THE LAWWAY WITH LAWYERS JOURNAL

VOLUME:-5 ISSUE NO:- 5 , NOVEMBER 15, 2023

ISSN (ONLINE):- 2584-1106

Website: www.the lawway with lawyers.com

Email: thelawwaywithelawyers@gmail.com

MEDICAL NEGLIGENCE AND MALPRACTICE IN INDIA

-Arpita Tiwari

BALLB

Kirti P. Mehta School of Law, Hyderabad

Abstract

We know that in a family each and every person is related to some other person and with the

same person in the family and this relationship is built by birth. Just like the family we

develop a relation professionally where doctor and patient relationship is also one of the

trustworthy relationship but what if this trust has been broken by the doctor at the time of

fulfilling their responsibility or doing their duty due to which negligence arises. Medical

negligence is a biggest problem in India and Judges are meant to make the final decision in a

nation that upholds the rule of law when cases like these are brought before the courts.

However, since judges lack training in medical research, it may be difficult to decide whether

physicians have acted negligently. They base their conclusions on the opinions of specialists.

To reach a ruling, judges consider both the national law and fundamental legal concepts. The

guiding principles are caution and fairness. Through the paper the author will discuss the

concept of medical negligence its essentials and in addition to that we will discuss the

concept of medical malpractice. There has been much discussion of the historic decision

0rendered by the Supreme Court in two well-known instances involving medical malpractice.

At the end of the paper the author will discuss the requirements and expectations with respect

to standard of care.

–Keywords: Medical Negligence, Medical Malpractice, Right to Life, Doctor, Patient.

Introduction

In India, the medical field is regarded as one of the finest of all professions. A patient views

their doctor as divine. Furthermore, God is flawless. However, it is the patient’s perception.

Doctors are, after all, people and they could make a mistake. Medical professionals might act

carelessly while doing their duty. 1 When a doctor or a physician are not doing their duty with

utmost care towards their patient then the term medical negligence arises. Medical negligence

does, in fact, pose a major threat to human rights as it directly impacts people’s “right to life”

and “right to healthcare.” There are number of instances which have been related to medical

negligence but in fact no legal action has been taken for the same. Due to which it causes the

public’s confidence in healthcare providers to completely evaporate. We can take a recent

example i.e., Covid-19 which is the biggest hazard of our nation not only in India but all over

the world this disease has threatened each and every person to make a social contact with the

another person and with their loved ones. During Covid many of the doctors have not treated

the patients who are infected because of that disease. Our nation has witnessed a shortage of

beds, cylinders in the hospitals due to which patients are dying. During Covid India has

witnessed number of cases of medical negligence which has been arisen and not been

reported even if it is reported no action has been taken place. In our Indian Constitution right

to health is a inherent fundamental right within the broader context of the right to life Article

212 of the Constitution says that it is the right of everyone to live in with ‘Human Dignity’.3

Medical negligence has contributed to the death of persons with significant illnesses in

addition to making people’s medical problems worse than they were before.

Definition of Medical Negligence

3

Maneka Gandhi Vs. Union of India, AIR 1978 Sc 597

2

Article 21 of the Constitution

1

Daya Shankar Tiwari, Medical Negligence: A Critical Study, (November 4, 2013),

<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2354282)> accessed 4 November 2013.

1Medical professionals that act negligently while handling their patients are considered to be

practicing medical negligence. Nonetheless, medical negligence is not defined by law in

India.

The case of Poonam Verma v. Ashwin Patel & Ors4 is the case where Supreme Court

analysed the problem of medical negligence. The Court says that, “Negligence may manifest

in a variety of ways. It can be criminal negligence, gross negligence, hazardous negligence,

comparative negligence, concurrent negligence, continued negligence, active and passive

negligence, willful or reckless negligence, or negligence as such.”

Essentials of Medical Negligence

In order to constitute medical negligence the plaintiff shall fulfill the required conditions and

they are as follows.

❖ Legal Duty towards the Plaintiff

The doctor has a responsibility to take care of their patients. This obligation may be derived

from a contract or from tort law. The patient does not necessarily enter into a written or

spoken contract with the doctor when they agree to treatment for their condition, but it is

implied that any careless behaviour would undoubtedly amount to a violation of professional

obligation. This is where the existence of legal responsibility originates. Therefore, it is the

physicians’ responsibility to treat patients with the implicit guarantee of a particular level of

expertise. The doctor has the responsibility to take care of his patients and for this he has

following duties to follow:

● If the doctors are unable to treat their patients to the best of their skills then they must

avoid treating the patients at that point.

● After accepting a patient, they ought to use extreme caution when deciding what kind of

care to provide.

● Finally, the doctor should provide the therapy with caution and diligence throughout the

aforementioned treatment.

4

Poonam Verma v. Aswin Patel & Ors, (1996) 4 SCC 332

2The railroad crossing’s gates were open in Mata Prasad v. Union of India5 . The vehicle was

struck by an approaching train as the driver attempted to cross the railroad tracks. It was

decided that the truck driver may presume there was no risk in crossing the railroad tracks

while the level crossing’s gates were open. As a result of their carelessness, the railway

administration was held accountable.

❖ The Duty of Care has been violated by the Defendant

Whatever is typically anticipated of a cautious individual who has earned the required

expertise through years of experience undoubtedly constitutes his legal responsibility, and it

is the rule not to vary from it in ordinary circumstances. As a result, a violation of legal

obligation is detected if he does anything out of character for an average guy or does an act

that a typical practitioner would not have overlooked. If the doctor while treating a patient

has not taken a proper care and if the doctor is not diligent at the time of treating a patient and

due to which patient has suffered a injury and if there is any kind of violation has occurred to

the patient’s legal rights then the inquiry should be made on the same and it should be taken

into account that the doctor is liable towards the patient and violated his/her duty of care.

In the Nirmala v. Tamil Nadu Electricity Board6 case, the plaintiff’s husband was

electrocuted and instantly passed away after coming into touch with a broken live wire while

working on their farm. The court found the defendants negligently responsible, stating that

they should have provided a mechanism to render the broken wire harmless and dead, given

that they had neglected to maintain regular maintenance, which resulted to the snapping of

the wires.

❖ The Injury has been made to the Patient because of the Breach of the Legal Duty of

the Doctor

When the harm is created as a result of the development of any unusual scenario, such

carelessness requires compensation in the desired terms. Courts are capable of determining

the actual liquidated amount. Due to a lack of clear and fast rules, courts have already ruled

out the difficulties they have when awarding compensation. The facts and circumstances will

compel the consumer forum or adjudicating body to provide reasonable, appropriate, and fair

6

Nirmala v. Tamil Nadu Electricity Board, AIR 1984 Mad 20

5

Mata Prasad v. Union of India, A.I.R. 1978 All, 303

3remedies. In order to proof the breach occurred because of the doctor then it is necessary that

there should be an injury to the patient.

The case of Municipal Corporation of Delhi v. Subhagwanti & Ors7 there was a clock tower

in Chandani Chowk in Delhi which has been collapsed due to which the death of the

plaintiff’s husband has been caused. The fall of the Clock Tower, according to the Chief

Engineer, was caused by the push of the arches on the top half, and the mortar had

deteriorated to the point where it had no cementing capabilities and that was exclusively

under the ownership and control of its appellants or servants. The sheer fact that the Clock

Tower fell tells its own tale in drawing an inference of carelessness so as to build a prima

facie case against the appellants (the defendants),” the court concluded after considering the

evidence.

In Acchutrao Haribhau Khodwa v. State of Maharashtra8 , the plaintiff’s wife had surgery

while admitted to a government hospital. The patient finally died as a consequence of the

physicians leaving the mop inside of them during a sterilization procedure, which caused pus

to grow. As res ipsa loquitor may be invoked, it was decided that carelessness was broad in

scope and that both the government and the physician carrying out the procedure were

culpable.

Major Judgements of Supreme Court

Jacob Mathew v. State of Punjab & Another

In the case of Jacob Mathew v. State of Punjab & Another decision, the Supreme Court

addressed professional carelessness and provided examples from the legal and medical fields,

noting the following:

“Professions with specialized talents or skilled personnel are expressly included in the

category of profession in the law of negligence, including physicians, attorneys, architects,

and others. If someone has the necessary abilities to do a work, they will often be hired or

assigned to it. This is especially true for tasks requiring certain ability. By quickly addressing

that individual, any reasonable person entering a career that calls for a certain level of

learning to be referred to as a professional of that branch is assured that the skill will be

8

Acchutrao Haribhau Khodwa v. State of Maharashtra, AIR 1996 SC 2377

7

Municipal Corporation of Delhi v. Subhagwanti & Ors, (1974) 1 S CC 690

4trained and exercised with the proper degree of care and caution. He doesn’t guarantee the

outcome to his customer. A lawyer does not guarantee to his client that they will prevail in

every situation. In some situations, a doctor cannot guarantee that a patient will completely

recover. A surgeon cannot promise that the procedure will benefit the patient 100% of the

time or that it will be helpful permanently. The only guarantee that such a professional can

provide, either explicitly or implicitly, is that he has the necessary abilities in the field of

work he is engaged in and that he completes the tasks assigned to him with the proper level of

efficiency. Use to hone your abilities. This is what the individual seeking expert assistance

should anticipate. According to this criterion, a professional may be found negligent if one of

two things happened: either he didn’t have the necessary abilities that he had acknowledged,

or he hadn’t used them with the proper justification in the particular instance. The abilities he

had. Whether or not the accused has engaged in negligence, the standard to be used in the

interest of justice would be that of an ordinary competent individual using ordinary

competence in that line of work. Not all professionals in this field need to have the most

experience possible.9

Kunal Saha Case

Mrs. Anuradha Saha, the spouse of Dr. Kunal Saha, passed away in May 1998 as a result of

contracting TEN (toxic epidermal necrolysis) when visiting India for a wedding. She was a

resident of the USA. Anuradha Saha discovered rashes on her body shortly after and

surmised that it may be an allergic response. The pair conferred with Dr. Sukumar

Mukherjee, a physician at the AMRI Hospital in Kolkata. In order to reduce inflammation in

his body using long-acting glucocorticoids, he administered the injectable Dipomedrol. Since

it is a long-term medicine, the pharmaceutical manufacturer recommends taking 40 to 120

milligrams of the prescription at intervals of 104 weeks. Dememedrol is not meant to be

taken twice a day and is only meant to treat chronic conditions. This is according to Dr. JS

Pasricha of AIIMS. It is not meant for usage with critical illnesses like TEN. Diasolone, a

steroid composite of methyl prednisolone, and 80 mg of dipomedrol twice a day for two days

were administered by Dr. Sukumar Mukherjee. In addition to the fact that this was an

excessive dosage, it was found that there was no emergency treatment given, nurses were not

monitoring the patient’s symptoms, and the patient needed to be admitted to the intensive care

unit. Nevertheless, the hospital turned one room into an intensive care unit. For all these

9

Jacob Mathew Vs. State of Punjab, AIR 2005 SCC 1

5reasons, he died. It was the first instance of medical malpractice and the largest settlement

ever given in a civil court. Once all interest was included, a settlement of Rs. 5.96 crores was

given, totaling Rs. 11 crores.

Dr. Kunal Saha sought to use Section 304A of the IPC to bring criminal charges against the

physicians and the facilities. However, the court declared that when the physician or surgeon

does not think they can heal the patient, there is no basis for a criminal prosecution. Because

of the unpredictable nature of the human body, a doctor cannot regulate every situation. It

was challenging to come to the conclusion that an injection provided by a doctor, the amount

of which was so high, would result in the doctor providing less care. The hospital could not

be held legally liable for the deceased’s suffering simply because there were no barn wards. It

lacked substance as well. The criminal appeal was rejected when it was submitted to the

Supreme Court.10

Medical Malpractice

Millions of lives are being negatively impacted by medical misconduct every day worldwide,

and it is a major problem in India. When a medical practitioner violates accepted professional

standards and causes harm to a patient, medical malpractice is a legal cause of action.

Medical malpractice liability is often founded on the rules of negligence in common law

states. According to a recent poll conducted by Bangalore’s National Law School of India

University (NLSIU), medical negligence in India has increased 400% over the previous ten

years.

The kind of medical misconduct making headlines are not new; in 1953, a youngster in Pune

who had a shattered arm passed away while receiving improper anesthesia during

surgery. According to Ankuran Dutta, managing trustee of the Anamika Ray Memorial Trust,

98,000 Indians lose their lives each year as a result of medical malpractice, and around 52

lakh medical injuries are reported in the nation each year. 11

India’s Requirements and Expectations Relating to the Standard of Care

11

Dr. Laxman Balkrishna Joshi v. Dr. TrimbakBapu Godbole and Anr, (1969) 1 SCR 206 (India).

10

Sharma, Pratima. (2019, Oct 29). Lawcorner, from www.lawcorner.in:

<https://lawcorner.in/medical-negligence-an-overview-of-its-consequences/> accessed on 31 st July, 2020.

6If a medical practitioner is accused of medical negligence, he might be subject to a number of

penalties. The repercussions might be criminal in character, civil in nature, or both, and the

health care practitioner should be suspended as a result.

Generally, medical carelessness has civil repercussions. Since negligence is a civil violation,

it is governed by the Law of Tort. The medical profession is now governed by The Consumer

Protection Act of 1986, which means that plaintiffs often seek monetary damages in

consumer forums. It is also possible to make accusations in Lok Adalats.

Medical professionals worry about being charged with a crime while doing their duties.

When a doctor is the subject of a criminal inquiry, his image and morals are quickly

damaged, and the damage is almost irreparable.

It is important to note that strict and vigilant criminal legislation will undoubtedly have a

negative impact on the holy relationship between a physician and patient. When a doctor

agrees to treat a unique case, he must confront the legal sword hanging over his career, for

example, if he fails or clearly fails to perform the treatment in a conventional manner. As a

consequence, he won’t be permitted to carry out his extraordinary treatment with an

unexpected outcome.

Section 304A of the Indian Penal Code6 often subjected doctors to criminal liability. But

there has to be “gross negligence.” In the event that medical negligence is proven, a doctor

may potentially face suspension. It is possible to take disciplinary action against him.

Conclusion

Health is a very important factor for a human being and if any individual is suffering from a

health issues then it would be difficult for him/her to do any kind of activity so it is necessary

for everyone to keep one’s health good. The first and foremost responsibility is of individual

to take a proper care of their health but health is a situation which can be critical at any time

so for that we need a doctor and from here the second responsibility will go to the doctor to

treat their patient in a proper way so doctors while treating a patient is responsible to take a

due care and if he fails to do so then he is liable for medical negligence. The awareness

should be created for medical negligence to the public. It is very important for the individual

to know their rights and what action they will take when any person has been affected from

7medical negligence. Most people are unaware that if a doctor is found to be negligent, a

lawsuit may be brought against them with a demand for compensation. So, it is very

important for the government to create awareness among the people about the medical

negligence. Medical Profession involves a high degree of risk and there are many instances

where doctor have to take immediate decisions including a wide range of options. A doctor

cannot be found negligent as long as he carries out his obligations with a fair level of ability

and expertise.

Bibliography

1. Gurnani, Neerja. (2017, Oct 8). Lawctopus. (July 25, 2020), https://www.lawctopu

s.com/academike/medical-negligence/

2. Sinha, Avani. (2019, May 8). Mondaq. (July 25, 2020), https://www.mondaq.com/

india/professional-negligence/804010/medical-negligence-legal-principles

3.

Khamari Prasad, Chandi. (2019, Nov). Medical Negligence: An overview.

International Seminar on Legal Interpretation of Professional Misconduct in India: A

Multidisciplinary approach: Page 35

4. Bhardwaj, Abhishek. (2018, Mar). Medical negligence in India: A study with special

reference to liability in tort. International Journal of Academic Research and

Development. ISSN: 2455-4197. Vol 3. Isuue 2. Page 1415-1422.

Statues

●

Constitution Of India, 1950

●

Indian Penal Code, 1860

●

Criminal Procedure Code, 1973

●

Consumer Protection Act, 1986

89