Law Against Medical Negligence in India

This article examines the concept of medical negligence and its essential elements. It further discusses act that are considered as negligence and acts that, despite proper care, are beyond the control of doctors and thus cannot be sued for the same.

Wed Jun 29 2022 | National & Social | Comments (0)


What is medical negligence?

In simple words, medical negligence emerges from an action or negligence by a medical practitioner, which no rationally capable and diligent medical practitioner would have performed.

Consequently, a medical practitioner is presumed to adopt rationally skilful conduct and follow the standard skills and practices of the medical profession with expected care while attending/ treating the patient.

What amounts to medical negligence?

Medical negligence is essentially based on the following:

Is medical negligence covered under Consumer Protection Act?

In a medical negligence landmark case titled Indian Medical Association v/s V.P. Shantha & Ors., India’s  Apex Court declared that medical services provided to a patient by a doctor (excluding when the medical practitioner has been treating the patient free of cost), by way of medical consultation, medical diagnosis and treatment of the same, either medicinal or surgical, come under the scope of the Consumer Protection Act and doctors can be prosecuted for insufficiency/ negligence in the medical service.

What is Consumer Protection Act about?

The main aim of the Act is to accord for improved security in consumer  interest and for the desire to create provisions for the institution of Consumer Councils and additional agencies in the consumer disputes settlement and for associated disputes.

The Section- 14(1)(d) of the Consumer Protection Act, 1986 states that any consumer who has suffered loss or injury due to the negligence on the part of the opposite party will be compensated accordingly. This law includes medical practitioners in its ambit.

What should be the responsibility of a doctor?

The Apex Court, in another landmark case titled, Dr. Laxman Balkrishna Joshi v/s Dr. Trimbak Bapu Godbole and Anr declared that a doctor has a responsibility of care in choosing whether to handle a specific patient, a responsibility of care in choosing what therapy/ medication to give to the patient as well as a responsibility of care in the administration of that medication and therapy. Therefore, any neglect in  any of those responsibilities gives a right of a lawsuit for negligence towards the patient.

A medical practitioner is presumed to utilize a rational extent of care, neither the very lowest nor a very high extent of care, and ability assessed in the light of the specific conditions of particular case is what the law demands.

Where does the burden of proof lie in cases pertaining to medical negligence?

Burden of proof is one of the most important rules of evidence that makes an individual prove a specific thing and if not proved, then the opposite of it will be presumed by the court.

In a case titled Nizam Institute of Medical Sciences v/s Prasanth S. Dhananka and Ors., the Apex Court in this case pertaining to medical negligence held that once the preliminary burden has been dispensed by the aggrieved patient by establishing a case of medical negligence by the medical practitioner or the hospital related, the burden of proof subsequently shifts on to the medical practitioners treating the patient or the hospital and it is for them to convince the court that there was no negligence or violation of duties on their part.

What does not amount to medical negligence?

Due to  numerous Supreme Court judgments, it is quite simple to establish what constitutes medical negligence and what does not.

  1. Any insignificant difference from ordinary medical practice or an insignificant accident does not always amount to medical negligence.
  2. Any inaccuracy of judgment on the part of a doctor/ hospital or simply because a patient has not positively responded to a specific medication/ therapy as recommended by the doctor, or where a surgery has failed is not necessarily medical negligence.
  3. A medical practitioner or a hospital cannot be declared negligent solely because their interpretation varies from that of other medical professionals or solely because the medical practitioner decides one satisfactory treatment over the other treatments available.
  4. In the case where a medical practitioner has opted for a riskier form of treatment to help recover the patient, but it does not produce the preferred result, it would not be considered medical negligence.

What different measures can be taken by the medical practitioner to avoid medical negligence?

As per numerous Supreme Court judgments, it is quite simple to establish what would constitute negligence:

  1. The administrative staff of the hospitals as well as the departmental heads must strictly keep a check on their infrastructure, current practices, paramedical and other staff, cleanliness and sterility.
  2. Moreover, hospitals must make sure that no prescription is given without an actual examination of the same. In addition, the hospital must maintain complete record of every patient’s diagnosis as well as their treatment/ medication etc.
  3. Apart from the above, the doctor must make his own independent interpretation including the different medical tests and examination and not completely trust the patient’s
  4. Furthermore, a doctor must avoid experimenting with the treatment unless it is imperative and even if he does, he should routinely get written consent from the patient where the patient must be informed of the potential risk involved with that treatment.

How has the Supreme Court been handling medical negligence cases?

Let us take a look at 3 different cases pertaining to medical negligence:

  1. The Supreme Court denied compensation to a complainant since there was no evidence to prove any mysterious variation from the ordinary treatment protocol.

    In this case, a woman was diagnosed of oesophageal cancer and, as a result, was admitted to a hospital for the treatment of fever and chills and re-insertion of nasal feed tube, which was displaced. Post the required medical treatment, the woman was discharged from the hospital.

    But after some days, the woman slipped into a  coma and eventually succumbed. Ultimately, the husband of the woman challenged that the hospital had prematurely discharged his wife regardless of her critical medical condition and that his wife was given an antibiotic orally, which needed intravenous management.

    However, the Supreme Court held that the oral management of antibiotics and consequent discharge was completely justified by the doctor keeping in mind the condition of the woman during that time and therefore, no compensation was awarded to the next of kin. 
  2. The Supreme Court increased compensation for a patient in the case where a child was reduced to a vegetative state post a surgical medical procedure.

    In this case, a child, not more than 3 years of age, suffered both mental and physical abnormality, which resulted in the vegetative state of the child.

    Consequently, the mother of the child pleaded for sufficient compensation to deal with the extra expenses which would ensure adequate foster care of the child living in a vegetative state.

    As a result, the Supreme Court held that it was a clear case of medical negligence on the part of the hospital as essential measures were neglected by the doctors, while being aware of the post-surgery complexities of the same.

    Therefore, the Supreme Court awarded a total compensation of Rs. 17 Lakh to the mother of the child keeping in mind the miserable state of the family with a child in a vegetative state.

  3. The Supreme Court held that the law pertaining to medical negligence must take a more humane approach towards the patient as well as the family and therefore, granting restricted compensation to a family cannot be justified on the basis that the person deceased was a home-keeper.

    In this particular case, a woman who was suffering from dengue was admitted to the hospital. But on the very same day of her admission to the hospital, she passed away due to a heart attack. As a result, the husband of the woman deceased challenged that the customary medical treatment, which is provided to the dengue patients, was not provided to his

    Thus, the Supreme Court observed that appropriate treatment was not provided to the woman  and the custom of rational medical care, which is expected from the hospitals as well as doctors was clearly violated.

In addition, it was also held that a woman’s  contribution to the family has a significant financial correspondence and therefore, the Supreme Court awarded a compensation of Rs. 15 Lakh with interest to the family of the deceased woman.

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