By Divya Nagpal

Legal Intern, H.K. Law Offices

What is medical negligence?

Medical negligence is improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional. It occurs when a health-care provider strays from the recognized “standard of care” in the treatment of a patient.

The “standard of care” is defined as what a reasonably prudent medical provider would or would not have done under the same or similar circumstances.

Medical Negligence as a Tort

A medical practitioner ready to give medical advice and treatment undertakes that s/he is a person with skill and expertise to do so and therefore has following duties towards the patient-

  1. A duty of care in deciding whether to undertake a particular case.
  2. A duty of care in deciding what treatment to give.
  3. A duty of care in administering that treatment properly.

So it can be considered as a kind of tort of negligence.

Medical Negligence as Crime

Courts have repeatedly held that the burden of proving criminal negligence rests heavily on the person claiming it. Criminal law requires a guilty mind. If there is a guilty mind, a practitioner will be liable in any case.

But if, under the criminal law, rashness and recklessness amount to crime, then also a very high degree of rashness would be required to prove charges of criminal negligence against a medical practitioner and such negligence or rashness or must be ‘gross’ in nature.

Medical negligence under Consumer protection

Under consumer protection laws, medical negligence is another form of deficiency in service. But there is a stricter liability in this situation as failure to exercise skill and care as is ordinarily expected of a medical practitioner is the test under consumer protection laws.

Doctors are expected to exercise a very high degree of skill and care, but they should not be inhibited in the exercise of their duty. Therefore the laws imposing liability on medical practitioners have been tailored to provide practitioners’ maximum possible protection.

In Indian Medical Association v. V.P. Shanthathe Supreme Court reiterated that services rendered to a patient by a medical practitioner (except where the doctor provides services free of charge to every patient or under a contract of personal service) by way of consultation, treatment and diagnosis, both surgical and medical, would fall within the service as defined in section 2(1) (o) of the Consumer Protection Act 1986.

Although the burden of proof lies on the petitioner to prove negligence but service of doctors being under consumer protection act, shifts the burden slightly on the medical practitioner too as s/he is expected to exercise extreme care and caution.

Four D’s of medical malpractice to prove negligence

The four Ds of medical malpractice are duty, dereliction (negligence or deviation from the standard of care), damages, and direct cause. Each of these four elements must be proved to have been present, based on a preponderance of the evidence, for malpractice to be found.

Res ipsa loquitur

It states that it is for the plaintiff to prove negligence of the defendant may cause hardship to the plaintiff if it is impossible for him to know what precise acts or omissions led to his injury or damage, and this is most obviously so, where the cause of the damage is peculiarly within the means of knowledge of the defendant who caused it. This maxim is a rule of evidence. It means that a thing speaks for itself, i.e., the facts and circumstances which the plaintiff has proved established a prima facie case of negligence against the defendant. The requirement is that mere happening of the accident should tell its own story and raise the inference of negligence on the part of the defendant.

This maxim was applied by the Apex Court in case of V.Krishan Rao Vs Nikhil Super Speciality Hospital (2010),  where the petitioner, an officer in the malaria department filed a complaint against the hospital for negligent conduct in treating his wife who was wrongly treated for typhoid fever instead of malaria. Finally, the verdict was given and Rao was awarded a compensation of  Rs 2 lakhs.  In this case, the principle of res ipsa loquitur (thing speak for itself) was applied and the compensation was given to the plaintiff.

Vicarious liability of hospitals even for borrowed doctors

The High Court of Madras in case of Aparna Dutt .V. Apollo Hospital Enterprises Ltd. (2002) held that a patient requires diligent and proper care, if any of the staff of the hospital is negligent in the performance of their prescribed work, the hospital will be held liable on the negligent conduct of even borrowed doctors for specific performance of certain operations.

Parents of a young child also consumers and can claim compensation

The Supreme Court in M/S. Spring Meadows Hospital & Anr vs Harjol Ahluwalia (1998) held that when a young child is taken to a private hospital by parents and treated by the doctors then not only the child but his parents are also consumers under the Consumer Protection Act. Hence, a parent can claim the Compensation under the Consumer Protection Act.

Guidelines for deciding a case of medical negligence

The Supreme Court in Kusum Sharma & Ors vs Batra Hospital &Medical Research (2010), laid down following guidelines-

  1. Negligence is the breach of a duty exercised to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
  2. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
  3. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
  4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
  5. If in the realm of diagnosis and treatment there is scope for genuine difference of opinion then one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
  6. The medical professional is often called upon to adopt a procedure which involves a higher risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking at the gravity of illness has taken higher risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
  7. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
  8. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
  9. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.
  10. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
  11. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.

Recently the Supreme Court has reiterated the guidelines to establish negligence on the part of a medical practitioner in case of Dr. Harish Kumar Khurana v. Joginder Singh and Ors (2021) as follows-

  1. The principle of res ipsa loquitur can be applied only when negligence is shown to be very obvious.
  2. The complainant has to establish negligence on the part of the doctor based on medical evidence and expert medical opinion.


An act of to be considered as an act of  medical negligence must fulfil three parameters- (i) it must be proven that the treatment has not been consistent with the standard of care, which is the standard medical treatment accepted and recognized by the profession, (ii) it must be proven that the patient has suffered some kind of injury due to the negligence, (iii) it must be proven that the injury resulted in significant damages such as disability, unusual pain, suffering, hardship, loss of income or a significant burden of medical bills.

The judicial evolution of the concept of medical negligence in India shows that the Courts have tried to balance the rights of claimants as well as practitioners taking into consideration the rights and liabilities of both sides. 

Published by meghachaturvedi

Associate Partner, H.K. Law Offices

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