What is Doctor’s Liability in Medical Negligence Cases?

In India, Doctors have been considered as gods who saved lives. But as education level and awareness of people towards their illness and its cure have increased., no longer, doctors can go scot-free with sub-standard treatment or errors in their practice.  Doctors are not superhumans who can have everything in their mind and complete knowledge about medicine. They are humans and can be negligent and make errors. That is why we say that doctors are practicing medicine. Which means there is always scope for error and they are not 100% perfect.

Moreover, negligence on a doctor’s part can make people lose their lives. So, they need to be held accountable for their negligence and errors.

Medical Negligence

Actions/Behaviour and conduct which does not meet with the established norms and are sub-standard, and can cause damage or harm to things/people because of this is negligence.

It was observed in King v. Phillips[1]that:

The question of negligence arises when there is direct harm/damage to the plaintiff by the misconduct which is foreseeable. Under tort, the damage is an important ingredient for the conduct to be considered as negligence.

A medical practitioner’s or doctor’s conduct is considered as medical negligence when enough care is not taken and it results in a breach of their duties and harming the patients which are their consumers. Medical negligence is a serious issue because it has caused many deaths as well as adverse results to the patient’s health. Medical negligence is also known as medical malpractice.

Medical malpractice occurs when the practitioner/doctor doesn’t follow the recognized “standard of care” in the treatment of a patient. It also implies that the doctor had an intent[2].

Standard of Care: This can be defined as the care of a patient that is required by a medical practitioner which most competent doctors would/wouldn’t follow under similar circumstances. For example, an accident patient admitted in an emergency doesn’t receive treatment as the doctor’s shift is changing and the patient dies because of not receiving timely care, the doctor can then be held liable under medical negligence.

Case Law: In the case of Sishir Rajan Saha Vs. The state of Tripura, it was observed the patients can be eligible for compensation by the doctor that if a doctor did not pay enough attention to the patients in government hospitals as a result of which the patient suffers. But the liability of the doctor cannot be invoked just like that and he can’t be held liable just because something has gone wrong. Therefore, for pinning he liability on the doctor, a very high degree of such negligence was required to be proved.

It was also observed that a doctor or a medical practitioner who treats his/her patients owes the patient, the following duties of care:

  • In deciding whether to undertake the [3]case
  • In deciding what treatment to give
  • In the administration of the treatment correctly and following the standard procedures.

The Standard of Care Required: The Bolam Test: The famous English Law Case, Bolam v. Friern Hospital Management: The test laid down by Mc Nair, J., covers the entire liability of a doctor in respect of

  •  diagnosis
  •  doctor’s duty to warn his patients of risks intrinsic in treatment,
  •  operating upon or giving treatment including physical force to a patient who is unable to give his consent due to some reason
  •  and treatment.

Medical Negligence under Consumer Protection Act

The medical profession was brought under the purview of the Consumer Protection Act[4].

Services given by medical practitioners are of a personal nature but they cannot be treated as contracts of personal service (these are excluded from the Consumer Protection Act). However, they are contracts for service, under which a doctor can be sued in Consumer Protection Courts.

Case Law: The Supreme Court in Indian Medical Association VS VP Shantha[5] stated that the patient can sue the doctor/hospital liable for the injury caused to him/her which comes under the ambit of service. These days there is a contract between the patient and doctor. There is some liability if either party fails to fulfill the contract. The doctor/hospital isn’t liable if the patient has just paid the registration fees and rest everything is free of cost. On the other hand, if the patient can’t pay because they are unable to make the payment due to their financial incapacity, they are still treated as a consumer under the Consumer Protection Act.

The Supreme Court’s decision in the above case brought the medical profession within the ambit of a ‘service’[6] in the year 1995, as defined in the Consumer Protection Act, 1986. It defined the doctor-patient relationship as contractual.

Medical Negligence as a Tort

Where the Consumer Protection Act ends (Under civil laws), the law of torts takes over and protects the interests of patients. What this means is that when there is a case that doesn’t fall in the ambit of “service” as defined in the Consumer Protection Act, 1986 then patients can take protection under negligence under the law of torts and successfully claim compensation.  However, the burden of proof lies with the patient to prove that the doctor’s conduct was negligent leading to the patient’s injury. Some of the cases of negligence could be a transfusion of incorrect blood groups, leaving something in the patient’s abdomen after operating, operates on the wrong part of the body[7], careless sterilization after a surgery or procedure, removal of organs without taking patient’s consent or prescribing wrong medicines resulting in allergy or unwarranted reaction in patient’s health.

Case Law: In the case of Achutrao Haribhau Khodwa v. State of Maharashtra[8] the Supreme Court held that the principle of res ipsaloquitor may apply to conclude that the doctor performing the surgery was negligent and that the Government was vicariously liable.

In the case of Achutrao a mop was left inside the woman’s peritoneal cavity when she was operated for sterilization in a Government hospital which eventually resulted in death.

Medical Negligence as a Crime

Medical Malpractice results when the negligent behavior of doctors results in patients being injured.  The doctors or hospitals are then subject to claims or compensations for recovering damaged or cost of medical treatment and these are generally civil cases.  But sometimes things go out of hand and result in extreme circumstances where the negligent behavior results in the death of a patient. This is treated as a criminal. However, a doctor cannot be held liable under criminal law for a patient’s death unless it is shown that she/ he was negligent or incompetent, with complete disregard for the life and safety of his patient. A criminal charge can be filed under Section 304A of IPC against such a medical practitioner for allegedly causing death by rash or negligent act.

Case Law: Suresh Gupta v. Government of NCT, [9]

In this case Dr Suresh Gupta, a plastic surgeon performed surgery to correct the nasal deformity in the patient but made an incorrect incision due to which the patient’s respiratory system was compromised as blood had seeped into it resulting in his immediate collapse and death.  A case was registered against him under Section 304A of IPC, and the medical experts of the Special Medical Board doing the investigation, in this case, concluded that the doctor did not perform the surgery according to the accepted procedure and that the negligence in not taking this precaution justified further trial proceedings.

Section 88 of IPC however says that if a person commits an act by accident or without a criminal intention, within lawful means and with proper care and caution, then the doctor’s conduct cannot be treated as negligent. Sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 of IPC, contain the laws of medical malpractice in India.

Medical Negligence and Civil Liability–  

Medical negligence generally comes under civil liability except when the negligent act committed is so grievous that the injured party is not interested in compensation believes that the doctor who committed the act must be punished severely and charged under IPC for criminal liability. Civil liability usually includes the claim for damages suffered in the form of compensation.

Case Law: In the case of Mr. M Ramesh Reddy v. State of Andhra Pradesh[10],  an obstetrics patient fell in the bathroom resulting in her death. The hospital authorities were held to be negligent for not keeping the bathroom clean, which resulted in the patient’s fall and her death. A compensation of Rs. 1 Lac was awarded against the hospital.


The landmark judgment when we think of medical negligence is the high-profile case of KunalSaha v. AMRI[11] (Advanced Medical Research Institute) where the highest compensation was granted amounting to almost Rs. 6 crores.  This case brought to limelight and created awareness about Medical Negligence, Medical Malpractice and seeking justice in such an event and the options available to patients. After all everyone should be accountable for their actions when living in a society.


The information for this article has been obtained from the following secondary sources-

[1]A.I.R. 2005 S.C. 3180

[2]synonyms: aim, purpose, intention, objective, object, goal, target, end, design, plan, scheme, resolve, resolution, determination, wish, desire, ambition, idea, dream, aspiration, hope

[3] [1957] 1 W.L.R. 582.” In this case Bolam was suffering from mental illness. He was advised to undergo electro-convulsive therapy. However, he was not warned of the risk of fracture involved in this treatment. Even though the risk was very small and on the first occasion when the treatment was given Bolam did not sustain any fracture but when the treatment was repeated for the second time he sustained fractures. No relaxant drugs or manual control were used except that a male nurse stood on each side of the treatment couch throughout the treatment. About this treatment, there were two opinions, one which favored the use of relaxant drugs or manual control as a general practice, and the other which favored the use of a drug that was attended by mortality risks and confined the use of relaxant drugs only to cases where there are particular reasons for their use and Bolam’s case was not under that category. The expert opinion of the consultant psychiatrist was taken before administering the treatment. Ultimately the Court held the Doctors were not negligent.

[4]Section 2(1)(o), 1986 of the act

[5]1996 AIR 550, 1995 SCC (6) 651

[6]Section 2(1)(o) of Consumer Protection Act, 1986

[7]Unthinkable errors by doctors and surgeons – such as amputating the wrong leg or removing organs from the wrong patient – occur more frequently than previously believed, a new study suggests. See <http://edition.cnn. com/2010/HEALTH/10/18/health.surgery.mixups.common/> (visited on October 25, 2014).

[8](1996) 2 SCC 634

[9]Delhi, (2004) 6 S.C.C.422

10 [2003 (1) CLD 81 (AP SCDRC)],

[11]III (2006) CPJ 142 NC

This Article Written by Ashutosh Singh, 3 Year, B.A LL.B (H) Student of Amity University Kolkata

Also Read: How to File a Case For Medical Negligence?

Md Sahabuddin Mondal

Junior Advocate, Calcutta High Court

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