DEFICIENCY IN PROFESSIONAL SERVICES

Jayant Nariala
As Part of the Course
Law of Torts I

TABLE OF CONTENTS
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Topic/Content
Title Page

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Table of Contents
Table of Cases
Introduction
Nature of Medical Negligence
Deficiency in Services Amounting to Negligence under CPA
The Law of Torts: Recourse to Claim Compensation
Review of Judicial Pronouncements in India
Conclusion and Suggestions
Bibliography

TABLE OF CASES
Name of Cases with Citations
Dr. Balram Singh and others v. Dr. Kunal Saha and another, 2013 Indlaw SC 696
Achutrao Haribhao Khodwa v. State of Maharashtra (1996) 2 SCC 634

ii
iii
4
5
6
8
9
13
14

B.Shekhar Hegde v. Dr.S.Bhattacharya & Another II 1992 CPJ 449

Dr. G.C. Batalia v. The Consumer Dispute Redressal Forum & another II (1994) CPJ 523
Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr (1969) 1 SCR 206
Dr. Suresh Gupta v. Govt. of NCT of Delhi and Anr (2004) 6 Scale 432
Emperor v. Omkar Rampratap 4 Bom LR 679
Indian Medical Association v. V P Shantha AIR 1996 SC 550: (1995) 6 SCC 651
Jacob Mathew v. State of Punjab AIR 2005 SC 3180
John Oni Akerele v. The King AIR 1943 PC 72
Juggankhan v. The State of Madhya Pradesh (1965) 1 SCR 14
Kalra Satyanarayana v. Lakshmi Nursing Home 1 (2003) CPJ 262
Kishan Chand & Anr. v. The State of Haryana (1970) 3 SCC 904
Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra (1965) 2 SCR 622
Lakshmi Rajan v. Malar Hospital III (1998) CPJ 586
M/s. Cosmopolitan Hospital & another v. Vasantha P. Nair I (1992) CCPJ 302
P N Rao v. G Jayaprakasu AIR 1950 AP 201
Philips India Ltd. v. Kunju Pannu AIR 1975 Bom. 306
Poonam Verma v. Ashwin Patel and Ors (1996) 4 SCC 332

Spring Meadows Hospital v. Harjol Ahluwalia AIR 1998 SC 1801

State of Haryana v. Smt Santara AIR 2000 SC 1888
State of Punjab v. Mahinder Singh Chawla AIR 1997 SC 1225

INTRODUCTION
The law of torts is a branch of common law that provides recourse to citizens facing some
form of civil wrong. While it remains largely uncodified, it is implemented in most common
law countries and often has special tribunals or courts dedicated to providing remedies for
civil wrongs. The law of torts is prevalent mostly in economically developed countries, such
as the USA and most Western European nations. In India, the law of torts is not very popular
due to various reasons, such as ignorance of the common people about it, and relatively high

expenses being incurred simply for filing a suit. However, this is not to say there are no tort
cases filed in India, and many of those that are deal with the tort of negligence.
Deficiency in professional services essentially refers to when individuals who are deemed in
the eyes of the law to possess certain specialized skills, such as doctors, lawyers, engineers
and architects, do not perform their legal duty in the sense that there is either something
lacking in the nature of the service they provided, or that they have erred in making a
judgement of some kind, and this has led to bodily injury or property damage for another
individual, or group thereof. These skilled individuals are therefore held accountable to a
higher extent than other, relatively unskilled workers would be.
Professionals are required to discharge their obligations and commitments diligently and
befitting with quality and standards of service. The laws of the land mandate that the
professionals should provide services to the consumers in a required manner, exercising duty
of care and while doing so they should not commit and negligent act. In order to protect the
interest of the consumers against the breach of duty, the deficient services have been defined
the statue and legal actions have been initiated on the erring professionals.1
Medical negligence refers to harm caused to a patient by a medical professional of any kind
that treated them in any way whatsoever; this treatment must have caused some bodily injury
or more severe damage to the patient to count as medical negligence. Since doctors are held
as being highly skilled professionals, it is considered their lawful duty to exercise due care,
inform patients of potential harms when it is relevant to the treatment being considered, and
not be negligently in the sense of mishandling medical equipment leading to physical injury
or disability or trauma of any kind. Though in developed countries in the Western part of the
world, the principle is to defend the patients, in India, an older principle exists, essentially
implying that the doctor is thought to know what is best for the patient, since most of the
common people in India are considered uneducated about or unaware of various medical
procedures and treatments and their possible side effects and other, more serious
repercussions.

1 Architects Professional Liability, http://www.coa.gov.in/practice/liability.htm (accessed at 14:11 on

27/11/2013)

NATURE OF MEDICAL NEGLIGENCE

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 person dealing with
him that the skill which he professes shall be exercised with reasonable degree of care and
caution. On the same analogy, this assures the patients that a doctor possesses the requisite

skill in the medical profession which he is practicing and while undertaking the performance
of the task entrusted to him he would be exercising his skill with reasonable competence.
Judged by this standard, a professional including medical 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. Where a profession embraces a range of views as to what is an acceptable
standard of conduct, the competence of the professional is to be judged by the lowest
standard that would be regarded as acceptable. 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.
A medical practitioner cannot 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. At least three weighty considerations can be pointed out which any forum trying the
issue of medical negligence in any jurisdiction must keep in mind. These are: (i) that legal
and disciplinary procedures should be properly founded on firm, moral and scientific
grounds; (ii) that patients will be better served if the real causes of harm are properly
identified and appropriately acted upon; and (iii) that many incidents involve a contribution
from more than one person, and the tendency is to blame the last identifiable element in the
chain of causation the person holding the 'smoking gun'. Thus, to establish a medical
negligence, the abovementioned position must be kept in mind.2

2 "A Comparative Analysis Of Various Indian Legal Systems Regarding Medical Negligence: Criminal,
Consumer Protection & Torts Laws" (http://www.legalserviceindia.com/medicolegal/mlegal.htm, accessed at
14:24, 27/11/2013)

DEFICIENCY IN SERVICES AMOUNTING TO NEGLIGENCE

UNDER THE CONSUMER PROTECTION ACT, 1986
The practice of medicine has existed since the beginning of civilized human life, and
has been recorded in various ancient texts, including the Indian sutras. Originally, the
priests (Brahmins) served as all of preacher, teacher, judge and healer. They were the
first physician, and the relationship with those to be treated was unique and never
scrutinized critically.
However, with the passage of time, not only has the practice of medicine graduated to
become independent as a noble profession, but the relationship has shifted gradually
from next to God to friend, philosopher and guide. Regrettably, Indian laws tend

to place medical professionals at the prior stage even today, where doctors are thought
to know what is best for the patients.
Today, with a marked increase in the awareness of patients, rising expectations from
medical professionals, and the emerging western trend of growing medical liability
litigation, the Consumer Protection Act and judicial activism, there is an increasing
amount of plaints being filed by disaffected persons, resulting in a growing lacuna
between patients and medical professionals, and an increased cost of medical
treatment overall.
Over the last fifteen years there has been increased speculation on whether "Medical
Services" are expressly or categorically included in the definition of term "services"
under Section 2(1)(o) of the Consumer Protection Act.
In Indian Medical Association v. V.P. Shantha and Ors the principal issue which arose
for decision before the Supreme 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. 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 has stated as follows:
"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.

The Court held that even though services rendered by medical practitioners are of a
personal nature they cannot be treated as contracts of personal service (which are
excluded from the Consumer Protection Act). They are contracts for service, under
which a doctor too can be sued in Consumer Protection Courts.
A 'contract for service' implies a contract whereby one party undertakes to render
services (such as professional or technical services) to another, in which the service
provider is not subjected to a detailed direction and control. The provider exercises
professional or technical skill and uses his or her own knowledge and discretion. A
'contract of service' implies a relationship of master and servant and involves an
obligation to obey orders in the work to be performed and as to its mode and manner
of performance. The 'contract of service' is beyond the ambit of the Consumer
Protection Act, 1986, under Section 2(1) (o) of the Act. The Consumer Protection Act
will not come to the rescue of patients if the service is rendered free of charge, or if
they have paid only a nominal registration fee. However, if patients' charges are
waived because of their incapacity to pay, they are considered to be consumers and
can sue under the Consumer Protection Act.3

THE LAW OF TORTS: RECOURSE TO CLAIM

COMPENSATION
Under civil laws, at a point where the Consumer Protection Act ends, the law of torts
takes over and protects the interests of patients. This applies even if medical
professionals provide free services. In cases where the services offered by the doctor
or hospital do not fall in the ambit of 'service' as defined in the Consumer Protection
Act, patients can take recourse to the law relating to negligence under the law of torts
and successfully claim compensation. The onus is on the patient to prove that the
doctor was negligent and that the injury was a consequence of the doctor's negligence.
Such cases of negligence may include transfusion of blood of incorrect blood groups,
leaving a mop in the patient's abdomen after operating, unsuccessful sterilization
resulting in the birth of a child, removal of organs without taking consent, operating
on a patient without giving anesthesia, administering wrong medicine resulting in
injury, etc.

3 Supra at note 2

There are two tests to determine medical negligence; the first is the Bolam test; this
test favors the medical professionals, and is still prevalent in India.
This was recognized in the classic direction of McNair J. to a jury in Bolam v. Friern
Hospital Management Committee; a doctor is not guilty of negligence if he has acted
in accordance with a practice accepted as proper and responsible by a responsible
body of medical men skilled in that particular art. Putting it the other way around, a
doctor is not negligent if he is acting in accordance with such a practice merely
because there is a body of opinion which takes the contrary view.
The implications of this for those in primary care are that the standard against which
one is judged is that of one's own peers - not that of the wisest and most prudent
doctor who exists and not that of a hospital consultant who may carelessly venture
opinion as to the management in general practice. By the same principal, the persons
who give evidence to the Court about the standards in general practice can only be
general practitioners who were practicing at the time of the case.
The second is the Bolitho test, which favors the patients. It is now taking over in most
common law jurisdictions, but has yet to take a firm hold in India; in the case of
Bolitho, the House of Lords decided in effect that, if the management by a body of
responsible doctors was not demonstrably reasonable, it would not necessarily
constitute a defense. If professional opinion called in support of a defense case was
not capable of withstanding logical analysis, then the court would be entitled to hold
that the body of opinion was not reasonable or responsible. More simply put - you
cannot defend a case on the basis of a current practice that is not reasonable or logical.

REVIEW OF JUDICIAL PRONOUNCEMENTS IN INDIA

A review of Indian decisions on medical negligence would be relevant in this regard.
Here are a few of the same:
The question of degree has always been considered as relevant to a distinction
between negligence in civil law and negligence in criminal law. In Kurban Hussein
Mohamedalli Rangawalla v. State of Maharashtra while dealing with Section 304A of
IPC, the following statement of law by Sir Lawrence Jenkins in Emperor v. Omkar
Rampratap, was cited with approval:
"To impose criminal liability under Section 304-A, it is necessary that the death
should have been the direct result of a rash and negligent act of the accused, and that
act must be the proximate and efficient cause without the intervention of another's
negligence. It must be the causa causans; it is not enough that it may have been the
causa sine qua non."
The above said view of the law has been generally followed by High Courts in India.
The same view has been reiterated in Kishan Chand & Anr. v. The State of Haryana.
In Juggankhan v The State of Madhya Pradesh, the accused, a registered Homoeopath,
administered 24 drops of stramonium and a leaf of dhatura to the patient suffering
from guinea worm. The accused had not studied the effect of such substances being
administered to a human being. The poisonous contents of the leaf of dhatura were
not satisfactorily established by the prosecution. The Supreme Court exonerated the
accused of the charge under Section 302 IPC. However, on a finding that stramonium
and dhatura leaves are poisonous and in no system of medicine, is the leaf given as

cure for guinea worm. Therefore, the act of the accused who prescribed poisonous
material without studying their probable effect was held to be a rash and negligent act.
It would be seen that the profession of a Homoeopath which the accused claimed to
profess did not permit use of the substance administered to the patient.
The accused in this case had no knowledge of the effects of the medicine administered
by him, leading the court to conclude that this was a rash and negligent act. Even
though that particular medicine was used in a different branch of medicine
(Ayurveda), the accused was unaware of the correct use of and procedure for
prescription for the same. This leads to the inference that any medical professional
acting without knowledge of the result of the treatment is prima facie committing a
tortious act.
In the case of Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr, the
duties which a doctor owes to his came into consideration. It was held by the Supreme
Court that a person who holds himself out ready to give medical advice and treatment
implicitly undertakes that he possesses the requisite skill and knowledge. Such a
person when consulted by a patient owes him/her a duty of care in deciding whether
to undertake the case, and in deciding what treatment is to be given, as well as a duty
of care in the administration of that treatment. A breach of any of the above duties
gives a right of action for negligence to the patient.
The doctor has, no doubt, the discretion of selecting the treatment which they propose
to give to the patient; such discretion is relatively more liberal in the case of an
emergency. In this case, the death of patient was caused due to shock resulting from
reduction of the fracture attempted by doctor without taking the elementary caution of
giving anesthetic to the patient.
In Poonam Verma v. Ashwin Patel and Ors 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.

In Achutrao Haribhau Khodwa and Ors. V State of Maharashtra and Ors the Supreme
Court noticed that in the very nature of medical profession, skills differ 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 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. The doctrine of res ipsa loquitur was held applicable 'in a case
like this'.
In Dr. Suresh Gupta v. Govt. of NCT of Delhi and Anr., the legal decision is almost
firmly established that where a patient dies due to negligent medical treatment of the
doctor, the doctor can be made liable in civil law for paying compensation and
damages in tort and the same time, if the degree of negligence so gross and his act
was reckless as to endanger the life of the patient, he would also be made criminally
liable to offence under Section 304-A IPC. "Thus a doctor cannot be held criminally
responsible for patient's death unless his negligence or incompetence showed such
disregard for life and safety of his patient as to amount to a crime against the State".
In the case of Jacob Mathew v. State of Punjab three Judge Bench of Supreme Court
by order quashed prosecution of a medical professional under Section 304-A/34 IPC
and disposed of all the interlocutory applications that doctors should not be held
criminally responsible unless there is a prima-facie evidence before the Court in the
form of a credible opinion from another competent doctor, preferably a Government
doctor in the same field of medicine supporting the charges of rash and negligent act.
The result of these decisions can be summed up as:
(1) Negligence is the breach of a duty caused 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. Negligence becomes actionable on account of injury resulting from the

act or omission amounting to negligence attributable to the person sued. The essential
components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) 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
judging the alleged negligence.
(3) 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.
(4) The jurisprudential concept of negligence differs in civil and criminal law. What
may be negligence in civil law may not necessarily be negligence in criminal law. For
negligence to amount to an offence, the element of mens rea must be shown to exist.
For an act to amount to criminal negligence, the degree of negligence should be much
higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a
higher degree may provide a ground for action in civil law but cannot form the basis
for prosecution.
(5) The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in
criminal law negligence or recklessness, to be so held, must be of such a high degree

as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304A of

the IPC has to be read as qualified by the word 'grossly'.
(6) To prosecute a medical professional for negligence under criminal law it must be
shown that the accused did something or failed to do something which in the given
facts and circumstances no medical professional in his ordinary senses and prudence
would have done or failed to do. The hazard taken by the accused doctor should be of
such a nature that the injury which resulted was most likely imminent.
(7) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law
especially 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.

CONCLUSION AND SUGGESTIONS

There must always be a link between fault, blame and justice requirements; needless
prosecution of medical professionals is counter-productive to society as a whole. The learned
authors of Errors, Medicine and the Law highlight 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. These are:

(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. 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.
(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 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.
(iii) A correct balance of the interests of the plaintiff and the interests of the defendant 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. 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.

BIBLIOGRAPHY
Books:
1. Bag, R. K., "Law of Medical Negligence and Compensation", Eastern Law House Pvt.
Ltd., New Delhi, 2001.

2. Rao, Dr. S V Joga, Current Issues in Criminal Justice and Medical Law - A Critical Focus,
Eastern Law House Pvt. Ltd., 1999.

Foreign Judgments:
1. Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582
2. Eckersley v. Binnie [1988] 18 Con.L.R. 1
3. Hucks v. Cole [1968] 118 New LJ 469
4. Michael Hyde and Associates v. J.D. Williams & Co. Ltd, [2001] P.N.L.R. 233
5. R.v. Bateman (1925) L.J. (K.B.) 792
6. Roe and Wooley v. The Ministry of Health and others (1954) 2 All E.R. 131