The Medical profession is widely regarded as one of the most respected and noblest of professions all over the world. Though many may consider a doctor to be like a god, at the end of the day they are as human as the rest of us and are prone to commit certain errors and mistakes. These errors committed by doctors came to be formally and legally known as “Medical Negligence”[1].  Medical negligence can be considered as an important aspect of medical law which covers all forms of carelessness and mistakes committed by doctors. In other words, Medical negligence is an act which occurs due to the doctor’s failure to administer reasonable care to their patients due to wilful negligence on their behalf[2]. However, the legal definition was clearly stated by Justice McNair in the Bolam Case:

“ Negligence in law means a failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action “[3].

There are a few essential elements that has to be well established by the claimants in order to prove that their doctor was negligent; Firstly, and most importantly it must be evident that there exists a duty of care between the doctor and the patient. Secondly, There must a clear violation or breach of that duty of care. Thirdly, the claimant/patient should have suffered an injury or death which could have been avoided if the doctor had not acted negligently[4]. If complainants can successfully establish the aforementioned; they will be duly compensated for the harm caused to them and the doctors will be held liable to disciplinary action or criminal prosecution[5].

The introduction of the Consumer Protection Act, 1986 in India led to a number of patients filing cases against their doctors for acts of medical negligence. A complaint for deficiency of service can be filed before the Consumer Forum under the Consumer Protection Act, 1986[6]. In the current times, there is a widespread public awareness amongst the people in India which has not only forced government hospitals and private clinics to be cautious but to also maintain proper hospital facilities, professional standards and to provide proper methods of treatment[7].

There are also other remedies which are available to the aggrieved patients due to medical negligence caused be doctors as per existing laws in India; (i) A civil suit for the recovery of damages in the appropriate civil court or consumer forum. (ii) A complaint under Section 304-A of the Indian Penal Code,1860 in the appropriate Criminal Court[8]. (iii) A complaint to the Medical Council of India or the State Medical Council for de-registration of a doctor on account of negligence.(iv) The right to life enshrined in Article 21 of the constitution of India also includes the right to health and casts an obligation on the state and the medical profession to preserve life. Neither the state nor the statute action can intervene to avoid or delay the discharge of the paramount obligation imposed upon the medical professionals.[9]

Though India is a country which is totally committed to the rule of law, it is quite difficult for the judges to determine negligence committed by doctors as they are not well acquainted with medical science. They often tend to base their decisions on the opinions of medical experts appointed by the courts[10]. However, the main problems lies with the fact that even though  the Indian Judicial System inherits certain principles from the Bolam and Bolitho test which are considered worldwide as landmark judgements for medical negligence claims, they still expect a claimant to establish that the doctor was “grossly negligent” which they interpret as “ordinary negligence” whilst committing his duties towards his patient; which makes it almost practically impossible for claimants to establish. This is adopted by the Indian courts to protect doctors from a number of fraudulent and unnecessary claims made against them even though they are provided with various defence’s under Section 52,80,81 and 88 of the Indian Penal Code[11].

[1] Shweta Thakur & Vikram Singh Jaswal “Medical Negligence in India” (Regal Publications, 2013)

[2] Anoop K Kaushal “Medical Negligence & Legal Remedies” (4th edn, Universal Law Publishing, 2016) p.332

[3] Bolam V Friern Hospital Management Committee, [1957] 1 W.L.R 582

[4] Y. Venkatashwara Rao “Law Relating to Medical Negligence” (3rd edn, Asia Law House, 2019)

[5] Ibid

[6] S.V Joga Rao “Medical Negligence Liability under the Consumer Protection Act: A review of Judicial Perspective” (2009) 25 Indian Journal of Urology 3

[7] Ibid

[8]  The Indian Penal Code,1860 – Section 304-A

[9]  The Constitution of India,1949 – Article 21

[10]  Anoop K Kaushal “Medical Negligence & Legal Remedies” (4th edn, Universal Law Publishing, 2016) p.

[11] IPC,1860 – Section 52,80,81 & Section 88.

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