By Ms. Sandhya Tolat, Advocate and Solicitor
Sandhya.email@example.com | Dec 7, 2020
There is increasing awareness and judicial activism around medical negligence cases in India. Through legal jurisprudence over the years, the Hon’ble Supreme Court of India (SC) has upheld the Right to Health as a fundamental right under Article 21 of the Constitution of India, extended both to Indians and non-residents equally . The Directive Principals of State Policy also imposes a duty upon States to provide proper and adequate medical and healthcare facilities.
Through this article we attempt to decode the complex dichotomy of a Patients’ Rights v/s Medical Professional Integrity and Autonomy and what constitutes medical negligence.
What is Medical Negligence?
The SC held “every doctor has a duty to act with a reasonable degree of care and skill” .Stringent onus is put on the complainant to prove negligence of the medical practitioner beyond reasonable doubt. The essential elements for medical negligence  are:
1. Medical practitioner owes a duty of care to the complainant.
2. Failure to inform the patient of risks involved.
3. If the risk was disclosed, patient would have avoided the injury/damages.
4. Defendant has breached this duty of care.
5. Complainant has suffered injury /consequential damages due to this breach.
6. Breach of the duty of care would give rise to an actionable claim of negligence.
Thus, liability of doctor does not simply arise when the patient has suffered injury, but when injury is resultant from the conduct of the doctor, which has fallen below that of reasonable care. To bring a case under medical negligence, the complainant must establish and prove all the above elements. In exceptional circumstances a complainant may invoke the principle of res ispa loquitur or “the thing speaks for itself” where no proof of negligence is required as the incident establish the negligence itself.
When is the Doctor Liable?
Not every medical case in which something goes wrong can be treated as a case of medical negligence. Some of the landmark judgments on doctor’s liability are discussed below:
1. A doctor can be held liable for negligence only if it is proved that he failed to act with reasonable care.
2. An error of judgement constitutes negligence only if a reasonably competent professional with standard skills that the doctor has, and acting with ordinary care, would not have made .
3. If doctor is skilled, has adopted right course of treatment in best interest of patient , considered “proper” by a body of medical professionals ,cannot be held negligent only because something went wrong  or because someone else of better skill or knowledge would have prescribed a different method or way of treatment or patient not cured .
4. Before issuing notice to a doctor basis complaint received, concerned authority should first refer it to a competent and specialized doctor/panel. Only if a prima facie case is established, should a notice be issued to the concerned doctor/hospital, so as to avoid harassment .
5. Hospitals held vicariously liable for the acts of negligence committed by the doctors engaged or empaneled by it .Likewise, a senior doctor shall also be vicariously liable for acts of his junior team members while attending to a patient.
Patient’s Legal Remedies?
1. Complaint-Consumer Protection Act,2019 (“Act”)
Medical services are explicitly included under the ambit of the Act  under the definition of “Services” and Deficiency of Services. A complaint can be filed before the District/State/National Consumer Dispute Redressal Commission depending on the value of services paid as consideration ( <1cr,>1cr <10 cr,>10 cr respectively) and appealed against, if dissatisfied. Hospitals providing medical services free of charge across board to all patients would stand outside the purview of the Consumer Protection Act (“Act”), whereas hospitals which render free services to a certain category of patients, while providing for services which are charged to the bulk of others, would not lie outside the purview of the Act .
2. Complaint-Indian Medical Council (IMC) Act,1956
Complaints for medical negligence can also be raised with the State Medical Councils constituted under the IMC Act where the accused doctors are registered. However possibility of a conflict of interest between the inquiry team and the accused doctors and technical questions raised by panel of doctors to patients causes an impediment to justice.
3. Civil Remedy- A Case of Negligence under Law of Torts
Under the torts law or civil law, a case of medical negligence is maintainable even if medical services are provided free. Patients can take recourse to tort law under negligence and claim compensation. Here, the heavy onus (burden) of proof is on the patient to prove what constitutes a medical negligence, as discussed in detail above.
4. Criminal Remedy- Section 304A of the Indian Penal Code,1890 (IPC)
A criminal complainant can be filed for medical negligence u/s 304A of the IPC where death of a person is caused by a rash or negligent act not amounting to culpable homicide. U/s 80 (accident in doing a lawful act) nothing is an offence that is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. Likewise u/s 88, a person cannot be accused of an offence if act is performed in good faith for the other’s benefit, does not intend to cause harm even if there is a risk, and the patient has explicitly or implicitly given consent. It is held by SC  that “To impose criminal liability u/s 304-A, it is necessary that the death should have been the direct result of rash and negligent act of the accused, without other person’s intervention”.
The law around medical negligence has surely evolved over time, still much needs to be done, both, to give an impetus to patients’ rights for speedy justice and also for protecting honest and innocent medical practioners from harassment against wrongful complaints.
 State of Punjab v/s M.S Chawla (AIR 1997 SC 1225), Vincent Panikurlangara V/s Union of India (AIR 1987 SC 990)
 State of Haryana v/s Smt.Santra (AIR 2000 SC 3335)
 Maharaja Agrasan Hospital v/s Master Rishabh Sharma ( SC order dated 16.12.2019 in Civil Appeal 6619 of 2019)
 Spring Meadows Hospital & Anr v/s Harjol Ahluwalia & Anr (1998 4 SCC 39)
 Dr.Laxman Balakrishna Joshi v/s Dr.Trimbak Bapu Godbole (AIR 1969 (SC) 128)
 Dr.Prem Luthra v/s Iftekhar (200)11 CLD 37 (SCDRDC Uttaranchal)
 Martin F. D’Souza V. Mohd. Ishfaq2009;(2) Supreme Court 40
 Supra 3,Savita Garg v. National Heart Institute (2004) 8 SCC 56; Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC 634;
 Indian Medical Association v. V P Shantha AIR 1996 SC 550: (1995) 6 SCC 651
 Supra 8, Union of India & Anr vs N.K.Srivasta & Ors (SC order dated 23.7.2020 in Civil Appeal 2823 of 2020)
 Kurban Hussein v. the State of Maharashtra(1965) 2 SCR 622