this case. As a result, they were not careless in their application of electric shock therapy.[6]

Bolam Test

The Bolam test determines if a medical professional has violated their duty of care, potentially resulting in a clinical negligence. Any doctor, nurse, anesthesiologist, or other medical practitioner is required by law to offer a reasonable level of care while doing their job. This is referred to as a “duty of care.” Liability for negligence may emerge when a healthcare practitioner fails to uphold their duty of care. The Bolam test is the most common method for determining whether or not a professional duty has been breached[7].

Applying the Bolam test

A medical professional must establish that he behaved in a manner that a responsible body of medical experts in the same field would consider acceptable to meet the essentials of the Bolam test. The test is effectively a peer review of the doctor’s actions: if others would have responded similarly, the doctor is unlikely to have violated his duty of care.

It makes no difference whether or not other doctors would have given a different treatment. Given the intricacies of modern medicine, a dissenting group of doctors could, and probably would, do things differently. The critical point is that a group of professionals believe the doctor acted appropriately.

Test: A doctor is not negligent if he acts in conformity with a practice that a responsible body of medical men experienced in that particular profession has deemed proper.[8]

  • Criminal Law and Medical Negligence

Medical professionals in India are treated differently than ordinary people under Indian criminal law.

Section 304A of the Indian Penal Code of 1860 states that “whoever causes the death of a person by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine or with both.”[9]

Similarly, S.336 of the Penal Code provides that it is illegal to risk the human life or personal safety of others by acting rashly or negligently. Three months in prison or a fine of Rs. 250, or both, is the penalty.[10]

S. 337 and 338 of the Indian Penal Code: make it illegal to inflict little or significant harm as a result of a hasty or irresponsible act. For simple harm, the penalty might be up to six months in prison or a fine of up to Rs. 500, or both. For causing grave harm, you could face a sentence of up to two years in prison or a fine of up to Rs. 1000, or both.[11]

In Dr Suresh Gupta vs Govt. of Delhi (2004), it was held that criminal prosecutions for medical malpractice were limited to cases of extreme carelessness. It was decided that a doctor cannot be held liable for every incident or fatality during medical treatment.[12] When a patient dies as a result of a mistake or an accident, there should be no criminal guilt associated. Even if inadvertence or a lack of proper care and caution resulted in civil liability, it would not be enough to hold him criminally accountable.

In Dr Anand R. Nerkar vs Smt Rahimbi Shaikh Madar, It was decided that gross carelessness must be proven and a prima facie case.[13]

  • Consumer Protection Act and Medical Negligence

“Section 2(42) of the Consumer Protection Act of 1986 defines the term “service” as services of any description which is made available to potential users and including but not limited to banking, financing, insurance, transportation, processing, electrical or other energy supply, telecommunications, boarding or lodging or both, home development, entertainment, and amusement or the furnishing of news or additional information, but does not include the rendering of any service free of charge or under a contract of personal service”.[14]

The government has repeatedly stated that the modification in the definition of healthcare will not preclude customers from contacting Consumer Forums in cases of medical malpractice or insufficiency in healthcare services.

The phrase “including, but not limited to” appears in Section 2(42) of the CPA 2019, and it is an inclusive clause. It expressly states that under section 2(42) of the CPA 2019, “healthcare” can still be included and interpreted. As a result, medical services may fall under the purview of Indian consumer law.

Indian Medical Association vs V.P. Shantha (1995)

The question was whether patients are customers under the Consumer Protection Act, and if so, could they sue for damages caused by the doctors, hospitals, or nursing home’s carelessness. Except for those that are given for free or on a service contract, all services are included. Medical practitioners are members of the medical profession and are subject to the disciplinary oversight of the Medical Council of India and/or State Medical Councils does not exempt their services from the Act’s scope.

Deficiency: The test is the level of medical care that a reasonable individual with similar skills and knowledge would use in the same situation. A medical practitioner does not need to be gifted in any way.

As a result, since the members of the Consumer Dispute Resolution Agencies lack medical knowledge and experience, this cannot be claimed.

When an insurance company pays for the policyholder’s consultation, diagnosis, and medical treatment under the terms of the policy, the insurer is considered a consumer under Section 291(d), and services given by the hospital or medical practitioner are considered “service” under Section 2(1). (o).

Similarly, where an employer pays for an employee’s medical treatment, the employer is considered a consumer under the Act.

The Customer Protection Act’s remedy is in addition to civil remedies, and it cannot be denied to a consumer solely because the facts are convoluted or the complainant’s claim is unreasonable.[15]

  • Civil Law and Medical Negligence

The position of negligence in civil law is crucial because it encompasses a wide range of issues. Even if medical practitioners give free services, this principle applies to torts or civil law. It can be argued that tort law begins where the Consumer Protection Act terminates.

In Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole (1969), the court determined specific duties of the medical professionals are –  

  • Duty of care in selecting whether to take the case;
  • Duty of care in deciding what treatment to deliver;
  •  Duty of care in administering that treatment; and
  • Duty of care in responding to a question posed by a patient when he knows the patient plans to rely on his answer..[16]

In Kurban Hussein v. the State of Maharashtra, in the case concerning Section 304 (A) of I.P.C., 1860, it was stated that- “To impose criminal liability under Section 304-A, it is necessary that the death should have been the direct result of rash and negligent act of the accused, without other person’s intervention, otherwise it would simply fall under civil liability .”[17]

In Vinitha Ashok vs Lakshmi Hospital (2001), it was held that a difference of opinion amongst experts on the procedure adopted by a doctor could not be called negligence if the procedure adopted is commonly in practice in an area.[18]

In S. Mittal vs the State of U.P, it was held that a free treatment in a place that gives free treatment to everybody might not entitle the complainant to approach the Consumer Court. But he would still be allowed to approach the District Court for damages.[19]

  • Conclusions 

The Indian regulations governing medical negligence are subject to several criticisms. The first is the ‘Burden of Proof’ principle. The plaintiff bears the burden of proof. As a result, if a patient asserts medical malpractice, the law will demand a higher standard of evidence. It becomes challenging for an ordinary human or a patient to discern the specific damage and the causal relationship between the injury and the doctor’s negligence in this situation.

Consequently, the patient cannot establish the doctor’s liability beyond a reasonable doubt because the area of medicine is unpredictable and unpredictable, and anything can happen in a human body at any time; therefore, the burden of proof falls on the plaintiff. As a result, it is high time for medical negligence laws to be modified to put patients first. Patients should also be educated about their rights in the face of medical negligence by civil society through an appropriate education channel.

“It is health, not pieces of gold and silver, that is a person’s genuine wealth,” said Mahatma Gandhi. As a moral obligation, all concerned authorities, whether the hospital, the government, the Medical Council, or any other entity working to improve healthcare facilities, should collaborate and take actions to:

  • Quality healthcare
  • Adequate healthcare
  • Accessibility of primary health care[20]

[1] Adv. Mihir Desai and Adv. Dipti Chand, Healthcare Case Law in India, Medical Negligence (71-85),

[2] Ibid

[3] Moni v. State of Kerala, SA. No. 832 of 2000(G).

[4] Disha Pareek, Medical Negligence And Law In India – An Analysis, blog ipleaders,

[5] Jacob Mathew vs the State of Punjab, (2005) 6 SCC 1, (India).

[6] Bolam vs Friern Hospital Management Committee (1957), 2 ALL ER 118.

[7] Ibid

[8] Adv. Mihir Desai and Adv. Dipti Chand, Healthcare Case Law in India, Medical Negligence (71-85),

[9] S. 304A The Indian Penal Code, 1960.

[10] S. 336 The Indian Penal Code, 1960.

[11] S. 337 and 338 The Indian Penal Code, 1960.

[12] Dr Suresh Gupta vs Govt. of Delhi (2004), 6 SCC 422.

[13] Dr Anand R. Nerkar vs Smt Rahimbi Shaikh Madar, 1991(1) Bom. C.R. (p. 629).

[14] Section 2(42) of the Consumer Protection Act, 1986.

[15] Indian Medical Association vs V.P. Shantha (1995) 6 SCC 651.

[16] Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole (1969), AIR 1969 SC 128.

[17] Kurban Hussein v. the State of Maharashtra, 1965 2 SCR 622

[18] Vinitha Ashok vs Lakshmi Hospital, (2001) 8 SCC 731.

[19] S. Mittal vs the State of U.P, (1989) 3 SCC 223.

[20] Disha Pareek, Medical Negligence And Law In India – An Analysis, blog ipleaders,

Author: Pranav N, School of Law Christ University.

Editor: Kanishka VaishSenior Editor, LexLife India

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