What is Medical Negligence?
Medical negligence is caused when medical institutions/medical care providers fail to fulfil their professional obligations properly. Every medical institution/ medical care provider is duty bound to provide services to the patient with utmost care. If the said duty is not fulfilled in a proper manner, it may be considered as medical negligence.
To establish medical negligence, it must be proved that the healthcare professional breached their duty of care by failing to provide treatment as per required standard. The compensation awarded to patients in cases of medical negligence in India can vary depending on the severity of the harm caused.
| The onus of proof of medical negligence is on the patient. Once the patient proves that medical injury was caused due to negligence of the doctor only then it shall be treated as medical negligence. |
Essentials for establishing medical negligence.
In accordance with tort law, the test of medical negligence occurs in three consequent steps – duty, breach and result of damage:
- Duty of Care: If the doctor/medical practitioner owed a duty of care towards the patient or person who has suffered mental and physical injury, then the doctor is guilty of medical negligence and shall be expelled to practice further. It has been held by the Supreme Court that it is essential that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another’s negligence.
- Breach of Duty: The second factor is the establishment of the fact that despite the doctor having a duty of care towards the patient, the former failed to fulfil such duty and has breached in fulfilling their duty.
- Causing Injury: It must be established that a doctor owed a duty of care towards the patient, and they failed in fulfilling their duty and such failure has resulted in injury or death to the patient.
Degree of Negligence
For medical negligence may be a civil or criminal charge, it is important to set degrees of negligence to prosecute them. In civil law, there are three degrees of negligence:
- Gross neglect, lata culpa;
- Ordinary neglect, levis culpa;
- Slight neglect, levissima culpa.
For fixing criminal liability under section 304A, Indian Penal Code (IPC) the standard of negligence required to be proved should be as high as can be described as “gross negligence”. It is not merely a lack of necessary care, attention, and skill. Negligence which is neither gross nor of a high degree may provide a ground for action in civil law but cannot form the basis for prosecution in criminal law.
The Supreme Court, in
Dr. Mohd. Azam Hasin vs. State Of UP, held that “every careless act of the medic can’t be termed as ‘Criminal’. It can be termed ‘Criminal’ only when the medic exhibits a gross lack of competence or inaction and wanton indifference to his patient’s safety, and which is found to have arisen from gross ignorance or gross negligence”.
Bolam v Bolitho Test
Both Bolam and Bolitho’s matters pertain to medical negligence in UK, hold profound value in assessments of medical negligence. The tests introduced from the ratio of these cases occur at the step of breach of duty.
According to the matter of
Bolam v. Friern Hospital Management Committee, if a doctor reaches the standard of a responsible body of medical opinion, they are not negligent merely because there is a body of opinion who would take a contrary view. In
Achutrao Haribhau Khodwa vs. State of Maharashtra, courts clarified that the medical profession is such that more than one course of treatment may be advisable for treating a patient if the doctor has performed their duties to the best of their ability and with due care and caution. The Bolam Test has also been corroborated in the guidelines set by Supreme Court in
Jacob Mathew v. State of Punjab.
In Bolitho, the word “responsible” stood for practice that withstands the scrutiny of “logical analysis” from a judicial perspective. In
Vinitha Ashok vs. Lakshmi Hospital, the Supreme Court after referring to Bolam, Sidaway and Achutrao, clarified that “a doctor will be liable for negligence in respect of diagnosis and treatment in spite of a body of professional opinion approving his conduct. It must be established to the Court's satisfaction that such opinions relied on are reasonable or responsible. If it can be demonstrated that the professional opinion is not capable of withstanding the logical analysis, the Court would be entitled to hold that the body of opinion is not reasonable or responsible”.
| Res Ipsa Loquitur (the thing speaks for itself) has, if at all, a limited application in trial on a charge of criminal negligence. It is only a rule of evidence and operates in the domain of civil law, especially in cases of torts. |
Liability of Medical Negligence
The liability of a hospital in cases of medical negligence could be direct or vicarious. Direct liability would mean a deficiency in services provided by the hospital thus making it unsafe and not suitable for treatment. Doctor/Medical Professional/Medical Care Providers can be held liable if proved that they were negligent while treating the patient. Paralegal staff too can be held liable for the negligence.
Exemptions Available for the Medical Professional
When treating their patient pro bono, doctors cannot be held liable either individually or vicariously. Consequently, free treatments at government or non-government hospitals, health care centers, dispensary or a nursing home are not considered as service as defined in Section 2 (42) of the Consumer Protection Act, 2019.
Indian Medical Association v. P Santha too provides for the exemption informed consent under which doctors may not be prosecuted. For the exemption to apply, as per section 81 of IPC, the doctor must inform patients about the risks associated with a medical procedure. If the patient green lights the procedure done in good faith, the doctors cannot be held liable for medical negligence.
It is also important to note Section 80 of IPC - that doctors cannot provide assurance to act perfectly or cure the patient. If the doctor has adopted the right course of treatment for the patient, is skilled and has worked with a proper method and manner that suits the patient best then they cannot be blamed for negligence even if the patient is not totally cured.
Section 88, IPC is another exemption applicable if the medical professional has, in fact, acted in good faith and has no reason to cause harm despite the implicit or explicit informed consent.
Guidelines of Supreme Court of India
While the healthcare sector’s demand to frame guidelines for determining medical negligence cases stands pending with the Union Health Ministry, we are currently to follow guidelines laid down by the Supreme Court, in the case of
Jacob Mathews v. State of Punjab:
- An application/complaint/petition may not be entertained unless the person giving such complaint produces prima facie evidence before the Court to support their claim of negligence against the Accused doctor.
- The appointed Investigating Officer must, before initiating proceedings against the accused doctor, consult a doctor in government services who must be unbiased, having no connection with either the aggrieved or the accused doctor and impartial in their opinion.
- The accused doctor shall not be arrested routinely unless such arrest is necessary for further investigation or until the Investigating Officer, if satisfied that the accused doctor would not make themself available to face the prosecution, may be arrested.
Remedies for the Person Aggrieved due to Medical Negligence
The consequences of legally cognizable medical negligence can broadly be put into three categories:
Criminal Liability
Criminal liability can be prosecuted under Indian Penal Code, 1860, which applies to general negligence. It is not specific only to medical negligence. Section 304A of IPC which deals with the death of a person by any rash or negligent act and leads to imprisonment up to 2 years, is used to deal with both cases of accidents caused due to rash and negligent motor vehicle driving and also medical negligence leading to the death of a patient. Similarly, other general provisions of IPC, such as causing hurt under Section 337 and causing grievous hurt under Section 338, are also often applied to medical negligence cases. It is also important to note that criminal liability in medical negligence occurs only if the matter is of gross negligence, i.e., negligence of the highest order.
Civil or Monetary Liability
Monetary compensation is applicable under the general law by pursuing a remedy before appropriate civil court or consumer forums. Either the patient or dependents of the deceased patient may seek compensation from the erring medical professional. Lok Adalats may also be brought into play pursuant to the Legal Services Authority Act, 1987, by a complainant seeking relief in relation to services “in a hospital or dispensary” which are considered to be “public utility services” within the meaning thereof. The petitioner may seek a conciliation where determination on merits of the matter is made.
The complaints under the Consumer Protection Act, 2019 can be filed at differing forum levels based on value of service and compensation claimed:
- District Forum, if claim is less than INR 20 Lakh,
- State Commission, if claim is below INR 1 Crore, or
- National Commission, if claim exceeds more than INR 1 Crore.
A minimal fee applies for filing a complaint before the District Consumer Redressal Forums.
| Permanent Lok Adalats are conferred powers akin to that of a civil court in specified matters (such as summoning and enforcing the attendance of witnesses) and have jurisdiction in the matters up to INR 1 Crore. |
Disciplinary Action
In case a patient does not wish to pursue a civil or criminal matter, disciplinary action could be their final resort. The Indian Medical Council (IMC) (Professional Conduct, Etiquette, and Ethics) Regulations, 2002, made under IMC Act, 1956 governs professional misconduct by medical practitioners. Medical Council of India (MCI) and the appropriate State Medical Councils are empowered to take disciplinary action whereby the practitioner may face differing consequences:
- Removal of name of the medical practitioner from the register of medical practitioners forever or for a specific period of time.
- During the pendency of the complaint, the council may restrain the medical practitioner from performing the procedure or practice under scrutiny.
The removal is widely publicized through local press and publications of different Medical Associations or bodies.
How to file for Medical Negligence?
According to the National Consumer Helpline Forum, the following are some steps you may take to file a complaint of medical negligence:
1. If you intend to file for a disciplinary action hearing:
i) Send a written complaint to the Medical Superintendent (M.S) of the concerned Hospital with copy to Chief Medical Officer (CMO)/ Civil Surgeon of your area;
ii) If there is no reply or if you are not satisfied with the reply of the concerned official, then you must send a written complaint to the State Medical Council (SMC);
iii) If still unsatisfied, then you can file your complaint with the Medical Council of India (MCI).
2. If you intend to build a criminal case, then the affected patient or family member can file a complaint at the local police station as per the laws detailed above. However, you must corroborate your complaint with an expert opinion.
3. You may also file a complaint with the Consumer Forum/Commission, Civil Court, and Criminal Court, as the case may be, seeking damages arising out of medical negligence.
It is important to bring out all facts commencing from your first visit to the medical professional, all relevant consultations and procedures undergone, to be proved through medical records, documentation, and an additional expert opinion to support your claim.
Conclusion
Over the years, Indian laws have seen minimal development in medical negligence. Cases of medical negligence are not an anomaly. They occur on a regular basis. While the Bolam v. Bolitho test is a growing discussion in House of Lords in UK, there has been no development with this aspect of law in India. The Supreme Court, despite laying down the guidelines, too opined on the importance of guidelines by the Health Ministry, in consultation with the IMC. With the Ministry’s recent response to an RTI with respect to the guidelines, we shall hopefully see a more robust and watertight law in place.
Thank you for getting in touch! 
