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  • Writer's pictureLAWGIC STRATUM

Medical Negligence - Laws and Remedies in India

Author: Shaik Abdul Matheen


Etymologically, negligence would mean careless conduct in commission or omission of an act connoting duty, breach, and damage suffered by a person to whom the plaintiff owes a duty of care, is crucial to understand the nature and scope of the tort of negligence.

In legal terms, Baron Anderson interpreted negligence as a breach of duty by a person which would have cascading damage to the complainant. Hereunder, breach of duty means an act or an omission which a reasonable man would act or not act upon given a set of circumstances.[1]

In another landmark judgment, Lochgelly Iron & Coal Co. v. Mc Mullan[2] while defining negligence it was ruthlessly pronounced that negligence is headless and careless conduct be it in an act or an omission which would properly imply the complex principle of duty, breach, and damage which is suffered by the person to whom the duty was being owned.

Essentials of Medical Negligence:

In a country like India, it is fortunate that the legal luminaries placed the concept of medical negligence both in the baskets of Medical Law and Health Law.

For an act or an omission to constitute negligence, the burden of proof lies on the plaintiff to prove the following ingredients. Widely the components that constitute medical negligence are

(a) Existence of legal duty to care:

One of the crucial conditions for medical negligence is the defendant/medical practitioner owes a legal duty towards the plaintiff/patient. The latter approach the former trusting his specialized expertise and knowledge. Therefore the medical Professional has an imbibed duty to fulfill the expectation of the person approached him.

The Apex Court in ParmanandKataria V. Union of India[3]held that every medical practitioner regardless of public or private practice has a professional and legal obligation to extend his services with due expertise and care for protecting the life of the patient.

(b) Breach of that legal duty:

A legal duty would be constituted as a breach if the person on whom the duty has been bestowed upon does not perform the same in the manner in which it ought to have been, i.e. when the utmost care has not been exercised.

The Supreme Court of India in Laxman V. Trimback[4], held, the duty of the medical practitioner towards his patient brings in, to carry on the task on his shoulders with a reasonable degree of skill and knowledge to perform utmost care.

(c) Damage or harm caused due to the breach of that legal duty:

The last and foremost vital ingredient of medical negligence is that the damage or harm that has been caused to the plaintiff/patient by the defendant/medical professional was due to the breach of the latter’s duty. The harm hereunder can be physical, mental, and economic.

The ramifications of medical negligence can be classified as

(a) Criminal Liability:

Section 304A of IPC, 1860 prosecutes the doctor or the medical practitioner for the offense which encompasses negligence or rashness. The aforementioned penal provision states that “Causing death by negligence. Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide.” This means, if a person causes the death of another person due to his negligence or rash behavior, he will be punished.

One of the cases which attracted Section 304A IPC is in, SukarooKobiraj vs The Empress, in which the doctor has cut out piles with an ordinary knife and not a sterilized instrument. The patient lost his life in the process. Therefore the court had held the doctor for medical negligence.[5]

In yet another case, Emperor v. P.U.Desouza, a horrible situation took place when, the compounder fever mixture which contained strychnine instead of quinine, without reading the label, tantamounting to the death of seven patients. There would very well attract Section 304A of IPC holding him responsible along with higher officials.[6]

(b) Secondly, the defendant would have monetary liability. As mentioned ahead, the doctor has a duty to act with a reasonable degree of skill and care.[7]

As no human is perfect and no diagnosis is always faultless, a doctor will be held liable. The liability if he has failed to act upon with standard skills tan a reasonable medical professional would do.

An attempt has been made to distinguish between Civil and Criminal liability, it is necessary that death has occurred and the same is the direct cause of the rash and negligent act of the accused. In Postgraduate Institute of Medical Education & Research vs Jaspal Singh[8]held that the degree of negligence in Criminal law has to be higher than that of negligence in Civil law which leads to grant damages and in A.S.V.Naryana Rao vs Ratnamala[9]held that if the death was caused due to criminal medical negligence, it has to prove that there is not only negligence but gross negligence.

Compensation to be awarded:

“While awarding compensation to a victim of medical negligence, it must also be borne in mind that life has its pitfalls and is not smooth sailing all along the way as the hiccups that invariably come about cannot be visualized. Life it is said is akin to a ride on a roller-coaster where a meteoric rise is often followed by an equally spectacular fall, and the distance between the two is a minute or a yard.”[10]


In the words of Arlen specter, “there is nothing more important than our good health, that’s our principal capital asset”.[11]

People of a nation have immense respect and utmost trust in the doctor. Frankly, they treat them as God. Therefore, to stand up to the remarks, the medical professionals have to take the absolute amount of care. Hence, it is an obligation on the doctors to do their service with due diligence and care without involving in any malpractices or negligence.


[1]Blyth vs Birmingham Waterworks Company,(1856) 11 Ex Ch 781 [2]Lochgelly Iron & Coal Co. v. Mc Mullan,(1934) A.C.1 [3]ParmanandKataria V. Union of India,AIR 1989 SC 2039. [4]Laxman vs Trimback, AIR 1969 SC 128. [5]SukarooKobiraj vs The Empress (1887)14 Cal 566. [6]Emperor v. P.U.Desouza (1920)42 ALL272. [7] State of HR v. Santra, 2000(5) SCC 182. [8]Postgraduate Instititue of Medical Education & Research vs JaspalSingh(2009) 7 SCC 330. [9]A.S.V.Naryana Rao vs Ratnamala(2013) 10 SCC 741. [10]Nizam’s Institute of Medical Sciences v. Prasanth S. Dhanaka, (2009)6 SCC 1, para 89. [11]

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