Kartik Bhardwaj 2 Apr 2020


It is very difficult to define negligence because there is no consensus on this; however, in jurisprudence of Tort it is a highly debatable issue.  According to Moni v. State of Kerala "In the case of a medical man, negligence at the time means failure to behave according to the expectations of reasonably qualified medical people. There may be one or more perfectly appropriate standards, and if it complies with all of those correct standards, then it is not negligence." Therefore, it involves three constituents of negligence:
(1) A legal duty of the party complained of to exercise care towards the party complaining the former's conduct within the scope of his duty
(2) Breach of that duty; and
(3) Consequential damage that follows.

Lately, Indian society has developed an awareness regarding their rights and medical negligence. The reason is that the degrading standards of professional competence, facilities, and the appropriateness of their therapeutic and diagnostic methods. Earlier, People were afraid of suing doctors or hospitals in but with the passage of time, the law has played a major role in raising awareness among people about their rights.

Negligence is a breach of a moral responsibility to care. A person's legal duty means the obligation which the law gives each person to respect the other's legal rights. Hence a person's legal right can be defined as the protections given by law to protect his citizen's interests. We must remember, then, that where there is a legal right there is a legal remedy. The maxim "ubi jus ibi remedium" deduces this.

The level of treatment needed to be practised by medical practitioners to discharge any criminal liability resulting from their actions or omissions was considerably ambiguous. Section 304-A of the Indian Penal Code 1860 [IPC] prescribes death penalty on account of a person's rash or negligent conduct. It is under this provision that doctors or other medical professionals are generally prosecuted under criminal law. While there is protection given to accidents caused during the performance of lawful acts [Section 80, IPC] and acts not intended to cause death and performed for the benefit of the person by his consent and in good faith [Section 88, IPC], the fear of criminal liability has been lingering while performance of their duty even today.

The Indian Supreme Court has also issued some guidelines in deciding the test for medical negligence and prosecution of medical practitioners. What goes to the basis of those rules is that the loss of reputation is almost permanent once a criminal investigation starts against a doctor. It was also taken into account that since the essence of the work done by doctors includes the public service, it is much more important to provide such guidelines in this regard.

Medical negligence comes under 2 categories under Indian law; criminal negligence and negligence under the Consumer Protection Act. There are separate clauses relating to the relief in the form of penalty and compensation. The following is an empirical analysis of the above mentioned laws on medical negligence.


Recently, in Jacob Mathew v. Punjab State and another 456/2005. Criminal Appeal No. 144–145 of 2004, the Supreme Court ruled that, in order to hold a doctor criminally liable for a patient's death, it must be proven that there was negligence or misconduct on the part of the doctor that went beyond a mere issue of civil liability compensation. Legal responsibility would only occur if the practitioner did something in disregard of the life and safety of the patient.

Under section 304A of the Indian Penal Code, death caused by a rash and negligent act attracts imprisonment for up to two years, or a fine, or both. The duty of collecting evidence of criminal liability is on the complainant. The accused person will be presumed innocent until the prosecution adduces facts beyond reasonable doubt; the civil court will be satisfied with a mere preponderance of probability. For these reasons, an act viewed in a civil court as negligent does not actually need to be guilty of criminal negligence.

The Court noted that as citizens become increasingly aware of their rights, more lawsuits are being brought against doctors in civil courts, as is also the case under the Consumer Protection Act, 1986, claiming "deficiency in service." Doctors are not only charged under IPC Section 304A. They are also prosecuted under Section 336 (rash or negligent endangering human life), Section 337 (causing hurt to any person by doing some rash or negligent act that would endanger human life) or Section 338 of the IPC (causing grievous harm to any person by doing any rash or negligent act that would endanger human life).

The Court observed that to obtain unfair compensation, charges of rashness or negligence are frequently brought against doctors by individuals without sufficient medical knowledge. This leads to severe embarrassment and harassment of doctors forced to obtain bail in order to avoid the arrest. They would have to face prison if bail is not issued. They may end up being exonerated of the charges; but they will have suffered a loss of reputation in the meantime; perhaps irreversibly. Hence the propensity to initiate these cases must be curbed.


Civil liability usually includes claims in the form of compensation for damages suffered. Whether there is some breach of duty of care during service or when the patient is under the supervision of the hospital or the medical professional, they are held responsible for any wrongdoing. They are liable in the form of compensation for the damages. Often senior doctors are also held vicariously liable for the wrongs the junior doctors have committed.

 Since the 1990s, there has been a great deal of speculation and controversy on whether medical facilities are included expressly or categorically in the definition of "services" as enshrined in Section 2(1)(o) of the Consumer Protection Act,1986. Deficiency of service (Section 2(1) CPA,1986 relates to any fault, imperfection, deficiency or inadequacy in the consistency, nature or manner of performance imposed by or under any law for the time being in force or committed to be performed by a person pursuant to a contract or otherwise relating to any service.

In 1995, the Supreme Court ruled in Indian Medical Association v. V P Shantha AIR 1996 SC 550: (1995) 6 SCC 651 within the scope of the 'service' specified in the Consumer Protection Act, 1986. It established the relationship between patients and medical professionals by granting contractual patients the right to sue doctors if they suffered injuries for compensation in the course of care in consumer protection courts that were 'procedure free.'

Cases of neglect may involve blood transfusion from wrong blood classes, leaving a mop in a patient's abdomen after surgery, extracting organs without permission and prescribing injury-related medication. Individuals providing medical advice and care clearly claim that they have the skills and knowledge to do so, that they have the capacity to determine whether to take a case, determine the care, and prescribe it. On a medical professional's part this is regarded as a "implied undertaking."

In the case of State of Haryana v. Smt Santra AIR 2000 SC 3335 the Supreme Court held that each doctor "has a duty to act with a reasonable degree of care and skill." However, since no human being is perfect and even the most renowned expert can make a mistake in the diagnosis of a disease, a doctor can only be held liable for negligence if one can show that he / she is guilty of a failure that does not result in a failure. According to Lord President Clyde's Findings in Hunter v. Hanley (1955) SLT 213, an error of judgement constitutes negligence only if the defendant is a reasonably qualified practitioner with the usual professional credentials of the defendant.

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