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MEDICAL NEGLIGENCE under CONSUMER PROTECTION LAW

Research Proposal · March 2023

DOI: 10.13140/RG.2.2.13616.64009

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 MEDICAL NEGLIGENCE AND CONSUMER PROTECTION
LAW,2019
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SUBMITTED BY
TANU MITTAL – PROV/BA.LLB/7-22/104
BATCH 2022-2027

SUBMITTED TO
Prof. SUKANYA PRIDARSHINI

SUBJECT: CONSUMER PROTECTION LAW,2019

ALLIANCE SCHOOL OF LAW, BANGALORE

ALLIANCE SCHOOL OF LAW

ALLIANCE UNIVERSITY, BANGALORE

ABSTRACT
 Consumer Protection Act has also been attacked by medical
attacks as a step toward costly, huge, and avoidable litigation.
This act does not apply to two categories of service, however.
Page | 2 The first is free services, the second is services provided under

a contract of personal services. The country's consumer

movement has taken up the problem of dissatisfaction with the
medical services offered by the consumer protection of medical
services, as well as a growth in medical negligence. Private
medical negligence is now covered by this legislation thanks to the
consumer protection act of 1986. But starting in 2019, the
Consumer Protection Act has changed since it now covers medical
services, unless they are provided for free or as part of a
personal services contract. The healthcare system offers four
broad types of services: Health promotion, disease prevention,
analysis, treatment, and recovery. In India, such matters are
delved into by the India Judiciary to decide. But the difficulty
arises upon the Judges to decide the matter as they are not
medical professionals. In this paper, we are going to talk about the
legal aspects related to Medical Negligence. The paper talks at the
bottom about the treatment of Medical Negligence under the
Consumer Protection Act, of 2019 and the Indian Penal Code, of
1860.
Keywords: Medical Negligence, Consumer Protection Act, IPC,
Litigation,
 I. Introduction
Page | 3
‘Medical negligence’ is the improper or unskilled treatment of a patient
by a medical physician. This includes negligence in taking care of a
nurse, physician, surgeon, chemist, or any other medical specialist.
Medical negligence leads to ‘Medical mismanagements’ where the victims
suffer some sort of injury from the treatment given by a doctor or
any other medical specialist or health care professional.
The definition of negligence has always been broad, but the concept
has been accepted in jurisprudence. In the area of Tort Law, it is
when a person breaches his duty of care towards
another person due to which he has suffered some kind of legal
injury. From a pragmatic view, the definition consists of
• Legal duty with due care and within the scope of the duty too.
• Breach of the abovementioned duty
• Damage or legal injury
Damage plays an important role while establishing the cause of action.
The Bolam Case 1became the guiding factor for the establishment of
negligence and held that:
In a normal case that does not involve any skill, negligence is non
-fulfillment to do some act which a reasonable man in the
1
 situation would do; or restore some act which the reasonable man
in a situation would not do; and if such non-fulfillment or
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performing such act amounts to injury, then there is the cause
of action. Therefore, it is important to understand ‘reasonable
man’ is in the case of negligence. Generally, the English Courts
have judged the conduct of any defendant by comparing it with
what a supposed ordinary man would do.
Negligence within the health profession could result in minor injuries or
even lead to some serious injuries and these mistakes could even lead
to death. Since no one is perfect in this world, a person who is skilled
and has knowledge of a particular subject can also cause mistakes. To
make a mistake is human but to repeat the same mistake because of
one’s carelessness is negligence. The fundamental reason behind medical
negligence is that the carelessness of the doctors or medical
professionals is regularly established in various cases where reasonable
care is not taken during the diagnosis, during operations, while injecting
anesthesia, etc. Medical negligence can occur in different ways. Generally,
it occurs when a medical professional differs from the standard of care
that is required. So, we can say that any kind of difference from the
accepted levels of medication and if it causes injury to a patient then
the doctor who operated on him, other staff, and/or the hospital may be
held liable for medical negligence.
A doctor is not liable in all cases where a patient has suffered an
injury. He might have a valid argument that he has not breached the
 duty of care.
The fault of judgment can be of two types:
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 A mistake of judgment – In such cases, it has been accepted that
it doesn’t amount to a breach of duty. Simply because a doctor’s
decision turned out to be wrong, we cannot make him liable for
medical negligence.
 The mistake of judgment due to negligence – If all the factors
were considered before coming to a decision, then it would be
called a mistake of judgment due to negligence. This amounts to a
breach of duty.
(A) Statement of Objective
1. To understand the concept of negligence by professionals.
2. To discuss the concept of medical negligence by medical
professionals.
3. To study the level of Medical Negligence through case analysis.
4. To decide the relationship between Medical Negligence and
Consumer Protection Act.
5. To decide the relationship between Medical Negligence and IPC.
(B) Method of Study
Research has been adopted by the researcher to complete the following
research. The research has been done with the data collected from case
 laws, Newspapers, Articles, etc. Books on Torts have been referred to
complete the research.
Page | 6 (C) Literature Review
Ratanlal & Dhirajlal, The India Penal Code (34th ed.)
This Book has informed the researchers about the question relating to
the method of establishing criminal liability in the medical negligence area.
The qualities of section 304 A have been deeply discussed. The part of
obtaining criminal liability in a civil injury has also been explained. This
has truly benefited the researchers in getting the present scenario of
Courts in India.
II. NEGLIGENCE BY PROFESSIONALS
As per the English text, a professional is someone having special
workings associated with a certain profession and also that person is
observing that as a full-time occupation to yield a living. The
Supreme Court of India has elaborated on the conduct of
professionals and what can or may lead to negligence in the case of
Jacob Mathew. It stated that in the state of negligence, professionals
such as doctors, chartered accountants, and others are included in
the category of persons professing some special skill. Any reasonable
man entering a profession which requires special skill gives assurance
to the person trading with him that the skill which he has shall be
applied with a reasonable, degree of care and attention. A
professional never guarantees his clients the result, so he may be
held liable on two grounds: he may not have that requisite skill which
 professed to possess, or he did not perform with the reasonable
ability with the skill he acquired. The point of view which judges
develop while judging the case for whether the person charged has
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been negligent or not would be that of an ordinary competent man
applying the ordinary skill in that profession. It is not a requirement
for every professional to hold the highest level of expertise in the
branch in which he practices, however, this cannot be constructed for
studying the performance of the professional in a negligence case.
The Bolam case made an important characteristic between the
negligence of an ordinary man and the negligence of a professional,
which stated that in the case of negligence by a professional, the
test is not that the man having is having the best of that skill. The
test is the standard of the ordinary skilled man exercising and
professing to have that special skill. A man need not have the highest
expert skill; it is well-established law that it is sufficient if he
exercises the ordinary skill of an ordinary experienced man using that
particular art.
III. MEDICAL NEGLIGENCE IS MEDICAL PROFESSIONAL
To start with, it is fundamentally important to know that professional
negligence is different from occupational negligence, a mistake of
judgment or an accident, is not proof of negligence in medical
negligence. Whenever a doctor follows a practice acceptable to his
field, he cannot be held liable just because of a different d course
or a better method of treatment or a more specialized doctor might
not have chosen that course. In case when there is a failure of
 taking precautions, what is to be judged is whether those precautions
were taken which the reasonable experience men find sufficient; a
non-usage of special skill cannot directly amount to negligence. It has
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been indirectly developed by the Supreme Court that in the case of a
doctor, negligence means failure to act by the standards of
reasonably competent men at that relevant time. In our simple opinion
that is a correct statement. But it is further explained that a doctor
cannot inflexibly carry on with a technique that is proved to be
different from the whole of informed medical opinion.
IV. DEGREE OF MEDICAL NEGLIGENCE
The degree of negligence in civil law has been clearly explained by
the Courts in India:
• Lata culpa, gross neglect
• Levis culpa. Ordinary neglect
• Levissima culpa, slight neglect
The doctors cannot attract punishment for every act of negligence.
Small neglect cannot be charged and the same goes for ordinary
neglect. The problem arises when the court finds it difficult to judge
gross neglect. The Supreme Court has always backed up the test laid
down in the Bolam case. For further clarity on the idea of the
Supreme Court while judging such cases.
The following cases:
Kishan Rao Case
 Kishan Rao got his wife admitted to Nikhil Super Specialty Hospital as
she was suffering from a fever and complaining of chill. She was not
given any treatment for malaria, instead, she was undergoing
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treatment for typhoid. As there was no significant improvement in her
condition, she was shifted to Yashoda Hospital where she died due to
cardiorespiratory arrest and malaria. Kishan Rao filed a case in the
district council against Nikhil Hospital asking for compensation. The
decision was passed in favor of Kishan Rao. The hospital appealed to
the State Council where the decision was overturned because there
was no expert opinion to the effect that the treatment given by the
hospital was wrong. The national forum upheld the decision. So, he
appealed to the Supreme Court, which saw that this case was not so
confused and required expert opinion as evidence. The Court held
that it was not necessary in all cases to seek expert opinion before
proceeding with the matter. Thus, the guidelines as laid down in
Martin D’Souza’s case, regarding expert opinion before proceeding with
any case do not hold well in consumer protection cases which are
prima facie cases. Moreover, the consumer protection law has been
authorized to further the whole process and the idea of expert
opinion at the start shall defeat the very purpose of the law.
V. MEDICAL NEGLIGENCE AND ITS RELATIONSHIP WITH CONSUMER
PROTECTION ACT
Around the 1960s, consumer rights gained force in the USA as
former US president John F. Kennedy declared consumer rights to
Congress. This led to an international point upon which the United
 Nations had to work upon. Later, in 1985 The General Assembly of the
United Nations adopted “Guidelines for Consumer Protection” by
consensus on 9 April 1985. Right after the performing of the above-
Page | 10
mentioned guidelines, India also passed the Consumer Protection Act in
198613 with the stated objective to provide for better protection of
the interests of consumers and for that purpose to make necessities
for the establishment of consumer councils and other authorities for
the settlement of consumers’ disputes and materials connected
therewith. The Consumer Protection Act came into force on 1 July
1987, and later quasi-judicial machinery known as Consumer Disputes
Redressal Agencies were established at the District, State, and
National levels to provide speedy and reasonable judicial remedies to
consumer disputes. The Act makes possible a claim for damages on
proof of what the Act calls a “deficiency of service”. Firstly, when
the consumer protection act was introduced, it did not include the
medical profession. There was this difference of opinion by various
states regarding the addition of the medical profession under section
2(1)(o) of the consumer protection Act, 1986, which includes briefs
about the types and list of services included and rejected. In 1992,
there was an appeal from Kerala State Commission, the national
consumer disputes correct commission included the medical profession
under section 2(1)(o) of the consumer protection Act 1986. There was
a lot of rush in the Indian Medical Association when it got joined the
consumer protection act 1986, they had this doubt as to whether the
consumer dispute redressal agencies could adjudicate the complaints
of medical negligence capably. In 1995, the Supreme Court in the Indian
 Medical Association case finally included the medical profession under
the Consumer Protection Act. After this judgment, it was clear that
Consumer Protection includes all medical services offered by private
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and government doctors and hospitals. It relieves only those hospitals
and the medical specialists of such hospitals, which always offer free
service to all patients. Moreover, through this judgment Supreme
Court made the following facts clear which belong to medical
negligence and consumer laws:
• The Consumer Disputes Redressal Agencies are provided with the
same powers as are appointed in the civil Court under the Code of
Civil Procedure while trying a suit.
• The procedure followed for consumer disputes under the Consumer
Protection Act is summary in nature involving trial based on affidavits.
• The principle of the “Bolam test” as laid down, is to be applied to
verify the standard of care which is required by medical specialists in
an action for damages for negligence.
• Service reduced by the doctors and hospitals where charges are
required to be paid by persons availing of services but certain
categories of persons who cannot afford to pay are reduced service
free of charges, would still fall within the field of the expression
“service” as defined in section 2 (1) (0) of the Act.
VI. MEDICAL NEGLIGENCE UNDER IPC
The general condition of penal liability is indicated by the Latin maxim
- Actus rea- the act alone does not amount to guilt; it must be
 come with by a guilty mind (men’s rea). The mental attitude of the
medical specialist would thus have to agree with the wrongful act
before he could be prosecuted successfully under criminal law. To
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attribute men’s rea to a wrongful act the act must be done either
wilfully or carelessly. Where the act is wilful, men’s rea would be easy
to attribute to the wrongful act since the mind has acted in concert
with the wrongful act. A reckless act is one where the person is
responsible for consequences foreseen as the certain or highly
probable outcome of his act. However, there are two qualifications-
Firstly, criminal law may include provisions correcting negligence even
though this may result from broad negligence. Secondly, the law may
create offenses of strict liability. The focus of this paper is
concerned with the first qualification since the Indian Penal Code
creates this liability. Therefore, if a medical physician, does an act
that he did not intend or even foresee, but that a reasonable
medical practitioner would have foreseen under similar circumstances
as likely to cause death, he would be held guilty of the wrongful act.
Here foreseen and foreseeable consequences are put on the same
basis as consequences that are intended. Section 304-A of the Indian
Penal Code is the section under the criminal law that deals with
professional negligence-the short title of Section 304-A read ‘Causing
death by negligence’. The terms of the section would come into play
only when death occurs. No injury or quick death would make a
medical practitioner liable under this section. Also, the provision comes
into effect when there is no intention to cause death, and no
knowledge that the act is done in all possibility would cause death
 (culpable homicide). The section does not apply when death has
resulted from some interfering event that could not have been
foreseen but will only apply when death is the result of the rash or
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negligent act as its direct or near cause. Criminal negligence is the
total or guilty neglect or failure to exercise that reasonable or
proper care and protection to guard against injury, which was the
essential duty of the professional to adopt. The following test in the
case of R v Holloway is to establish a charge of criminal negligence,
which is also recognized by Indian Courts –
• the existence of the duty to take care.
• a breach of duty causing death; and
• the breach of duty must be characterized as gross negligence.
Whether the Doctor's breach of duty amounted to gross negligence,
depended on the seriousness of the breach of duty committed by him
in all the situations in which he was placed when the breach occurred.
CONCLUSION
In the field of negligence, courts must depend on the information of
experts, except in the cases of clear violation of procedure and doing
things that are unreasonable and irresponsible. The level of
subjectivity in such decisions is very high and the purpose of the law
to be specific is defeated to a large scope. The above-mentioned
decisions are a good step in the direction of making this dark area a
bit tidy, however, a lot needs to be done by the courts in the shape
of clearer judgments so that the layman can benefit. As of now, the
 judgments leave a lot of room for judgment, which at times may be
exercised by different persons, including doctors and judicial officers,
in an undesirable manner. The law on the subject needs to be more
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specific which will surely give a better understanding of the
“reasonable man”. Lately, Indian society has got a bit experienced
growing awareness regarding patients’ rights. This trend is a visible
increase in court cases concerning medical professionals or in
institutions’ legal responsibility, claiming redressal for the suffering
caused due to medical negligence. The patient-entered creativity of
rights protection is required to be appreciated in the economic
context of the rapid decline of State spending and huge private
investments in the scope of the healthcare system and the Supreme
Court’s careful efforts to constitutionalize a right to health as a
fundamental right. However, it is equally essential to note that the
protection of a patient’s right shall not be at the cost of honesty
and self-rule.
SUGGESTIONS
The idea of negligence can be understood only when there is clarity
about the duty of the doctor, helping staff, and the hospital. In
several cases, there has been a problem of intersecting duties and
thus, it becomes difficult to draw a line between duties. Both have
joint and several liabilities. Thus, it becomes advisable to have clear-
cut duties laid down for different persons. Indeed, it would not easy
as it cannot be done perfectly. However, it will provide a basic
framework, which helps in deciding matters in situations of confusion
 and failure. Several problems arise when a general practitioner tries
to treat a patient who requires the services of a specialist or a
super-specialist. On the other hand, there may be problems also in
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situations when the general practitioner could have treated a patient,
however, forms an opinion that he cannot do anything, and the patient
must be taken to a specialist. So, in these above-discussed cases, it
has been seen that the general practitioner has a very important role
to play in the treatment of a patient. Agreed that the general
physician is not supposed to know everything, however, the opinion of
the researchers, it is expected that he must guide the patient
properly to the best of his ability. So, there must be some guiding
factor laid down so that the Court gets some basic idea while making
an understanding.
Reference
• Modi K Kannan, Medical Negligence in India, A TEXTBOOK OF MEDICAL JURISPRUDENCE AND
TOXICOLOGY, 26th ed.
• Rema Srinivasan Iyengar, Medical Negligence and The Law, MADRAS LAW JOURNAL – CIVIL
(2009)
• Ratanlal & Dhirajlal, The India Penal Code (34th ed.)
• Ratanlal & Dhirajlal, The Law of Torts • Ishita Chatterjee, Law of Forensic Sciences
• Maloy, Medical Dictionary for Lawyers, 318 (1942) • Waltz F, Inbau, Medical Jurisprudence,
(1971).
• Patricia M. Danzon, Liability for Medical Malpractice, 1339-1352 (1st ed. 2000) references
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