DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISKHAPATNAM, A.P, INDIA.

PROJECT TITLE

MEDICAL NEGLIGENCE IN INDIA

SUBJECT

LAW OF TORTS

NAME OF THE FACULTY

Dr .[Link] DEVI MADAM

NAME OF THE STUDENT: T. Kranthi Kiran

REGD NO: 18LLB127
SECTION: B
IST SEMESTER

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 ACKNOWLEDGEMENT

I would like to express my heartfelt gratitude to our beloved professor [Link] Devi madam for
giving me this wonderful opportunity to do a project on MEDICAL NEGLIGENCE IN
INDIA. I have put all my efforts to collect the information and to complete this project.

I would also extend my thanks to history sir for his support, guidance and encouragement
throughout the project. I would also like to thank my friends and family members for their
support throughout the project.

I Thank You !

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 TABLE OF CONTENTS

Abstract……………………………………………………….4

Introduction…………………………………………………..5

What is Negligence?.................................................................5-7

Medical Negligence…………………………………………..8-9

Element of medical negligence……………………………….9-11

Essentials……………………………………………………..12-13

Liability……………………………………………………….13-14

Judgments on Medical Negligence in India…………………..14-18

Judgments on Medical Negligence with Reference to UK…...18-20

Conclusion…………………………………………………….21

Bibilography…………………………………………………..22

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ABSTRACT:-

Medical Profession is one of the most reputed professions in the world as we know that
doctors are considered as God because they save our lives and always saves us from disease like
Cancer, TB, etc. So they are given much respect in our society and moreover they do their work
and research for humans and their development and their main profession is to help people to
come out of any diseases. This is their work and so they focus much on their research as it will
be helpful to mankind in future. But then a time comes when the saviour doesn’t remain the
saviour but becomes the devil himself and here comes the main thing of our topic and that is
about Negligence in the services rendered by the doctors. Doctor always needs to be focused on
their work and they should be always exact in their work because when they are advising
someone on their health issues then they cannot take a chance to give them wrong or useless
advice or to do anything wrong in surgery because it can cost anybody’s life. But it is an irony
that we have several cases of medical negligence in our country and this paper is thus a detail
study on Negligence in services rendered by doctors.

Now talking about negligence, we should know that negligence is an omission to do

something by getting into influence of the human affairs and doing such work which will be
done or not by reasonable and sensible [Link] we will too see what exactly is medical
negligence, medical negligence can be defined as an act which occurred with the lack of
reasonable care or wilful negligence by the doctor in respect to all aspects regarding patient from
showing the confidential report of the patient and history to some unknown person to making
diagnosis and examination without patient’s permission. Moreover we can prove a doctor’s
negligence when he had a duty of care towards his patient but he breached that duty and the
patient suffered injury due to that breach of duty of care. Now we have known that what exactly
is medical negligence, so now we will see in what all ways it is done by the doctors, in order to
find whether the negligence in service is done by the doctor or not there are certain ingredients
being kept so that they are being caught doing wrong things. They are duty of care, breach or
failure to show the acceptable level of professional conduct and the damage incurred by that
breach as stated above. This all are certain things which are kept as a trap to catch the doctors
practicing such things.

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INTRODUCTION:-

Medical negligence is a combination of two words. The second word solely describes the
meaning, though the meaning of negligence has not been described in a proper way but it is an
act recklessly done by a person resulting in foreseeable damages to the other. Negligence is an
offense under tort, IPC, Indian Contracts Act, Consumer Protection Act and many more. Medical
Negligence basically is the misconduct by a medical practitioner or doctor by not providing
enough care resulting in breach of their duties and harming the patients which are their
consumers. A professional is deemed to be an expert in that field at least; a patient getting treated
under any doctor surely expects to get healed and at least expects the doctor to be careful while
performing his duties. Medical negligence has caused many deaths as well as adverse results to
the patient’s health. This article focuses on explaining negligence under various laws,
professional negligence, medical negligence and landmark as well as recent cases in India. This
provides information on liability that can be incurred by the victim of the medical malpractice. It
aims at providing information about the topic to create as much awareness as possible.

What is Negligence?

There are distinct definitions for negligence. It1 is the 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. It must
be determined in all cases by reference to the situation and knowledge of the parties and all the
attendant [Link] which is below the standard behaviour established generally for
protection of others against unreasonable risk of harm is negligence. As per Winfield,
“Negligence as a tort is the breach of a legal duty to the care which results in damage, undesired
by the defendant, to the plaintiff.” Negligence doesn’t arise just because of a wrongful conduct
by a person; it is essential that that misconduct has caused a foreseeable harm to the other. If
there’s no harm, there’s no negligence. In King v. Phillips it was observed that the question of
negligence arises only when there is a direct harm to the plaintiff by the misconduct and the
harm should be foreseeable. Damage is an important ingredient to bring negligence under tort.

i)Negligence as a Tort
1
[Link]

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A tort is a residuary civil wrong.2 Duties in tort are fixed by the law and such duties are owed in
rem or to the people at large generally. Such wrongs can be remedied by filing for unliquidated
damages. There may also be cases where concurrent liability may exist under tort and contract.
For instance, if there is a contract existing between a patient and a doctor, then the doctor, for his
negligence, will be liable under contract.

ii)Negligence under Contract

A contract may have express or implied terms. There are situations where there is a contract
between medical practitioners and patients. Even in the absence of an express stipulation to the
effect that the practitioner will exercise reasonable skill and care in treatment of a patient, it is
taken as an implied duty arising out of the contract. Breach of this duty thus results in violation
of the contract.

iii)Negligence as a Crime

Negligence as a crime has a different yardstick. Negligence under tort is determined on the
extent of the loss caused whereas negligence under criminal law is dependent on the degree or
amount of negligence. Courts have repeatedly held that the burden of proving criminal
negligence rests heavily on the person claiming it. Criminal law requires a guilty mind. If there is
a guilty mind, a practitioner will be liable in any case. But if, under the criminal law, rashness
and recklessness amount to crime, then also a very high degree of rashness would be required to
prove charges of criminal negligence against a medical practitioner. In other words, the element
of criminality is introduced not only by a guilty mind, but by the practitioner having run the risk
of doing something with recklessness and indifference to the consequences. It should be added
that this negligence or rashness or must be ‘gross’ in nature.

iv)Negligence under Consumer Protection Legislations

Ever since professions have been included under the purview of consumer protection laws;
medical practitioners too have felt the heat. It is on a footing different from any other kind of
negligence. Under consumer protection laws, medical negligence is another form of deficiency in
service. It is most akin to the liability under the law of torts. But there is stricter and broader

2
Universals medical negligence &legal remedies,[Link],3 edition.

6
liability in this situation as failure to exercise skill and care as is ordinarily expected of a medical
practitioner is the test under consumer protection laws.

Admittedly, doctors have an extremely difficult duty to perform. They are the ones in whose
hands a patient places what is most valuable to each human – their lives. It is for this reason that
doctors are expected to exercise a very high degree of skill and care, but this is also the precise
reason why they should not be inhibited in the exercise of their duty. Therefore the laws
imposing liability on medical practitioners have been tailored to accord to practitioners
maximum possible protection.

v)Negligence by professionals

Professionals are persons professing some special skill or job, who are trained to profess in that
area specially and bear the responsibility of professing with due care. Such professionals include
lawyers, doctors, architects etc. The SC in Jacob Mathew v. State of Punjab,[vii] explained: a
professional entering into certain profession is deemed to have knowledge regarding that
profession and it is assured impliedly by him that a reasonable amount of care shall be taken to
profess his profession. The person can be held liable under negligence if he did not possess the
required skills to profess or he failed to take essential amount of care to profess the said
profession.

The law nowhere states that a professional shall be held liable if he fails to perform his skills, it
states that a professional shall take reasonable amount of care and shall possess knowledge as
compared to any practitioner in the same field. The skills of different professionals surely differs
from one another even if they are practicing in the same field but what is required is that a
professional has knowledge of new advances, discoveries and developments in his field so as to
give essential care to the consumers of his profession. The failure to comply with this which any
ordinary professional would have done properly amounts to professional negligence liable under
the law.

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Medical Negligence

“No doctor knows everything. There’s a reason why it’s called “practising” medicine.”

– Anonymous.

To err is human. Though patients see the doctors as God and believe that their disease will be
cured and they will be healed by the treatment but sometimes even the doctors makes mistakes
which can cost a lot to the patients in many ways. Sometimes the mistakes are so dangerous that
a patient has to suffer immensely. “In my opinion, our health care system has failed when a
doctor fails to treat an illness that is treatable.”[i] – Kevin Alan Lee. “Being in such a profession
where sick, ill and sufferers are your customers who look upon you as the almighty, an absolute
amount of care is expected.” This kind of mistake is called negligence. If an owner of the
restaurant can be sued for providing low quality of food then even a doctor can be sued for
providing low quality of treatment and care.

Medical negligence also known as medical malpractice3 is improper, unskilled, or negligent

treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional.
[ii] Medical malpractice occurs when a health-care provider strays from the recognized “standard
of care” in the treatment of a patient. The “standard of care” is defined as what a reasonably
prudent medical provider would or would not have done under the same or similar
circumstances. “The important question isn’t how to keep bad physicians from harming patient;
it’s how to keep good physicians from harming patients. – Atul Gawande[iii]. It is unreasonably
threatening practice and it is classified as such because first, the actor did or should have
foreseen that it would subject another to an adverse risk of harm, and second, the magnitude of
the perceivable risk was such that the actor should have acted in a safe manner.[iv]

Mistakes or Negligence in medical profession may lead to minor injuries or some serious kinds
of injuries and sometimes these kinds of mistakes may even cause death. Since no man is perfect
in this world, it is evident that a person who is skilled and has knowledge over a particular
subject can also commit mistakes during his practice. Too err is human but to replicate the same
mistake due to one’s carelessness is negligence. The fundamental reason behind medical error or

3
Law of torts,Ratan lal and dhiraj lal.

8
medical negligence is the carelessness of the said doctors or medical professionals it can be
observed in various cases where reasonable care is not taken during the diagnosis, during
operations, sometimes while injecting anaesthesia etc.

For example, after a severe operation of a patient, he is likely to get infected by many diseases
because of certain reason which can include loss of blood, weakness, high dose of medicines. In
due course a standard care is expected from the doctor to give premedication regarding certain
infectious diseases. If a doctor fails to do so due to which a patient suffers from some infection
which can cause a lot of harm or even death in adverse cases, the doctor is said to have
committed medical negligence or malpractice.

Elements of medical negligence

The tort of negligence is the most frequently used of all torts and it is thus the most important
tort in modern law. Negligence protects against three types of harm:

(i) Personal injury

(ii) Damage to property and

(iii) Economic loss

There is some debate as to whether negligence is a tort or a basis of liability. Negligence is a tort
which determines legal liability for careless actions or inactions which cause injury.

It must be taken on account that action or inaction is not the subject matter of negligence in
itself; it means negligence is concerned with the manner in which the activity is carried out. The
duty of care for a medical professional starts from the time the patient gives an implied consent
for his treatment and the medical professional accepts him as a patient for treatment, irrespective
of financial considerations. This duty starts from taking the history of the patient and covers all
aspects of the treatment, like writing proper case notes, performing proper clinical examination,
advising necessary test and investigations, making a proper diagnosis, and carrying out careful
treatment.4

4
Supra n. 5.

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 Negligent conduct is that which falls below an acceptable standard. This standard is established
in order to protect others from an unreasonable risk of harm. However, not every type of careless
behavior will constitute the legal action of negligence. As per P. H. Winfield, negligence means;
the breach of a legal duty to take care by an inadvertent act or omission that injures another.5

Negligence is concerned with compensating people who have suffered damage as a result of the
carelessness of other people. But the law does not provide a remedy for everyone who suffers in
this way. This is where the doctrine of the duty of care plays a role. A person will only be liable
to another for negligence if she has a duty of care towards the other and she has breached that
duty and caused damage to the other. A speeding car knocked down a cyclist and killed him. A
patient mistakenly gets injected with the wrong antibiotic causing permanent paralysis by her
junior doctor. An elderly woman breaks her hip after tripping over a raised paving slab on the
pavement outside her local shop. A young child falls down a manhole left uncovered by Post
Office employees earlier in the day and seriously injures his leg. In each of these examples, the
accident or injury suffered appears to be the fault, at least in part, of someone other than the
injured party. The speeding motorist, the junior doctor, the local authority and the Post Office
employees have all been, in some way, negligent, in the sense of having acted carelessly or
neglectfully. Negligence is a basis for a wide variety of legal claims in the law of torts. It is best
to think of tort law as civil injury law. A common example of tort law, and a familiar way to
explain how negligence works, is to think of drivers on the road, rules of the road and car
accidents. In a car accident, it is usually established that one person caused the accident, and that
person is responsible to pay for all the damages incurred to the other parties involved.

In terms of medical malpractice tort law, medical negligence is usually the basis for a lawsuit
demanding compensation for an injury caused to a patient by a doctor or other medical
professional. While negligence on its own does not merit a medical malpractice claim, when the
negligence results in undue injury to a patient, a lawsuit may be brought demanding
compensation for all associated damages. A physician has a duty to diagnose and treat his or her
patients using the standard of care of other similarly trained physicians in that community. If a
physician fails to diagnose cancer when another physician in that community with similar
training would have been expected to diagnose the cancer, that physician may be liable if the
5
Percy H Winfield „The History of Negligence in the Law of Torts‟ (1926) 42 Law Quarterly Review, 184.

10
delay in diagnosis results in severe case than if the cancer had been detected and treated at an
earlier stage. The unsatisfactory outcome of medical treatment in itself is insufficient to support
an allegation that the doctor treating a patient was negligent. Then the patient cannot sue his
doctor for medical negligence simply because his illness cannot be cured after a series of
treatments. Medical negligence occurs when a medical provider fails to exercise the kind of care
and prudence that other providers in the same field of medicine provide. Medical negligence can
occur in the form of recklessness, inattentiveness, or an omission. Common types of malpractice
include misdiagnosis, failure to provide proper treatment of a patient's ailment, administration of
the wrong medication, and the failure to inform the patient of the risks associated with a
treatment or with information about alternative treatments. Tort law governs medical negligence.
To establish that a provider's negligence was malpractice, a claimant must establish the
following:

a. The healthcare provider owed a duty to the plaintiff;

b. The healthcare provider breached the duty;

c. The healthcare provider's breach caused the injury; and

d. The patient suffered damages because of the defendant's negligence.

Medical negligence occurs when a doctor, dentist, nurse, surgeon or any other medical
professional performs his job in a way that deviates from the accepted medical standard of care.
In keeping with car accident analogy, if a doctor breaks the rules regarding how to treat a patient,
and does something that is "against the rules", then that doctor has failed to perform his duty, and
is said to be negligent.

Essentials

Doctor’s duty to attend the patient with care

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Medicine is such a profession where a practitioner is supposed to have requisite knowledge and
skill needed for the purpose and has a duty to exercise reasonable duty of care while dealing with
the patient. The standard of the care depends upon the nature of the profession. A surgeon or
anaesthetist will be determined by the standard of average practitioner in that field while in case
of specialists, a higher skill is needed.

If the doctor or a specialist doesn’t attend a patient admitted in emergency or under his
6

surveillance and the patient dies or becomes victim of consequences which could have been
avoided with due care from the doctor, the doctor can be held liable under medical negligence.
This was held in Sishir Rajan Saha v. The state of Tripura that if a doctor did not pay enough
attention to the patients in government hospitals as a result of which the patient suffers, the
doctor can be held liable to pay compensation to the patient. Moreover the liability of the doctor
cannot be invoked now and then and he can’t be held liable just because something has gone
wrong. For fastening the liability, very high degree of such negligence was required to be
proved.A doctor or a medical practitioner when attends to his patients, owes him the following
duties of care:

1. A duty of care in deciding whether to undertake the case

2. A duty of care in deciding what treatment to give

A duty of care in the administration of the treatment

When you go to a doctor, you expect to be seen promptly and attentively, and at a reasonable
cost. You expect the doctor to be knowledgeable about the latest advances in his field of
specialty, and educate you about your diagnosis and prognosis, and explore the best possible
solution to your health issue. In short, you expect to be healed. But for millions of people, what
they expect is far from what they receive.

Doctor acting in a negligent manner

6
The Law of Torts, Ratan lal and dhiraj lal.

12
It is well accepted that in the cases of gross medical negligence the principle of res ipso loquitur
is to be applied[xi]. The principle of res ipso loquitur is said to be essentially an evidential
principle and the said principle is intended to assist the claimant.[xii] Res Ipso loquitur means
things speaks for itself; while deciding the liability of the doctor it has to be well established that
the negligence pointed out should be a breach in due care which an ordinary practitioner would
have been able to keep. Latin for “the thing speaks for itself,” a doctrine of law that one is
presumed to be negligent if he/she/it had exclusive control of whatever caused the injury even
though there is no specific evidence of an act of negligence, and without negligence the accident
would not have happened. A doctor is not an insurer for the patient, inability to cure the patient
would not amount to negligence but carelessness resulting in adverse condition of the patient
would.

In Gian chand v. Vinod kumar Sharma[xiii] it was held that shifting of the patient from one
ward to another in spite of requirement of instant treatment to be given to the patient resulting in
damage to the patient’s heath then the doctor or administrator of the hospital shall be held liable
under negligence. Also in Jagdish Ram v. State of H.P.[xiv], it was held that before performing
any surgery the chart revealing information about the amount of anaesthesia ad allergies of the
patient should be mentioned so that an anaesthetist can provide ample amount of medicines to
the patient. The doctor in above case failed to do so as a result of the overdose of anaesthesia the
patient died and the doctor was held liable for the same.

Liability

The liability of the person committing the wrong can be of three types depending on the harm or
the injury suffered by the injured person they are

1. Civil Liability– Civil liability usually includes the claim for damages suffered in
the form of compensation. If there is any breach of duty of care while operating or
while the patient is under the supervision of the hospital or the medical
professional they are held to be vicariously liable for such wrong committed. And
are liable to pay damages in the form of compensation. At times the senior
doctors are even held vicariously liable for the wrongs committed by the junior
doctors. If someone is an employee of a hospital, the hospital is responsible if that

13
 employee hurts a patient by acting incompetently. In other words, if the employee
is negligent (is not reasonably cautious when treating or dealing with a patient),
the hospital is on the hook for any resulting injuries to the patient. In Mr. M
Ramesh Reddy v. State of Andhra Pradesh, the hospital authorities were held to
be negligent, inter alia, for not keeping the bathroom clean, which resulted in the
fall of an obstetrics patient in the bathroom leading to her death. A compensation
of Rs. 1 Lac was awarded against the hospital.
2. Criminal Liability- There may be an occasion when the patient has died after the
treatment and criminal case is filed under Section 304A of the Indian Penal Code
for allegedly causing death by rash or negligent act. According to S. 304A of the
IPC, whoever causes the death of any person by a rash or negligent act not
amounting to culpable homicide shall be punished by imprisonment for up to two
years, or by fine, or both. Hospitals can be charged with negligence for
transmission of infection including HIV, HBsAg, etc. if any patient develops such
infection during the course of treatment in the hospital and it is proved that the
same has occurred on account of lapse on part of the hospital then the hospital can
be held liable for lack of reasonable duty to care. My very own grandmother
passed away due to the negligence of the doctors. Due to the carelessness of the
doctor that he was in so hurry to rush for his next operation that he forgot to
sterilize the equipments and as a result there was this transmission in her death.

Judgments on Medical Negligence in India

[Link] @ Bapu & Another v. State of Maharashtra

The Supreme Court opined that while negligence is an omission to do something which a
reasonable man, guided upon those considerations which ordinarily regulate the conduct of
human affairs, would do, or doing something which a prudent and reasonable man would not do;
criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and
proper care and precaution to guard against injury either to the public generally or to an
individual in particular, which having regard to all the circumstances out of which the charge has
arisen, it was the imperative duty of the accused person to have adopted.

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2. Jacob Mathew v. State of Punjab & Another

Jacob Mathew v. State of Punjab & Another[3]– In this case, the Supreme Court while dealing
with the case of negligence by professionals also gave illustration of medical and legal
profession:

“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 to possess shall be exercised and exercised with reasonable degree of
care and caution. He does not assure his client of the result. A lawyer does not tell his client that
the client shall win the case in all circumstances. A physician would not assure the patient of full
recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would
invariably be beneficial, much less to the extent of 100% for the person operated on. The only
assurance which such a professional can give or can be understood to have given by implication
is that he is possessed of the requisite skill in that branch of profession which he is practising and
while undertaking the performance of the task entrusted to him he would be exercising his skill
with reasonable competence. This is all what the person approaching the professional can expect.
Judged by this standard, a 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
practises.

[Link] Haribhau Khodwa & Others v. State of Maharashtra & Others

15
This Court noticed that in the very nature of medical profession, skills differs 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.

4.C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam

This Court had an occasion to deal with the case of medical negligence in a case in which the
respondent was hit by a motor-cycle while going on his bi-cycle sustained a hairline fracture of
the neck of the right femur. Pre-operative evaluation was made and the appellant Dr. Sreekumar,
on considering the various options available, decided to perform a hemiarthroplasty instead of
going in for the internal fixation procedure. The respondent consented for the choice of surgery
after the various options have been explained to him. The surgery was performed the next day.
The respondent filed a complaint against the appellant for medical negligence for not opting
internal fixation procedure. The Supreme Court in the case held that the appellant’s decision for
choosing hemiarthroplasty with respect to a patient of 42 years of age was not so palpably
erroneous or unacceptable as to dub it as a case of professional negligence.

[Link] vs Anita Sena Fernandes [(2011) 1 SCC 53]

In this case, the Supreme Court had held that in cases of medical negligence, no straitjacket
formula can be applied for determining as to when the cause of action has accrued to the
consumer. Each case is to be decided on its own facts. If the effect of negligence on the doctor’s
part or any person associated with him is patent, the cause of action will be deemed to have
arisen on the date when the act of negligence was done. If, on the other hand, the effect of
negligence is latent, then the cause of action will arise on the date when the patient or his
representative- complainant discovers the harm/injury caused due to such act or the date when
rnmdiscovered the act constituting negligence.

[Link]. M. Kochar vs Ispita Seal

16
In this recent case, the National Consumer Dispute Redressal Commission (NCDRC) was
confronted with the issue of failure in IVF procedure. The complainant in the case complained of
failure in IVF procedure and demanded compensation from the Doctor on account of medical
negligence. The National Commission in the case held that “No cure/ no success is not a
negligence”, thus fastening the liability upon the treating doctor is unjustified.

[Link] [Link] of T.N

7
The apex court held the state liable for negligence committed by doctors of government
hospitals since,the state which established and administered such hospitals through its [Link]
health,could not be absolved from its liability,the court ruled.

[Link] Rajan [Link] Hospital Ltd

The complainant,a married woman,aged 40 years noticed development of a painful lump in her
[Link] opposite party hospital while treating the lump,removed her uterus without
justification.

It was held to be a case of deficiency in service for which the opposite party was required to pay
Rs.2,00,000 as compensation to the complainant.

[Link] Devi v. State of H.P

The appellant was given prior information about the chance of failure of tubectomy
[Link] got conception due to ovum released from her ovary coming in contact with
spermatozoa and delivered a child,despite tubectomy [Link] that the doctor who
conducted the operation,could not be blamed for conception and ultimate delivery,the H.P court
did not consider it a case of medical negligence.

The petitioner's son,Ashim Saha wh

Udaipur on scooter met with an acc
[Link] Mazumdar [Link]
emergency ward of the [Link] ,
Batra Charitable Hospital Trust
7
Law of Torts, R.k Bangia.

17
The plaintiff,an in-door patient in Doctor,[Link] was not available in t
the hospital fell out of the window called to attend to the [Link] was

of the hospital [Link] the patients and did not bother to come to
liable to pay Rs.1,25,000 as compe
rule of res ipsa loquitur,a three-
deceased.
judge bench of the supreme court
held the hospital liable stating it to
be a clear case of absence of due
of the hospital.

[Link] Rajan Saha v. The

state of Tripura

The petitioners son,Ashim saha

while coming from Agartala to
Udaipur on scooter met with an
accident .He was admitted to
emergency ward of the G.B.
Hospital ,[Link] senior
specialist doctor,[Link] not
available in the [Link] was
repeatedly called to attend to the
[Link] was busy attending to
his private patients and did not
bother to come to the hospital to
attend to the accident
[Link] Saha succumbed to
his [Link] was held
liable to pay Rs.1,25,000 as
compensation for the death of the
deceased.

Directions were also issued to

18
all the government hospitals to
upgrade the medical services

Judgments on Medical Negligence with Reference to UK8

[Link] Glancy V The Southern General Hospital Nhs Trust [2013] CSOH 35 -
1/3/2013

Medical negligence: Proof: Quantum agreed. The puruser presented at his general practitioner
with neck and upper arm pain. He also complained of other pain such as paraesthesia in his left
hand. The pursuer thereafter underwent 4 operations. The first two operations consisted of a
micro forminotomy and cervical discectomy. These provided some relief but significant pain
continued. The third operation involved fixation of his spine by a Halifax clamp to bring about
fusion. After the third operation, the pursuer was left with incomplete tetrapleagia. The forth
operation was to remove the Halifax clamp and to attempt to reverse the effects of the third
operation, which was unsuccessful. The operations were carried out by Mr Johnston. The pursuer
averred: Mr Johnston had failed to warn of a significant risk of paralysis and tetrapleagia in
undergoing the third operation; Mr Johnston had failed to carry out proper investigations before
proceeding with the posterior fixation of the cervical spine and that he should have carried out a
myelogram or MRI scan; Mr Johnston failed to carry out a laminectomy to decompress the
spinal cord at c3/4 and c4/5 level and failed to explore the pursuer's cervical spine between c3-5
to check for compression and any extra-dural haematoma in the fourth operation and; not having
carried out up to date x-rays and/or temporary external immobilisation and a myelogram or MRI
scan, Mr Johnston should have carried out a different operation. The last case was abandoned in
submissions. Considered: the cause of the injury did not require to be established; how the court
8
[Link]

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should approach conflicting expert medical evidence on acceptable medical practice when
applying the Hunter v Hanley test; reliability of witnesses in the circumstances. Held: Mr
Johnston had not failed in his duties. The pursuer could not succeed.

[Link] V Heathwood & Anr, High Ct, 16/6/2005

Failure to provide prompt and appropriate care and intensive support: The defendant hospital's
negligent failure to provide prompt and appropriate care with intensive support was held to have
caused the death of the claimant's wife from pneumonia.

[Link] V Milton Keynes Nhs Trust & Anr, High Ct, 11/5/2006

Breach of duty established, but causation not established on the evidence. Although a hospital
had been in breach of duty by not communicating to surgeons performing an operation the
results of laboratory tests showing the presence of bacteria in a patient's existing surgical wound,
and in not administering appropriate antibiotics to combat those bacteria, the hospital was not
liable to the patient for his eventual continuing disability as, on a substantial balance of
probabilities, the bacteria would have been immune to attack by that time.
[Link] V North West Strategic Health Authority [2008] Ewhc b11 (QB) (16 June 2008)

Medical: While the original decision not to perform a caesarean was an approach that would
have been taken by a reasonable proportion of obstetricians at the time, the decision not to carry
out an emergency caesarian thereafter was a breach of duty. That breach had been a material
contribution to the intraventricular haemorrhaging suffered by the Claimant.

[Link] V Birmingham And Black Country Strategic Health Authority & Ors [2005]
Ewhc 1098 (QB) (22 June 2005)

No negligence where staff failed to diagnose and treat congenital spinal defect: Notwithstanding
the claimant's symptoms, neither her doctor nor medical staff at a hospital where she was
examined were at fault for failing to diagnose and treat a congenital spinal defect that resulted in
her contracting meningitis and subsequently suffering from a disability.

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[Link] V Lynch [2012] Ewca Civ 347 - 21/03/12

The Court of Appeal dismissed the appellant GP's appeal against a decision giving judgment for
the respondent patient in the underlying clinical negligence claim for damages arising out of the
delayed diagnosis of breast cancer. It was the patient's case that she had a consultation with the
GP in 2006 during which the GP had examined her breast and wrongly diagnosed it as a blocked
milk duct and thereby delaying the diagnosis and treatment of her breast cancer. The GP denied
that such consultation had taken place, on grounds there were no notes of such consultation and
had she seen such a lump, she would have referred the patient to a breast clinic. The Court of
Appeal held that the Judge had been entitled to prefer the evidence of the patient as to whether
the consultation had taken place and at which the GP had misdiagnosed the lump. In particular,
the Court of Appeal held that in deciding that both witnesses were truthful, it was open to the
Judge to accept part of such witness' evidence and reject other parts.

Conclusion

It is not stated that doctors are negligent or irresponsible but while performing the duty which
requires a lot of patience and care, often many practitioners fail or breaches their responsibility
towards the patient. Medicine which is one of the noblest professions requires setting a realm
which can benefit the victims of various diseases. Many doctors even the specialist sometimes
neglects small things to be taken care of while practicing which may result in damages to the
patients that could have been avoided or sometimes even the death of the patients. This type of
professional negligence needs more focus than to include it in other laws or statutes. An
independent and unique legislature shall be set up to govern the malpractice. In our country
recently in a case Krishna Iyer v. State of Tamilnadu and Others[xxi] the Apex Court awarded a
compensation of 1.8 crores on July 1, 2015 as she lost her eyes in 1996. This is highest amount
of compensation awarded for negligence in the country. Many activists and the medical victims
have been alleging to get redressal against malafied acts of medical practitioners and doctors.
Not just for medicine, the law shall be made applicable to all the professionals practicing in

21
different areas which require a requisite amount of skill and duty of care. People in our country
are already victims of many diseases and are dying due to same, let’s make efforts to reduce
these deaths and focus on improvising the profession so that people do not die in the place where
they come to get healed.

BIBLIOGRAPHY:-

1) Law of Torts, [Link]

2) The Law of Torts, RATANLAL AND DHIRAJLAL

3) Introduction to the Torts And Consumer Protection, AVTAR SINGH, HARPREET

KAUR

4) Universals medical negligence &legal remedies,Aoop .[Link].

5) [Link]

6) [Link]

7)[Link]

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8) [Link]

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