CHAPTER 1

INTRODUCTION

The medical profession is one of the most noble professions, but it is no longer immune to
negligence. In India, the medical practitioners are worshipped as gods, but it has now entered
a stage of disbelief. In recent times, medical negligence has become one of the serious
concerns in the country. Medical negligence is a serious concern that directly affects the right
to life and healthcare, which is guaranteed under Art. 21 of the Constitution of India. There
have been several instances where the negligent act of incompetent doctors has affected
innocent patients. The rising number of medical negligence cases in India mostly goes in vain
without any legal action, which in turn leads to a complete erosion of public trust in doctors
and hospitals.

To fully grasp the concept of medical negligence, it is essential to first understand the
meaning of the term ‘profession.’ According to the Oxford Advanced Learner’s Dictionary, a
profession is a paid vocation that demands specialized knowledge, advanced education, and
training. The nature of professional work is highly specialized, relying more on intellectual
expertise than physical labor. This fundamental distinction sets a ‘profession’ apart from an
‘occupation.’

In the case of Indian Medical Association v. V.P. Shantha and Ors., the Hon’ble Supreme
Court held that ‘‘Profession in the present use of language involves the idea of an occupation
requiring either purely intellectual skill or manual skill controlled, as in painting and
sculpture or surgery, by the intellectual skill of the operator, as distinguished from an
occupation that is subsequently the production or sale or arrangement for the production or
sale of commodities. The line of occupation may vary from time to time.”1

A key characteristic of professional work is that it is governed by ethical and moral

principles, requiring a high degree of honesty and integrity. These principles extend beyond
legal obligations, earning professionals respect and placing them on a higher pedestal in
society. In the context of the medical profession, despite criticisms in this era of
commercialization, it has largely maintained its esteemed status. This is because a significant
1
Indian Medical Association v V.P. Shantha and ors. (1995) 6 SCC 651; 1995 SC 25
section of Indian society continues to believe that financial gain is not the primary motivation
for medical professionals.

Medical practitioner was defined by the Supreme Court in the case of Poonam Verma v.
Ashwin Patel as “a person who is engaged in the practice of modern scientific medicine in
any of its branches, including surgery and obstetrics, but not including veterinary medicine or
surgery or the Ayurvedic, Unani, homeopathic, or biochemic system of medicine.”2

Negligence: Definitions and Essentials

1. Theories of Negligence
● Subjective Theory: It was given by Salmond and was supported by Austin. According
to Salmond, negligence is a state of mind; it is culpable carelessness, i.e., an attitude
of indifference. It consists of a mental attitude of undue indifference concerning the
conduct of the defendant and its consequences. According to Winfield, negligence is
having a mental element in tortious liability; negligence usually signifies total or
partial inadvertence of the defendant to his conduct and the consequence flowing
therefrom. According to Austin, negligence is a faulty mental condition that is
penalized by the award of damages.
● Objective Theory: This theory was given by Pollock. According to him, negligence is
contrary to diligence, and no one describes diligence as a state of mind. According to
Pollock, it is not a particular state of mind or mens rea but a particular kind of
conduct. It is a breach of duty to take care. Duty to take care means to take
precautions against the harmful results of one’s actions and to refrain from
unreasonably dangerous kinds of conduct. According to him law demands a certain
amount of care which is reasonable in the circumstances of the case. Thus, a person's
duty to take reasonable care is subject to the reasonableness of a prudent man. In
India, the objective theory of negligence is followed.
2. Definition of Negligence

In law, negligence is a kind of tort, or civil wrong, and at the same time, it is also a wrong
under criminal and consumer law. This suggests that conduct is deemed culpable when it
fails to meet the legal standard expected of a reasonable person in safeguarding others from
foreseeable risks or harmful actions. Any act of negligence toward another individual grants
2
Poonam Verma v Ashwin Patel (1996) 4 Scc 332; AIR 1996 SC 2111
them the right to seek compensation for any damage suffered, whether it affects their mental
or physical well-being, financial status, property, or personal relationships.

According to Glanville William, negligence is doing an act without foreseeing the

consequence that a man of ordinary prudence would not have done under those
circumstances. In the case of Blyth v. Birmingham Waterworks (1856), Jus. Alderson defined
negligence as a tort. It is an omission to do something that a reasonable man under those
circumstances would or would not do. For instance, not covering a trench on the road under
repairs with red lights on either side of it or not chaining a ferocious dog and allowing it to be
let loose are examples of the former. While the rash driving or putting the log across the road
as an obstruction are illustrations of the latter.3

In Jacob Mathew v. State of Punjab & Anr.4, the Supreme Court of India defined negligence
as actionable negligence, which arises from a failure to exercise ordinary care or skill toward
an individual to whom the defendant has a duty of care. As a result of this neglect, the
plaintiff suffers harm to their person or property. The court outlined three essential elements
of negligence:

1. A legal duty on the part of the accused to exercise due care toward the complainant
within the scope of their responsibility.
2. A breach of this duty.
3. Resulting harm or damage as a consequence of the breach.

In legal terms, negligence is fundamentally an unintentional violation of a lawful duty that

typically results in harm to another person. The law holds such harmful actions culpable
when a reasonably prudent individual could foresee their potential to cause injury and would
consciously avoid engaging in them. Broadly, negligence encompasses three key aspects:

a. A state of mind that contrasts with intentional wrongdoing.

b. Reckless or careless behavior.
c. A failure to fulfill the duty of care as mandated by common law or statutory
provisions.

3
Blyth v Birmingham Waterworks (1856) 11 Exch 781
4
Jacob Mathew v State of Punjab and Anr, (2005) 6 SCC 1.
Negligence as a state of mind: Negligence and wrongful intent represent two distinct mens
rea, one of which is legally required to establish a wrongdoer's liability. An intentional
wrongdoer deliberately seeks to cause harm, whereas a negligent wrongdoer fails to take
adequate care to prevent it. Therefore, negligence as a state of mind does not refer to a
specific act or omission itself but rather signifies a lack of concern or recklessness in
preventing such an act or omission from occurring.

Negligence as careless conduct: A careless person is someone who lacks concern or is not
sufficiently mindful that their actions may result in harm to others. Carelessness does not
necessarily imply a breach of duty but rather signifies reckless or inattentive behavior on the
part of the wrongdoer. Negligence, when combined with careless conduct, stands in contrast
to diligence.

Negligence is the breach of duty to take care: It means the neglect of the care towards a
person that an individual is bound to exercise. The plaintiff is not only required to show that
the defendant owed a duty of care towards him, but having done so, he also has to prove that
the defendant committed a breach of such duty, i.e., the court will look into how a reasonable
man under these circumstances would conduct himself. The duty to take care expected from a
defendant is that of a reasonable or prudent man’s conduct in the circumstances of the case. It
is bound to vary according to the facts and circumstances of the case. The main factor that is
to be seen is whether the defendant has taken the required precautions or not. In such
circumstances, the court will look into

a. The magnitude of the risk involved, i.e., higher the risk, higher the precaution or duty
to take care.
b. Importance of the object to be achieved, i.e., whether the defendant has taken due care
and caution or not, which is dependent on the facts and circumstances of each case.

The Supreme Court in the Poonam Verma case5 also defined the essentials of negligence:

a. The Defendant owed a duty of care to the plaintiff

b. He committed a breach of that duty
c. The plaintiff suffered damages as a consequence thereof

5
Poonam Verma v Ashwin Patel, 1996, 4 SCC 332
Not every careless or reckless act that results in harm automatically leads to personal liability.
Legal accountability arises only when a person is under a recognized legal obligation to act
with due care. This duty, importantly, is not synonymous with moral, religious, or societal
responsibilities. For a negligence claim to succeed, the plaintiff has the burden to prove that
the defendant had a specific legal duty towards them and that this duty was breached.

The standard of care becomes relevant only when there exists a duty to exercise caution. In
legal terms, a duty can be defined as a relationship recognized by law that imposes an
obligation on one party to act in a manner that safeguards others from foreseeable harm.
Therefore, establishing the existence of this legal duty is essential in determining whether the
alleged wrongdoer (tortfeasor) can be held liable for negligence. Duty of care depends on
reasonable foreseeability, i.e., if at the time of doing the act or omission the defendant could
reasonably foresee that the plaintiff could get injured, then he owes a duty to take care and
prevent injury, and on failure, he is liable. The duty to take care is the duty to avoid doing or
omitting to do anything, the doing or omitting to do which may result in reasonable and
probable injury to others, and the duty is owed to those to whom injury may reasonably and
probably be anticipated if the duty is not observed.6 Lord Macmillan explained the standard
of foresight of a reasonable man as, ‘‘The foresight expected from a reasonable person is, in
many ways, an objective standard. It removes individual traits and disregards the unique
characteristics of the person whose actions are being examined. Some individuals are overly
cautious and perceive danger in every situation, while others, being more bold or careless,
may overlook even the most apparent risks. The hypothetical reasonable person is considered
to be neither excessively fearful nor recklessly confident. However, applying this standard
does involve a degree of subjectivity. It ultimately rests on the judge to determine what a
reasonable person would have foreseen in the case's specific circumstances and, therefore,
what the accused party should have anticipated. This opens the door to differing
interpretations—what may appear unlikely or remote to one judge might seem entirely
predictable to another.”7

In S. Dhanaveni v. State of Tamil Nadu,8 the deceased slipped into a pit during rain in the
night. While trying to come out, he caught hold of an electricity pole. But due to rain, there

6
Bourhill v Young (1943) A.C. 92
7
Glasgow Corporation v. Muir, (1943) A.C. 448
8
S. Dhanaveni v. State of Tamil Nadu A.I.R 1997 Mad. 257
was an electricity leakage in the pole, and he was electrocuted. The respondent was held
liable as he maintained the pole.

In the case of Orissa Road Transport Co. Ltd. v Umakant Singh9 the bus driver tried to cross
the level crossing, but he could not due to a mechanical defect in the bus, and it resulted in
the death of two passengers. He was held liable for negligence as he was aware of the
mechanical defect.

Research Objectives

1. To define medical negligence and its standards

2. Trace the developments of medical negligence law and analyse the legal standard
used to determine medical negligence.
3. Role of the Bolam Test given in Bolam v Friern Hospital Management (Jacob
Mathew v. State of Punjab) and why it needs consideration (Arun Kumar Manglik v
Chirayu Healthcare)
4. Comparison between legal standard followed in India and UK & USA
5. Role of Consumer Protection Act
6. Challenges faced in proving medical negligence and burden of proof
7. Role of expert evidence

Research Question

1. What is medical negligence, and what are its essentials?

2. How has the concept of medical negligence evolved?
3. What is the Bolam Test, and why does it need reconsideration?
4. What are the challenges faced by the plaintiff in proving medical negligence?
5. What remedies are available in the case of medical negligence?

Research Methodology

1. Primary Source
2. Analysis of Case Laws (Both Indian and Foreign)
3. Statutory Provisions and guidelines on medical negligence
4. Secondary Sources

9
Orissa Road Transport Co. Ltd. v Umakant Singh 1987 ACJ 133
 5. Scholarly articles, books, reports on medical negligence

Chapter Outline

Chapter 1: Introduction

Chapter 2: Understanding Medical Negligence & Historical Development of Medical

Negligence Laws

Chapter 3: Statutory Provisions and Legal Enactments Pertaining to Medical Negligence in

India

Chapter 4: A Comparative Study of Medical Negligence Laws: India, UK, and USA

Chapter 5: Adjudicating Medical Negligence: The Role of the Indian Judiciary

Chapter 6: Why Jacob Mathew Case needs reconsideration

 CHAPTER 2

UNDERSTANDING MEDICAL NEGLIGENCE AND HISTORICAL

DEVELOPMENT OF MEDICAL NEGLIGENCE LAWS

2.1 Negligence by professionals

Professionals such as doctors, lawyers, architects, etc., profess some special skills. Any task
that is required to be performed by some special skill must be performed only by the person
possessing the requisite skill for performing that task. It is implied that the person possessing
that skill must exercise it with a reasonable degree of care and caution. He does not assure his
client of the result. A physician would not assure the patient full recovery in every case. A
surgeon does not guarantee that the result of the surgery would invariably be beneficial. The
only assurance that such a professional can give is that he possesses the requisite skill in that
branch of the profession that he is practicing, and while undertaking the performance of the
task entrusted to him, he would be exercising his skill with reasonable competence. On this
standard, a professional may be held liable for:

a. He was not possessed of the skill which he professed to have possessed

b. He did not exercise with reasonable competence the skill that he did possess.

The standard to be applied for judging whether the professional is negligent or not would be
that of an ordinary competent person exercising ordinary skill in that profession. Lord Sedley,
in the case of Michael Hyde and Associates v. J.D. Williams & Co. Ltd., held that where a
profession embraces a range of views as to what is an acceptable standard of conduct, the
competence of the defendant is to be judged by the lowest standard that would be regarded as
acceptable. 10

Medical negligence is defined as ‘‘failure by a healthcare professional to exercise a

reasonable standard of care.’’11 As per Halsbury's Laws of England, 12, deviation from normal
10
Michael Hyde and associates v. J.D. Williams & Co. Ltd. 2001 PNLR 233 (CA)
11
Medical Negligence and law of India, duties, responsibilities, right: Tapas Kumar Koley
practice is not necessarily evidence of negligence. To establish liability, it must be shown
that:

a. There is a usual and normal practice

b. The defendant has not adopted it
c. The course he adopted is the one no professional man of ordinary skill would have
taken had he been acting with ordinary care.12

Lord Denning, in the case of Hucks v. Cole, held that a medical practitioner would not be held
liable simply because things went wrong because of misadventure or through error of
judgment in choosing one reasonable course of treatment in preference to another. A medical
practitioner would be liable only where his conduct fell below the standards of reasonably
competent practitioners in his field.13

2.2 Medical Negligence

In view of the above discussion, in order to establish the liability of medical negligence, it is
required to establish that:

a. The medical professional has an obligation to take care of the patient.

b. The doctor failed to perform or breached that obligation.
c. The patient suffered damages as a result of the breach of that duty14

The Duty to Exercise Skill and Care: It is one of the foremost essential conditions for
establishing the liability for medical negligence. Duty to take care is a constraint or control on
the defendant's freedom that forces him to behave in a certain manner. The duty to exercise
care arises when the doctor-patient relationship is established. This will take place by any
acceptance of the patient by the doctor or by payment of any fees. In a situation of
emergency, as soon as the doctor reaches out to the patient for his treatment, his relationship
is established. Any kind of breach of this duty is a valid ground for a negligent action.

In determining the appropriate standard of care in any case, the concept of "reasonable
foresight" plays a critical role. This refers to the anticipation of consequences that a
reasonably prudent person would foresee. A rational individual, under normal circumstances,

12
Negligence, Charlesworth & Percy (para 8.110)
13
Hucks v Cole, 1968 (118 New LJ, 469)
14
The Law of Torts, Ratan Lal Dhiraj Lal, 441 (2nd edition)
is expected to avoid actions that might lead to likely and preventable harm. If someone’s
conduct does not meet this expected standard, it is considered negligent.15

In the realm of medical negligence, "reasonable foresight" relates specifically to a medical

practitioner who possesses an adequate level of skill and applies that expertise with due
diligence and care. As long as a doctor acts in a way that is deemed acceptable by a
responsible body of medical professionals, they are considered to have fulfilled their duty of
care, skill, and attentiveness.16

The foundational rule in assessing medical negligence is known as the Bolam Test. This
principle states that the standard of judgment is based on how an ordinarily skilled individual,
who claims to have a particular expertise, would act. It is not necessary for a person to
demonstrate the highest level of expertise. Rather, it is enough if they exercise the
competence expected from an average practitioner in that field. In the context of medical
professionals, negligence implies a deviation from the practices accepted by reasonably
skilled and competent medical practitioners at that time. Since different accepted approaches
may exist, a doctor who adheres to any one of them cannot be considered negligent.17

Breach of that duty to take care: The defendant breached that duty to take care towards the
plaintiff. The breach of duty may be occasioned either by not doing something that a
reasonable man would do under a similar set of circumstances or by doing some act that a
reasonable, prudent man would not do.18

Consequential Damages: In cases involving negligence, it is not sufficient for the aggrieved
party to merely demonstrate that the defendant acted carelessly. The plaintiff must also
establish that actual harm occurred and that this harm was the direct and proximate result of
the defendant’s negligent conduct. In other words, there must be a clear causal connection
between the negligence and the injury sustained. When such liability is proven, damages are
awarded not just as a remedy but also to restore the injured party, as far as possible, to the
condition they would have been in had the injury not occurred. In tort law, compensation is
the core principle of redress, and the amount awarded corresponds to the extent of the harm

15
M.N. Shukla, The Law of Torts, 2016 (13th Edn. 1990)
16
Achutraq H. Khodwa v. State of Maharashtra AIR 1996 SC 2383 at Para 15
17
Bolam v. Friern Hospital Management Committee (1957) 2 AIIER 118; it was recognized and upheld in Jacob
Mathew v. State of Punjab (2005) 6 SCC 1.
18
Poonam Verma v Ashwin Patel (1996) 4 Scc 332; AIR 1996 SC 2111
suffered by the plaintiff, whether that relates to their physical well-being, income, or life
expectancy.19

2.3 Historical Evolution

Archaeological evidence of medical practices dating back thousands of years highlights early
humans’ strong intent to ease the pain and suffering of others. In ancient or prehistoric
communities, however, limited scientific understanding led people to interpret illnesses,
epidemics, and other calamities as manifestations of divine wrath, spiritual possession, or
cosmic influences. Since they believed diseases were the result of divine displeasure, their
healing methods often involved religious and spiritual rituals such as sacrifices, chanting,
ceremonial offerings, and exorcisms aimed at removing malevolent forces. Despite limited
documentation, there are indications of more practical healing methods as well. Practices like
herbalism, where plants were used for medicinal purposes, emerged and gradually evolved
into structured systems of medical knowledge passed down through generations. Similarly,
natural substances like clay and soil were believed to have therapeutic properties.
Archaeological findings also suggest the use of sharp stones and tools—such as flint
instruments, drills, and bowstrings—for performing rudimentary surgeries and amputations.
In summary, the medical practices of the prehistoric era, dating back to around 5000 BC,
were a blend of religious rituals, superstition, magical beliefs, and elements of natural
healing. The progression from these early beliefs to the sophisticated preventive healthcare
and surgical techniques of the 20th century reflects the broader societal shift in understanding
and managing health and disease.

The practices of surgery paved the way for the concept of medical negligence. The concept
of medical negligence originated around 4000 years ago; sources state that the Babylonian
king Hammurabi propagated the laws to deal with medical negligence. These laws mandate
that while performing surgery, if a patient loses his eyes, then the doctor shall himself
amputate his hand. While draconian, these laws reflected an early recognition of professional
liability and the value of human life.

In 1374, the first medical negligence suit under English Law was recorded. In the said case,
the plaintiff suffered an injury to his hands as a consequence of alleged medical negligence
on the part of medical practitioner Mr. J. Mort. Subsequently, the plaintiff instituted a suit
19
W. Wyatt-Paine, The Law of Torts, 140 (7th Edn., 1921)
against the practitioner for his alleged act of negligence. However, the court observed that the
practitioner performed his actions with due diligence and in good faith, and it is not right to
hold him guilty. Resultantly the defendant was not held liable for the alleged wrong.20

A medical negligence suit was first instituted in the United States of America in the year
1794 in the case of Cross v. Guthery. In this case the victim died after suffering complications
in postoperative mastectomy. The suit was instituted by the victim's husband against Dr.
Cross on the ground that the physician breached his promise of conducting the operation
skillfully and with due diligence. The court held him liable for the negligence and awarded
damages on the ground of loss of companionship.21 In the United States of America before
the early 1800s, the concept of medical negligence was unknown and unheard of; however,
during 1835-1865, the states witnessed a hike in the number of medical negligence suits.
Most of these cases were related to fractures and dislocations, which resulted in
malfunctioning limbs and muscles.

2.4 Evolution of Medical Systems Across the World

Medicine under the Greek System22: Greek medicine was a combination of various theories
of medicine; they also focused on exploration and implementation of various new methods
and trials. The practices were put into dynamic tests on a constant basis. Most parts of
ancient Greek medicine combined both spiritual beliefs and physical treatments, showing that
healing involved both the mind and body. The theories from which ancient Greek medicine
originated embody the geographic or geological locations, social class, ethnicity, gender and
age, food culture struggles and traumas, mindset and beliefs, etc. The Greeks believed that
sickness and epidemics were God's retribution against the sin committed by humans. But on
the other hand, treatment or healing and medicines also showed the mercy of God. Since the
ancient Greek system involved constant discoveries and experiments, many theories and
discoveries turned out to be fallacious and inaccurate, as they resulted in unpleasant
symptoms and results, and it even resulted in death. This resulted in a shift in the Greek
medical system as it changed from its classical system based on spiritual beliefs to a more
realistic system based on cause and effect.

20
Umeshwari Dhankar, Status of Victims of Medical Negligence: A critical analysis, Vol. 4(3), IJIRAS, ISSN:
2394-4404
21
Cross v. Guthery, 2 Root 90 (Conn. 1794)
22
Fielding H. Garrison, History of Medicine with medical chronology, Suggestions for study and Bibliographic
Data, 4th Edition
The earliest tracing of medical ethics and responsibility can be traced back to Hippocrates
(460-370 BCE), also known as the ‘‘ Father of Medicine.’’ The Hippocratic Oath, even
though a moral obligation, laid down the groundwork for ethical conduct among medical
practitioners. It imposed an obligation, such as doing no harm, which also included
negligence. The practitioners were expected to exercise due diligence and follow established
medical practices. Failure to do so resulted in loss of reputation, expulsion from medical
society, and even civil liability. However, medical negligence in ancient Greece was very
rare, and liability arose only in the cases of gross medical negligence. The temples of
Asclepius, the Greek god of healing, also played a significant role, as patients often sought
divine intervention through the ritual healing in Asclepian temples, and failure of treatment
was attributed to the will of the gods rather than the shortcomings of practitioners.

Medicine under the Chinese System: In China illness was considered to be a disruption in the
balance of vital energies. Along with the spiritual beliefs, texts like Huangdi Neijing outlined
the systematic approaches to diagnosis and treatment. Chinese imperial law, including the
Tang and Min codes, addressed the responsibility of doctors and also prescribed penalties for
negligent treatment.

Common Law Development: In Britain, by the mid-15th century, three small hospitals had
been established, marking a key moment in the country’s medical progress. However, until
the mid-16th century, a large portion of the British population—including those in cities,
towns, and rural areas—relied on untrained local individuals for health care. These
community healers often used home remedies, herbs, or even superstitious practices to treat
illnesses. A turning point came in 1696 with the founding of the London Dispensary—the
first clinic of its kind under British rule—aimed at improving access to medical care for the
less fortunate. Though its expansion was gradual, by the early 1700s, similar dispensaries
began to emerge. Eventually, small hospitals were also established in British colonies,
including one in Philadelphia in 1752, another in New York in 1771, and Massachusetts
General Hospital in Boston in 1811. The concept of medical negligence became a ground to
sue for compensation in the 18th century. In the landmark case of Slater v. Baker and
Stapleton,23 it was held that surgeons can be held liable for the injury/harm caused by the use
of medical techniques without the patient's consent or without proper care. By the 19th
century, the English courts started applying the law of torts to the cases of medical

23
Slater v. Baker and Stapleton, 2 Wils. K.B. 359 (1767), 95 Eng. Rep. 860
negligence. The essential ingredients of duty, breach, causation, and harm began to
crystallize. In the case of Donoghue v. Stevenson,24 though not related to medical negligence,
it established the broader principle of duty of care that is also applicable in the case of
medical negligence. In the landmark case of Bolam v. Friern Hospital Management
Committee, the court laid down the standard for medical negligence. It was held that a
medical professional is not liable for negligence if their conduct and treatment align with a
reasonable medical opinion. This case became the benchmark in common law countries, but
later, with time, it required reconsideration.

Evolution of Medical Negligence in the USA: Medical negligence law in the USA evolved
from English common law, especially law of torts related to personal injury. One of the first
recognized case of medical negligence was Cross v. Guthery,25 where a husband sued the
surgeon for causing the death of his wife after surgery. The court in this case held the
practitioner liable and awarded damages to the husband. By the 19th century, a number of
lawsuits arose, and courts started developing the clear doctrines of duty of care, breach, and
damages. The court demanded strict adherence to the community standard of care, i.e., what a
reasonable doctor in similar circumstances would do. In the case of Canterbury v. Spence,26
the principle of informed consent was introduced. With time, due to increased awareness
among patients, higher expectations of medical care, and complex procedures with higher
risk, there was a surge in the case of medical negligence. This consequently also resulted in
increased malpractice premiums and calls for tort reform.

Evolution of medicine under the French system: France has a rich medical history in classical
Greek traditions and its Enlightenment era. The Paris Medical School became a center for
scientific medicine in the 18th and 19th centuries. During this time, the concept of medicine
transitioned from religious and spiritual beliefs to a more institutional and state-backed
profession. The French law has traditionally distinguished between contractual liability and
tort liability. Patients treated in the hospital or under a physician’s care often enter into a
quasi contract, which forms the legal basis of obligations. Delictual (tort) actions under
Article 1240 of the Code civil cover harm without a contract. Medical negligence became
more addressed in the 20th century as courts began to expect the medical practitioners to
demonstrate diligence and competence. The concept of “faute,” i.e., fault, became central, as

24
Donoghue v. Stevenson, 1932, A.C. 562
25
Cross v. Guthery, 2 Root 90 (Conn. 1794)
26
Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972)
without proving the fault, claims were denied. The Loi Kouchner27 was a historical moment;
it emphasized patient rights and informed consent. It divided liability into fault-based liability
and no-fault-based liability (strict liability) and awarded compensation in cases such as birth
injuries, etc. The Office National d'Indemnisation des Accidents Médicaux (ONIAM)
provides compensation where the negligence is not proved. One of the most notable features
of the French system is that it maintains universal healthcare, and litigation rates are lower
than in common law countries. Medical liability insurance is mandatory, and cases of medical
negligence are seen as a system failure rather than personal culpability.

Evolution of Medicine under the German System: Germany was instrumental in formalizing
scientific methods, particularly during the 19th century. Influential figures such as Rudolf
Virchow contributed to pathology and medical ethics. Rooted in Roman law traditions,
Germany developed a dual liability system under the Bürgerliches Gesetzbuch (BGB) with
contractual (Section 280 BGB) and tort-based claims (Section 823 BGB). Early jurisprudence
required showing a breach of duty and causation.

By the mid-20th century, courts developed doctrines around presumed fault, burden shifting,
and obligations to inform, slowly solidifying patient rights. The Patients’ Rights Act,2013
codified medical obligations, including medical consent (Section 630e BGB), documentation
duties, and explanations of risks. Physicians must now fully disclose treatment options and
risks. The German system is balanced, ensuring both patient rights and doctor protection.
Professional medical councils and statutory health insurers play an active regulatory role.
Compensation is generally lower than in the U.S., but access to justice is considered fair. The
German courts are also known for their rigorous use of medical experts, presumptions in
favor of patients where evidence is inconclusive (however, here the presumption is not very
strict, and it shifts the burden of proof to the doctor, who has to rebut the presumption), and a
clear division between civil and criminal liability, the former being the route for redressal in
case of medical negligence.

Evolution of medicine under the Japanese system: Traditional Kampo medicine coexisted
with Western biomedicine following the Meiji Restoration (1868), which introduced
German-style medical education and hospital systems. Regulation and licensing became more
formalized in the early 20th century. Post World War II, it adopted tort law similar to German
and U.S. models. The cases, such as wrongful deaths during surgery, loss of limbs etc.
27
The Loi Kouchner (Law No. 2002-303)
sparked public outrage and legal scrutiny. The courts started demanding a higher standard of
care and proper documentation of all medical records and treatment. Japanese civil courts
dealt with matters of negligence under Article 709 of the Civil Code, which required proof of
duty of care, breach, causation, and damages. The Medical Practitioner Law governs
licensing and disciplinary action in case of wrongful conduct and practice. However, the
cases of medical negligence are comparatively lower in Japan due to cultural reluctance to
sue doctors and emphasis on apology and outside court settlement.

Evolution of medicine in Saudi Arabia and other Islamic countries: One of the remarkable
achievements of Islamic civilization was its advancement in the field of medicine. Islamic
scholars and physicians made significant strides in various areas such as pharmacy,
pharmacology, surgery, physiology, anatomy, and eye care (ophthalmology). The Arab
medical system was shaped by the influences of earlier traditions, particularly those from
Byzantine Greek, ancient India, and Rome. Prominent figures like Hippocrates and Galen
were highly esteemed, with Galen's medical philosophy, centered around logical and
methodical practices, becoming a foundation for Islamic medicine. Hunayn ibn Ishaq, a
Nestorian Christian scholar, played a vital role by translating over a hundred of Galen’s
works into Arabic, which facilitated the wide acceptance and development of these teachings
throughout the Islamic world. Medical ethics in Islamic civilization have ancient roots dating
to Ibn Sina’s Canon of Medicine and other classical works. Medicine was seen as a moral as
well as scientific duty. Islamic jurisprudence (Fiqh) began incorporating medical errors under
Shariah principles. Under Shariah law, medical negligence falls under civil (Diyya) or
criminal (Qisas) liability. Intentional harm leads to retribution; accidental harm triggers
compensation. Early 20th-century Saudi Arabia had no formal statutes, but modern reforms
have introduced hybrid codes blending Islamic law and state. The cases of medical
negligence are handled by Shariah courts and medical committees. The Medical Liability
28
Law requires expert committee evaluation before trial to ascertain whether there was actual
negligence by the doctor. Diyya amounts are predetermined, and they vary based on the
injury caused; i.e., the greater the injury, the higher the amount. Cultural trust in physicians is
high, but religious oversight is strong. Foreign doctors (comprising a large part of the
workforce) are often scrutinized more heavily. Judicial discretion and consultation with
religious scholars influence outcomes.

28
The Medical Liability Law, 2015
Evolution of Medicine in Brazil: Brazil inherited its medical framework from Portuguese
colonial rule, and formal institutions like the Faculdade de Medicina da Bahia (1808) laid the
foundation. Public health initiatives expanded in the 20th century with urbanization and
disease outbreaks. Medical liability is governed by Articles 186 & 927 of the Civil Code. The
Consumer Protection Code may apply to healthcare services, especially in private hospitals,
increasing protection standards. The Federal Council of Medicine sets and governs the ethical
standards and guidelines. Judges often rely on medical experts reports and public hospitals
are held to a higher burden due to the constitutional right to health (Art. 196)

Evolution of Medical Negligence in Canada: The concept of negligence is based on the

common law principles. It also focused on the standard of care, and it was defined as what a
prudent and diligent professional would do in similar circumstances. In the landmark case of
Reibl v. Hughes,29 the duty of disclosure was established, and an objective test for informed
consent was introduced. The doctors are also given protection as they fall under the national
healthcare system, which also limits frivolous claims. The Canadian Medical Protective
Association (CMPA) plays a major role in defending practitioners in the case of negligence,
but on proof of negligence, damages are provided to the victim.

2.5 Evolution of Medical Negligence in India

The Atharvaveda, one of the ancient sacred texts of Hinduism from the early Iron Age, is
among the earliest Indian writings to explore the use of medicine and healing practices. It
includes recommendations for using medicinal herbs to treat various diseases. This herbal
approach later laid the foundation for the Ayurvedic system of medicine.

Ayurveda emerged as the primary form of medicine in ancient India and is considered the
most traditional and oldest medical practice in the region. The classical form of Ayurveda
combined indigenous herbal treatments with the development of theoretical frameworks. It
emphasized that every method of treatment had a logical explanation. The creation of new
disease classifications and therapeutic techniques around 600 BCE is a clear testament to this
conceptual depth. In the medieval era, Unani medicine gained popularity as a prominent
alternative system. Introduced to India by Islamic and Greek influences, Unani thrived under
royal patronage during the Sultanate and Mughal eras. Its principles are closely aligned with
those of Ayurveda, as both systems are grounded in the belief that the human body is

29
Reibl v. Hughes, 1980, 2 S.C.R. 880
composed of five basic elements—fire, water, earth, air, and ether. In Unani, these elements
exist as bodily fluids, and any imbalance among them can disrupt bodily functions, leading to
illness.

Even into the 18th century, medical knowledge rooted in Sanskrit traditions continued to be
highly valued. Between the 15th and 17th centuries, Islamic rulers authored numerous
commentaries on ancient Indian medical texts and established large hospitals in cities such as
Delhi and Hyderabad. The era spanning from 800 BCE to 600 CE is widely recognized as the
Golden Age of Indian medicine. During this time, many distinguished scholars from regions
such as Tibet, Afghanistan, China, Rome, Greece, Egypt, and Persia journeyed to Indian
Ayurvedic learning centers (Patashalas) to study and understand this distinctive medicinal
system. Medical education and practices in India at the time adhered strictly to the principles
of Ayurveda and the ancient Vedic tradition, while Unani medicine, rooted in Arabic
tradition, was closely aligned with Egyptian and Greek medical philosophies.

Charaka and Susruta emerged as the leading figures in Ayurvedic medicine. Their depth of
medical insight has often been equated with prominent global medical pioneers like
Hippocrates and other Greek healers. These legendary Indian physicians earned worldwide
recognition not just in medical science, surgery, and therapeutic practices, but also for
establishing ethical standards in medical and nursing conduct. However, with the advent of
British rule in the 19th century, Ayurveda and Unani were excluded from treating the British
population in India. Instead, the colonial government brought European medical professionals
to look after their health needs. Over time, these foreign doctors began teaching select Indians
the basics of Western medical diagnostics and treatments. These trainees, referred to as
“Native Doctors,” were typically employed as assistants, such as compounders or
apprentices.

Impressed by the commitment and competence of these native doctors, the British medical
authorities proposed a more organized medical training system. On May 19, 1822, the British
Medical Board formally approached the Secretary to the Government of India to
institutionalize medical education for locals. Following approval on May 24, 1822, the first
official medical school under British rule was established by government order on June 21,
1822. This institution began operating in October 1824 within the premises of Calcutta
Sanskrit College, with Dr. James Jamieson appointed as its inaugural superintendent.
 The Portuguese were the first to introduce Western medicine to India.30 Later, during British
colonial rule, the East India Company also played a pivotal role in laying the foundation for
Western medical practices in the country. Initially, the company established medical
departments staffed with surgeons primarily to provide medical care for British soldiers and
East India Company employees. By 1775, hospital boards, including key roles like the
Surgeon General and Physician General, were formed. The company set up medical
departments in the presidencies of Bengal, Madras, and Bombay. These health boards were
managed under the authority of the commander-in-chief of each presidency’s British Indian
Army. Additionally, the medical departments were overseen by military officials and British
civil servants. After the 1857 revolt and the dissolution of the East India Company, direct
governance by the British Crown began in India. Under this regime, the Indian Medical
Service (IMS) was established as a structured and dedicated medical body to enhance public
health and deliver professional medical care. The IMS operated at three levels: central,
provincial, and local (through subordinate medical services). To manage and monitor these
units, a public health commissioner and a statistical officer were appointed.

In 1869, the independent medical departments of the Bengal, Madras, and Bombay
presidencies were merged into the Indian Medical Service. Entry into the IMS was through a
competitive examination held in London. European officers of the IMS led healthcare
services and oversaw both military and civilian surgeries across the presidencies. However,
hiring European officers proved costly. These officers also required trained support staff, such
as assistants, nurses, and compounders, to help carry out their duties effectively. These
challenges motivated the British administration to initiate a formal and organized medical
education system in India. In 1835, traditional Indian medical institutions that had long
provided education and training in indigenous healing systems were formally dissolved.
Alongside this, classes held in madrasas and Sanskrit colleges were indefinitely suspended.
These native institutions were replaced by new medical colleges established by the British
government, designed to teach and train Indians in European medical practices. Instruction in
these colleges was conducted exclusively in English and strictly followed the curriculum and
methodology used in Europe. As a result, official support and recognition for India's
traditional medical systems were withdrawn. The founding of Calcutta Medical College in
1835 marked a turning point in Indian medical education under British rule. The college
admitted Indian students between the ages of 14 and 20 through a preliminary entrance exam.

30
Upinder Singh, Nayanjot Lahiri, Ancient India: New Research, Oxford University Press, India 2010
These students underwent intensive training that lasted between four and six years. Upon
completion, candidates had to pass a final examination. Those who succeeded were awarded
certificates that authorized them to practice medicine and qualify for public service
appointments as "native doctors."

In the mid-17th century, a public health crisis in Bombay, marked by significant loss of life
due to inadequate medical facilities, drew attention to the urgent need for improved
healthcare. Sir Robert Grant, the then Governor of Bombay, sought to establish a more
structured system of medical education to train Indians in Western medicine. Although his
proposal initially met with opposition, the formation of the Medical and Physical Society of
Bombay in 1835 helped promote scientific inquiry and supported his vision. Under the
leadership of Dr. Charles Morehead, the society examined the causes behind the decline of
traditional medical institutions. By 1837, their findings emphasized the necessity of replacing
old institutions with modern medical colleges to equip Indians with advanced medical
knowledge and transform them into competent and reliable practitioners capable of assisting
British medical officers.

2.6 The Historical Development of Legislation Governing Medical Negligence in India:

Human beings, considered the most evolved of all divine creations, possess the unique ability
to reason and discern. Yet, despite this gift, human actions are still prone to errors, faults,
negligence, or oversight. The concept of medical negligence is not new and has been
addressed in various ancient Indian texts. For example, Vivada Ratnakar outlines the legal
aspects of negligence and medical malpractice within the ancient treatise
Vyavaharakalpataru.31 This section explores how the notion of medical negligence has
developed from early Indian civilization to modern times.

Medical Negligence in Ancient India:

Manusmriti: The Manusmriti (800 BCE–600 BCE) provides clear guidelines concerning
medical negligence. It emphasizes the importance of protecting patients from careless or
incompetent physicians32. The text states that all medical professionals, regardless of their
social or religious background, are to be held accountable for errors or negligence in
treatment. If a physician treats a patient irresponsibly, they are liable to pay compensation.

31
K.P.S. Mahawar, Medical Negligence, and the Law, 20 (1991)
32
Manusmriti, IX.284)
The nature of the penalty depends on the affected being: if the victim is an animal, a minimal
fine is imposed, whereas if the harm is inflicted on a human, the penalty is significantly
greater. The severity of punishment, as determined by the king, is based on the extent of the
damage caused and the specific circumstances surrounding the negligent act.

Yajnavalkya Smriti: In a similar vein, the Yajnavalkya Smriti (approximately 300 BCE–100
BCE), along with the Vishnu Smriti, also addresses the issue of physician negligence. These
texts propose penalties or compensation for harm resulting from improper medical treatment.
As in Manusmriti, the fines differ based on whether the injured party is human or animal.
However, Yajnavalkya Smriti introduces a further distinction—penalties vary according to
the social status of the victim, suggesting that higher fines should be imposed when the
injured individual belongs to a higher caste. Unlike Yajnavalkya, Manu did not advocate
class-based penalties. Furthermore, Yajnavalkya Smriti also includes provisions for punishing
the adulteration of medicines.

Kautilya’s Arthashastra: The Arthashastra, a seminal and authoritative ancient text, offers a
detailed framework for the regulation of Ayurveda and the broader domain of medical
practice. Kautilya asserts that physicians must obtain formal permission from the ruling
authority before commencing their medical practice. According to this treatise, any
negligence or misconduct by a physician during treatment warrants accountability and
punishment33. Moreover, doctors were legally obligated to inform local administrative
officials, such as the Gopa or Sthanika, prior to treating a patient or continuing with
treatment. This requirement underscores the structured approach towards medical practice in
ancient times. Arthashastra is also notable for laying out one of the earliest comprehensive
codes of ethics for medical practitioners. In cases involving life-threatening conditions, it was
the physician’s responsibility to notify the appropriate authority. If a patient passed away
under a physician's care due to natural causes, only a minimal penalty was imposed.
However, if the death was a result of medical error or negligence, the physician was subject
to strict punishment and a substantial fine34. The text emphasizes that physicians bear a
sacred duty to protect and care for their patients.

33
P.C. Dikshi, MV Cox's Medical Jurisprudence, and Toxicology, 11, 7th edition 2002
34
Kautilya Arthashastra (4.1.56)
Narada Smriti: This ancient legal document includes provisions about unfulfilled promises.
It explicitly states that if a physician makes a commitment or assurance regarding a service
but fails to deliver, such conduct is considered a breach of promise.

Brihaspati Smriti: Dating from 200 to 400 CE, Brihaspati Smriti stands out as an early
scripture that thoroughly outlines both civil and criminal laws. It uniquely classifies various
offenses along with corresponding penalties. With regard to medical negligence, it defines it
as a situation where a person lacking sufficient medical knowledge or an understanding of
diseases accepts fees or other benefits from patients. In such cases, the individual is deemed a
fraud and is to be penalized similarly to a thief.35

Ancient Indian Medical Law and Ethics: Ancient India operated under a structured legal and
ethical system that governed the medical profession. Restrictions on independent medical
practice and clear guidelines on ethical conduct were in place to ensure patient safety and
professional integrity. This is evidenced in classical texts like the Sushruta Samhita and
Charaka Samhita. For instance, the Sushruta Samhita requires physicians to obtain royal
approval before administering treatment. Furthermore, it insists that only those who have
undergone hands-on training under experienced mentors should be allowed to practice. Even
after completing their formal education, new practitioners were expected to hone their skills
on inanimate models before treating actual patients.

Medieval India:
The Unani system of medicine, which has its roots in the Middle East, was brought to India
by the Arabs. Its prominence in India reached its peak during the Islamic era, which is often
considered the golden age of Unani medicine in the subcontinent. The Delhi Sultans,
including the Khiljis, Tughlaqs, and later the Mughal emperors, extended formal patronage to
Unani scholars and practitioners. During this period, the Unani medical system became
highly organized, with standardized procedures for licensing and registering physicians.
Practicing medicine required the official sanction of the ruling authority. To maintain quality
and prevent malpractice, a system of inspectors was in place. These officials were responsible
for overseeing the use and distribution of medications and preventing harmful practices such
as drug adulteration and the sale of substandard or dangerous substances. Under the Abbasid
Caliphate, General Afseen took a strong stand against the distribution of harmful drugs.

35
Brihaspati-8-360
Additionally, a unique position called Ehtisaab was introduced—an independent officer
responsible for overseeing public health and the quality of medical care provided.

According to Kitaab Al-Ahkamus Sultania, a 1058 AD work by Ammavardi, the Ehtisaab

acted like a medical auditor. He had the authority to review prescriptions, ensure accurate
diagnoses, and confirm that physicians provided legal and appropriate medications. In
essence, this role was established to protect the public from medical negligence and to uphold
high standards of care. During the 10th century, a case involving the death of a patient due to
the carelessness of a hakim (Unani physician) prompted the Abbasi Caliph, Mukhtadir Billah,
to mandate that all hakims undergo a formal examination. Only those who passed were
allowed to continue practicing medicine.

British India:
In the early stages of British rule, the number of practitioners trained in Western medicine
was relatively small, especially compared to the vast Indian population. Initially, medical
services were provided primarily by British physicians brought from Europe, and only a
limited number of Indians sought treatment through Western medical methods. However,
with time, Western medicine began to gain more acceptance among the Indian populace. The
establishment of medical colleges and hospitals by the British, coupled with the withdrawal
of official support for traditional systems of medicine, created an environment in which
Western-trained physicians gradually overshadowed their indigenous counterparts.
Recognizing the need to regulate the medical profession and prevent unqualified individuals
from practicing Western medicine, the British government introduced legislative reforms.36
One of the most significant was the British Medical Act of 1858, which led to the creation of
the British Medical Register. According to this law, only individuals who held recognized
diplomas or certifications from within the empire—and whose qualifications were
acknowledged by British authorities—could be legally admitted to the medical register and
allowed to practice. The introduction of the Bombay Medical Act in 1912 marked the
beginning of a formal system for registering qualified practitioners of Western medicine in
India. Under this Act, the Bombay Medical Council was authorized to cancel a practitioner’s
registration or strike off their name from the official register after a thorough investigation,
especially in cases involving moral misconduct or criminal offenses related to professional
duties.

36
Alan Gledhill, The Republic of India, the Development of its laws and Constitution, 359 2nd Edition,1964
Following this, the Indian Medical Council Act of 1933 laid the foundation for establishing a
centralized medical council in India. Additionally, the Medical Degrees Act of 1916 regulated
the granting of medical degrees and diplomas for Western medicine, ensuring only
institutions recognized by the British Government could confer such qualifications. The Act
also imposed penalties on unauthorized institutions offering degrees and on individuals
falsely claiming medical titles or qualifications.

To improve the standards in the field of dentistry, the British administration passed the
Bengal Dentists Act in 1939. This Act was the first to introduce provisions for the formal
training of dental practitioners and to prevent untrained individuals from practicing dentistry
without adequate supervision or instruction.

In 1912, for the first time, the central British government allowed provincial administrations
to appoint sanitary commissioners, deputy commissioners, and health officers based on
qualifications, which helped streamline the healthcare system at both central and provincial
lev37els. Up until the mid-19th century, the responsibility for public health and medical care
lay with provincial governments under the Government of India Act. However, the 1935
amendment to this Act maintained health and sanitation as provincial subjects while making
provincial heads accountable to the central authority for healthcare delivery. Importantly,
under British governance, the handling of medical misconduct or negligence followed the
principles of tort law, aligning the legal approach with that of English jurisprudence.38

The Indian Medical Degrees Act, 1916

With the emergence of new hospitals and medical colleges aimed at training Indians in
Western medicine, including areas like allopathy, surgery, obstetrics, and antibiotics, the
Indian Medical Degrees Act of 1916 was enacted to provide a structured legal framework.
This Act regulated practitioners trained in Western medicine and explicitly excluded
practitioners of traditional Indian systems like Ayurveda, Unani, and Homeopathy.

According to Section 4 of the Act, the unauthorized conferment of medical degrees and
diplomas was strictly prohibited, and only institutions approved by the British Government

37
V.B. Singh, Economic History of India, 1857-58, 707, (1st Edition, 1965)
38
Bolam V. Friern Hospital Management Committee (1957) 1 WLR 583
could issue such qualifications. Violating this regulation was considered unethical and
punishable with a fine of up to five hundred rupees.39

Post-Independence India

After gaining independence in 1947, India not only achieved political freedom but also
opened new avenues for improving public health and individual well-being. The formation of
the Interim Government marked the beginning of significant reforms in the healthcare sector.
One of its initial steps was to convene a meeting of central and state health ministers to assess
the nation’s medical needs and to plan appropriate strategies to address them. A second
national health conference was held in 1948, focusing on the training of medical
professionals and auxiliary staff and the need for maintaining a centralized All-India Medical
Register. The Indian Medical Council Act of 1956 replaced the earlier 1933 Act and enabled
the establishment of the Central Council of Health. Under Paragraph 13 of the Medical Code
of Ethics introduced in this Act, a key responsibility of doctors was emphasized: a physician
must never neglect or refuse to provide medical care to a patient under any circumstances.

One of the major achievements of post-independence India in the healthcare domain was the
recognition and promotion of traditional Indian medicine systems, including Ayurveda,
Siddha, and Unani. In 1964, a statutory body was constituted to regulate the production and
quality control of these indigenous medicines. Furthermore, the government established
various expert committees and commissions to examine the operational challenges in the
health sector. Their primary role was to evaluate healthcare delivery across states, assess both
rural and urban medical services, and offer recommendations to enhance healthcare
infrastructure and tackle ongoing issues in the system.

Committees and Commissions

After gaining independence, India entered a new era of reforming and developing its
healthcare system. The constructive recommendations and insights provided by various
expert-led committees significantly contributed to shaping and improving medical
infrastructure and public health strategies.

Among the earliest committees formed to examine the state of healthcare were the Health
Survey and Development Committee (commonly known as the Bhore Committee) and the

39
Indian Medical Degree Act 1916, Section 5 & 6
Sokhey Committee. Several other committees followed in the post-independence period,
becoming instrumental in shaping healthcare policies. These included the Mudaliar
Committee, Mukherjee Committee, Chadha Committee, Kartar Singh Committee, Mehta
Committee, Bajaj Committee, Jungalwalla Committee, and the Mashelkar Committee.
Additionally, a national commission was constituted to manage the intersection of health
services and macroeconomic policy.

i. Health Survey and Development Committee (1946)—Bhore Committee

The Government of India established the Health Survey and Development Committee in
1943 under the chairmanship of Sir Joseph Bhore. Its primary goal was to review the health
conditions and requirements of India in preparation for post-independence restructuring. The
committee included several distinguished figures in the field of healthcare and, after two
years of extensive study, submitted a comprehensive four-volume report in 1946.

The report proposed a national healthcare system and emphasized the necessity of integrating
preventive care with the existing curative treatment model. It highlighted that accelerated
socioeconomic progress was essential to realize a well-established healthcare system. The
committee stressed proactive medical care by recommending a model that effectively
combined preventive and curative services.

A notable feature of the Bhore Committee's vision was universal healthcare, ensuring access
for all citizens regardless of geographic location, infrastructure limitations, or financial status.
The committee also studied post-war developments in Europe, using their success in building
accessible, affordable welfare systems as a benchmark to affirm that such reforms were
achievable in India with well-planned initiatives.40

Key Recommendations of the Bhore Committee:

▪ Merging preventive and curative healthcare at all administrative levels.

▪ Planning for the improvement and strengthening of healthcare, especially at the primary
level.41

40
Ravi Duggal, Bhore Committee (1946) and its relevance today, 58(4): 395-406, The Indian Journal of
Pediatrics, 1991
41
Vikas Bajpai, "The Challenges Confronting Public Hospitals in India, Their Origins, and Possible Solutions,"
Advances in Public Health, vol. 2014, 27 pages, 2014
Short-Term Goals and Programs:

▪ Establishing primary health centers (PHCs) in rural and remote areas, each serving around
40,000 people.
▪ Proposed staffing for each PHC included two doctors, one nurse, four public health nurses,
two well-trained medical professionals, four trained field workers, one pharmacist, two
sanitary inspectors, four midwives, and fifteen class IV workers.

The 'Three Million Plan' or Long-Term Goals:

▪ Ensuring PHCs had adequate ambulance services for referrals to higher-level care.
▪ Each PHC should have 75 beds to serve populations between 10,000 and 20,000.
▪ Secondary healthcare centers with a bed capacity of 650.
▪ District-level hospitals with a bed capacity of 2,500.

These long-term plans also recommended major changes in medical education, including the
introduction of a three-month course on social and preventive medicine.

The committee underlined that the development of healthcare services in India could not
progress without the support of medical and allied health professionals like dentists, nurses,
and pharmacists. It recommended ensuring their inclusion in policymaking and representation
in health legislation.

ii. Mudaliar Committee

To review the implementation of the Bhore Committee’s recommendations and assess

progress, the Government of India formed the Health Survey and Planning Committee in
1959. Chaired by Dr. A. L. Mudaliar, this committee was set up towards the end of the
Second Five-Year Plan. Its mandate was to evaluate improvements in healthcare delivery
since the Bhore Committee’s report.

In its 1962 report, the committee acknowledged that the progress in healthcare was far from
satisfactory. It found the condition of primary health centers (PHCs) to be poor and proposed
enhancing the efficiency and infrastructure of existing PHCs rather than establishing new
ones. Strengthening district and sub-divisional hospitals was also emphasized.
The committee recommended that each PHC should not be responsible for a population
greater than 40,000 and must provide a comprehensive package of services—including
curative, diagnostic, preventive, and promotive care.

Another key proposal from the Mudaliar Committee was the creation of an ‘All India Health
Services’ on the lines of the Indian Administrative Service (IAS) to replace the older Indian
Medical Services and bring uniformity and quality to healthcare management across the
country.42

Introduction of the Concept of Public Health Model

The Mudaliar Committee, established to evaluate the progress of healthcare development

following the recommendations of the Bhore Committee, emphasized the need for a
comprehensive legal framework for public health. In this context, the committee introduced a
draft Public Health Model that aimed to address existing health and social challenges in an
integrated way. Though many administrative suggestions were proposed, only a limited
number have been effectively implemented to date. This model was regarded as the first
structured attempt to institutionalize a social system aimed at providing citizens with a
minimum standard of preventive, curative, rehabilitative, and promotional healthcare. It was
also envisioned as a legal instrument to support and implement the wide-ranging
recommendations laid out by both the Bhore Committee and the Environmental Hygiene
Committee, aiming for a unified approach to health governance. Not limited to legislation on
emergency medical services, the framework also focused on awareness and impact
assessment through public campaigns and surveys. The proposed model also laid out the
duties, powers, and responsibilities of local authorities, suggesting that technical and financial
assistance be extended to them through designated officials. It even provided for the
supersession of local bodies in certain situations if necessary. A notable recommendation was
the financial allocation for public health, suggesting that one-third of a municipality’s
revenue and one-fifth of non-municipal authorities’ income should be earmarked for public
health development. Importantly, the scope of this framework extended beyond primary
government facilities and included a more holistic vision for public healthcare services.

42
CARBALLIDO CORIA, Laura. The Mudaliar Committee (1962): Assessing the beginnings. Estud. Asia Áfr,
vol.55, n.3, pp.571-598. Epub 13-Nov-2020. ISSN 2448-654X.
Conclusion

In the modern era, the healthcare sector has evolved into a thriving industry that contributes
significantly to the national economy and extends its services globally through medical
tourism. Terms like "doctor" and "hospital" have gradually been replaced by “healthcare
providers,” reflecting a shift toward commercialized and globalized healthcare. As healthcare
becomes more sophisticated, so do the risks and complexities involved, giving rise to
concerns around medical negligence. While doctors were once revered as divine figures, they
are now increasingly scrutinized for professional errors and malpractices. Still, it is important
to recognize that doctors are human and errors can occur despite best efforts and due
diligence.

Legal actions against medical negligence can have severe consequences for a doctor’s
reputation, career, and mental health. They are often subjected to judgment not just by the
courts, but also by peers, media, and the general public. However, such accountability is
necessary to prevent intentional malpractice and grave errors.

To reduce instances of negligence, medical professionals must uphold high standards of care,
communicate clearly with patients, maintain transparent and thorough records, and stay
updated with medical advancements. These practices are fundamental in protecting against
avoidable legal challenges. Given the increasing number of medical negligence cases in
India, there is a pressing need for the government to introduce a dedicated and efficient legal
mechanism to resolve such disputes fairly and promptly. The following chapter will explore
the existing legal frameworks and enactments related to medical negligence in India,
assessing their effectiveness in delivering justice in such cases.
 CHAPTER 3

STATUTORY PROVISIONS AND LEGAL ENACTMENTS PERTAINING TO

MEDICAL NEGLIGENCE IN INDIA

3.1 Introduction

This chapter explores the legal framework for medical negligence in India under three main
areas: civil remedies under the Consumer Protection Act, 2019, tort law, and criminal liability
under the Indian Penal Code, 1860, and the Indian Evidence Act.

“Of all the arts, medicine is the most noble, yet it has fallen behind due to the
ignorance of its practitioners and the poor judgment of others who criticize it
without understanding the consequences.” – Hippocrates

Even after more than two thousand years, the words of Hippocrates, often called the father of
medicine, still ring true. His statement captures the current situation of the medical field in
India. Though the medical profession has always been treated with respect and regarded as
noble, in today's time, it often faces mistrust and criticism, just as it did in earlier times.

Over the past few years, complaints against medical professionals for negligence have risen
significantly, especially with consumer dispute forums. Many such cases have led to
compensation being awarded. In other situations, criminal charges have also been filed
against doctors accused of causing a patient’s death through carelessness. The rise in these
cases is largely due to increased public awareness about fundamental rights guaranteed by the
Constitution. Several Supreme Court judgments and international treaties have also
emphasized that access to healthcare is a basic human right.

This growing trend reveals a conflict between the public’s expectations of ethical
responsibility and the assertion of individual rights. This mirrors what has been observed in
developed countries as well. In India, people have increasingly felt that medical professionals
should be more accountable. Unfortunately, the Medical Council of India failed to properly
exercise its powers under the Indian Medical Council Act, 1956. It also did not enforce
adequate disciplinary measures on doctors. As a result, people turned to the law, using
consumer and criminal legal systems to hold medical professionals responsible. This shift is
in line with the idea that professions often evolve based on public needs, sometimes in ways
that differ from the original intentions of those within the profession.43

3.2 Accountability of Medical Professionals

Doctors, like all citizens, are subject to the law. However, the way they are held accountable
has differed across cultures and times. The important questions here are -To what extent are
medical professionals answerable under the law? What limits and responsibilities do they
have? Are these limits fair and clear? Do existing laws support doctors in practicing medicine
freely and responsibly? Accountability is essential—not only for ordinary people but
especially for professionals. The law is one way to ensure that medical professionals are
answerable to patients, families, and society. These questions have always interested legal
scholars, doctors, and the public. A doctor is expected to provide the level of care, skill, and
attention that a reasonably competent professional would provide in the same circumstances,
based on the current state of medical knowledge and available resources. This expectation is
non-negotiable. No sensible person would willingly accept anything below that standard of
care.44

A quote published in the Journal of the American Medical Association states, "Doctors are
human, and mistakes in diagnosis and treatment are inevitable because of the complex and
sometimes insufficient information they work with. No one, except a fraud, is always right.
However, carelessness and lack of basic competence are not acceptable, and such mistakes
can be avoided by a competent professional. That’s why they can lead to legal liability."

3.3 Civil Liability under the Consumer Protection Act, 2019

As per Section 20(a) of the Indian Medical Council Act, 1956, amended in 1964, the Council
is empowered to issue rules that classify certain actions as professional misconduct.45
Medical practitioners who commit such misconduct can face disciplinary consequences,
including suspension or even removal from the medical register. However, the deterrent effect
of this mechanism is weakened due to the council’s tendency to show leniency towards
fellow members. Moreover, the Council's reach is limited, operating mainly from State

43
Karunakaran Mathiharan, “Supreme Court on Medical Negligence,” 41(2) Economic and Political Weekly
111–115 (Jan. 14–20, 2006).
44
Alec Samuels, “The Doctor and the Law,” 49(4) The Medico-Legal Journal 139 (1981).
45
Indian Medical Council Act, 1956 (Act 102 of 1956), Sec. 20.
Headquarters, making it inaccessible to patients living in remote areas. Importantly, it also
lacks the authority to award monetary compensation to aggrieved patients.

While civil and criminal remedies exist for patients, criminal law typically applies only in
cases involving death. Even in such serious circumstances, prosecutions are often
inconsistent. Although civil courts are theoretically available to pursue damages, the high
costs of litigation, complex procedural requirements, and stringent evidentiary rules
discourage patients from seeking legal redress. This systemic inefficiency has led to a
scenario where medical practitioners often avoid accountability. Nevertheless, the medical
fraternity has demonstrated relatively more ethical conduct compared to other professions.

3.3.1 Impact of the Consumer Protection Act

The landscape changed significantly with the enactment of the Consumer Protection Act,
1986, which has now been replaced by the Consumer Protection Act, 2019 (referred to as
CPA). This legislation introduced a framework of consumer dispute redressal forums at the
district, state, and national levels. Under Section 42(11) of the CPA, issues of medical
negligence are classified as defects in service. In the landmark judgment of Indian Medical
Association v. V.P. Shantha46, the Supreme Court examined the provisions of the CPA and
held that the term "service" under the Act is broad enough to include healthcare services
provided by doctors. According to the Act, unless expressly excluded by the central
government, all services fall under its purview.

As stipulated in Section 3 of both the 1986 and 2019 versions of the CPA, the availability of
other legal remedies does not prevent a consumer from approaching the consumer forums
established under the Act. Medical services are explicitly recognized as falling within the
definition of services under Section 2(42) of the CPA. Interestingly, the 2018 version of the
Consumer Protection Bill included "healthcare" in this section, but this term was later
removed in the 2019 enactment following resistance from the medical community. This
exclusion was intended to protect medical professionals from a potential surge of consumer
complaints. Nevertheless, the government has clarified that the deletion of the term
"healthcare" does not prevent consumers from approaching forums in cases of medical
negligence or deficiency in services.

46
Indian Medical Association v. V.P. Santha and others, (1995) 6 SCC 651.
The inclusion of the phrase "includes, but is not limited to" in Section 2(42) maintains the
interpretive flexibility, leaving the door open for courts to continue considering healthcare as
a service under the CPA. The medical fraternity’s perceived relief through this amendment
may ultimately be illusory, as interpretive ambiguities are likely to generate litigation.

3.3.2 Filing Complaints and Exemptions

Any person harmed by medical negligence may file a complaint within two years from the
date of the incident, as per Section 69(1) of the CPA. However, Section 2(1)(42) excludes
services rendered under a contract of personal service or those provided free of charge. The
Supreme Court has held that the doctor-patient relationship is a "contract for services,"
meaning that paid medical services can be the subject of complaints under the Act. A mere
token payment, however, is insufficient consideration and may place the service outside the
Act’s scope. The CPA’s definition of deficiency under Section 2(11) refers to any fault,
imperfection, or inadequacy in the quality or manner of service delivery, either required by
law or contract. Despite the general absence of formal written contracts between doctors and
patients, an implicit agreement exists requiring the doctor to perform duties with expected
knowledge, competence, and care. Deficiency arises when services fail to meet these
established medical standards.

3.3.3 Remedies under the CPA

Section 39 of the CPA outlines remedies for both deficiencies and negligence. Two primary
types of relief are available:

1. Under Section 39(1)(a) & (f): For removing the defect or reimbursing costs.
2. Under Section 39(1)(d): For compensating damage caused by negligence.

Complainants may seek either or both forms of relief but must substantiate their claims with
clear and convincing evidence. While "deficiency" is defined in the Act, "negligence" is not.
Therefore, its meaning is derived from tort law. Given the conceptual similarities between
negligence and deficiency, it is vital to maintain a clear distinction between the two while
seeking remedies. Unlike other reliefs defined by statute, compensation for negligence is left
to the discretion of the adjudicatory bodies. The CPA empowers forums to award a
reasonable sum as compensation based on the overall circumstances of the case, without
requiring precise quantification of the loss.
This discretion has led to variability in compensation amounts across forums. For the same
kind of injury, compensations have ranged from Rs. 1,000/- to Rs. 10,00,000/-, depending on
the specifics of the case. Factors influencing the amount include the patient’s age, medical
history, fees paid, and information disclosed to the doctor. Non-economic damages like pain,
mental distress, and loss of life quality are difficult to calculate, further complicating
compensation assessments.

Two methods are generally employed:

● Global Assessment: Based on the judgment of the forum’s members.

● Fixed Yardsticks: Applying standard metrics, which are difficult to establish and may
lead to errors.

Currently, global assessment is the preferred approach in most forums.

The CPA has strengthened legal protections for paying patients seeking medical care. As the
number of such consumers increases, so will their access to remedies. However, certain
groups remain excluded—particularly those denied services or unable to afford them. Efforts
to bring these groups under the Act’s jurisdiction have failed, being seen as inconsistent with
its overall structure. Government and charitable hospitals, which serve this segment, require
better monitoring and therapeutic audits to minimize harm.

From the physicians’ perspective, although they oppose the Act for various reasons, it is
undeniable that medical care is becoming increasingly commercialized and costly. Yet, with
mechanisms for appeals and revisions in place, the CPA offers procedural safeguards for
fairness. Doctors can adopt preventive strategies such as practicing within their expertise and
ensuring accurate and up-to-date case records, which serve as strong evidence in legal
proceedings.

Still, concerns remain. Even dismissed complaints may tarnish a doctor’s reputation due to
adverse publicity. A possible solution could be mandatory mediation or conciliation before a
complaint is officially lodged. Additionally, incorporating medical professionals into
consumer forum panels could lead to fairer and more informed judgments, as peers assess
each other’s conduct.47

47
Jyoti Dogra Sood, “Responsibility of Doctors for Rash or Negligent Act,” 46(4) Journal of the Indian Law
Institute 588–592 (2004).
3.4 Tort Law

a. From Crime to Tort

In earlier centuries, medical negligence was primarily viewed as a criminal offense rather
than a civil wrong. A notable example is the Code of Hammurabi, drafted in Babylonia
around 2000 BCE, which explicitly addressed medical negligence. According to the code, if a
doctor performed surgery to treat a severe wound and the patient died as a result, the
physician’s hands were to be cut off. Other ancient civilizations also imposed similarly harsh
punishments. Medical negligence was seen as an offense against society, prosecuted by the
state on behalf of the people. The core purpose of criminal proceedings was to uphold public
interest by punishing the wrongdoer — in this case, the physician — usually without
awarding any financial compensation to the victim. However, with the emergence of common
law in England, a significant change occurred. By the 14th century, medical negligence began
to be treated as a tort instead of a criminal offense. The key distinction lies in the objective:
tort law primarily aims to compensate the victim or their family, unlike criminal law, which
focuses on punishing the offender. The law of negligence, a subset of tort law, developed
further over time. In 1838, Chief Justice Tindal remarked that anyone entering a learned
profession implicitly commits to exercising a reasonable degree of care and skill in their
work.48

Negligence in civil law holds particular importance because it encompasses numerous

factors. Even when doctors provide their services free of charge, the courts recognize the
relevance of tort law. In many cases, tort law applies where the Consumer Protection Act
(CPA) is not applicable.49

If patients feel that the services they received from a doctor or medical facility do not fall
under the definition of “services” in the CPA, they may pursue a negligence claim under tort
law. The burden of proof lies on the patient, who must show that harm occurred due to the
negligence of the doctor or hospital.

Examples of such medical negligence include:

● Using an incorrect blood type during transfusion

48
Lauphier v. Phipos, (1838) 8 C & P 475; 34 Digest 548; (1835–42) All ER Rep 421.
49
Smreeti Prakash, “A Comparative Analysis of Various Indian Legal Systems Regarding Medical Negligence,”
Legal Services India
 ● Leaving surgical tools like a mop inside a patient post-operation
● Performing surgeries or removing organs without consent
● Prescribing the wrong medication leading to injury

Medical professionals are expected to have the required skills and judgment to treat patients.
When they accept a case, they implicitly promise to exercise due diligence — known as an
“implied undertaking.”

To establish liability, several conditions must be satisfied:

● An act or omission must have occurred

● This act must breach the duty owed by the doctor
● The breach must result in harm to the patient

Patients need to present updated medical evidence and expert opinions to support their
claims. The level of negligence helps distinguish civil liability from criminal liability.

3.5 Criminal Liability in Medical Negligence

In State of Haryana v. Smt. Santra, the Supreme Court of India emphasized that doctors must
act with a reasonable level of care and competence.50

Under the Indian Penal Code (IPC) of 1860, which is general in nature and does not
specifically cover medical negligence, certain sections still apply. For instance, Section 304A
penalizes deaths caused by rash or negligent acts, applicable in both medical negligence and
road accident cases. Other relevant IPC provisions include Sections 374 and 385, relating to
causing pain and grievous injury.

In Santra, the Supreme Court clarified that criminal liability requires proving the degree and
intensity of negligence — not just the occurrence of harm. Factors like intent, gravity of the
offense, and the offender's character influence the court's judgment.

In Poonam Verma v. Ashwin Patel,51 the Supreme Court distinguished:

● Negligence: failing to fulfill a mandatory duty

● Rashness: being aware of possible harm but underestimating its likelihood

50
State of Haryana v. Smt. Santra, (2000) 5 SCC 182; AIR 2000 SC 3335.
51
Poonam Verma v. Ashwin Patel, (1996) 4 SCC 332.
 ● Recklessness: acting with disregard for consequences

Therefore, a doctor will only face criminal charges if their actions were so grossly negligent
or incompetent that it amounts to a crime against society.52

Defences Available to Doctors

Doctors facing criminal charges under the IPC can rely on Sections 80 and 88 as legal
defenses.

● Section 80: If an act was done accidentally or due to misfortune during a lawful
activity performed with due care, it is not considered a crime.
● Section 88: If the act was done in good faith and for the patient’s benefit — with or
without explicit consent — the doctor is not criminally liable, even if risk was
involved.

Burden of Proof and the Role of Mistake

The responsibility to prove negligence lies with the person alleging it. In medical malpractice
cases, this burden is particularly heavy. The complainant must convincingly establish that
negligence or incompetence caused the harm.

In Calcutta Medical Research Institute v. Bimalesh Chatterjee53, the court ruled that the
complainant must demonstrate both the negligence and the resulting deficiency in service.
Similarly, in Kanhaiya Kumar Singh v. Park Medicare, it was held that negligence must be
proven, not merely assumed.54

Even when doctors strictly follow protocols, errors may occur. Courts recognize that if a
doctor acts according to practices accepted by a reasonable section of medical professionals,
they are not held liable for negligence even if adverse outcomes occur.

Due to the complexity and unpredictability of the human body, medical outcomes can’t
always be controlled. The doctor-patient relationship involves an implied understanding of
such risks.

52
R v. Adomako, (1994) 3 All ER 79.
53
Calcutta Medical Research Institute v. Bimalesh Chatterjee, I (1999) CPJ 13 (NC).
54
Kanhaiya Kumar Singh v. Park Medicare & Research Centre, III (1999) CPJ 9 (NC).
Expert testimony plays a crucial role in these cases. According to Section 45 of the Indian
Evidence Act (1872), a court may consider expert opinions on scientific matters. However,
expert views are not automatically binding. The court evaluates all the evidence, including
expert explanations, to reach its own conclusion. Only those expert opinions that are clear,
convincing, and withstand scrutiny carry weight in court decisions.55

If the aggrieved party doesn’t receive a satisfactory response from the police, they can file a
criminal complaint under the Criminal Procedure Code, 1973. A key challenge in India’s
medical negligence laws is the burden of proof on the complainant. Since it’s difficult for a
patient to fully understand medical errors and establish a clear causal link between negligence
and harm, proving such claims becomes very tough. Given the inherently unpredictable
nature of medicine, the legal system places a heavy responsibility on the complainant to
present sufficient evidence.

3.6 Criminal Negligence in India developed by Supreme Court

Since 1998, the Supreme Court of India has delivered four varying judgments concerning the
applicability of Section 304-A of the Indian Penal Code to licensed medical professionals
accused of serious negligence while discharging their duties. In the case of Mohanan v.
Prabha G. Nair, the Court emphasized that the High Court had prematurely dismissed a civil
suit, even though establishing culpability necessitated a detailed analysis of expert testimony.
It noted that the complainant was not given a fair chance to present evidence before the
magistrate and reiterated that negligence by a medical practitioner must be ascertained only
through evaluation of relevant materials and expert opinions.56

This stance was altered in the subsequent case of Dr. Suresh Gupta v. Government of NCT of
Delhi, where the Supreme Court overruled its previous view. It held that to establish criminal
liability under Section 304-A IPC against a doctor or surgeon, the degree of negligence must
be so grave as to be classified as gross negligence or recklessness, and that mere lapses in
proper care, skill, or attention would not suffice. However, on September 9, 2004, this
judgment faced criticism for being excessively stringent. It was pointed out that the
expressions “gross,” “reckless,” “competent,” and “indifference” do not appear in the legal
definition of negligence under Section 304-A IPC, thereby challenging the validity of the

55
Titli v. Alfred Robert Jones, AIR 1934 All 273.
56
Mohanan v. Prabha G. Nair, 8 (2004) 3 SCC 391.
Court's reasoning. Consequently, the matter was referred to a larger constitutional bench of
five judges, where it remains unresolved.57

In the meantime, the Supreme Court addressed the issue again in Jacob Mathew v. State of
Punjab58 in August 2005, where a three-judge bench reaffirmed the principles laid down in
the Suresh Gupta judgment. The court elaborated upon the extent of criminal liability for
medical professionals and provided clarity on the legal framework governing medical
negligence. It distinguished between the civil and criminal interpretations of negligence—an
aspect not previously given adequate attention. The court also made a distinction between
ordinary workplace negligence (such as that seen in traffic accidents) and the professional
negligence of skilled practitioners. It stated that an accident alone is insufficient to establish
negligence, and an error in professional judgment does not automatically imply carelessness.
Given the pressure and complexity in emergency situations, mistakes can occur even when
professionals act with caution. Since a doctor’s professional integrity and future are at stake,
it is unlikely that any medical professional would consciously take an action that could harm
a patient, knowing that a single error could damage their career permanently.

The court summarized its observations by stating that negligence arises from a breach of duty
that occurs when a prudent and reasonable person fails to act as expected or does something a
reasonable person would avoid. Negligence becomes legally actionable when such a breach
results in harm, and the person responsible can be directly connected to the damage. The
essential components of negligence are duty, breach, and resulting injury. In medical
malpractice cases, what constitutes standard treatment may differ from typical procedures.
When dealing with professional negligence—especially concerning doctors—additional
factors must be considered. There is a clear distinction between simple workplace errors and
professional misconduct. A minor error in judgment or an accident does not automatically
mean the doctor was negligent. A medical practitioner cannot be held accountable simply
because another approach might have been better or another doctor might have acted
differently, as long as the chosen method adhered to the accepted medical standards of the
time.

A professional can only be held liable for negligence if it is shown either that they did not
possess the skills they claimed, or that they failed to exercise those skills with reasonable

57
Dr. Suresh Gupta v. Government of NCT of Delhi, JT 2004 (6) SC 238; (2004) 6 SCC 422.
58
Jacob Mathew vs. the State of Punjab, 1 (2005) 6 SCC 1.
competence in the specific situation. The applicable standard is that of an ordinarily capable
professional working under similar circumstances—not one with extraordinary expertise.
Professionals may have varying degrees of ability, but that alone cannot determine
culpability. The Supreme Court also reaffirmed the relevance of the Bolam test, a legal
principle from English law, as valid in assessing medical negligence cases in India.

The court emphasized that negligence carries different meanings in civil and criminal law.
What may be considered negligent in a civil suit does not necessarily amount to criminal
negligence. For a criminal charge to be valid, there must be an element of mens rea—a
wrongful state of mind. Only a particularly serious or egregious level of carelessness meets
the threshold for criminal liability. Negligence that does not meet this heightened standard
may lead to a civil remedy but cannot justify criminal proceedings. Even though the term
“gross” is not explicitly found in Section 304-A IPC, the language of “rash or negligent act”
must be interpreted as implying “gross” negligence in the criminal context. To prosecute a
medical professional under criminal law, it must be demonstrated that no reasonable
practitioner in the same field would have acted—or failed to act—in the same manner under
similar circumstances. The risk taken by the doctor must have been so clear that the resulting
harm was almost unavoidable.

The Court also clarified the limited applicability of the principle of res ipsa loquitur (the thing
speaks for itself), stating that it is a rule of evidence used mainly in civil tort cases and cannot
by itself establish criminal liability. Its use in criminal proceedings for medical negligence is
highly restricted. Furthermore, the Court laid down procedural safeguards, stating that private
complaints against doctors should not be entertained unless the complainant has a credible
expert opinion and statutory or administrative guidelines—preferably from the Medical
Council of India or relevant governmental bodies—are in place. The investigating officer
should also obtain an unbiased medical opinion, ideally from a qualified government doctor,
to determine if the medical conduct in question meets the Bolam standard. Arresting a doctor
accused of negligence should not be a routine action. It should only be done when absolutely
necessary for the investigation or if there is a genuine concern that the accused may hinder
the judicial process.

Following the verdict in Jacob Mathew, a general perception emerged that doctors could no
longer be held criminally liable for negligence. However, the Supreme Court later clarified in
State of Punjab v. Shiv Ram59 that the burden of proof in both criminal prosecutions and tort
cases continues to rest with the prosecution or claimant. A doctor might still be required to
explain their conduct if sufficient evidence is presented. The cautious approach advised in the
Jacob Mathew ruling does not eliminate the possibility of holding doctors accountable for
medical negligence in appropriate cases.

3.7 Other Key Rulings

In the landmark case of Laxman v. Trimbak, the Supreme Court clarified the responsibilities
that medical practitioners owe to their patients. It held that anyone presenting themselves as
capable of offering medical advice or treatment implicitly assures that they possess the
necessary expertise and knowledge. Once engaged by a patient, such a professional is
expected to demonstrate care in deciding whether to accept the case, in determining the
appropriate treatment, and in how that treatment is administered. Any lapse in these duties
could render the practitioner liable for negligence. The court emphasized that a doctor is
required to exercise an adequate level of skill and knowledge and apply reasonable care—not
the highest nor the lowest level, but a fair and sensible standard judged according to the
specific context of the case.60

In another significant ruling, Achutrao Haribhau Khodwa v. State of Maharashtra, the

Supreme Court acknowledged that medical expertise naturally varies among practitioners.
The nature of medical science allows for more than one valid approach to treatment. As such,
courts must be cautious in holding doctors liable for negligence if they have exercised due
diligence and acted with the necessary caution. Even if medical opinions differ, a doctor who
performs their duty with competence and reasonable care and whose actions align with
accepted medical standards cannot be held negligent solely because the patient’s condition
worsens or results in death.61

In the case of Spring Meadows Hospital v. Harjol Ahluwalia, the apex court elaborated on
specific grounds under which a doctor could be deemed negligent. It stated that glaring
medical mistakes, such as the administration of the wrong drug or anesthetic, would typically
amount to negligence. In certain instances, the legal doctrine of res ipsa loquitur (meaning
"the thing speaks for itself") may apply. Additionally, negligence may also arise from the

59
State of Punjab v. Shiv Ram, 4 (2005) 7 SCC 1.
60
Laxman v. Trimbak AIR 1969 SC 128
61
Achutrao Haribhau Khodwa v. State of Maharashtra AIR 1996 SC 2377
improper delegation of tasks—for instance, if a senior doctor assigns responsibilities to a
junior colleague despite knowing the latter lacks the ability to handle them competently.62

In A.S. Mittal v. State of U.P., the court addressed a tragic case involving an eye camp
organized by the state, where several patients suffered irreversible damage to their vision.
The court acknowledged that while surgical procedures inherently carry some risk despite
best efforts, errors that a reasonably skilled and cautious doctor would not commit amount to
medical negligence. In this instance, compensation was awarded to the affected individuals.63

The Supreme Court's decision in Kusum Sharma v. Batra Hospital64 serves as a

comprehensive guideline for adjudicating medical negligence claims in India. Justice Dalveer
Bhandari, after analyzing both domestic and international precedents, especially those from
the United Kingdom, identified foundational legal principles relevant to such cases.
According to the court, negligence arises when a duty is breached by either failing to do
something a reasonably prudent person would do or by doing something a reasonable person
would avoid. For criminal negligence to be established, it must be proven that the conduct
was not merely erroneous but grossly negligent or culpable.

A doctor is expected to have a fair level of skill and knowledge and must apply a reasonable
standard of care. The law does not demand perfection, but a basic, reliable level of
competence relevant to the situation. Liability is only triggered when the medical
professional’s actions fall below the standards expected of an average practitioner in that
specialty. Differences in medical judgment alone do not constitute negligence. If one
competent doctor follows a course of treatment that another might disagree with, that
difference does not amount to a legal fault. Additionally, when treating serious conditions,
doctors may sometimes opt for higher-risk treatments they believe offer the best chance of
success. An adverse outcome in such cases does not automatically indicate negligence.

The court further emphasized that as long as doctors fulfill their duties with appropriate skill
and care, they cannot be held liable simply for choosing one accepted method of treatment
over another. It cautioned against an environment where doctors fear legal consequences for
every decision, as such a climate could impair medical efficiency. It is essential for society to
support medical professionals and prevent unnecessary harassment or humiliation, allowing

62
Spring Meadows Hospital v. Harjol Ahluwalia (1998) 4 SCC 39 at 47
63
A.S. Mittal v. State of U.P. AIR 1989 SC 1570
64
Kusum Sharma v. Batra Hospital (2010) 3 SCC 480
them to work without fear or intimidation. The judgment also warned against misuse of legal
procedures by complainants aiming to extract undue compensation, particularly targeting
private healthcare institutions.

The court reiterated that medical professionals must be protected when they act in good faith
and with appropriate skill, always keeping the patient's welfare as the foremost priority.
However, the Court was careful to note that its observations should not be interpreted as
granting doctors blanket immunity from prosecution. If a practitioner has genuinely failed to
uphold the required standard of professional care, they can still be held accountable.

Finally, these guiding principles were not presented as mere suggestions. The court made it
clear that these standards must be actively considered when determining whether medical
negligence has occurred. Moreover, by virtue of Article 141 of the Constitution of India, all
rulings by the Supreme Court become binding precedents for all subordinate courts in the
country. Therefore, these principles constitute the legal foundation for handling medical
negligence cases in India.

3.8 Doctors' Dilemma with the Concept of "Criminal Negligence"

Many medical professionals remain confused about the legal notion of "criminal negligence."
A key reason is the widespread misinformation disseminated through media channels,
including social media, which often distort or oversimplify complex legal principles. Doctors
and patients alike are frequently subjected to "media trials"—a situation where the media acts
as judge and jury before the legal system has rendered its verdict. Headlines such as "Doc not
criminally liable if patient dies," "Saving the Doctors," and "SC Comes to the Rescue of
Doctors," following a notable Supreme Court judgment, contribute to a public
misunderstanding of legal developments. These reports can be misleading, especially for
doctors who depend solely on media interpretations rather than reviewing original court
rulings or consulting legal experts. This results in continued confusion among healthcare
professionals about the real implications of criminal negligence throughout their careers.

It is important to note that the Supreme Court's judgment reiterated an already established
principle—that a "mere error in judgment" does not constitute negligence. Nonetheless, the
media’s portrayal of this decision painted it as a new relief for doctors, which it was not. The
relief, in fact, remains provisional pending a larger bench's final verdict.
3.9 The Role of the Media

Articles 19 and 21 of the Indian Constitution safeguard the rights to free expression and
information. However, the responsibility that comes with this freedom is often overlooked. In
a landmark judgment, the Supreme Court criticized two newspaper editors for publishing
distorted and biased reports that violated court orders. The Court emphasized that a
journalist's duty is to present information truthfully and impartially, only after a careful
evaluation of facts.

Since the 1970s, the Indian media has played a crucial role in public awareness concerning
governance, development, technology, and international relations. Yet, over time, its
credibility has been questioned. Both the Press Council of India and former President K.R.
Narayanan have expressed concern over the declining integrity of journalism. Modern media,
criticized for its obsession with celebrity culture, sensationalism, and instant judgments, often
neglects pressing public concerns. In doing so, it has been accused of treating news as a
marketable product, prioritizing business interests over editorial integrity. This trend becomes
particularly problematic when the media passes premature judgments in ongoing legal
matters, undermining the judicial process.

Commercialization and Accountability in the Medical Field

The growing commercialization of healthcare has also contributed to the blurred lines
between medical care and business. Significant investment in infrastructure and technology
has shifted the profession from a noble, service-oriented field to one driven by profit motives.
While the medical profession has historically enjoyed great respect, this shift has prompted a
need for more effective regulatory mechanisms. There is now an urgent call for the medical
community to engage in introspection and take collective responsibility to uphold ethical
standards. Doctors, both individually and as part of professional bodies, are expected to
restore discipline and maintain the profession’s dignity. In essence, the responsibility of
reforming the system now rests with the medical fraternity itself.

The Judiciary’s Complex Role

The judiciary's involvement in defining medical negligence, particularly in criminal cases,

reflects the legal system’s struggle to balance accountability and fairness. The Supreme
Court's decision to refer the contentious issue to a larger bench on September 9, 2004,
underscores the complexity and divergent opinions on the matter. A two-judge bench
(Justices Arijit Pasayat and C.K. Thakkar) questioned whether terms like “gross negligence”
and “reckless conduct” fell under Section 304A of the Indian Penal Code, which pertains to
causing death by negligence. Distinguishing between civil and criminal liability in such cases
remains a difficult task for the judiciary. For criminal liability to be imposed on a doctor, it
must be proven that there was not just carelessness, but also an element of deliberate or
morally culpable behavior.

3.10 Conclusion

While the decision in Jacob Mathew v. State of Punjab may have offered temporary relief to
medical professionals, it is essential to recognize that the Supreme Court did not extend any
new or extraordinary protections to the profession. Rather, it reaffirmed established
international jurisprudence in dealing with civil cases of medical negligence and reiterated its
earlier positions regarding procedural safeguards such as the arrest of accused individuals, as
highlighted in D.K. Basu v. State of West Bengal (1997). Subsequently, in State of Punjab v.
Shiv Ram (2005), the court issued a stern advisory to the medical fraternity. It cautioned
practitioners to remain vigilant against colleagues whose practices have become more aligned
with commercial gain than with ethical medical care. The court expressed concern about the
declining standards of self-regulation within the profession, attributing this trend to the
pervasive influence of commercialization.

Allegations have surfaced involving medical professionals engaging in exploitative behavior,

misusing diagnostic tools, participating in illegal organ trade, and other ethically questionable
acts. While it is undeniable that unscrupulous individuals—referred to metaphorically as
“black sheep”—have entered the field, the profession as a whole has not been fully effective
in identifying and removing such elements. This erosion of trust and ethical standards has led
to increasing calls for external oversight, intended to supplement what should be a robust
system of internal accountability. The commercialization of healthcare, driven by high
operational costs and profit motives, has turned medicine into a venture focused as much on
financial returns as on healing. The once-honored balance between service and commerce
now tilts heavily toward the latter, underscoring the urgent need for both improved
self-regulation and stronger institutional controls.
The judiciary, by placing responsibility squarely back onto the medical community, has
effectively issued a call to action. It urges medical professionals—both as individuals and as
institutions—to reflect, reform, and actively enforce ethical discipline and professional
integrity within their ranks. Unless this introspection translates into meaningful change, the
integrity of the medical field may continue to erode under the weight of commercialization.
 CHAPTER 4

A COMPARATIVE STUDY OF MEDICAL NEGLIGENCE LAWS: INDIA, THE UK,

AND THE USA

With the advancement of science and medical technology, it has become increasingly
necessary to examine the legal frameworks that govern healthcare systems. This evaluation
becomes more insightful when we compare India's healthcare laws with those in countries
like the UK and the USA, known for their robust legal and medical infrastructure. Such a
comparison allows us to identify areas where India may be falling short in both legal and
technological aspects of healthcare.

4.1 Overview of Medical Laws in India

India operates a universal healthcare system overseen by the central and state governments.
Laws, being societal obligations enforced by authority, carry penalties in the form of fines,
imprisonment, or both. Historical legal texts such as the Code of Hammurabi—the earliest
known codification of rules—addressed various medical issues, including remuneration for
medical services. The Hippocratic Oath, originating from Hippocrates in the 5th century BC,
laid the foundation for medical ethics and remains a global standard today, largely adopted in
the modern version known as the Declaration of Geneva by the WHO.

During colonial rule, the need to regulate medical professionals grew as medical education
developed. With the rise in qualified doctors in India, legislation became necessary to
regulate their practice. The Indian Medical Council was founded under the Indian Medical
Council Act, 1933, providing a statutory structure for practitioners of modern medicine.
Legal acknowledgment for Indian medical systems began with the Bombay Medical
Practitioner’s Act of 1938.

Hospital commissioning laws ensure that hospitals are established only after proper
registration, confirming that they meet minimum infrastructure standards and undergo
periodic inspections. Numerous regulations govern various facets of healthcare, including
professional qualifications, drug safety, patient care, environmental health, workplace
conditions, pharmaceuticals, and research. Administrators are expected to be well-versed in
these rules and any changes, ensuring legal compliance and quality care.

4.2 Historical Background

India’s medical history can be traced back to the Indus Valley Civilization (3000–2000 BC).
Medical historian Henry Sigerist noted that the health services of Mohenjo-Daro were
superior to those of other ancient societies. Sacred duties and responsibilities have long been
associated with the medical profession, as seen in the Charaka’s Oath (1000 BC) and the
Hippocratic Oath (460 BC). The Arthashastra, written by Kautilya, recorded the state's role in
healthcare, prioritizing famine over epidemics and urging the use of medicine to control
disease.

One of the earliest health-related laws was Hammurabi’s Code from Babylon around 2000
BC, which imposed strict penalties on medical malpractice. In India, Emperor Ashoka (270
BC) institutionalized public healthcare by constructing hospitals with government funding.
Ethical principles were embedded in ancient texts like the Charaka Samhita, which outlined
Ayurvedic ethics and practices.

Colonial India witnessed the import of British medical professionals and systems. After 1857,
health policies prioritized European populations and military personnel. British doctors in
India were registered with the UK’s General Medical Council and held to its disciplinary
standards. The expansion of Indian medical schools necessitated indigenous legislation to
regulate local practitioners.

Coroner’s laws were introduced in 1871 in cities like Bombay and Calcutta to define
physicians' roles in postmortems and investigations. Other laws tackled the spread of
infectious diseases and the treatment of the poor. India’s first epidemic law was enacted in
1807 and remains in effect with amendments. The Lepers Act of 1898 was later repealed and
replaced by more modern statutes.

The Bombay Medical Act of 1880 marked the beginning of formal medical regulation, with
provisions for appointing registrars, maintaining records, and punishing misconduct.
Provincial medical laws were enacted in Bengal and Madras in 1914. This was followed by
the Indian Medical Degrees Act of 1916, which set national standards for medical education
and qualifications.
The Indian Medical Council Act of 1933 established a central regulatory authority. The
Bombay Medical Practitioners Act of 1938 gave legal validity to traditional Indian medical
systems and provided for their registration and oversight.

4.3 Modern Developments in Medical Laws

India’s independence in 1947 marked the beginning of a transformative era for its healthcare
system, with an emphasis on ensuring more organized and accessible services. This transition
involved the creation of new laws, the modification of colonial-era legislation, and the
development of judicial precedents to enhance individuals’ healthcare rights. In the early
years post-independence, one of the nation's primary challenges was establishing the physical
and institutional infrastructure needed for modernizing its healthcare system. Over time, the
Indian Parliament enacted numerous statutes aimed at strengthening healthcare delivery.

A legally qualified medical practitioner gains the right to practice medicine, surgery, or
dentistry by registering with the State Medical Council, as outlined in the respective state’s
medical law. These councils hold the authority to issue warnings, deny registration, or
remove a doctor's name from the registry if the practitioner has been convicted of an
unpardonable crime or found guilty of gross professional misconduct. Additionally, the
council may register a doctor's name upon satisfying the legal criteria.

The Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002,
outlines the acts considered professional misconduct and provides a mechanism for
disciplinary action. However, no disciplinary steps can be initiated against a practitioner
without giving them a fair opportunity to present their case, either personally or through legal
representation.

4.4 Role of the Judiciary

Judicial interventions have played a crucial role in reinforcing the right to healthcare as part
of the fundamental right to life under Article 21 of the Constitution. A landmark case in this
regard is Parmanand Katara v. Union of India (1989)65. In this case, a victim injured in a
scooter accident was denied admission by a hospital on the grounds that it was not equipped
to handle such emergencies. The Supreme Court emphasized that the professional obligation
of doctors to administer emergency care supersedes any technical constraints or patient

65
Parmanand Katara v. Indian Union, 1989 SCR (3) 997.
consent. It asserted that under Article 21, the state is responsible for preserving life, and this
duty extends to all medical professionals, regardless of whether they are employed in public
or private institutions.

Another significant judgment was delivered in Paschim Banga Khet Mazdoor Samity v. State
of West Bengal (1996)66. Here, a person injured in a train accident was denied treatment by
multiple hospitals citing inadequate facilities. The court ruled that such denial of emergency
care violated the right to life. It held that hospitals, whether state-run or private, are
constitutionally obligated to provide prompt medical attention in life-threatening situations.

4.5 Criminal Liability of Medical Professionals

Criminal law functions to regulate personal behavior in accordance with societal norms and
moral expectations. It designates certain acts as offenses and prescribes penalties for those
who violate legal or ethical boundaries. When medical professionals fail to uphold their
responsibilities, resulting in harm to patients, they may face criminal charges under
applicable laws.

Unlike ordinary citizens, doctors have certain legal privileges that allow them to perform
actions—such as making incisions or administering drugs—that might otherwise be deemed
harmful, as long as these actions are intended to prevent further injury or save lives.
However, medical practitioners can be prosecuted for criminal offenses like causing death,
grievous hurt, or illegal abortions if their actions fall outside the bounds of professional duty.

Three primary legal defenses are available to physicians in such cases:

1. Informed Consent—when the patient has voluntarily agreed to the procedure,

2. Necessity—when the act is performed to prevent greater harm, and
3. Good Faith—when the act is carried out with honest intent and without negligence.

Further criminal accountability arises under several provisions of the Indian Penal Code
(IPC), Criminal Procedure Code (CrPC), and specific statutes such as the Medical
Termination of Pregnancy (MTP) Act, the Pre-Conception and Pre-Natal Diagnostic
Techniques (PCPNDT) Act, and the Transplantation of Human Organs and Tissues Act.

66
Paschim Banga Khеt Majdoor Samity v. state of Wеst Bеngal, 1996 SCC (4) 37.
4.6 The United Kingdom

Following the Second World War, the United Kingdom established its National Health
Service (NHS), which began operating on 5 July 1948. The roots of the NHS can be traced
back to the 1942 Beveridge Report on Social Insurance and Allied Services, championed by
Aneurin Bevan—a former coal miner turned politician and health minister. The NHS was
founded on the principles of universality, equality, free access at the point of delivery, and
funding through central government revenues. Despite numerous structural and political
reforms over the decades, the NHS has remained a widely accessible system funded by taxes
and national insurance, providing care based on individual needs rather than financial means.

Healthcare responsibilities differ across the UK: the central government oversees health
policies in England, while Scotland, Wales, and Northern Ireland manage their own systems.
Broadly, the healthcare structure across the UK consists of two main segments: one focusing
on policy, strategy, and administration, and the other on medical services. The latter is further
divided into primary care (including general practitioners, dentists, and pharmacists) and
secondary care (such as hospital and specialist services). Significant shifts in healthcare
delivery have taken place over the past decade, encouraged by reports like “Shifting the
Balance of Power: The Next Steps” (2002) and “Wanless” (2004). These led to greater
emphasis on local decision-making, integration between primary and secondary services, and
increased patient autonomy. This approach was solidified in the 2008 "NHS Next Stage
Review: High Quality Care for All" (Darzi Review) and reiterated in the 2010 health strategy
titled "Equity and Excellence: Liberating the NHS."

More recently, the Conservative-Liberal Democrat coalition government unveiled plans for a
major overhaul of the NHS, citing the need for a more responsive, patient-centric system
capable of delivering world-class results. These proposals were outlined in the 2010 White
Paper, aiming to enhance responsiveness and outcomes within the NHS.

Though healthcare and legal systems are often seen as separate, they intersect significantly in
the UK. Legal protections are embedded in the healthcare system to uphold patients' rights,
ensure informed consent, safeguard confidentiality, and hold medical practitioners
accountable under civil and criminal law when necessary.
 a. The Law and Health

Various laws and patient charters in the UK guarantee individuals' rights within the healthcare
system. These legal protections ensure that patient privacy is respected, informed consent is
obtained before treatment, and medical procedures are conducted with proper diligence.
Healthcare professionals may be held legally liable if they violate these standards.

b. Legal Health and Safety Requirements

Health and safety regulations, though sometimes perceived as burdensome, are crucial to
ensuring public and workplace safety. These laws cover everything from asbestos-free
environments to emergency exits, protecting workers and students alike. Public safety
regulations also extend to spaces such as playgrounds and community centers. The objective
of these laws is not to remove all risks but to mitigate significant hazards through thoughtful
legislative and regulatory action.

c. Medical and Ethical Law

Evolving societal values influence how medical ethics are reflected in the law. For instance,
the Abortion Act of 1967 was passed in response to growing awareness about the importance
of safe abortion access for women's health. Likewise, ethical discourse continues to shape
judicial perspectives on issues like euthanasia. Consequently, there are diverse professional
opportunities in the fields of medical law and ethics, including research, policy development,
and academia.

d. Business Legal Health Checks

In the corporate realm, legal health assessments are sometimes mandated. Legislation ensures
these health evaluations are necessary and not overly intrusive. For high-risk occupations
involving chemicals, physical labor, or caregiving responsibilities, occupational health
inspections help verify fitness for duty. Periodic health checks may be required in specific
roles, such as those involving laboratory work, to monitor for risks like chemical exposure.
Legal safeguards are in place to balance privacy with safety.

e. Medical Attorneys
Legal professionals specializing in medical law are available throughout the UK, including
solicitors and barristers. In England and Wales, they are regulated by the Law Society and
Bar Council, while in Scotland, they fall under the Scottish Law Society, and in Northern
Ireland, under the Northern Ireland Law Society. Typically, these practitioners hold
undergraduate law degrees, postgraduate certifications, and complete a two-year period of
supervised training. Alternative, non-academic paths to this field also exist but tend to be
more time-consuming.

f. Law on Public Health

Public health laws are essential for maintaining a healthy population. These include
immunization programs and regulatory standards for businesses, particularly in food safety
and sanitation. For instance, legislation requires commercial kitchens to meet hygiene
standards, thereby reducing the risk of foodborne illnesses. Public health law also supports
child welfare—social services may intervene when nutritional needs are severely neglected.
Violations of public health laws can result in both civil and criminal penalties.

The challenges facing the NHS—such as aging populations, chronic illnesses, and social
disparities—mirror those encountered globally. Increasing life expectancy has brought a
surge in diseases like cancer and neurological disorders. At the same time, lifestyle-related
illnesses such as obesity, diabetes, and cardiovascular conditions have become prevalent due
to unhealthy environments and behaviors. These chronic conditions account for a significant
share of NHS spending, with coronary heart disease, cancer, kidney disease, adult mental
health issues, and diabetes representing about 16% of the budget, 12% of total morbidity, and
40–70% of the national mortality rate.

Health inequalities are worsening, particularly affecting ethnic minorities and disadvantaged
groups who experience higher rates of illness, early death, and disability. Even as health
improves overall in England, disparities between social classes are growing. According to the
House of Commons Health Committee, in the past decade, the life expectancy gap between
rich and poor has widened—by 4% for men and 11% for women. The NHS is evolving to
focus more on chronic disease management, rehabilitation, and preventive care, rather than
solely providing treatment and palliative services.

New healthcare approaches emphasize performance-based pay, cost-effectiveness, and

regulatory reform. The United Kingdom has also made strides in adopting predictive,
preventive, and personalized medicine (PPPM). While PPPM offers promising solutions, it
also presents new challenges and ethical dilemmas. Its effective implementation requires
scientific knowledge, technological innovation, sound policy frameworks, and strict
regulatory measures. Education of healthcare workers, patients, and the public is equally
important. When applied appropriately, PPPM has the potential to help the NHS achieve
world-class health outcomes.

4.7 The Bolitho Test: A Landmark in Medical Negligence Law in the UK

The Bolitho Test, developed through the House of Lords decision in Bolitho v City and
Hackney Health Authority (1997)67, significantly revised the existing standards for
determining medical negligence in the United Kingdom. It built upon the Bolam Test (1957),
which established that a medical professional would not be considered negligent if their
conduct was in line with that of a responsible body of medical practitioners. However, the
Bolitho ruling introduced a critical qualification: the professional opinion must also be
supported by sound logic and reasoning.

Case Background

The case involved a young child, Patrick Bolitho, who was admitted to St. Bartholomew’s
Hospital in London in January 1984, suffering from croup. After initially being assessed and
discharged, Patrick's condition deteriorated, prompting his readmission. Despite repeated
requests from a senior nurse, the on-duty pediatric registrar failed to respond, citing issues
such as a broken pager and other obligations. Tragically, Patrick experienced respiratory
failure followed by a cardiac arrest, resulting in severe brain injury and ultimately his death.
His parents pursued legal action, alleging negligence by the hospital staff.

The case raised two primary legal questions: whether the registrar failed in her duty of care,
and if so, whether this failure directly caused Patrick’s death. While the court acknowledged a
breach of duty due to the doctor’s absence, the more pressing issue was causation—would the
outcome have changed had the registrar been present?

The registrar argued that, even if she had attended, she would not have opted for intubation.
Medical experts were divided on this matter—some claimed intubation was necessary, while

67
Bolitho v. City and Hackney Health Authority, [1998] AC 232 (HL).
others supported her choice not to intubate. According to the Bolam principle, the existence
of a responsible body supporting the registrar’s view would typically shield her from a
negligence claim.

However, upon appeal, the House of Lords clarified that not all professional opinions could
be automatically accepted under Bolam. The court emphasized that any such opinion must
pass a logical scrutiny test. Simply put, medical views—even if widely shared—must be
based on reasoned and rational judgment. The judiciary must examine whether the
professional stance is not just conventional but also defensible under logical analysis.

This principle became known as the Bolitho Test, which authorizes courts to reject medical
opinions if they are not underpinned by clear, rational justification. Thus, the court no longer
has to defer to expert opinion merely because it represents professional consensus; it must
also verify that the opinion stands up to logical evaluation.

The introduction of the Bolitho Test brought several crucial changes to how medical
negligence is adjudicated in the UK:

1. Increased Judicial Scrutiny: Judges are now expected to assess not just the prevalence
but also the logical foundation of medical opinions presented in court.
2. Greater Patient Safety: This ensures a more stringent standard of care, protecting
patients from medical decisions that may be common but lack rational support.
3. Refined Causation Analysis: Especially in cases where a doctor's inaction is in
question, the test aids in evaluating whether the omission logically contributed to the
harm.
4. Enhanced Professional Accountability: Medical practitioners are encouraged to adopt
evidence-based practices that can be both professionally accepted and logically
substantiated.

The Bolitho Test marks a significant evolution in the legal assessment of medical negligence.
By mandating that professional opinions must also be logically sound, it bridges the gap
between medical expertise and legal accountability. This approach ensures that the quality of
patient care is held to both peer-recognized and rationally defensible standards, thereby
strengthening protections for patients and refining the framework for medical liability in the
UK.
4.8 United States of America

During the 20th century, the relationship between medicine and law became increasingly
intertwined in the United States. The field of forensic medicine developed primarily in two
branches: forensic pathology and forensic psychiatry. Pathologists often appeared in court to
explain causes of death in suspected murder cases and to describe physical injuries related to
violent crimes. Medical professionals also provided evidence in civil matters, including
workplace injuries, accidents, and paternity issues. In criminal trials, psychiatrists would
examine defendants who claimed insanity, offering testimony about the accused's mental state
during the incident. The main legal question usually revolved around whether the accused
could understand the difference between right and wrong. Psychiatrists were also commonly
called in civil cases, such as those concerning child custody or involuntary commitment to
mental health institutions.

From the 1960s onward, legal proceedings involving medical negligence became a routine
challenge for doctors. Issues once viewed strictly through the lens of medical ethics—like
abortion, the cessation of treatment, informed consent, and patients' rights—began appearing
in courtrooms as matters of civil rights. Legal interventions also extended to public health
efforts, especially in the control of infectious diseases like AIDS and influenza. These efforts
triggered legal debates about individual privacy, mandatory vaccinations, and ethical
concerns around human experimentation. After the events of September 11, 2001, healthcare
professionals became active participants in bioterrorism response plans. These included
attempts—some unsuccessful—such as vaccinating emergency medical teams against
smallpox and involving government agencies in emergency response planning, which led to
scrutiny of existing public health laws at the state level.

An American legal thinker once made a distinction between two kinds of morality: the kind
that encourages individuals to strive toward ideals and the kind that imposes obligations. The
first relates to ethics, the second to law. Ethical standards serve as goals, while legal rules set
boundaries backed by enforceable consequences. Ethics tends to be broader and less defined,
whereas laws are often explicit and enforce strict accountability.

4.9 Judicial Developments

With advances in medical technology, situations began to arise where ethical decisions
conflicted with real-life consequences. For example, in cases where a patient in a permanent
coma could be kept alive indefinitely using machines like ventilators, ethical debates
emerged about whether continuing treatment served the patient’s best interest.

One notable case involved a young woman in New Jersey, where her parents requested that
she be taken off life support. The doctors declined, believing it was unethical to take any step
that might result in her death. However, the court decided the core issue was not ethics, but
the right of a patient to decline medical intervention—even if expressed by a legal guardian.
The court ruled that patients could refuse treatment, and their family could make that choice
on their behalf if the patient was incapacitated. If a hospital ethics committee supported the
decision and agreed on the medical prognosis, then medical staff involved would not face
legal repercussions. Interestingly, even after being removed from the ventilator, the woman
continued to live for years and eventually passed away due to illness. This case became a
landmark in how medical decisions, ethics, and law intersect. The judgment prompted the
creation of hospital ethics committees with legal protections to guide such decisions.
Although similar committees now exist in countries like Australia and across Europe, not all
legal systems have adopted this model. Importantly, doctors in the U.S. are rarely criminally
prosecuted for decisions made in good faith during patient care. Courts generally protect
physicians who act within accepted medical standards.

The principles from this case were expanded over time. All competent adults now have the
right to refuse any form of medical treatment, even life-sustaining measures such as artificial
nutrition. Sometimes, courts rely on prior statements or living wills to determine a patient’s
wishes, especially when the patient can no longer communicate. In such cases, individuals
may assign someone they trust to make healthcare decisions on their behalf. This designated
person has the same rights as the patient to decline medical intervention. The medical
community supports the idea that refusing treatment aligns with ethical and professional
standards. In some places, laws even permit doctors to assist terminally ill patients in ending
their lives, though such practices remain controversial. In 1997, the U.S. Supreme Court
reaffirmed that refusing treatment is a fundamental patient right. However, the issue of
assisted suicide remains heavily debated due to concerns about vulnerable populations.
Medical law in the U.S. is rooted in the shared values of individual autonomy, physician
responsibility, and equitable treatment for all. Both the law and medical ethics uphold these
values, ensuring that decisions are made in the best interests of the patient.

Legal Restrictions in the U.S.

 a. Declaring Death: American law largely trusts physicians to determine death and
issue death certificates based on recognized medical practices. Traditionally, death
was defined by the irreversible loss of heartbeat and breathing. However, with
medical advancements that allow machines to artificially sustain life functions, brain
death (complete and irreversible cessation of brain activity) has become an accepted
medical criterion for death. This shift supports organ donation and the more efficient
use of limited medical resources. Most developed nations, including Japan, have
adopted this standard either through specific laws, court rulings, or medical protocols.
b. Ending Pregnancy: The issue of abortion remains controversial, but in many
regions, it is legally permissible under certain conditions. In the U.S., the viability of a
fetus—its ability to survive outside the womb—is usually determined by the attending
doctor, not by the state. This gives physicians considerable authority in making
medical decisions related to pregnancy termination.
c. Suicide: Authorities must be notified in the event of unexpected deaths to determine
whether they were caused by murder, suicide, or accidents. An investigator must first
conduct a preliminary inquiry before referring the case to the police or prosecuting
authorities, whether the investigator holds the title of examiner, coroner, or another
designation. In most Western countries, this role is typically filled by a lawyer or a
doctor. In the United States, some jurisdictions elect coroners, who may or may not be
medical professionals. In London, coroners are both physicians and attorneys. The
primary evidence provided by a coroner is the autopsy report of the deceased.

Medical Negligence
Individuals who suffer due to medical negligence can seek remedies through the legal
framework of their country. In the United States, healthcare professionals are frequently sued
for injuries caused by negligent acts. Professional negligence refers to the failure of a
healthcare provider—whether a doctor, nurse, dentist, or pharmacist—to deliver care with the
caution and skill that a reasonable and competent professional would apply under similar
conditions. However, medical practitioners are not legally required to guarantee successful
treatment outcomes. Adherence to established standards of care is generally considered
evidence of proper conduct but is not conclusive, as certain circumstances may justify a
departure from these norms. Penalizing a doctor who consistently follows professional
protocols is not seen as malicious behavior, and such cases typically result in complaints to
licensing or registration authorities rather than legal action. Still, disciplinary action by public
licensing bodies is relatively rare.

Medical malpractice serves three primary roles: ensuring care quality, providing
compensation for harm, and offering emotional redress to affected patients. Quality assurance
is most effectively maintained when medical professionals define care standards, and both
patients and juries respect these. However, compensation for severe injuries is often modest.
For instance, attorney fees in negligence claims can amount to 20%–40% of the total award.
Minor injuries typically result in limited financial remedies.

In countries with universal healthcare, such as those with public insurance systems,
compensation for injury-related medical expenses is less contentious since treatment costs are
covered regardless of fault. Still, non-economic damages—commonly referred to as "pain
and suffering"—often require court proceedings to secure compensation. Nations like
Sweden and New Zealand have introduced no-fault compensation systems that benefit all
citizens. Conversely, in the United States, where over 40 million individuals lack health
insurance, a medically caused injury can result in serious financial hardship.

Emotional redress allows patients to voice grievances and receive appropriate responses.
Compared to Britain, Americans are ten times more likely to file medical lawsuits, driven by
differences in legal structures, healthcare payment methods, availability of legal support, and
systems like the UK's National Health Service, as well as alternate dispute resolution
mechanisms. The push for safer healthcare is grounded in findings by the Institute of
Medicine, which reported that over 100,000 deaths occur annually in US hospitals due to
preventable mistakes. Many of these fatalities result from caregiver negligence and could be
mitigated through simple preventive measures like regular handwashing, accurate patient
identification, and thorough recordkeeping.

4.10 Comparison and Conclusion

In countries like India, healthcare governance is inclusive and decentralized, with individual
states overseeing healthcare professionals. The Indian Medical Register, maintained by the
Medical Council of India, is valid nationwide. It includes individuals holding recognized
medical qualifications such as M.B.B.S., L.M.P., and equivalent foreign degrees.

In contrast, the UK operates without a government healthcare monopoly and has one of the
more lenient systems regarding practitioner registration. The Medical Act of 1978 allows
anyone who completes the required training and examinations to register as a medical
professional. Only registered practitioners can issue medical certificates and hold
appointments in public hospitals. Claiming to be registered without actively practicing is a
criminal offense. Physicians in the UK can also engage in private practice.

In the United States, the system is largely shaped around patients’ rights. The law tends to
favor consumers, encouraging individuals to understand that their well-being is directly
linked to the care provided. This has led to the implementation of the "informed consent"
doctrine, which emphasizes a patient’s right to understand and agree to treatment—a concept
that is not as thoroughly embedded in the UK's healthcare framework. Each country’s
medical-legal system reflects its own context and values. However, while developing or
amending medical laws, the rights and interests of all parties involved should be prioritized.
India, in comparison, still has a considerable path ahead in aligning its medical-legal
framework with that of more advanced nations, particularly due to its relatively less
developed healthcare infrastructure and legal integration.
 CHAPTER 5

ADJUDICATING MEDICAL NEGLIGENCE: THE ROLE OF THE INDIAN

JUDICIARY

5.1 Medical Negligence and Legal Framework in India

Although the medical profession is considered one of the most esteemed, it is not immune to
lapses in care, whether due to inadequate skills or deliberate disregard. Such lapses can result
in serious harm or even death to patients. India lacks a uniform set of regulations to address
cases of medical malpractice, leading to inconsistent interpretations by courts and law
enforcement authorities. This ambiguity can result in wrongful accusations and unjust
penalties, making medical negligence a pressing legal and social concern in the country.

Understanding Negligence

Winfield defines negligence as a breach of a legal obligation to exercise care, resulting in

unintended harm to the plaintiff. This gives the injured party the legal ground to initiate
action. The concept took clearer shape in Donoghue v. Stevenson68, which expanded the scope
of duty beyond conventional relationships like doctor-patient or employer-employee. Another
significant English case, King v. Phillips69, clarified that negligence claims must involve
foreseeable harm caused directly to the complainant. In essence, damage is a key element in
proving negligence. Criminal liability demands a higher threshold of negligence than civil
liability. In criminal cases, the mental element (mens rea) becomes central. Lord Diplock, in
R v. Lawrence and later in R v. Caldwell, discussed recklessness as part of mens rea. He
explained that recklessness implies awareness of a potential danger by a reasonably prudent
person and that criminal liability arises when a person either disregards or fails to consider
that risk before acting.

68
Donoghue v. Stevenson, 1932, A.C. 562
69
King v. Phillips, [1953] 1 QB 429.
Doctors hold a privileged position in society, often viewed as instruments of divine will
because of their life-saving role. When a patient seeks treatment, they do so with the
expectation that the doctor or healthcare facility will use all their expertise and knowledge
responsibly. While doctors may not always succeed in saving lives, they are expected to
apply their skills diligently and in the patient's best interest. They are also responsible for
obtaining informed consent before carrying out significant treatments, surgical interventions,
or diagnostic procedures—except in emergency situations. Failure to fulfill these
responsibilities constitutes a tortious wrong.

In India, the legal relationship between a patient and a healthcare provider often straddles
both tort and contract law. The patient has a civil right to receive appropriate treatment, and
once fees are paid or treatment begins, certain contractual obligations also arise. However,
criminal liability is only attributed when the act of negligence crosses the threshold of gross
disregard, as stipulated under Sections 88 to 92 of the Indian Penal Code, which assume that
medical professionals act in good faith. In recent years, there has been a growing
consciousness regarding patient rights in India. This shift is reflected in increased litigation
around medical malpractice, unauthorized procedures, and breach of confidentiality. Courts,
especially the Supreme Court, have emphasized the importance of health as a fundamental
right under Article 21 of the Constitution. The evolving legal approach aims to balance
patient protection with maintaining the autonomy and integrity of the medical profession.

5.2 Concepts of Duty of Care, Degree of Care, and Standard of Care

Negligence only becomes a legal issue when the law imposes a duty of care. Under civil law,
such a duty obligates individuals to act with reasonable care to prevent harm to others. In the
medical context, a doctor's responsibilities are clearly outlined; they include the decision to
treat, the selection of an appropriate course of treatment, and the competent administration of
care. A breach in any of these areas may open the path to a legal claim. The duty of care
arises the moment a patient enters a healthcare facility and is seen by a doctor, regardless of
whether formal consent has been given. The physician is responsible not only for treating the
illness but also for managing potential side effects. This includes conducting necessary
investigations, interpreting findings, diagnosing accurately, and ensuring the patient is
adequately monitored until recovery. These duties fall on the treating doctor, not labs or other
consulting specialists, who do not have a legal duty to treat but may assist in diagnosis.
While the law does not demand perfection, it holds professionals to a higher standard than
laypersons. The standard of care is evaluated based on what a reasonably competent
practitioner in the same field would do under similar circumstances. Legal tests such as the
Bolam standard help determine liability in negligence cases. According to the reasonable
person test—a longstanding legal principle—the conduct of the accused is compared to what
an average, prudent person would have done.

Negligence can range in severity and is assessed based on the level of risk involved. A person
is said to be negligent if their actions expose others to harm, even without intent. The greater
the risk, the more significant the negligence. Gross negligence, which shows a blatant
disregard for others' safety, can lead to criminal prosecution or even charges of culpable
homicide if it results in death. Unlike civil negligence, criminal negligence entails a much
higher degree of fault.

5.3 Informed Consent and Liability

For a doctor to be held accountable, there must exist a doctor-patient relationship, which is
based on trust. The physician’s responsibility becomes more significant when the patient
lacks full understanding of their condition or treatment options. However, this obligation does
not permit doctors to act without the patient’s consent when the patient is capable of making
informed decisions. The right to autonomy includes the right to refuse treatment, even when
such refusal might seem irrational. In cases where direct consent cannot be obtained—for
example, when the patient is a minor, mentally incapacitated, or unconscious, a substitute or
proxy consent is considered acceptable.

The case of Samira Kohli v. Dr. Prabha Manchanda70 serves as a critical precedent. The
patient, who had been advised to undergo diagnostic laparoscopy under general anesthesia,
ended up undergoing a major surgical procedure of hysterectomy and bilateral
salpingo-oophorectomy—based on her mother’s consent. The Supreme Court held that
authorization for a diagnostic procedure does not extend to therapeutic or irreversible surgical
interventions unless it's a medical emergency. It ruled that a patient’s consent for one
procedure cannot be interpreted as blanket approval for other procedures, even if they may be
beneficial in the long run.

70
Samira Kohli v. Dr. Prabha Manchanda, 1(2008) CPJ 56 (SC).
The Court analyzed both the UK’s concept of "real consent" and the U.S. standard of
"informed consent," ultimately rejecting the stricter American standard as impractical for
Indian conditions. It emphasized that valid consent must be based on adequate information.
though it need not cover every remote risk. The information shared should align with what is
considered appropriate by a respected group of medical professionals.

In Malay Kumar Ganguly v. Dr. Sukumar Mukherjee71, the Supreme Court reiterated the
importance of patient engagement. Particularly in treatments with potential side effects or
alternative approaches, doctors are expected to explain options thoroughly. The court
observed that future legal battles may increasingly rely on the concept of insufficient or
absent informed consent.

5.4 Medical Negligence Laws in India: the Legal Landscape

The Indian Penal Code (IPC) provides a distinct legal framework for medical professionals
compared to ordinary citizens. Section 304A of the IPC states that anyone who causes a
person’s death through a rash or negligent act, which does not amount to culpable homicide,
shall face up to two years of imprisonment, a fine, or both. Therefore, in scenarios like a
patient’s death resulting from improper administration of anesthesia during surgery, a doctor
may be held criminally liable. However, such criminal liability arises only when the act is
carried out with reckless disregard or a wrongful intent.

Despite recognizing patients' rights, the IPC also provides certain legal shields to doctors
under Sections 80 and 88. According to Section 80, any act done lawfully and with due care,
which results in harm by accident and without intent or knowledge, does not constitute a
crime. Section 88 further protects acts done in good faith for another’s benefit, even if risk is
involved, provided there is either express or implied consent from the patient. The case
Kurban Hussein Mohammedali v. State of Maharashtra72 reinforced this by stating that
criminal liability under Section 304A arises only when the accused’s negligent action is the
sole and direct cause of death, without interference from others.

The scope of civil liability for negligence is expansive, applying even when doctors provide
free treatment. As one saying goes, "Where the Consumer Protection Act ends, tort law
begins." When medical services don’t fall under the Consumer Protection Act (CPA), patients

71
Malay Kumar Ganguly v. Sukumar Mukherjee, AIR 2010 SC 1162.
72
Kurban Hussein Mohammedali v. the State of Maharastra, 1965 AIR 1616, 1965 SCR (2) 622.
can still pursue remedies under tort law, although the onus is on them to prove that the
doctor’s or hospital’s negligence caused the harm. In State of Haryana v. Smt. Santra73, the
Supreme Court affirmed that all doctors must apply a reasonable degree of skill and care.
However, since no medical professional is infallible, liability only arises when the actions
taken deviate from what would be expected of a reasonably competent doctor. This principle
was further supported in Kanhaiya Kumar v. Park Medicare & Research Center,74 where the
court stressed that negligence must be substantiated by evidence and not presumed.

The inclusion of medical services under consumer law has been debated since 1990,
specifically regarding whether medical care falls within the definition of “services” in Section
2(1) of the CPA. A "deficiency in service" refers to any defect, imperfection, or failure in the
quality or standard of service expected under law or contract. Patients may file complaints at
the District Consumer Forum if the compensation sought is below ₹20 lakhs, at the State
Commission for claims up to ₹1 crore, and at the National Commission for amounts
exceeding ₹1 crore. Notably, filing a complaint at the district level is quite affordable.

A pivotal ruling by the Supreme Court in Indian Medical Association v. V.P. Shanta75
recognized medical services as falling within the ambit of the CPA. This ruling fostered a
legal relationship between patients and healthcare professionals under consumer protection
laws, allowing aggrieved patients to sue for compensation when harmed during treatment.

5.5 Analysis of Supreme Court Decision

While certain judgments by the Supreme Court have shown consistency, divergent rulings
from other courts have caused confusion among healthcare professionals and law
enforcement. Generally, the apex court has supported civil liability under tort in negligence
claims, reserving criminal liability under Section 304A of the IPC for only the most
egregious cases of recklessness. Nevertheless, some lower courts have extended criminal
charges beyond Section 304A to Section 304, and in rare instances, even to Section 302,
which pertains to murder.

A landmark case in this context is Jacob Mathew v. State of Punjab, where the Court
elaborated that negligence involves doing something that a cautious and reasonable

73
State of Haryana v. Smt Santra, (2005) 5 SCC 182, AIR 2000 SC 1888 .
74
Kanhaiya Kumar v. Park Medicare & Research Center, III (1999) CPJ 9 (NC).
75
Indian Medical Association v. V.P. Shanta and Ors, 1996 AIR 550, 1995 SCC (6) 651.
individual would not do or failing to do something such a person would do. In medical
contexts, negligence requires special scrutiny. Professional negligence differs from
occupational negligence, requiring unique considerations, especially when a doctor is accused
of rashness or carelessness. A mere error in judgment, momentary inattention, or an accident
does not constitute medical negligence. A physician is not liable merely because there was an
alternate treatment or a more skilled doctor might have chosen a different method. The core
issue is whether the doctor took precautions that ordinary people deem adequate. The failure
to take extraordinary precautions, which might have prevented the mishap, is not a proper
benchmark for establishing negligence. Moreover, the evaluation of negligence should
consider the knowledge and resources available at the time of the incident—not during the
trial. If the accusation is based on the non-use of particular medical equipment, the claim fails
if that equipment was not commonly accessible when the incident occurred.

A professional can be found negligent based on two conclusions: either they did not have the
expertise they claimed to have, or they failed to use their skills with reasonable diligence
under the circumstances. The measure for determining negligence is the standard of an
average competent professional in the same field. Absolute mastery or high-level skill cannot
be the benchmark for assessing alleged negligence, as not every professional possesses
exceptional abilities. In Indian law, the Bolam test continues to serve as the guiding principle
in evaluating medical negligence. However, civil and criminal negligence are distinct. An act
considered negligent under civil law may not qualify as criminal unless there is clear
evidence of mens rea (guilty mind). Criminal negligence requires a significantly higher
degree of fault, often described as "gross" negligence. Although the term “gross” is absent
from Section 304A IPC, courts interpret "rash or negligent act" to imply a gross level of
carelessness. To prosecute a doctor under criminal law, it must be shown that the action—or
failure to act—was such that no reasonable doctor would have taken that decision under
similar circumstances. The consequences must have been so apparent that the resulting harm
was almost certain. While res ipsa loquitur, i.e., “the thing speaks for itself,” is frequently
applied in tort cases to infer negligence, its use in criminal proceedings is limited and not
independently sufficient to prove criminal fault.

Another important decision was Martin F. D'Souza v. Mohd. Ishfaq76, where the Supreme
Court directed that consumer forums and criminal courts must consult a qualified medical

76
Martin F. D'Souza v. Mohd. Ishfaq, AIR 2009 SC 2049.
expert or committee before proceeding with complaints against doctors or hospitals. This
safeguard was introduced to prevent unwarranted harassment of medical professionals. The
judgment also advised police authorities not to arrest or harass doctors unless the case clearly
falls within the scope defined in Jacob Mathew; otherwise, they themselves could face legal
consequences. In Dr. S.K. Jhunjhunwala v. Ms. Dhanwanti Kumar77, the court emphasized the
necessity of a direct connection between negligence and injury. It is not enough that a patient
falls ill after a procedure; the ailment must be directly linked to poor medical care, proven
through expert testimony. Mere temporal proximity between the procedure and the
complication does not suffice. Further, the case of Superintendent, Royapettah Hospital v. R.
Lakshmi78 clarified that patients treated in government hospitals are also considered
“consumers” under the CPA. This principle was reaffirmed in V.P. Shanta and Savita Garg,
where the Supreme Court held public hospitals liable for medical negligence.

In V. Krishnakumar v. State of Tamil Nadu & Others79, the Supreme Court held the state
government responsible for negligence in a government hospital. The ruling in V.P. Samtha v.
Indian Medical Association stated that not all services in government hospitals are entirely
free, and thus, patients receiving free treatment may still qualify as consumers entitled to
legal remedy under consumer law.

5.6 Supreme Court’s Stance on the Application of Section 304A IPC in Cases of
Extreme Medical Negligence

When a charge of criminal negligence is brought before a criminal court, the presence of
mens rea—i.e., a guilty state of mind—becomes crucial. However, liability doesn't always
stem from an intention to harm. It may arise from a mental disposition so careless that it
verges on deliberate recklessness. Offenses may sometimes be motivated by recklessness or
thrill-seeking behavior. Indian Penal Code provisions, though general and not tailored
specifically for medical errors, are frequently applied to such cases.

77
Dr. S.K. Jhunjhunwala v. Ms. Dhanwanti Kumar, (2018) 11 SCC 497.
78
Superintendent, Royapettah v. R. Lakshmi, (2015) SCC OnLine NCDRC 315.
79
V. Krishnakumar v. State of Tamil Nadu & Ors., (2015) 9 SCC 388; (2015) 4 SCC (Civ) 546; AIR 2015 SC
4283.
Because a doctor’s professional reputation is at stake, no reasonable medical practitioner
would intentionally act in a way that causes harm to a patient. A physician paralyzed by fear
of legal consequences may not be able to perform procedures effectively. A nervous doctor
could compromise the quality of care during critical medical interventions. Negligence, in
legal terms, is the failure to fulfill a duty either by omission or by acting in a way that a
sensible and prudent individual would avoid.

In negligence law, three elements must be proven: a duty of care, a breach of that duty, and
consequent harm or damage. Within the healthcare field, allegations of negligence require a
nuanced approach. Neither a single moment of inattention nor a judgmental error, nor even an
unforeseen complication, alone suffices to establish liability. A doctor is not deemed
negligent simply because an alternative or better course of treatment was available or because
another, more experienced practitioner might have acted differently. Where multiple accepted
medical opinions exist, the defendant’s actions are judged against the minimum acceptable
threshold. The absence of specialized or uncommon precautions that might have averted the
incident in question cannot be the baseline for assessing negligence. The standard of care
must be evaluated based on the medical knowledge available at the time the event occurred,
not based on hindsight from the time of trial. Likewise, if a negligence claim hinges on the
non-use of certain equipment, it cannot stand if the equipment wasn’t widely accessible at the
relevant time. A doctor may be held liable under two conditions:

1. If they lacked the skill they claimed to possess, or

2. If they failed to apply their skills with adequate competence in the specific situation.

To determine negligence, the benchmark used is that of an ordinarily skilled individual in the
same profession. Not every professional is expected to demonstrate the highest level of
expertise in their field.

5.7 Vicarious Liability of Hospitals in Medical Negligence Cases

Hospitals may be held vicariously responsible for multiple reasons, including the negligent
conduct of their staff. Various high courts have held that hospital management shares the
same duty of care as the treating doctor. In Joseph v. Dr. George Moonjerly80, the Kerala High
Court observed that hospital authorities must ensure proper care through the professionals

80
Joseph v. Dr. George Moonjerly, 1994 (1) KLJ 782 (Ker. HC).
they employ. If any staff member fails in their duties, the hospital cannot escape liability as
the appointing authority.

The Madras High Court, in Aparna Dutta v. Apollo Hospitals Enterprises Ltd.81, stated that
although contractual arrangements between hospitals and doctors may vary, the institution
cannot absolve itself from responsibility for medical care provided to third-party patients. It
clarified that hospitals offering deficient services or allowing negligent procedures are liable,
regardless of employment terms with doctors.

Similarly, in Smt. Rekha Gupta v. Bombay Hospital Trust & Anr.,82 the National Consumer
Disputes Redressal Commission (NCDRC) held the hospital responsible for the actions of all
medical staff, including visiting consultants. It was ruled that even if the hospital claimed it
merely provided facilities, it could not avoid responsibility, especially when it charged
patients directly and deducted commissions from consulting fees. Hospitals are also
accountable for the conduct of part-time, visiting, or full-time consultants, including
anesthesiologists and surgeons who are not directly employed but perform surgeries under the
hospital's umbrella. Courts have consistently held that patients admitted to a hospital for
treatment trust the institution as a whole, not individual consultants. Therefore, if a procedure
is carried out negligently or without proper precautions, the hospital must bear responsibility,
even in the absence of a traditional employer-employee relationship. In cases where a senior
specialist performs surgery in a hospital and leaves postoperative care to a competent local
doctor, liability may not arise if the delegation is reasonable. However, if a visiting surgeon
fails to monitor the patient's condition or leaves the follow-up to an unqualified practitioner,
liability may still apply.

In incidents involving state-run hospitals, the courts have often held the government
accountable for the negligence of its staff, especially when there is a lack of adequate
infrastructure or skilled personnel. In Achutrao & Ors v. State of Maharashtra & Ors., the
Supreme Court ruled that although healthcare services are a government welfare function,
they do not fall under sovereign functions, and hence, the state can be held accountable for
the negligence of its healthcare personnel.

In Smt. Santra v. State of Haryana & Ors., the Supreme Court dismissed the argument that the
government is immune to liability for failed sterilization procedures performed negligently. In
81
Aparna Dutta v. Apollo Hospitals Enterprises Ltd., 2002 ACJ 954 (Mad. HC).
82
Smt. Rekha Gupta v. Bombay Hospital Trust & Anr., 2003 (2) CPJ 160 (NCDRC).
Rajmal v. State of Rajasthan,83 where a woman died due to inadequate resuscitation facilities
following tubal ligation, the government was found vicariously liable.

Another notable case is Dr. M.K. Gourikutty & Ors v. M.K. Madhavan & Ors84, where the
court held not only the state but also medical staff like anesthetists accountable for
post-sterilization complications. In State of Punjab v. Surinder Kaur85, the Punjab & Haryana
High Court reiterated that a doctor working for the state carries responsibilities on behalf of
the state, and any resulting liability falls on the government.

In R.P. Sharma v. State of Rajasthan,86 the state was held responsible for a death caused by a
mismatched blood transfusion. In Rukmani v. State of Tamil Nadu,87 the High Court ruled that
failed sterilization, resulting in an unplanned birth, entitles the affected family to
compensation due to increased financial burden. In Paschim Bangal Khet Mazdoor Samity &
Ors v. State of West Bengal88, the Supreme Court ruled that failure to provide timely medical
treatment in a government facility violates Article 21 of the Constitution, which guarantees
the right to life.

Hospitals that employ or contract practitioners from alternative systems like Ayurveda or
Homoeopathy for delivering modern allopathic treatment are liable for negligence. The
Supreme Court clarified that unless the practitioner holds qualifications under the Indian
Medical Council Act, 1956, and is registered with a recognized medical council, they cannot
legally practice allopathy. Exceptions apply only where state laws allow integration and
registration for cross-practice.

5.8 Conclusion

There is broad consensus that, like any profession, medicine must also be held accountable
for misconduct. The challenge lies not in identifying negligence but in defining it in legal
terms. Outcomes in medicine often involve uncertainties, and legal liability must consider
this reality. Striking a balance between the autonomy of medical professionals and the
protection of patient rights is crucial. Doctors need space to make independent clinical
judgments without constant fear of litigation, yet at the same time, the legal system must
83
Rajmal v. State of Rajasthan, AIR 1996 Raj. HC 80.
84
Dr. M. K. Gourikutty & etc. v. M. K. Madhavan and Ors., AIR 2001 Ker. HC (DB) 398.
85
State of Punjab v. Surinder Kaur, 2001 ACJ 1266 (P&H-HC.)
86
R. P. Sharma v. the State of Rajasthan, AIR 2002 Raj. HC (Jpr. Bench) 104.
87
Rukmani v. State of Tamil Nadu, AIR 2003 Mad. HC 352.
88
Paschim Bangal Khet Mazdoor Samity & Ors v. State of West Bengal, 1996 (4) SC 260.
protect patients from negligence and abuse. The judiciary in India generally respects this
delicate balance—steering clear of unwarranted interference in medical decision-making, yet
upholding the principle that no one is above the law. The legal system does not impose
unrealistic standards but aligns expectations with accepted medical practice and prevailing
knowledge at the time of the incident. While protecting doctors from baseless claims, the law
still mandates a basic, expected level of care and diligence from every healthcare provider.
 CHAPTER 6

WHY JACOB MATHEW CASE NEEDS RECONSIDERATION

6.1 Jacob Mathew v State of Punjab

In the landmark decision of Jacob Mathew v. State of Punjab (2005), the Supreme Court
clarified the application of negligence law concerning professionals such as doctors, lawyers,
architects, and others recognized for their specialized abilities. Any task necessitating expert
knowledge is expected to be handled only by someone with the relevant qualifications. When
an individual joins a profession that demands a certain academic standard to be
acknowledged as an expert, it is implicitly understood that they will perform their duties
using the skills they claim to have with reasonable diligence and care. Professionals are not
expected to guarantee outcomes. For instance, a lawyer cannot promise a client that they will
win the case under all circumstances. Similarly, a doctor or surgeon does not assure total
recovery or guaranteed surgical success.

The only implicit commitment such a professional makes is that they possess the required
knowledge in their field and that they will apply it with reasonable proficiency when
performing their duties. That is the expectation any individual dealing with such a
professional would naturally have. Based on this principle, a professional can be held liable
for negligence under two scenarios: either they did not have the expertise they claimed, or
they failed to apply their skills with reasonable competence in a specific case. To assess if
someone has been negligent, one must apply the standard of an ordinarily skilled and
competent person in the same profession. It is not necessary for all professionals to
demonstrate exceptional skill levels in their domain.

The rule established in Bolam v. Friern Hospital Management Committee has long been
upheld as the authoritative standard in determining the level of care expected from
professionals, especially those in the medical field. Indian courts have consistently
acknowledged and applied this rule when dealing with medical negligence claims. In tort law,
it suffices for the defendant to demonstrate that their level of competence aligns with what an
ordinarily skilled doctor would possess. If the accused doctor followed a commonly accepted
medical procedure or practice, they cannot be found negligent just because there may have
been a better alternative available.

Two critical aspects should be kept in mind. First, the evaluation of a medical act’s adequacy
is based on the knowledge available at the time of the incident, not the time of the trial.
Second, in cases where the allegation of negligence stems from not using specific equipment,
such an allegation will fail if the equipment in question was not generally accessible at the
time of the event in question.

The court emphasized that claims of negligence in the medical profession must be considered
uniquely. When deciding whether a professional, especially a doctor, acted negligently or
rashly, additional factors must be evaluated. Occupational negligence differs from
professional negligence. A mere oversight, misjudgment, or unfortunate event does not by
itself prove that a medical professional was negligent. As long as the doctor follows a
medical practice that is broadly accepted in the profession, they cannot be accused of
negligence simply because another doctor might have adopted a different approach or
treatment or because another method might have led to a better result.

When discussing whether adequate caution was taken, what matters is whether precautions
that are generally deemed sufficient based on common experience were followed. Failure to
implement extraordinary or rare precautions that might have prevented the adverse outcome
cannot be used as a standard to judge negligence. Again, the standard of care must be judged
in light of the knowledge existing at the time of the event, not during the trial. Likewise, if
the negligence accusation arises from not using specific equipment, it cannot stand if the
equipment was not readily available when the incident occurred.

A professional’s liability can be established under two findings: one, they lacked the
necessary skill they claimed to have; or two, they failed to use their skills with adequate
competence. To evaluate whether someone has been negligent, the standard applied is that of
an ordinarily skilled individual in that profession. Not every professional is required to have
the highest degree of expertise. A professional who happens to be highly skilled may offer
better services, but that cannot be the benchmark for judging another professional’s
performance when alleged negligence is under scrutiny. The Bolam case, decided in 1957,
laid down the test for determining medical negligence and remains applicable in India.
In jurisprudence, negligence in civil and criminal law is treated differently. An act may be
deemed negligent under civil law but not qualify as criminal negligence. To amount to a
criminal offence, negligence must be accompanied by mens rea—a guilty mind. For an act to
be considered criminally negligent, the degree of carelessness must be exceptionally high,
amounting to gross negligence. Negligence that doesn’t reach that level may justify a civil
suit but cannot be prosecuted under criminal law. Although the term “gross” is not explicitly
included in Section 304A of the Indian Penal Code, it is well-settled that negligence or
recklessness to constitute a criminal offence must be of such a nature that it qualifies as gross.
The phrase "rash or negligent act" in Section 304A must be interpreted as implying a grossly
negligent or rash act.

To bring criminal charges against a medical professional, it must be demonstrated that the
accused acted—or failed to act—in a manner that no reasonable medical practitioner would
consider appropriate in similar circumstances. The risk undertaken by the doctor must be so
substantial that the injury caused was highly probable.

6.2 Why does the Bolam Test need reconsideration?

In Arun Kumar Manglik v. Chirayu Healthcare Pvt. Ltd.89, the Supreme Court examined a
case of alleged medical negligence involving the death of Madhu Manglik, who passed away
due to dengue-related complications during her treatment at Chirayu Health and Medicare
Pvt. Ltd. Her husband, Arun Kumar Manglik, claimed that the hospital neglected to follow
standard medical procedures, which resulted in her premature death. The court concluded that
the medical facility failed to comply with treatment protocols outlined by the World Health
Organization (WHO) and the National Vector Borne Disease Control Programme. Notably,
there was a lapse in monitoring essential indicators such as hemoglobin and platelet levels,
which are crucial for effectively treating dengue shock syndrome.

The Supreme Court opined that it might be time to re-examine the reliance on the Bolam test,
which was a foundational element in the Jacob Mathew ruling. The court observed that
although the Bolam test had not been entirely rejected, it had faced criticism, as noted in

89
Arun Kumar Manglik v. Chirayu Healthcare Pvt. Ltd. (2019) 7 SCC 401; [2019] 3 SCR 281; 2019 INSC 43.
Jackson & Powell on Professional Negligence (5th Ed., 2002). The authors questioned
whether the Bolam test aligns with the constitutional right to life unless interpreted to mean
that reasonable care includes ensuring adequate medical provisions. Given the evolving legal
thought in England, the Indian judiciary should also reconsider the continued application of
the Bolam test, particularly in the context of Article 21 of the Indian Constitution, which
guarantees the right to health care. The law must keep pace with advances in medicine and
shift towards a patient-centric approach. While the Bolam standard has remained the guiding
rule, it must adapt to newer interpretations by courts in India and abroad.

Justice D.Y. Chandrachud stressed in the Arun Kumar Manglik case that it is rare and
inappropriate for a judge to dismiss opinions genuinely held by competent medical experts as
unreasonable. The task of evaluating the risks and benefits associated with a medical
procedure requires clinical judgment, which courts typically cannot perform without expert
testimony. Referring to Lord Scarman’s statement, he emphasized that courts must avoid
substituting expert medical opinion with their own reasoning unless the expert opinion lacks
any logical foundation. Only in such cases should the court reject the expert’s view.

In V. Kishan Rao v. Nikhil Super Speciality Hospital, the appellant’s wife experienced a
persistent fever and was admitted to Nikhil Super Speciality Hospital in Hyderabad. Without
performing a Widal test—which is a standard diagnostic tool for detecting typhoid—the
hospital diagnosed her with malaria. Despite her symptoms aligning more closely with
typhoid, the medical staff proceeded with malaria treatment. They failed to prescribe suitable
antibiotics and did not reconsider their diagnosis in light of her worsening condition. As a
result of this misdiagnosis and improper care, her health rapidly declined. The correct
diagnosis of typhoid was only made when her condition had severely deteriorated. Although
she was moved to another hospital for further treatment, she did not survive. Kishan Rao
claimed that the hospital’s neglect in conducting appropriate tests and its delay in delivering
correct medical care constituted serious medical negligence, ultimately leading to his wife's
death. The two-judge bench of the Supreme Court in this case critiqued the Bolam test for its
limitations. Although the court had accepted Bolam as a useful guideline in past judgments,
the test has drawn criticism in its country of origin. According to Michael Jones, in his
authoritative book Medical Negligence, the Bolam test has a dangerous downside: if courts
rely too heavily on expert opinion, there is a risk that medical standards will decline. The
author warned that this test could potentially excuse carelessness as long as it occurs
frequently enough. Jones argued that the test should only apply in cases where a treatment,
although risky, has previously benefited other patients, and not in general cases of medical
mishaps based solely on their frequency.90

In the 2020 ruling of Maharaja Agrasen Hospital v. Rishabh Sharma, the Supreme Court
reiterated that the Bolam test had lost much of its persuasive power. Even though it was not
outright rejected, the test had come under increasing criticism, especially in light of Jackson
& Powell’s findings. The court reiterated the argument that unless interpreted to include a
guarantee for adequate medical care, the Bolam test may fall short of upholding the right to
life. These legal developments, reflecting changing attitudes in England, prompted the court
to suggest that Indian jurisprudence should also revisit the parameters laid out in the Bolam
decision. In England, the Bolam standard is now treated more as a practical or evidentiary
rule rather than a legal doctrine. It no longer holds the same authoritative status. However,
since the three-judge bench in Jacob Mathew v. State of Punjab, led by then Chief Justice
R.C. Lahoti, accepted the Bolam test as the appropriate standard for assessing medical
negligence, subsequent courts have followed that precedent. Consequently, despite growing
criticism, the Court chose not to deviate from the ruling in Jacob Mathew.

Nonetheless, in more recent decisions like Arun Kumar Manglik v. Chirayu Health and
Medicare Pvt. Ltd., the Court emphasized that the standard of care as laid down in Bolam
must now be interpreted in light of newer judicial pronouncements from both Indian and
English courts. The shift toward a patient-centered legal approach and the evolving
understanding of a doctor’s duty of care under Article 21 require that medical negligence
standards evolve to match contemporary expectations.

90
Michael Jones, Medical Negligence (4th ed., 2008).