MEDICAL NEGLIGENCE IN INDIA

Medical negligence has become one of the serious issues in the country in recent years. Even
the medical profession, which is known to be one of the noblest professions, is not immune to
negligence which often results in the death of the patient or complete/partial impairment or
any other misery which has adverse effects on the patient’s health. There are instances where
doctors who are under-educated leads to the proceedings in the court of law due to the
magnitude of negligence or deliberate conduct shown by the doctors. Commission of
mistakes or Negligence within the health profession could result in minor injuries or even
lead to some serious injuries and these mistakes could even lead to death. Since no one is
perfect in this world, a person who is skilled and has knowledge of a particular subject can
also commit mistakes. To err is human but to replicate the same mistake due to one’s
carelessness is negligence.

The fundamental reason behind medical negligence is that the carelessness of the doctors or
medical professionals are often ascertained in various cases where reasonable care is not
taken during the diagnosis, during operations, while injecting anesthesia, etc.

‘Medical negligence’ can be defined as the improper or unskilled treatment of a patient by a

medical practitioner. This includes negligence in taking care from a nurse, physician,
surgeon, pharmacist, or any other medical practitioner. Medical negligence leads to ‘Medical
malpractices’ where the victims suffer some sort of injury from the treatment given by a
doctor or any other medical practitioner or health care professional.

Essentials of medical negligence

The term ‘Medical negligence’ consists of two words – medical and negligence. Negligence
is solely the failure to exercise reasonable care. Medical negligence is no different. It is only
that, in case of medical negligence, the doctor is the defendant.
In an action for negligence, the following essentials are required:
 The defendant owed a duty of care to the plaintiff.
 The defendant made a breach of that duty.
 The plaintiff suffered damage as a consequence of that breach.
A doctor owes certain duties of care to his patients, they are as follows:
  It is his duty to decide whether he wants to undertake the case or not,
 It is his duty to decide what treatment to give and;
 It is his duty to decide the administration of treatment.
If a doctor fails to perform the aforesaid duties it results in breach of duty and gives a right of
action to the patient. A breach of duty is committed by a doctor when he does not perform the
degree of care like a reasonable doctor.

In Kusum Sharma v. Batra Hospital (2010 AIR (SC) 1050), it was held by the Supreme Court
that a doctor often adopts a procedure which involves a higher element of risk, but in doing
so he honestly believes that it will provide greater chances of success for the patient. If a
doctor has taken a higher risk to redeem the patient out of his/her suffering and it did not
yield the desired result, this may not amount to medical negligence.

In Jasbir Kaur v. State of Punjab (1995 ACJ 1048, AIR 1995 P H 278, (1995) 110 PLR 343),
a newly born child was found missing from the bed in a hospital. The child was found
bleeding and near the wash-basin of the bathroom. The hospital authorities argued that the
child had been taken away by a cat which caused the damage to him. The court held that the
hospital authorities were negligent and had not taken due care and precaution. Thus, awarded
the compensation amounting to Rs. 1 lakh.

Standard of care
A standard of care specifies the appropriate treatment and medication procedure as per the
requirements that should be taken into account by a doctor while providing the treatment to
his patients. The care should not be of the highest degree nor the lowest.
Here, the degree means the level of care an ordinary health care professional, with the same
training and experience, would render in similar circumstances in the same community. This
is the critical question in medical malpractice cases and if the answer is “no,” and one
suffered injury as a result of the poor treatment, one may file a suit for medical malpractice.
In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole and Anr. (1969
AIR 128, 1969 SCR (1) 206), the Supreme Court held that a doctor has certain aforesaid
duties and a breach of any of those duties can make him liable for medical negligence. A
doctor is required to exercise a reasonable degree of care that is set for this profession.
Duty of care
A duty of care in cases of medical negligence is an obligation on one party (doctor) to take
care to prevent harm being suffered by another (patient). Generally, doctors owe an
obligation to take care of their patients.

There are certain requirements to establish a duty of care. They are as follows:

 A physician is not asked to deal with everyone but when he is taking a case then he
should deal with it with proper care and in accordance with the set standard of care. A
doctor or clinical practitioner prescribing a patient to seek a provider of an extra
health practitioner is acceptable. However, when there is an emergency, a medical
professional ought to deal with the patient. No health care professional shall
immediately resist dealing with the case unless it is out of the area of his expertise.
 The physician should never stretch nor reduce the gravity of a patient’s condition. He
will have to make sure that he gives proper treatment to the patient considering the
type of ailment the person is suffering from.
 A doctor must have patience as he cannot do without it. The confidentiality of the
details of the patient should be kept secret. However, in a few cases, he can reveal the
details if he feels that it is his duty to do so. For instance, if there is a disease that is
spreading and is dangerous for people then he can make it public and let others know
about it.
 A physician or a doctor is free to choose whom he wants to treat but in case of
emergency he cannot deny dealing with the patient. But after undertaking a case, the
health care professional cannot withdraw from the case without informing the family
members of the sufferer. A temporarily or fully registered medical practitioner should
not voluntarily commit any act of negligence that deprives his patients of the standard
of care.
 When a physician who deals with a particular problem and has expertise in that field
is unavailable and another physician is sent for the treatment, the acting doctor is
entitled to get his charges but should ensure the patient’s approval or permission to
resign on the coming of the physician engaged.
Burden of proof
The burden of proof of negligence generally lies with the complainant. The law requires a
higher standard of evidence to support an allegation of negligence against any doctor. In
cases of medical negligence, the patient must establish a claim against the doctor in order to
succeed.

In Calcutta Medical Research Institute vs Bimalesh Chatterjee (1 (1999) CPJ 13 (NC)), it was
held that the onus of proving proofs against negligence and deficiency in service was clearly
on the complainant.

Proof of negligence
It has been held in different judgments to charge a doctor for medical negligence the burden
of proof lies upon the person who alleges negligence against him (patient). It is a known fact
that things can go wrong even with the specialists. And the guilt or negligence can only be
established if his acts fall below the standard of care that he ought to take.

LANDMARK JUDGEMENTS IN INDIA

1. INDIAN MEDICAL ASSOCIATIONS v. V.P. SHANTHA AND ORS.

Citation- 1996 AIR 550, 1995 SCC (6) 651 - Date of Judgement- 13 November 1995

In 1995, the Supreme Court delivered a historic decision in Indian Medical Association v
VP Shantha which brought the medical profession within the ambit of a “service” as defined
in Section 2(1)(o) of the Consumer Protection Act, 1986, and clarified earlier conflicting
decisions regarding this issue given by various High Courts and Consumer Forums.

This decision redefined the relationship between patients and medical professionals as
contractual and recognized the right of patients to file a complaint under the Consumer
Protection Act for injuries sustained in the course of medical treatment. Patients were
provided with an alternative, inexpensive and speedy remedy for adjudication of medical
negligence claims.
Issues Involved
Whether a medical practitioner, hospital, or nursing home can be regarded as rendering
“service” under Section 2(1)(o) of the Consumer Protection Act, 1986?
Under what circumstances can the service render at a hospital/nursing be regarded as
“service” under Section 2(1)(o) of the Consumer Protection Act, 1986?

Brief Facts of the case

A series of decisions led to confusion and contradictions in the judiciary regarding the scope
and application of the Act in cases of medical negligence.
In Dr. A.S. Chandra v. Union of India, a Division Bench of the Andhra Pradesh High Court
held that service rendered for consideration by private medical practitioners, private
hospitals, and nursing homes is “service” for Section 2(1)(d) of the Act and the persons
availing such services are “consumers” within the meaning of Section 2(1)(d) of the Act.

A different view was taken in the case of Dr. C.S. Subramanian v. Kumarasamy & Anr.,
where a Division Bench of the Madras High Court held that the services rendered to a patient
by a medical practitioner or by a hospital by way of diagnosis and treatment, both medicinal
and surgical, would not be a “service” and therefore a patient cannot be considered to be a
“consumer” within the meaning of the Act. It, however, recognized paramedical services as
falling under the ambit of the definition of “service”.

Conflicting approaches were taken in various judgments of the National Commission. In its
judgment and order dated December 15, 1989, it held that persons who avail themselves of
the facility of medical treatment in Government hospitals are not consumers and since the
payment of taxes by the public would not constitute “consideration”, the service would
essentially be rendered free of charge falling in the exclusionary part of the definition of
“service” under the Act. In its judgment dated April 21, 1992, the National Commission held
that the activity of providing medical assistance for payment carried on by hospitals and
members of the medical profession falls within the scope of the expression “service”.

Owing to the lack of uniformity in judicial interpretation a series of appeals, special leave
petitions, and the Writ Petitions were filed against the contradictory decisions of the High
Courts and subordinate courts. These were heard together and decided by the Supreme Court
in the present case of Indian Medical Association v VP Shantha.
Arguments Advanced of the Case
Issue 1. Whether a medical practitioner, hospital, or nursing home can be regarded as
rendering “service” under Section 2(1)(o) of the Consumer Protection Act, 1986?
The Supreme Court keeping in mind the wide amplitude of the definition of “service” in the
main part of Section 2(1)(o), held in the affirmative.

It rejected the argument put forth by the petitioners contending that services rendered by a
person belonging to a “profession” would not fall within the ambit of the Act. Even though
medical practitioners are governed by the Indian Medical Council Act and are subject to the
disciplinary control of Medical Councils of India, they are not immune from a claim for
damages on the ground of negligence.

The Court was unable to agree with the submission that a determination about deficiency in
medical service for Section 2(1)(g) cannot be judged based on any fixed norms. It observed
that a deficiency in service may be due to obvious faults attributable to medical practitioners
which can be easily established such as removal of the wrong limb or the performance of an
operation on the wrong patient, etc. The Court held that a determination about deficiency in
service is to be made by applying the Bolam test as laid down in the English case of Bolam v
Friern Hospital Management Committee for tortious action for damages for negligence.

The Bolam test provides that a medical practitioner must bring to his task a reasonable degree
of skill and knowledge and must exercise a reasonable degree of care. When consulted by a
patient, he owes a duty of care in deciding whether to undertake the case, in deciding what
treatment, and in the administration of that treatment. A breach of any of these duties gives a
right of action for negligence to the patient.

Issue 2. Under what circumstances can the service render at a hospital/nursing be regarded as
“service” under Section 2(1)(o) of the Consumer Protection Act, 1986?
Holding that the definition of “service” is wide enough to include services rendered by
medical practitioners, the Supreme Court proceeded to consider the exclusionary part of
Section 2(1)(o). The exclusionary part excludes services rendered (i) free of charge; or (ii)
under a contract of personal service.
Concerning (i), it held that doctors and hospitals/nursing homes who render service without
any charge to every person availing the service would not fall within the ambit of the Act.
This would fall in the exclusionary part of the definition of service. However, medical
services rendered on payment of consideration are included under Section 2(1)(o).

The Court further considered a situation where free medical services are provided to only
those persons who cannot afford to pay off them, and held that such services would
undoubtedly fall within the ambit of the Act since these expenses are met out of the income
received from paying patients.

Concerning (ii), the court reiterated the distinction between a “contract of service” and a
“contract for service”. The fundamental difference is that in the former, the employer enjoys
a degree of control over the work of the employee whereas in the latter, the independent
contractor so employed is not subject to the control of the employer and is free to exercise
discretion. The court held that the contract between the medical practitioner and his patient
cannot be treated as a contract of personal service as a master-servant relations are absent. It
would be a contract for services and therefore, will not be covered by the exclusionary part.

The Court finally concluded that Service rendered to a patient by a medical practitioner
(except where the doctor renders service free of charge to every patient or under a contract of
personal service), by way of consultation, diagnosis, and treatment, both medicinal and
surgical, would fall within the ambit of “service” as defined in Section 2(1) (o) of the Act.

Judgement

1) Service rendered to a patient by a medical practitioner (except where the doctor renders
service free of charge to every patient or under a contract of personal service), by way of
consultation, diagnosis, and treatment, both medicinal and surgical, would fall within the
ambit of ‘service’ as defined in section 2(1)(o) of the Act.

(2) The fact that medical practitioners belong to the medical profession and are subject to the
disciplinary control of the Medical Council of India and/or State Medical Councils made up
under the Indian Medical Council Act would not exclude their services from the ambit of the
Act.
(3) A “contract of personal service” has to be distinguished from a “contract for personal
services”. In the absence of a relationship of master and servant between the patient and
medical practitioner, the service rendered by a medical practitioner to the patient cannot be
service rendered under a ‘contract of personal service’. Such service is service rendered under
a “contract for personal services” and is not covered by the exclusionary clause of the
definition of ‘service’ contained in section 2(1)(o) of the Act.

(4) The service rendered by a medical officer to his employer under the contract of
employment would not be ‘service’ as defined in section 2(1)(o) of the Act.

(5) Service rendered free by a medical practitioner attached to a hospital/nursing home or a

medical officer employed in a hospital/nursing home where such services are rendered free to
everybody, would not be ‘service’ as defined in section 2(1)(o) of the Act. The payment of a
token amount for registration purposes only at the hospital/nursing home would not alter the
position.

(6) Service rendered at a non-government hospital/nursing home where no charge is made

from any person availing of the service and all patients (rich and poor) are given free service
— is not ‘service’ as defined in section 2(1)(o) of the Act. The payment of a token amount
for registration purposes only at the hospital/nursing home would not alter the position.

(7) Service rendered at a non-government hospital/nursing home where charges are required
to be paid by the persons availing of such services falls within the purview of the expression
‘service’ as defined in section 2(1)(o) of the Act.

(8) Service rendered at a non-government hospital/nursing home where charges are required
to be paid by persons who can pay and persons who cannot afford to pay is rendered service
free would fall within the ambit of the expression ‘service’ as defined in section 2(1)(o) of the
Act irrespective of the fact that the service is rendered free to persons who are not in a
position to pay for such services. Free service would also be ‘service’ and the recipient a
‘consumer’ under the Act.
(11) Service rendered by a medical practitioner or hospital/nursing home cannot be service
rendered free if the person availing of the service has taken an insurance policy for medical
care where under the are borne by the insurance company and such service would fall within
the ambit of ‘service’ as defined in section 2(1)(o) of the Act because he has paid for the
insurance policy.

(12) Similarly, where, as a part of the conditions of service, the employer bears the expenses
of medical treatment of an employee and his family members dependent on him, the service
rendered to such an employee and his family members by a medical practitioner or a
hospital/nursing home would not be free and would constitute ‘service’ under section 2(1)(o)
of the Act.

Law applied
Section 2 (1) (o) and Section 2 (1) (d) of the Consumer Protection Act , 1986.
Section 2 (1) (o) defines service.
service means service of any description which is made available to potential 19 [users and
includes, but not limited to, the provision of] facilities in connection with banking, financing
insurance, transport, processing, supply of electrical or other energy, board or lodging or
both, [housing construction,] entertainment, amusement or the purveying of news or other
information, but does not include the rendering of any service free of charge or under a
contract of personal service; "spurious goods and services" mean such goods and services
which are claimed to be genuine but they are actually not so.

Section 2 (1) (d) defines who is consumer.

Consumer means any person who:

i. buys any goods for a consideration which has been paid or promised or partly paid
and partly promised, or under any system of deferred payment and includes any user
of such goods other than the person who buys such goods for consideration paid or
promised or partly paid or partly promised, or under any system of deferred payment,
when such use is made with the approval of such person, but does not include a
person who obtains such goods for resale or for any commercial purpose; or
 
 ii. hires or avails of any services for a consideration which has been paid or promised or
partly paid and partly promised, or under any system of deferred payment and
includes any beneficiary of such services other than the person who hires or avails of
the services for consideration paid or promised, or partly paid and partly promised, or
under any system of deferred payment, when such services are availed of with the
approval of the first mentioned person but does not include a person who avails of
such services for any commercial purpose.

Analysis of the Case

Due to the increasing number of medical negligence cases, numerous complaints were filed
before the consumer courts seeking compensation under the Consumer Protection Act, 1986.
There was ambiguity on the issue of whether doctors, hospitals, and medical practitioners fall
within the ambit of “service” as defined in Section 2(1)(o) of the Act, thereby recognizing
patients as “consumers” and giving them the right to approach the consumer courts to seek
compensation.

Section 2(1) (o) of the Act defines “service” as:

service of any description which is made available to potential (users and includes the
provision of facilities in connection with banking, financing insurance, transport, processing,
the supply of electrical or other energy, board or lodging or both, housing construction,
entertainment, amusement or the purveying of news or other information, but does not
include the rendering of any service free of charge or under a contract of personal service.

Neither does the definition expressly include or does it exclude medical services. In the
exclusionary part of the definition, an interpretation could be adopted which brought medical
services not rendered free of charge under the ambit of “service”. Another question to be
considered was whether such services are provided under a “contract of personal service” to
be excluded or not.

These issues were subject to consideration in a series of decisions delivered by various High
Courts and National Consumer Courts, which gave contrasting and conflicting
interpretations. Many Writ Petitions and Special Leave Petitions were then filed before the
Supreme Court against these decisions and judgments.
In 1995, the Supreme Court delivered a historic decision in the case of Indian Medical
Association v VP Shantha which brought the medical profession within the ambit of a
“service” as defined in Section 2(1)(o) of the Consumer Protection Act, 1986 and clarified
the earlier decisions.

As a result of this judgement , medical profession has been brought under the Section 2(1) (o)
of CPA , 1986 and also , it has included the following categories of doctors/hospitals under
this Section:

1. All medical / dental practitioners doing independent medical / dental practice unless
rendering only free service.
2. All hospitals having free as well as paying patients and all the paying free category
patients receiving treatment in such hospitals.
3. Medical / Dental practitioners and hospitals paid by an insurance firm for the
treatment of a client or an employment for that of an employee.

This landmark decision brought in a significant interpretation of medical negligence liability,

by subjecting the medical profession to the Consumer Protection Act. Patients’ rights were
recognized through the conferring of consumer status, allowing them to file complaints in
cases of deficiency in rendering medical services.

However, this decision has received criticism from the community of medical practitioners
for making the medical profession vulnerable to excessive suits, many of which are filed to
harass doctors or to evade the payment of medical bills. While it is important to protect the
integrity of this profession, the growing cases of medical negligence are a matter of concern.
The interpretation of “service” by the Supreme Court seeks to safeguards the interest and
welfare of patients, which is paramount.

2. Martin F. D'Souza v. Mohd. Ishfaq

 Citation: 2009 ACJ 1695, AIR 2009 SC 2049 Date of Judgement-

February 17, 2009
Safety of patients from incompetent and negligent doctors and safety of doctors from undue
harassment from unscrupulous litigants has been a perennial problem faced by the Medical
Jurisprudence. But when a two judges bench of the apex court decided the case of Martin F.
D'Souza v. Mohd. Ishfaq in February 2009, it directed that when a complaint or objection is
raised against a hospital or doctor by an authority such as the consumer Forum or any
criminal court then before issuing notice to the party against whom the complaint has been
raised it should first refer the case to an expert and knowledgeable doctor or a board/panel of
doctors, specializing in the same field, once they are done with their due diligence and it is
observed and confirmed by the expert/panel/board that there is the presence of medical
negligence only then a notice should be issued against the party in question, many consider
that the balance has shifted in favor of the doctors as it is perceived that a team of doctors
will always favor and give opinion in favor of its own fellows.

The respondent, who was originally the plaintiff, was suffering from renal failure, and was
referred to Nanavati Hospital in Mumbai for treatment, and was undergoing hemodialysis
twice a week during this period due to his chronic condition. Once he approached the
appellant, he did not wish to get admitted in the hospital despite the doctor’s insistence. The
respondent was thus administered a broad-spectrum antibiotic to keep his fever under control
as well. The respondent was later investigated for renal health, and the reports showed the
presence of severe urinary tract infection, which could only be treated by two medicines:
Amikacin and Methenamine, Mandelate. As Methenamine could not be administered to a
patient suffering from renal failure as well, Amikacin was the only effective course of
treatment that the doctor could foresee. The treatment was administered to the respondent for
three days, along with another medicine called Augmentin, to alleviate the symptoms of
blood infection, along with continued dialysis. Soon, the patient’s temperature subsided
considerably, and he began to insist on a kidney transplant, despite the circumstances of his
health making transplant impossible for another 6 weeks. The respondent soon discharged
himself from the hospital, contrary to the advice of the appellant, who then suggested the
injection Amikacin, along with other drugs, that had to be taken under the supervision of the
Dialysis Unit when the appellant visited to receive his dialysis.  A few days later, the
respondent complained of slight tinnitus (ringing in the ears), and upon hearing this, the
appellant immediately instructed the respondent to cease the treatment of Amikacin and
Augmentin. However, the respondent continued to take Amikacin, against the explicitly
stated instructions by the appellant. Soon, the respondent admitted himself to Prince Aly
Khan Hospital, where he was also treated with antibiotics, but gave no complaints of
deafness. Thereafter, the respondent soon underwent a kidney transplant, after he had ceased
to be under the treatment of the appellant. The respondent then filed a case before the
National Consumer Disputes Redressal Commission, claiming compensation as his hearing
had been affected. The appellant, in his written statement, alleged that there was no link
between the drugs administered as treatment to the respondent, and the deafness. The case
was decided in favour of the plaintiff in that case, which was appealed and thus placed before
the Honourable Supreme Court by the current appellant.

As laid down in the case of Bolam v. Friern Hospital Management, the general test of
medical negligence, the Bolam Rule states that the test to determine the existence of
negligence is the standard of the ordinary skilled man exercising and professing to have that
skill. The courts of England, from whom we derived the test of negligence for medical cases,
state that a deviation from normal practice does not necessarily constitute a case of
negligence. In order to establish liability on the basis of a negligent act, it must be established
firstly that there already exists a usual and normal practice, secondly, that the defendant has
not adopted that act, and thirdly, that the course of treatment adopted by the defendant must
be one that no ordinary man of reasonable professional skill would adopt, had he been acting
in the exercise of a reasonable standard of care. 

Similarly, there is no presence of negligence on the case of negligence on the part of the
appellant, as his actions constituted a course of treatment that was reasonable and would be
recommended by other doctors as well, as was opined by Prof. Ghosh of AIIMS, as a source
of an expert opinion as requested by the National Consumer Disputes Redressal Commission.
Prof. Ghosh had stated that it is impossible to foretell the sensitivity of a patient to a specific
drug, thereby placing the detection of such sensitivity and its possible consequences, outside
the scope of a man acting with reasonable professional skill and standard of care. The
appellant was therefore exercising a reasonable standard of care as a qualified professional,
and thus passes the Bolam Test of medical negligence. Secondly, the issue of whether the
appellant was acting in good faith in accordance with the tenets of the Hippocratic oath is
answered primarily with the aid of the opinion submitted by Prof. Ghosh before the National
Consumer Disputes Redressal Forum, where he declared that the dosage of Amikacin was a
life saving measure, and the appellant had no choice but to take that step. The appellant was
met with the necessity to take drastic steps in order to save the patient’s life, in the face of a
co-morbid situation of kidney failure along with blood infection and urinary tract infection.
Dr. Sharad M. Sheth, an MD qualified in nephrology also stated that “any nephrologist of a
reasonable standard of proficiency would have prescribed "Amikacin" drug in measured
doses as a lifesaving drug despite the well-established fact that this drug might cause 'tinnitus'
or partial hearing impairment which is reversible, to almost complete extent in most of the
cases after discontinuation of the drug as soon as any of the above symptoms makes its
appearance. I state that in this situation, 'Amikacin' could not have been avoided if the danger
to the life of the patient had to be thwarted.” These two statements make the good intentions
and faithfulness to the Hippocratic Oath evident, and the doctor was always acting in the best
interests of his patient’s health. 

In conclusion, there is no instance of negligence displayed by the appellant in his treatment of

the respondent’s medical condition, and must not be faulted simply for taking a risky measure
in order to save the respondent’s life. It has been laid down in several cases, along with the
expert opinions and statements made by luminaries in the medical field, that the appellant’s
actions were in accordance with the requirements posed by the patient’s situation.

The law must not be used to arbitrarily attempt to hold doctors accountable for the failure of
their treatment, especially when they were following all due procedures and acting with
reasonable care. The Court in this case repeatedly emphasized that the threat of legal
proceedings in event of a lack of positive response from the patient will only serve as a
deterrent for doctors to attempt risky treatment in order to save the patient’s life.

3. V KISHAN RAO VS. NIKHIL SUPERSPECIALITY HOSPITAL AND

ORS. Citation- (2010) 5 SCC 513 Date of Judgement- March 8, 2010

In its landmark judgment in V. Kishan Rao v. Nikhil Super Speciality Hospital's the Supreme
Court, held that there cannot be a mechanical or straitjacket approach that each and every
medical negligence case must be referred to experts for evidence and declared that the
judgment rendered in Martin F. D’Souza v. Mohd. Ishfaq is per incuriam. This judgment is a
welcome decision for better achievement of the objectives of the Consumer Protection Act,
1986.
The appellant, who happens to be the original complainant, is an officer in the malaria
department and he got his wife admitted in the respondent hospital on 20.07.2002 as his wife
was suffering from fever which was intermittent in nature and was complaining of chill. The
appellant alleged that his wife was subjected to certain tests by the respondent but the test did
not show that she was suffering from malaria. It was also alleged that his wife was not
responding to the medicine given by the respondent. Then on 23rd July 2002 complainant’s
wife was complaining of respiratory trouble and the complainant also brought it to the notice
of the authorities of the respondent who gave artificial oxygen to the patient. The appellant
alleged that it is a case of wrong treatment in as much as the patient was not treated for
malaria when the complaint is of intermittent fever and chill. Instead the respondent treated
the patient for typhoid and as a result of which the condition of the patient deteriorated. When
the condition became very very critical the patient was removed to Yashoda Hospital but
patient could not be revived.

Court Verdict
In the instant case, respondent has admitted in his evidence that the patient was not treated for
malaria. Of course evidence shows that of the several injections given to the patient, only one
was of Lariago. Apart from Lariago, several other injections were also administered to the
patient. Lariago may be one injection for treating malaria but the finding of Yashoda Hospital
shows that smear for malarial parasite was positive. There is thus a definite indication of
malaria, but so far as Widal test was conducted for typhoid it was found negative. Even in
such a situation the patient was treated for typhoid and not for malaria by the respondent and
when the condition of the patient worsened critically, she was sent to Yashoda Hospital in a
condition with no pulse, no BP and in an unconscious state with pupils dilated. As a result of
which the patient had to be put on a ventilator.
In such a case where negligence is evident, the principle of res ipsa loquitur operates and the
complainant does not have to prove anything as the things speak for themselves. In such a
case it is for the respondent to prove that he has taken care and done his duty to repel the
charge of negligence. Allowing the appeal, the Supreme Court held that expert evidence was
not necessary to prove medical negligence in every case. Expert opinion is required only
when a case is complicated enough warranting expert opinion, or facts of a case are such that
forum cannot resolve an issue without expert’s assistance. Each case has to be judged on it’s
own facts. The Court held that the purpose of the Consumer Protection Act is to provide a
forum for speedy and simple redressal of consumer disputes. Such legislative purpose cannot
be defeated or diluted by superimposing requirement of having expert evidence in cases of
civil medical negligence, regardless of factual position of a case. If that is done efficacy of
Act would be curtailed and in many cases remedy would become illusory for common man.
On the facts it was held that where a patient who was suffering from intermittent fever and
chills, was wrongly treated for typhoid instead of malaria for four days, which resulted in her
death, was an apparent case of medical negligence. It was not necessary to obtain expert
opinion in the first instance before District Forum could award compensation. As
investigation conducted by another Hospital where the patient was removed in a critical
condition showed that Widal Test for Typhoid was negative whereas test for malaria was
positive, it was sufficient for District Forum to conclude that it was a case of wrong
treatment.
In this case the Supreme Court held that "in the context of such jurisprudential thinking in
England, time has come for this Court also to reconsider the parameters set down in Bolam
test as a guide to decide cases in medical negligence and specially view of Article 21 of the
Constitution which encompasses within its guarantee, a right to medical treatment and
medical care". While pronouncing the judgment rendered in Martin F.D'Souza per incuriam,
the Supreme Court further held that "this Court is constraint to take the view that the general
directions given in para 106 in D'Souza cannot be treated as a binding precedent and those
directions must be confirmed to the particular facts of that case". And the further held that,
"the larger Bench decision in JJ. Merchant (Dr)is has not been noted in D'Souza. Apart from
that, the directions in para 106 in D'Souza are contrary to the provisions of the governing
statute. That is why this Court cannot accept those directions as constituting a binding in
cases of medical negligence before the Consumer Fora”. The Supreme Court further declared
that "this Court makes it clear that in these matters no mechanical approach can be followed
by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all
cases medical negligence has to be proved on the basis of expert evidence, in that event the
efficacy of the remedy provided under this Act will be unnecessarily burdened and in many
cases such remedy would be illusory". The consequence of the judgment in V. Kihan Rao is
that now the Consumer Fora in the country need not necessarily refer the cases of medical
negligence to expert committee before issuing the notice to the doctor or hospital accused of
medical negligence and the problems arising from the directions given in the Martin F.
D'souza case will be put to an end.
The cordial relationship between doctor and patient has undergone drastic changes due to
corporatisation of medical profession, resulting in commercialization of the noble profession,
much against the letter and the spirit of the Hippocratic Oath. Though rapid advancements in
medical science and technology have proved to be efficacious tools for the doctors in the
better diagnosis and treatment of the patients, they have equally become tools for the
commercial exploitation of the patients.
The development of law pertaining to professional misconduct and negligence is far from
satisfactory. The legislations are not adequate and do not cover the entire field of medical
negligence. In a situation where medical services are commercialized applying the rule of
“ordinary skilled professional standard of care” laid down in Bolam’s case in establishing the
medical negligence may not do the proper justice to the injured patients.
Finally, it is submitted that the judiciary while deciding medical negligence cases, more
incline may be showed towards injured patients ensuring them higher medical skills at the
hand of doctors rather applying “ordinary skilled” rule. In this way the V. Kihan Rao’s case is
a welcome judgment. To conclude it is useful to cite an observation of former Chief Justice
K.G. Balakrishnan in his address at National Seminar on the ‘Human Right to Health’ that
“the right to health cannot be conceived of as a traditional right enforceable against the state.
Instead, it has to be formulated and acknowledged as a positive right at a global level one
which all of us have an interest in protecting and advancing”.

4. Harish Kumar Khurana v. Joginder Singh

Citation- 2021 SCC OnLine SC 673, LL 2021 SC 425 Decided on 7-9-
2021
This judgment elucidates what acts by medical professionals constitute as medical negligence
and what do not. To prove medical negligence, the material should be available on record or
else some other appropriate medical evidence must be tendered.

A Division Bench led by Justices Hemant Gupta and A.S. Bopanna of the Supreme Court of
India has ruled in the recent case of Dr. Harish Kumar Khurana v. Joginder Singh (2021) that
a hospital’s and doctor’s omission to treat a patient does not automatically make them
accountable for medical malpractice. The instant was a case where the patient, set to undergo
surgery, suffered cardiac arrest after she was administered anesthesia. This case is necessary
to be discussed in light of this article’s title because the Apex Court has laid down the criteria
for determining medical negligence on the part of the hospital and doctors which in the
present case were not fulfilled and hence did not amount to medical negligence.
The Court stated that in order to show carelessness, there must be evidence on file or
sufficient medical proof must be presented. Apart from the charges made by the claimants
before NCDRC, no medical evidence was presented to demonstrate that the doctor or the
hospital was negligent, and the doctor actually clarified his stance pertaining to the medical
procedure to maintain that there was no medical negligence. The Court stated that the
NCDRC’s decision appeared to be based on speculation rather than medical proof.

Informed consent of the patient

The Court took into account the fact that the consent for the second operation was obtained
solely from the patient’s spouse and not from the patient herself. The Court observed that the
patient’s, as well as her husband’s permission, was obtained during the initial procedure. The
patient was recovering from the first operation at the time of the second procedure, and she
was notified of the need for the second surgery. Her husband’s informed permission was
gained in such a situation. Hence, neither the hospital nor the doctor who administered the
operation can be held liable.

Noting in the case sheet

Because the adjudicating authority is not a medical expert to record an independent opinion,
medical evidence pointing out malpractice in providing anesthesia even in that scenario was
necessary to be presented in order to reach the judgment that there was negligence. The
burden of the same rested on the negligent-claiming party and neither the hospital nor the
concerned doctor. Therefore, if the hospital can show that the doctors they have hired and
who have administered a medical practice to the concerned patient, have noted down all the
procedures administered in a uniform manner, as a form of record, neither the hospital nor the
doctor will be held liable for medical negligence.

Res ipsa loquitur

When considering whether the concept of res ipsa loquitur (things speak for themselves) may
be used in situations of medical negligence, the Court noted that the claimed negligence must
be so obvious that the principle of res ipsa loquitur can be applied, instead of being applied
on the basis of perception. The Apex Court clearly stated that the res ipsa loquitur principle is
only used when the neglect is very clear. Therefore, for hospitals to be held liable for causing
medical negligence, the negligence on their part has to be clear and a part of the facts of the
case.
Therefore, the doctor has complete autonomy in deciding which therapy or treatment is right
for his patient. This autonomy is usually higher in emergency situations. The correctness or
otherwise of the line of treatment and the decision to conduct the operation and the method
followed are all required to be considered in the background of the medical evidence in the
particular facts of this case. Hence, any default to cure, complication, an occurrence of an
infection, or even death, cannot be considered in segregation and labelled as being an act of
medical negligence. Failure of operation and side effects cannot always be said to be due to
medical negligence. A complaint may not be entertained unless the person giving such
complaint produces prima facie evidence before the court, to support his/her claim of
negligence of the accused doctor.