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An Analytical Study of Medical Negligence in India

Medical Negligence in India

Medical Negligence in India

Author : Neha Singh

The profession of Health is not immune to negligence. Every year 98,000 deaths in India are reported due to medical injuries and according to Manupatra, medico-legal cases have gone up to 400% in India.  Medical negligence fundamentally is a breach of duties and ethics committed by a medical practitioner towards their patients. The magnitude of medical negligence brings grave consequences. The public awareness on the matter of medical misconduct in India is rising and the Consumer Protection Act, 1986 provides provisions for redressal of grievances of the patients against medical malpractice from Consumer Court. a patient’s right to receive medical courtesy from the doctors and hospital is a civil right and failure to accomplish this commitment basically establishes a tortious liability. A tort is a civil wrong against a contractual obligation and breach of it entices judicial intervention.

Civil and Criminal negligence

A case of civil medical negligence arises under Consumer Protection Act by filing a suit in a civil court against a Doctor or Hospital regarding a treatment that was not free of cost. In the case of Indian medical Association vs V P Santha, AIR 1996 SC 550, the court held that Doctors are not liable for their service individually if they provide it free of expense hence a free treatment at private hospital, government hospital, health Centre or nursing home would be deliberated as a “service” defined under Section 2 of Consumer Protection Act.

Criminal negligence is dealt under Section 304A of IPC that states that whoever caused death of an individual by rash or negligent act without amounting to culpable homicide shall be punished with 2 years of imprisonment or a fine or both. In the case State of Haryana vs Smt. Santra, AIR 2000 SC 3335, the Supreme Court pointed out that liability in civil law is based upon the amount of damages caused while in criminal law, the amount and degree of negligence is an aspect in determining liability. However, certain elements must be established to determine criminal liability in any particular case, the motive of the offence, the magnitude of the offence, and the character of the offender. The Doctors can claim defenses under Section 80 and 88 of IPC against criminal liability. Section 80 states it is not an offence when an unforeseen accident occurs while doing a lawful act and Section 88 states that a person cannot be accused of offence if the patient has given consent either expressly or implicitly.

Consent of a patient

Obtaining prior consent of the patients is an obligation for the doctors or hospitals. The importance of consent was indicated out in the case Samira Kohli vs. Dr. Prabha Manchanda and Ors. I (2008) CPJ 56 (SC), court held that performing surgery without obtaining consent of the patient amounts to invasion and interference in the patient’s body and the court denied the fee of the surgery to respondent and a compensation of Rs. 25,000 was directed by the court to be given.

Categories of consent acknowledged:

  1. Express consent: a written or oral consent.
  2. Implied consent: implication of patient’s conduct is taken.
  3. Tactic consent: an indirect consent without being stated.
  4. Surrogate consent: consent obtained through family members.
  5. Advanced consent: obtained through patient in advance.
  6. Proxy consent: a consent obtained by authorized person.

Case Laws

In the case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr., AIR 1969 SC 128, the court laid down the duties that the doctor is obligated to and breach of them is measured as negligence. The doctors owe certain duties to their patients which are (a) duty of care in deciding whether to undertake the case, (b) duty of care in deciding what treatment to give, and (c) duty of care in the administration of that treatment. 

In the case of A.S. Mittal v. State of U.P., AIR 1989 SC 1570, the court observed manifestations of negligence which are active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence, or negligence per se.

In the case of Poonam Verma vs. Ashwin Patel and Ors. (1996) 4 SCC 322, the Supreme Court held that a person is guilty of negligence per se, when a person does not have knowledge of a system of medicine but practices it nevertheless.

In the case of Pravat Kumar Mukherjee vs. Ruby General Hospital and Ors, II (2005) CPJ 35 (NC), the National Commission delivered a landmark decision regarding the treatment of an accident victim by the hospital.

In the case of the Indian Medical Association vs. V.P. Shanta and Ors., III (1995) CPJ 1 (SC), the Supreme Court upheld the coverage of medical profession within the ambit of the Consumer Protection Act, 1986 as patients who are charged with fee are considered to be consumers.

In the case of Dr Janak Kantimathi Nathan vs Murlidhar Eknath Masane 2002 (2) CPR 138, the National Consumer Disputes Redressal Commission applied the principle of res ispa loquitor, no proof of negligence was required in this case beyond the accident.

In the case of Kanhaiya Kumar Singh vs Park Medicare & Research Centre III (1999) CPJ 9 (NC), the court held that negligence has to be established instead of being presumed.


A patient approaching a doctor or hospital invest their trust in them of being knowledgeable and skilled in the field hence it is the medical duty and ethic of a medical practitioner to act such. The obligation to these duties needs to be a priority to a doctor or hospital and therefore, negligence in the medical profession is a mistake that cannot be overlooked. Being bound to the expectation of medical profession is essential and breach of them is administered thoroughly via law.

Medical Negligence in India Medical Negligence in India