When a patient consults a doctor, they anticipate receiving medical care utilizing the doctor’s expertise to alleviate their health issues. This relationship resembles a contractual agreement, maintaining elements similar to those in tort law. The doctor holds specific responsibilities to the patient, and any violation of these duties can lead to a negligence claim. One duty is to obtain informed consent from the patient before conducting diagnostic tests or initiating treatment. The Consumer Protection Act, 1986, covers medical services, allowing patients to address grievances through Consumer Courts. Legal precedents play a crucial role in resolving negligence issues stemming from medical treatment.

What is Medical Negligence?

The medical profession is highly regarded for its role in preserving life, seen as a noble endeavor rooted in the belief that life is a gift from God. Doctors are considered agents of God, following His command in their practice. Patients choose doctors and hospitals based on their reputation, with the expectation that these healthcare providers will offer competent and safe medical treatment. Patients trust that doctors will apply their knowledge and skills appropriately, prioritizing the patient’s well-being and avoiding harm caused by negligence or recklessness. While a doctor may not always save a patient’s life, they are expected to use their expertise diligently for the patient’s benefit. Doctors must conduct necessary investigations, seek reports, and obtain informed consent, except in emergencies. Failure to fulfill these obligations can lead to a legal liability known as a tort, a civil wrong that attracts judicial intervention through damages. The right of a patient to receive medical attention is essentially a civil right, and the doctor-patient relationship involves contractual elements such as informed consent, fee payment, and the performance of surgery or treatment while also retaining aspects of tort law.

In the legal cases of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr., AIR 1969 SC 128, and A.S. Mittal v. State of U.P., AIR 1989 SC 1570, it was established that when a patient consults a doctor, the doctor is bound by certain duties: (a) the duty to exercise care in deciding whether to take on the case, (b) the duty to exercise care in determining the appropriate treatment, and (c) the duty to exercise care in administering that treatment. A breach of any of these duties can lead to a negligence claim, allowing the patient to seek damages from the doctor. The Supreme Court noted that negligence can take various forms, such as active, collateral, comparative, concurrent, continued, criminal, gross, hazardous, active and passive, willful or reckless, and negligence per se. Negligence per se, as defined by Black’s Law Dictionary, refers to conduct, either by action or omission, that can be deemed negligent without argument or proof of specific circumstances. This is typically because it violates a statute or valid municipal ordinance or is so blatantly contrary to common prudence that it is clear no careful person would have engaged in such conduct. Generally, the violation of a public duty, mandated by law for the protection of a person or property, constitutes negligence per se.

Negligence per se

In the case of Poonam Verma vs. Ashwin Patel and Ors. (1996), 4 SCC 322, the Supreme Court addressed the issue of a homeopathic doctor lacking basic qualifications to practice allopathy. The court asserted that an individual practicing in a medical system without the necessary knowledge is considered a quack. If someone is found guilty of negligence per se, there is no requirement for additional evidence; the violation itself serves as sufficient proof.

Types of Medical Negligence

In the healthcare sector, there are various forms of medical malpractice that can happen.
Here are some of the most common types:

1. Misdiagnosis: Patients may suffer harm or injury if a medical professional makes an incorrect diagnosis or delays making one, failing to appropriately diagnose the patient’s condition.
 2. Surgical Errors: These can include mishandling anesthetic administration, operating on the incorrect body part, leaving surgical instruments inside the patient, and other similar mistakes.
 3. Medication Errors: Misuse of medication or dosage, disregarding possible drug interactions, and improper medication administration are a few examples of these.
 4. Failure to Obtain Informed Consent: When a healthcare professional fails to obtain the patient’s informed consent before performing a medical procedure, the patient may not have been aware of the risks involved and may have suffered harm or injury as a result.
 5. Failure to Provide Adequate Follow-Up Care: Healthcare providers have an obligation to keep an eye on their patient’s condition and offer the proper follow-up care following a medical operation or therapy. The patient may suffer danger or injury if this isn’t done.
 6. Birth Injuries: Negligence during childbirth can result in injuries to the baby or mother, such as brain damage, paralysis, and other serious injuries.
 7. Anesthesia Errors: Anaesthesia errors can occur when a healthcare professional administers too much or too little anesthesia or fails to monitor the patient’s vital signs during the procedure.

It is important to remember that every case is different and that the right course of action for legal action will depend on the particulars surrounding medical negligence.

Essentials of Medical Negligence

To establish medical negligence, certain essential elements must be proven. These essentials include:

  1. Duty of Care: The healthcare professional must have had a duty of care to the patient. This means that they had a legal obligation to provide care that meets the expected standard of care.
  2. Breach of Duty: The healthcare professional must have breached their duty of care by failing to provide treatment that met the required standard. This breach of duty can occur through an act of omission or commission.
  3. Causation: The breach of duty must have caused harm or injury to the patient. It must be shown that the harm or injury was a direct result of the healthcare professional’s breach of duty.
  4. Damage: The patient must have suffered harm or injury as a result of the healthcare professional’s breach of duty. This harm or injury can be physical, emotional, or financial.

The Difficulties Indian Patients Face in Medical Negligence

Victims of medical negligence in India may face several challenges when trying to seek justice and compensation for their injuries.

A few of the major obstacles are-

  • Lack of awareness: Many individuals in India are unaware of their rights in cases of medical negligence, lacking knowledge on how to initiate legal action.
  • High legal costs: Legal proceedings in India can be costly, posing financial challenges for victims to cover legal representation and court fees.
  • Lengthy legal process: The legal journey for medical negligence cases in India tends to be prolonged, causing emotional and financial strain on victims.
  • Limited access to medical records: Obtaining crucial medical records, essential for proving negligence, can be a challenge for victims.
  • Insufficient evidence: Proving medical negligence is demanding, and victims may find it hard to gather enough evidence to support their case.
  • Lack of support: Victims often experience isolation and a lack of emotional or social support, with limited assistance available for those affected by medical negligence.
  • Influence of medical professionals: The significant influence and power held by healthcare professionals can hinder victims from pursuing legal action against them.

Hospital and physician obligations to get a patient’s prior consent

There is a responsibility to secure prior consent from living patients for various purposes, such as diagnosis, treatment, organ transplant, research, disclosure of medical records, teaching, and medico-legal reasons. In the case of deceased individuals, informed consent is crucial for pathological post-mortem, medico-legal post-mortem, organ transplant (for legal heirs), and disclosure of medical records. Consent can be granted through different means:

1. Express Consent: Given orally or in writing, with written consent being considered more valuable due to its evidential strength.

2. Implied consent: inferred from the patient’s behavior.

3. Tacit Consent: Implicitly understood without explicit statement.

4. Surrogate Consent: Provided by family members, often requiring written approval from two physicians to safeguard the patient’s interests.

5. Advance Consent, Proxy Consent, and Presumed Consent: Advance consent is given by the patient beforehand, proxy consent is granted by an authorized person, and presumed consent is assumed in certain situations. However, informed consent, obtained after a thorough explanation of all potential risks and side effects, is considered superior to other forms of consent.

The importance of obtaining informed consent

In the case of Samira Kohli vs. Dr. Prabha Manchanda and Ors. I (2008) CPJ 56 (SC), the Supreme Court ruled that consent given for diagnostic and operative laparoscopy, along with “laparotomy if needed,” does not authorize a total hysterectomy with bilateral salpingo-oophorectomy. The appellant, a competent adult without mental incapacity, was temporarily unconscious under anesthesia with no emergency situation. The respondent should have waited for the appellant to regain consciousness and provide proper consent. Since there was no emergency, obtaining consent from the patient’s mother was unnecessary, and such consent was deemed invalid. The focus was not on the decision to remove reproductive organs but on the failure to obtain consent for this procedure, which was considered an unauthorized invasion of the appellant’s body. The respondent was not entitled to the entire surgery fee and was directed to pay Rs. 25,000 as compensation for the unauthorized surgery.

Related Provisions For Medical Negligence In India

The Indian Penal Code, 1860, the Consumer Protection Act, 1986, and several rulings from the Supreme Court and High Courts govern medical negligence proceedings in India. The following clauses and defences apply to medical malpractice lawsuits in India:


  • Section 304A of the Indian Penal Code: This section deals with causing death by negligence. If a medical professional causes the death of a patient due to negligence, they can be punished with imprisonment for up to two years or a fine or both.
  • Section 337 of the Indian Penal Code: This section deals with causing hurt by an act endangering life or personal safety. If a medical professional endangers the life or safety of a patient due to negligence, they can be punished with imprisonment for up to six months or a fine, or both.
  • Section 338 of the Indian Penal Code: This section deals with causing grievous hurt by an act endangering life or personal safety. If a medical professional causes grievous hurt to a patient due to negligence, they can be punished with imprisonment for up to two years or a fine or both.
  • The Consumer Protection Act, 1986: Under this act, patients have the right to file complaints against medical professionals and seek compensation for medical negligence.

Supreme Court Landmark Judgements
There have been several landmark judgments by the Supreme Court of India in cases of medical negligence. Here are some of the significant ones:

  • Bolam vs. Friern Hospital Management Committee (1957)
    In this case, the court established the “Bolam Test,” which states that a medical professional is not guilty of negligence if they have acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular field.
  • Indian Medical Association v. V.P. Shantha (1996)
    This case established the concept of ‘informed consent,’ which means that a patient must be fully informed of the risks involved in a medical procedure before giving consent. The Supreme Court held that failure to obtain informed consent from a patient can amount to medical negligence.
  • Martin F. D’Souza v. Mohd. Ishfaq (2009)
    In this case, the Supreme Court outlined the standard of care that medical professionals must adhere to. The court held that a medical professional must have the knowledge and skills that are expected of a reasonably competent practitioner in their field.
  • Samira Kohli v. Dr. Prabha Manchanda (2008)
    This case addressed the issue of vicarious liability in cases of medical negligence. The Supreme Court held that a hospital can be held liable for the negligence of its employees, even if the hospital itself was not directly at fault.
  • Malay Kumar Ganguly v. Dr. Sukumar Mukherjee (2009)
    This case dealt with the issue of expert opinion in medical negligence cases. The Supreme Court held that expert opinion can be used as evidence in a medical negligence case, but it should not be the sole basis for deciding whether negligence occurred.
  • Kusum Sharma v. Batra Hospital & Medical Research Centre (2010)
    In this case, the Supreme Court established that a patient has the right to receive compensation for medical negligence, even if they did not suffer any physical harm. The court held that mental agony and trauma suffered by a patient due to medical negligence can also be compensated.

Both patients and medical professionals have benefited from the guidance these historic rulings have given, as they have shaped India’s legal framework regarding medical negligence.


In conclusion, addressing the issue of medical negligence in India requires a multifaceted approach. Efforts should focus on increasing awareness among the public about their rights, addressing the high costs associated with legal proceedings, streamlining the legal process to reduce its duration, and improving access to medical records. Additionally, there is a need for comprehensive support systems to assist victims emotionally and socially. Addressing the influence of medical professionals is crucial to ensuring a fair and just legal environment for those seeking recourse in cases of medical negligence. Implementing reforms in these areas is essential to promote justice, accountability, and better healthcare outcomes in the context of medical negligence in India.

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