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Medical Negligence Laws in India 2020

Medical Negligence Laws in India 2020

Medical Negligence and Law in India 2020: The Complete Guide

In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms with one of these proper standards, then he is not negligent

Overview 


Medical negligence refers to the wrongful actions done by the medical professionals in pursuit of their profession while dealing with their patients. Most commonly involving Doctors and Hospitals.

But giving a standardized definition to the word medical negligence would certainly be a tough task.

The word “Medical Negligence” is not defined or referred to in any of the Indian Laws.

In the case of Moni vs State Of Kerala on 4 February 2011

“In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms with one of these proper standards, then he is not negligent”


Medical Negligence laws in India have been influenced by a series of cases over the period of time about which we will be talking about in this article.

This article will help you educate yourself on the laws of medical negligence in India if you are a doctor or patient.


If a topic catches your eye feel free to skip ahead don’t forget to check out the big debate

Medical Negligence Laws and Legal Framework in India 


There are no laws specifically for medical negligence in India

The cases of medical negligence in India are addressed under 3 Sections

  1. Criminal Act
  2. Consumer Protection Act 
  3. Civil Act

Please Note, The victims of medical negligence should file a lawsuit against the accused body within a period of 2 years Max

And the consequences of being accused of medical negligence can fall under 3 category 

  1. Criminal Liability 
  2. Monetary Liability
  3. Disciplinary Actions



Bolam Test

Bolam test is basically a peer review

In case of negligence involving medical professionals the accused should be able to demonstrate that any medical professional in their field would find their manner of actions acceptable.

The name Bolam test is given due to a key judgment in the case Bolam v Friern Hospital Management Committee 

Medical Negligence Laws in India 2020


Criminal Negligence and Liability

Criminal Negligence




Medical negligence law in India is covered under the criminal act of death by negligence  


Under section 340A of IPC

Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 

A doctor will be held liable similarly if his negligent actions lead to the death of a patient.

But this can be defended by the doctor

Under Section 80 of IPC

Nothing is an offense which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.


Meaning that the doctor will not be liable if the cause of the death is an accident and all the actions by the doctor that were involved in the accident were well within the standards of medical practice.

And

Under Section 88 that an act can not be said to be an offense if the act was done in good faith.

A surgeon who knows that a particular operation can cause the death of his patient X, who suffers from an illness or pain, but not intending to cause X’s death and intending in good faith that X benefits from that operation, with X’s consent, has committed no offense.

Consumer Protection Act and Monetary Liability

Consumer Protection Act

Supreme Court decision 1995 Indian Medical Association v. VP Shantha brought the medical profession under “Services” which means that the patients are protected under the consumer protection act 


But the law only gives power to patients who have paid for the medical services. This act does not apply in the case that the services were offered for free.

If the services were offered for free you can only sue the doctor under criminal negligence and civil negligence.

A complaint of negligence can be filed under consumer court at 

  1. District Forum: For cases with claims less than 20 Lakh
  2. State Commission: For cases with claims below 1 crore 
  3. National Commission: For cases with claims above 1 crore

Civil Negligence and Monetary Liability

Civil law



Even if the services were offered for free the dependents of the patient (If Alive) can appeal to Civil Law.







In these cases the burden of evidence lies on the head of the patient. He will have to produce sufficient evidence that the suffering caused to him was due to negligent behavior by the patient or doctor.

If a civil liability lies on a hospital it is compulsory to make performing doctor or staff a party in the liability and it does not matter if medical professionals are permanent of visiting faculty


Can the doctor’s practice license be canceled?


The Medical Council of India and State Medical Council can impose disciplinary actions in cases of negligence and suspend the doctor from practicing permanently or suspend his practice for a temporary basis. 

Differentiating between Civil and Criminal Negligence 



It must be noted that Civil and Criminal negligence is not exclusive which means that a case can involve both criminal and civil liabilities.

There are no defined criteria in determining whether the negligence is criminal or civil. Let’s examine a cases study to throw some light on the topic

Dr. Suresh Gupta v. Govt. of NCT Delhi

Dr. Suresh Gupta was a plastic surgeon who was accused of the death of a 38-year-old man who was being operated for nasal deformity.

The doctor was accused of “not introducing a cuffed endotracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage”

The High court had found a doctor to be criminally liable but the supreme court
According to supreme court

for fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as “gross negligence” or recklessness”

“Thus a doctor cannot be held criminally responsible for a patient’s death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State.”

Actions that classify as Medical Negligence 



The list is based on cases previously identified as negligence

  1. using the wrong drug or gas in the course of anesthesia

  2. Assigning  responsibility to a junior knowing that he or she is  incapable of performing the responsibility assigned 

  3. Removing wrong limb

  4. Performing an operation or procedure on a wrong patient

  5. Giving a drug to the patient to which he is allergic without looking at the outpatient card having a warning 

  6. Leaving items inside the patient 

  7. A person who is not qualified in a certain branch of medicine but has been giving treatment in that branch of medicine.

  8. A senior doctor who has agreed to do a surgery but takes on a different surgery at the time of surgery leaving behind a junior doctor who might be competent and has done the procedure without any mistake has been held responsible for medical negligence

  9. Surgery without consent, Consent was taken for diagnostic procedure/surgery can not be used for additional therapeutic surgery unless it’s a life-threatening situation  

  10. Premature babies are given a blood transfusion and oxygen supplements to prevent retinopathy of prematurity, Not taking proper care and not consulting a pediatric ophthalmologist has been held accountable for negligence 

Rights and IPC sections to quote for victims 

Rights and IPC sections  Medical Negligence



Patients rights  involved in Medical Negligence Cases

  1. Article 21: Commonly called Right to life

    Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law


  2. Article 32: Right to Constitutional Remedy

    individuals can move to the Supreme Court for justice when they feel that their rights have been ‘unduly deprived’


IPC Sections involved in Medical Negligence Cases

  • Section 88 of IPC what is an offense?

    Nothing which is not intended to cause death is an offense by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm

  • Section 90 of IPC what is a consent

    if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception;

    or Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and 
    consequence of that to which he gives his consent;

    or Consent of child.—unless the contrary appears from the context if the consent is given by a person who is under twelve years of age.

  • Section 304A: Negligence Punishment

    Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

  • Section 377: Causing hurt by act endangering life or personal safety of others.

    Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

Defense Arguments for Doctors in cases of Medical Negligence


  • Section 52: This section tells us what good faith is

    “Good faith”.—Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention.



  • Section 80: What is an accident according to law?

    “Nothing is an offense which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution”


  • Section 81: a harm is done to prevent a bigger harm

    “Nothing is an offense merely by reason of its being done with the knowledge that it is likely to cause harm if it is done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property”

Supreme Court Guidelines for Protecting Doctors from fraud cases

The cases of medical negligence of doctors, Which was both embarrassing and Harassing for them.

After consulting with the Medical Council of India the Supreme Court laid certain guidelines to protect doctors for unjust prosecution

  1. A private complaint may not be entertained unless the complainant has produced prima facie evidence in the court in the form of a credible opinion given by another competent doctor

  2. Investigation officer should obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice

    who can normally be expected to give an impartial and unbiased opinion applying Bolam test to the facts collected in the investigation

  3. Doctors may not be arrested in a routine manner unless the arrest is necessary for furthering the investigation or for collecting the evidence or if the investigation officer is satisfied that the doctor may flee.

Answer one of the biggest debate in medical negligence cases


Life or Law?

Let’s take an example

Usually when someone shows symptoms of a heart attack the doctor before taking the patient to a cardiac care unit injects the patient with pethidine or morphine

because you may understand in cardiac cases every second matters.

However, In some cases the patients died before they could reach the hospital.

When the medical profession was brought under the consumer protection act in 1995

many doctors who injected patients with pethidine and morphine started facing lawsuits of medical negligence against them

Due to this reason, many doctors stopped giving injections of morphine and pethidine to patients even in emergencies where there were clear symptoms of a heart attack

out of the fear that if the patient died the doctor may have to face a lawsuit.

What do you think about this? Share your thoughts in the comment section

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