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A study of Medical Negligence cases decided by the Consumer Courts of Delhi

Thesis · January 2015

DOI: 10.13140/2.1.3130.4006

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Mukesh Yadav
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 Post Graduate Diploma in Healthcare
Operation & Quality Management
(PGDHO&QM)

First Batch-2014

Title: A study of Medical Negligence cases

decided by the Consumer Courts of Delhi

Dr.Mukesh Yadav
Enrolment No.0050314

Academy of Hospital Administration

(Institute of Healthcare Management Training & Research)
AHA House
C-56/43, INSTITUTIONAL AREA, SECTOR-62,
NOIDA, U.P.
http://www.ahaindia.org/

1
 Title
A study of Medical
Negligence cases
decided by the Consumer
Courts of Delhi

2
 Index

Sr. No. Contents Page No.

Abbreviations 04

1 List of Tables 05

4 Acknowledgement 06

5 Introduction 07

6 Aims & Objectives 17

7 Material & Methodology 19

8 Review of Literature 22

9 Observations & Discussion 48

10 Summary and Conclusions 76

10 Recommendations 77

11 Limitations 85

12 References 86

3
 Abbreviations
 DDCDRF: Delhi District Consumer Dispute Redressal Forum
 DSCDRC: Delhi State Consumer Dispute Redressal
Commission
 NCDRC: National Consumer Dispute Redressal Commission
 OP: Opposite Party
 RP: Respondent Party
 WD: West Delhi
 SD: South Delhi
 ED: East Delhi
 ND: New Delhi
 SW: South West
 NW: North West
 CD: Central Delhi
 WS: Written Statement
 AOA: Any One Accident
 AOY: Any One Year

4
 LIST OF TABLES
Sr. No. Table No. Content of Tables /Title Page No.

1 Table No.1 Reported Deaths due to Medical Negligence 10

every years Globally

2 Table No.2 Profile of Negligence cases globally 28

3 Table No.3 Type of Hospitals /Institutions/Clinics 67

(Govt./Private)
4 Table No.4 Distribution of Medical Negligence cases 68

(Negligence: Proved/Not Proved)

5 Table No.5 Compensation Clamed /Awarded in Medical 72

Negligence proved cases of DCDRC, Delhi

(n=15)
6 Table No.6 Specialty-wise Distribution of Medical 73

Negligence cases
7 Table No.7 Distribution of Medical Negligence case 73

(Medicine vs. Surgical Specialty)

8 Table No.8 Role of Expert Opinion in Medical 73

Negligence cases outcome

9 Table No.9 Distribution of Medical Negligence case 75

(Medicine vs. Surgical Specialty)

5
 Acknowledgement

This research work is dedicated to all the victims of medical negligence,

whose suffering motivated me to take initiative on this project. Their scarifies and
sufferings will not go waste, this research work will help in creating awareness on
the issue of medical negligence and definitively help in improving the quality of
healthcare in India.

(Dr.Mukesh Yadav)

PGDHO&QM,

2014 Batch

6
Introduction

7
Introduction:
The “World Consumer’s Right Day” is celebrated globally on March
15th and the “National Consumer’s Right Day” on December 24th each year in
India to create awareness among consumer’s about their rights. Supreme Court
verdict in 1995, brought the medical profession under the purview of the
Consumer protection Act, 1986 [1, 2, 3].
Doctors are always afraid of its impact on them, many landmark
judgment’s given by various consumer forums against doctors and health
institutions to award compensation in alleged negligence cases, percussions of
which can be felt every moment a doctor think of providing its services to a new
patient.
The Consumer Protection Act, 1986 (COPRA, 86), is a benevolent social
legislation that lays down the rights of the consumers and provides there for
promotion and protection of the rights of the consumers. The first and the only
Act of its kind in India, it has enabled ordinary consumers to secure less
expensive and often speedy redressal of their grievances.
The provisions of this Act cover ‘goods’ as well as ‘services’. The goods
are those which are manufactured or produced and sold to consumers through
wholesalers and retailers. The services are in the nature of transport, telephone,
electricity, housing, banking, insurance, medical treatment, etc.
Indian Medical Association vs. V.P. Shantha and Ors., (1995) [1] is a
three-Judge Bench decision. The principal issue which arose for decision by the
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.
Profession and Occupation:
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. However, in the observation made in the context of determining

8
professional liability as distinguished from occupational liability, the Court has
referred to authorities, in particular, Jackson & Powell [4] and have so stated
the principles, partly quoted from the authorities:
"In the matter of professional liability professions differ from occupations
for the reason that professions operate in spheres where success cannot be
achieved in every case and very often success or failure depends upon factors
beyond the professional man's control. In devising a rational approach to
professional liability which must provide proper protection to the consumer while
allowing for the factors mentioned above, the approach of the Courts is to require
that professional men should possess a certain minimum degree of competence
and that they should exercise reasonable care in the discharge of their duties. In
general, a professional man owes to his client a duty in tort as well as in contract
to exercise reasonable care in giving advice or performing services. [4]."
Scenario of Medical Negligence around the Globe and in India:
India is recording a whopping 5.2 million injuries each year due to medical
errors and adverse events. Of these biggest sources are mishaps from
medications, hospital acquired infections and blood clots that develops in legs
from being immobilized in the hospital. A landmark report by an Indian doctor
from Harvard School of Public health (HSPH) has concluded that more than 43
million people are injured worldwide each year due to unsafe medical care.
Approximately 3 million years of healthy life are lost in India each year due to
these injuries. [5]
Medical Mishaps and Fatal Errors:
 Health care errors is the 8th leading cause of death in the world
 Over 7 million people across the globe suffer from preventable surgical
injuries every year (WHO)
 Globally, 234 million surgeries take place every year, one in every 25
people undergo a surgery at any given time.
 In developing countries, the death rate was nearly 10% for a major
surgery

9
  Morality from general anaesthesia affected one in 150 patients while
infections were reported in 3% of surgeries with the mortality rate being
0.5%
 Nearly 50% of the adverse effects of surgery were preventable
 5.2 million medical injuries are recorded each year in India
 43 million people get injured each year due to unsafe medical care
worldwide
 About two-thirds of medical injuries occur in low and middle income
countries like India
Sources of Medical Mishaps: Wrong medications, Hospital acquired infections,
Blood clots
Table No.1
Reported Deaths due to Medical Negligence every years Globally
Sr. No. Country No. of Deaths every year
1 United States 98000
2 Canada 24000
3 Australia 18000
Source: Compiled from article published in the Times of India [5, 6]

Legal Scenario of Medical Negligence in India:

Have doctors become more negligent? The kinds of malpractice hitting the
headlines are not new: in 1953, a boy with a fractured limb died in Pune as a
doctor operated on him without proper anaesthesia [7].
Now the numbers are what first stand out, and what also make the
questions necessary. According to a 2013 study (Global Burden of Unsafe
Medical Care) by Dr.Ashish Jha of Harvard School of Public Health, of the 421
million hospitalizations in the world annually, about 42.7 million adverse events of
medical injury take place, two-thirds of which are from low-income and middle-
income countries. India records approximately 5.2 million cases a year, ranging
from incorrect prescription, wrong dose, wrong patient, wrong surgery, wrong
time to wrong drug. [8]
With public awareness, claims and litigation are rising. In the country's
consumer courts, they now top the list of 3.5 lakh pending cases. According to Dr

10
Girish Tyagi, registrar of Delhi Medical Council, the appellate authority for dealing
with such cases, the number of cases from overcharging, needless procedures,
wrong doctors to wrong decisions has zoomed in the last two years, from about
15 complaints a month to 40 now. [8]
A report by the Association of Medical Consultants shows that there were
910 medico-legal cases against doctors between 1998 and 2006 in Mumbai.
Now they are going up by 150-200 cases every year. [8]
The laws are problematic, entangling patients, doctors and hospitals in an
unholy mess. "Doctors and judiciary speak in very different language," says
Samuel Abraham, Law Officer with the Christian Medical College in Vellore.
"Typically, doctors respond to court summons by apologizing. But to the
judiciary, that's an admission of guilt." [8]
But it's the gap in the law that seems to leave both patients and doctors at
a dead end. "For the longest time in India, medical negligence was not seen as
compensable," says Barrister, Sushil Bajaj of The Integrated Law Consultancy,
Delhi. [8]
The CPA is for all consumers of goods and services-broken toasters to
patients dying of medical negligence all balled up in the same can of worms and
the language is "quality of service provided" not, strictly speaking medical
negligence.
Justice S. Ahmad observed that Medical Negligence plays its game in
strange ways. Sometimes it plays with life; sometimes it gifts an "Unwanted
Child" as in the instant case where the respondent, a poor labourer woman, who
already had many children and had opted for sterilisation, developed pregnancy
and ultimately gave birth to a female child in spite of sterilisation operation which,
obviously, had failed.
Smt.Santra, the victim of the medical negligence, filed a suit for recovery
of Rs.2 lakhs as damages for medical negligence, which was decreed for a sum
of Rs.54000/- with interest at the rate of 12 per cent per annum from the date of
institution of the suit till the payment of the decretal amount. [9]

11
Test of Standard: Bolam Test Approved
In Bolam vs. Friern Hospital Management Committee (1957) [10], McNair,
J., summed up the law as under:
"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 reasonably competent medical men at the time. There may be one or more
perfectly proper standards, and if he conforms with one of these proper
standards, then he is not negligent." [10]
This decision has since been approved by the House of Lords in many
cases [11, 12, 13].
Duties of Doctors:
In two decisions rendered by the Supreme Court of India, namely,
Dr.Laxman Balakrishna Joshi vs. Dr.Trimbak Bapu Godbole & Anr., 1969 [7] and
A.S. Mittal vs. State of U.P., 1989 [14], it was laid down that when a Doctor is
consulted by a patient, the former, namely, the Doctor owes to his patient certain
duties which are (a) a duty of care in deciding whether to undertake the case;
(b) a duty of care in deciding what treatment to give; and (c) a duty of care in the
administration of that treatment.
Issue of Damages:
"Kunal Saha's case [15] is a benchmark because for the first time we
recognized that there are other heads of compensation, the modern trends in tort
that need to be expanded." These range from "loss of consortium" for
deprivation of family relationship, "punitive damages" for gross negligence to
"exemplary damages" to punish and deter shocking conduct. For Bajaj,
whatever the end result, if the best doctor in the world errors even once he must
pay compensation as a professional. And it should be adequate. "A person who
has suffered cannot be without remedy."

12
Issue of Impact of increasing number of Medical Negligence
cases on the medical fraternity:
As the number of negligence lawsuits against physicians escalates, it
takes a terrible toll on doctors. "The alarming increase in litigation has triggered a
widespread fear," says Dr Kumar. [8]
"All doctors are keenly aware of the risks and even the hardworking,
conscientious ones feel vulnerable to litigation." Many hesitate to touch patients
with complications and those involved in lawsuits suffer from depression,
burnout, emotional exhaustion and often become suicidal, he explains. [8]
Impact on Doctor-Patient Relationship:
The obvious fallout is that the doctor-patient relationship is turning
adversarial. It has become an article of faith among many doctors that patients
kick up a fuss as an easy way to settle spiraling bills. "This is one of the most
common things we see and this is true across the country, especially the
metros," says Dr Kumar. [8]
"Doctors are under tremendous pressure. Any bad outcome today gets
labeled as 'medical negligence', with friends and family of the patient threatening
to call television channels to scare a hospital into waiving off their bills." [8]
Role of Indemnity Insurance and Cost of Treatment:
It's also pushing doctors toward heavy professional indemnity policies. "It
is usually around Rs.10 lakh, with a premium of Rs.3000-Rs.5000 per annum,"
says Dr.Neeraj Nagpal, Convenor, Medicos Legal Action Group, Chandigarh. If a
doctor wants to cover himself against a claim of Rs.11.5 crore, the amount
awarded to Saha, the premium will be between Rs.300000 and Rs.600000
annually. For that a doctor will have to attend to a large number of patients every
day and raise his fees substantially. "With rising litigation, everyone will have to
pay through their nose."
Need for Protection from False and malicious prosecution:
Once sued, most doctors are twice shy. But four years ago, in 2010, the
Supreme Court held out a ray of hope for doctors. A bench of Justices Dalveer

13
Bhandari and H.S. Bedi had pointed out the need to protect doctors from
"malicious prosecution":
"It is our bounden duty and obligation of the civil society to ensure that
medical professionals are not unnecessarily harassed or humiliated so that they
can perform their professional duties without fear and apprehension."
Change will require looking at medical practice and malpractice in a new
light: not just at material costs, but that the trust that exists between patients and
doctors remains sacred. [8]
If we look at relevant legal provisions, remission in duties & obligations, or
lapses (advertent or inadvertent) committed by doctors give rise to legal
liabilities. The liabilities are of two kinds, criminal & civil.
Civil liability arises in case of medical service rendered on payment of fee,
under section 73 & 74 of the Indian Contract Act.
Hon’ble Supreme Court of Inida in Jacob Mathew vs. State of Punjab &
Anr., 2005 [16] observed that with the awareness in the society and the people in
general gathering consciousness about their rights, actions for damages in tort
are on the increase.
Medical Ethics and Medical Negligence:
In M/s Spring Meadows Hospital & Anr. vs. Harjol Ahluwalia through K.S.
Ahluwalia & Anr.JT, (1998) [17], it was observed as under:
"In the case in hand we are dealing with a problem which centres round
the medical ethics and as such it may be appropriate to notice the broad
responsibilities of such organisations who in the garb of doing service to the
humanity have continued commercial activities and have been mercilessly
extracting money from helpless patients and their family members and yet do not
provide the necessary services. The influence exerted by a Doctor is unique. The
relationship between the doctor and the patient is not always equally balanced.
The attitude of a patient is poised between trust in the learning of another and the
general distress of one who is in a state of uncertainty and such ambivalence
naturally leads to a sense of inferiority and it is, therefore, the function of
medical ethics to ensure that the superiority of the doctor is not abused in

14
any manner. It is a great mistake to think that doctors and hospitals are easy
targets for the dissatisfied patient. It is indeed very difficult to raise an action of
negligence. Not only there are practical difficulties in linking the injury sustained
with the medical treatment but also it is still more difficult to establish the
standard of care in medical negligence of which a complaint can be made.
All these factors together with the sheer expense of bringing a legal action
and the denial of legal aid to all but the poorest operate to limit medical litigation
in this country."
It was further observed as under:
"In recent days there has been increasing pressure on hospital facilities,
falling standard of professional competence and in addition to all, the ever
increasing complexity of therapeutic and diagnostic methods and all this together
are responsible for the medical negligence. That apart there has been a
growing awareness in the public mind, to bring the negligence of such
professional doctors to light. Very often in a claim for compensation arising out of
medical negligence a plea is taken that it is a case of bona fide mistake which
under certain circumstances may be excusable, but a mistake which would
tantamount to negligence cannot be pardoned. In the former case a court can
accept that ordinary human fallibility precludes the liability while in the latter the
conduct of the defendant is considered to have gone beyond the bounds of what
is expected of the reasonable skill of a competent doctor."
Error in Judgment:
In this judgment, reliance was placed on the decision of the House of
Lords in Whitehouse vs. Jordan & Anr., (1981) [11]. Lord Fraser, while
reversing the judgment of Lord Denning (sitting in the Court of Appeal),
observed as under:
"The true position is that an error of judgment may, or may not, be
negligent; it depends on the nature of the error. If it is one that would not have
been made by a reasonably competent professional man professing to have the
standard and type of skill that the defendant holds himself out as having, and
acting with ordinary care, then it is negligence. If, on the other hand, it is an error

15
that such a man, acting with ordinary care, might have made, then it is not
negligence."
There is an urgent need to check this increasing trend in number of
medical negligence cases and deteriorating quality of healthcare in India. Study
of decided cases of medical negligence can provide an insight into the reasons
for medical negligence cases, factors mainly responsible for medical negligence
and impact of doctor-patient relationship, etc.
This study is attempted to explore the insight into ground realities &
problems in the present healthcare system with ways & means to prevent these
in healthcare institutions and medical fraternity. High cost of healthcare coupled
with practice of defensive medicine will further aggravate the situation. It is very
necessary at this juncture; because this is probably the only line of action which
can ensure justice to all the stakeholders and ensure a quality of healthcare to all
the needy human folk.
Outcome of this study will definitely beneficial for all, for healthcare
provider it will help in improving the quality of healthcare and doctor-patient
relationship, restoration of lost trust in medical profession.

16
Aims & Objectives

17
Aims & Objectives:
The following aims and objectives have been decided for the present study:

1. To study the pattern of medical negligence cases in Delhi

2. To study the reasons for medical negligence in Delhi
3. To know the profile of hospitals (Govt. /Private)
4. To study the pattern of compensation in medical negligence cases and
factor considered for awarding compensation
5. Role of Expert Medical Opinion in Medical Negligence cases

18
Material

&

Methods

19
Material and Methods

Delhi District Consumer Dispute Redressal Commission’s 50 judgments of

alleged medical negligence cases from year 2009 to 2014 were collected for
study. After thorough study of judgments, 15 cases in which medical negligence
was proved were selected for further analysis in present study. Judgments were
accessed from website http://confonet.nic.in/ [by using Key Word “Medical
Negligence” in text phrase search box]

Assumptions

Following assumptions has been made based on limitation of research

methodology:

 All case are uploaded on the NCDRC Website

 All cases are searchable with Text Phrase “Medical Negligence”

Various parameters /variables such as medical subjects and consultant

involved in medical negligence, hospital liability, consent, medical records,
unqualified staff, investigative tests, operative skill and diagnosis, hospital facility,
operative and postoperative complications, referral, advice, current update, time
to attend patient, other deficiency in services etc. were studied, tabulated and
discussed.

Variables:

 Type of Hospital /Practice: Govt. /Private /Single Specialty

/Multispecialty/ Charitable Hospital
 Specialty: Single Specialty /Multispecialty /Group Practice
 Type of Negligence:
o Administrative: Vicarious Liability, hospital liability, Product
Liability / Medical Record / Unqualified Staff, Investigation,
Infrastructure, Hospital Facility, Right to education /Information

20
 o Clinical /Medical Negligence /Civil and Criminal /Composite
etc.: Consent informed), operative skill and diagnosis, operative
and postoperative complications, referral, advice, current update,
time to attend patient, other deficiency in services etc.
o Civil Negligence
o Criminal Negligence
o Composite Negligence
o Contributory Negligence

Damages:

o Damages Claimed
o Damages Awarded
o Heads of Damages
o Maximum Damages Claimed /Awarded
o Minimum Damages Claimed /Awarded
o Average Damages Claimed /Awarded

Doctrine Applicable:

 Res Ipsa Loquitur

 Vicarious Liability

Role of Expert Medical Opinion:

 Expert Medical Opinion taken /not taken

 Impact of Expert Medical Opinion on the outcome of the case (Negligence
proved /Not proved)
 Expert Medical Opinion in Death due to Medical Negligence cases
 Autopsy conducted/ Not Conducted

21
Review of Literature

22
Review of Literature

India is observing ‘NATIONAL CONSUMER’S RIGHT DAY’ on December

24th every year since 2000. This is in addition to the ‘WORLD CONSUMER’S
RIGHT DAY’, the country is observing on March 15th every year since 1988. It is
providing another opportunity of highlighting the importance of the consumer and
the need to make the consumer more aware of his rights and responsibilities and
problems related to consumer affairs. [3]
The Consumer Protection Act, 1986 was enacted to better protect the
interests of consumers. With Globalisation of economy and enhancement of
consumerism, the importance of the Act has multiplied manifold. Under the Act,
Consumer Forums at District [570], State [32] and National level established to
provide simple, less expensive and time bound justice to consumer complaints
against any defect in goods or deficiency in services including unfair or restrictive
trade practices adopted by any person. [18, 19, 20, 21]
The Act was amended previously in 1991, 1993, 2002 and pending
amendment in 2014. To make the consumer protection Act more functional and
purposeful, a comprehensive amendment was carried out recently by the Govt.
and brought into force from March 15th, 2003. The Amended Act is expected to
greatly strength the consumer movement in the country. [20]
Current Scenario:
India’s public health care system is over burdened and not in good
reputation except few due to lack of funds, facilities and population explosion.
These circumstances lead to the rise in the private sector hospitals, nursing
homes, clinics general practitioner and even medical colleges. Such diverse
spectrum of health institutions make it almost impossible to be strictly monitored
by the government and other regulatory bodies, and unaware & illiterate
consumers are the one who gets a raw deal in the bargain. [20]
Public spending on health has increased from 0.2 to 0.9% of GDP over
the period from 1990-2002 and recommended to be further increased from the
existing 0.9% to 2% of GDP in NATIONAL HEALTH POLICY-2002 till 2010. Yet

23
there is no personal and family health data available, no effective monitoring of
health institutions by the regulatory bodies, and no regular health checkup
system in the country. [22]
In the current scenario, consumer’s rights as related to health services
need to be addressed and defined precisely. The issues like disregarding of
medical ethics, medical negligence, modalities of medico-legal cases,
responsibility and accountability of health care professionals and institutions in
case of grievances. [22]
In any hospital about 80% of the complaints are basically medical in
nature. The other 20% in the private hospitals deal with delay in billing, delay in
reports and some deficiency in the hospital rooms. [23]
Most of the aggrieved consumers are either not aware of their rights or the
redress available to them, and are too poor or even scared to approach
Consumer Courts for help. There is more accountability in private sector
hospitals because the patient is a paying ‘customer’. Thus there is general
acceptance of the fact that the patient needs to be told about all that he needs to
know, including the facilities at the hospital. It is in the interest of the hospital to
ensure patient satisfaction. [23]
Issue of Expert Opinion /Witnesses:
Few of us criticize that the consumer forums which try such cases, do not
have a medical practitioner on their panel who can screen medical complaints.
Without expert guidance, these consumer courts raise the possibility of
jeopardizing the principles of justice.
In the famous Spring Meadows Hospital vs. Harjot Ahluwalia Case in 1998
[17], the Supreme Court rejected the IMA appeal that only medical experts
should be allowed to judge cases of medical negligence. The Supreme Court
also upheld the composition of consumer fora, their competence and the
procedure followed by them in deciding cases of medical negligence.
The court held that it was not necessary in all cases to seek expert opinion
before proceeding with the matter. For simple and obvious cases, the consumer
courts were free to proceed without seeking expert opinion. In the Case of V

24
Kishan Rao vs. Nikhil Super Specialty Hospital [43, 51] the Apex court held
that expert witness opinion should be taken in complicated or criminal negligence
cases.
In order to analyze the medical redress machinery in India, the Ministry of
Health and Family Welfare, the World Bank, and VOICE- a consumer
organization, conducted a study of the regulatory framework in the health care
sector in India. The survey was conducted in Delhi, Lucknow and Hyderabad and
covered 81 big, medium and small hospitals. The results showed that internal
grievances redress mechanism in the medical institution was very poor and
customer relations were obviously a low priority. [23]
Study revealed that of the 81 hospitals surveyed, only 47% of hospitals
admitted to have consumer complaints in writing. This means that the rest of the
53% hospitals surveyed do not even bother to acknowledge complaints, only
15% had a written manual for receiving and processing complaints. [23]
It was observed that as the size of the hospitals became smaller, the
complaint mechanism become more informal. In the private sector, only 43% of
small hospitals had specific complaint boxes and redress systems of all the
hospitals surveyed, complaint boxes were found in only 11% (27) of the units.
[23]
In the study, it was found that consumer complaints related to clinical
services were surprisingly (43%) related to sanitation, followed by complaints
regarding hospital utilities (41%) and billing (28%). Even in public sector
hospitals, sanitation (41%), hospital utilities (30%), and medical care (26%) toped
the score. [23]
The fact that complaints related to poor clinical services did not feature
prominently may be because of poor consumer knowledge and low expectations
of patients regarding appropriate health care.
Health care and redress system is still in a stage of infancy in India, of the
total number of cases filed in State and District Forum in Delhi, Uttar Parades
and Hyderabad, only 0.1% to 2% cases were that of medical negligence,
indicating that quality medical care is still not top priority for consumers.

25
 With no data on incidence of medical errors and no authority tracking
cases of medical negligence, one might be forgiven for imagining that the over-8
lakh registered doctors in India are perfect professionals who never make any
mistakes.
Recently, the parliamentary standing committee on health and family
welfare expressed concern over the fact that there is negligible prosecution of
medical negligence cases in India. But the committee's observation draws
attention to an even more shocking fact — there is no centralised collection of
data on negligence cases filed in India or their outcome.
Since developed countries track such data meticulously, there are
constant efforts to bring down the incidence and curb the consequences of
medical errors.
In response to repeated questions in Parliament regarding data on
medical negligence cases, Health Minister Ghulam Nabi Azad came up with a
rather lame reason — health being a state subject no such information was
maintained centrally and no data was available on deaths caused by medical
errors in the country.
State medical councils and the Medical Council of India (MCI) are
supposed to maintain registers of all complaints filed against doctors, their status
and the outcome of such complaints. But till today, the MCI has not bothered to
put together regional data to build a central database for the nation. This means
that the magnitude of the problem of medical negligence remains ignored in
India.
Anyone looking for data on the subject in most is likely to run into a wall
since it is not made available in the public domain. The parliamentary
committee's recently submitted 73rd Report on the Indian Medical Council
(Amendment) Bill 2013 has drawn attention to the increasing incidents of
negligence on the part of doctors.
"All members of the MCI are medical professionals and whenever any
complaint of medical negligence or violation of code of ethics is brought before
the council, such cases are decided by the medical professionals themselves.

26
There are reports that the medical professionals probing into the allegations of
medical negligence are very lenient towards their colleagues guilty of negligence
and none of them is willing to testify another Doctor as negligent," stated the
report adding that the impact of this arrangement was that the prosecution in
medical negligence cases by the MCI is dismal.
"In other countries, non-doctors like patients and social workers are
mandatorily made members of the medical council and they are known as 'lay
members' and on occasions they may even lead the council as was the case with
UK's General Medical Council," pointed out the report recommending that the
new, revised legislation ought to make it mandatory to have such members on
the council.
Role of State Medical Councils:
In many state medical councils, the disciplinary committee hearing
complaints against doctors does include members from the lay public as is the
case in the Delhi Medical Council (DMC). However, a closer look at the
composition and working of the committee shows how easily this safeguard is
subverted. The disciplinary committee comprises three doctors including the
Chairperson of the DMC and one expert in the field of medicine related to the
complainant and three non-doctors — a lawyer nominated by the DMC doctors,
an MLA nominated by the State Assembly Speaker, and one eminent person
nominated by the Delhi Government. In the case of DMC the eminent person
nominated by the Government is Dr Prem Aggarwal, yet another doctor. DMC
Secretary Dr Girish Tyagi admits that the MLA, being very busy, hardly attends
any disciplinary hearings. The quorum required for the hearings is just three.
Hence, complaints against doctors end up being heard by just other doctors
despite the rule.
Role of NGOs:
According to People for Better Treatment (PBT), which was started by
Dr.Kunal Saha (he recently won the record settlement of over Rs 6 crore by the
Supreme Court for the death of his wife due to medical negligence), hardly any
doctors are found guilty by state medical councils.

27
 For instance, PBT's RTI enquiry found that just 515 cases were filed
against doctors for either medical negligence or ethical violation in one decade
(2001-10), barely four cases a month. And action was taken in just 9% — 15
doctors were removed from the council's list of registered practitioners and 30 let
off with a warning. In 91% of cases, either the case was closed or the accused let
off. [9]
Azad claimed on 10.12.2013 that 97 doctors were penalized by the MCI in
the last three years. But Mihir Banerjee, Vice President of PBT, counters that
these include doctors who were let off with a warning.
"State medical councils mostly comprise doctors and most are not even
functioning properly. The ones that function do not reveal any data on the
complaints or their outcome," says Dr Amar Jesani, Editor, Indian Journal of
Medical Ethics. In Maharashtra the medical council was not properly functional
for two decades. From 1990 till 2011, it remained mired in controversies
regarding malpractices in the election of council members.
"We had a tough time trying to get data from the different state
medical councils. Even with RTI, they give vague information. There is no
price to be paid when council members shield doctors in cases that come
before them as the public will never know what happens," says Dr Saha.
Table No.2
Profile of Negligence Cases Globally
Sr. No. Country Population (in No. of Deaths Injured
millions) Doctors
1 India 1200 840000 No data No data
2 USA 313.9 954000 98000 100000
3 UK 63.2 260000 3000 500000
4 Australia 22.7 70000 18000 50000
5 Canada 34.9 70000 24000 70000
Source: The Times of India Rema Nagarajan. Clean slate for doctors on medical negligence?
TNN. Dec 15, 2013, available at: http://timesofindia.indiatimes.com/india/Clean-slate-for-
doctors-on-medical-negligence/articleshow/27394151.cms [24]

28
 President of ASSOCHAM highlighted the growth opportunities for
Healthcare sector and related allied sectors in following words:
“India is at the inflection point of a major transformation of our healthcare
sector, driven by high quality service delivery, cutting edge research, technology,
innovation and enhanced skill-sets to achieve scalability and coverage for all. A
comprehensive social health protection mechanism will ensure a safety net,
adequate healthcare infrastructure, skilled healthcare human resources, access
to affordable drugs, special medical devices and efficient delivery modes.” –Rana
Kapoor, President, ASSOCHAM [25]
Opportunities in Healthcare
 India’s total healthcare expenditure is 4% of GDP (compared to 9.3% in a
developing country like Braizil) [26]- Public expenditure to more than
double from current 1.2% of GDP to 3% by 2020. [27]
 Healthcare industry to almost treble to Rs.16.8 Lakh Crore by 2020 from
Rs.6.25 Lakh Crore in 2014. [28]
 Indian pharma industry currently Rs.1.92 Lakh Crore [29]; and 10% global
production – to grow to Rs.3.3 Lakh Crore [30] at (9.5% CAGR) and
become 2nd largest in volume terms by 2020.
 70% of India’s Healthcare Infrastructure concentrated in Top 20 Cities
[30]; Bed density of 0.9 per 1000 (WHO guideline: 3.5 beds per 1000). [31]
 India is a preferred destination for medical tourism with significant cost
advantage, skilled medical professionals and world-class hospitals,
coupled with globally differentiated offerings like Ayurveds, Yoga, and
Unani
Direct benefits for the Indian Economy and Indian Citizens:
 Capital investment of Rs.19 Lakh [32] by 2020 to fulfill healthcare
infrastructure requirement of 25-30 Lakh beds
 Healthcare industry and related sectors employ nearly 90 Lakh people in
India – expected to generate additional 40 Lakh jobs by 2020 [33]

29
  Retail pharmacy sector to grow to Rs.2.4. Lakh Crore by 2020 [34],
accounting for nearly 75% of India Pharma market
 Cascading effect on development of allied sectors- Medical Technology
sector expected to grow from Rs.36000 Crore in 2014 to Rs.84000 Crore
[35] by 2020 at (CAGR of 15%)
 Increased public expenditure to reduce ‘out-of-pocket’ expenditure from
present 61% to 23% in 2022 [36] resulting in growth in per capita
disposable income
 Medical Tourism in India to grow by 30% becoming a Rs.62000 Crore
industry by 2020 [25-34]
Case Law on Medical Negligence in India:

Negligence as a ‘Tort’
The jurisprudential concept of negligence defies any precise definition.
Eminent jurists and leading judgments have assigned various meanings to
negligence. The concept as has been acceptable to Indian jurisprudential thought
is well-stated in the Law of Torts, Ratanlal & Dhirajlal [44] "Negligence is the
breach of a duty caused by the omission to do something which a reasonable
man, guided by those considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a prudent and reasonable
man would not do. Actionable negligence consists in the neglect of the use of
ordinary care or skill towards a person to whom the defendant owes the duty of
observing ordinary care and skill, by which neglect the plaintiff has suffered injury
to his person or property. The definition involves three constituents of negligence:
(1) A legal duty to exercise due care on the part of the party complained of
towards the party complaining the former's conduct within the scope of the duty;
(2) breach of the said duty; and (3) consequential damage. Cause of action for
negligence arises only when damage occurs; for, damage is a necessary
ingredient of this tort." [16]
According to Charlesworth & Percy on Negligence [48], in current forensic
speech, negligence has three meanings. They are: (i) a state of mind, in which it

30
is opposed to intention; (ii) careless conduct; and (iii) the breach of duty to take
care that is imposed by either common or statute law. All three meanings are
applicable in different circumstances but any one of them does not necessarily
exclude the other meanings. (Para 1.01) The essential components of
negligence, as recognized, are three: "duty", "breach" and "resulting damage",
that is to say:
1. The existence of a duty to take care, which is owed by the defendant to
the complainant;
2. The failure to attain that standard of care, prescribed by the law, thereby
committing a breach of such duty; and
3. Damage, which is both causally connected with such breach and
recognized by the law, has been suffered by the complainant. (Para 1.23)
If the claimant satisfies the court on the evidence that these three
ingredients are made out, the defendant should be held liable in
negligence. (Para 1.24) Negligence __ as a tort and as a crime The term
'negligence' is used for the purpose of fastening the defendant with liability
under the Civil Law and, at times, under the Criminal Law. It is contended
on behalf of the respondents that in both the jurisdictions, negligence is
negligence, and jurisprudentially no distinction can be drawn between
negligence under civil law and negligence under criminal law. The
submission so made cannot be countenanced inasmuch as it is based
upon a total departure from the established terrain of thought running ever
since the beginning of the emergence of the concept of negligence up to
the modern times. Generally speaking, it is the amount of damages
incurred which is determinative of the extent of liability in tort; but in
criminal law it is not the amount of damages but the amount and degree of
negligence that is determinative of liability. To fasten liability in Criminal
Law, the degree of negligence has to be higher than that of negligence
enough to fasten liability for damages in Civil Law. [16]
In the context of ‘medical negligence’ Honorable Supreme Court of India
has laid down the law in Jacob Mathew vs. State of Punjab. [16]

31
 In Post Graduate Institute of Medical Education and Research,
Chandigarh, vs. Jaspal Singh & Ors. [38], it was laid down that the failure to
perform the duties with reasonable competence amounts to negligence.

Hon’ble Supreme Court of India in Kusum Sharma & Ors. vs. Batra
Hospital and Medical Research Centre & Ors. [47], wherein the Hon’ble Apex
Court has clearly ruled that “As long as the doctors have performed their duties
and exercised an ordinary degree of professional skill and competence, they
cannot be held guilty of medical negligence

In a case of Achutrao Haribhau Khodwa vs. State of Maharashtra &

Ors. [50], the Apex Court held as under:
“A doctor will not be guilty of negligence if he has acted in accordance
with the practice accepted as proper by a responsible body of medical men
skilled in that particular art and if he has acted in accordance with such practice
then merely because there is a body of opinion that takes a contrary view will not
make him liable for negligence.”
Duty of Doctors and Hospitals:

The Supreme Court of India in Dr.Laxman Balkrishna Joshi vs.

Dr.Trimbak Bapu Godbole & Anr., [7] lays down the criteria for determination of
the professional duty of a medical man in the following way:

"A person who holds himself out ready to give medical advice and
treatment impliedly undertaken that he is possessed of skill and knowledge for
the purpose. Such a person when consulted by a patient owes him certain
duties, viz. (i) a duty of care in deciding whether to undertake the case, (ii) a duty
of care in deciding what treatment to give, and/or (iii) a duty of care in the
administration of that treatment. A breach of any of those duties gives a right of
action for negligence to the patient. The practitioner must bring to his task a
reasonable degree of skill and knowledge and must exercise a reasonable
degree of care”.

32
Medical Profession under Ambit of Consumer Protection Act:

The Supreme Court in Indian Medical Council vs. V. P. Shantha [1]

case of 1995 decisively included the health profession under the section 2 (1) (0)
of Consumer Protection Act (CPA). CPA includes all medical services offered by
the private and government doctors and hospitals. It exempts only those
hospitals and the medical practitioners of such hospitals, which offer free service
to all patients at all times.

Doctrine of Vicarious Liability:

Hospital liability with respect to medical negligence can be direct liability or

vicarious liability. Direct liability refers to deficiency of the hospital itself in
providing safe and suitable environment for treatment as promised. Vicarious
liability means the liability of employer for the negligent act of its employees. [45]

Issue of Contributory negligence:

The patient, by his own lack of care, contributes to the damage caused by
the negligent or wrongful act of the defendant. [10]

Issue of Composite negligence:

Composite negligence would arise when negligent acts or omissions of

two or more treating doctors have caused damages to a patient. In such a case,
the said patient does not contribute to the mishap or to the damages and, as
such, he is entitled to sue all or any one of the negligent doctor for damages.
Therefore two or more persons owe a duty of care towards any individual. [15]

Issue of Criminal negligence:

Criminal negligence is a form of negligence that arises when the doctor

shows gross lack of competence, or gross inattention or inaction, gross
recklessness, or gross negligence in the selection & application of remedies. It
involves an extreme departure from the ordinary standard of care. [46] It involves

33
an utter disregard for life and safety of patients and conduct deserving of strong
punishment. Consequently the degree of negligence is a material factor. [10]

Law laid down by Straight, J. in the case Reg vs. Idu Beg [52], has been
held good in cases and noticed in Bhalchandra Waman Pathe vs. State of
Maharashtra [53] a three-Judge Bench decision of this Court. It has been held
that while negligence is an omission to do something which a reasonable man,
guided upon those considerations which ordinarily regulate the conduct of human
affairs, would do, or doing something which a prudent and reasonable man would
not do; criminal negligence is the gross and culpable neglect or failure to
exercise that reasonable and proper care and precaution to guard against injury
either to the public generally or to an individual in particular, which having regard
to all the circumstances out of which the charge has arisen, it was the imperative
duty of the accused person to have adopted. In our opinion, the factor of
grossness or degree does assume significance while drawing distinction in
negligence actionable in tort and negligence punishable as a crime. To be latter,
the negligence has to be gross or of a very high degree. [16]
Issue of Standard of Care: Bolam Test for Standard of Care:
In State of Haryana and Ors. vs. Smt. Santra, [49] also Bolam's test has
been approved. This case too refers to liability for compensation under civil law
for failure of sterilisation operation performed by a surgeon. SC observed that we
are not dealing with that situation in the case before us and, therefore, leave it to
be dealt with in an appropriate case. [49]
Negligence by professionals in the law of negligence, professionals such
as lawyers, doctors, architects and others are included in the category of persons
professing some special skill or skilled persons generally. Any task which is
required to be performed with a special skill would generally be admitted or
undertaken to be performed only if the person possesses the requisite skill for
performing that task.
Any reasonable man entering into a profession which requires a particular
level of learning to be called a professional of that branch, impliedly assures the

34
person dealing with him that the skill which he professes to possess shall be
exercised and exercised with reasonable degree of care and caution. He does
not assure his client of the result. A lawyer does not tell his client that the client
shall win the case in all circumstances. A physician would not assure the patient
of full recovery in every case. A surgeon cannot and does not guarantee that the
result of surgery would invariably be beneficial, much less to the extent of 100%
for the person operated on. The only assurance which such a professional can
give or can be understood to have given by implication is that he is possessed of
the requisite skill in that branch of profession which he is practising and while
undertaking the performance of the task entrusted to him he would be exercising
his skill with reasonable competence. This is all what, the person approaching
the professional can expect.
Judged by this standard, a professional may be held liable for negligence
on one of two findings: either he was not possessed of the requisite skill which he
professed to have possessed, or, he did not exercise, with reasonable
competence in the given case, the skill which he did possess. The standard to be
applied for judging, whether the person charged has been negligent or not, would
be that of an ordinary competent person exercising ordinary skill in that
profession. It is not necessary for every professional to possess the highest level
of expertise in that branch which he practices.
In Michael Hyde and Associates vs. J.D. Williams & Co. Ltd., [55], Sedley
L.J. said that where a profession embraces a range of views as to what is an
acceptable standard of conduct, the competence of the defendant is to be judged
by the lowest standard that would be regarded as acceptable. (Charlesworth &
Percy, IBID, Para 8.03) [48] Oft 'quoted passage defining negligence by
professionals, generally and not necessarily confined to doctors, is to be found in
the opinion of McNair J. in Bolam vs. Friern Hospital Management Committee,
[10] in the following words: "Where you get a situation which involves the use of
some special skill or competence, then the test as to whether there has been
negligence or not is not the test of the man on the top of a Clapham omnibus,
because he has not got this special skill. The test is the standard of the ordinary

35
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." (Charlesworth & Percy, ibid, Para 8.02) [48]
After a review of various authorities Bingham L.J. in his speech in
Eckersley vs. Binnie, [56] summarised the Bolam test in the following words:
"From these general statements it follows that a professional man should
command the corpus of knowledge which forms part of the professional
equipment of the ordinary member of his profession. He should not lag behind
other ordinary assiduous and intelligent members of his profession in knowledge
of new advances, discoveries and developments in his field. He should have
such an awareness as an ordinarily competent practitioner would have of the
deficiencies in his knowledge and the limitations on his skill. He should be alert to
the hazards and risks in any professional task he undertakes to the extent that
other ordinarily competent members of the profession would be alert. He must
bring to any professional task he undertakes no less expertise, skill and care
than other ordinarily competent members of his profession would bring, but need
bring no more. The standard is that of the reasonable average. The law does not
require of a professional man that he be a paragon combining the qualities of
polymath and prophet." (Charlesworth & Percy, ibid, Para 8.04) [48]
Issue of Degree of Skill and Care:
The degree of skill and care required by a medical practitioner is so stated
in Halsbury's Laws of England [57]:
"The practitioner must bring to his task a reasonable degree of skill and
knowledge, and must exercise a reasonable degree of care. Neither the very
highest nor a very low degree of care and competence, judged in the light of the
particular circumstances of each case, is what the law requires, and a person is
not liable in negligence because someone else of greater skill and knowledge
would have prescribed different treatment or operated in a different way; nor is
he 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, even

36
though a body of adverse opinion also existed among medical men. Deviation
from normal practice is not necessarily evidence of negligence. To establish
liability on that basis it must be shown (1) that there is a usual and normal
practice; (2) that the defendant has not adopted it; and (3) that the course in fact
adopted is one no professional man of ordinary skill would have taken had he
been acting with ordinary care."
Issue of Difference of Opinion:
Above said three tests have also been stated as determinative of
negligence in professional practice by Charlesworth & Percy in their celebrated
work on Negligence (ibid, para 8.110) [48] In the opinion of Lord Denning, as
expressed in Hucks vs. Cole [58], , a medical practitioner was not to be held
liable simply because things went wrong from mischance or misadventure or
through an error of judgment in choosing one reasonable course of treatment in
preference of another. A medical practitioner would be liable only where his
conduct fell below that of the standards of a reasonably competent practitioner in
his field.
The decision of House of Lords in Maynard vs. West Midlands Regional
Health Authority, [59] by a Bench consisting of five Law Lords has been accepted
as having settled the law on the point by holding that it is not enough to show that
there is a body of competent professional opinion which considers that decision
of the defendant professional was a wrong decision, if there also exists a body of
professional opinion, equally competent, which supports the decision as
reasonable in the circumstances. It is not enough to show that subsequent
events show that the operation need never have been performed, if at the time
the decision to operate was taken, it was reasonable, in the sense that a
responsible body of medical opinion would have accepted it as proper.
Lord Scarman who recorded the leading speech with which other four
Lords agreed quoted the following words of Lord President (Clyde) in Hunter vs.
Hanley [60], observing that the words cannot be bettered
"In the realm of diagnosis and treatment there is ample scope for genuine
difference of opinion and one man clearly is not negligent merely because his

37
conclusion differs from that of other professional men. The true test for
establishing negligence in diagnosis or treatment on the part of a doctor is
whether he has been proved to be guilty of such failure as no doctor of ordinary
skill would be guilty of if acting with ordinary care".
Lord Scarman added
"a doctor who professes to exercise a special skill must exercise the
ordinary skill of his speciality. Differences of opinion and practice exist, and will
always exist, in the medical as in other professions. There is seldom any one
answer exclusive of all others to problems of professional judgment. A court may
prefer one body of opinion to the other, but that is no basis for a conclusion of
negligence."
His Lordship further added
"that a judge's 'preference' for one body of distinguished professional
opinion to another also professionally distinguished is not sufficient to establish
negligence in a practitioner whose actions have received the seal of approval of
those whose opinions, truthfully expressed, honestly held, were not preferred."
The classical statement of law in Bolam's case has been widely accepted
as decisive of the standard of care required both of professional men generally
and medical practitioners in particular. It has been invariably cited with approval
before Courts in India and applied to as touchstone to test the pleas of medical
negligence. In tort, it is enough for the defendant to show that the standard of
care and the skill attained was that of the ordinary competent medical practitioner
exercising an ordinary degree of professional skill. The fact that a defendant
charged with negligence acted in accord with the general and approved practice
is enough to clear him of the charge. Two things are pertinent to be noted.
Firstly, the standard of care, when assessing the practice as adopted, is judged
in the light of knowledge available at the time (of the incident), and not at the date
of trial. Secondly, when the charge of negligence arises out of failure to use
some particular equipment, the charge would fail if the equipment was not
generally available at that point of time on which it is suggested as should have
been used. A mere deviation from normal professional practice is not necessarily

38
evidence of negligence. Let it also be noted that a mere accident is not evidence
of negligence. So also an error of judgment on the part of a professional is not
negligence per se. Higher the acuteness in emergency and higher the
complication, more are the chances of error of judgment. At times, the
professional is confronted with making a choice between the devil and the deep
sea and he has to choose the lesser evil. The medical professional is often called
upon to adopt a procedure which involves higher element of risk, but which he
honestly believes as providing greater chances of success for the patient rather
than a procedure involving lesser risk but higher chances of failure. Which
course is more appropriate to follow, would depend on the facts and
circumstances of a given case.
Consent in Medical Practice and Medical Negligence:

Consent is an expression of autonomy & represents the right of a patient

to make a conscious decision in a medical matter concerning him. This is an area
of profound importance in contemporary medical science & health care. [1]

The doctrine of informed consent aims at giving sufficient information to a

patient to enable him to make a knowledgeable and informed decision about the
use of a drug, device or procedure in the course of treatment. It also includes the
duty to warn a patient of any likely harm in the course of treatment.

The usual practice prevalent nowadays is to obtain the consent of the

patient or of the person in-charge of the patient if the patient is not be in a
position to give consent before adopting a given procedure. So long as it can be
found that the procedure which was in fact adopted was one which was
acceptable to medical science as on that date, the medical practitioner cannot be
held negligent merely because he chose to follow one procedure and not another
and the result was a failure. No sensible professional would intentionally commit
an act or omission which would result in loss or injury to the patient as the
professional reputation of the person is at stake. A single failure may cost him
dear in his career.

39
 Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal
application and has to be applied with extreme care and caution to the cases of
professional negligence and in particular that of the doctors.
Medical Profession under the ambit of COPRA, 1986
Indian Medical Association vs. V.P. Shantha and Ors. [1] is a three-Judge
Bench decision. The principal issue which arose for decision by the SC 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. However, in the observation made in the context of determining
professional liability as distinguished from occupational liability, the Court has
referred to authorities, in particular, Jackson & Powell and have so stated the
principles, partly quoted from the authorities:
"In the matter of professional liability professions differ from occupations
for the reason that professions operate in spheres where success cannot be
achieved in every case and very often success or failure depends upon factors
beyond the professional man's control. In devising a rational approach to
professional liability which must provide proper protection to the consumer while
allowing for the factors mentioned above, the approach of the Courts is to require
that professional men should possess a certain minimum degree of competence
and that they should exercise reasonable care in the discharge of their duties. In
general, a professional man owes to his client a duty in tort as well as in contract
to exercise reasonable care in giving advice or performing services. [60]"
In Achutrao Haribhau Khodwa and Ors. vs. State of Maharashtra and Ors.
[50] the Court noticed that in the very nature of medical profession, skills differs
from doctor to doctor and more than one alternative course of treatment are
available, all admissible. Negligence cannot be attributed to a doctor so long as

40
he is performing his duties to the best of his ability and with due care and
caution. Merely because the doctor chooses one course of action in preference
to the other one available, he would not be liable if the course of action chosen
by him was acceptable to the medical profession.
It was a case where a mop was left inside the lady patient's abdomen
during an operation. Peritonitis developed which led to a second surgery being
performed on her, but she could not survive. Liability for negligence was fastened
on the surgeon because no valid explanation was forthcoming for the mop having
been left inside the abdomen of the lady.
Issue of Non Allopathic practicing Allopathy
In Poonam Verma vs. Ashwin Patel and Ors., [54] a doctor registered as
medical practitioner and entitled to practice in Homoeopathy only, prescribed an
allopathic medicine to the patient. The patient died. The doctor was held to be
negligent and liable to compensate the wife of the deceased for the death of her
husband on the ground that the doctor who was entitled to practice in
homoeopathy only, was under a statutory duty not to enter the field of any other
system of medicine and since he trespassed into a prohibited field and
prescribed the allopathic medicine to the patient causing the death, his conduct
amounted to negligence per se actionable in civil law. Dr. Laxman Balkrishna
Joshi's case [7] was followed. Vide para 16, the test for determining whether
there was negligence on the part of a medical practitioner as laid down in
Bolam's case (supra) was cited and approved.
Applicability of Doctrine of Res Ipsa Loquitur:
The doctrine of res ipsa loquitur was held applicable 'in a case like this'.
M/s Spring Meadows Hospital and Anr. vs. Harjol Ahluwalia through K.S.
Ahluwalia and Anr. [62] is again a case of liability for negligence by a medical
professional in civil law. It was held that an error of judgment is not necessarily
negligence. The Court referred to the decision in Whitehouse & Jorden, [11], and
cited with approval the following statement of law contained in the opinion of Lord
Fraser determining when an error of judgment can be termed as negligence:

41
 "The true position is that an error of judgment may, or may not, be
negligent, it depends on the nature of the error. If it is one that would not have
been made by a reasonably competent professional man professing to have the
standard and type of skill that the defendant holds himself out as having, 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."
Social Scenario on the issue of Medical Negligence:
SC Bench observed that [20] before we embark upon summing up our
conclusions on the several issues of law which we have dealt with hereinabove,
we are inclined to quote some of the conclusions arrived at by the learned
authors of "Errors, Medicine and the Law" (pp. 241-248), (recorded at the end of
the book in the chapter titled 'Conclusion') highlighting the link between moral
fault, blame and justice in reference to medical profession and negligence. These
are of significance and relevant to the issues before us. Hence we quote:
(i) The social efficacy of blame and related sanctions in particular cases
of deliberate wrongdoings may be a matter of dispute, but their
necessity in principle from a moral point of view, has been accepted.
Distasteful as punishment may be, the social, and possibly moral, need
to punish people for wrongdoing, occasionally in a severe fashion,
cannot be escaped. A society in which blame is overemphasized may
become paralysed. This is not only because such a society will
inevitably be backward- looking, but also because fear of blame
inhibits the uncluttered exercise of judgment in relations between
persons. If we are constantly concerned about whether our actions will
be the subject of complaint, and that such complaint is likely to lead to
legal action or disciplinary proceedings, a relationship of suspicious
formality between persons is inevitable. (ibid, pp. 242-243) [63]
(ii) Culpability may attach to the consequence of an error in circumstances
where substandard antecedent conduct has been deliberate, and has
contributed to the generation of the error or to its outcome. In case of

42
 errors, the only failure is a failure defined in terms of the normative
standard of what should have been done. There is a tendency to
confuse the reasonable person with the error-free person. While
nobody can avoid errors on the basis of simply choosing not to make
them, people can choose not to commit violations. A violation is
culpable. (ibid, p. 245). [63]
(iii) Before the court faced with deciding the cases of professional
negligence there are two sets of interests which are at stake: the
interests of the plaintiff and the interests of the defendant. A correct
balance of these two sets of interests should ensure that tort liability is
restricted to those cases where there is a real failure to behave as a
reasonably competent practitioner would have behaved. An
inappropriate raising of the standard of care threatens this balance.
(ibid, p.246) [63] A consequence of encouraging litigation for loss is to
persuade the public that all loss encountered in a medical context is
the result of the failure of somebody in the system to provide the level
of care to which the patient is entitled. The effect of this on the doctor-
patient relationship is distorting and will not be to the benefit of the
patient in the long run. It is also unjustified to impose on those
engaged in medical treatment an undue degree of additional stress
and anxiety in the conduct of their profession. Equally, it would be
wrong to impose such stress and anxiety on any other person
performing a demanding function in society. (ibid, p.247). [63] While
expectations from the professionals must be realistic and the expected
standards attainable, this implies recognition of the nature of ordinary
human error and human limitations in the performance of complex
tasks. (ibid, p. 247). [63]
(iv) Conviction for any substantial criminal offence requires that the
accused person should have acted with a morally blameworthy state of
mind. Recklessness and deliberate wrong doing, are morally
blameworthy, but any conduct falling short of that should not be the

43
 subject of criminal liability. Common-law systems have traditionally
only made negligence the subject of criminal sanction when the level of
negligence has been high a standard traditionally described as gross
negligence. In fact, negligence at that level is likely to be
indistinguishable from recklessness. (ibid, p.248) [63]
(v) Blame is a powerful weapon. It’s inappropriate use distorts tolerant and
constructive relations between people. Distinguishing between (a)
accidents which are life's misfortune for which nobody is morally
responsible, (b) wrongs amounting to culpable conduct and
constituting grounds for compensation, and (c) those (i.e. wrongs)
calling for punishment on account of being gross or of a very high
degree requires and calls for careful, morally sensitive and scientifically
informed analysis; else there would be injustice to the larger interest of
the society. (ibid, p. 248) [63] Indiscriminate prosecution of medical
professionals for criminal negligence is counter-productive and does
no service or good to the society.
SC Bench [20] summed up conclusions as under:
Negligence in the context of medical profession necessarily calls for a
treatment with a difference. To infer rashness or negligence on the part of a
professional, in particular a doctor, additional considerations apply. A case of
occupational negligence is different from one of professional negligence. A
simple lack of care, an error of judgment or an accident, is not proof of
negligence on the part of a medical professional. So long as a doctor follows a
practice acceptable to the medical profession of that day, he cannot be held
liable for negligence merely because a better alternative course or method of
treatment was also available or simply because a more skilled doctor would not
have chosen to follow or resort to that practice or procedure which the accused
followed. When it comes to the failure of taking precautions what has to be seen
is whether those precautions were taken which the ordinary experience of men
has found to be sufficient; a failure to use special or extraordinary precautions
which might have prevented the particular happening cannot be the standard for

44
judging the alleged negligence. So also, the standard of care, while assessing
the practice as adopted, is judged in the light of knowledge available at the time
of the incident, and not at the date of trial. Similarly, when the charge of
negligence arises out of failure to use some particular equipment, the charge
would fail if the equipment was not generally available at that particular time (that
is, the time of the incident) at which it is suggested it should have been used.
A professional may be held liable for negligence on one of the two
findings: either he was not possessed of the requisite skill which he professed to
have possessed, or, he did not exercise, with reasonable competence in the
given case, the skill which he did possess. The standard to be applied for
judging, whether the person charged has been negligent or not, would be that of
an ordinary competent person exercising ordinary skill in that profession. It is not
possible for every professional to possess the highest level of expertise or skills
in that branch which he practices. A highly skilled professional may be
possessed of better qualities, but that cannot be made the basis or the yardstick
for judging the performance of the professional proceeded against on indictment
of negligence.
The test for determining medical negligence as laid down in Bolam's case
[10] holds good in its applicability in India.
Res ipsa loquitur is only a rule of evidence and operates in the domain of
civil law specially in cases of torts and helps in determining the onus of proof in
actions relating to negligence. It cannot be pressed in service for determining
per se the liability for negligence within the domain of criminal law. Res ipsa
loquitur has, if at all, a limited application in trial on a charge of criminal
negligence. In view of the principles laid down hereinabove and the preceding
discussion, we agree with the principles of law laid down in Dr. Suresh Gupta's
case [64] and re-affirm the same. Ex abundanti cautela, we clarify that what we
are affirming are the legal principles laid down and the law as stated in Dr.Suresh
Gupta's case [64]. Bench clarified that we may not be understood as having
expressed any opinion on the question whether on the facts of that case the
accused could or could not have been held guilty of criminal negligence as that

45
question is not before us. Bench further added that we also approve of the
passage from Errors, Medicine and the Law by Alan Merry and Alexander McCall
Smith [63] which has been cited with approval in Dr.Suresh Gupta's case [64]
(noted vide para 27 of the report).
SC Bench [47] summarized law on medical negligence as
follows:
I. Negligence is the breach of a duty exercised by omission to do something
which a reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs, would do, or doing something
which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be
established by the prosecution must be culpable or gross and not the
negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill
and knowledge and must exercise a reasonable degree of care. Neither
the very highest nor a very low degree of care and competence judged in
the light of the particular circumstances of each case is what the law
requires.
IV. A medical practitioner would be liable only where his conduct fell below
that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine
difference of opinion and one professional doctor is clearly not negligent
merely because his conclusion differs from that of other professional
doctor.
VI. The medical professional is often called upon to adopt a procedure which
involves higher element of risk, but which he honestly believes as
providing greater chances of success for the patient rather than a
procedure involving lesser risk but higher chances of failure. Just because
a professional looking to the gravity of illness has taken higher element of
risk to redeem the patient out of his/her suffering which did not yield the
desired result may not amount to negligence.

46
VII. Negligence cannot be attributed to a doctor so long as he performs his
duties with reasonable skill and competence. Merely because the doctor
chooses one course of action in preference to the other one available, he
would not be liable if the course of action chosen by him was acceptable
to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no
Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the
medical professionals are not unnecessary harassed or humiliated so that
they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a
class of complainants who use criminal process as a tool for pressurizing
the medical professionals/hospitals particularly private hospitals or clinics
for extracting uncalled for compensation. Such malicious proceedings
deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they
perform their duties with reasonable skill and competence and in the
interest of the patients. The interest and welfare of the patients have to be
paramount for the medical professionals.(Dalveer Bhandari, J. and Harjit
Singh Bedi, J., 2010) [47]

47
Observations
&
Discussion

48
Allegations, Factors for Compensation and Role of Expert
Opinion and Important Observations of DCDRC, Delhi

Case No.1 [65]:

Main Allegations:

The main allegations of medical negligence, were that

1. Unwashed (impure) blood was transfused to his daughter
2. Extra dose of steroids was given
3. Unnecessary tests were conducted just to make money
4. The treating doctors did not have sufficient expertise
5. Course of treatment adopted by the respondents was not adequate
Expert Opinion:

It was added by in the Expert Opinion of the DMC that there appears to
be some degree of communication gap between the family and the patient and
treating doctors and there is enough scope for improvement.

Non communication at relevant stage amount to ‘Deficiency in Service’

DCDRC observed that however, to repeat, the Medical Council (DMC), in

this very matter, vide order dated 23.05.06 observed that there was some degree
of communication gap between the family of the patient and the treating doctors
that there is enough scope for improvement.

DCDRC further observed that thus, according to this document, relied

upon by the respondents themselves, the status of the patient had not been
communicated clearly at relevant stages and the family, of-course had to suffer
mental agony on that account.

DCDRC, hold the respondents to be deficient to this limited extent,

DCDRC directed to pay Rs.25000/- to the complainant, as compensation
including the cost of litigation within one month of receipt of this order.

49
Case No.2 [66]: Ortho Case / Radiologist Wrong Diagnosis / Bed
rest not advised

Allegations:

 Wrong Diagnosis
 No Advise of Bed rest

DCDRC Observations:

DCDRC observed that there was no mention of any fracture of ribs and
the patient continued taking medicines. The complainant cannot be disbelieved
that after consuming medicines for more than 10 days, his pain was not
subsiding and he had to rush to another doctor who prescribed him complete
bed rest for 30 days.
DCDRC further noted that we have perused the prescription of Dr. Mittal
of Maharaja Agrasen Hospital. He did not advise any bed rest. He asked the
patient to be admitted in the hospital but admission in the hospital does not
necessarily mean that he had suffered fracture. No period of rest was prescribed
by this doctor at all as per the prescription.
DCDRC further observed that there is no force in the argument of the
respondent that at initial stages sometimes the fracture cannot be detected
because it was detected by two other doctors from the same digital X-Ray.
Expert Opinion /Second Opinion:
On seeing the same X-Ray, Dr. Ashu Agarwal told the complainant that
he had suffered fracture of two ribs and similarly the doctor of DDU Hospital
Dr.J. Dayal also on seeing the X-Ray reported that X-Ray was showing fracture
of two ribs.
On the Issue of Standard of Care expected from Radiologist:
Duty of Radiologist
DCDRC observed that though in this case the complainant has not
suffered much but at the same time highest degree of attention and

50
concentration is expected from a Radiologist because the whole line of
treatment depends on his report.
The complaint cannot simply be thrown out of the window for the reason
that it was filed with a malafide intention and without any cause of action. There
was a definite cause of action in favour of the complainant for filing this
complaint because the Radiologist’s report prepared by Dr. Pradeep
Nehra was incorrect, which clearly shows that the X-Ray was seen very
casually in the emergency which is not expected from a doctor because a
patient after meeting a road accident rushes to a private hospital for some
good treatment and if such type of mistakes are committed by the doctors,
sometimes it may lead to serious consequences also.
Vicarious Responsibility of Hospital
Considering the entire facts and circumstances, we have come to the
conclusion that X-Ray report prepared by Dr. Pradeep Nehra was incorrect and
there was deficiency in service on the part of respondent hospital in treating the
patient.
Had he known at the first available opportunity that he had suffered
fracture of the ribs, he would have taken the accident seriously and taken
complete rest.
His process of recovery would have been faster at least by 10 days
for which he was under the treatment of Dr. Mittal.
Factors for Compensation

DCDRC after considered the entire facts and circumstances, complainant

was awarded a compensation of Rs.7000/- (inclusive of litigation expenses)
which was paid by New India Insurance Company with whom
Dr. Pradeep Nehra and the respondent hospital were insured.
Case No.3 [67]: Surgery Case / Postoperative care was not
proper

Alleged Negligence /Deficiency in service:

51
  Professional Miscounduct
 It is alleged that after operation even the pipe for urinate (Catheter) was
not removed by the staff of the hospital.
 The complainant was discharged with the pipe which he has to get
removed from some other private hospital at his own expenditure.
 It is stated that after operation no doctor came to attend the patient and no
injection fluid, glucose etc was given.

DCDRC Observations:
DCDRC (ED) came to the conclusion that though the operation was properly
conducted by the hospital authorities. However, the post operation treatment was not
properly given. The OPs have already charged / received a specified amount of
Rs.18000/- from the insurance towards the operation which we approve as the operation
was properly conducted.
Factors for Compensation:
However, we find that post operation treatment was not properly given to the
complainant and there is negligence on the part of the OPs for which the complainant
has suffered into mental agony harassment etc and he is entitled to be reasonably
compensated.
Case No.4 [68]: Surgery case (Radiologist/Urologist)/ Operation without
diagnosis/ Cystotomy vs. Cystoscopy/ Govt. Hospital

Alleged Negligence /Deficiency in service:

 Operation without proposer diagnosis and investigations
 The respondents, however, made manipulations in the discharge slip to
avoid their skin from legal action. Complainant No.1 get the ultra-sound of
kidneys and urine bladder of respondent No.2 then from expert doctors
and it was reported that there was no stone.
 Alleging that the respondents ignored the x-ray report and without
diagnosis by ultra-sound or further investigations conducted the operation
which amounts to culpable medical negligence.

52
Observations of the District Forum:
 As noticed above, the respondents had a doubt of a stone in the urine
bladder of the patient (complainant No.2) on the basis of initial x-ray and
suggested for an ultra-sound for confirmation for which a date was given
in the next month i.e., 03.08.06. However, the patient again visited the
hospital on 08.07.06 and was admitted and thereafter operation was
conducted on 10.07.06 but no stone was found in the urine bladder.
 It is true that being a government hospital there would be a heavy rush of
patients and no blame can be put to the respondents if the date of the
ultra sound was given in the next month i.e., 03.08.06 but the fact remains
that no ultra sound was got done before the operation.
 Version of the respondents is that ultra sound had already been got done
by the patient from some private lab but there is no evidence to this effect
on the file.
 Initially, as mentioned in the written statement, the Radiologist reported as
NAD on the basis of first x-ray but the patient was brought again on the
next day suffering with symptoms of bladder calculus and x-ray was
reviewed and then Radiologist opined that this could be bladder
calculus.
 Thus, there was a slight doubt about the presence of stone in the bladder
and in the circumstances it was more necessary to go for another
investigation like ultra sound.
 It has also come in evidence that the respondents did not go
for cystoscopy which is an investigative as well as curative procedure but
conducted cystotomy.
Factors for Compensation:
 It is, to repeat, a government hospital and no malafide can be attributed to
the respondents and the patient does not appear to have any
suffering after the operation but as per the material available on record,
they put the patient to operation without confirmation of the diagnosis

53
 which could be done by way of ultra sound or some other similar test and
we hold them slightly negligent to this extent and direct them to pay
Rs.25000/- to the complainants as compensation which shall include the
cost of litigation.
Case No.5 [69]:

Allegations and Deficiency in Service:

 Unqualified Doctors assisted operation
 Medical Record: The Complainant asked the O.P.-1 to 4 for the record of
treatment of the deceased who refused to give the same. At the time of
admission, the Complainant gave previous record also to O.P.-2 which
was also not returned.
 Operation was not conducted properly leading to Duodenal Leak
Expert Opinion:
 The penal of doctors was constituted and the post-mortem was conducted
at Molana Azad Medical College, Delhi which gave its report that death
was caused consequent upon Duodenal Perforation.
Observations of the District Forum:
 We have heard the arguments of the parties and gone through the
material on record carefully. We find that Sh. Dinesh Gupta was admitted
in O.P.-1 Nursing Home due to the abdominal pain where after admission
he underwent for surgical removal of the gallbladder. After operation he
was very much uncomfortable. He was asked by the OPs to be shifted to
some other good hospital as there were no ICU facilities. Hence the
Complainant took him to Bhagat Hospital where he was refused to be
admitted after seeing his critical condition then Complainant and his family
members took him to Sir Ganga Ram Hospital i.e., O.P.-6. The doctors of
O.P.-6 after examination informed that it is a case of Duodenal
Leak/Perforation i.e., a hole in the Duodenal which has been caused at
the time of removal of the gallbladder. After four days the patient died
and the post-mortem of the dead body was conducted at Molana

54
 Azad Hospital. The Post-Mortem report came to the conclusion that
the death was caused due to Duodenal Perforation.
 On the basis of the facts stated by the Complainant and the Post-Mortem
report it is clear that the operation of the deceased was not properly
conducted in the O.P.-1 hospital by its doctors. On going through the
record, we find that operation was conducted by O.P.-4 i.e., Dr. Vikas
Gupta and O.P.-2 Dr. Bhupinder Dhami was the Leader of the Team.
Postoperative care, Association with unqualified team members:
 At this stage, we have also examined the record of the Medical
Council along with other evidence and find that the team of Senior Doctors
constituted by Delhi Medical Council has examined the matter
carefully. The Medical Council gave its report that there was no qualified
assistant in the team, there was deficiency in post operating
care, monitoring and recording.
 The case is perfect example of malaise which plague numerous nursing
homes which are being run by such unscrupulous persons like Dr. J.
Raj Dhami who claim / project themselves as qualified doctors and
lure the gullible citizens into their trap and qualified doctors like
Dr.Vikas Gupta by associating themselves with such individuals
promote such nefarious activities.
 The Delhi Medical Counsil directs removal of name of Dr. Vikas Gupta
(DMC registration NO. 2071) from the State Medical Register for a period
of 30 days, stricture to be recorded in State Medical Register of Delhi
Medical Council.
 Director Health Services to be requested to investigate Shakuntala
Nursing Home in light of the observations made in this Order and to take
stringent action against it. Sh. J. Raj Dhami to be prosecuted u/s 27 of
Delhi Medical Council Act in addition to other provision of the law. The
Council also observed that Sh. J. Raj Dhami is not even a qualified doctor
and he prefixes “Dr.” to his name.

55
  The Medical Council in its opinion held the doctor guilty of medical
negligence and ordered the removal of Dr. Vikash Gupta O.P.-4 from the
State Medical Register of the Delhi Medical Council for 30 days.
 We have also examined the role of O.P.-5 and find that he is anaesthetist
who gave the anaesthesia to the deceased for operation. He was not
involved in the operation of the deceased. Further, the Medical Counsel
has not found him guilty in its report. Hence, we discharge the O.P.-5 from
the liability. Accordingly, his insurer the O.P.-7 i.e. United Insurance
Company is also discharged from the liability.
 In the light of the observation of Delhi Medical Council, it is clear that the
O.P. No.1, 2, 3 & 4 are the guilty of medical negligence and are liable for
payment of compensation to the complainants.
Factors for Compensation
The complainants have prayed this Forum for direction of payment of
Rs.20.00 lakhs. The details of the claim of compensation and the criteria of
demand have not been mentioned. However, it is an established case of
compensation. In our opinion, the quantum claimed by the complainants
appears to be on the higher side. We are of the opinion that an amount of
Rs.10.00 lakhs is the appropriate claim to be awarded.
In view of the above mentioned discussion, facts and circumstances and
the evidence available on record, we direct the OPs (O.P.-1 to 4 and O.P.-6) to
pay a sum of Rs.10.00 lakhs jointly or severally to the Complainants.
However the O.P.-6 i.e. Oriental Insurance Company is liable to pay the
amount to the extent of sum insured under the policy provided to O.P.-4. The
O.Ps are also directed to pay jointly and severally a sum of Rs.20000/- towards
the cost of litigation to the complainants.
Case No.6 [70]:

Allegations and Deficiency in Service: Misconduct of staff

 Unprofessional Attitude (Rude and Unprofessional Attitude)
 Delay in Dialysis, Kidney Transplant

56
  Tracheostomy was not done properly
Even in the ICU, the daughter of the complainant was treated recklessly
and negligently.

The attitude of the technicians, doctors and other staff of the OP

hospital was quite rude and unprofessional.

The staff did not perform suctioning to the patient properly. The fistula was
inserted in the arm of the patient which was also got spoiled due to the
negligence of the staff of the OP hospital.

The complainant pointed time to time all these dereliction of services to

the concerned doctors and senior staff / supervisors but none of them paid any
heed and kept on assuring the complainant that these type of misconduct would
not repeat.

Observations of the DCDRC:

On application of complainant, the Expert Opinion have also obtained
which is dated 4.12.2010 given by the Medical Board of Safdarjung Hospital,
New Delhi and VMCC, New Delhi. According to the said Expert Opinion, their
occurred acute anaphylactic reaction to the patient which may be due to first
use Kidney /re-use of fistula needle or other items directly from cidex
without having washed it properly as alleged by the attendants of the
patient. No other negligence has been pointed out by expert opinion. Moreover,
there is nothing on the record that kidney failure is due to negligence of the
concerned doctors.
As far as trouble in kidney is concerned, it is very serious decease and it
can only be cured up to some extent only due to transplant but there is no any
evidence on the record that complainant has arrange any kidney of his relation
for transplant of the kidney of the patient. Though, as per records, the doctors
of the OP hospital has given advised to the complainant for transplant of
the kidney. The seriousness of the kidney of deceased as well as the advice of
transplant of the same is also proved by the fact that complainant was getting

57
treatment regular from the OP hospital from 14.6.05 to till death to her kidney
problem and the kidney problem treatment was given to her
continuously. Therefore, the patient died due to her kidney problem which was
not cured even after best efforts of the concerned doctors of the OP hospital but
however some negligence have been committed by the Technician or staff of the
OP hospital, when the patient was on dialysis in inserting fistula in the arm of the
patient which may be of re-used.
Therefore, in these circumstances, it appears that the patient was not died
due to re-used of fistula needle because it was in the beginning and thereafter
she was alive at least 47 days, when she was in ICU. Which shows that the
doctors has made their best efforts to cure the patient as they have transferred
her to ICU and take care as required.
Therefore, in these circumstances, when there is no proof that the kidney
failure or other complications accrued during the ICU on dialysis due to
negligence of the concerned doctors, it cannot be said that the death of the
patient was caused due to negligence of the doctors.
Though, some minor negligence have been committed by the
technician as well as staff of the OP hospital in treatment on the dialysis
because Sh. Ahmed has not denied the allegations on affidavit as made by the
complainant.
Moreover, when the patient is in acute condition just before the death,
many complications occurred which is beyond the control.
Factors for Compensation:
Thus, the complainant has filed the present complaint against the OP and
prayed damages for damages in his favour against the OP hospital of
Rs.1500000/ (Rs. Fifteen Lakhs) towards trauma, anguish, mental agony, loss
suffered by complainant with Rs.300000/-(Rs. Three lakhs) as compensation
On account of unfair trade practice, medical negligence and on
account of deficient and defective services rendered by the OP in carrying out
their duties towards the complainant along with cost of proceeding.

58
 DCDRC observed that therefore, in these circumstances, the complainant
is entitled for physical and mental harassment made by the technician as well as
staff of the OP hospital towards the complainant.
DCDRC directed the OP to pay Rs.100000/- (Rupees One lakh) for
compensation to the complainant for his physical and mental harassment and
negligence, if any, committed by the staff of OP along with Rs.10000/- (Rs. Ten
Thousand) cost of litigation.

Case No.07 [71]: Gynae Case / Diagnostic Laparoscopy

Allegations:
 Benign Ovarian Cyst
 Unnecessary Procedure (Major Operation for Minor Operation)
 Over Billing (Rs.4000/- Rs.16000/-)
 Over-writing
 Ground of Emergency Surgery
 Lal Pathology Report
 That procedure adopted by the OP has wrongly been recorded in the papers.
The OP have not only charged the complainant in excess, what was
legally due but have violated the terms of agreement, which they have with the
Govt. of NCT of Delhi. Director DGHS may take note of this fact and may
institute appropriate proceedings against the OP for cheating the State.
That the OPs driven by greed of earning more money have
undertaken a procedure which was not at all warranted in the case of the
daughter of the complainant.
The irritating cyst was not removed and the hospital have charged much
more than what was prescribed for such surgical intervention.
This is a clear case of, not only of medical negligence, but also of
unfair medical practice.
It has been observed that these days corporate culture has overtaken the
basic fundamentals of the service to the humanity by the doctors and the
hospitals. They are indulging in unscrupulous procedures just for the
purposes of making money at the cost of the patient.

59
 In the present case the young girl of 18 years of age who was unmarried
at the time of the alleged operation was subjected to surgical procedure leaving
three permanent scars on her abdomen when there was no necessity of
performing any kind of surgery as the cyst in question could have been treated
conventionally and it was not necessary for saving the life as has been observed
by the panel of doctors of Safdarjung Hospital.
Doctors of the OP hospital may have been tempted to do the surgical
intervention so as to be in the good book of the hospital administration for
adding more finance to the kitty of the hospital.
The Lal Path Lab. Report is a clear indication of the incompetency of
the doctors who have performed the surgery. They could not be able to
remove the cyst from the ovary of the complainant’s daughter.
Expert opinion:
It is contended on behalf of the Ld. Counsel for the OPs that as per the
medical board opinion the line of treatment undertaken by the doctors at
the OP hospital was proper procedure and the diagnostic Laparoscopy
done in this case was warranted to provide the relief to the patient. The
counsel for the complainant submitted that the panel of Doctors of Safdarjung
Hospital has themselves opined that diagnostic Laparoscopy could be done in
this case, emphasis is laid on the word “COULD BE” and it is argued that it was
not the only sole option with the treating doctor to have gone for the diagnostic
Laparoscopy. There were other options available for the treatment of the ovarian
cyst. The panel have clearly recorded that the procedure adopted at the OP
hospital was not a life saving procedure in this case. This shows that it was
not warranted under the circumstances of the particular patient. The operation
could have very well been avoided.
Factors for Compensation:
DCDRC awarded a compensation of Rs.5 lacs to the complainant and his
daughter.

60
 This shall be recovered jointly and severally from the OPs. If it is not paid within
45 days the complainant shall be entitled for interest @9% over this amount till it is
finally paid. We further award a cost of litigation of Rs.6000/- to the complainant.
Total Compensation Rs.506000/-
Case No.08 [72]: Wrong side X-Ray
Allegations:
 That it was right knee but the x-ray was done of left knee. This has been
described as clerical mistake.
 This is a case of serious negligence leading to emotional trauma and
pain being due to wrong x-ray. We hold OP guilty of medical
negligence and deficiency.
 Doctrine of Res Ipsa Loquitur applicable

Factors for Compensation:

 Suffered pain
 A total compensation of Rs.60000/- inclusive of litigation charges (No
amount claimed)
Case No.09 [73]: Ophtha Case Non-functional Machine /
Administrative Negligence
Allegations:
 An allegation of wrong diagnosis.
 Delay in treatment due to non-functional machines (Administrative
Negligence)
 The doctors at the respondent hospital simply misguided the complainant
that she would be given that treatment knowing fully-well that their
machine was already out of order and even on subsequent visits she was
not given any time frame when machine would be operational.
Observations of the DCDRC:
 There is no doubt that complainant suffered unnecessary harassment,
trauma and inconvenience in visiting the hospital and she was harassed
by the hospital.

61
  Situation had become so bad that his son had to lodge a criminal
complaint with the local police.
 Considering the entire facts and circumstances we have no doubt that the
OP hospital and its doctors were grossly negligent in accepting the patient
for laser treatment knowing fully-well that their machine was out of order.

Factors for Compensation:

Compensation Awarded for the inconvenience and hardship

suffered by her which shall be inclusive of litigation expenses.

Case No.10 [74]: Radiologist /Physician/Surgeon A case of

enlarged Prostate /Wrong Reporting of size
Allegation:
 Wrong USG Report
 The complainant confronted the OP Hospital for the wrong report where
he was misbehaved. It is a clear case of medical negligence and breach
of duty of the doctor of the OP.
 It is due to some clerical error that the weight of Prostate was wrongly
written as 4.35 gms instead of 43.5 gms.
 Wrong report of size of prostate that it was a typographical error
 That the doctors at Mahesh Hospital were careless and negligent in
performing the ultrasound and submitting the report.
 That the OP Hospital and their Doctors were deficient in providing the
services and were thoroughly negligent in conducting and reporting the
ultrasound results.
 That the doctors at Mahesh Hospital were careless and negligent in
performing the ultrasound and submitting the report.
Duty of Radiologist
 Then also it was the duty of the Radiologist to have gone through the
report before signing this document and if he has signed it without going
through the contents of the report. He has committed negligence of the

62
 highest order because the report of ultrasound is always taken into
consideration by the treating Physician.
Factors for compensation:
 The complainant has claimed a sum of Rs.4 lacs as compensation on
account of mental pain agony and harassment etc. and Rs.50000/- as cost
of litigation.
Case No.11 [75]: Oncology case delay in diagnosis /Treatment
(TB / Cancer)

Allegations

 That OP 1 and OP 2 did not take proper care and precaution while giving
medical treatment to the deceased.
 visited the E.N.T. OPD
 Delay in Referral: There was definite delay in referring him and crucial
time was lost in his repeated visits to Oncology Clinic G.T.B. Hospital
 Unnecessary delay in surgery leads to progression of disease
 Medically negligent in providing proper medical treatment to the deceased.
Adverse Remarks on Expert Opinion:

 We discard the experts report dated 28.11.11 given by the doctors of

Safdarjung Hospital on the ground that the said report is against the
record inasmuch as per the said record the patient did not report to Doctor
from 20.06.05 to 15.07.05 (25 days) when cancer is a progressive
disease.
 We fail to understand as to why the Medical Experts Committee
constituted under the chairmanship of Dr. J.S. Bhatia and consisting of
Dr.Amar Bhatnagar, Dr.A.K. Rai, Dr. R. Chakra Borty and Dr.S.P. Katariya
preferred to give the report against the facts existed on the record.
 The second medical opinion has been obtained on the request of OP 7 to
8. In the facts and circumstances of the case we are inclined to take a
view that the medical expert committee constituted under the

63
 Chairmanship of Dr. J.S. Bhatia, Safdarjung Hospital, Delhi, preferred to
give a false report in order to give benefit to their brother-colleagues.

Factors for Compensation:

Compensation awarded for mental pain and agony and towards litigation
charges jointly and severally

Case No.12 [76]: Wrong diagnosis/ Wrong Procedure performed

Allegations:
 Wrong diagnosis (Cataract in Both eyes)
 Different procedure performed Lasik Surgery (Vision Correction/ Cataract)
 Denial of Medical Records
 Also, not making the medical records available to the Complainant for
post-operative care (leads us to draw negative inference on the O.P.’s
opinion and clearly smacks of covering their mistake)
 Their conduct amounts to medical negligence, which constitutes
deficiency-in-service
 Professional Misconduct and Unethical Activities
 Not liable to pay any illegal demands of the Complainant
 An informed consent was signed by the Complainant and his sister
 Limitation and prognosis was clearly explained to the Complainant
alongwith information booklet detailing the care and restrictions to be
followed before the procedure.

Expert Opinion:
 Canada Doctor
 Indian Doctor
 Vision not improved
Refund the cost paid by the Complainant for the i-Lasik surgery alongwith
a sum of Rs.660000/- for future expenses and compensation for deterioration of
quality of life on account of harassment and cost of filing the complaint.
Rs.90000/ for procedure

64
 Jointly and severely to refund to the Complainant a sum of Rs. 40000/-
charged from him.
They shall also pay a sum of Rs. 50000/- towards compensation for
mental agony and harassment including cost of litigation
 A total of Rs.90000/ Awarded as Compensation
Case No.13 [77]:

Allegations:
 Wrong report by City X-RAY (TSH High Level) Dr. Sunita Kapoor City
X-Ray & Scan Clinic
 Report by Dr.Lal Path Lab (Normal TSH Level)
 INMAS, Timarpur (Normal TSH Level)
 Star Imaging & Path Lab (Janta X -Ray Clinic) (Slightly higher
level)
Expert Opinion:
 DMC, attributed no medical negligence

Is it a case of medical negligence or simpl e error in a report?

W hether it is a case of medical negligence which is a more

serious allegation? or simply a case of negligence and deficiency in
service?
Factors for Compensation:
The complainant needs to be compensated for the mental
harassment and tension suffered .

65
Case No.14 [78]:

Allegations:
 Breach of agreement (exaggerated prognosis/ False claim)
 Unfair trade practice

Factors for Compensations:

 Refund of cost of treatment as per terms and conditions

Case No.15 [79]:

Allegations:
 Wrong report
 Qualification of Technician (Not known whether qualified or not?)
 Vicarious responsibility of Radiologist (for the mistake of technician)

W ho was negligent and deficient in service out of respondent no.1 &

2?

Factors for Compensations:

 Deficiency in service
 Refund of cost of treatment per terms and conditions of
treatment agreed upon between the parties
 Cost of litigation
 Account of pain suffering, physical and mental torture, medical
expenses and loss of marriage proposals etc., on account of
rendering of deficient services by the respondents in
discharging their duties.

Expert Opinion:
 Dr. G.R. Bhaskar, Director, Medico Legal Division, Truth Lab,
Hyderabad.

66
Observations and Discussions
Table No.3
Type of Hospitals /Institutions/Clinics (Govt./Private)
Sr. No. Contents No. of Cases (n=50) % (n=48)
1 Private Hospitals 43 89.58
2 Govt. Hospitals 05 10.42
Total cases 48 100.00
3 Not Admitted for Trial 02
Grand Total 50
*Two cases excluded
Type of Hospitals:
As evident from the Table No.3 out of 48 cases studied 43 (89.58%)
belongs to private hospitals and only 05 (10.42%) belongs to Government
Hospitals.

Reasons for low number of cases against Govt.

Hospitals/Doctors:

Reason for this low number of Government Hospitals could be following:

 Free services/services at low price provided by Government Hospitals and

whenever there is not expected outcome from
treatment/procedure/intervention it causes less hurt to them as there is at
least less financial damage.
 No. of Government Hospitals are less as compared to private hospitals
(including individual clinics) in Delhi i.e. why private hospitals are more
prone to case of medical negligence.
 Perception among consumers that Government Hospitals are not covered
under the Consumer Protection Act, 1986. There is need to study on
perception of consumers on this aspect.
 Low level of awareness on consumer court law
 Patients coming to Govt. Hospitals are mainly poor and illiterate and not
having knowledge/Awareness of COPRA, 1986.
 Their expectations against govt. hospitals are less as compared to high
cost healthcare in private hospitals and doctors

67
Reasons for Less number of cases in DCDRC in Delhi:

 High cost of healthcare and claim for higher compensation after

Amendments in 2002 (in District Consumer Court up to Rs.2000000/ and
in SCDRC claim from Rs.2000000 to 1 Crore)
 High per capita income in Delhi

Table No.4
Distribution of Medical Negligence cases (Negligence: Proved/Not
Proved)
Sr. No. Contents No. of Cases (n=48) %
1 Negligence not proved 33 68.75
2 Negligence Proved/Partially 15 31.25
Total cases 48 100.00
*Two cases excluded as not admitted for hearing
Outcome of Consumer Court Cases in terms of proof of
‘Deficiency in Service’ and/or adoption of ‘unfair trade
practices’:
As reveled from the analysis of cases (Table No.4) in terms of outcome of
consumer court cases in terms of whether negligence proved or not, out of 48
cases deficiency in service /unfair trade practice proved only in 15 (31.25%)
cases while in 33 (68.75%) cases complainant were not able to prove the
allegations of medical negligence against doctors/hospitals.

Reasons for this could be lack of awareness and knowledge among all
stake holders (patients/lawyers) and complexity of cases of medical negligence,
lack of Second Opinion/Expert Opinion on the issue of allegations of medical
negligence or Second Opinion/Expert Opinion not supported the allegation.

There is need to create awareness and interaction among medical

fraternity and patient and advocate dealing with medical negligence cases.
Forensic Medicine Expert can play a great role in this field either practice as
Expert for filing cases of Medical Negligence in various Consumer Court Cases
or can provide consultation to aggrieved patients and aggrieved hospital /
doctors.

68
Damages Awarded /Claimed:
As evident from the Table No.5 in 15 cases before the DCDRC of Delhi in
which negligence was proved, a total of Rs.3.7 Crore was claimed as damages
while amount awarded as damages was Rs.17.2 Lack. Average claim of
damages was Rs.7.38 Lack against Rs.1.15 Lack awarded as damages and
minimum damages claimed was Rupees Fifteen Thousand (Rs.15000.00)
against damages awarded Rupees Seven Thousand (Rs.7000.00). Maximum
damages claimed was Rupees Twenty Lack (Rs.20.00 Lacks) against maximum
damages awarded of Rupees Five Lack Twenty Six Thousand (Rs.526000.00).

There is no knowledge of substantiation of the amount of damages

calculation in India. There is lack of awareness about keeping the record of
expenses of treatment and /or procedures on the part of consumers. Damages
calculation for non-pecuniary damages is very difficult. Consumer courts are left
with use of discretion to award damages on non-pecuniary aspect in lump sum
amount. This argument gains strength as in at least three cases (Table No.5, Sr.
No.1, 2 and 8) no amount is claimed /mentioned in the complaint.

Need for Just and Adequate Compensation:

It is needed to come up with some formula to calculate damages on
objective bases and create awareness among all the stake holders. Award of
‘Just and adequate’ amount of damages (compensation) will definitely serve the
ends of justice for consumers and act as a deterrent in preventing the cases of
medical negligence by the doctors/hospitals.

Need for adoption of Formula for Calculation of Compensation/

Damages:
Formula for calculation of Amount of Damages will help in deciding the
amount of premium for Indemnity Insurance. Formula as adopted for the
Workman Compensation Act, the Motor Vehicle Act and as adopted for
calculation of compensation for Clinical Trial cases may serve as guidance in this
aspect.

Compensation scope and meaning defined and Interest on

compensation defined
In view of the above there is sheer and gravest kind of medical negligence
and also deficiency in service by the OP which is within the ambit and scope of

69
deficiency as defined under provisions of section 2(1) (g) of Consumer Protection
Act, 1986 which means:
“any fault, imperfection, shortcoming or inadequacy in the 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.”
On the concept of compensation in reference to consumer disputes, the
Hon’ble Supreme Court in case after case and recently in The Ghaziabad
Development Authority vs. Balbir Singh [83] held that word ‘compensation’ has a
very wide connotation and encompasses in its fold each and every component of
suffering by the consumer, namely, mental agony, harassment, physical and
emotional suffering and other kind of injustice done to him. The observations are
as under:
“The word compensation is of a very wide connotation. It may
constitute actual loss or expected loss and may extend to compensation for
physical, mental or even emotional suffering, insult or injury or loss. The
provisions of the Consumer Protection Act enable a consumer to claim and
empower the Commission to redress any injustice done. The Commission
or the Forum is entitled to award not only value of goods or services but
also to compensate a consumer for injustice suffered by him. The
Commission/Forum must determine that such sufferance is due to malafide
or capricious or oppressive act. It can then determine amount for which the
authority is liable to compensate the consumer for his sufferance due to
misfeasance in public office by the officers. Such compensation is for
vindicating the strength of law.”
It was submitted by Ld. Counsel for the OP that there is no privity of
contract between the complainant and the OP with regard to payment of
interest. The Supreme Court has also held that wherever there is no term
between the parties as to the liability of the service provider to pay interest, the
interest can be paid by way of compensation and that too at reasonable rate

70
which means neither too high nor too low. However, the concept of
compensation by way of interest under the provisions of CPA was dealt with by
the Supreme Court in Sovintorg (India) Ltd. vs. State Bank of India (1999) [84]
and it was held that where the contract does not provide for payment of interest
nor does the statue like CPA, 1986 provide for payment of interest, the interest
can be awarded by way of compensation only on equitable
grounds. Observations of Supreme Court in this regard are as under:
“There was no contract between the parties regarding payment of
interest on delayed deposit or on account of delay on the part of the
opposite party to render the service. Interest cannot be claimed under
Section 34 of the Civil Procedure Code as its provisions have not been
specifically made applicable to the proceedings under the Act. We,
however, find that the general provisions of Section 34 being based upon
justice equity and good conscience would authorize the Redressal Forums
and Commission to also grant interest appropriate under the
circumstances of each case. Interest may also be awarded in lieu of
compensation or damages in appropriate cases. The interest can also be
awarded on equitable grounds.” [85]

Specialty-wise Distribution of Medical Negligence cases

As evident from the Table No.6 that Orthopaedics, Obstetrics &

Gynaecology, General Surgery and General Medicine specialty doctors faced
with allegations of Medical Negligence (Deficiency in Service) in 07 (14.29%)
cases each, followed by specialty of Ophthalmology 06 (12.24%) cases and
Cardiology 05 (10.20%) cases and ENT 02(4.08%) cases respectively.
Surprisingly doctors practicing dentistry faced with allegation of medical
negligence in 04 (8.16%) cases which is a significant finding.

Surgery & Allied Specialty are at more risk of allegations of

Medical Negligence:
As evident from the Table No.7 that out of 48 cases of medical negligence
studied, Surgery and Allied Specialty faced with allegation of medical negligence
in 29 (59.18%) cases against only 12 (24.49%) cases belongs to Medicine and

71
Allied Specialty. Surprisingly 04 (8.16%) cases each belongs to allegation of
medical negligence against Dentistry doctors and Doctors /Hospitals provided
Diagnostic/ Investigation/ Physiotherapy services.

Reasons could be attribute to high cost of treatment for surgical

interventions as well as degree of damage (physical disability, suffering) suffered
by the complainant in availing surgical services as against services availed from
medicine and allied specialty doctors/hospitals.

Table No.5
Compensation Clamed /Awarded in Medical Negligence proved cases of
DCDRC, Delhi (n=15)
Sr. No. Specialty Compensation Claimed Compensation Awarded
1 Medicine *Suitable 25000.00
2 Orthopaedics *No information 7000.00
Available
3 Surgery 176500.00 18000.00
4 Surgery 105000.00 25000.00
5 Surgery 2000000.00 102000.00
6 Surgery 1800000.00 110000.00
7 Gynae & Obst 1000000.00 506000.00
8 Orthopedics *No information 60000.00
Available
9 Opthalmology 118400.00 7500.00
10 Radiology 450000.00 100000.00
11 ENT 1961000.00 526000.00
12 Ophthalmology 750000.00 90000.00
13 Lal Path Lab 1016000.00 7000.00
14 Cardiology 575000.00 95000.00
15 Dentist, 1500000.00 50000.00
Radiologist
Total 37666150.00 1728500.00
Maximum 2000000.00 526000.00
Minimum 15000.00 7000.00
Average 738551.00.00 115233.00
/Mean
*Assuming no amount clamed (0)

72
 Table No.6
Specialty-wise Distribution of Medical Negligence cases
Sr. Subject of Specialization No. of Cases %
No. (n=48)
1 Orthopaedics 07 14.58
2 Ophthalmology (Paediatrics) 06 12.50
3 Obst & Gynae 07 14.58
4 Dentistry 04 8.33
5 Surgery 07 14.58
6 Medicine 07 14.58
7 ENT 02 4.17
8 Cardiology (Superspeciality) 04 8.33
09 Miscellaneous (Physiotherapy) 01 2.08
10 Diagnostic/Investigation (Radiology, 03
Pathology, etc.) 6.25
Total 48 100.00
11 Cases Excluded 02

Table No.7
Distribution of Medical Negligence case (Medicine vs. Surgical Specialty)
Sr. No. Specialty Surgical/Medicinal No. %
1 *Medicine & Allied 12 24.49
2 Surgery & Allied 29 59.18
3 Dentistry 04 8.16
4 Miscellaneous (Physiotherapy, Diagnostic) 03 8.16
Total cases 48 100.00

Table No.8
Role of Expert Opinion in Medical Negligence cases outcome
Sr. Role of Expert No. Neg % Neg Not %
No. Opinion proved Proved
1 Expert Opinion 30 9 30 21
sought by the (62.5%)
DCDRC 70
2 Expert Opinion 18 6 33.3 12
not sought by (37.5%)
the DCDRC 68.7
Total Cases 48 (100%) 15 31.3 33 100.00

73
Role of Expert Opinion in Medical Negligence cases outcome
DCDRC sought opinion of Expert Medical Board in 30 (62.5%) cases and
in 18 (37.5%) medical negligence cases. Out of 30 cases in which Expert
Medical Opinion were sought, in only 9 (30%) cases medical negligence was
proved and in remaining 21(70%) cases medical negligence was not proved.

On the other hand 18 (37.5%) cases in which Expert Medical Opinion was
not sought by the DCDRC, in only 6 (33.3%) cases medical negligence was
proved and in 12 (68.7%) cases medical negligence was not proved.

It can be inferred from the above observations that Expert Medical Opinion
has not played much role in proof or disproof of medical negligence cases before
the DCDRC trial.

Reasons for this observation can be attributed to favour shown by the

Expert Medical Board as observed by the DCDRC in its judgments.

Alternatively degree of negligence was of such nature that Expert Opinion

cannot be of any help in disproving the negligence. These cases decided on the
evidence on record, facts and circumstances of the case.

It was very difficult for patient to bring Expert Opinion against the
doctors/health care institution, because most of the doctor either favoured
doctors/healthcare institutions or not willing to give any Expert Opinion.

In some cases patient gone for second opinion on their own which
(Investigation cases) favoured them during trail before the DCDRC in proving the
cases of negligence.

Illustration of casual way of disposal of case on the basis of

Expert Opinion by the DCDRC, New Delhi

As in Martin F D’souza vs. Mohd. Ishfaq [80] Hon’ble Supreme Court had
passed the following orders.
“117. We, therefore, direct that whenever a complaint is recovered against
a doctor or hospital by the Consumer For a (whether district State or National) or
by the Criminal Court then before issuing notice to the doctor or hospital against
whom the complaint was made the Consumer Forums or Criminal Court should
first refer the matter to a competent doctor or committee of the doctors,

74
specialized-in the field relating to which the medical negligence is attributed, and
only after that doctor or committee reports that there is a prima facie case of
medical negligence should notice be then issued to the concerned
doctor/hospital. This is necessary to avoid harassment to doctors who may not
be ultimately found to be negligent.” [81]
Table No.9
Distribution of Medical Negligence case (Medicine vs. Surgical Specialty)
Sr. Specialty No. % Neg Not % Neg %
No. Surgical/Medicina Proved Proved
l
1 *Medicine & Allied 11 24.49 09 81.82 02 18.18
2 Surgery & Allied 29 59.18 19 65.52 10 34.48
3 Dentistry 04 8.16 03 75.00 01 25.00
4 Miscellaneous 04 02 02
(Physiotherapy,
Diagnostic) 8.16 50.00 50.00
Total cases 48 100.00 33 68.75 15 31.25

Negligence against Surgical & Allied Specialty easy to prove:

As evident from Table No.9 that it is more easy to prove allegations of
medical negligence against Surgery and Allied Specialty as compared to
Medicine and Allied Specialty. Chances of proof of allegations of medical
negligence against Diagnostic Specialty (Radiology, Pathology, Biochemistry,
etc.) are highest at 50.00% cases, followed by Surgery & Allied Specialty with
34.48%, Dentistry with 25% and with least chances of prove in Medicine & Allied
Specialty with only 18.18% respectively.

Applicability of Doctrine of ‘Res Ipsa Loqutur’:

Reasons for these results could be more evident damage/disability in
Surgical & Allied Specialty as compared to Medicine & Allied Specialty. Cases
falling under the applicability of Doctrine of ‘Res Ipsa Loqutur’ more belong to
Diagnostic and Surgical & Allied Specialty as compared to Medicine & Allied
Specialty.

75
 Summary
&
Conclusions

76
Summary of Observations:
Out of 48 cases studied 43 (89.58%) belongs to private hospitals and only 05
(10.42%) belongs to Government Hospitals.

Average claim of damages was Rs.7.38 Lack and minimum damages claimed
was Rupees Fifteen Thousand (Rs.15000.00). Maximum damages claimed were
Rupees Twenty Lack (Rs.20.00 Lacks).

Average damages awarded of Rs.1.15 Lack and minimum damages awarded

were Rupees Seven Thousand (Rs.7000.00). Maximum damages awarded of
Rupees Five Lack Twenty Six Thousand (Rs.526000.00) by the DCDRC, Delhi.

Expert opinion (Medical Board /Second Opinion) has been taken care during trial
by the DCDRC except in facts and circumstances of cases which were
disregarded by the Experts.

Surgical & Allied specialties and investigational specialties are more at risk of
alleged medical negligence and subsequent probability of proof of medical
negligence.

Doctrines of ‘Res Ipsa Loquitur’ and ‘Vicarious Liability’ have been found
applicable in many cases. Bolam Test of 1957 has been found approved in most
cases.

Recommendations:
 There is need for similar studies and frequent audit of medical negligence
cases to find out the new and emerging causes of medical negligence in
future.
 Doctors and hospital owners are advised to go for Indemnity Insurance
cover of adequate limit to prevent loss by complementation to the
stakeholders.
 With increasing cost of healthcare claim for medical negligence are bound
to be raised in future. Govt. should increase funding for healthcare and
coverage by health insurance so that cost of healthcare can be controlled
to some extent.
 Expert opinion is of very much relevance in medical negligence cases for
both parties.
 Medical Ethics teaching and training on soft skills, especially of
communication skills will go a long way in not only improving the quality of
health care and satisfaction of patients but also in preventing medical
negligence cases.

77
Need for Classification of Medical Negligence Cases
There is need to group medical negligence cases

Grouping of medical negligence cases on the basis of control of

prevention i.e. control for prevention is with Employer /Administrator or with
clinician. On this basis medical negligence cases may be classified in following
two broad categories:

1. Clinical Medical Negligence

2. Administrative Medical Negligence

For the convenience of study and preventing strategy and stage of

medical negligence following classification will be appropriate:

1. Input related
a. Not Qualified
b. Not experienced
c. Not Equipped
d. Lack of Infrastructure
i. Equipment not available/Not functional
ii. Facilities not available (ICU, Ventilator)
iii. A.C. not functioning
2. Process Related
a. Operation related
i. Pre-operation
ii. During Operation
iii. Post-Operation
b. Procedure related
c. Consent related
d. Billing Problem
e. Medical Record related
f. Consent Related
g. Communication Related
h. Professional conduct related
3. Output related
a. Prognosis related
b. Death
c. Disability
d. Complication
e. Not satisfactory
4. Others
78
 a. Any other issue not covered in above three category
b. Unethical medical practices related
c. Second Opinion related
d. Referral related
e. Investigation related
f. Excessive fees related

When the doctors lose the litigation against them, it is usually not because
they were actually negligent. Mostly it is because of other reasons, some of them
are as under:

1. Poor medical records

2. Poor communication skills
3. Poor grievance redressal mechanism at their hospital
4. Poor image in the society
5. No self regulation at individual level or at the level of professional bodies
6. Lack of proper guidance when a legal notice or court notice is received
7. Proper reply is not prepared or proper supporting literature is not
submitted
8. Credible expert opinions are not submitted
9. Sometimes extraneous reasons difficult to explain and difficult to prove

It is very important for the professional bodies to form a credible team to

educate, enlighten & prepare medical practitioners for preventing / facing medical
litigation prudently. I find that inspite of so much harassment etc due to the
problem of medical litigations (civil & criminal) over these years, most medical
practitioners and most professional bodies are still complacent about this issue.

Duty of Doctor:
Every Doctor who enters into the medical profession 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.

79
 In two decisions rendered by this Court, namely, Dr.Laxman Balakrishna
Joshi vs. Dr.Trimbak Bapu Godbole & Anr. [7] and A.S. Mittal vs. State of U.P.,
[14], it was laid down that when a Doctor is consulted by a patient, the former,
namely, the Doctor owes to his patient certain duties which are (a) a duty of care
in deciding whether to undertake the case; (b) a duty of care in deciding what
treatment to give; and (c) a duty of care in the administration of that treatment.
Need for teaching of the Medical Ethics:
Since many cases of proved medical negligence are due to lack of ethical
practices, it is pertinent to give due emphasis on teachings of medical ethics in
medical curriculum. In a medical negligence case, M/s Spring Meadows Hospital
& Anr. vs. Harjol Ahluwalia through K.S. Ahluwalia & Anr.JT 1998 [17], it was
observed as under:
"In the case in hand we are dealing with a problem which centres round
the medical ethics and as such it may be appropriate to notice the broad
responsibilities of such organisations who in the garb of doing service to the
humanity have continued commercial activities and have been mercilessly
extracting money from helpless patients and their family members and yet do not
provide the necessary services. The influence exerted by a Doctor is unique. The
relationship between the doctor and the patient is not always equally balanced.
The attitude of a patient is poised between trust in the learning of another and
the general distress of one who is in a state of uncertainty and such
ambivalence naturally leads to a sense of inferiority and it is, therefore, the
function of medical ethics to ensure that the superiority of the doctor is not
abused in any manner. It is a great mistake to think that doctors and hospitals
are easy targets for the dissatisfied patient. It is indeed very difficult to raise an
action of negligence. Not only there are practical difficulties in linking the injury
sustained with the medical treatment but also it is still more difficult to establish
the standard of care in medical negligence of which a complaint can be made.
All these factors together with the sheer expense of bringing a legal action
and the denial of legal aid to all but the poorest operate to limit medical litigation
in this country."

80
 It was further observed as under:
"In recent days there has been increasing pressure on hospital facilities,
falling standard of professional competence and in addition to all, the ever
increasing complexity of therapeutic and diagnostic methods and all this
together are responsible for the medical negligence. That apart there has been
a growing awareness in the public mind to bring the negligence of such
professional doctors to light. Very often in a claim for compensation arising out of
medical negligence a plea is taken that it is a case of bona fide mistake which
under certain circumstances may be excusable, but a mistake which would
tantamount to negligence cannot be pardoned. In the former case a court can
accept that ordinary human fallibility precludes the liability while in the latter the
conduct of the defendant is considered to have gone beyond the bounds of what
is expected of the reasonable skill of a competent doctor."
Error in Judgment:
In this judgment, reliance was placed on the decision of the House of
Lords in Whitehouse vs. Jordan & Anr. (1981) [11]. Lord Fraser, while
reversing the judgment of Lord Denning (sitting in the Court of Appeal),
observed as under:
"The true position is that an error of judgment may, or may not, be
negligent; it depends on the nature of the error. If it is one that would not have
been made by a reasonably competent professional man professing to have the
standard and type of skill that the defendant holds himself out as having, 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." [49]
The principles stated above have to be kept in view while deciding the
issues involved in the present case. [49]

81
Need for Professional Indemnity Policy for Doctors and Medical
Practitioners [86]

This policy is meant for professionals like doctors to cover liability falling
on them as a result of errors and omissions (medical negligence) committed by
them whilst rendering professional service.

Highlights

This policy is meant for professionals (doctors) to cover liability falling on

them as a result of errors and omissions committed by them whilst rendering
professional service.
The policy offers a benefit of Retroactive period on continuous renewal of
policy whereby claims reported in subsequent renewal but pertaining to earlier
period after first inception of the policy, also become payable.
Group policies can also be issued covering members of one profession.
Group discount in premium is available depending upon the number of members
covered.

Scope

The policy covers all sums which the insured professional becomes legally
liable to pay as damages to third party in respect of any error and/or omission on
his/her part committed whilst rendering professional service. Legal cost and
expenses incurred in defence of the case, with the prior consent of the insurance
company, are also payable, subject to the overall limit of indemnity selected.
Only civil liability claims are covered. Any liability arising out of any
criminal act or act committed in violation of any law or ordinance is not covered

Who can take the policy?

The policy is meant for professionals. We issue 'Professional Indemnity'

policies to the following group of professionals:

82
  Doctors and medical practitioners: which covers registered medical
practitioners like physicians, surgeons, cardiologists, pathologists etc.
 Medical establishments: which covers legal liability falling on the medical
establishment such as hospitals and nursing homes, as a result of error or
omission committed by any named professional or qualified assistants
engaged by the medical establishment.
 Management consultants

How to select the sum insured?

In Professional Indemnity Policy, the sum insured is referred to as Limit of

Indemnity. This limit is fixed per accident and per policy period which is called
Any One Accident (AOA) limit and Any One Year (AOY) limit respectively. The
ratio of AOA limit to AOY limit can be chosen from the following:

 1: 1
 1: 2
 1: 3
 1: 4

The AOA limit, which is the maximum amount payable for each accident,
should be fixed taking into account the nature of activity of the insured and the
maximum number of people who could be affected and maximum property
damage that could occur, in the worst possible accident.

In the case of Professional Indemnity policy issued to engineers,

architects, interior decorators, lawyers, advocates, solicitors, counsels, chartered
accountants, financial accountants and management consultants, the Any One
Accident (AOA) limit is restricted to 25% of the Any One Year (AOY) limit.

83
How to claim?

The term "liability" means responsibility and "legal liability" means

responsibilities which can be enforced by law. Legal Liability may be classified
into Criminal Liability and Civil Liability. Only Civil Liability claims are payable.
Civil Liability claims will arise if there is prima facie evidence of negligence
by the insured resulting in injury or death to any third party or resulting in damage
to property belonging to a person other than insured.
Negligence will be proved only when following conditions are satisfied:

1. Existence of duty of care

2. Breach of this duty
3. Injury suffered by a person or property damaged as a result of that breach.

In case of any event likely to give rise to a liability claim as described

above, insurance company should be informed immediately. In case any legal
notice or summons is received, it should be sent to the insurance company. The
company has the option of arranging the defence of the case.

The event giving rise to the claim should have occurred during the period
of insurance or retroactive period and the claim first made in writing against the
insured during the policy period. The maximum amount payable including
defence cost will be the AOA limit selected. The Any One Year limit will get
reduced by the amount of claim or indemnity paid for any one accident. Any
number of such claims made during the policy period will be covered subject to
the total indemnity not exceeding the Any One Year limit.

The policy will not pay for claims arising out of contractual liability,
intentional non‐compliance of any statutory provision, loss of goodwill, slander,
fines, penalties, libel, false arrest, defamation, mental injury etc. [86]

84
Limitations:

Need for further Research:

 Need for comparing the outcome with other states where Expert Opinion
was not taken
 Need for study of Speedy Disposal of Medical Negligence cases
 No uniformity in allegations due to cultural and educational variations

85
References

&

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86
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93

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