Duty of care in medical negligence refers to the doctor’s legal obligation to provide a certain degree or standard of care to all their patients. Doctors can only be held liable for breach of this duty if it can be established to the courts that the injury or damage was caused due to carelessness or recklessness on behalf of the doctors[1]. Any claim with regard to medical negligence is solely dependent on establishing that the doctor owed a duty of care to the patient before going into the merits of the claim such as breach of that duty, causation and injury caused to the patient[2]. The duty of care criteria was laid out in the case of Donoghue V Stevenson in which Lord Atkin stated that[3]:

“The rule that you are to love your neighbor becomes in law you must not injure your neighbor; and the lawyer’s question ” Who is my neighbor?” receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who then in law is my neighbor? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”[4]

The Supreme Court in Laxman v. Trimbak, held:

“The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or 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. Neither the very highest nor very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.”[5]

In other words, any medical professional who offers any form of medical advice or treatment is considered to have the required skill or knowledge with regard to the particular purpose. It can be agreed upon that establishing a duty of care is rather easy and that there are no problems or complications surrounding this topic. A duty of care is established the moment a patient interacts with a doctor in a professional capacity[6]. In india, medical negligence claims falls under the purview of the consumer protection act; where a claimant is considered to be a ‘consumer’ under S.2(1)(d)(ii) and the treatment he obtains is called a ‘service’ under S.2(1)(o) of the CPA,1986.

S.2(1)(d)(ii) “Consumer means any person who 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”[7].  Continuing Education in Anaesthesia, Critical Care and Pai

S.2(1)(o) “Service means any service of any description which is made available to potential users. Health care services will be service, if they are obtained for consideration[8]”.

The main area of concern with regard to this is that doctors apparently do not owe a duty of care to patients in circumstances where they avail free treatment from government hospitals, private clinics and health care centres. The case of V.P Santha clearly illustrated that doctors cannot be held liable for any services or treatment given to patients which is free of cost. Apparently, when a patient cannot afford to pay for their treatment; they will not fall within the ambit and scope of the definition of service under the CPA, 1986[9]. The court in its judgement stated the following:

 “being free of charge, the same service cannot be treated as service under S. 2(1)(o) for the reason that it has been rendered by a medical officer in the hospital who receives salary for employment in the hospital. There is no direct nexus between the payment of salary to the medical officer by the hospital administration to the employee medical office cannot be regarded as payment made on behalf of the person availing the service or for his benefit so as to make the person availing the service a “consumer” under Section 2(1) (d) in respect of the service rendered to him. The service rendered by the employee medical officers to such a person would, therefore, continue to be service rendered free of charge and would be outside the purview of Section 2(1) (o)”[10]

In my opinion, a duty of care is like a contract, once a patient consults with a doctor and undergoes any form of treatment or surgery; a duty of care instantly arises. It is morally and ethically wrong that in circumstances where free medical care is given to patients; doctors escape their fundamental duty of care [11]. Moreover, this problem arises due to the fact that patients are recognised as consumers and the treatment availed by them is a service under the CPA,1986. Therefore, there are two ways to help resolve this conflict; (i) To have a broad-minded approach and interpret the term ‘service’ to fee paying and non-fee paying patients; (ii) To remove the laws governing medicine from the scope and ambit of the CPA,1986 and to recognise the law of medicine solely as a tort.

[1] James Plunkett “The Duty of Care in Negligence “ ( Hart Publishing, 2013 )

[2] Edie Brous “The Elements of a Nursing Malpractice Case, Part 1: Duty” (2019) 119 The American Journal of Nursing 9

[3] Donoghue V Stevenson [1932] AC 562

[4] Ibid

[5] Laxman Balakrishna Joshi V Trimbak Bapu Godbole And Anr.1969 SCR (1) 206

[6] Daniele Bryden & Ian Storey “Duty of Care and Medical Negligence” (2011) 11 Continuing Education in Anaesthesia, Critical Care and Pain 4

[7] CPA,1986-S.(1)(d)(2)

[8] CPA,1986 – S.2(1)(o)

[9] Indian Medical Association V V.P Santha 1996 AIR 550

[10] Ibid

[11] Ashith B Acharya, JK Savitha & Suresh V Nadagoudar “Professional negligence in dental practice: Potential for civil and criminal liability in India” (2009) 1 Journal of Forensic Dental Sciences 1

  • Contact Us

    Contact Form