This article has been written by Richa Singh of Faculty of Law, Aligarh Muslim University. She has covered all the legal aspects, the procedure for filing a complaint and the consequences of medical negligence.

Introduction 

Medical negligence has become one of the serious issues in the country in recent years. Even the medical profession, which is known to be one of the noblest professions, is not immune to negligence which often results in the death of the patient or complete/partial impairment or any other misery which has adverse effects on the patient’s health. There are instances where doctors who are under-educated leads to the proceedings in the court of law due to the magnitude of negligence or deliberate conduct shown by the doctors. 

Around 52 lakh medical injuries are recorded every year in India out of which 98,000 people in the country lose their lives in a year because of medical negligence. It is really a serious concern for the entire nation that 10 people fall victim to medical negligence every minute and more than 11 people die every hour in the country due to this medical error. (Source: https://www.indiamedicaltimes.com/2016/05/25/98000-people-lose-their-lives-because-of-medical-negligence/)

It is no surprise that even the slightest mistake made by a doctor can have life-altering effects on the patients. So, it is the duty of a doctor to take proper care to avoid such happenings.

Click Here

Medical Negligence

Commission of mistakes or Negligence within the health profession could result in minor injuries or even lead to some serious injuries and these mistakes could even lead to death. Since no one is perfect in this world, a person who is skilled and has knowledge of a particular subject can also commit mistakes. To err is human but to replicate the same mistake due to one’s carelessness is negligence. 

The fundamental reason behind medical negligence is that the carelessness of the doctors or medical professionals are often ascertained in various cases where reasonable care is not taken during the diagnosis, during operations, while injecting anesthesia, etc.

Medical negligence definition

We can define ‘Medical negligence’ as the improper or unskilled treatment of a patient by a medical practitioner. This includes negligence in taking care from a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical negligence leads to ‘Medical malpractices’ where the victims suffer some sort of injury from the treatment given by a doctor or any other medical practitioner or health care professional.

Examples of medical negligence

Some examples of medical negligence are as follows: 

• improper administration of medicines.
• performing the wrong or inappropriate type of surgery.
• not giving proper medical advice.
• leaving any foreign object in the body of the patient such as a sponge or bandage, etc. after the surgery.

What does not come under medical negligence

A doctor is not liable in all cases where a patient has suffered an injury. He might have a valid defense that he has not breached the duty of care. 

The error of judgment can be of two types: 

• An error of judgment – In such cases, it has been recognized that it doesn’t amount to a breach of duty. Merely because a doctor’s decision turned out to be wrong, we cannot make him liable for medical negligence.
• The error of judgment due to negligence – If all the factors were considered before coming to a decision then it would be called an error of judgment due to negligence. This amounts to a breach of duty. 

Types of medical negligence

Medical negligence can occur in different ways. Generally, it occurs when a medical professional deviates from the standard of care that is required. 

So, we can say that any kind of deviation from the accepted standards of medication and care is considered to be medical negligence and if it causes injury to a patient then the doctor who operated on him, other staff and/or hospital may be held liable for this.

Some of the common categories of medical negligence are as follows:

• Wrong diagnosis – When someone goes to a hospital, clinic or medical room, etc. the first step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and important to provide medical care to any patient. However, if a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
• Delay in diagnosis – A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with time rather than being treated. Obviously, any delay in the identification and treatment of an injury can reduce the chance of recovery for the patient.
• Error in surgery – Surgical operations require an enormous level of skill and it should be done with due care and caution because even the slightest mistakes can have profound effects on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or a foreign object being left in the body of the patients, all this comes under Surgical error.
• Unnecessary surgery – Unnecessary surgery is usually associated with the misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risks. Alternatively, sometimes surgery is chosen over conventional treatments for their expediency and ease compared to other alternatives.
• Errors in the administration of anesthesia – Anesthesia is a risky part of any major medical operation and requires a specialist (anesthesiologist) to administer and monitor its effect on the patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist has to review the patient’s condition, history, medications, etc.  to determine the most suitable of all the medicine to use. Anesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
• Childbirth and labor malpractice – Childbirth is a difficult event for a woman and it becomes worse if not handled properly by the doctors and nurses. There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, etc.
• Long-Term negligent treatment – Medical negligence can also occur in subtle ways over the course of a long treatment period. Usually, the negligence can take the shape of a failure to follow up with treatment, or a doctor’s failure to monitor the effects of the treatment properly.

Essentials of medical negligence

The term ‘Medical negligence’ consists of two words – medical and negligence. Negligence is solely the failure to exercise reasonable care. Medical negligence is no different. It is only that, in case of medical negligence, the doctor is the defendant.

In an action for negligence, the following essentials are required:

• The defendant owed a duty of care to the plaintiff.
• The defendant made a breach of that duty.
• The plaintiff suffered damage as a consequence of that breach.

A doctor owes certain duties of care to his patients, they are as follows:

• It is his duty to decide whether he wants to undertake the case or not,
• It is his duty to decide what treatment to give and;
• It is his duty to decide the administration of treatment.

If a doctor fails to perform the aforesaid duties it results in breach of duty and gives a right of action to the patient. A breach of duty is committed by a doctor when he does not perform the degree of care like a reasonable doctor.

In Kusum Sharma v. Batra Hospital[1], it was held by the Supreme Court that a doctor often adopts a procedure which involves a higher element of risk, but in doing so he honestly believes that it will provide greater chances of success for the patient. If a doctor has taken a higher risk to redeem the patient out of his/her suffering and it did not yield the desired result, this may not amount to medical negligence.

In Jasbir Kaur v. State of Punjab[2], a newly born child was found missing from the bed in a hospital. The child was found bleeding and near the wash-basin of the bathroom. The hospital authorities argued that the child had been taken away by a cat which caused the damage to him. The court held that the hospital authorities were negligent and had not taken due care and precaution. Thus, awarded the compensation amounting to Rs. 1 lakh.

Standard of care 

A standard of care specifies the appropriate treatment and medication procedure as per the requirements that should be taken into account by a doctor while providing the treatment to his patients. The care should not be of the highest degree nor the lowest.

Here, the degree means the level of care an ordinary health care professional, with the same training and experience, would render in similar circumstances in the same community. This is the critical question in medical malpractice cases and if the answer is “no,” and you suffered injury as a result of the poor treatment, you may file a suit for medical malpractice.

In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole and Anr.[3], the Supreme Court held that a doctor has certain aforesaid duties and a breach of any of those duties can make him liable for medical negligence. A doctor is required to exercise a reasonable degree of care that is set for this profession.

Duty of care

A duty of care in cases of medical negligence is an obligation on one party (doctor) to take care to prevent harm being suffered by another (patient). Generally, doctors owe an obligation to take care of their patients. 

There are certain requirements to establish a duty of care. They are as follows:

• A physician is not asked to deal with everyone but when he is taking a case then he should deal with it with proper care and in accordance with the set standard of care. A doctor or clinical practitioner prescribing a patient to seek a provider of an extra health practitioner is acceptable. However, when there is an emergency, a medical professional ought to deal with the patient. No health care professional shall immediately resist dealing with the case unless it is out of the area of his expertise.
• The physician should never stretch nor reduce the gravity of a patient’s condition. He will have to make sure that he gives proper treatment to the patient considering the type of ailment the person is suffering from.
• A doctor must have patience as he cannot do without it. The confidentiality of the details of the patient should be kept secret. However, in a few cases, he can reveal the details if he feels that it is his duty to do so. For instance, if there is a disease that is spreading and is dangerous for people then he can make it public and let others know about it.
• A physician or a doctor is free to choose whom he wants to treat but in case of emergency he cannot deny dealing with the patient. But after undertaking a case, the health care professional cannot withdraw from the case without informing the family members of the sufferer. A temporarily or fully registered medical practitioner should not voluntarily commit any act of negligence that deprives his patients of the standard of care.
• When a physician who deals with a particular problem and has expertise in that field is unavailable and another physician is sent for the treatment, the acting doctor is entitled to get his charges but should ensure the patient’s approval or permission to resign on the coming of the physician engaged.

Burden of proof

The burden of proof of negligence generally lies with the complainant. The law requires a higher standard of evidence to support an allegation of negligence against any doctor. In cases of medical negligence, the patient must establish a claim against the doctor in order to succeed.

In Calcutta Medical Research Institute vs Bimalesh Chatterjee[4], it was held that the onus of proving proofs against negligence and deficiency in service was clearly on the complainant. 

Proof of negligence

It has been held in different judgments to charge a doctor for medical negligence the burden of proof lies upon the person who alleges negligence against him (patient). It is a known fact that things can go wrong even with the specialists. And the guilt or negligence can only be established if his acts fall below the standard of care that he ought to take.

Steps to proving a medical malpractice claim

• The first thing you need to prove is that there exists a doctor-patient relationship. This is the easiest step that one can take in order to prove medical negligence.
• The next thing you should do is prove that your doctor did not meet the set standards required as an obligation for this profession.
• Then prove that you have suffered an injury as a result of that medical negligence.
• The proof of damages must be presented and this includes all the harm you have suffered due to the negligent behavior of the doctor.
• All the above-mentioned elements should be proved in order to succeed in a claim against medical negligence.

When does the liability arise

Generally, the liability of a doctor arises when the patient suffers injury due to the substandard conduct of the doctor, which was far below the reasonable standard of care. Hence, the patient should establish that there exists a duty which the doctor needs to follow and then the next step is to prove breach of duty.

Normally the liability arises only when the complainant is ready to discharge the burden on him of proving negligence. However, in some cases the principle of “res ipsa loquitor” which implies that the thing speaks for itself, can come into action. Mostly the doctor is liable only for his own acts but there are some cases in which a doctor can also be made vicariously liable for the acts of another. For example, when a junior doctor is working for the senior doctor commits an error then it becomes the responsibility of the senior making him vicariously liable.

Res ipsa loquitur

The Latin maxim “res ipsa loquitur” means that “the thing speaks for itself.” 

In terms of medical malpractice, it refers to the cases where the doctor’s treatment was far below the set standards of care under that negligence is assumed.

The doctrine assumes the following:

• Nature of injury gives the clue that without negligence it could not have happened.  
• There was no involvement of the patient himself in the injury in any way.  
• The injury happened under the circumstances which were under the supervision and control of the doctor.

It means that by applying the principle the judge has accepted that the negligence has occurred. After this, the doctor will have to rebut this thing and if he fails to do so then the patient would be considered as successful in the case of medical negligence.

How to prove a res ipsa loquitur case?

The injured party must prove that the physician breached the duty of care by failing to adhere to the set standards of care a doctor must follow. The breach must be demonstrated by an expert’s attestation. In res ipsa negligence cases expert declaration about the standard of care is not really required. 

In order to prove a res ipsa case, the following must be done: 

• It is well known to everyone that if a case seems like it could never happen without negligence on the part of the doctor then this directly proves that it falls under the category of res ipsa cases.
• The equipment or manner of treatment that caused the damage was under the doctor’s control at all times.
• The injury was the one which the injured person couldn’t assume voluntarily.

Some Examples of Res Ipsa Medical Cases

Some common scenarios of res ipsa cases are given below: 

• Leaving some object inside the body of the patient after surgery.
• If a wrong patient gets operated.
• If the wrong part of the patient gets operated.

Filing a complaint

Being in a noble profession the practitioner must take a reasonable degree of skill and care and must exercise a reasonable degree of care. The law requires neither the very highest nor a very low degree of care and skill and is different for different cases. If he fails to do so then a complaint can be filed against him.

Medical negligence complaint

A complaint is an allegation made by a complainant. It is in written form. It consists of the statements and some important facts to establish a case that a consumer has suffered loss or damage due to deficiency of any service. 

What is the cost involved in filing a complaint?

A minimal fee is required for filing a complaint before the district consumer redressal forum for medical negligence cases.

Adjudication of liability

When a complaint against medical negligence is filed, the forum sends a notice to the opposite party to submit its version of the case within 30 days after admitting the complaint. After doing proper scrutiny the forum will ask either for filing an affidavit or for producing evidence in the form of judicial precedents, expert opinion, etc.

Steps to follow under Medical Negligence Case

• A complaint must be filed in the State Medical Council – If you are a victim of medical negligence then the first necessary step is to file a complaint against the doctor in the State Medical Council. The complaint can be filed in the state consumer court and a criminal suit can also be brought against the doctor or hospital authorities. 

• • If the main motive behind filing a complaint is to seek monetary compensation then the complaint must be filed in the consumer court in order to finish the case as soon as possible.
  • The consumer courts can suspend the license of the doctor if it is the case of rarest of the rare medical negligence.
• Go to a Patient-Advocate – The other step that proves very useful in medical negligence cases is to go to a patient-lawyer.

• • If there is any breach of duty from the doctor’s side then a patient-advocate can clear this picture in the mind of the patient and ask them to take necessary steps to resolve the matter.
  • The Patient-Advocate can also help the patient in cases if there should be some compensation due to medical negligence.

Step by step procedure 

The following steps must be taken:

• A complaint must be filed with the local police and the State Medical Council.
• If it is filed only with the police, then the police can send the report to the State Medical Council.
• If the report seems appropriate to the Council then it will send it to various other courts under the relevant sections.
• If the case is criminal in nature then it will be against the state versus the hospital or doctor.
• If the council finds that the case is serious and pose a danger to the life of the patient then it can also suspend the doctor’s license for a relevant period of time.
• If the council finds him guilty, the facts and circumstances of the case will decide the punishment to be given to the doctor.
• If the patient is still not satisfied with the judgment then he/she can make an appeal to the Medical Council of India.
• The consumer courts can help the patient in seeking monetary compensation. It should be noted that the consumer courts can only provide you with the compensation it cannot punish the guilty.
• If the complainant is still not satisfied then he can approach the National Consumer Dispute Redressal Commission.

Collection of evidence related to Medical Negligence

The collection of evidence should be like this:

• Collect all the medical records.
• As per the guidelines of the Medical Council of India, the patient should get all the medical records within 72 hours from the date and time of the appointment.

Challenges faced by the victims of Medical Negligence

These are some of the challenges that are faced by a complainant in medical negligence cases:

• If is a time-taking process to decide medical negligence cases. So, sometimes it leads to the de-motivation of the complainant.
• Sometimes, due to the reputation of the hospital, the doctor has more chances of winning the case.
• There are some cases in which the doctor already knows that they have been negligent so they remove all the necessary evidence which creates a problem for the complainant. 
• You need to know about your insurance policy limits because sometimes the insurance company itself rejects the case.

Necessary test to determine Medical Negligence

The name of the test is the Custom Test. 

• In this test, it must be proved that the hospital or any of its staff weren’t negligent in performing its duties. 
• The next thing which should be proved is the method adopted by the concerned doctor was not ethical.
• In most of the cases, the burden of proof lies upon the Complainant but sometimes it shifts to the doctor if there is no proper management done on his part. 

Medical negligence complaint in criminal court

Hospitals, in many cases, are charged for negligence if HIV, HBsAg, etc. gets transmitted due to it. So, if anyone develops such disease during his course of treatment under the supervision of his doctor and the same is proved that it has occurred on account of careless and negligent behaviour on the part of the hospital then the hospital will be held liable for failing to consider the reasonable standards given to them in the form of duty to care and standard of care.

However, if the elements like the motive or intention, the magnitude of the offense and the character of the accused are established then it makes him liable under the criminal law.  

Provisions 

• According to Section 304-A of the Indian Penal Code, 1860,  if a person commits a rash or negligent act which amounts to culpable homicide then the person will be punished with imprisonment for a term which may extend to two years or with fine or both.
• According to Section 337 of the Indian Penal Code, 1860, if a person commits a rash or negligent act due to which human life or personal safety of others gets threatened. The person will be punished with imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees or both.
• According to Section 338 of the Indian Penal Code, 1860, if a person commits a rash or negligent act due to which human life or personal safety of others gets threatened. The person will be punished with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees or both.

Defences 

• Section 80 of the Indian Penal Code, 1860, says that anything which happens as a result of an accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution is not an offense.
• Section 81 of the Indian Penal Code, 1860, states that if anything is done merely by the reason that it is likely to cause harm but if the same is done without any intention to cause harm and in good faith in order to avoid other damages to a person or his property is not an offense.
• Section 88 of the Indian Penal Code, 1860, says that no one can be made an accused of any offense if he performs an act in good faith for the good of other people and does not intend to cause harm even if there is a risk involved and the patient has given the consent explicitly or implicitly.

Expert opinion

The Commission cannot constitute itself into an expert body and contradict the statement of the doctor unless there is something contrary to the record by way of an expert opinion or, if there is any medical writing relying on which, the statement can be primarily based. 

The number of medical negligence cases is increasing day by day so expert’s opinion are important in such cases. 

Medical negligence complaint in civil cases 

• The position concerning negligence under civil law is extremely important because it encompasses various elements in it. 
• Under the tort law or civil law, this principle is applicable even if doctors provide free services. Thus, it can be stated that where the Consumer Protection Act (CPA) ends, the tort law begins.
• In cases where the services offered by the doctor or the hospital don’t fall within the definition of ‘services’ under CPA, patients can claim compensation under the tort law. 
• The onus (burden) of proof is on the patient and he needs to prove that because of the doctor’s actions, the injury has been caused to him.

Compensation claim

In Civil liability, the claim for damages is suffered in the form of compensation. If there is any breach of the duty of care while operating or under the supervision of the hospital or any doctor. They are vicariously liable for such wrong committed and are liable to pay damages in the form of compensation. 

If someone is an employee in a hospital then it is the responsibility of the hospital if an employee causes harm to a patient by acting negligently.

In Mr M Ramesh Reddy v. State of Andhra Pradesh[5], the hospital authorities were held to be negligent for not keeping the bathroom clean due to which an obstetrics patient fell in the bathroom and died therein. The amount of compensation which was awarded against the hospital was Rs. 1 Lac. 

Medical negligence cases in consumer courts

All the medical services fall under the purview of the Consumer Protection Act, 1986. After the judgment of the Supreme Court in Indian Medical Association vs. V.P. Shantha[6], this medical profession and services have been brought under the purview of the Act.

In this case, the court discussed the important question of medical negligence i.e. whether a medical practitioner could be said to rendering services under Section 2(1)(o) of the Consumer Protection Act, 1986. 

The following points were laid down:

• Medical Services should be treated as the “services” under Section 2(1) (o) of the Consumer Protection Act, 1986. It is not a contract of personal service as there is no master-servant relationship between them. 
• Contract of service in Section 2(1) (o) cannot be confined to contracts for the employment of domestic servants only. The services rendered to the employer are not covered under the Act.
• Medical Services which are free of charge are not considered under the purview of Section 2(1)(o) of the Act.
• Medical Services which are rendered by independent doctors and are free of charge are under the jurisdiction of Section 2(1)(o) of the Act.
• Medical Services rendered against payment of consideration are also within the scope of the Act.
• The payment of consideration of a medical service is paid by some third party and is treated under the ambit of this Act.
• Hospitals in which some persons are exempted from charging because of their inability to afford or any other financial problems will be treated as a consumer.

Section 2(1)(o) of the Consumer Protection Act defines the ‘deficiency of service’ which means any fault, imperfection, etc. in the quality or manner of performance that is required to be maintained by or under any law or it has been undertaken to be performed by a person in pursuance of a contract or otherwise.

Who is a consumer

According to the Consumer Protection Act, 1986, the consumer is the one who:

• buys any goods or hires any service.
• uses the goods or hires any service with the approval of any buyer or the service provider.
• uses the goods and services to earn a livelihood.

When can a complaint be filed

In the following cases a complaint about medical negligence can be filed:

• The liability of a doctor arises only when the patient has suffered an injury due to his reckless or negligent conduct which was not appropriate according to the set standards of the medical profession.
• He is liable only for those consequences which resulted from a breach of his duties.
• The plaintiff must prove the breach of duty and causation.
• In case there is no breach then neither the doctor nor the hospital authorities can be made liable.
• If the possible causes of an injury is the negligence of a third party, an accident, etc. then it must be proved that the doctor’s negligence was the most probable cause of the injury to discharge the burden of proof on the patient (plaintiff).
• Sometimes, ‘res ipsa loquitur’ which means “the thing speaks for itself” comes into play. In such cases, it can be clearly seen that the doctor was negligent in performing his duties. This discharges the burden of proving negligence on the plaintiff.
• Normally a person is liable for his own acts but when the concept of vicarious liability comes into play when a doctor can be held liable for the acts of other persons who are responsible for the injury caused to the plaintiff.

Who can file a complaint

The below mentioned can file a complaint;

• A consumer or 
• Any recognized consumer association whether the consumer is a member of such association or not, or 
• The central or state government.

A “Recognized consumer association” is a voluntary consumer association, the one i.e., registered under the Companies Act, 1956 or any other law for the time being in force.

Forums in which one can file a complaint

The complaints under the Consumer Protection Act for medical negligence can be filed at: 

Forum/Commission	Pecuniary jurisdiction
The District Forum	Less than 20 lakh rupees
The State Commission	More than 20 lakhs but less than 1 crore
The National Commission	More than 1 crore

Compensation claim

The CPA will not be able to help the patients who availed a doctor’s service free of charge or if he has paid only a nominal registration fee.

However, if a patient did not pay because of some  financial problems or incapacity to pay, they will still be covered under the Act and will be considered to be consumers and can sue under the Consumer Protection Act.

Appeal by doctor 

An appeal against any decision of the District Forum can be filed before the State Commission and if still you are not satisfied then it goes to the National Commission and the last step that can be taken is to file it in the Supreme Court from the National Commission. 

The appeal should be filed within 30 days from the date of the decision.

A doctor can make an appeal in the following cases:

• According to Section 80 of the Indian Penal Code, 1860, if anything happens by accident or misfortune and there was no intention or knowledge and the act was lawful and was being performed in a lawful manner by lawful means with proper care and caution is not an offense.
• According to Section 81 of the Indian Penal Code, 1860,  if anything is done with the knowledge that it is likely to cause harm and if the same is done without any intention to cause any harm and in good faith for avoiding other damage to a person or his property is not an offense.
• According to Section 88 of the Indian Penal Code, 1860, no one can be held liable for an act which has been done in good faith for the benefit of someone and does not intend to cause harm even if there is any risk involved and the patient has given the consent either implicitly or explicitly.

Medical negligence cases in high courts/ supreme courts

In State of Haryana v. Smt Santra[7], the Supreme Court held that it is the duty of every doctor to act with a  reasonable degree of care. However, no human in this world is perfect and even specialists make mistakes, a doctor can be made liable only if he fails to act with such reasonable care that every doctor with ordinary skills would be able to do.

In Achutrao Haribhau khodwa and Ors v. the State of Maharashtra[8], the Supreme Court noticed that the medical profession is very wide and there are a number of admissible courses for the same. Therefore, we cannot hold a doctor liable as long as he is performing his duty with due care and caution. Merely because he chooses any other course of action over another, he is not liable.

In the case of  C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam[9], the court dealt with a medical negligence case in which the respondent was injured while going on a bicycle. He sustained severe injuries and a hairline fracture of the neck. On considering the various options available the doctor chose to perform hemiarthroplasty instead of internal fixation procedure. The surgery was performed the next day. The respondent filed a case against the doctor for not adopting the internal fixation procedure for the injury. The Supreme Court held that the appellant’s decision for choosing hemiarthroplasty for the person who is 42 years of age was not unacceptable as to make it a case of medical negligence.

In Vinod Jain v. Santokba Durlabhji Memorial Hospital & Anr.[10], the Supreme Court has mentioned the factors to be considered while establishing the liability in medical negligence cases. In this case, the appellant challenged the NCDRC in the apex court i.e. the Supreme Court of the country. The Supreme Court upheld NCDRC’s judgment and made the below-mentioned observations:

• A doctor cannot be said to be negligent if his acts are in accordance with the set guidelines, merely because a body is there which holds a contrary view.
• A doctor need not have special expertise in medicine and it is enough if he exercises ordinary skills that an ordinary man of that profession would be able to do.
• A doctor cannot give assurance for any recovery as it is not in his hands and he can only try his best. The only assurance he can give is that he holds requisite skills in the profession and while undertaking this he should perform his duties as a reasonable man of the profession and in accordance with the standard of care in the medical profession.  

Medical negligence cases in India 

Medical Negligence cases

In the case of Dr M. Kochar vs Ispita Seal[11], the National Consumer Dispute Redressal Commission discussed the issue of failure in the IVF procedure. The patient filed a complaint against the doctor for medical negligence for the failure of this procedure. The National Commission held that no success in operating a patient cannot make a doctor liable for medical negligence.

Supreme court judgement on medical negligence

Listed below are some of the landmark supreme court judgments on medical negligence:

• The landmark judgment in medical negligence cases and the first judgment that comes into our mind with the highest amount of compensation granted till date is Dr. Kunal Saha Represented By Sri … vs Dr. Sukumar Mukherjee And Ors.[12] which is famous as the Anuradha Saha Case. In this case, the wife was suffering from drug allergy and the doctors were negligent in prescribing appropriate medicines for the same which ultimately aggravated her condition and led to the death of the patient. The court held the doctor liable for medical negligence and awarded compensation amounting to Rs. 6.08 crore.
• In the case of V.Kishan Rao Vs Nikhil Super Speciality Hospital[13], where a lady who was to undergo the treatment for malaria fever was treated differently. An officer in the Malaria Department filed a suit against the hospital authorities for performing the treatment of his wife negligently, who was undergoing the treatment for typhoid fever instead of malaria fever. The husband got the compensation of Rs 2 lakhs and in this case, the principle of res Ipsa loquitor was applied.
• In Jacob Mathew .V. State of Punjab[14], the Supreme Court held that in some cases doctors are bound to take make difficult choices. Sometimes situations make them go for things involving greater risk because of higher chances of success in taking that decision. And there are some cases in which there is lesser risk involved and higher chances of failure. So, the decision will depend upon the facts and circumstances of the case.
• In Juggan Khan v. State of Madhya Pradesh[15], the appellant who was a registered Homoeopathic medical practitioner. After seeing an advertisement a woman went to him for the treatment of guinea worms. After taking the medicine prescribed by him, she started feeling restless and even after the administration of some antidotes, she died in the evening. The appellant was convicted for murder under Section 302 of the IPC. The court held that it was a negligent act to prescribe poisonous medicines without proper checking and knowledge of the same.
• In A.S. Mittal and another V State of UP and Others[16], the Apex Court dealt with the case of a mishap in an ‘Eye Camp’ in Uttar Pradesh. In the camp, about 108 patients were operated out of which 88 underwent cataract surgery. Out of all these people 84 suffered permanent damage to the eyesight. It was found that this mishap was due to normal saline which was used in the operations. The court held the doctor liable as this amounts to medical negligence. A PIL was filed in this case under Article 32 of the Constitution. 
• In the case of Poonam Verma v Ashwin Patel and others[17], the respondent had a diploma degree in Homoeopathic Medicine and he administered some allopathic drugs to a patient who was suffering from high fever. Subsequently, the patient was shifted to a nursing home where he died. The court held the respondent liable as he was registered for providing Homoeopathic treatment but not under the Allopathy system and his actions amounted to medical negligence. The Supreme court has also defined the term “Medical Negligence”.
• In Spring Meadows Hospital and another v Harjol Ahluwalia[18], a child who was suffering from typhoid was admitted to the appellant’s hospital. The nurse gave an injection to the child after that he collapsed. After taking all the possible steps the child was shifted to AIIMS. The doctors there informed the parents about the critical condition of the child. The child had a cardiac arrest because of the overdose injection that was given to him. The court held the doctor and the nurse liable to compensate for this negligence. 
• In Bhalchandra Alias Bapu & Another v. State of Maharashtra[19], the Supreme Court opined that while negligence is an omission to do something which a reasonable man would do or doing something that a reasonable man would never do; criminal negligence is the gross neglect to exercise reasonable care and precaution to guard against the public as well as against an individual.

Conclusion

Though the doctors are seen as God and patients believe that they will get better after the treatment and that they would be healed by the treatment provided. But sometimes it so happens that even the doctors make mistakes which cost a lot to the patients in so many ways. Also, in some instances the mistakes made by them are so dangerous that the patient has to face problems and undergo immense sufferings.

The usage of equipment and medical tools in health care sector should be made  with due care and caution as it can lead to an injury to the consumer which may further result in the filing of a complaint against the doctors and the other authorities involved. Yet, there is no provision which can make the manufacturers of such unfit equipment liable for the damages.

Another important concern is that the services which are rendered free of charge are excluded from the scope of the Consumer Protection Act, 1986. This creates a problem for patients who suffer damages.

People are losing faith in the medical profession due to some serious medical negligence cases which have made them disabled for their remaining lives. Some serious introspection and analysis are required to be done for the Medical profession. It has utterly failed in self-governance. The medical ethics need to be reformed and developed so as to serve with complete righteousness.

References 

[1] 2010

[2] 1995 ACJ 1048

[3] 1969 AIR 128

[4] 1998

[5] 1975 36 STC 439 AP

[6] 1995 SCC (6) 651

[7] 2000

[8] 1996 SCC (2) 634

[9] 1996

[10] 2018

[11] 2011

[12] 2011

[13] 2010

[14] 2005

[15] 1965 SCR (1) 14

[16] 1989 AIR 1570

[17] 1996 SCC (4) 332

[19] 1968 SCR (3) 766

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity