Medical negligence means negligence which is the consequence of failure on the part of the doctor to act according to the medical standards in use that are being used by a normally and rationally competent man practicing the same profession.

In Mrs. Ravnamma v. M/s Vijaya Hospital case, the court held that medical negligence may be defined as want of reasonable degree of care and skill or willful negligence on the part of the medical professional in the treatment of the patient with whom a relationship of the professional attendant is created, that results in his bodily injury or to the loss of his life.

The Burden of Proof-

 The burden to prove the negligence is on the complainant who may be the patient and or his relative. The injured patient has to prove that the doctor acted negligently in providing care and the injury was the result of such negligence. Sometimes the burden of proof shifts on the defendant. In such a situation, facts are so clear that it does not require to be proved by the complainant but the defendant has to prove its innocence.

Elements of negligence to be proved by the complainant-

Every medical practitioner takes payment from the patient to treat him. Once accepted, the doctor-patient relationship is established and the doctor is duty-bound to treat the patient. If the doctor did not do his duty properly as expected from a reasonably competent doctor and it resulted in some injury or damage to the patient. To claim damages the patient has to prove four legal elements which are a professional duty owed to the patient by the doctor, breach of such duty, the injury was the consequence of such breach, and resulting damages.

A patient going to a doctor anticipates medical treatment with all the knowledge and skill that the doctor has to treat the medical problem. The link between the doctor and the patient takes the form of a contract retaining the essential elements of the tort. A doctor owes some duties to his patient and a breach of any of those duties gives a cause of action for negligence against the doctor. The doctor must take informed consent from the patient before starting the patient’s diagnostic tests and therapeutic management. The services rendered by the doctors come under the provisions of the Consumer Protection Act, 1986 and a patient can look for redressal of injustice from the Consumer Courts.

There could also be a large number of cases in which a health professional may act in an extremely negligent manner. As an example, during a course of treatment, a person suffers injury or dies due to lack of care and reasonable skill, the commission of illegal acts beyond the scope of the duty of the medical practitioner, if anesthesia prolongs and it becomes impossible to revive the patient, prescription of drugs without first examining the patient, needle which breaks while injecting, failure to communicate the history of the patient to the subsequent doctor, failure to make inquiries regarding previous treatment, failure to discharge the duties on the part of the assistants of the doctors when such duties ought to have been discharged by the doctor himself, making a wrong diagnosis due to absence of skill and care, adequate arrangements which were not made in time to meet the emergency, etc.

The meager error of judgment is not negligence

Hucks v. Cole case– Not everyone or a mere error of judgment can be castigated as negligence in a legal sense. It is only such miscalculation that a rationally competent professional man, acting with normal care might commit. If someone professes to be a specialist within the field, then the best degree of skill is required. A doctor was not to be held negligent for mischance or misadventure or an error of judgment. A doctor is only liable when he fell below the sanctioned standard of a reasonably competent practitioner in his field to such so that his conduct might be deserving of consensus or inexcusable.


 The hospitals are equally to blame for the actions of paramedical staff and or its doctors. According to the legal maxim & rule of vicarious liability, an employer is accountable for the negligence of its employees. So, the hospitals become legally responsible for any medical malpractice case done by its doctor or the other medical professional who has been on roll with the hospital. Similarly, Nursing Homes may be held negligent if the conduct of the nurses betrays a lack of competence to execute the instructions delivered to them in the treatment of a patient.

In the case of Achtrao Haribhan Khodwa v. The State of Maharashtra, the Supreme Court held the State is liable for the acts of negligence committed by the doctors in a Government-run hospital. In this case, after a normal delivery and simple sterilization, the woman had died on account of peritonitis caused by a towel mop left inside the abdomen.


  1. Civil laws under Tort The negligence under tort involves the three ingredients viz. a) a legal duty to exercise due care b) Breach of the duty c) Consequential damages. All three have to be proved by the complainant. The extent of liability will depend on the damages done.
  2. Civil Laws under the breach of contract– The doctor undertakes to treat the patient on acceptance of fees and impliedly promises to exercise proper care and skill. Any breach in such exercise of proper care and skill can draw him for the claim for compensation.

Supreme Court in Indian Medical Association v. V. P. Shanta held that in the medical profession the relationship between the doctors and the patients is a contract and if a person uses the services of a doctor, he would become a user of the service rendered by the doctor and if the doctor has been deficient in his service, the user has a remedy against the doctor.

3. Statutory Laws– A medical practitioner held for medical negligence can be punished by canceling or suspending the license to practice and or compensation for the damages

4. Criminal action under Section 304A, 337, and 338- Under Section 304A, anybody who causes death by rash and negligent act amounting to Culpable Homicide not amounting to murder will be punished for criminal negligence. 

Criminal Negligence is defined as gross neglect or failure to exercise reasonable proper care and precaution to guard against injury, either to the public or to an individual. Using proper care is considered a vital duty of the accused person.

It is a bailable offence punishable up to two years of imprisonment and a fine.

Under Section 337 and 338 punishable when damage results in grievous hurt caused because of gross negligence. In criminal law, the extent of accountability is contingent on the amount and level of negligence.

5. Consumer Protection Act– Supreme Court in Poonam Verma v. Ashwin Patel held that the patient is a consumer as defined in Section 2(d)(ii) of the Consumer Protection Act 1986 as he hires or avails the doctor’s services for consideration and so he is to be awarded compensation, for the loss or injury suffered by him, due to negligence of the doctor, by applying the same test, as applied in an action for negligence to any person under the law of Tort.


A person who holds himself to be able to give medical advice and treatment indirectly takes up that he has the skill and knowledge for the purpose. Such an individual when consulted by a patient owes him certain duties like the duty of care for taking the decision whether to undertake the case or not, the duty of care to decide what treatment is to be given to the patient, the duty of care in the management of that treatment, the duty of taking informed consent after making clear the risks and consequences of the treatment provided to the patient, the duty to grant proper prescription, the duty to issue fitness, sickness or leave certificate, not for financial or other benefits, etc. A breach of the mentioned duties gives a right of action to the patient for the negligence. The practitioner must not only use a reasonable degree of skill and knowledge but must also exercise an appropriate degree of care.        


  • Sidaway v Bethlem Royal Hospital Governors: The claimant suffered from pain in her neck, right shoulder, and arms. Her neurosurgeon took her consent for cervical cord decompression but did not include in his explanation the fact that in less than 1% of the cases, the said decompression caused paraplegia. She developed paraplegia after the spinal operation. Rejecting her claim for damages, the court held that consent did not require an elaborate explanation of remote side effects. In dissent, Lord Scarman said that the Bolam principle should not apply to the issue of informed consent and that a doctor should have a duty to tell the patient of the inherent and material risk of the treatment proposed.
  • Maynard v West Midlands Regional Health Authority- The patient had symptoms of tuberculosis but both the consultant physician and the consultant surgeon had an opinion that Hodgkin’s disease, carcinoma, and sarcoidosis were also possibilities, the primary of which if present would have needed remedial steps to be taken in its early stages. Rather than awaiting the results of the sputum tests, the consultants did a mediastinoscopy to get a biopsy. The inherent risk of injury was to the left laryngeal recurrent nerve, also after the operation was properly done. In the proceeding, only tuberculosis was confirmed. Sadly, the risk became a reality and the patient suffered paralysis of the left plica. The choice of the physician and also the surgeon to proceed was said by their expert peers to be reasonable in all situations.                                          


                                 RIGHT TO HEALTH 

Article 21 of the Indian Constitution provides that not everybody shall be deprived of his life and or personal liberty except following the procedure made by law. Article 21 from the point of health includes the right to health, the right to doctor’s assistance, right to a pollution-free environment.

 The Universal Declaration of Human Rights adopted by the general assembly of the United Nations on the 10th December 1948, states that everyone has the right to life, liberty, and security of person. It also states that everybody should have a good quality of living adequate for the health and wellbeing of himself and his family including food, clothing, housing, treatment and necessary social services and right to security in case of unemployment, sickness, disability, widowhood, adulthood or other lack of livelihood in conditions beyond his control.

The framers of the Indian Constitution were gravely influenced by the concept of ‘Human Rights’ which they included in the Constitution as Directive Principles.

Article 39(E) of the Constitution states that all citizens shall equally have the right to an adequate means of livelihood and that the health and strength of workers and tender age of children are not abused. 

Article 39(F) states that children are provided good opportunities and facilities to develop in a healthy manner and conditions of freedom and dignity and that childhood and also the youth are protected against exploitation and moral and material abandonment.

Article 41 confers the right to work, the right to education, and the right to public assistance in cases of unemployment, old age, sickness, and disablement.

Article 42 requires the State within the limits of its economic capacity and development, to make effective provisions for securing human conditions at work and also make provisions for maternity relief.

Article 47 lays down the duty of the State to regard as among its primary duties in raising the level of nutrition and standard of living of its people and the improvement of public health. The State should impose prohibition of the consumption of intoxicating drinks and intoxicating drugs which are injurious to health.

Article 48A obligates the State to endeavor to protect and improve the environment for public health. The State must provide for the protection and improvement of a healthy and clean environment.

Article 51A(g) states that it is the fundamental duty of each citizen to preserve and improve the natural environment comprising forests, lakes, rivers, wildlife to own compassion for living creatures.


  • Municipal Council, Ratlam v. Vardhichand– In this case, residents of Ratlam, Vardhichand filed a complaint that the Municipality had failed to prevent the discharge of malodorous fluids from the nearby alcohol plant into the public street-Nala and provide sanitary facilities on the road. Supreme Court asked the Municipality to stick to the statutory duties as provided in Article 47 of the Constitution and put a stop to the effluents from the alcohol plant from flowing into the Nala or street and remove unhygienic conditions amounting to nuisance to the general public. It further stressed that Article 47 makes it a paramount primary duty on the State or Municipality to take steps to prevent a pollution-free environment and improve public health.
  • M.C. Mehta v. Union of India (Ganga pollution case)- This case refers to Article 21 for the right to health regarding the pollution-free environment. Justice Singh ordered the closure of industries that were polluting river Ganga as life, health and ecology have greater importance for the people than the unemployment and loss of revenue.
  • Union Carbide Corporation v. Union of India also called Bhopal Gas Tragedy

This case refers to Article 21 for the right to health. In this case, there was leakage of MIC (methyl isocyanate) gas from the Union Carbide Corporation at Bhopal on 2-3 December 1984. It was reported that more than 3000 people died the same night and two lakh persons were taken ill of various ailments. In this case, Supreme Court held that the Union Carbide Corporation will compensate the victims and their relatives and also for the injuries to unborn children whose congenital defects were because of MIC toxicity inherited as a result of the accident.

  • Dilip Basu v. The State of Bengal– This was a writ petition in the Supreme Court and was related to Articles 21, 22, 32, and 226. The court held that Article 21 guarantying the right to life and personal liberty is a sacred and cherished right under the Constitution of India. Article 21 has been held to include the right to live with human dignity and thus it would also within itself a guarantee, against torture and assault by the State or its functionaries.
  • Hinch Lal Tiwari v. Kamka Devi– This case refers to Article 21 for the right to health concerning the pollution-free environment. In the instant case, the Supreme Court ruled that material resources of the community like forests, tanks, ponds, hillocks, mountains, etc are nature’s bounty. They maintain a delicate ecological balance. They have to be protected for the enjoyment of life which is the essence of Article 21 of the Constitution. The Court held that the Pond’s land is not to be allotted for the residential purpose.
  • Paschim Bengal  Khod Majdoor Samiti and others v. Government of West Bengal- This case refers to health and Article 41 and 42 making it the duty of the State to provide the treatment in sickness and disablement. One member of the said Samiti fell from the train and got a head injury for which he needed Neurosurgeon to operate on him. However, he was turned down by many hospitals due to a lack of medical facilities and the non-availability of a neurosurgeon. So, he sued the government for not providing adequate facilities in the State hospital. The Supreme Court held that it is the responsibility of the State to provide facilities for treatment in the State-run hospitals and held this inability to provide Neurosurgeon in the State hospital violation of Article 41, 42 to be read with Article 21 and penalized the Bengal Government with a fine of Rupees Twenty Five Thousand. It was held that life without health is no life at all.


  1. This article deserves a proper read in order to digest the heavy legal implications cited here. Thank you for properly bringing these legal facts to our notice.

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