NATIONAL LAW UNIVERSITY ODISHA, CUTTACK

LAW OF TORTS

TOPIC: MEDICAL NEGLIGENCE

UNDER THE GUIDANCE OF:

MS. SONAL SINGH

SUBMITTED BY:

ANSRUTA DEBNATH (2021/BA LLB/014)

ANKUSH KALSULE (2021/BA LLB/013)
Semester I || Batch 2021 – 2026

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 TABLE OF CONTENTS

Table of Contents 2

Introduction 3

A Description 3

Standard of Care 4

Important Duties of Medical Professionals 4

Common types of Medical Negligence 4

Res ipsa loquitur 6

Provisions of remedy in cases of Medical Negligence 6

Defences 6

Conclusion 7

Bibliography 8

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INTRODUCTION

Health sector is one of the biggest sectors in our country and basic health facilities are important
for every individual to survive, ranging from the rich to the poorer sections of society. The
following project deals with one of the important issues in the health sector- Medical
negligence. The authors of this project will be giving a general idea of “Standard of Care” that
needs to be followed by the medical practitioners. Tort is a civil wrong but sometimes the facts
of cases are such that the medical practitioners might be criminally held liable for their negligent
act and thus study of various sections which deal with it becomes important for us. The authors
in the project will be dealing with various ways in which the plaintiff on whom the burden of
proof is vested can make his suit a strong one so that the liability of the defendant medical
practitioner can be proved and the plaintiff can be granted appropriate compensation for the
injuries he suffered during the course of treatment. Further we will be discussing various
defences for the medical practitioners to prove his non-liability.

A DESCRIPTION

Medical negligence is a type of professional negligence which expects professionals to have

certain kinds of skills and standard of care towards the people who take up their services.
Medical negligence can be defined as an act which usually occurs with the lack of reasonable
care by the doctor in all subjects of treatment regarding patient treatment starting from keeping
confidential information of patient and medical history away from some unknown person to
making diagnosis and examination without patient’s consent. In the cases of medical negligence
a doctor or other medical professionals have a duty of care towards the patients, improper
procedure and not doing one's duty results in medical negligence. With the high risk profession
in which they are involved it becomes important for them to perform treatment with appropriate
and without causing any injury to the already aggrieved party. Negligence cases can also be put
on the Medical Council of India as they did not exercise their powers invested in them by the

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Indian Medical Councils Act for the regulation of medical practitioners in the country as well as
not keeping in tune with the normal standard of care to be followed. 1

STANDARD OF CARE

Individuals in certain professions like the medical profession need to have higher standards of
care than the individuals who are not. In the medical profession which deals with extreme risk,
the standard of care is higher than in normal circumstances. Standard of care is defined by the
standard that a reasonably prudent professional in the profession that he is related to will apply.
Bolam’s test2 is used to determine whether a doctor is liable for medical negligence or not.
Professionals will not be liable for breach of duty if they acted in a manner which was according
to practices generally accepted by the body.

IMPORTANT DUTIES OF MEDICAL PROFESSIONALS

● Informing patient- The doctor is supposed to inform the risks associated with surgery and
medication to the patient
● Confidentiality- The doctor is required to maintain privacy of the patient but in cases of
danger to the people around the patients he may opt to do share the confidential
information
● Diagnosis and treating patient-The doctor has the duty to diagnose the patient once he
takes up the case like giving him appropriate medication and surgeries in case they are
required
● Informing patient-The doctor has the duty to inform the patient about his illness as well
give him appropriate advice

COMMON TYPES OF MEDICAL NEGLIGENCE

Medical Negligence can be of a variety of types. Of them, the most common types are as
follows-

1
Karunakaran Mathiharan ‘Supreme Court on Medical Negligence’ Economic and Political Weekly, vol. 41, no. 2,
Economic and Political Weekly, 2006, pp. 111–15 < http://www.jstor.org/stable/4417666 > accessed 28th October
2021.
2
Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582.

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 1. Misdiagnosis
Misdiagnosis or delayed diagnosis is very common in medical malpractice cases. A patient's
health might be jeopardized by a misdiagnosis or a delayed diagnosis of a dangerous illness.
Failure to appropriately identify a patient might prevent them from obtaining effective therapy at
an early stage. As a result, their sickness may worsen and become more serious or even fatal in
certain instances. A related case in India was D. H. Kumari and Ors. vs. The Director Nizam
Institute of Medical Sciences, Panjagutta Hyderabad3 which came in front of the National
Consumer Dispute Redressal Commission, New Delhi. It involved a mastectomy being
conducted due to misdiagnosis and the petitioner was awarded with substantial compensation.
2. Incorrect Medication
One of the most prevalent incidents of medical negligence is incorrect medicine prescriptions or
drug delivery. Under this category comes the landmark judgment with regards to medical
negligence, Kunal Saha Vs AMRI4 (Advanced Medical Research institute) famously known as
Anuradha Saha Case. The case was filed by Kunal Saha after the death of his wife Anuradha
Saha who was suffering from drug allergy but was negligently medicated which resulted in an
aggravation of her condition and eventually killed her. The Supreme Court decided in favor of
Mr. Kunal Saha and awarded 6.08 Crores as compensation to him for the death of his wife.
3. Surgery Mishaps
Another common example is surgeons making mistakes in the operating theatre. The situation
worsens when their mistake costs the life of the patient. Mistakes include accidently nicking a
certain vessel or puncturing an organ, or leaving lap pads in the patient.
A good example of this category is a recent case of Sabiha Hamid vs. Dr. M. Khan Hospital and
Ors.5 which was decided in 2021 in the Uttar Pradesh State Consumer Dispute Redressal
Commission, Lucknow. The respondents had negligently left cotton balls in the abdomen of the
petitioner while they had performed a cesarean on her, causing excruciating pain. The
respondents were jointly and severally made liable for amounts upwards of 60 Lakhs.

3
MANU/CF/0290/2012.
4
CAL 692, 2866, 731, 858 OF 2021, SSC 384 (2014).
5
MANU/RG/0021/2021.

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RES IPSA LOQUITUR

Sometimes, proving that the offender was at blame, as well as gathering evidence against his act
or negligence, becomes extremely difficult. Keeping this in mind, the res ipsa loquitur maxim
came into effect, allowing a complainant to prove carelessness through circumstantial evidence,
the general principle behind the doctrine is that there is less chances of negligence until the
defendant or the person in charge would do something in a improper way. 6 In Ashish Kumar
Majumdar v. Aishi Ram Batra Charitable Hospital and others7, the Supreme Court said that
hospital and staff duty is not just limited to treatment but also extends to safety and security of
the patient. In this case the plaintiff fell from the third floor of the hospital which resulted in
multiple injuries to him. The court applied this doctrine and thus the hospital was held liable for
negligence and was asked to pay compensation to the victim.

PROVISIONS FOR REMEDY IN CASE OF MEDICAL NEGLIGENCE

Certain remedies (in the Indian Penal Code) are available to victims of medical negligence-
1. SECTION 304-A - It says that if any individual commits any negligent acts which
amount to culpable homicide, then that individual will be sentenced to a minimum of two
years in prison along with a monetary fine.
2. SECTION 337 - It says that any individual who commits negligent acts which might
result in injury to someone should be punished with duration of six months or fine
ranging to a maximum of five hundred rupees, or both.
3. SECTION 338 - It says that any individual who commits a negligent act which might be
a danger to human life should be one punishable with imprisonment for up to two years
or a fine of one thousand rupees, or both.

DEFENCES

Doctors have been accorded with the general defences of volenti non fit injuria and necessity.
Apart from that, certain provisions of the Indian Penal Code, 1860 might also serve as defences.

6
Charles E. Carpenter, 'Doctrine of Res Ipsa Loquitur' (1934) 1 U Chi L Rev 519
<https://heinonline.org/HOL/P?h=hein.journals/uclr1&i=537> accessed on 23 November.
7
214 SCC ONLINE 357.

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 1. SECTION 80 - If something happens by mistake or due to misfortune and without any
criminal intention or knowledge while doing an lawful act in a lawful manner with care
and caution would not be an offense
2. SECTION 81 - It is not a crime if something is done with the knowledge that it will
certainly cause injury, but the same conduct is done without any intention of causing
harm and in good faith to avoid additional damage to the person or his property.
3. SECTION 88 - If someone does an good-faith deed for the betterment of others and did
not have any intention to cause any harm and the patient has agreed to the risks involved
or had the knowledge of same

Moreover it was held in Kusum Sharma v. Batra Hospital8, the Supreme Court stated that a
doctor frequently chooses a procedure that carries a higher risk, but does so because he honestly
feels it will improve the patient's prospects of success. If a doctor took a greater risk to relieve a
patient's suffering and did not achieve the desired effect, this may not be considered medical
negligence.

CONCLUSION

Medical negligence is a special and important type of professional negligence that individuals
come across in day to day life. In the current times the medical field has a huge scope for
development and satisfying the needs of every individual. A greater sense of accountability is
expected from both the patients and medical practitioners. Various factors together contribute to
determine if the medical negligent has taken place or not. A Medical practitioner is required to
follow a proper standard of care while treating his/her patient. The doctor is required to give
proper medication, take consent of the patient, and maintain the confidentiality of the patient. A
medical practitioner is not a normal person in the course of his duty while treating a patient, he
knows more than a patient and thus he needs to follow appropriate care while treating the patient.
In case a patient suffers any harm or injury due to the negligence of a medical practitioner, he
has every right to approach the concerned authorities to complain and get the compensation for
the harm he suffered due to the injury. In the same way there is a need for protection for the
medical practitioners as well. In many instances the patient hides their prior medical condition

8
AIR 2010 SC 1050.

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which does not help the medical practitioner in giving appropriate care which was needed. In
many situations to save the life of the patient and due to time constraints the medical
practitioners need to make quick decisions which might not give the desired result every time .

BIBLIOGRAPHY

● Bangia RK, Dr. R.K. Bangia’s Law of Torts (Dr. Narendra Kumar rev, 25th edn,
Allahabad Law Agency 2020).
● Carpenter CE, 'Doctrine of Res Ipsa Loquitur' (1934) 1 U Chi L Rev 519
<https://heinonline.org/HOL/P?h=hein.journals/uclr1&i=537 > accessed on 23 November
2021.
● Goodwin M. and Richardson LS, ‘PATIENT NEGLIGENCE’ Law and Contemporary
Problems, vol. 72, no. 4, Duke University School of Law, 2009, pp. 223–50
<http://www.jstor.org/stable/20779041> accessed 10th November 2021.
● Mathiharan K, ‘Supreme Court on Medical Negligence’ Economic and Political Weekly,
vol. 41, no. 2, Economic and Political Weekly, 2006, pp. 111–15
<http://www.jstor.org/stable/4417666 > accessed 28th October 2021.

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