Tort Preso

Abstract
The importance of the medical field has been increasing rapidly with the escalation in
population and the emergence of a new variety of diseases. Doctors and medical practitioners
play an essential role in saving the lives of people and curing their illnesses. A doctor in a
maternity hospital or mortuary certifies the beginning and end of a person's life and treats his
patients irrespective of their caste, creed, religion, gender, race, age, economic status, etc., no
matter what the ailment is. They would always give a helping hand to whoever is suffering
and is in need therefore known as a noble profession.
With the increase in the number of medical cases, there is a rise in demand for more medical
practitioners, which in turn increased the chances of medical negligence and has become a
matter of urgent concern. Present manuscript intends to highlight the crucial aspects of
medical negligence and the role of torts law and Consumer Protection Act in dealing with
such cases, with particular focus on deficiency in service and its impact, with the help of
landmark judicial decisions.
There comes the Consumer Protection Act, 1986 (now replaced by Act of 2019), which
safeguards the consumers from negligent treatments, biased dealings and exploitation. The
patients who get affected due to negligence on the part of the doctor can file a suit under
Consumer Protection Act, 1986 and claim compensation2 for the damage sustained.
1. CONSUMER
The term ‘consumer’ is defined under sec. 2(7) of the Consumer Protection Act, 2019.
Consumer may be consumer of goods or consumer of services. Sec. 2(7)(i) defines
consumer of goods while sec. 2(7)(ii) defines consumer of services.
Explanation (b) to sec. 2(7) clarifies that the expressions ‘buys any goods’ and ‘hires
or avails any services’ include offline or online transactions through electronic means
or by teleshopping or direct selling or multi-level marketing.
In Spring Meadows Hospital and another v Harjol Ahluwalia through K.S Ahluwalia and
Another9, a child who was primarily diagnosed with typhoid was brought to the appellant
hospital. As per the nurse's instruction and the recommendation of the senior paediatrician,
the child's father brought an injection, and the same was injected into the child by the nurse.
As soon it was administered to the child, he collapsed. It was later found that the child had a
cardiac arrest due to excessive drug administration to the child's body and not providing any
measures to revive the child's heart. The court, in this case, held that there was clear
negligence on the part of the nurse and hospital authorities, and they are liable to compensate
the parents and the child
Deficiency as per the Consumer Protection Act is the inadequacy, imperfections, any
fault or any shortcomings which is not to be compromised in the case of quality or the nature
of the product and which is to be upheld as per the law which is in force at that time or as per
the contracts or concerning any service. Therefore, when these terms are properly analysed, it
is evident that the patient who approaches the doctor for any medication or treatment is the
consumer
In the case of Juggankhan v State of Madhya Pradesh,12 the doctor, without studying the
effects of the medicine, administered it to the patient, and it turned out to be that the medicine
was poisonous. The Supreme Court held that it was a rash and negligent Act by the doctor,
and therefore, he was liable under section 302 of the Indian penal Code. There are certain
circumstances where the medical services will fall under the purview of the Consumer
Protection Act and where it will not be considered under its purview
IAM vs VP shantha
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.
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 case of 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.
4- Judicial interpretation of medical negligence regarding the law of torts

There are specific components necessary for an act to be considered as medical negligence.
In the case of Blyth v. Birmingham Waterworks Co.14 , the court defined the term negligence.
The court determined it as the Act of omitting from doing something that a man of reasonable
capacity of thinking might do or doing something expected from a prudent man to do.
Negligence can be misfeasance, nonfeasance or malfeasance, depending on the action done
by the individual. For committing negligence, there are a few components required. Some of
which are the duty of care which should be legal and it is owed to the other person15, the
defendant has a responsibility towards the plaintiff, there should be a breach of duty of care
by the defendant, proximate cause, or a legal cause which should be the cause of injury,
actual cause of damages should be suffered by the plaintiff.
Medical Negligence is the failure of a medical practitioner to provide proper care

and attention and exercise those skills which a prudent, qualified person would do
under similar circumstances. It is a commission or omission of an act by a medical
professional which deviates from the accepted standards of practice of the medical
community, leading to an injury to the patient
To bring a suit of medical negligence against the doctor, the complainant should have clear
cut evidence against the doctor that he has committed negligence and due to which he has
suffered some damage. A charge of failure can easily be bought against people of any other
profession much more quickly. But since medical practitioners' work is considered one of the
noblest and self-sacrificing professions, the judiciary would most care while handling
medical negligence cases. The burden of proof is on the complainant18. If the victim fails to
prove negligence on the part of the medical practitioner, then the case will get dismissed1
In the historical judgement of Dr. Balaram Prasad vs. Dr. Kunal Sahahospital, the Supreme
Court has granted a compensation of Rs. 5.96 crores to the plaintiff by the three doctors and
the Advanced Medical Research Institute (AMRI) as the plaintiff lost his wife due to the
negligence of the authorities. It was the highest ever compensation that the Supreme Court
granted to the victims in medical negligence.
5- Remedies available in cases of medical negligence-

In negligence cases due to a medical practitioner, either the aggrieved party will file a civil
suit, or the state can take criminal actions against the doctor. The hospital authorities will be
liable for a case of medical negligence under vicarious liability. In the case of vicarious
liability, the person can be held liable for others actions. Normally a person will be liable for
his action; hence it is an exception to this rule. The liability of master arises in torts due to the
maxims' respondent superior', for acts of the subordinate the superior will be liable and 'Qui
facit per allium facit per se', a person will be viewed to do an act himself if he gets done
anything done
In the landmark case of Pooja Sharma & Ors vs. Maharaja Agrasen Hospital
& Ors (2019)
The facts of the case that prompted these findings included a newborn who
became permanently blind because a medical disease linked to preterm
delivery, Retinopathy of Prematurity (ROP), went untreated until it reached
the irreversible level of Stage 5. The hospital and its employees are
accountable for medical malpractice since the infant’s parents were neither
informed nor instructed about the risk of ROP in a preterm newborn
- Finding
The major problem faced by the Indian judiciary in medical negligence cases is that there are
no separate sets of laws for medical negligence in India, and it comes under the ambit of the
Consumer Protection Act, 1986(Including The Consumer Protection Act, 2019). To prove
negligence, first, the victim has to prove that he is a consumer under the Act, and then he has
to collect all shreds of evidence against the doctor to prove his negligence since the burden of
proof is on the complainant. It would not be possible for a commoner to prove that he had
undergone harm due to the medical practitioner's negligence in most cases. So separate sets
of laws are needed

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Abstract

Due to the increasing number of medical negligence cases, numerous

These issues were subject to consideration in a series of decisions delivered

In 1995, the Supreme Court delivered a historic decision in case of In 1995,

4- Judicial interpretation of medical negligence regarding the law of torts

Medical Negligence is the failure of a medical practitioner to provide proper care

5- Remedies available in cases of medical negligence-

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