Updated: Aug 25, 2021


Mahatma Gandhi once said, “It is health that is person’s real wealth and not pieces of gold and silver”. Knowledge of citizen’s rights within society and in general among the public regarding damages in civil suits, torts and criminal proceedings is growing. Not only are civil cases lodged, but there are a vast number of criminal complaints against medical professionals, filed by people who l grieve, due to the accessibility of complaints under the Consumer Protection Act, 1986 which has competence to hear the complaints of medical practitioners for a 'deficiency in service".[i]

Indian society has recently developed an appreciation of its rights and an increasing public awareness of medical negligence. The explanation is that professional competency, equipment and the suitability of their therapeutic and diagnostic procedures are degrading requirements. In the past people were hesitant on suing medical practitioners or hospitals, but over the time the law has played an important part in raising people's awareness of their rights.


Professionals such as attorneys, physicians, architects and other people with special skills or general skills are included in the law of negligence. Any task that requires special competence will probably only be accepted or carried out if the person has the necessary abilities for the task. Any sensible person, who becomes an individual in a profession requiring a specific level of training, is implicitly ensuring that the person concerned is able to exercise his ability with adequate care and caution. This ensures patients, in accordance with the same analogy, that a doctor has the necessary medical skills and will exercise his skill in an appropriate manner while performing the task entrusted to him. A practitioner, including a medical specialist is considered to be liable for negligence in respect of one of two findings: either he did not have the necessary ability to possess or, in the case in question, he did not exercise, with adequate competence, the ability he possessed.

Whether the accused was or was not negligent is to be decided by the standard of an ordinary competent person exercising ordinary skills in that profession. Not everyone in the industry who practises should have the highest level of expertise. Where a profession accepts a number of opinions on what constitutes an acceptable level of conduct, the professionals' competence must be judged by the least acceptable standard.

In order to sustain an allegation of liability, it must be shown that (1) there is a legal duty, (2) that the defendant breached it, and (3) that a professional man of ordinary caution and skill will not follow the course of action the defendant took.[ii]


With increased consumer awareness, escalating consumer expectations, medical liability, and the passage of the Consumer Protection Act, the number of complaints and dissatisfaction with the doctors are both increasing.

The major issue which came before the Apex Court in Indian Medical Association v. V.P Shantha and Ors[iii] was whether a medical practitioner's service under the Consumer Protection Act, 1986, amounted to "deficiency in service." How it defined 'profession' and 'particularly in the context of obligations and incidence of negligence' was especially important in this case. The court remarked that no doctor, no matter how well-intentioned, would be exempted from liability if he or she has negligently prescribed a drug.

While establishing the boundary of the term "liable," however, the court has referenced authorities such as Jackson and Powell, citing specifically their arguments and relying on the various sources, noting that in some cases, success or failure is out of the professional's control." Consumer advocates prefer courts to think of liability insurance which calls for professionals to have a minimum competence and that they should have ordinary care in their work.


The law pertaining to crime in India has given the medical professional a separate footing relative to the normal individual. Section 304 A of the IPC necessitates that the death will be the direct result of rash and negligent conduct of the accused, without other individual’s intervention.[iv]

The doctor can be held criminally liable in the event that the patient dies while under the anaesthetic during the operation, provided the death was the result of malicious intention or gross negligence.[v] The doctor will bear joint liability for the medical assistant's error that causes a patient's death; in vicarious liability, he shares the blame. The employee and his doctor will be held responsible, in that case, as the result of the principle of ‘vicarious liability' under the law of tort.


The stance on civil law negligence is very important because it embraces a large number of components in itself. This concept applies under the law of torts or civil law, even though free services are provided by medical practitioners.[vi] It can be claimed that where the Consumer Protection Act terminates, the tort law starts.

In State of Haryana v. Smt Santra[vii], the Court observed each doctor has "the duty to act with an appropriate level of care and competence." Since no person is error-ridden and even the most qualified specialist can do errors diagnosing a disease, a physician should only be held responsible for negligence in cases where one can show that a physician with normal abilities is culpable of failure when he/she has appropriate care.[viii] An error of judgement is only negligent when a fairly competent professional with standard skills which he states to possess and when he acts with ordinary care did not make the same mistake.[ix]

By quoting the best evidence in the field of medical science and delivering an expert opinion the applicant must demonstrate the accusation against the doctor.[x]


In a case widely cited in the Indian jurisprudence, Dr. Achatrao and Ors v. the State of Maharashtra[xi], the judges remarked that although the required qualifications in the medical professions vary from practitioner to practitioner, there is a large diversity of permissible approaches. Furthermore, he cannot be found liable for negligence so long as he acts with due care, caution, and attention to his obligation is fulfilled.

The decision in Dr. Suresh v. the NCT of Delhi and Anr[xii]leaves little room for debate, with a clear legal verdict that holds the doctor liable for compensatory damages and imprisonment for criminal charges under Section 304 A for causing harm by medical negligence. If a doctor's negligence or incompetence was so serious that he put a patient's life or health in jeopardy, then he may be punished by the state.

In Jacob Mathew vs. State of Punjab[xiii], the Supreme Court held that doctors should be exempted from criminal liability unless there is prima facie evidence from trustworthy colleagues that they've acted rashly or with negligence, especially if their practise is within their area of expertise.

The case of Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr[xiv] was a medical malpractice suit under Fatal Accidents Act, 1855. After much consideration, the ethical obligations which a doctor must meet became apparent. When a physician indicates that he is willing to provide medical advice and treatment, he is actually intending to render it. When referred by a patient, they must comply with certain obligations, one of which is to decide on the appropriate treatment and the other to carry out the chosen treatment. When any of the conditions are breached, the patient has the right to file a claim for damages against the practitioner.


In view of the Indian legislation on medical negligence, there are several criticisms. The main issue is the concept of 'burden of proof'. The complainant has the burden of evidence. Therefore, if a patient complains malpractice, a higher standard of proof is required to support the law. In this case the precise harm and cause relationship amidst the injury and the negligence of the doctor becomes extremely difficult for a normal human or patient to ascertain.

As a result, the patient cannot assert the fault of the doctor beyond reasonable doubt, as in the medical profession, anything unforeseen can happen, at any moment, in the human body. It is also high time for the rules dictating medical care to be amended in order to be suitable for patients. And patients should be made aware by means of an appropriate educational channel of their rights to medical malpractices by civil society.

Thus, as a moral obligation, all the authorities concerned, whether in hospitals or in government or any other institution which works to improve health facilities, should strive to provide quality healthcare, adequate healthcare and accessibility of basic healthcare.

~Authored by Abhisena Dey

[i]A Comparative Analysis of Various Indian Legal Systems Regarding Medical Negligence: Criminal, Consumer Protection and Torts Laws” by Smreeti Prakash
[ii] Talha Abdul Rahman, "Medical negligence and doctors' liability", Indian Journal of Medical Ethics, April-June, 2005

[iii] 1996 AIR 550;
[iv] Sir Lawrence Jenkins in Emperor v. Omkar Rampratap, 4 BOM LR 679

[vi]A Comparative Analysis of Various Indian Legal Systems Regarding Medical Negligence: Criminal, Consumer Protection and Torts Laws” by Smreeti Prakash
[vii] AIR 2000 SC 3335;
[viii] Observations of Lord President Clyde in Hunter v. Hanley, (1955) SLT 213;
[ix] Whitehouse v. Jordan, (1981) 1 ALL ER 267 the House of Lords;

[x] Dr. Lakshman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 (SC) 128;
[xi](1996) 2 SCC 634;
[xii]Appeal (crl.)  778 of 2004;
[xiii] Appeal (crl.)  144-145 of 2004;
[xiv]1969 AIR 128;

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