1.

The Bolam Test and its role in medical negligence cases

WHAT IS BOLAM TEST

When something goes wrong in a medical setting it can often have a long-lasting nega-
tive impact on people’s lives. If this is the case, sometimes patients can make a claim
for medical negligence. This results in them getting compensation if it can be proven
that there was medical negligence.

In the UK, establishing culpability in a medical setting can be complicated, and this is why
the Bolam test is used, enabling medics to be assessed for breach of duty.

Bolam test history

The Bolam Test was first implemented following the 1957 case of Bolam vs Friern
Hospital Management Committee. The case was related to an incident at the hospital
whereby the patient – Mr. Bolam – received Electro Convulsive Therapy (ECT) which
caused him serious fractures.

Mr. Bolam argued that his doctor has been negligent for the following three reasons:

1.Muscle relaxation had not been administered before the procedure began.

2.Mr. Bolam had not been restrained during the procedure.

3.Mr. Bolam had not been warned of the potential risks of the procedure.

The result of the case was that it failed as it was deemed that the doctor had followed the
medical protocol at the time, and patients were also not routinely advised of all of the
small risks that could occur as a result of the procedure. This led to the legal system
developing and implementing the Bolam Test as a way to measure medical negligence.

The Bolam Test is based on the premise of determining whether the actions of the
medic are in line with the actions of other medics who are in their position – this
means that it can sometimes change according to their degree of experience, for example.

Although this happened in 1957, the basics of the Bolam Test remain key, but it has been
adapted to fit with the ever-evolving medical profession.
 The case of Bolitho vs Hackney Health Authority (1977) found that both the
claimant’s and the defendant’s evidence was useful. This case was used to amend
the rules around the Bolam Test, with the explanation being, “In cases of diagnosis
and treatment there are cases where, despite a body of professional opinion sanc-
tioning the defendant’s conduct, the defendant can properly be held liable for negli-
gence… In the vast majority of cases, the fact that distinguished experts in the field are of
a particular opinion will demonstrate the reasonableness of that opinion… But if, in a rare
case, it can be demonstrated that the professional opinion is not capable of withstanding
logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or
responsible.” (Lord Browne-Wilkinson)

The Chester vs Afshar (2004) and Montgomery v Lanarkshire Health Board (2015)
cases helped to refine the law in regard to the failure to warn patients of potential
risks to certain procedures. It was argued that the medic’s withholding of information
meant that the patient was unable to make an informed decision about the procedure that
they were due to have (and, indeed, which caused an injury having had the procedure).

What is a duty of care?

If you work in the medical profession, you have a legal obligation to provide a rea-
sonable standard of care to your patients. This is called a ‘duty of care’. If this duty
of care is breached, it can result in illness or injury to the patient, and this can result
in a claim being made against you for medical negligence.

The Bolam test is the standard test that is used to establish whether the duty of care
has been breached.

How is the Bolam test applied?

The Bolam test is essentially a test that is judged by the medical professional’s
peers. They must be able to show that any medical professional who was in the
same position as them would have done the same, giving the same outcome. In
those circumstances, a case would fail.

Following Bolam principles and guidelines

Although the Bolam Test is a good way to set out the principles around the idea of a duty
of care and the potential existence of medical negligence, it can be a somewhat grey area
and sometimes difficult for medical professionals to be certain that what they are doing is
correct.

This is why we are seeing more and more bodies such as NICE (National Institute
for Health and Care Excellence) publishing extensive sets of guidelines as to best
practice and the duty of care, to help to ensure that medical professionals protect
themselves and their patients.
2. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is a case that
lays down the typical rule for assessing the appropriate standard of reasonable care
in negligence cases involving skilled professionals (e.g. doctors): the Bolam test.
Where the defendant has represented him or herself as having more than average skills
and abilities, this test expects standards which must be in accordance with a responsible
body of opinion, even if others differ in opinion. In other words, the Bolam test states that
“If a doctor reaches the standard of a responsible body of medical opinion, he is
not negligent”.

3. How is the Bolam test applied?

The Bolam test is a peer review of a medical professional’s actions. The
Test establishes whether a practitioner has acted in a way that a sub-
stantial body of other skilled professionals in the same field would
have acted.
Even if the other medical professionals say they would have acted dif-
ferently, they may still decide that the treatment or level of care was
acceptable.

When is the Bolam test applied?

All medical practitioners, including doctors, nurses, dentists and surgeons,
have a legal duty of care towards their patients.
When the actions of a professional may have exacerbated someone’s condition
or caused them to become ill, then a medical negligence claim may be brought
against them. The Bolam test is then used to establish whether they
have breached their duty of care.
Today bodies like NICE (National Institute for Health and Care Excel-
lence) have set out comprehensive guidelines on duty of care and best
practice. This means that if a medical professional has satisfied the Bolam
test, they may still be found to have failed in their duty of care if they have not
followed NICE recommendations.

Subsequently, this standard of care test was amended – the Bolitho amendment – to
include the requirement that the doctor should also have behaved in a way that
‘withstands logical analysis’ regardless of the body of medical opinion. The de-
termination of whether a professional’s actions or omissions withstand logical
analysis is the responsibility of the court.

It simply states: “If a doctor acts in accordance with a responsible

body of medical opinion, he or she will not be negligent.” It simply re-
quires a doctor accused of negligence to demonstrate that other doc-
tors would/could have acted in the same way when delivering care.
This scope, however, has been challenged and questioned in a number
of cases over the course of the century.

A medical professional should strive to be the best at what they do

and deliver quality medical services and care. The test doesn’t require
the highest possible standard to be met and allows for sufficient exer-
cise of an ordinary skill of an ordinary competent man exercising that
skill. So then, what constitutes proper ordinary practice and reasonable care?
Does this then mean that doctors were encouraged to just give the bare mini-
mum/ordinary and not to go above and beyond to deliver the best care to their
patients. Was it a shield to when they were scrutinized for a mistake and their
excuse would be that they acted in accordance to their ordinary skill at time of
diagnosis and treatment, therefore ruling out a possibility of negligence. A
practitioner would be found to have done a mistake but held not to have been
negligent just because there was an ordinary level of skill employed, that at
least one other medical professional would have adopted in delivering an ordi-
nary level of care.

What then qualifies a medical body to be deemed as a responsible body of

opinion? Is it guided by a number, a set of professional skills or both? What
then happens when there is a difference of opinion within the body? Will a
medical practitioner be excused as being negligent simply because a section of
the body maintained they would adopt a certain practice, especially where it is
apparent that it goes against the general majority view?4

4.
Introduction

The concept of medical negligence refers to the malpractice of a medi-

cal professional who fails to meet the standards of his/her profession
which results in the death of a patient who was expecting the medical
professional to save her/her life. Medical negligence is the most shameful
act a medical professional can conduct because this negligence most of the
time results in the death of the patient.

According to Black’s Law dictionary, negligence refers to the omission

to do something which a reasonable man, guided by those ordinary
considerations which ordinarily regulate human affairs, would do or
the doing of something which a reasonable and prudent man would
not do.

Medical negligence in legal terms refers to the breach of a duty of care, which
results in damage. The damages may be in monetary terms, health terms,
derogating the condition of the patient, causing trauma to the patient, leaving
the patient in irredeemable condition for the rest of his/her life, etc.

One such principle is the case of Bolam v. Friern Hospital Manage-

ment Committee (1957). However, the position was amended in the
year 2001 when such a test was abandoned by English courts which
made the requirements of medical negligence stricter; however, the
Indian courts continued to follow the principles laid down in Bolam’s
case.

Bolam’s test vis-a-vis Bolitho’s test

Bolam’s test

The test to determine the negligence can be understood by the words

of the judgment i.e. “A doctor is not guilty of negligence if he has
acted in accordance with the practice accepted as proper by a respon-
sible body of medical men skilled in that particular art. Putting it the
other way round, a man is not negligent if he is acting in accordance
with such a practice, merely because there is a body of opinion who
would take a contrary view.”
It was further held that “where you get a situation which involves the use of
some special skill or competence, then the test whether there has been negli-
gence or not is not the test of the man on the top of a Clapham omnibus, be-
cause he has not got this special skill. The test is the standard of the ordi-
nary skilled man exercising and professing to have that special skill. A
man may not possess the highest expert skill at the risk of being
found negligent. It is well-established law that it is sufficient if he ex-
ercises the ordinary skill of an ordinary competent man exercising
that particular art. A doctor is not negligent if he is acting in accor-
dance with a practice accepted as proper by a responsible body of
medical men skilled in that particular art.”

Bolitho’s test

The Bolitho test evolved from the case of Bolitho v. City and Hackney
Health Authority (1997), which challenged the approach of medical
negligence taken in the case of Bolam. The case briefly unfolds as, in
1984, a two-year-old child named Patrick Nigel Bolitho, was admitted
to the St. Bartholomew’s Hospital. The child was suffering from croup.
Initially discharged after senior doctors saw his condition, the child
derogated the following day, and the doctors, while admitting this,
admitted the child and appointed a nurse to take care of the child. But
the condition of the child continued to deteriorate and the child even-
tually succumbed but was revived after 10 minutes. Such events
caused brain damage to the child and he later died and his parents
filed a case of negligence of conduct at the hospital.

The House of Lords, in this case, found the presiding medical officer guilty of
negligent conduct. The court, while further determining if the child would have
died if the doctor would have attended him, took the advice of eight experts,
while five of them were of the opinion that they would have intubated the child,
the other three were of the opinion that they wouldn’t have done such acts,
and therefore the court did not find the accused senior doctor guilty of negli-
gence. The court further held – “The use of adjectives ‘responsible, reasonable
and respectable’, all show that the court has to be satisfied that the exponents
of the body of medical opinion relied upon can demonstrate that such opinion
has a logical basis. In particular, in cases involving as they so often do, the
weighing of risks against benefits, the judge before accepting a body of opinion
as being responsible, reasonable, or respectable will need to be satisfied that,
in forming their views, the experts had directed their minds to the question of
comparative risks and benefits and had reached a defensible conclusion on the
matter”.

What amounts to negligence

The court, in Bolam’s case, held – “If an error would not have been
made by a reasonably competent professional man professing to have
the standard and type of skill that the defendant held himself as hav-
ing, and acting with ordinary care, then it is negligence. If, on the
other hand, it is an error that such a man, acting with ordinary care,
might have made, then it is not negligence”.

The Supreme Court of India, in the case of Kusum Sharma & Ors v.
Batra Hospital & Medical Research (2010), held that “Negligence is
the breach of a duty exercised by omission to do something which a
reasonable man, guided by those considerations which ordinarily reg-
ulate the conduct of human affairs, would do, or doing something
which a prudent and reasonable man would not do”.

To establish negligence against a doctor, the essentials are:

• Duty of Care: If the doctor owed a duty of care towards the patient
or person who has suffered mental and physical injury, then the
doctor is guilty of medical negligence and shall be expelled to practice
further.
• Breach of Duty: The second factor is the establishment of the fact
that despite the doctor owing a duty of care towards the patient,
the former failed to fulfil such duty and has breached in fulfilling
his duty towards his/her profession.
• Causing of injury: It must be established that a doctor owed a duty
of care towards the patient and he/she failed in fulfilling his duty
and such failure has resulted in injury or death to the patient.

It is only negligence if the aggrieved party establishes all these fac-

tors in the court of law.

Effects of medical negligence

Medical negligence has numerous consequences like:

• Adding of costs: Medical negligence results in additional treatment or

surgeries, which not only adds to the bills of medical but also other hospi-
tal expenses like admitting expenses, more therapy sessions, etc.
• Exhausting of insurance: Medical negligence results in the plaintiff tak-
ing more insurance support which eventually exhausts all his savings and
health insurance.
• It leads to lengthy court procedures: Medical litigation is usually
lengthy and time-consuming for the plaintiff as well as the respondent,
which adds to the problem of the patient or his legal representatives or
family members.
• Making the initial situation worse: Medical negligence makes the ini-
tial condition of the patient worse by giving more complications
and injuries to the patient.
• It results in lifelong traumas: Recovering from an injury can be easy with
the assistance of good doctors and medicines; however it may take life-
 long to recover from the trauma or shock, sufferings, pain, etc. caused to
the patient who underwent an operation to improve his/her conditions.
• Unnecessary medical procedures: Medical negligence also leads to
other medical surgeries which are performed to undo or compensate for
the medical negligence caused by the doctors.

Medical negligence in India

Death by medical negligence is primarily punished under Section 304A of

Indian Penal Code, 1860, (IPC), where punishment for causing death by
rash and negligent act is reserved for a term which may extend up to
2 years, or with fine, or both.

Not every act where a person goes to a medical professional to un-

dergo a surgery or procedure, which involves rash and the negligent
act falls within the ambit of Section 304 A of IPC however, it will be a
criminal act if the medical professional employs gross lack on his
part.

It was held in the case of Kurban Hussein Mohammedali v. State Of

Maharashtra (1964), “To impose criminal liability under Section 304A of IPC,
it is necessary that the death should have been the direct result of a
rash and negligent act of the accused, and that act must be the proxi-
mate and efficient cause without the intervention of another’s
negligence.”

Guidelines of Supreme Court of India - The Supreme Court of India, in the case of
Jacob Mathew v. State Of Punjab & Anr (2005), gave certain guidelines concerning
medical negligence:

• A complaint may not be entertained unless the person giving

such complaint produces prima facie evidence before the court
to support his/her claim of negligence of the accused doctor.
• The appointed investigating officer must, before initiating pro-
ceedings against the accused doctor, consult with a doctor in
government services who must be unbiased and impartial in giv-
ing his opinion after applying Bolam’s test to the case.
• The accused doctor shall not be arrested routinely unless such arrest is
necessary for further investigation or until the investigating officer, if sat-
isfied that the doctor would not make himself available to face the prose-
cution, may be arrested.

Conclusion

Medical negligence is the worst type of conduct by a medical professional be-

cause people usually expect such a person to save the life of others and not
take or make it worse. Cases of medical negligence are witnessed every day,
which causes pain, agony, and suffering to the patient, and to reduce such mis-
conduct, the government of India and its medical fraternity must improve the
conditions of its medical practitioners by improving the education quality and
emphasizing professional conduct education.

The concept of medical negligence is well established in India however

the Indian judiciary still follows Bolam’s test which is outdated and
vague and therefore new methods to determine medical negligence
must be adopted by the Indian judiciary.

To deliver justice in cases of medical negligence, the Indian judiciary must

adopt new approaches so that at least the sufferings of a person in courts can
be prevented. The court must award heavy punishments for those found guilty
of medical negligence and also impose heavy fines on hospitals that have em-
ployed such negligent professionals.

Bolam was rejected in the 2015 Supreme Court decision of Montgomery v Lanark-
shire Health Board in matters of informed consent.[1]

Judgment[edit]
McNair J at the first instance noted that expert witnesses had confirmed, much med-
ical opinion was opposed to the use of relaxant drugs, and that manual restraints
could sometimes increase the risk of fracture. Moreover, it was the common prac-
tice of the profession to not warn patients of the risk of treatment (when it is small)
unless they are asked. He held that what was common practice in a particular pro-
fession was highly relevant to the standard of care required. A person falls below the
appropriate standard, and is negligent, if he fails to do what a reasonable person would in
the circumstances. But when a person professes to have professional skills, as doctors do,
the standard of care must be higher. "It is just a question of expression", said McNair J.

Bolam was re-examined and revised in the 2015 Supreme Court decision of Mont-
gomery v Lanarkshire Health Board.[3]
The law distinguishes between liability flowing from acts and omissions, and liabil-
ity flowing from misstatements. The Bolam principle addresses the first element and
may be formulated as a rule that a doctor, nurse or other health professional is not
negligent if he or she acts in accordance with a practice accepted at the time as
proper by a responsible body of medical opinion, even though some other practi-
tioners adopt a different practice. In addition, Hedley Byrne & Co. Ltd. v Heller &
Partners Ltd. [1964] AC 465 created the rule of "reasonable reliance" by the claimant
on the professional judgment of the defendant.
"Where a person is so placed that others could reasonably rely upon his judgment
or his skill or upon his ability to make careful inquiry, and a person takes it upon
himself to give information or advice to, or allows his information or advice to be
passed on to, another person who, as he knows or should know, will place reliance
upon it, then a duty of care will arise."[4]
Because of the nature of the relationship between a medical practitioner and a patient, it is
reasonable for the patient to rely on the advice given by the practitioner. Thus, Bolam ap-
plies to all the acts and omissions constituting diagnosis and consequential treat-
ment, and Hedley Byrne applies to all advisory activities involving the communica-
tion of diagnosis and prognosis, giving of advice on both therapeutic and non-ther-
apeutic options for treatment, and disclosure of relevant information to obtain in-
formed consent.
• Barnett v Chelsea & Kensington Hospital [1968] 1 All ER 1068. Three men at-
tended at the emergency department but the casualty officer, who was him-
self unwell, did not see them, advising that they should go home and call their
own doctors. One of the men died some hours later. The post mortem showed
arsenical poisoning which was a rare cause of death. Even if the deceased
had been examined and admitted for treatment, there was little or no chance
that the only effective antidote would have been administered to him in time.
Although the hospital had been negligent in failing to examine the men, there
was no proof that the deceased's death was caused by that negligence.
• Sidaway v Bethlem Royal Hospital Governors [1985] AC 871: The claimant
suffered from pain in her neck, right shoulder, and arms. Her neurosurgeon
took her consent for cervical cord decompression, but did not include in his
explanation the fact that in less than 1% of the cases, the said decompression
caused paraplegia. She developed paraplegia after the spinal operation. Re-
jecting her claim for damages, the court held that consent did not require an
elaborate explanation of remote side effects. In dissent, Lord Scarman said
that the Bolam principle should not apply to the issue of informed consent
and that a doctor should have a duty to tell the patient of the inherent and ma-
terial risk of the treatment proposed.
• Wilsher v Essex Area Health Authority [1988] AC 1074 The defendant hospital,
initially acting through an inexperienced junior doctor, negligently adminis-
tered excessive oxygen during the post-natal care of a premature child who
subsequently became blind. Excessive oxygen was, according to the medical
evidence, one of five possible factors that could have led to blindness and,
therefore, the Lords found that it was impossible to say that it had caused, or
materially contributed, to the injury and the claim was dismissed. In a minor-
ity view, Mustill LJ. argued that if it is established that conduct of a certain
kind materially adds to the risk of injury, if the defendant engages in such
conduct in breach of a common law duty, and if the injury is the kind to which
the conduct related, then the defendant is taken to have caused the injury
even though the existence and extent of the contribution made by the breach
cannot be ascertained.
• F v R,[7] Where Chief Justice King said, "In many cases an approved profes-
sional practice as to disclosure will be decisive. But professions may adopt
unreasonable practices. Practices may develop in professions, particularly as
to disclosure, not because they serve the interests of the clients, but because
they protect the interests or convenience of members of the profession. The
court has an obligation to scrutinize professional practices to ensure that
they accord with the standard of reasonableness imposed by the law. A prac-
tice as to disclosure approved and adopted by a profession or section of it
may be in many cases the determining consideration as to what is reason-
able. On the facts of a particular case the answer to the question whether the
defendant’s conduct conformed to approved professional practice may de-
cide the issue of negligence, and the test has been posed in such terms in a
number of cases. The ultimate question, however, is not whether the defen-
dant’s conduct accords with the practices of his profession or some part of it,
but whether it conforms to the standard of reasonable care demanded by the
 law. That is a question for the court and the duty of deciding it cannot be del-
egated to any profession or group in the community."
Misfeasance
Where it can be shown that the decision-maker was not merely negligent, but acted
with "malice", the tort of "misfeasance in public office" may give rise to a remedy.
An example might be a prison doctor refusing to treat a prisoner because he or she
had previously been difficult or abusive. Although proof of spite or ill-will may make
a decision-maker's act unlawful, actual malice in the sense of an act intended to do
harm to a particular individual, is not necessary. It will be enough that the decision-
maker knew that he or she was acting unlawfully and that this would cause injury to
some person, or was recklessly indifferent to that result.
• Palmer v Tees Health Authority [1998] All ER 180; (1999) Lloyd’s Medical Re-
ports 151 (CA) A psychiatric out-patient, who was known to be dangerous,
murdered a four-year-old child. The claim was that the defendant had failed to
diagnose that there was a real, substantial, and foreseeable risk of the patient
committing serious sexual offences against children and that, as a result, it
had failed to provide any adequate treatment for him to reduce the risk of him
committing such offences and/or to prevent him from being released from the
hospital while he was at risk of committing such offences. But the court
struck out the claim on the grounds that there was no duty of care towards
the child, as any child, at any time, was in the same danger. Furthermore, as
the patient did not suffer from a treatable mental illness, there was no legal
right to either treat or detain the person.
The law requires medical practitioners to use diligence, care, knowledge, skill and caution
in administering treatment to a patient. The question of whether a medical practitioner
has met the requisite standard of care is often considered by reference to the test
laid down in the case of Bolam v Friern Hospital Management Committee [1957]
WLR 582. In Bolam, the Claimant sustained fractures of the acetabula during a course of
electro-convulsive therapy administered to him at the Defendant’s mental hospital. In con-
sidering whether the Defendant was negligent in the manner in which it carried out the
treatment, McNair J confirmed that:

Cases Concerning Issues of Advice and Consent

In Montgomery v Lanarkshire Health Board [2015] AC 1430, the issue before the Court
was whether the Claimant ought to have been given advice about the risk of shoulder dys-
tocia in the event that she proceeded with a vaginal delivery of her baby, and about the al-
ternative possibility of delivery by elective caesarean section. The Claimant was diabetic
and was having a larger than usual baby with an increased risk of shoulder dystocia. This
risk manifested during labour and complications during the delivery resulted in her baby
being born with severe disabilities.

Lord Kerr and Lord Reed delivered the lead judgment during the course of which their
Lordships recognised [82]:

“a fundamental distinction between, on the one hand, the doctor’s role when considering
possible investigatory or treatment options and, on the other, her role in discussing with
the patient any recommended treatment and possible alternatives, and the risks of injury
which may be involved.”
Their Lordships recognised that the former role was an exercise of professional skill and
judgment, falling within the expertise of the medical profession. In these circumstances,
the Bolam test would apply. Their Lordships considered however that the doctor’s advisory
role could not be regarded as solely an exercise of medical skill. They considered that a
patient’s entitlement to decide on the risks to their health, which they are willing to run,
must be accounted for and that responsibility for determining the nature and extent of a
person’s rights rested with the court not the medical professions.

Hence, the test in cases involving a doctor’s duty to advise patients and obtain their con-
sent was thus formulated as follows [88]:

“an adult person of sound mind is entitled to decide which, if any, of the available forms of
treatment to undergo, and her consent must be obtained before treatment interfering with
her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable
care to ensure that the patient is aware of any material risks involved in any recommended
treatment, and of any reasonable alternative of variant treatments”.

The duty to advise as to risks is subject to the exception that such information could be
withheld if the doctor reasonably considered that its disclosure would be seriously detri-
mental to the patient’s health or, where the patient required treatment urgently but was un-
able to make a decision.

Cases Involving Pure Diagnosis

Where a medical practitioner makes a diagnosis based on the interpretation of data in the
form of, for example, radiological scans or specimen on a slide, that interpretation and di-
agnosis is either right or wrong. If it is wrong, it is either negligently so or not. In Muller v
King’s College Hospital NHS Trust [2017] QB 987 these are recognised as ‘pure diagnosis’
cases. In Muller, the issue was whether a histologist had been negligent in failing to diag-
nose a malignant melanoma on examining slides containing specimen obtained from a
punch biopsy performed on the Claimant. Kerr J observed that these pure diagnosis cases
were far from what McNair J had in mind when laying down the test in Bolam, characteris-
ing Bolam as a “pure treatment” case.

Kerr J considered the approach taken by HHJ Peppit QC in Penney v East Kent Health
Authority [2000] Lloyd’s Rep Med 41, who observed that the abnormality on Claimant’s
slides in that case was there to be seen and should have been recorded. There was thus
no issue as to whether a particular course of professional conduct was acceptable prac-
tice. The issue was rather whether the conduct though wrong, fell short of actionable negli-
gence.

Kerr J expressed regret that he was constrained by the law to view the exercise of prefer-
ring one expert over another through the prism of the exception to Bolam laid down in
Bolitho v City and Hackney Health Authority [1998] AC 232 namely, whether the view of
the body of opinion relied upon is “untenable in logic or otherwise flawed in some manner
rendering its conclusion indefensible and impermissible” ([79]). Kerr J considered that it
would have been preferable to reject the very notion that the Bolam principle can apply
where no “Bolam-appropriate” issue arose. As it was, Kerr J felt bound by the law as it
currently stands and thus he considered that his approach to the case had to be by refer-
ence to a possible invocation of the Bolitho exception (which unsurprisingly was invoked).

Cases Where There Is No Dispute That the Alleged Conduct, if Proved, Would
Be Negligent

There are many cases where there is no real dispute that the alleged conduct of a medical
practitioner, if proved, would constitute negligence. The issue of breach of duty in these
cases is resolved by a straightforward question of fact as to whether the practitioner acted
in the manner alleged. In such cases, there is no need to apply the Bolam test.

For example, in FB v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334, there
was no dispute that there was a duty on a Senior House Officer (“SHO”) to take an ade-
quate history in relation to the Claimant when she was taken into A&E by her parents. The
issue was therefore whether on the facts, the SHO failed to take an adequate history.

Conclusion

It is apparent that a strict application of Bolam is not appropriate in all medical negligence
cases. It is likely that Bolam will be of no or limited application where the issues in the case
concern advice and/or consent to treatment, pure diagnosis or, where it is agreed that the
alleged conduct, if proved, would be negligent. Medical negligence practitioners therefore
need to take care to ensure that they apply the correct test when considering the issue of
breach of duty.

•
Key Points
• Negligence was not recognised as a separate tort (wrong) until 1932
• Case law has allowed the development of a duty of care to include
healthcare professionals
• The Bolam test which was formulated by a high court judge in 1957 has
guided the courts as to the standard of care in medical negligence cases.

Main
The appropriate standard of care and whether a defendant has met
that standard, are two of the crucial issues in any medical negligence
action. The court has to decide if the defendant has exercised suffi-
cient care. Under the tort of negligence, the test for breach of duty is
whether or not the defendant's conduct was reasonable taking all the
circumstances into account. Expert medical opinion is obviously important
in assisting the courts to decide whether or not the defendant has exer-
cised an appropriate level of skill under the circumstances of the case,
but it is the courts and not expert medical opinion that should decide
if the defendant has achieved that standard.
It has been argued that some important points emerge from Donoghue v
Stevenson. In order to establish negligence, a plaintiff (the person bringing the
action) must prove:

• The defendant (the person defending the action) owed him a duty of care
• There was breach of that duty
• Damage flowing from the breach, which is not too remote, ie causation.

Historically, there has been reluctance on the part of the judiciary to find doc-
tors guilty of negligence. This may be because lawyers and doctors belong to
two of the oldest professions. Many judges have felt that doctors needed to be
protected from the threat of medical negligence. This was illustrated in 1954,
in the case of Hatcher v Black, where Lord Denning, a well-known supporter of
the medical profession, described negligence as a 'dagger at the doctor's
back.'3 The test which has become the principle by which medical negligence
is assessed is known as 'The Bolam' test.

number of important test cases as the basis of liability in medical negligence

cases:

• Maynard v West Midlands Regional Health Authority6 (diagnosis)

• Whitehouse v Jordan7 (treatment)
• Sidaway v Bethlem Royal Hospital Governors8 (disclosure of information
and consent).

The Bolam test has been criticised as a state-of-the-art descriptive test based
on what is actually done, whereas in negligence cases generally, the test is a
normative test based on what should be done. This has made it more difficult
for plaintiffs to succeed in medical negligence cases and was commented on by
the Pearson Commissionwho noted the difference between the success of neg-
ligence claims generally (60%– 80%) as opposed to medical negligence claims
(30%–40%).9

Commonly adopted working practices and negligence

Outside the context of medical negligence the courts have had no difficulty
with the concept that commonly adopted practices may be negligent. This is
shown in Edward Wong Finance Company Ltd v Johnson Stokes and Masters
where the Privy Council held that a particular conveyancing practice widely fol-
lowed in Hong Kong was negligent despite the fact that virtually all other solici-
tors adopted the same practice.10 Similarly in Re The Herald of Free Enter-
prise: Appeal by Captain Lewry the Divisional Court found that the practice of
failing to check that the doors had been closed was prevalent in most if not all
ferries of that class.11 The Court concluded, however, that this was not evi-
dence of the appropriate standard of care, but a failure to apply common sense
in respect of elementary precautions required for the safety of the ship and
that the practice was negligent.
Trainees and the standard of care
Interestingly the Courts do not make an allowance for 'trainees' when assess-
ing liability. In 1971 the case of Nettleship v Western (concerning a learner
driver) showed that people who are learning a skill must exercise the same
standard of care as those who are already proficient in that skill.12 A trainee's
'incompetent best' is not good enough. This may seem harsh at first sight, but
on reflection is essential for public confidence.13

This principle of one standard of care regardless of experience has also been
applied to the medical profession. In Jones v Manchester Corporation the Court
of Appeal held that inexperience was no defence when a patient died from an
excessive dose of anaesthetic administered by an inexperienced doctor.14 The
later case of Wilsher v Essex Area Health Authority (1988) confirmed this prin-
ciple;15 a junior doctor working in a special care baby unit put a catheter into
the wrong blood vessel which resulted in excess oxygen and the condition of
retrolental fibroplasia; and the baby subsequently became blind. Defence coun-
sel argued that this was an easy error to make in such a small infant and as the
plaintiff was a junior doctor you could not expect any more. The court rejected
this argument and held that junior doctors are required to adhere to the same
standard of care as those who are more senior. The concept of 'team negli-
gence' was introduced, and it was held everyone working in the unit was ex-
pected to exercise the same professional standard, and to look to a more se-
nior person for advice if necessary. In Wilsher, Lord Browne-Wilkinson also said
that a health authority that fails to provide doctors of sufficient skill and experi-
ence could be held directly liable in negligence to the patient. This is in addi-
tion, of course, to the vicarious liability which a hospital has for the action of its
employees (in this case doctors).

Departure from the Bolam test

There have been limited attempts by the courts to move away from the Bolam
test but almost inevitably appellate (higher) courts have overruled their deci-
sions.

Courts choosing between different bodies of expert medical opinion:

Apart from a limited number of cases the courts have shown themselves to be
reluctant to choose between different bodies of expert medical opinion mindful
of their own lack of medical knowledge unless the opinion of a doctor or group
of doctors was 'Wednesbury unreasonable,' ie a view such as no reasonable
doctor could have held.16 Lord Green's much quoted test, which has become
known as the test for 'Wednesbury unreasonableness' is:

'If a decision...is so unreasonable that no reasonable authority could ever have

come to it, then the court can interfere. That, I think, is quite right; but to prove
a case of that kind would require something overwhelming.'

It would thus seem that little has changed in recent years in medical negli-
gence cases, as the guidance given by the appellate courts is, that if judges
choose between different bodies of expert opinion, it must be on the basis of
Wednesbury unreasonableness, a test which has proved extremely difficult to
satisfy.

Deviations from accepted clinical practice and advances in medical

science:
If complying with accepted clinical practice is good evidence that a doctor has
acted with reasonable care, is departure from accepted practice evidence of
negligence? If deviation from normal clinical practice were to be considered
proof of negligence in all circumstances then clinicians could not pioneer new
techniques or surgical procedures without facing the risk of a negligence action
if something went wrong. In Hunter v Hanley (1955) (a Scottish case which pre-
ceded the Bolam case by two years) Lord Clyde commented that this '...would
be disastrous... for all inducement to progress in medical science would then be
destroyed.'17

In the same case his Lordship gave guidance that there were three require-
ments to establish liability where deviation from normal practice is alleged.

'...First it must be proved that there is a usual and normal practice; secondly it
must be proved that the defendant has not adopted that practice; and thirdly
(and this is of crucial importance) it must be established that the course the
doctor adopted is one that no professional man of ordinary skill would have
taken if he had been acting with ordinary care.'

In Crawford v Charing Cross Hospital the plaintiff developed brachial palsy in an

arm following a blood transfusion.19 At first the defendant was found guilty on
the basis of an article published in the Lancet 6 months previously. The Court
of Appeal overturned this decision, saying it would be too great a burden to ex-
pect a doctor to read every article in medical journals. The courts may be reluc-
tant to convict on the basis of one article, but where a particular risk has been
highlighted on a number of occasions it will be difficult to defend an action
where a practitioner has not taken this into account. This is particularly so with
the advances in recent years in information technology.

Legal precedent and the Bolam test

The House of Lords (1966) does have the power to overrule previous decisions
of its own, if it appears 'right to do so', in the light of changed circumstances.20
The covering document states by clarification:

'An example of a case in which the House of Lords might think it right to depart
from a precedent is where they consider that the earlier decision was influ-
enced by the existence of conditions which no longer prevail, and that in mod-
ern conditions the law ought to be different.'

It was hoped that the House of Lords might have taken the opportunity to
make radical changes to the concept of the Bolam test when they recently con-
sidered a medical negligence case, Bolitho v City and Hackney Health Authority
in a long awaited decision.21 The House of Lords considered two issues in this
appeal case:

• Causation where there is an omission as opposed to an action

• The application of the Bolam test in medical negligence cases.

The case concerned a boy, Patrick Bolitho, who was admitted on 11 January
1984 to St Bartholomew's Hospital suffering from croup. He was subsequently
discharged but re-admitted because of further breathing difficulties. Patrick ex-
perienced further breathing difficulties while in hospital and experienced a car-
diac arrest. Because of a period of about 10 minutes before respiratory and
cardiac functions were re-established, Patrick subsequently died from severe
brain damage. The defence accepted that there had been a breach of duty by
Dr H in not attending Patrick or ensuring that a deputy attended him on her be-
half. What was under consideration was causation. Dr H contended that had
she attended Patrick she would not have intubated him; she stated this was not
necessary as for a young patient the procedure itself carries a certain degree
of mortality and morbidity. The plaintiff's (patient's) expert medical witnesses
contended she should have intubated him, as this would have protected his air-
way and thus saved his life.

The issues to be considered by the House of Lords were: What would Dr H have
done if she had attended Patrick? If the court believed that she would have in-
tubated him then the action for negligence would succeed. If she would not
have intubated Patrick, then the plaintiff's action could only be successful if it
was established that such an action was not 'responsible'.

The House of Lords agreed with the judge at first instance (where the case was
first heard) and the majority verdict in the Court of Appeal, Per Lord Browne-
Wilkinson:

'The two questions which he (the trial judge) had to decide on causation were:
1) What would Dr H have done, or authorised to be done, if she had attended
Patrick? And, 2) if she would not have intubated would that have been negli-
gent? The Bolam test has no relevance to the first of those questions but is
central to the second.'

When Bolitho had been considered in the Court of Appeal, counsel for the plain-
tiff had argued that it was for the courts to decide the appropriate standard of
care and that they should only accept the views of expert medical witnesses if
they were logical. In other words advocating a move away from Bolam. The
House of Lords accepted this argument to a limited extent and stated that a
defendant doctor is not bound to escape liability for his actions merely on the
basis of expert supporting testimony provided by his peers. Per Lord Browne-
Wilkinson:
'The use of these adjectives – responsible, reasonable and respectable – all
show that the court has to be satisfied that the exponents of the body of medi-
cal opinion relied upon can demonstrate that such opinion has a logical basis.
In particular in cases involving as they so often do, the weighing of risks
against benefits, the judge before accepting a body of opinion as being respon-
sible, reasonable or respectable will need to be satisfied that, in forming their
view, the experts had directed their minds to the question of comparative risks
and benefits and had reached a defensible conclusion on the matter.'

Lord Browne-Wilkinson however indicated that cases in which expert witnesses

who are called to testify and assist the courts in coming to a decision will very
rarely provide opinions which do not stand up to logical analysis or are unrea-
sonable. Per Lord Browne-Wilkinson:

'It is only where a judge can be satisfied that the body of expert opinion cannot
be logically supported at all that such opinion will not provide the benchmark
by reference to which the defendant's conduct falls to be assessed.'

Essentially this means that expert medical witnesses must be prepared to de-
fend their evidence and it must be seen by the courts to be reasonable and log-
ical. This is a significant step forward from the Wednesbury unreasonable ap-
proach which was taken by Dillon LJ in the Court of Appeal where expert opin-
ion could only be rejected on the basis that it was so unreasonable that no rea-
sonable expert could have taken such an approach or held such a view.

The House of Lords did not abandon Bolam, but merely qualified its use. It is
unlikely that their judgement will make a significant difference, as it is likely to
be rare for expert medical opinion to be found to be illogical by the courts.
However this decision has confirmed the courts' authority to decide between
expert medical witness testimony and not only on the basis of being 'Wednes-
bury unreasonable.'

Conclusion
This article has looked at the development of a duty of care and the tort of neg-
ligence.

A decision made by a High Court judge McNair J in 1957 has had a dramatic in-
fluence on medical negligence litigation by establishing the Bolam test. Apart
from a limited number of cases which have usually been overturned in the ap-
pellate courts, this has made it very difficult for plaintiff patients to succeed
against defendant doctors. The House of Lords decision in the Bolitho case will
strengthen the courts' ability to choose between expert medical witness testi-
mony provided the will is there. The production of clinical guidelines based on
research and clinical audit could help the courts decide in the future if expert
medical opinion is logical and 'main stream’.
Breach of duty: evaluating the standard of care now expected of medical pro-
fessionals

The legal principles behind breach of duty by medical professionals are well es-
tablished and have developed since the landmark decision in Bolam in 1957.
Senior Associate Hugh Johnson revisits the key cases and asks what develop-
ments in case law mean both for litigation claims and clinical practice.

The Bolam test

The standard of care for professionals is comparison to their professional peers.

The test was formulated in the case of Bolam which, despite dating back to
1957, remains good law. Mr Justice McNair put it simply in his judgment:

“I myself would prefer to put it this way, that he is not guilty of negligence if he
has acted in accordance with a practice accepted as proper by a responsible
body of medical men skilled in that particular art.”

The clinician is judged in accordance with the standards of the reasonably com-
petent professional in their field. The test does not require a ‘gold standard’ to
be attained. Similarly, a foundation year doctor (FY1) would not be held to the
same standard as his supervising consultant. Further, the test allows for differ-
ing views. So long as there is a collective body of doctors that would have pro-
vided the same treatment, it will be acceptable care.

As such, in Bolam, because the treatment provided for the claimant’s mental
health condition was in accordance with the standards of the time for electro-
convulsive therapy (ECT), it was not negligent. This was despite the fact that
he sustained multiple injuries during the treatment, including significant frac-
tures.

The Bolam test has instilled a degree of confidence on the part of the profes-
sional, precisely because it allows a degree of flexibility as to differing medical
views. It considers the treatment provided (not the outcome) and is sufficiently
flexible to take account of the fact that medical treatment is rarely black and
white. With illnesses or symptoms presenting at different times and rates be-
tween patients, it is unsurprising that doctors may differ as to when to observe
and when to surgically intervene, for example.

Establishing a breach of duty is (appropriately) often a hard test to meet. Care

will not be substandard merely because of an adverse outcome. Detailed con-
sideration of the clinical records will be required and an independent specialist
will need to be content not just to be critical, but to opine that no responsible
body of doctors would support the care that was provided. All claimant legal
practitioners will have had difficult conversations with clients to advise that the
treatment provided may not have been good or to a gold standard, but nor was
it so bad as to be indefensible.

Refining the Bolam test

Unsurprisingly, as modern medicine has moved on and as the body of cases
brought before the courts has increased, so the Bolam test has needed to be
modified and subsequent case law has developed. This is, in my view, entirely
right. Ours is not the same society that it was in 1957.

Bolitho v City and Hackney Health Authority (1997) was a House of Lords deci-
sion that led to an important clarification of the Bolam test. The facts of the
case are less important than the judgment. Faced with two conflicting expert
views, the court found both the expert evidence presented by the claimant and
defendant to be reasonable, but the Defendant’s evidence had been preferred.
An important element of the Judgment is Lord Browne-Wilkinson’s comments
on expert evidence that can no longer be supported or which, although sup-
ported, are not logical.

“In cases of diagnosis and treatment there are cases where, despite a body of
professional opinion sanctioning the defendant’s conduct, the defendant can
properly be held liable for negligence… In the vast majority of cases the fact
that distinguished experts in the field are of a particular opinion will demon-
strate the reasonableness of that opinion… But if, in a rare case, it can be
demonstrated that the professional opinion is not capable of withstanding logi-
cal analysis, the judge is entitled to hold that the body of opinion is not reason-
able or responsible.”

Bolitho is an important qualification that goes not just to the standard of care
provided, but the medical experts opining on the care. It will serve to prevent,
for example, a long-retired clinician supporting clinical treatment that the vast
majority of practitioners abandoned a long time ago or particularly extreme
views. Whilst potentially far reaching, a number of clinicians will no doubt also
have welcomed the judgment, which is important if the law is to reflect and
hold healthcare professionals to current and acceptable clinical practice.

Has the patient really agreed to be treated?

Whilst the legal standard for what amounts to an error has remained consis-
tent, albeit subject to refinement, the recent developments in the law have all
related to the provision of information and greater patient autonomy.

Chester v Afshar (2004) caused disquiet when it was determined by the House
of Lords in 2004, because the defendant surgeon had undertaken the surgery
entirely competently. Mr Afshar, performed appropriate surgery to the lumbar
spine but the claimant sustained injury. Cauda Equina Syndrome was a recog-
nised risk of the surgery (approximately a 1-2% risk) but Mr Afshar failed to
warn of it, believing it to be too remote. He was found to be negligent for that
failure to warn, which deprived the claimant the opportunity to make a fully in-
formed decision and/or to seek a second opinion before proceeding.

Whilst there will always be patients who are content to defer entirely to their
healthcare professional, possibly not even wanting to know of all of the risks,
Chester signalled a duty to provide much more information than had perhaps
been provided previously. In simple terms, if the patient is not fully warned of
the risks, how can they weigh up fully whether to go ahead with the proposed
treatment?
At the time, the two significant concerns for clinicians were (i) would any pa-
tient proceed with treatment if aware of all risks, however theoretical, and (ii)
how would they find the time to discuss risk in much further detail in the busy
NHS hospital environment?

The answer to the first of the questions is, of course, that patients who want
and need treatment will make decisions. The second question is undoubtedly a
challenge, but any notion that the duty in Chester related only to a duty to
warn of particularly significant or serious risks, rather than all prospective risks,
was recently addressed by the Supreme Court in what should be regarded as a
further clarification of existing law, rather than a restatement or development
of new law.

Montgomery v Lanarkshire Health Board (2015) concerned the obstetric man-

agement of a diabetic mother. The mother, by reason of her pre-existing medi-
cal condition was at risk of having a larger baby and that, in turn, increased the
risk of a more difficult vaginal delivery and possible shoulder dystocia. That in-
formation was not discussed with the mother, as the doctor in charge of her
care considered that the mother would then request a caesarean section (as in
fact was her evidence). In essence, a paternalistic view was taken as to what
information the patient should have. Unfortunately the delivery was indeed
difficult and the claimant child was born with shoulder dystocia. The Supreme
Court found that there was a failure to warn of the risks and negligence was es-
tablished.

What Montgomery has made clear is that the duty to discuss risk goes beyond
the duty to discuss known risks. That is to say that there may be factors of im-
portance to the patient which, if discussed, would affect their decision making.
It is clear that the process is one which involves a dialogue.. Unless all informa-
tion is given to the patient, the healthcare professional potentially deprives the
patient of key information to make a properly informed decision. For that rea-
son, Lord Kerr specifically noted “whether a risk is material cannot be reduced
to percentages.” Only a patient can decide what is acceptable risk.

Whilst this may appear far reaching, in practice, the judgment is merely in ac-
cordance with GMC consent guidelines that have existed since 2008 and which
specifically caution against making assumptions. In particular, the guidelines
also address the details that must be recorded in the clinical records.

Whilst Montgomery and Chester concerned the process of consent prior to

medical intervention, it is important to note that requirement to provide ade-
quate and complete information extends throughout the care. In December,
judgment was handed down in the case of Gallardo v Imperial College Health-
care (2017). It is the most recent of the clinical cases which have followed
Montgomery. The court had to consider whether there was an obligation to pro-
vide full and complete information after the conclusion of treatment. The
claimant had been in intensive care and was therefore too unwell to discuss
matters pre-operatively. It was found that further information should have been
provided. The Claimant was not adequately advised post-operatively about his
malignant tumour such that his subsequent treatment under other clinicians
was sub-optimal.
Where are we now?

From a medicolegal perspective, the test for breach of duty (ie whether an er-
ror has been made) as set out in the Bolam test remains the same. That will al-
ways require expert evidence. However, standard hospital protocols and the
publication of guidelines (such as those produced by the National Institute of
Clinical Excellence) assist to define clearly what is likely to be regarded as ac-
ceptable practice for lawyers and healthcare professionals alike.

Insofar as there have been developments in the law, particularly with regard to
consent, there has not been an influx of cases where the duty to warn of risks
was the sole failure. However, a failure to provide adequate information to the
patient may be an indicative factor of wider failures of practice.

Although there has been a statutory duty of candour since 2014 to notify the
patient of errors and near-misses, it is not clear that this has had the effect that
was intended. It is still the case that we receive complaints of poor outcomes,
but without the claimant having been advised fully as to why that poor out-
come has arisen or whether an error has been made. Internal investigation re-
ports prepared by hospitals are rarely as searching as they could or should to
be.

With regard to clinical practice, I have argued that Montgomery reflected pre-
existing duties and obligations. Whilst this is true, it has been a wake-up call for
some clinicians as to how much information will need to be provided to their
patients. Merely placing a consent form in the clinical notes is unlikely to be
sufficient if the notes do not adequately reflect the risks of the procedure and
discussion of risk. Nearly three years on, there is at least some evidence that it
has led to changes in clinical practice. The judgment of Mr Justice Green in The-
faut v Johnston (2017) is illustrative:

“Mr Johnston accepted very candidly that he had not given Mrs Thefaut the ad-
vice that he recognised that she deserved. He acknowledged that the advice
given was sub-standard. He also accepted that his general record keeping was
not at the time up to par. Mr Johnston said that in the light of developments in
the law he now adopted a quite different approach.”

Whilst the Claimant was not wholly successful in the Threfaut case, it is clear
that even if expectations have not changed as to standards of care, clear ad-
vice must have been both given and documented. More time will need to be
spent liaising with patients during all stages of the treatment process and when
completing notes.

In time, it seems likely that patients will be better informed and, potentially,
more aware of the inherent risks and uncertainties with their treatment. That
can only be of benefit to both the patient and professional.

Whilst a radical review of the law relating to professional negligence is unlikely,

we can expect the law to continue to develop to reflect both changes in patient
expectations and the delivery of medical care in the future.
Abstract
A patient approaching a doctor expects medical treatment with all the knowl-
edge and skill that the doctor possesses to bring relief to his medical problem.
The relationship takes the shape of a contract retaining the essential elements
of tort. A doctor owes certain duties to his patient and a breach of any of these
duties gives a cause of action for negligence against the doctor. The doctor has
a duty to obtain prior informed consent from the patient before carrying out di-
agnostic tests and therapeutic management. The services of the doctors are
covered under the provisions of the Consumer Protection Act, 1986 and a pa-
tient can seek redressal of grievances from the Consumer Courts. Case laws
are an important source of law in adjudicating various issues of negligence aris-
ing out of medical treatment.

Keywords: Error of judgment, medical negligence, prior informed consent

Go to:
WHAT IS MEDICAL NEGLIGENCE?
The medical profession is considered a noble profession because it helps in
preserving life. We believe life is God given. Thus, a doctor figures in the
scheme of God as he stands to carry out His command. A patient generally ap-
proaches a doctor/hospital based on his/its reputation. Expectations of a pa-
tient are two-fold: doctors and hospitals are expected to provide medical treat-
ment with all the knowledge and skill at their command and secondly they will
not do anything to harm the patient in any manner either because of their neg-
ligence, carelessness, or reckless attitude of their staff. Though a doctor may
not be in a position to save his patient's life at all times, he is expected to use
his special knowledge and skill in the most appropriate manner keeping in
mind the interest of the patient who has entrusted his life to him. Therefore, it
is expected that a doctor carry out necessary investigation or seeks a report
from the patient. Furthermore, unless it is an emergency, he obtains informed
consent of the patient before proceeding with any major treatment, surgical
operation, or even invasive investigation. Failure of a doctor and hospital to
discharge this obligation is essentially a tortious liability. A tort is a civil wrong
(right in rem) as against a contractual obligation (right in personam) – a breach
that attracts judicial intervention by way of awarding damages. Thus, a pa-
tient's right to receive medical attention from doctors and hospitals is essen-
tially a civil right. The relationship takes the shape of a contract to some extent
because of informed consent, payment of fee, and performance of surgery/pro-
viding treatment, etc. while retaining essential elements of tort.

In the case 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
laid down that when a doctor is consulted by a patient, the doctor owes to his
patient certain duties which are: (a) duty of care in deciding whether to under-
take the case, (b) duty of care in deciding what treatment to give, and (c) duty
of care in the administration of that treatment. A breach of any of the above
duties may give a cause of action for negligence and the patient may on that
basis recover damages from his doctor. In the aforementioned case, the apex
court interalia observed that negligence has many manifestations – it may be
active negligence, collateral negligence, comparative negligence, concurrent
negligence, continued negligence, criminal negligence, gross negligence, haz-
ardous negligence, active and passive negligence, willful or reckless negli-
gence, or negligence per se. Black's Law Dictionary defines negligence per se
as “conduct, whether of action or omission, which may be declared and treated
as negligence without any argument or proof as to the particular surrounding
circumstances, either because it is in violation of statute or valid Municipal or-
dinance or because it is so palpably opposed to the dictates of common pru-
dence that it can be said without hesitation or doubt that no careful person
would have been guilty of it. As a general rule, the violation of a public duty,
enjoined by law for the protection of person or property, so constitutes.”

Negligence per se

While deliberating on the absence of basic qualifications of a homeopathic doc-

tor to practice allopathy in Poonam Verma vs. Ashwin Patel and Ors. (1996) 4
SCC 322, the Supreme Court held that a person who does not have knowledge
of a particular system of medicine but practices in that system is a quack.
Where a person is guilty of negligence per se, no further proof is needed.

Duty on the part of a hospital and doctor to obtain prior consent of a patient

There exists a duty to obtain prior consent (with respect to living patients) for
the purpose of diagnosis, treatment, organ transplant, research purposes, dis-
closure of medical records, and teaching and medico-legal purposes. With re-
spect to the dead in regard to pathological post mortem, medico-legal post
mortem, organ transplant (for legal heirs), and for disclosure of medical record,
it is important that informed consent of the patient is obtained. Consent can be
given in the following ways:

• Express Consent: It may be oral or in writing. Though both these cate-

gories of consents are of equal value, written consent can be considered
as superior because of its evidential value.
• Implied Consent: Implied consent may be implied by patient's conduct.
• Tacit Consent: Tacit consent means implied consent understood without
being stated.
• Surrogate consent: This consent is given by family members. Generally,
courts have held that consent of family members with the written ap-
proval of 2 physicians sufficiently protects a patient's interest.
• Advance consent, proxy consent, and presumed consent are also used.
While the term advance consent is the consent given by patient in ad-
vance, proxy consent indicates consent given by an authorized person.
As mentioned earlier, informed consent obtained after explaining all pos-
sible risks and side effects is superior to all 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 apex court held that consent given for diagnostic and operative la-
paroscopy and “laporotomy if needed” does not amount to consent for a total
hysterectomy with bilateral salpingo opherectomy. The appellant was neither a
minor nor mentally challenged or incapacitated. As the patient was a compe-
tent adult, there was no question of someone else giving consent on her be-
half. The appellant was temporarily unconscious under anesthesia, and as
there was no emergency. The respondent should have waited until the appel-
lant regained consciousness and gave proper consent. The question of taking
the patient's mother's consent does not arise in the absence of emergency.
Consent given by her mother is not a valid or real consent. The question was
not about the correctness of the decision to remove reproductive organs but
failure to obtain consent for removal of the reproductive organs as perfor-
mance of surgery without taking consent amounts to an unauthorized invasion
and interference with the appellant's body. The respondent was denied the en-
tire fee charged for the surgery and was directed to pay Rs. 25000/- as com-
pensation for the unauthorized surgery.

Coverage of doctors and hospitals under CPA

In the case of the Indian Medical Association vs. V.P. Shanta and Ors., III (1995)
CPJ 1 (SC), the Supreme Court finally decided on the issue of coverage of medi-
cal profession within the ambit of the Consumer Protection Act, 1986 so that all
ambiguity on the subject was cleared. With this epoch making decision, doctors
and hospitals became aware of the fact that as long as they have paid patients,
all patients are consumers even if treatment is given free of charge. While the
above mentioned apex court decision recognizes that a small percentage of pa-
tients may not respond to treatment, medical literature speaks of such failures
despite all the proper care and proper treatment given by doctors and hospi-
tals. Failure of family planning operations is a classic example. The apex court
does not favor saddling medical men with ex gratia awards. Similarly, a in a
few landmark decisions of the National Commission dealing with hospital
death, the National Commission has recognized the possibility of hospital death
despite there being no negligence.

Go to:
WHERE COMPENSATION WAS AWARDED
In this context, it may be recalled that in the case of the State of Haryana and
Ors v. Smt. Santra, I (2000) CPJ 53 (SC) (by S. Saghir Ahmad and D.P.Wadhwa,
JJ.), the Supreme Court in a Special Leave Petition upheld the claim for compen-
sation where incomplete sterilization (family planning operation) was held to be
defective in service. Smt Santra underwent a family planning operation related
only to the right fallopian tube and the left fallopian tube was not touched,
which indicates that complete sterilization operation was not performed. A poor
laborer woman, who already had many children and had opted for sterilization,
became pregnant and ultimately gave birth to a female child in spite of a steril-
ization operation that had obviously failed.
Claim for damages was based on the principle that if a person has committed
civil wrong, he must pay compensation by way of damages to the person
wronged. The apex court held: “Maintenance” would obviously include provi-
sion for food, clothing, residence, education of the children and medical atten-
dance or treatment. The obligation to maintain besides being statutory in na-
ture is also personal in the sense that it arises from the very existence of the
relationship between a parent and the child. Claim for damages, on the con-
trary, is based on the principle that if a person has committed civil wrong, he
must pay compensation by way of damages to the person wronged.

While elaborating on medical negligence, the apex court observed as follows

(abridged): Negligence is a ‘tort’. Every doctor who enters into the medical pro-
fession has a duty to act with a reasonable degree of care and skill. This is
what is known as ‘implied undertaking’ by a member of the medical profession
that he would use a fair, reasonable and competent degree of skill. In the case
of Bolam V. Friern Hospital Management Committee, (1957) 2 All ER 118, Mc-
Nair, J. summed up the law as the following:

“The test is the standard of the ordinary skilled man exercising and professing
to have that special skill. A man need not possess the highest expert skill: It is
well established law that it is sufficient if he exercises the ordinary skill of an
ordinary competent man exercising that particular art. In the case of a medical
man, negligence means failure to act in accordance with the standards of rea-
sonably competent medical men at the time. There may be one or more per-
fectly proper standards, and if he confirms with one of these proper standards,
then he is not negligent.”

In the case of Spring Meadows Hospital and Anr. v Harjol Ahluwalia, 1998 4 SCC
39, a compensation of Rs. 5 lacs was awarded because of mental anguish
caused to the parents of a child who became totally incapacitated for life in ad-
dition to a compensation of Rs. 12 lacs approx. awarded to the child. While the
amount of Rs. 12 lacs was to be paid by insurer, the balance amount was to be
paid by the hospital. Though the insurance company took a stand since the
nurse who administered the adult dose of inj. Lariago to the child was not quali-
fied, the apex court did not go into this issue while adjudicating negligence re-
lated proceeding. Therefore, it is important to keep in mind that doctors and
hospitals should not only obtain a Professional Indemnity Insurance Policy, but
also take care that nurses and other hospitals staff engaged by it are qualified.

Go to:
MEDICAL ETHICS AND THE TREATMENT OF ACCIDENT VICTIMS
In the case of Pravat Kumar Mukherjee vs. Ruby General Hospital and Ors,
II(2005)CPJ35(NC), the National Commission delivered a landmark decision con-
cerning treatment of an accident victim by the hospital. The brief facts of the
case are as follows: the complainants are the parents of the deceased boy.
They approached the National Commission for compensation and adequate re-
lief. The case involves the unfortunate death of a young boy, Shri Sumanta
Mukherjee, a student of second year B. Tech., Electrical Engineering. At Netaji
Subhash Chandra Bose Engineering College on January 14, 2001 a bus from
Calcutta Tramway Corporation crashed with the motorcycle driven by the de-
ceased. Sumanta was conscious after the accident and was taken to the hospi-
tal about 1 km from the site of the accident. He was insured for Rs. 65,000/-
under a Mediclaim Policy issued by the New India Assurance Co. Ltd. When he
reached the hospital, the deceased was conscious and showed the Mediclaim
certificate he was carrying in his wallet. He also assured that charges for treat-
ment would be paid and treatment should be started. Acting on this promise,
the hospital started treatment in its emergency room by giving moist oxygen,
starting suction, and by administering injection Driphylline, Injection Lycotinx,
and titanous toxoid. The respondents demanded an immediate payment of Rs.
15000/- and discontinued treatment as the amount was not deposited immedi-
ately though an assurance to pay the amount was made by the accompanying
persons from the general public. Actually, the crowd collected Rs. 2000/- and
the amount with the motorcycle of the patient and insurance receipt was of-
fered. As the hospital was adamant and discontinued treatment after giving
treatment for 45 minutes, the people from the crowd present were forced to
take the patient to National Calcutta Medical College, which is about 7-8 km
from the current hospital. The patient died on the way and was declared dead
upon arrival at the National Calcutta Medical College.

The National Commission allowed the complaint and the Opponent Ruby Hospi-
tal was directed to pay Rs. 10 lakhs to the Complainant for mental pain agony.
The Commission observed as follows: “This may serve the purpose of bringing
about a qualitative change in the attitude of the hospitals of providing service
to human beings as human beings. A human touch is necessary; that is their
code of conduct; that is their duty and that is what is required to be imple-
mented. In emergency or critical cases, let them discharge their duty/social
obligation of rendering service without waiting for fee or for consent”. How-
ever, it remains to be seen whether the above award has brought in any attitu-
dinal change in the medical fraternity.

An award was given on the following basis/grounds. While dealing with the con-
tention that ‘no consideration paid’, ‘deceased or complainant not consumer’
National Commission observed as follows (abridged): “Not acceptable. Persons
belonging to the poor class who are provided service free of charge are benefi-
ciaries of service which is hired or availed of by the paying class. The status of
an emergency or critically ill patient would be the same as people belonging to
the poor class since both are not in a position to pay. Free services would also
be services and the recipient would be the consumer under the Act. Since doc-
tors started treatment on the deceased due to an emergency, that itself is
availing of services, may it be free of cost or promised deferred payment. Ex-
pert evidence pointed out that discontinuance of treatment hastened the death
of the patient, which itself is deficiency in service. Serious negligence and lax-
ity on the part of the hospital by refusing admission and treatment facility to
the youth who was almost in dying condition, defying all medical ethics and a
gross violation of the Clinical Establishment rules and Act of 1950 as amended
in 1998. How was a patient who was advised admission at ITU was allowed to
leave the hospital for treatment elsewhere without signing any document or
risk bond not shown? Withdrawal of treatment can not be justified on any
ground. Deficiency is writ large.

Secondly, while dealing with the contention that there was no consent for treat-
ment, the National Commission observed as follows (abridged): “Since emer-
gency treatment is required to be given to a patient who was brought in seri-
ously injured condition there was no question of waiting for consent. Consent is
implicit in such cases. On the contrary, a surgeon who fails to perform an emer-
gency operation must prove that the patient refused to undergo an operation
not only at the initial stage but even after he was informed about the danger-
ous consequences of not undergoing the operation. Waiting for consent of a pa-
tient or a passer-by who brought the patient to the hospital is nothing but ab-
surd and is apparent failure of duty on the part of doctor. Deficiency in service
was proved and compensation was granted.

Maintainability of a consumer case when a Motor Accident Claims Tribunal

(MACT) case is pending: The National Commission held that the MACT case is
no bar to complaint under CP Act. Two causes are different and required to be
decided by separate tribunals/forums. While the cause of action before MACT
was rash and negligent driving, due to which the accident was caused, the
cause of action against doctors and hospitals is for deficiency in rendering ser-
vice – emergency treatment by the doctors or the hospital. Since both causes
are separate and distinct, complaint is maintainable.

Go to:
THE IMPORTANCE OF CASE LAW
Jurisprudential principle of ‘stare decisis’ is based on a Latin phrase meaning to
stand by decided cases; to uphold precedents; to maintain the positions laid
down by higher courts earlier. One of the important characteristics of a good
law is that the law should be definite, lucid, and unambiguous with the flexibil-
ity to relate to different situations, facts, and circumstances and that justice is
done in accordance with law. Latin maxim ‘Stare decisis, et non quieta movere’
means it is best to adhere to decisions and not to disturb questions put at rest.
The objective is to avoid confusion in the minds of the citizens as to what the
law of the land is. As laid down in u.a 141 of the constitution of India, the law
declared by the Supreme Court is binding in all courts. Furthermore, the Consti-
tution of India provides that both the Supreme Court and High Courts of States
are the courts of records. So far as the case law laid down by the National Com-
mission and State Commission is concerned, they are followed by lower fora as
a binding precedent though no specific provision has been made in the Con-
sumer Protection Act, 1986. It is generally accepted that when a point of law is
settled by a decision of a superior authority, it is not to be departed from.
Change of a judge shall not affect the settled legal position. A new judge is not
supposed to pronounce a new law but is expected to maintain and expound the
old one. While this appears to restrict the elbow room of new judges to inter-
pret the law when there is a settled legal position laid down by his predecessor,
this restriction is substantially lifted when the law undergoes amendment.
There is considerable criticism that Consumer Fora have not scrupulously fol-
lowed the principle laid down by superior fora, that is State Commissions of the
state and the National Commission and also that even superior fora have often
not maintained settled positions laid down by their predecessors. The decisions
of the National Commission and State Commissions are reported. However,
there may not be uniformity with all such decisions. Furthermore, there may be
conflicting decisions of various State Commissions and National Commissions.
Consequently, while some legal experts have called for express provision to
that effect, others feel that the principle being followed in respect of the
Supreme Court and High Courts (since an appeal to Supreme Court is provided,
High Courts are generally not expected to entertain consumer related writs
though there is no such bar in the Act) may be generally followed even in re-
spect of the decisions of State and National Commission subject to the inter-
pretations if any of High Courts and the final legal position as laid down by
Supreme Court.

Clear case of medical negligence (similar to res ipsa loquitor?)

An appellant doctor was found by the State Commission to be responsible for

leaving ribbon gauze in the right side of the nose after a septoplasty resulting
in several complications. The complainant suffered and had to be under treat-
ment all the while the National Commission confirmed the order and observed
that it has no option but to deduce that it was a clear case of medical negli-
gence on the part of the appellant. The National Commission in the case of Dr.
Ravishankar vs. Jery K. Thomas and Anr, II (2006) CPJ 138 (NC) held that based
on the facts and circumstances, the obvious deduction is that the appellant
doctor is responsible for leaving behind ribbon gauze resulting in complica-
tions. Medical negligence was proved.

The brief facts of the case are as follows. The complainant was having some
nasal and breathing problems. He approached the appellant doctor who upon
examination advised a septoplasty, which was carried out on August 18, 1999
in second Respondent's hospital. It is the case of the complainant that after the
operation, the pain aggravated and the breathing problem persisted. After ex-
amination, the complainant was advised to take some antibiotics for major
nasal infection. Despite taking these medicines, the complainant was not get-
ting any relief so he was taken to St. John's Hospital. A computed tomography
(CT) scan showed that there was a deposit inside the nasal cavity for which an
endoscopy was performed at St. John's hospital. Cotton gauze was removed
from the nasal section on November 28, 2000. It was in these circumstances al-
leging medical negligence on the part of appellant and second respondent a
complaint was filed before the State Commission. After hearing perusal of evi-
dence and other material on record, the State Commission held the second re-
spondent guilty of medical negligence and directed him to pay a compensation
of Rs. 1 lac with interest @ 6% p.a from the date of complaint along with the
cost of Rs. 5000/-. Aggrieved by this order, the Appellant doctor filed this ap-
peal.

Held: heard the counsel for the appellant. As held by the State Commission, it
is neither the surgery nor the procedure adopted that is under challenge. What
is being challenged is the leaving behind of cotton gauze after surgery and the
non removal of it by the appellant doctor. After going through the record main-
tained at St. John's hospital, Dr. Balasubramanium opined that after the CT
scan a soft tissue mass (gauze piece) was found retained in the right nasal cav-
ity that was removed under local anesthesia.

Go to:
CONCLUSION
In these circumstances, deduction is obvious that it was the appellant who was
responsible for leaving behind ribbon gauze in the right side of the nose after
the septoplasty performed by him on August 18, 1999 resulting in several com-
plications. Because of this, the complainant suffered and had to be under treat-
ment leaving us with no option but to deduce that it was a clear case of medi-
cal negligence on the part of the appellant.

Go to:
MEDICO LEGAL – SOME IMPORTANT ISSUES
The death of a patient while undergoing treatment does not amount to medical
negligence.

In the case of Dr. Ganesh Prasad and Anr. V. Lal Janamajay Nath Shahdeo, I
(2006) CPJ 117 (NC), the National Commission (Order: Per Mrs. Rajalaxmi Rao,
Member) reiterated the principle that where proper treatment is given, death
occurring due to process of disease and its complication, it can not be held that
doctors and hospitals are negligent and orders of lower fora do not uphold the
claim and award a compensation. In this case, a 4 ½ year old child suffering
from cerebral malaria was admitted to the hospital. A life-saving injection was
given. As opined by the child specialist, doses were safe and the treatment was
proper. Though the death of the child is unfortunate, it can not be said that
there was negligence on the part of the doctor.

The opinion based on teachings of one school of thought may not amount to
medical negligence when there are two responsible schools of thought. Obser-
vations of the National Commission in the case of Dr. Subramanyam and Anr.
vs. Dr. B. Krishna Rao and Anr., II (1996) CPJ 233 (NC) on the question of medi-
cal negligence are most illuminating as it involved a complaint by a well-quali-
fied doctor against a fellow professional who treated his wife for an endoscopic
sclerotherapy. It is relevant to note that in this case the complainant doctor al-
leged that the moment the patient was admitted to the Nursing Home, there
was total mismanagement to the extent of virtually throwing her into the jaws
of death solely because of negligence and improper rather wrong treatment
given to her by the first opposite party, Dr. Rao. The complainants submitted
that the slipshod, callous, and negligent way in which the patient was treated
led to her death. Hon'ble Commission observed as follows: “The principles re-
garding medical negligence are well settled. A doctor can be held guilty of
medical negligence only when he falls short of the standard of reasonable med-
ical care. A doctor can not be found negligent merely because in a matter of
opinion he made an error of judgment. It is also well settled that when there
are genuinely two responsible schools of thought about management of a clini-
cal situation the court could do no greater disservice to the community or ad-
vancement of medical science than to place the hallmark of legality upon one
form of treatment.”

Error of judgment in diagnosis or failure to cure a disease does not necessarily

mean medical negligence. In the case of Dr. Kunal Saha vs. Dr. Sukumar
Mukherjee and Ors. III (2006) CPJ 142 (NC), the National Commission (per Mr.
Justice M. B. Shah, President) considered the question of whether the Opponent
doctors and hospital acted negligently in diagnosis of the disease suffered by
the patient (wife of complainant doctor), administration of medicine (it was al-
leged that an overdose of steroids was prescribed), provision of facilities in hos-
pital (absence of burn unit in hospital was alleged). A compensation of Rs.
77,76,73,500/- was claimed. The National Commission held that an error in
medical diagnosis does not amount to deficiency in service. The National Com-
mission further observed that the deceased (wife of Complainant) suffered
from TEN (Toxic Epidermal Necrolysis), which is a rare disease and the mortal-
ity rate varies from 25% to 70% as per medical literature. The Commission also
observed that considering the facts and circumstances of this case, the doctor
can not be held liable for want of an exact diagnosis.

Role of expert opinion: in the case of Sethuraman Subramniam Iyer vs. Triveni
Nursing Home and Anr. I (1998) CPJ 110 (NC), the National Commission dis-
missed the complaint holding that there was no expert evidence on behalf of
the complainant. Similarly, in ABGP vs. Jog Hospital, the complaint was held to
be not maintainable. In Farangi lal Mutneja vs. Shri Guru Harkishan Sahib Eye
Hospital Sahana and Anr., IV (2006) CPJ 96, Union Territory Commission,
Chandigarh dismissed the claim based on medical negligence with following
observation: “The O.P. conducted an eye operation upon the complainant. The
cornea was damaged subsequently, and visibility was lost. The complainant al-
leged that proper dilation of an eye was not done before conducting the
cataract operation. Also it was alleged that the operation was done in a hurried
manner. The Medical Council of India, after obtaining the expert opinion of two
well known institutions, came to the conclusion that standard treatment proto-
col was followed and optimal procedures were carried out. Thus there was no
negligence on the part of the O.P.”

Medical Literature: In the case of P. Venkata Lakshmi vs. Dr. Y. Savita Devi, II
(2004) CPJ 14 (NC), the National Commission held that the State Commission
ought to have considered the medical literature filed by the complainant and
the State Commission had dismissed the complaint on the grounds that there
was no expert evidence and remanded the matter.

Quantum of compensation: With regard to the quantum of compensation

payable to an injured patient, the Supreme Court observed in the case of IMA
vs. V.P. Shanta and Ors. III (1995) CPJ I (SC), as follows: “A patient who has
been injured by an act of medical negligence has suffered in a way which is
recognized by the law – and by the public at large as deserving compensation.
This loss may be continuing and what may seem like an unduly large award
may be little more than that sum which is required to compensate him for such
matters as loss of future earnings and the future cost of medical or nursing
care. To deny a legitimate claim or to restrict arbitrarily the size of an award
would amount to substantial injustice. After all, there is no difference in legal
theory between the plaintiff injured through medical negligence and the plain-
tiff injured in an industrial or motor accident.”

Engaging a specialist when available is obligatory. In the case of Prashanth S.

Dhananka vs. Nizam Institute of Medical Science and Ors (1999) CPJ43 (NC),
the National Commission deliberated on important issues such as what consti-
tutes medical negligence, the duty of a hospital to engage a specialist when a
specialist is available, vicarious liability of a hospital for omissions and commis-
sions of doctors and staff, and compensation for mental and physical torture.

The National Commission on the question of whether compensation has to be

awarded when doctors decide not to operate and the patient later dies. In the
case of Narasimha Reddy and Ors. Vs. Rohini Hospital and Anr. I (2006) CPJ144
(NC), the National Commission held that when a patient could not be operated
due to a critical condition, the doctor can not be held guilty of negligence if the
proper course of practice is adopted and reasonable care is taken in adminis-
tration of treatment. Consequently the Revision petition filed by the com-
plainant was dismissed.

When a patient does not give a proper medical history, the doctor can not be
blamed for the consequences. In the case of S. Tiwari vs. Dr. Pranav 1(1996)
CPJ 301 (NC), it was alleged that a tooth was extracted without a proper test.
When bleeding continued, the doctor administered a pain killer. Though the pa-
tient had a blood pressure of 130/90, he did not give the doctor his proper
medical history. The National Commission upheld the findings of the State
Commission and dismissed the complaint on the ground that the patient did
not give a correct case history and follow-up when required.

Hospital is vicariously liable for any wrong claiming on the part of consultants.
In the case of Ms Neha Kumari and Anr. V Apollo Hospital and Ors. 1 (2003) CPJ
145 (NC), the National Commission held that alleged medical negligence is not
proved as the complainant suffered from complex birth defects of the spine
and whole body as evidenced by a pre-operative CT scan. Two complaints were
filed claiming a compensation of Rs. 26,90,000 alleging that while performing
an operation (surgery) on the spinal canal, a rod was fitted inappropriately at
the wrong level that resulted in the non functioning of the lower limbs. The
Hon'ble commission held as follows:

“We do not find it is a case of medical negligence as alleged. Complaints have

not denied that Neha Kumari was suffering from ailments from the very birth
and that she was operated upon when she was only four years of age. On de-
tailed investigations Neha Kumari was found to have multiple congenital com-
plicated problems in Kiphoscoliotic deformity with weakness and wasting right
upper limbs and (i) complex Khyphoscoliotic deformity of the mid dorsal spine
with hemivertibrae of the D and D6 spinal levels and spinal bifida of the D and
D7 vertebrae….Further filing of the appeal was delayed and no sufficient cause
was shown to the satisfaction of Commission.

However, on the question of vicarious liability of the hospital for negligence on

the part of the consultants, the Hon'ble Commission relying on the judgment in
Basant Seth V Regency Hospital O P No.99 of 1994 rejected the contention of
the hospital and held that the hospital is vicariously liable for any wrong claim-
ing on the part of consultants.

Award of ex-gratia compensation against doctors and hospitals is not proper.

The decision of the Supreme Court in the State of Punjab vs. Shiv Ram and
Ors., IV (2005) CPJ 14 (SC) on a complaint alleging an unsuccessful family plan-
ning operation due to negligence of the doctor can be said to be an important
milestone for many reasons. Firstly, the Supreme Court held that medical men
and hospitals should not be saddled with damages unless they are found negli-
gent. The apex court felt that awarding ex gratia compensation against doctors
and hospitals without any findings on negligence is not proper. The court fur-
ther held that there is a need for developing a welfare fund or insurance
scheme. Failure of sterilization performed successfully is attributable to causes
other than medical negligence and that the state government should think of
devising and making provisions for a welfare fund or collaborating with insur-
ance companies.

This judgment makes very pragmatic observations in the midst of several ver-
dicts against medical professionals and hospitals especially when an award is
made based on sympathetic considerations. It is heartening to note that the
apex court looks at the issues relating to the medical profession and medical
negligence in a holistic manner and with utmost consideration.

In a full bench decision dated August 25, 2005, Mr. Justice R.C. Lahoti, former
C.J.I observed as follows: “Medical profession is one of the oldest professions of
the world and is the most humanitarian one. There is no better service than to
serve the suffering, wounded, and the sick. Inherent in the concept of any pro-
fession is a code of conduct, containing the basic ethics that underline the
moral values that govern the professional practice and is aimed at upholding
its dignity. Medical ethics underlines the values at the heart of the practitioner-
client relationship. In the recent times, professionals are developing a tendency
to forget that the self regulation which is at the heart of their profession is a
privilege and not a right and the profession obtains this privilege in return for
an implicit contract with society to provide good, competent and accountable
service to the public. It must always be kept in mind that a doctor is a noble
profession and the aim must be to serve humanity, otherwise the dignified pro-
fession will lose its true worth.”
The apex court further held that merely because a woman having undergone a
sterilization operation became pregnant and delivered a child, the operating
surgeon or his employer can not be held liable for payment of compensation on
account of unwanted pregnancy or child. A claim in tort is sustainable only if
there was negligence on the part of surgeon in performance of a surgery or the
surgeon assured 100% exclusion of pregnancy after surgery. Proof of negli-
gence will have to satisfy Bolam's test. Cause of failure of the sterilization oper-
ation may be obtained from laparoscopic inspection of the uterine tubes, by an
X-ray examination, or by a pathological examination of the material removed
at a subsequent operation of re-sterilization. The cause of action in the failed
sterilization operation arises on account of negligence of the surgeon and not
on account of child birth-failure due to natural causes.

The apex court reaffirmed the above observations in the State of Haryana and
Ors. vs. Raj Rani IV (2005) CPJ28 (SC) and held as follows: “Doctors can be held
liable only in cases where failure of operation is attributable to his negligence
and not otherwise. Medical negligence recognized percentage of failure of ster-
ilization operation due to natural causes depending on techniques chosen for
performing surgery. The pregnancy can be for reasons de hors any negligence
of the surgeon. A fallopian tube that is cut and sealed may reunite and the
woman may conceive though a surgery is performed. Neither can the surgeons
can be held liable to pay compensation nor can the state be held vicariously li-
able in such cases. However, payment made by the state will be held as ex gra-
tia payment and the money paid to the poor will not be recovered.”

Medical Negligence Laws In India

By Sanjay.kk | Views 30902
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Medical negligence refers to a breach of duty of care by a medical practitioner or health-
care provider, which results in harm, injury, or death of a patient. In India, medical negli-
gence laws have been put in place to ensure that patients receive adequate care and com-
pensation for any harm caused by medical professionals.

In India, medical negligence cases are typically brought as civil suits for damages in the
appropriate court. In some cases, criminal charges may also be brought against the
healthcare professional if their negligence resulted in the death of a patient.

The law in India recognizes the right of patients to receive medical care that is of a reason-
able standard, and healthcare professionals have a legal duty to provide this standard of
care. When a healthcare professional fails to meet this duty of care, and a patient is
harmed as a result, the patient may have a right to compensation for their injuries.

The legal framework for medical negligence in India is primarily based on tort law. The In-
dian courts have developed the principle of "reasonable care" as the standard for medical
practitioners to adhere to when providing medical treatment to patients. This principle im-
plies that a medical practitioner must exercise a reasonable degree of skill and care while
treating a patient. Failure to do so may result in legal action against the practitioner for
medical negligence.

The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations,
2002, also provide guidelines for medical professionals to follow. These guidelines outline
the duties and responsibilities of medical practitioners, including the need to obtain in-
formed consent from patients, maintain medical records, and adhere to medical ethics.

In India, patients can seek legal recourse for medical negligence by filing a complaint with
the relevant state medical council, consumer court, or civil court. The complaint must pro-
vide details of the medical negligence, including the nature of the harm caused, the medi-
cal practitioner's breach of duty, and the damages suffered by the patient.

It is important to note that not all medical outcomes that are unfavorable are necessarily
the result of medical negligence. Medical treatment is not an exact science, and there can
be many factors that contribute to an adverse outcome. In order to establish medical negli-
gence, it must be shown that the healthcare professional breached their duty of care by
failing to provide treatment that met the required standard.

The compensation awarded to patients in cases of medical negligence in India can vary
depending on the severity of the harm caused. The compensation may cover medical ex-
penses, loss of income, and other damages suffered by the patient.

Meaning Of Medical Negligence

Medical negligence, also known as medical malpractice, is a legal concept that refers to
the failure of a healthcare professional to provide a standard of care that meets the re-
quired level of competence and skill. This failure can lead to harm or injury to the patient,
and can occur through an act of omission or commission by the healthcare professional.

It is important to note that not all adverse outcomes in medical treatment are necessarily
the result of medical negligence. Medical treatment is not an exact science, and there can
be many factors that contribute to an unfavorable outcome. In order to establish medical
negligence, it must be shown that the healthcare professional breached their duty of care
by failing to provide treatment that met the required standard.

Medical negligence is a serious issue that can have significant consequences for patients,
and it is important for healthcare professionals to provide care that meets the expected
standard of care to avoid such situations. When medical negligence occurs, patients have
the right to seek legal redress and compensation for their injuries.

Medical negligence is a serious issue that can have devastating consequences for patients
and their families. Patients who believe they have been harmed by medical negligence
should seek legal advice to understand their rights and options for seeking compensation.

Examples of medical negligence may include misdiagnosis, incorrect treatment or medica-

tion, surgical errors, failure to obtain informed consent, and inadequate follow-up care.
Medical negligence can result in a wide range of injuries or harm to the patient, including
physical, emotional, and financial damages.

Types Of Medical Negligence

There are several types of medical negligence that can occur in the healthcare industry.

Here are some of the most common types:

1. Misdiagnosis:
When a healthcare professional fails to properly diagnose a patient's medical condi-
tion, or provides a diagnosis that is incorrect or delayed, this can lead to harm or in-
jury to the patient.

2. Surgical Errors:
These can include errors in administering anesthesia, performing surgery on the
wrong body part, leaving surgical instruments inside the patient's body, and other
similar errors.

3. Medication Errors:
These can include prescribing the wrong medication or dosage, failing to account
for potential drug interactions, or administering medication incorrectly.

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:

After a medical procedure or treatment, healthcare professionals have a duty to
monitor the patient's condition and provide appropriate follow-up care. Failure to do
so can result in harm or injury to the patient.

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:
Anesthesia 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 proce-
dure.

It's important to note that each case is unique, and the specific circumstances surrounding
the medical negligence will determine the appropriate legal action that can be taken

Essentials Of Medical Negligence

To establish medical negligence, certain essential elements must be proven. These essen-
tials 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 pro-
vide 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 profes-
sional's breach of duty. This harm or injury can be physical, emotional, or financial.

It is important to note that in order to establish medical negligence, all four of these ele-
ments must be proven. The burden of proof lies with the patient or their legal representa-
tive to demonstrate that the healthcare professional breached their duty of care and that
this breach caused harm or injury to the patient.

It is important to note that the standard of care expected of healthcare professionals may
vary depending on factors such as the patient's medical history, age, and other individual
circumstances. In addition, not all unfavorable outcomes in medical treatment are neces-
sarily the result of medical negligence. It is only when the above-mentioned essentials are
satisfied that medical negligence can be established.

If all of these elements are present, the patient may be entitled to compensation for their
damages, including medical expenses, lost income, pain and suffering, and other related
expenses.

Challenges Faced By Victims In Medical Negligence In India

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

Some of the key challenges include:

• Lack of awareness: Many people in India are not aware of their rights in cases of
medical negligence, and may not know how to take legal action.
• High cost of legal proceedings: Legal proceedings can be expensive in India, and
victims may struggle to afford the cost of legal representation and court fees.
• Lengthy legal process: The legal process for medical negligence cases in India can
be lengthy, which can be emotionally and financially draining for victims.
• Limited access to medical records: Victims may have difficulty obtaining medical
records, which are crucial for proving medical negligence.
• Insufficient evidence: Proving medical negligence can be challenging, and victims
may struggle to gather sufficient evidence to support their case.
• Lack of support: Victims may feel isolated and unsupported, as there is often limited
emotional or social support available for those who have suffered from medical neg-
ligence.
• Influence of medical professionals: Healthcare professionals may have significant
influence and power, which can make it difficult for victims to pursue legal action
against them.
These challenges can make it difficult for victims of medical negligence in India to seek
justice and compensation for their injuries. It is important for victims to seek legal advice as
soon as possible and to work with experienced legal professionals who can help them nav-
igate the legal process and overcome these challenges.

Res Ipsa Loquitur Legal Maxim In Medical Negligence

"Res ipsa loquitur" is a legal maxim that is often invoked in medical negligence cases to
establish a presumption of negligence. The phrase is Latin for "the thing speaks for itself."

In the context of medical negligence, "res ipsa loquitur" means that the circumstances sur-
rounding the injury or harm suffered by the patient are such that they would not have oc-
curred without negligence on the part of the healthcare professional. In other words, the in-
jury or harm is such that it suggests that the healthcare professional was negligent, and
the burden of proof shifts to the healthcare professional to prove that they were not negli-
gent.

To establish "res ipsa loquitur" in a medical negligence case, the following conditions must
be met:
1. The injury or harm must be of a kind that does not ordinarily occur in the absence of
negligence;
2. The injury or harm must have been caused by an instrumentality within the exclu-
sive control of the healthcare professional; and
3. The injury or harm must not have been caused or contributed to by any action or
fault on the part of the patient.
If these conditions are met, the plaintiff can rely on the principle of "res ipsa loquitur" to es-
tablish a presumption of negligence on the part of the healthcare professional, and shift
the burden of proof to the defendant to prove that they were not negligent.

It's important to note that the principle of "res ipsa loquitur" is not applicable in all medical
negligence cases, and each case must be evaluated on its own merits. Additionally, even
if "res ipsa loquitur" is established, the plaintiff must still prove all other elements of medi-
cal negligence, including duty of care, breach of duty, causation, and damages.

For example, if a surgical patient suffered from a foreign object being left inside their body
after surgery, res ipsa loquitur may be applied, as this type of harm would not ordinarily oc-
cur in the absence of negligence, and the facts suggest that the healthcare professional
was responsible for leaving the object inside the patient's body.

In such cases, the burden of proof shifts to the healthcare professional, who must prove
that they were not negligent. This means that the patient does not need to prove that the
healthcare professional breached their duty of care, but rather that the harm suffered sug-
gests that negligence occurred.

Case Laws Related to Legal Maxim In India

There are several case laws in India where the principle of res ipsa loquitur has been ap-
plied in cases of medical negligence. Here are some examples:
1. Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole (1969)[i]:
In this landmark case, the Supreme Court of India held that the principle of res ipsa
loquitur could be applied in medical negligence cases when the facts and circum-
stances of the case suggested that negligence had occurred, and when the burden
 of proving negligence was on the defendant.

2. Spring Meadows Hospital and Anr. v. Harjol Ahluwalia (1998):[ii]

In this case, the National Consumer Disputes Redressal Commission (NCDRC) ap-
plied the principle of res ipsa loquitur to a case where a surgical patient suffered
from an injury to their urethra during surgery. The NCDRC held that the injury was
of a type that would not ordinarily occur in the absence of negligence, and that the
burden of proof was on the hospital to prove that they were not negligent.

3. Poonam Verma v. Ashwin Patel and Ors. (1996)[iii]:

In this case, the Supreme Court of India applied the principle of res ipsa loquitur to
a case where a surgical patient suffered from a facial nerve injury during surgery.
The court held that the injury was of a type that would not ordinarily occur in the ab-
sence of negligence, and that the burden of proof was on the defendant to prove
that they were not negligent.

4. Jacob Mathew v. State of Punjab (2005):[iv]

In this case, the Supreme Court held that res ipsa loquitur could be applied in medi-
cal negligence cases where the injury was of a type that would not ordinarily occur
in the absence of negligence, and where the facts surrounding the injury suggested
that the healthcare professional was responsible.
These cases demonstrate that the principle of res ipsa loquitur has been recognized and
applied in Indian courts in cases of medical negligence, where the facts suggest that the
healthcare professional was responsible for the harm suffered by the patient. However, it
is important to note that the application of this principle will depend on the specific facts
and circumstances of each case.

Adjudication Liability In Medical Negligence In India

Adjudication of liability in cases of medical negligence in India is generally done through

the legal system, with cases being heard in civil courts, consumer forums, and medical
councils. The process for adjudicating liability may vary depending on the type and sever-
ity of the alleged negligence, as well as the specific forum in which the case is being
heard.
• In civil courts, victims of medical negligence can file a civil suit seeking compensa-
tion for damages caused by the negligence. The burden of proof is on the victim to
establish that the healthcare professional breached their duty of care, and that this
breach caused the harm suffered by the patient.

• In consumer forums, patients or their family members can file a complaint against
the healthcare professional or hospital, seeking compensation for any loss or harm
suffered as a result of medical negligence. The forum will investigate the complaint
and, if it finds that medical negligence has occurred, it may order compensation to
be paid to the victim.

• In addition to civil courts and consumer forums, medical councils in India are re-
sponsible for regulating the conduct of healthcare professionals. Patients can file
complaints with medical councils if they believe that a healthcare professional has
breached their ethical obligations or standards of care. If the council finds that the
healthcare professional has acted negligently, it may take disciplinary action against
them, including revoking their license to practice medicine.
Related Provisions For Medical Negligence In India
In India, medical negligence cases are governed by the Indian Penal Code, 1860, the Con-
sumer Protection Act, 1986, and various judgments by the Supreme Court and High
Courts. Here are some provisions and defenses related to medical negligence cases in In-
dia:

Provisions:
• 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 negli-
gence, 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 imprison-
ment 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 negli-
gence.

Defenses:
• Error of Judgment: If a medical professional makes a reasonable and honest error
in judgment while treating a patient, it may not be considered negligence.
• Emergency Situations: If a medical professional acted in good faith to save a pa-
tient's life in an emergency situation, they may not be considered negligent.
• Contributory Negligence: If the patient contributed to their injury or death through
their own negligence, the medical professional may not be held entirely responsible.

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):[v]
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 prac-
tice accepted as proper by a responsible body of medical men skilled in that particu-
lar field.

• Indian Medical Association v. V.P. Shantha (1996):[vi]

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 pa-
tient can amount to medical negligence.

• Martin F. D'Souza v. Mohd. Ishfaq (2009):[vii]

In this case, the Supreme Court outlined the standard of care that medical profes-
sionals 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):[viii]

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):[ix]

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 negli-
gence case, but it should not be the sole basis for deciding whether negligence oc-
curred.

• Kusum Sharma v. Batra Hospital & Medical Research Centre (2010):[x]

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.

These landmark judgments have helped to shape the legal framework around medical
negligence in India and have provided guidance to both patients and medical profession-
als.

Conclusion
Medical negligence is a serious issue in India that can result in harm to patients, loss of
life, and emotional distress for their families. The legal framework for medical negligence in
India is based on the Indian Penal Code, the Consumer Protection Act, and various judg-
ments by the Supreme Court and High Courts.

Medical professionals have a legal and ethical duty to provide the best possible care to
their patients and to avoid any harm caused due to negligence. Patients also have the
right to seek compensation for any harm caused due to medical negligence.

The Supreme Court of India has delivered several landmark judgments related to medical
negligence that have established important principles, including the Bolam Test, the appli-
cability of the consumer protection act to medical services, and the duty of doctors to dis-
close all material risks to their patients.

It is crucial for medical professionals to be aware of their legal and ethical obligations and
for patients to be informed of their rights to ensure that medical care is provided in a re-
sponsible and accountable manner. Ultimately, the goal of the legal framework for medical
negligence in India is to ensure that patients receive safe and effective medical care that
upholds their dignity and wellbeing.

Medical negligence is a complex issue, and it requires a multifaceted approach to address

it effectively. The legal framework, combined with ethical guidelines and patient aware-
ness, can help ensure that patients receive the best possible medical care and that medi-
cal professionals are held accountable for their actions.
Introduction

Medical negligence has become one of the serious issues in the country in re-
cent years. Even the medical profession, which is known to be one of the no -
blest professions, is not immune to negligence which often results in the death
of the patient or complete/partial impairment or any other misery which has
adverse effects on the patient’s health. There are instances where doctors who
are under-educated leads to the proceedings in the court of law due to the
magnitude of negligence or deliberate conduct shown by the doctors.

Around 52 lakh medical injuries are recorded every year in India out of which
98,000 people in the country lose their lives in a year because of medical negli -
gence. It is really a serious concern for the entire nation that 10 people fall vic-
tim to medical negligence every minute and more than 11 people die every
hour in the country due to this medical error. (Source:
https://www.indiamedicaltimes.com/2016/05/25/98000-people-lose-their-lives-
because-of-medical-negligence/)

It is no surprise that even the slightest mistake made by a doctor can have life-
altering effects on the patients. So, it is the duty of a doctor to take proper care
to avoid such happenings.

Commission of mistakes or 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 commit mistakes. To err is
human but to replicate the same mistake due to one’s carelessness is negli-
gence.

The fundamental reason behind medical negligence is that the carelessness of

the doctors or medical professionals are often ascertained in various cases
where reasonable care is not taken during the diagnosis, during operations,
while injecting anesthesia, etc.

Medical negligence definition

We can define ‘Medical negligence’ as the improper or unskilled treatment of a

patient by a medical practitioner. This includes negligence in taking care from
a nurse, physician, surgeon, pharmacist, or any other medical practitioner.
Medical negligence leads to ‘Medical malpractices’ where the victims suffer
some sort of injury from the treatment given by a doctor or any other medical
practitioner or health care professional.
Some examples of medical negligence are as follows:

• improper administration of medicines.

• performing the wrong or inappropriate type of surgery.
• not giving proper medical advice.
• leaving any foreign object in the body of the patient such as a sponge or
bandage, etc. after the surgery.
What does not come under medical negligence

A doctor is not liable in all cases where a patient has suffered an injury. He
might have a valid defense that he has not breached the duty of care.

The error of judgment can be of two types:

• An error of judgment – In such cases, it has been recognized that it

doesn’t amount to a breach of duty. Merely because a doctor’s decision
turned out to be wrong, we cannot make him liable for medical negli-
gence.
• The error of judgment due to negligence – If all the factors were consid-
ered before coming to a decision then it would be called an error of judg-
ment due to negligence. This amounts to a breach of duty.
Types of medical negligence

Medical negligence can occur in different ways. Generally, it occurs when a

medical professional deviates from the standard of care that is required.

So, we can say that any kind of deviation from the accepted standards of medi-
cation and care is considered to be medical negligence and if it causes injury to
a patient then the doctor who operated on him, other staff and/or hospital may
be held liable for this.

Some of the common categories of medical negligence are as follows:

• Wrong diagnosis – When someone goes to a hospital, clinic or medical

room, etc. the first step after admittance is the diagnosis. Diagnosing
symptoms correctly is critical and important to provide medical care to
any patient. However, if a patient is not treated properly due to any mis-
take in diagnosis, the doctor can be made liable for any further injury or
damages caused as a result of the wrong diagnosis.
• Delay in diagnosis – A delayed diagnosis is treated as medical negli-
gence if another doctor would have reasonably diagnosed the same con-
dition in a timely fashion. A delay in diagnosis can cause undue injury to
the patient if the illness or injury is left to worsen with time rather than
being treated. Obviously, any delay in the identification and treatment of
an injury can reduce the chance of recovery for the patient.
 • Error in surgery – Surgical operations require an enormous level of skill
and it should be done with due care and caution because even the slight-
est mistakes can have profound effects on the patient. The wrong-site
surgery, lacerations of any internal organ, severe blood loss, or a foreign
object being left in the body of the patients, all this comes under Surgical
error.
• Unnecessary surgery – Unnecessary surgery is usually associated with
the misdiagnosis of patient symptoms or a medical decision without
proper consideration of other options or risks. Alternatively, sometimes
surgery is chosen over conventional treatments for their expediency and
ease compared to other alternatives.
• Errors in the administration of anesthesia – Anesthesia is a risky
part of any major medical operation and requires a specialist (anesthesi-
ologist) to administer and monitor its effect on the patient. Prior to any
medical procedure requiring anesthesia, the anesthesiologist has to re-
view the patient’s condition, history, medications, etc. to determine the
most suitable of all the medicine to use. Anesthesia malpractice can hap-
pen even during the pre-operation medical review or during the proce-
dure itself.
• Childbirth and labor malpractice – Childbirth is a difficult event for a
woman and it becomes worse if not handled properly by the doctors and
nurses. There are many instances of medical negligence during childbirth
including the mishandling of a difficult birth, complications with induced
labor, misdiagnosis of a newborn medical condition, etc.
• Long-Term negligent treatment – Medical negligence can also occur
in subtle ways over the course of a long treatment period. Usually, the
negligence can take the shape of a failure to follow up with treatment, or
a doctor’s failure to monitor the effects of the treatment properly.
Essentials of medical negligence

The term ‘Medical negligence’ consists of two words – medical and negli-
gence. Negligence is solely the failure to exercise reasonable care. Medical
negligence is no different. It is only that, in case of medical negligence, the
doctor is the defendant.

In an action for negligence, the following essentials are required:

• The defendant owed a duty of care to the plaintiff.

• The defendant made a breach of that duty.
• The plaintiff suffered damage as a consequence of that breach.
A doctor owes certain duties of care to his patients, they are as follows:

• It is his duty to decide whether he wants to undertake the case or not,

• It is his duty to decide what treatment to give and;
• It is his duty to decide the administration of treatment.
If a doctor fails to perform the aforesaid duties it results in breach of duty and
gives a right of action to the patient. A breach of duty is committed by a doctor
when he does not perform the degree of care like a reasonable doctor.
In Kusum Sharma v. Batra Hospital[1], it was held by the Supreme Court that a
doctor often adopts a procedure which involves a higher element of risk, but in
doing so he honestly believes that it will provide greater chances of success for
the patient. If a doctor has taken a higher risk to redeem the patient out of
his/her suffering and it did not yield the desired result, this may not amount to
medical negligence.

In Jasbir Kaur v. State of Punjab[2], a newly born child was found missing from
the bed in a hospital. The child was found bleeding and near the wash-basin of
the bathroom. The hospital authorities argued that the child had been taken
away by a cat which caused the damage to him. The court held that the hospi -
tal authorities were negligent and had not taken due care and precaution.
Thus, awarded the compensation amounting to Rs. 1 lakh.

Standard of care

A standard of care specifies the appropriate treatment and medication proce-

dure as per the requirements that should be taken into account by a doctor
while providing the treatment to his patients. The care should not be of the
highest degree nor the lowest.

Here, the degree means the level of care an ordinary health care professional,
with the same training and experience, would render in similar circumstances
in the same community. This is the critical question in medical malpractice
cases and if the answer is “no,” and you suffered injury as a result of the poor
treatment, you may file a suit for medical malpractice.

In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole and
Anr.[3], the Supreme Court held that a doctor has certain aforesaid duties and
a breach of any of those duties can make him liable for medical negligence. A
doctor is required to exercise a reasonable degree of care that is set for this
profession.

Duty of care

A duty of care in cases of medical negligence is an obligation on one party

(doctor) to take care to prevent harm being suffered by another (patient). Gen-
erally, doctors owe an obligation to take care of their patients.

There are certain requirements to establish a duty of care. They are as follows:

• A physician is not asked to deal with everyone but when he is taking a

case then he should deal with it with proper care and in accordance with
the set standard of care. A doctor or clinical practitioner prescribing a pa-
tient to seek a provider of an extra health practitioner is acceptable.
 However, when there is an emergency, a medical professional ought to
deal with the patient. No health care professional shall immediately resist
dealing with the case unless it is out of the area of his expertise.
• The physician should never stretch nor reduce the gravity of a patient’s
condition. He will have to make sure that he gives proper treatment to
the patient considering the type of ailment the person is suffering from.
• A doctor must have patience as he cannot do without it. The confidential -
ity of the details of the patient should be kept secret. However, in a few
cases, he can reveal the details if he feels that it is his duty to do so. For
instance, if there is a disease that is spreading and is dangerous for peo-
ple then he can make it public and let others know about it.
• A physician or a doctor is free to choose whom he wants to treat but in
case of emergency he cannot deny dealing with the patient. But after un-
dertaking a case, the health care professional cannot withdraw from the
case without informing the family members of the sufferer. A temporarily
or fully registered medical practitioner should not voluntarily commit any
act of negligence that deprives his patients of the standard of care.
• When a physician who deals with a particular problem and has expertise
in that field is unavailable and another physician is sent for the treat-
ment, the acting doctor is entitled to get his charges but should ensure
the patient’s approval or permission to resign on the coming of the physi-
cian engaged.
Burden of proof

The burden of proof of negligence generally lies with the complainant. The law
requires a higher standard of evidence to support an allegation of negligence
against any doctor. In cases of medical negligence, the patient must establish a
claim against the doctor in order to succeed.

In Calcutta Medical Research Institute vs Bimalesh Chatterjee[4], it was held

that the onus of proving proofs against negligence and deficiency in service
was clearly on the complainant.

Proof of negligence

It has been held in different judgments to charge a doctor for medical negli-
gence the burden of proof lies upon the person who alleges negligence against
him (patient). It is a known fact that things can go wrong even with the special-
ists. And the guilt or negligence can only be established if his acts fall below
the standard of care that he ought to take.

Steps to proving a medical malpractice claim

• The first thing you need to prove is that there exists a doctor-patient re-
lationship. This is the easiest step that one can take in order to prove
medical negligence.
• The next thing you should do is prove that your doctor did not meet the
set standards required as an obligation for this profession.
 • Then prove that you have suffered an injury as a result of that medical
negligence.
• The proof of damages must be presented and this includes all the harm
you have suffered due to the negligent behavior of the doctor.
• All the above-mentioned elements should be proved in order to succeed
in a claim against medical negligence.
When does the liability arise

Generally, the liability of a doctor arises when the patient suffers injury due to
the substandard conduct of the doctor, which was far below the reasonable
standard of care. Hence, the patient should establish that there exists a duty
which the doctor needs to follow and then the next step is to prove breach of
duty.

Normally the liability arises only when the complainant is ready to discharge
the burden on him of proving negligence. However, in some cases the principle
of “res ipsa loquitor” which implies that the thing speaks for itself, can come
into action. Mostly the doctor is liable only for his own acts but there are some
cases in which a doctor can also be made vicariously liable for the acts of an -
other. For example, when a junior doctor is working for the senior doctor com-
mits an error then it becomes the responsibility of the senior making him vicari-
ously liable.

Res ipsa loquitur

The Latin maxim “res ipsa loquitur” means that “the thing speaks for itself.”

In terms of medical malpractice, it refers to the cases where the doctor’s treat-
ment was far below the set standards of care under that negligence is as-
sumed.

The doctrine assumes the following:

• Nature of injury gives the clue that without negligence it could not have
happened.
• There was no involvement of the patient himself in the injury in any
way.
• The injury happened under the circumstances which were under the su-
pervision and control of the doctor.
It means that by applying the principle the judge has accepted that the negli -
gence has occurred. After this, the doctor will have to rebut this thing and if he
fails to do so then the patient would be considered as successful in the case of
medical negligence.

How to prove a res ipsa loquitur case?

The injured party must prove that the physician breached the duty of care by
failing to adhere to the set standards of care a doctor must follow. The breach
must be demonstrated by an expert’s attestation. In res ipsa negligence cases
expert declaration about the standard of care is not really required.

In order to prove a res ipsa case, the following must be done:

• It is well known to everyone that if a case seems like it could never hap-
pen without negligence on the part of the doctor then this directly proves
that it falls under the category of res ipsa cases.
• The equipment or manner of treatment that caused the damage was un-
der the doctor’s control at all times.
• The injury was the one which the injured person couldn’t assume volun-
tarily.
Some Examples of Res Ipsa Medical Cases

Some common scenarios of res ipsa cases are given below:

• Leaving some object inside the body of the patient after surgery.
• If a wrong patient gets operated.
• If the wrong part of the patient gets operated.
Filing a complaint

Being in a noble profession the practitioner must take a reasonable degree of

skill and care and must exercise a reasonable degree of care. The law requires
neither the very highest nor a very low degree of care and skill and is different
for different cases. If he fails to do so then a complaint can be filed against him.

Medical negligence complaint

A complaint is an allegation made by a complainant. It is in written form. It con-

sists of the statements and some important facts to establish a case that a con-
sumer has suffered loss or damage due to deficiency of any service.

What is the cost involved in filing a complaint?

A minimal fee is required for filing a complaint before the district consumer re-
dressal forum for medical negligence cases.

Adjudication of liability

When a complaint against medical negligence is filed, the forum sends a notice
to the opposite party to submit its version of the case within 30 days after ad-
mitting the complaint. After doing proper scrutiny the forum will ask either for
filing an affidavit or for producing evidence in the form of judicial precedents,
expert opinion, etc.

Steps to follow under Medical Negligence Case

• A complaint must be filed in the State Medical Council – If you are

a victim of medical negligence then the first necessary step is to file a
complaint against the doctor in the State Medical Council. The complaint
can be filed in the state consumer court and a criminal suit can also be
brought against the doctor or hospital authorities.
◦ If the main motive behind filing a complaint is to seek monetary
compensation then the complaint must be filed in the consumer
court in order to finish the case as soon as possible.
◦ The consumer courts can suspend the license of the doctor if it is
the case of rarest of the rare medical negligence.
• Go to a Patient-Advocate – The other step that proves very useful in
medical negligence cases is to go to a patient-lawyer.
◦ If there is any breach of duty from the doctor’s side then a patient-
advocate can clear this picture in the mind of the patient and ask
them to take necessary steps to resolve the matter.
◦ The Patient-Advocate can also help the patient in cases if there
should be some compensation due to medical negligence.
Step by step procedure

The following steps must be taken:

• A complaint must be filed with the local police and the State
Medical Council.
• If it is filed only with the police, then the police can send the re-
port to the State Medical Council.
• If the report seems appropriate to the Council then it will send it
to various other courts under the relevant sections.
• If the case is criminal in nature then it will be against the state
versus the hospital or doctor.
• If the council finds that the case is serious and pose a danger to
the life of the patient then it can also suspend the doctor’s li-
cense for a relevant period of time.
• If the council finds him guilty, the facts and circumstances of the
case will decide the punishment to be given to the doctor.
• If the patient is still not satisfied with the judgment then he/she
can make an appeal to the Medical Council of India.
• The consumer courts can help the patient in seeking monetary
compensation. It should be noted that the consumer courts can
only provide you with the compensation it cannot punish the
guilty.
• If the complainant is still not satisfied then he can approach the
National Consumer Dispute Redressal Commission.
Collection of evidence related to Medical Negligence
The collection of evidence should be like this:

• Collect all the medical records.

• As per the guidelines of the Medical Council of India, the patient
should get all the medical records within 72 hours from the date
and time of the appointment.
Challenges faced by the victims of Medical Negligence

These are some of the challenges that are faced by a complainant in

medical negligence cases:

• If is a time-taking process to decide medical negligence cases.

So, sometimes it leads to the de-motivation of the complainant.
• Sometimes, due to the reputation of the hospital, the doctor has
more chances of winning the case.
• There are some cases in which the doctor already knows that
they have been negligent so they remove all the necessary evi-
dence which creates a problem for the complainant.
• You need to know about your insurance policy limits because
sometimes the insurance company itself rejects the case.
Necessary test to determine Medical Negligence

The name of the test is the Custom Test.

• In this test, it must be proved that the hospital or any of its staff
weren’t negligent in performing its duties.
• The next thing which should be proved is the method adopted by
the concerned doctor was not ethical.
• In most of the cases, the burden of proof lies upon the Com-
plainant but sometimes it shifts to the doctor if there is no
proper management done on his part.
Medical negligence complaint in criminal court

Hospitals, in many cases, are charged for negligence if HIV, HBsAg, etc. gets
transmitted due to it. So, if anyone develops such disease during his course of
treatment under the supervision of his doctor and the same is proved that it
has occurred on account of careless and negligent behaviour on the part of the
hospital then the hospital will be held liable for failing to consider the reason-
able standards given to them in the form of duty to care and standard of care.

However, if the elements like the motive or intention, the magnitude of the of-
fense and the character of the accused are established then it makes him liable
under the criminal law.

Provisions
 • According to Section 304-A of the Indian Penal Code, 1860, if a person
commits a rash or negligent act which amounts to culpable homicide
then the person will be punished with imprisonment for a term which
may extend to two years or with fine or both.
• According to Section 337 of the Indian Penal Code, 1860, if a person com-
mits a rash or negligent act due to which human life or personal safety of
others gets threatened. The person will be punished with imprisonment
for a term which may extend to six months or with fine which may ex-
tend to five hundred rupees or both.
• According to Section 338 of the Indian Penal Code, 1860, if a person com-
mits a rash or negligent act due to which human life or personal safety of
others gets threatened. The person will be punished with imprisonment
for a term which may extend to two years or with fine which may extend
to one thousand rupees or both.
Expert opinion

The Commission cannot constitute itself into an expert body and contradict the
statement of the doctor unless there is something contrary to the record by
way of an expert opinion or, if there is any medical writing relying on which,
the statement can be primarily based.

The number of medical negligence cases is increasing day by day so expert’s

opinion are important in such cases.

Medical negligence complaint in civil cases

• The position concerning negligence under civil law is extremely impor-

tant because it encompasses various elements in it.
• Under the tort law or civil law, this principle is applicable even if doctors
provide free services. Thus, it can be stated that where the Consumer
Protection Act (CPA) ends, the tort law begins.
• In cases where the services offered by the doctor or the hospital don’t fall
within the definition of ‘services’ under CPA, patients can claim compen-
sation under the tort law.
• The onus (burden) of proof is on the patient and he needs to prove that
because of the doctor’s actions, the injury has been caused to him.
Compensation claim

In Civil liability, the claim for damages is suffered in the form of compensation.
If there is any breach of the duty of care while operating or under the supervi-
sion of the hospital or any doctor. They are vicariously liable for such wrong
committed and are liable to pay damages in the form of compensation.

If someone is an employee in a hospital then it is the responsibility of the hos-

pital if an employee causes harm to a patient by acting negligently.
In Mr M Ramesh Reddy v. State of Andhra Pradesh[5], the hospital authorities
were held to be negligent for not keeping the bathroom clean due to which an
obstetrics patient fell in the bathroom and died therein. The amount of com-
pensation which was awarded against the hospital was Rs. 1 Lac.

000. Medical negligence cases in consumer courts

All the medical services fall under the purview of the Consumer Protection
Act, 1986. After the judgment of the Supreme Court in Indian Medical
Association vs. V.P. Shantha[6], this medical profession and services have
been brought under the purview of the Act.

In this case, the court discussed the important question of medical negligence
i.e. whether a medical practitioner could be said to rendering services
under Section 2(1)(o) of the Consumer Protection Act, 1986.

The following points were laid down:

• Medical Services should be treated as the “services” under Sec-

tion 2(1) (o) of the Consumer Protection Act, 1986. It is not a
contract of personal service as there is no master-servant rela-
tionship between them.
• Contract of service in Section 2(1) (o) cannot be confined to con-
tracts for the employment of domestic servants only. The ser-
vices rendered to the employer are not covered under the Act.
• Medical Services which are free of charge are not considered un-
der the purview of Section 2(1)(o) of the Act.
• Medical Services which are rendered by independent doctors and
are free of charge are under the jurisdiction of Section 2(1)(o) of
the Act.
• Medical Services rendered against payment of consideration are
also within the scope of the Act.
• The payment of consideration of a medical service is paid by
some third party and is treated under the ambit of this Act.
• Hospitals in which some persons are exempted from charging be-
cause of their inability to afford or any other financial problems
will be treated as a consumer.
Section 2(1)(o) of the Consumer Protection Act defines the ‘deficiency
of service’ which means any fault, imperfection, etc. in the quality or
manner of performance that is required to be maintained by or under
any law or it has been undertaken to be performed by a person in pur-
suance of a contract or otherwise.
According to the Consumer Protection Act, 1986, the consumer is the
one who:

• buys any goods or hires any service.

• uses the goods or hires any service with the approval of any
buyer or the service provider.
• uses the goods and services to earn a livelihood.
When can a complaint be filed

In the following cases a complaint about medical negligence can be

filed:

• The liability of a doctor arises only when the patient has suffered
an injury due to his reckless or negligent conduct which was not
appropriate according to the set standards of the medical pro-
fession.
• He is liable only for those consequences which resulted from a
breach of his duties.
• The plaintiff must prove the breach of duty and causation.
• In case there is no breach then neither the doctor nor the hospi-
tal authorities can be made liable.
• If the possible causes of an injury is the negligence of a third
party, an accident, etc. then it must be proved that the doctor’s
negligence was the most probable cause of the injury to dis-
charge the burden of proof on the patient (plaintiff).
• Sometimes, ‘res ipsa loquitur’ which means “the thing speaks for
itself” comes into play. In such cases, it can be clearly seen that
the doctor was negligent in performing his duties. This dis-
charges the burden of proving negligence on the plaintiff.
• Normally a person is liable for his own acts but when the concept
of vicarious liability comes into play when a doctor can be held li-
able for the acts of other persons who are responsible for the in-
jury caused to the plaintiff.
Who can file a complaint

The below mentioned can file a complaint;

• A consumer or
• Any recognized consumer association whether the consumer is a
member of such association or not, or
• The central or state government.
A “Recognized consumer association” is a voluntary consumer associ-
ation, the one i.e., registered under the Companies Act, 1956 or any
other law for the time being in force.

Forums in which one can file a complaint

The complaints under the Consumer Protection Act for medical negli-
gence can be filed at:

Forum/Commission Pecuniary jurisdiction

The District Forum Less than 20 lakh rupees
More than 20 lakhs but less than 1
The State Commission
crore
The National Commis-
More than 1 crore
sion

Compensation claim

The CPA will not be able to help the patients who availed a doctor’s
service free of charge or if he has paid only a nominal registration fee.

However, if a patient did not pay because of some financial problems

or incapacity to pay, they will still be covered under the Act and will
be considered to be consumers and can sue under the Consumer Pro-
tection Act.

Medical negligence cases in high courts/ supreme courts

In State of Haryana v. Smt Santra[7], the Supreme Court held that it is the duty
of every doctor to act with a reasonable degree of care. However, no human in
this world is perfect and even specialists make mistakes, a doctor can be made
liable only if he fails to act with such reasonable care that every doctor with or-
dinary skills would be able to do.

In Vinod Jain v. Santokba Durlabhji Memorial Hospital & Anr.[10], the

Supreme Court has mentioned the factors to be considered while es-
tablishing the liability in medical negligence cases. In this case, the
appellant challenged the NCDRC in the apex court i.e. the Supreme
Court of the country. The Supreme Court upheld NCDRC’s judgment
and made the below-mentioned observations:
 • A doctor cannot be said to be negligent if his acts are in accor-
dance with the set guidelines, merely because a body is there
which holds a contrary view.
• A doctor need not have special expertise in medicine and it is
enough if he exercises ordinary skills that an ordinary man of
that profession would be able to do.
• A doctor cannot give assurance for any recovery as it is not in his
hands and he can only try his best. The only assurance he can
give is that he holds requisite skills in the profession and while
undertaking this he should perform his duties as a reasonable
man of the profession and in accordance with the standard of
care in the medical profession.

Supreme court judgement on medical negligence

Listed below are some of the landmark supreme court judgments on

medical negligence:

• The landmark judgment in medical negligence cases and the first

judgment that comes into our mind with the highest amount of
compensation granted till date is Dr. Kunal Saha Represented By
Sri … vs Dr. Sukumar Mukherjee And Ors.[12] which is famous as
the Anuradha Saha Case. In this case, the wife was suffering
from drug allergy and the doctors were negligent in prescribing
appropriate medicines for the same which ultimately aggravated
her condition and led to the death of the patient. The court held
the doctor liable for medical negligence and awarded compensa-
tion amounting to Rs. 6.08 crore.
• In the case of V.Kishan Rao Vs Nikhil Super Speciality
Hospital[13], where a lady who was to undergo the treatment for
malaria fever was treated differently. An officer in the Malaria
Department filed a suit against the hospital authorities for per-
forming the treatment of his wife negligently, who was undergo-
ing the treatment for typhoid fever instead of malaria fever. The
husband got the compensation of Rs 2 lakhs and in this case, the
principle of res Ipsa loquitor was applied.
• In Jacob Mathew .V. State of Punjab[14], the Supreme Court held
that in some cases doctors are bound to take make difficult
choices. Sometimes situations make them go for things involving
greater risk because of higher chances of success in taking that
decision. And there are some cases in which there is lesser risk
involved and higher chances of failure. So, the decision will de-
pend upon the facts and circumstances of the case.
• In Juggan Khan v. State of Madhya Pradesh[15], the appellant
who was a registered Homoeopathic medical practitioner. After
seeing an advertisement a woman went to him for the treatment
of guinea worms. After taking the medicine prescribed by him,
she started feeling restless and even after the administration of
some antidotes, she died in the evening. The appellant was con-
 victed for murder under Section 302 of the IPC. The court held
that it was a negligent act to prescribe poisonous medicines
without proper checking and knowledge of the same.
• In A.S. Mittal and another V State of UP and Others[16], the Apex
Court dealt with the case of a mishap in an ‘Eye Camp’ in Uttar
Pradesh. In the camp, about 108 patients were operated out of
which 88 underwent cataract surgery. Out of all these people 84
suffered permanent damage to the eyesight. It was found that
this mishap was due to normal saline which was used in the op-
erations. The court held the doctor liable as this amounts to
medical negligence. A PIL was filed in this case under Article 32
of the Constitution.
• In the case of Poonam Verma v Ashwin Patel and others[17], the
respondent had a diploma degree in Homoeopathic Medicine and
he administered some allopathic drugs to a patient who was suf-
fering from high fever. Subsequently, the patient was shifted to
a nursing home where he died. The court held the respondent li-
able as he was registered for providing Homoeopathic treatment
but not under the Allopathy system and his actions amounted to
medical negligence. The Supreme court has also defined the
term “Medical Negligence”.
• In Spring Meadows Hospital and another v Harjol Ahluwalia[18],
a child who was suffering from typhoid was admitted to the ap-
pellant’s hospital. The nurse gave an injection to the child after
that he collapsed. After taking all the possible steps the child
was shifted to AIIMS. The doctors there informed the parents
about the critical condition of the child. The child had a cardiac
arrest because of the overdose injection that was given to him.
The court held the doctor and the nurse liable to compensate for
this negligence.
• In Bhalchandra Alias Bapu & Another v. State of Maharash-
tra[19], the Supreme Court opined that while negligence is an
omission to do something which a reasonable man would do or
doing something that a reasonable man would never do; criminal
negligence is the gross neglect to exercise reasonable care and
precaution to guard against the public as well as against an indi-
vidual.
Conclusion

Though the doctors are seen as God and patients believe that they will get bet-
ter after the treatment and that they would be healed by the treatment pro-
vided. But sometimes it so happens that even the doctors make mistakes
which cost a lot to the patients in so many ways. Also, in some instances the
mistakes made by them are so dangerous that the patient has to face prob-
lems and undergo immense sufferings.

The usage of equipment and medical tools in health care sector should be
made with due care and caution as it can lead to an injury to the consumer
which may further result in the filing of a complaint against the doctors and the
other authorities involved. Yet, there is no provision which can make the manu-
facturers of such unfit equipment liable for the damages.

Another important concern is that the services which are rendered free of
charge are excluded from the scope of the Consumer Protection Act, 1986. This
creates a problem for patients who suffer damages.

People are losing faith in the medical profession due to some serious medical
negligence cases which have made them disabled for their remaining lives.
Some serious introspection and analysis are required to be done for the Medi-
cal profession. It has utterly failed in self-governance. The medical ethics need
to be reformed and developed so as to serve with complete righteousness.

00 .The failure of a healthcare provider to provide the standard of care that

is required in their industry, which results in harm or injury to a patient, is re-
ferred to as medical negligence, also known as medical malpractice. Hospitals,
clinics, and private practices are just a few of the healthcare environments
where this neglect can take place. It is a legal notion with grave ramifications
for both patients and medical professionals.

Patients put a lot of faith in the ability of doctors, nurses, surgeons, and other
healthcare professionals to give the best possible treatment. They demand not
only talent and knowledge but also a dedication to their security and well-be-
ing. Unfortunately, there are times when this confidence is betrayed because of
carelessness or mistakes made during the medical procedure. These mistakes
can take many different forms, from incorrect diagnosis and surgical blunders
to incorrect medicine administration and birth traumas.

Navigating the complicated world of legal norms, medical standards, and ethi-
cal issues is necessary to comprehend medical negligence. The existence of a
duty of care, a violation of that duty, a direct causal relationship establishing
that the breach caused the patient's injury, and actual patient damages must
all be proven in order to establish medical malpractice.

Medical experts who have knowledge of whether a healthcare provider's activi-

ties departed from the accepted standard of care are frequently called upon to
testify in medical malpractice trials. These expert witnesses are essential in de-
termining if a lawsuit has substance and can offer vital advice throughout the
courtroom proceedings.
Components of Medical Negligence –

1. Existence of legal duty - A doctor is under an implied legal obligation to

exercise due diligence and is expected to act in the standard course of a medi-
cal practitioner like his or her contemporaries when another person approaches
him or her with a medical problem. The other person trusts the doctor to pos-
sess specific skills or special knowledge on the matter at hand.

2. Breach of legal duty - A doctor is under an implied legal obligation to ex-

ercise due diligence and is expected to act in the standard course of a medical
practitioner like his or her contemporaries when another person approaches
him or her with a medical problem. The other person trusts the doctor to pos-
sess specific skills or special knowledge on the matter at hand.

3. Damages - Establishing damages is a critical component in a medical mal-

practice case. It is not sufficient to merely assert that a healthcare practitioner
violated their duty of care or caused harm; you must also demonstrate that ac-
tual and quantifiable losses or harm resulted from the provider's conduct or
negligence. Any claim of medical malpractice must include the element of
damages. It is the feature that emphasizes the actual, palpable effects of a
healthcare provider's purported neglect. It is critical to show that the patient
actually experienced losses as a result of the healthcare provider's conduct in
order to create a strong medical negligence case. Damage can be of various
types like physical harm, financial damage, mental harm, Pain, and suffering,
and even death.