Medical Negligence

1. Medical Negligence
INCRAA
1st Feb, 2009
AIIMS, New Delhi
Karnika Seth
Managing Partner
SETH ASSOCIATES All rights reserved © SethAssociates2009
ADVOCATES AND LEGAL CONSULTANTS

2. Medical profession within the ambit of
the CPA
 In 1995, the Supreme Court decision in Indian Medical Association
vs. V.P Shantha (1995)6 SCC 651 brought the medical profession
within the ambit of ‘ service’ as defined in the Consumer Protection
Act, 1986. This defined the relationship between patients and medical
professionals as contractual.
 Section 2(1) (o) CPA : “service” is defined under the CPA as service of
any description which is made available to potential users and includes
but not limited to the provision of facilities in connection with banking,
financing, transport, processing, supply of electrical or other energy,
board or lodging or both, housing construction, entertainment,
amusement or purveying of news or other information but doesn't
include the rendering of any service free of charge or under a contract
of personal service.”

3. Nature of medical services within
purview of CPA
 All kinds of services rendered by medical practitioners except
where such services are rendered free of charges to all and
under contract of personal service comes within ambit of
“service” under CPA.
 Contract of personal service cannot be assumed in absence of
relationship of master and servant.
 Hospitals where medical services are rendered free of cost to
all -held not within purview of CPA. Payment of token charges
will not alter nature of services rendered by such hospitals.
 Wherever charges are collected from those patients who are
able to pay- those hospitals are covered under the Act.

4. Duties of a medical practitioner in law
 Laxman Balkrishna Joshi v
Trimbak Bapu Godbole and
anr MANU/SC/0362/1068 it was
held-
 Implied undertaking that the
doctor is possessed of skill and
knowledge for giving medical
advice and treatment.
 Duty of care in deciding
whether to undertake the case
 Duty of care in deciding what
treatment to give
 Duty of care in administration of
treatment

5. Three ingredients of Tort of Negligence
 A breach of any of these duties
gives a right of action for
negligence to the patient- A civil
action for tort of negligence
 To establish Tort of negligence
three ingredients are essential-
 X owed a Duty of care to Y
 X’s acts or omissions constituted
breach of those duties
 Leading to an injury or damage to Y
 Must be shown that there was a
causal link between the breach of
duty and harm.
 it must be shown that the harm
was not too remote.

6. Deficiency in services under CPA
 Section 2 (1) (g) CPA defines ‘deficiency in service ‘ as any fault ,
imperfection, shortcoming, or inadequacy in quality, nature and manner
of performance which is required to be maintained by or under any law
for the time being in force or has been undertaken to be performed by a
person in pursuance of a contract or otherwise in relation to any service.
 A determination about deficiency in service for the purpose of Section 2 (1) (g)
is to be made by applying the same test as is applied in an action for damages
for negligence.
 ‘Consumer’ defined under Section 2 (1 ) (d) ii means a person who hires or
avails of any service for a consideration which has been paid or partly paid and
partly promised , or any beneficiary of such services with his prior approval but
does not include a person who avails the services for any commercial purpose.
 Complainant under under Section 2 (1)b means a consumer, any voluntary
consumer association, Central government or State government, one or more
consumers & incase of death of a consumer, his legal heir or representative

7. The BolamTest
 The standard of care which is required from a
medical practitioner as laid down by McNair J in
Bolam v Friern Hospital Management Committee
(1957)1 WLR 582-
 “ the test is the standard of the ordinary skilled man
exercising and professing to have that special skill. A
man need not possess 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 article.”

8. Issue of informed consent
 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.“
 Bolam applies to all the acts and omissions constituting diagnosis and
consequential treatment, and Hedley Byrne applies to all advisory activities
involving the communication of diagnosis and prognosis, giving of advice on
both therapeutic and non-therapeutic options for treatment, and disclosure of
relevant information to obtain informed consent.

9. CPA and redressal forums.
 To provide a simple, speedy and inexpensive redressal of
consumer grievances, the Act envisages a three-tier quasi-
judicial machinery at the national, state and district levels.
 These are: National Consumer Disputes Redressal
Commission known as National Commission, State Consumer
Disputes Redressal Commissions known as State
Commissions and District Consumer Disputes Redressal
Forum known as District Forum;
 At present, there are 34 State Commissions, one in each
State/UT and 571 district fora besides the National
Commission.
 Pecuniary jurisdiction criteria

10. Procedural matters
 Period of limitation
 A complaint is only admitted by any of the competent
forums under CPA if it is filed within two years from
the date on which the cause of action has arisen.
 Procedure to file a complaint
 A complaint can be filed in a District Forum or as per
pecuniary jurisdiction in another forum within local
limits of whose jurisdiction the opposite party or any
of the opposite parties resides or carries on
business, or has a branch office or personally works
for gain.

11. Procedure followed by consumer
courts
 Consumer courts proceed to settle disputes as per
Section 13(2) (b)-(i) on the basis of evidence brought
to its notice by the complainant and the opposite
party, where opposite party denies or disputes the
allegations contained in complaint (ii) or on basis of
evidence brought to its notice by complainant where
opposite party omits or fails to take any action to
represent his case within the time given by the
forum.
 By virtue of Section 13(4) of CPA- District forum has
the same powers as are vested in the civil court
under code of Civil Procedure while trying a suit

12. Vicarious liability
 In case of Cassidy v Ministry of Health 1951 (2) K.B 343 and later in
Gold and ors v Essex county council .1942 2 All ER 237 it was held
that a hospital authority is liable for the negligence of doctors and
surgeons employed by authority under a contract of service/contract
for service arising in course of performance of their professional
duties.
 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.

13. Non-Allopath practicing Allopathy
If a person practices medicine without
possessing either the requisite qualification or
enrolment under Indian Medical Council Act,
1956, he/she becomes liable to be punished
with imprisonment or fine or both
The Hon’ble Supreme Court in Poonam Verma
Vs A. Patel & Ors: I (1996) CPJ 1 (SC)

14. Criminal liability for medical
negligence
 In Dr. Suresh Gupta vs Govt of NCT of Delhi AIR
2004 SC 4091, it was held that where a patient
dies due to negligent medical treatment of the
doctor ,the doctor can be made liable in civil law
for paying compensation and damages in tort
and at the same time, if the degree of negligence
is so gross and his act was reckless as to
endanger the life of the patient, he would also be
made criminally liable for offence under Section
304 A of IPC.( reliance placed on R v Adomako
(1994) (3)All ER 79).

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