DOCTRINES OF DOCTOR LIABILITY
Roll No.: 373
DOCTRINES OF DOCTOR LIABILITY
DOCTRINE OF LOSS OF
DOCTRINES OF APPARENT
DOCTRINE OF INFORMED
CONSENT OF THE PATIENT
WHAT IS NEGLIGENCE?
NEGLIGENCE UNDER INDIAN
TESTS USED IN INDIA TO
DUTY ON PART OF HOSPITAL
Liabilities of doctors under Indian
Name: Utkarsh Kumar
Roll No.: 356
PR No.: 12010123356
What is IPC?
The Indian Penal Code 1860(IPC) is the most fundamental
document in the entire judiciary of India, that lists all the cases
and punishments that a person committing any crime is liable
to be charged with, including doctors
Provision of IPC
• According to the provisions of
Indian Penal Code 1860
(IPC), any act of commission or
omission is not a crime unless it is
accompanied by a guilty mind
Sections of IPC relating to Medical
Sec 52-Describes ―Good Faith‖
Sec 80-Accident in doing lawful act
Sec 88-Act not intended to cause death, one by consent in
good faith for person‘s benefit
Sec 90-Related to consent
Sec 176-Failure to inform police when essential
269-271-Related to spread of infectious disease and
disobedience of quarantine rules
272-273-Related to adulteration of foods and drinks
Sec274-276-Related to adulteration of drugs
Sec 304-A-Deals with death caused by a negligent act
Sec 269-271- Related to spread of infectious disease and
disobedience of a quarantine rule
Sec 306-309-Are related with abetment of suicides
Sec 312-314-Related to causing miscarriage, abortion and
hiding such facts
Sec 315-316-Deals with act to prevent child being born alive or
to cause it to die after birth
Sec 319-322-Are related to causing hurt, grievous hurt,
loss of vision, loss of hearing or disfigurement
Sec 336-338- Deals with causing hurt by rash or negligent
Key points to note
Thin line of difference between Section 304 and 304-A:
in Sec. 304 there is no intentional act of negligence while in
Sec 304-A the act is never done with the intention to cause
Under Sec.304 the offence is non-bailable while in case of
Sec.304A the offence is bailable
3 Yrs. To 10
Imprisonment upto 7
yrs. May be
Imprisonment upto 5
Yrs. +/- Fine
DIFFERENT PROVISIONS AND
Section 164A of CrPC
Examination only by female registered medical practitioner
Note down particulars
Examination – Genital examination and injuries
Standard protocols and guidelines
Preserve samples-DNA profiling
Emergency Contraception if required
Treatment /prophylaxis as required
Section 53A CrPC
Brought by police written and signed request
Details of examination findings
Sample preservation –Clothing/Blood/Semen sample/Pubic hairs
for DNA profiling
Consent not required
REST OF THE ACTS:
Section 53 CrPC (Examination of accused by medical
practitioner at the request of police officer)
Section 53A CrPC (Examination of person accused of
rape by medical practitioner)
Section 54 CrPC (Examination of arrested person by
medical practitioner at the request of the arrested
MOTOR VEHICLE ACT,1988
Sec 203- Breath tests.
204. Laboratory test.
If the patient has suffered an injury in circumstances, which are explicable
only as being attributed as negligence on part of the doctor, the maxim Res
Ipsa Loquitur (thing speak for itself) may be applied. The patient is then
entitled to succeed unless the doctor can bring evidence to rebut the
possibility of negligence The doctrine may be used where1) the accident is
of a kind which ordinarily does not occur in the absence of negligence, 2)
the apparent cause of the accident being within the control of the
defendant 3) and the plaintiff could not have contributed to it
INDIAN EVIDENCE ACT,1872
Medical evidence is merely an option evidence.
Evidence given by a medical officer is of advisory character.
Medical evidence not in conflict eye-witness evidence can be taken.Medical evidence
not in conflict with dying declaration is reliable.
Medical evidence cannot itself prove the prosecution. It is only corroborative.Courts can
use medical evidence in the following ways:Consistent with direct and circumstantial
Identity of the deceased
to facilitate open and frank discussion of clinical events to aid
quality improvement without fear of reprisal.
does not provide physicians with blanket protection from
litigation and does not provide protection unless the
information is handled, as specified, within the Act.
Consumer protection act.
With reference to medical negligence
Roll no : 309
The purpose of the act : To protect the interest of the consumers of
different commodities for which they pay but
do not get standard quality of service.
Example – daily commodities of use, Banking,
Food Transport, Electricity supply et etc.
Hierarchy of court
National Commission at National Level, located at New
2. State Commissions at State Level, located in
3. District Consumer Forums located in various areas of
Definition of Consumer and service in
medical negligence cases
Consumer is :
(a) a patient who pays to get services of doctor /hospital
(b) any person
who pays for the patient
(c) legal heirs /representatives of such patients
(d) spouse, parents and children of the patient.
hired or availed, which does not cost anything or
can be said free of charge, or under a contract of
personal service, is not included within the meaning
A complaint in relation to any goods sold or delivered or agreed to be sold
or delivered or any service provided or agreed to be provided may be filed
with a District Forum, by –
(a) the consumer to whom such goods are sold or delivered or agreed to be
sold or delivered or such service provided or agreed to be provided;
(b) any recognized consumer association whether the consumer to whom
the goods sold or delivered or agreed to be sold or delivered or service
provided or agreed to be provided is a member of such association or not;
(c) one or more consumers, where there are numerous consumers having
the same interest, with the permission of the District Forum, on behalf of, or
for the benefit of, all consumers so interested; or
(d) the, Central or the State Government.
JURISDICTION FOR FILING
In terms of the provisions contained in the Consumer Protection
Act, 1986, complaints:
1. Where the value of goods or services and compensation, if any, claimed
below Rs. Twenty Lacs or upto Rs. Twenty Lacs, can be filed before District Forum.
2. Where the value of goods or services and compensation, if any, claimed
exceeds Rs. Twenty Lacs but does not exceed Rs. One crore, can be filed before
3. Where the value of goods or services and compensation, if any, claimed
exceeds Rs. One crore, can be filed before National Commission.
Consumer of Medical Services as under
Status of Government Hospitals under
1.Paramjit Kaur vs State of Punjab
2.Pune vs. Dr.R.L. Bhutan
Status of Private Practice under
Patient has the right to quality healthcare
Pravat Kumar Mukherjee vs. Ruby General
Hospital & Ors7
NAME – DHRITI HAZOWARY
CLASS – B.A./L.L.B DIV – D
ROLL NO. – 316
YEAR – IInd SEM - IV
UNITED KINGDOM SCENARIO
The police, the criminal courts and prisons are all publicly funded
services, though the main focus of criminal law concerns the role of the
courts, how they apply criminal statutes and common law, and why
some forms of behaviour are considered criminal.
The fundamentals of a crime are known as the ‗actus reus‘ and the
Latin terms mean "guilty act" (doing that which is prohibited) and "guilty
mind" (i.e. the intent to commit the crime).
England and Wales does not have a Criminal Code, though such an
enactment has been often recommended and attempted.
R v. Adomako (1995)
R v. Prentice and Another (1993) 4 All E.R. 935 C.A.
R v. Sullman (1993)
UNITED STATES OF AMERICA
Traditionally medical liablity of doctors has been under the
authority of the individual states and not the federal
government, in contrast to many other countries.
Current law has its origins in 19th century English common
law. English common law refers to the legal system of
England and Wales, and forms the basis of jurisprudence in
the United States.
3. In the United States, medical malpractice law is under
the authority of the individual states; the framework and
rules that govern it have been established through
decisions of lawsuits filed in state courts. Thus, state law
governing medical malpractice can vary across different
jurisdictions in the United States, although the principles are
4. One exception to medical liability can arise in the
context of those who volunteer assistance to others who
are injured or ill; this exception is embodied in ―Good
Samaritan‖ laws that address bystanders‘ fear of being
sued or prosecuted for unintentional injury or wrongful
Moore v. Williamsburg Regional Hospital
(4th Cir. 2009)
2. Chudacoff v. University Med. Ctr. of S. Nevada
(D. Nev. April 14, 2009)
3. Poliner v. Texas Health Systems (5th Cir. 2008)
4. Adkins v. Christie (11th Cir. 2007)
Roll No 369
Judicial Approach :Case laws
(Foreign and Indian)
R. v. Prentice and Sullman
Facts: Two young and relatively inexperienced doctors were prosecuted
for manslaughter for having injected intrathecally an injection that
should have been given intravenously. It was held:
1. Except in motor manslaughter, the ingredients of involuntary
manslaughter by breach of duty which need to be proved are: a. the
existence of the duty;
b. the breach of the duty causing death; c. gross negligence which the jury
considers justifies a criminal condition;
2. If the jury had been given the gross negligence test, then in deciding
whether the necessary high degree of gross negligence had been
reached they could properly have taken into account 'excuses' or
Bolam v Friern Hospital Management
Committee  1 WLR 583
Claimant undergoing electro convulsive therapy as treatment for
his mental illness. Doctor did not give any relaxant drugs and the
claimant suffered a serious fracture.
Divided opinion amongst professionals as to whether relaxant drugs
should be given. If they are given there is a very small risk of
death, if they are not given there is a small risk of fractures.
The claimant argued that the doctor was in breach of duty by not
using the relaxant drug.
The doctor was not in breach of duty.
a medical professional 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 . . . 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."
Bolitho v City & Hackney Health
Authority  3 WLR 1151
Facts: BOLITHO TEST
2 year old child admitted to hospital suffering from breathing difficulties.
A doctor was summoned but did not attend as her bleep was not
working due to low battery. The child died. The child's mother brought
an action claiming that the doctor should have attended and
intubated the child which would have saved the child's life.
The doctor gave evidence that had she attended she would not have
intubated. Another doctor gave evidence that they would not have
The trial judge applied the Bolam test and held that there was no
breach of duty. The claimant appealed.
In applying the Bolam test where evidence is given that
other practitioners would have adopted the method
employed by the defendant, it must be demonstrated
that the method was based on logic and was
defensible. the Court in Bolitho did not specify in what
circumstances it would be prepared to hold that the
doctor has breached his duty of care by following a
practice supported by a body of professional
opinion, other than stating that such a case will be "rare".
Anuradha Saha Case
Anuradha Saha, resident of Ohio developed skin
rashes and fever on her visit to Kolkata
A well-known physician Dr. Sukumar Mukherjee
prescribed a drug for her and she was later
admitted to the AMRI hospital under the care of
three other physicians
Later, her skin started to peel off and she is
diagnosed with a life-threatening condition
caused by a drug reaction
She later airlifted to a Mumbai hospital where she
Her husband lodged a criminal case accusing the
doctors of negligence
15 years later, court orders compensation of Rs
5.96 crore for the death of Anuradha Saha for
Jacob Mathew V. State of Punjab
Patient, feeling serious difficulties in breathing was admitted
in a private ward of the CMC hospital, Ludhiana at about
11pm on the night of 22nd February 1995
Dr. Jacob Mathew and Dr. Allen Joseph came to the
patient‘s room and connected an oxygen cylinder to the
patient‘s mouth, but the cylinder was found empty
No other cylinder was available in the room at that time
and when the Patient‘s son arranged a cylinder, nothing
was done to make the cylinder functional
By this time the patient had passed away
Cancellation of license and prosecution of doctors who
are found to
Violate provisions of Acts like the Transplantation of Human
Engage in fetal sex determination
Doctors are not Gods. They are humans and it is normal
for them to err
Dragging negligence cases to court for trial is undesirable
Indian Medical Association v. V.P.
Shantha and Ors
In Indian Medical Association v. V.P. Shantha and Ors the principal
issue which arose for decision before the Supreme Court was
whether a medical practitioner renders 'service' and can be
proceeded against for 'deficiency in service' before a forum under
the Consumer Protection Act, 1986. The Court dealt with how a
'profession' differs from an 'occupation' especially in the context of
performance of duties and hence the occurrence of negligence.
The Court noticed that medical professionals do not enjoy any
immunity from being sued in contract or tort (i.e. in civil jurisdiction)
on the ground of negligence.
Medical opinions are still required to assist the court in its
deliberation- patient‘s right to know
Bolam test has been challenged & rejected in America,
Canada, Australia, South Africa & Malaysia
Other Case laws
Canterbury v Spence (1972) 464 F (2d) 772 — United
Naxakis v Western General Hospital (1999) 73 ALJR 782 Australia
Pai Lily v Yeo Peng Hock Henry - Singapore
REMEDIES UNDER MEDICAL
Class: BA LLB ‗D‘
Prn. No: 12010123374
Civil Suit Consumer Court
Cases that deal in medical negligence and medical practice.
Civil remedy where relief is sought in compensation under the
consumer protection act 1985.
Indian Medical Association vs. V.P. Shantha (1995) 6 SCC
Spring Meadows Hospital vs. Harjo Ahluwalia (1998) 4
The Court held that proceedings under the Consumer
Protection Act are summary proceedings for speedy redressal
and the remedies are in addition to private law remedy. The
issue was whether patients are consumers under the Consumer
Protection Act and could they claim damages for injury caused
by the negligence of the doctor, hospital or nursing home.
The main section under which a criminal case is filed against doctors
is Section 304B of the Indian Penal Code which deals with causing
death due to rash and negligent act.
The punishment is two years imprisonment or fine or both.
S.336 of the Penal Code provides that it is an offence to endanger the
human life or personal safety of others through a rash or negligent act.
The punishment is three months imprisonment or fine of Rs. 250 or
S.337 and 338 of the Indian Penal Code make it an offence to cause
simple hurt or grievous hurt through rash or negligent act.
The punishment can be upto six months of imprisonment or fine upto
Rs. 500 or both for simple hurt and punishment upto 2 years or fine
upto Rs. 1000 or both for causing grievous hurt.
A case against a doctor can be filed in Medical Council of the
concerned system of medicine.
Medical Councils do not have powers to award compensation or to
One way to reduce this treat is to draft legislation reserving criminal
prosecution for acts possessing the gross, wanton, and deliberate
misconduct, with an accompanying mens rea, that truly deserves
Another is for regulatory agencies and peer review boards to be more
proactive in uncovering negligent practices and weeding out
Criminal sanctions against health care personnel should be an
extraordinarily rare event in clinical medicine. Although cases are
sparse, the number of medical professionals facing criminal
prosecution is increasing. Clearly, the time to address this problem is