Image Source -

This article is written by Udita Prakash, a student at UPES, Dehradun, pursuing BBA LLB. This article is about medical negligence and duty of care as a tortious liability.  


The medical profession is one of the oldest professions in India. Doctors are treated as God, as they save the lives of the people and protect them by curing their diseases. But, sometimes these doctors do not perform their duty well, or they show some negligence which eventually causes harm to patients or kills them. Negligence can be proved if it qualifies the following points:

  • Duty of care;
  • Breach of duty; 
  • Cause in fact;
  • Damage.

Basically, it means that a doctor always has a duty of care towards their patients, and if the doctor does not perform that duty well then there occurs a breach in his duty, which eventually leads to the cause of the fact causing some damage to the patients. When there is a civil wrong (right in rem), with a breach of duty that invites the intervention of the judges to grant a certain remedy for the damages, then tort liability arises, but the standard of care is more in cases of medical negligence.

Download Now

Basic elements 

Duty of care

The concept of “duty of care”, was first recognized from the case of Donoghue v. Stevenson (1932), where a woman in Paisley drank ginger ale from a bottle until she found a decomposing snail at the bottom. As a result, the woman became ill and a lawsuit was filed against the ginger brewer manufacturers for compensation. Lord Atkin determined that the company that produced the ginger ale had been negligent in failing to ensure the safety of the woman during the production process, despite the fact that the ginger beer was not purchased by the woman but by her friend. It was established that a general duty of care was owed to the neighbor; a neighbor was defined as someone who can be reasonably considered to be close and directly affected by an act. In this case, it did not matter who had bought the ginger ale, as it was reasonable to consider that anyone who drank the beer would have suffered the same consequences and could therefore be considered under the “neighbor” principle. 

Breach of duty 

It is indeed important to disclose for a doctor what he did and didn’t do while treating a patient. To see whether the doctor breached the duty of care one has to see whether the doctor has failed to take reasonable care while performing in that area of expertise or field. This is also known as the “Bolam test”. In some cases, particularly in private healthcare, a patient may have a contract with a doctor in respect of his or her treatment. In the absence of any specific provisions, the standard of care is the same as that described above. However, it should be noted that if a doctor guarantees a particular result, and then fails to produce that result, the doctor may be in breach of contract even if he or she has not in fact been negligent. 

Cause in fact 

In medical negligence cases, the aggrieved party must show that the defendant’s activity was genuine as the reason for the aggrieved party’s injury. The aggrieved party has the burden of proof for each component of medical negligence, the reason for the activity due to the prevalence of the test. In the distant possibility that the offended party neglects the evidence, the case will be chosen for the defendant. 


To obtain an award for damages, the patient must show that medical negligence caused the damage in some way and that some kind of presumed price can be imposed on the damage. Three classifications of damage in misconduct of medical negligence cases are general, special, and punitive.

  1. General damage : General damage refers to the expense of torment of the patient that is although genuine but cannot be recovered because of its tendency to have a clear cost.
  2. Special damage : These damages cover the most quantifiable costs caused by medical negligence, including hospital expenses and prior work. Despite the fact that some mystery is often included, especially regarding future medical oversight costs. Special damages are usually more correct than general damages.
  3. Punitive damages : In a few conditions, the patient’s family has the ability to recover punitive damages. The principles about when a patient can suffer reformatory damage from the state, however, the general need is that the specialist is more likely to realize that he/she was acting in good faith.

Standard of care 

The law does not require any standard of care that incorporates them to the maximum extent of medical negligence. However, people who are believed to be experts within the general public are trusted to maintain a higher standard of care than people who are definitely not. It is up to the law to adhere to a meaningful limit as long as can be expected, so that while prohibiting the standard of care, in the meantime, ask for sensible care. In common law, the standard of care is the level of reasonableness and alertness expected of a person under the obligation of consideration. A break from the standard is vital to effective careless activity. In specific callings, the standard of care is dictated by the standard that would be practiced by the sensible and judicious expert in that profession. This test, known as the Bolam test, is used to decide whether a specialist is at risk for medical malpractice. The sensible individual standard is a legitimate fiction that began with the advancement of common law. The sensible individual is an objective, sensibly enthusiastic person who sets out to speak with a normal species of native. This person’s ability to understand issues is advised during the time he spends deciding on options for law. In this way, the law obliges the obligation of consideration, however, the norm implies a restorative judgment.

Case : State of Haryana v. Santra (2000)

In the case of the State of Haryana v. Santra, the doctors had operated on only the right fallopian tube and left the left fallopian tube intact. The patient was informed that the operation was successful and was assured that she would not conceive a child in the future. A case of medical malpractice was found and a tort decree was deemed justified. A patient claiming medical malpractice may resort to any of the following legal remedies:

  1. Complain to the State Medical Council, 
  2. File a case in the consumer court, 
  3. File a case in civil court, and 
  4. File a criminal complaint about gross negligence. Generally, compensation for medical malpractice is usually awarded by the civil court or the consumer court.

Duty of care 

Recklessness can exist to any degree. In this sense, it contrasts with alternative types of mens rea. A goal exists or does not exist; there is no question of the degree to which it is available. Be that as it may, the level of inattention changes directly with the danger to which different people are exposed by the demonstration in question. An individual is indiscreet who, without insidious propositions, considering everything, exposes others to the risk of him, and the more harmful the danger, the more infamous is the recklessness. 

Since the distractions differ in degree, it is important to recognize what level is required for punishable neglect and what proportion of consideration is required by law. The law does not require the most remarkable level of consideration of what human instinct is competent, but it does require sensitivity, in perspective of the magnitude of the danger. The law, in this way, allows each man to open his activities to a specific level of risk and with full knowledge. The more noticeable the risk and the more notable its probability, the more prominent is the litigant’s lack of consideration in not playing it safe against him. 

There are degrees of carelessness at that point and these could be considered by law for both common and criminal purposes. In careless violations, the law may state that the more prominent the carelessness, the more noticeable the discipline. Normal carelessness is the inability to use care that would make a man not ordinarily criminally liable. Criminal carelessness is a major disappointment and a more notable drop below the standard of consideration and makes a man criminally guilty. 

For example, if another conceived child is left with an incredible need for restorative care or nurturing, it could be that his disappearance is simply due to carelessness, however, it is more plausible that it is due to an illegitimate reason and revenge of beforehand. Net carelessness is an even more prominent fall below the standard and a completely irrational inability to take care that the litigant is at risk of committing the crime, as well as, in the event that it directly causes the death of another person, the guilty crime. 

Case : Stansbie v. Troman (1948)

In this case, there was a function in a house and a decorator was told to do the decorations in house after the decorator decorated the house he left without closing the doors or informing anyone. A burglar broke into the house and stole property whose value the homeowner claimed from the decorator. The decorator was held liable because he was negligent in leaving the house open and failed to fulfill his duty of care.

Case : Delhi Municipal Corporation v. Subhagwanti (1966)

In the case of Delhi Municipal Corporation v. Subhagwanti, there was a very old clock tower located right in the middle of Chandni Chowk that suddenly collapsed and caused the death of many people. It was the 80-year-old clock tower. The Delhi Municipal Corporation has control over the clock tower and they had a duty to care for the citizens who had been given the duty to repair the clock tower, they had breached their duty of care to the public and thus were responsible.

Compensation awarded 

The victim should be compensated for financial damages caused by the negligence of the doctor/hospital, future medical costs, and any pain and anguish suffered by the victim. In India, the consumer court, or the civil court, has full power over the amount of compensation and is obliged to consider the impact of the judgment because it sets a precedent even in the form and amount of damages awarded. In India, mainly, the multiplier method is used to receive compensation for any medical malpractice that occurs with the doctors or any medical personnel. The usual formula used to calculate compensation is ((70 years) x annual income + 30% for inflation – 1/3 for expenses). Defendants claim that this is the amount that reasonably measures the harm suffered and therefore should be used in medical malpractice cases. Subsequently, the Supreme Court denied the multiplier method in medical malpractice cases, and instead, the Supreme Court added other aspects to the compensation measure, such as the victim’s insurance costs accumulated during the trial, the costs of possible medical bills, reimbursement for mental pain and physical pain, and reimbursement for business failures and litigation costs. Any medical malpractice happens to anyone, so the person chooses how they want to approach the problem. It was their choice that they could approach the State Medical Council and, if they wanted to receive compensation, go to the civil court or the consumer court. Compensation is considered ideal for medical malpractice because it acts as insurance for the person who has suffered a loss, as compensation for negligent doctors and hospitals, and as a restraint for other doctors/hospitals. How medical malpractice compensation is calculated depends not only on the injuries sustained or the death caused but also on the income and standard of living of the victim.

Who is responsible for paying doctors or the hospital

On multiple occasions, a hospital can be held vicariously liable for various reasons. Several High Court rulings indirectly held hospitals liable for damages caused by the negligent actions of their staff towards patients. It was said that whenever they accepted a patient for treatment, they should exercise reasonable care and skill in relieving him of his ailment. Of course, the hospital authorities do it themselves; they do not have ears to listen to the stethoscope or hands to hold the surgeon’s scalpel. They must do it for the staff they employ; and if the staff is negligent in providing treatment, they are as liable for that negligence as anyone else who employs others to carry out their duties for them. But in many cases, doctors, as well as hospitals, are liable for medical malpractice and both must pay compensation to the patient. The Supreme Court ruled that individual doctors should not pay huge damages until the hospital was also a party to the litigation. An individual private physician may not be able to pay the huge amounts that the court has awarded. Mainly through consumer courts, the Indian legal system deals with medical malpractice and was brought under the scope of the Consumer Protection Act 1987. The calculation of compensation is neither precise nor exact. It depends on the situation from case to case to what extent the case was critical in nature. There is an urgent need to implement some specific guidelines, evaluation standards to help the health system provide better care. The compensation awarded must be fair, reasonable, and prudent.


It is concluded that negligence must be the principle of the reasonableness of the common man’s prudence, and negligence must be established to give compensation in some cases. The medical profession requires a certain degree of knowledge and experience, and the quality of treatment in the cases of medical professionals is usually high and must be taken. In this article, it was stated that medical malpractice cases are generally heard in consumer court or civil court. After analyzing this topic, it can be stated that in many cases there was the responsibility of both the doctors and the hospital to compensate the patient if they caused any medical negligence to the patient. According to the agreement between the two, the division of responsibilities will be determined. 


Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.


Please enter your comment!
Please enter your name here