Crime Med Neg RP

PROJECT SUBMITTED IN PARTIAL FULFILMENT OF REQUIREMENTS
B.B.A.,LL.B.(Hons.)
TOPIC:
“Medical Negligence with respect to different Case Laws”
SUBMITTED BY:
HARSH PHOPHALIA (A036)
81002170048
SY.BBA., LLB. (Hons.)
SUBMITTED TO:
Prof. Afrin Khan

INTRODUCTION
Medical profession is the one of the noblest professions among all other professions in India.
For a patient, the doctor is like God. And, the God is infallible. But that is what the patient
thinks. In reality, doctors are human beings. And, to err is human. Doctors may commit a
mistake. Doctors may be negligent. The support staff may be careless. Two acts of
negligence may give rise to a much bigger problem. It may be due to gross negligence.
Anything is possible. In such a scenario, it is critical to determine who was negligent, and
under what circumstances.
In a country committed to the rule of law, such matters are taken to the court and judges are
supposed to decide. However, negligence by doctors is difficult to be determined by judges as
they are not trained in medical science. Their decisions are based on experts‟ opinion. Judges
apply the basic principles of law in conjunction with the law of the land to decide.
Reasonableness and prudence are the guiding factors.
We would like to go through these principles in the light of some court judgments and try to
understand as to what is expected from a doctor as a reasonable person. As these issues are at
the core of medical profession and hospitals are directly affected by new interpretation of an
existing law regarding medical professionals, it is pertinent to deal with them at the
individual level of the doctor, and also at the employer’s level i.e., hospital.
RESEARCH QUESTIONS
1. What is medical negligence?
2. How different cases were dealt regarding the medical negligence?
LITERATURE REVIEW
1. Medical negligence in India: A study with special reference to liability in tort
This research paper covered almost every part for the remedy for the patient thus
covering for the loss. It covered all the aspects except from the side of hospitals and
doctors as there are many cases where its not always necessary that in case of any
medical issue the doctors or the staff is liable. So, this research paper was quite good
and helped me a lot understanding and giving me a basic idea of the following area.
2. MEDICAL NEGLIGENCE IN INDIA: A CRITICAL STUDY
This research paper helped me a lot in knowing the background of medical negligence
and most of the cases related to it, some of which are mentioned in this research
paper, and the developments made in the journey.
NEGLIGENCE
Negligence is punishable omission or commission of an act leading to harm and breach of
right of the other party.
The authoritative text on the subject in India is the ‘Law of Torts’ by Ratanlal and Dhirajlal
Negligence has been discussed as:
Negligence is the breach of a duty caused by the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a prudent and reasonable man would not
do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a
person to whom the defendant owes the duty of observing ordinary care and skill, by which
neglect the plaintiff has suffered injury to his person or property.
Another shorter definition for negligence is that “negligence as a tort is the breach of legal
duty to take care which results in damage, undesired by the defendant to the plaintiff” . The
definition involves three constituents of negligence:
1. A legal duty to exercise the due care on the part of the party complained of towards the
party complaining the former’s conduct within the scope of the duty;
2. Breach of the said duty
3. Consequential damage
PROFESSIONAL
According to the English language, a professional is a person doing or practicing something
as a full-time occupation or for payment or to make living and that person knows the special
conventions, forms of politeness, etc. associated with a certain profession. Professionals are
subject to professional code and standards on matters of conduct and ethics, enforced by
professional regulatory authorities and they enjoy high status and respect in the society.
NEGLIGENCE BY PROFESSIONALS
In law of negligence, professional such as lawyers, doctors, architects and others are included
in the category of persons professing some special skill or skilled persons generally. A
professional may be held liable for negligence on one of the findings of two: one, either he
was not possessed of the requisite skill which he professed to have; or two that, he did not
exercise, with reasonable competence in a given case, the skill which he did profess.
NEGLIGENCE BY MEDICAL PROFESSIONALS
A person who holds himself out as ready to give medical advice or treatment impliedly
undertakes that he is possessed of skill and knowledge for the purpose. Such a person,
whether he is medical practitioner or not, who is consulted by a patient, owes him certain
duties, namely a duty of care in deciding whether he undertakes the case; a duty of care in
deciding what treatment to give and duty of care in his administration of that treatment. A
breach of any theses duties will support an action for negligence by patient.
The courts have consistently recognized the hazards associated with the medical practice. The
Indian law protects the doctors from criminal liability through sections 88 to 92 of Indian
Penal Code (IPC), because the law presumes that a doctor always acts in good faith for the
well-being of his patient. However, the concept of good faith assumes a complicated role in a
medical malpractice suit.
DEGREE OF MEDICAL NEGLIGENCE

The Delhi High Court laid down in 2005 that in civil law, there are three degrees of
negligence:
(i) lata culpa, gross neglect
(ii) levis culpa, ordinary neglect, and
(iii)levissima culpa, slight neglect.
Every act of negligence by the doctor shall not attract punishment. Slight neglect will surely
not be punishable and ordinary neglect, as the name suggests, is also not to be punished. If we
club these two, we get two categories: negligence for which the doctor shall be liable and that
negligence for which the doctor shall not be liable. In most of the cases, the dividing line
shall be quite clear, however, the problem is in those cases where the dividing line is thin.
As regards medical negligence, the legal position has been described in several leading
judgments. Some of these are given below:
Kunal Saha v. AMRI Hospital
Here in this case Kunal Saha’s wife had some rashes on her skin for which she consulted a
doctor. She was asked to rest but the problem increases there as the rashes reappeared more
aggressively and the doctor prescribed an injection, which was later faulted by experts at the
apex court. After this her condition continuously deteriorated and later on died after it was
found that she was suffering from a rare and deadly skin disease. The apex court ruled against
the AMRI hospital and asked to provide 11.41 Cr. as compensation for the loss.
The Supreme Court in Laxman v. Trimbak , held:

"The duties which a doctor owes to his patient are clear. A person who holds himself out
ready to give medical advice and treatment impliedly undertakes that he is possessed of skill
and knowledge for the purpose. Such a person when consulted by a patient owes him certain
duties viz., a duty of care in deciding whether to undertake the case, a duty of care in
deciding what treatment to give or a duty of care in the administration of that treatment. A
breach of any of those duties gives a right of action for negligence to the patient. The
practitioner must bring to his task a reasonable degree of skill and knowledge and must
exercise a reasonable degree of care. Neither the very highest nor very low degree of care and
competence judged in the light of the particular circumstances of each case is what the law
requires.”
In A.S.Mittal v. State of UP, an irreparable damage was done to the eyes of some of the
patients who were operated at an eye camp organized by the government of Uttar Pradesh.
Some of the patients who underwent surgery could never see the light of the day, i.e.
whatever little vision they had even that was lost. The apex court coming heavily on the
erring doctors held that, “the law recognizes the dangers which are inherent in surgical
operations and that will occur on occasions despite the exercise of reasonable skill and care
but a mistake by a medical practitioner which no reasonably competent and a careful
practitioner would have committed is a negligent one.” The compensation was awarded.
Kusum Sharma v. Batra Hospital

According to the court, „while deciding whether the medical professional is guilty of medical
negligence „the following well-known principles must be kept in view:
1. Negligence is the breach of a duty exercised by omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the conduct of
human affairs, would do, or doing something which a prudent and reasonable man would not
do.
2. Negligence is an essential ingredient of the offence. The negligence to be established by
prosecution must be culpable or gross and not the negligence based upon the error of
judgment.
3. The medical professional is expected to bring a reasonable degree of skill and knowledge
and must exercise a reasonable degree of care. Neither very highest nor a very low degree of
care and competence judged in the light of the particular circumstances of each case is what
the law requires.
4. A medical practitioner would be liable only where his conduct fell below that of the
standards of a reasonably competent practitioner in his field.
5. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and
one professional doctor is clearly not negligent merely because his conclusion differs from
that of the other professional doctor.
6. The medical professional is often called upon to adopt a procedure which involves higher
element of risk, but which he honestly believes as providing greater chances of success for
the patient rather than a procedure involving lesser risk but higher chances of failure. Just
because a professional looking to the gravity of illness has taken higher element of risk to
redeem the patient out of his/her suffering which did not yield the desired result may not
amount to negligence.
7. Negligence cannot be attributed to a doctor so long as he performs his duties with
reasonable skill and competence. Merely because the doctor chooses one course of action in
preference to the other one available, he would not be liable if the course of action chosen by
him was acceptable to the medical profession.
8. It would not be conducive to the efficiency of the medical profession if no doctor could
administer medicine without a halter round his neck.
9. It is our bounden duty and obligation of the civil society to ensure that medical
professionals are not unnecessarily harassed or humiliated so that they can perform their
professional duties without fear and apprehension.
10. The medical practitioners at times have to be saved from such a class of complainants
which use criminal process as a tool for pressurizing the medical professionals/hospitals,
particularly private hospitals or clinics for extracting uncalled for compensation. Such
malicious proceedings deserve to be discarded against the medical practitioners.
11. The medical professionals are entitled to get protection so long as they perform their
duties with reasonable skill and competence and in the interest of the patients. The interest
and welfare of the patients have to be paramount for the medical professionals.
The court did not rest the case here, i.e. by laying down eleven principles for determining the
breach of duty by medical professionals/hospitals, but went a step ahead by observing that,
“In our considered view, the aforementioned principles must be kept in view while deciding
the cases of medical negligence.” The court further adds a word of caution by stating that,
“We should not be understood to have held that doctors can never be prosecuted for medical
negligence. As long as the doctors have performed their duties and exercised an ordinary
degree of professional skill and competence, they cannot be held guilty of medical
negligence. It is imperative that the doctors must be able to perform their professional duty
with free mind. The above listing of „basic principles‟ with a direction that „they must be
kept in view while deciding the cases of medical negligence‟ reflects the judicial attitude of
the hon‟ble apex court. It may be noted that any decision, judgment passed by the Supreme
Court becomes law of the land and is automatically binding on all other lower courts in the
country by virtue of Article 141 of the Constitution of India. Thus the above principles must
be taken as „law of the land on medical negligence‟.
CONCLUSION
Either the doctor will be responsible for the negligence or the staff of the hospital. There is a
rare possibility where both of them jointly commit negligence. In most of the cases of
medical negligence, the doctor and the hospital are jointly and severally liable for the act
committed. The judgements in the cases of medical negligence are given by taking into
consideration the advice of experts until it’s a open end violation of the prescribed rules and
duties. Medical negligence is a vast area to cover and as of now the judgements leave a lot of
area for discretion, which can be exercised by doctors and other people in an undesirable
manner. Recent judgements are showing the progress in the area of medical negligence and
thus clearing the mud and showing the clear land.
Recommendations
1. There should be a clear and a black and white agreement between the patient and the
hospital and the doctors.
2. Doctors should be reasonable and act like a prudent person while prescribing anything
to the patient.
3. Govt. should provide more healthcare fund so as to control the cost of healthcare and
thus resulting into controlling of costs in medical negligence cases.
4. Classification of medical negligence cases is highly required.
5. More research in this area needed.
BIBLIOGRAPHY
1. Tiwari, Daya, Medical Negligence in India: A Critical Study (November 4, 2013).
Available at SSRN: https://ssrn.com/abstract=2354282 or
http://dx.doi.org/10.2139/ssrn.2354282
2. A Study of Medical Negligence Cases decided by the District Consumer Courts of
Delhi http://medind.nic.in/jal/t15/i1/jalt15i1p50.pdf
3. Abhishek R Bhardwaj, Kuljit Singh, Medical negligence in India: A study with
special reference to liability in tort
4. Indian Penal Code, 1860
5. Ratanlal and Dhirajlal, Law of Torts

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Crime Med Neg RP

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PROJECT SUBMITTED IN PARTIAL FULFILMENT OF REQUIREMENTS

“Medical Negligence with respect to different Case Laws”

HARSH PHOPHALIA (A036)

SY.BBA., LLB. (Hons.)

Prof. Afrin Khan

DEGREE OF MEDICAL NEGLIGENCE

The Supreme Court in Laxman v. Trimbak , held:

Kusum Sharma v. Batra Hospital

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