PROLOGUE

Medical negligence refers to a breach of duty of care by a medical practitioner or healthcare

provider, which results in harm, injury, or death of a patient. In India, medical negligence
laws have been put in place to ensure that patients receive adequate care and compensation
for any harm caused by medical professionals.

The Indian courts have developed the principle of "reasonable care" as the standard for
medical practitioners to adhere to when providing medical treatment to patients. This
principle implies that a medical practitioner must exercise a reasonable degree of skill and
care while treating a patient. Failure to do so may result in legal action against the
practitioner for medical negligence.

The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002,
also provide guidelines for medical professionals to follow. These guidelines outline the
duties and responsibilities of medical practitioners, including the need to obtain informed
consent from patients, maintain medical records, and adhere to medical ethics.

Meaning Of Medical Negligence

Medical negligence, also known as medical malpractice, is a legal concept that refers to the
failure of a healthcare professional to provide a standard of care that meets the required level
of competence and skill. This failure can lead to harm or injury to the patient, and can occur
through an act of omission or commission by the healthcare professional. When medical
negligence occurs, patients have the right to seek legal redress and compensation for their
injuries..

Types Of Medical Negligence

Here are some of the most common types:

1. Misdiagnosis:
When a healthcare professional fails to properly diagnose a patient's medical
condition, or provides a diagnosis that is incorrect or delayed, this can lead to harm or
injury to the patient.
2. Surgical Errors:
These can include errors in administering anesthesia, performing surgery on the
 wrong body part, leaving surgical instruments inside the patient's body, and other
similar errors.

3. Medication Errors:
These can include prescribing the wrong medication or dosage, failing to account for
potential drug interactions, or administering medication incorrectly.
4. Failure to Obtain Informed Consent:
When a healthcare professional fails to obtain the patient's informed consent before
performing a medical procedure, the patient may not have been aware of the risks
involved and may have suffered harm or injury as a result.
5. Failure to Provide Adequate Follow-Up Care:
After a medical procedure or treatment, healthcare professionals have a duty to
monitor the patient's condition and provide appropriate follow-up care. Failure to do
so can result in harm or injury to the patient.
6. Birth Injuries:
Negligence during childbirth can result in injuries to the baby or mother, such as brain
damage, paralysis, and other serious injuries.
7. Anesthesia Errors:
Anesthesia errors can occur when a healthcare professional administers too much or
too little anesthesia, or fails to monitor the patient's vital signs during the procedure.

It's important to note that each case is unique, and the specific circumstances surrounding
the medical negligence will determine the appropriate legal action that can be taken.

Essentials Of Medical Negligence

To establish medical negligence, certain essential elements must be proven. These essentials
include:

1. Duty Of Care:
The healthcare professional must have had a duty of care to the patient. This
means that they had a legal obligation to provide care that meets the expected
standard of care.
2. Breach Of Duty:
The healthcare professional must have breached their duty of care by failing to
 provide treatment that met the required standard which can occur through an act
of omission or commission.
3. Causation:
The breach of duty must have caused harm or injury to the patient as a direct
result of the healthcare professional's breach of duty.
4. Damage:
The patient must have suffered harm or injury as a result of the healthcare
professional's breach of duty. This harm or injury can be physical, emotional, or
financial.

It is important to note that in order to establish medical negligence, all four of these elements
must be proven. The burden of proof lies with the patient or their legal representative.
It is important to note that the standard of care expected of healthcare professionals may vary
depending on factors such as the patient's medical history, age, and other individual
circumstances. In addition, not all unfavorable outcomes in medical treatment are necessarily
the result of medical negligence. It is only when the above-mentioned essentials are satisfied
that medical negligence can be established. If all of these elements are present, the patient
may be entitled to compensation for their damages, including medical expenses, lost income,
pain and suffering, and other related expenses.

Challenges Faced By Victims In Medical Negligence In India

1. Lack of awareness: Many people in India are not aware of their rights in cases of
medical negligence, and may not know how to take legal action.
2. High cost of legal proceedings: Legal proceedings can be expensive in India, and
victims may struggle to afford the cost of legal representation and court fees.
3. Lengthy legal process: The legal process for medical negligence cases in India can be
lengthy, which can be emotionally and financially draining for victims.
4. Limited access to medical records: Victims may have difficulty obtaining medical
records, which are crucial for proving medical negligence.
5. Insufficient evidence: Proving medical negligence can be challenging, and victims
may struggle to gather sufficient evidence to support their case.
6. Lack of support: Victims may feel isolated and unsupported, as there is often limited
emotional or social support available for those who have suffered from medical
negligence.
 7. Influence of medical professionals: Healthcare professionals may have significant
influence and power, which can make it difficult for victims to pursue legal action
against them.

These challenges can make it difficult for victims of medical negligence in India to seek
justice and compensation for their injuries. It is important for victims to seek legal advice as
soon as possible and to work with experienced legal professionals who can help them
navigate the legal process and overcome these challenges.
Res Ipsa Loquitur Legal Maxim In Medical Negligence
"Res ipsa loquitur" is a legal maxim that is often invoked in medical negligence cases to
establish a presumption of negligence. The phrase is Latin for "the thing speaks for itself."
In the context of medical negligence, "res ipsa loquitur" means that the circumstances
surrounding the injury or harm suffered by the patient are such that they would not have
occurred without negligence on the part of the healthcare professional. In other words, the
injury or harm is such that it suggests that the healthcare professional was negligent, and the
burden of proof shifts to the healthcare professional to prove that they were not negligent.
To establish "res ipsa loquitur" in a medical negligence case, the following conditions must
be met:

1. The injury or harm must be of a kind that does not ordinarily occur in the absence of
negligence;
2. The injury or harm must have been caused by an instrumentality within the exclusive
control of the healthcare professional; and
3. The injury or harm must not have been caused or contributed to by any action or fault
on the part of the patient.

If these conditions are met, the plaintiff can rely on the principle of "res ipsa loquitur" to
establish a presumption of negligence on the part of the healthcare professional.

It's important to note that the principle of "res ipsa loquitur" is not applicable in all medical
negligence cases, and each case must be evaluated on its own merits. Additionally, even if
"res ipsa loquitur" is established, the plaintiff must still prove all other elements of medical
negligence, including duty of care, breach of duty, causation, and damages.

For example, if a surgical patient suffered from a foreign object being left inside their body
after surgery, res ipsa loquitur may be applied, as this type of harm would not ordinarily
occur in the absence of negligence, and the facts suggest that the healthcare professional was
responsible for leaving the object inside the patient's body.

Case Laws Related to Legal Maxim In India

There are several case laws in India where the principle of res ipsa loquitur has been applied
in cases of medical negligence.

Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole (1969):

In this landmark case, the Supreme Court of India held that the principle of res ipsa loquitur
could be applied in medical negligence cases when the facts and circumstances of the case
suggested that negligence had occurred, and when the burden of proving negligence was on
the defendant.

Spring Meadows Hospital and Anr. v. Harjol Ahluwalia (1998):

In this case, the National Consumer Disputes Redressal Commission (NCDRC) applied the
principle of res ipsa loquitur to a case where a surgical patient suffered from an injury to their
urethra during surgery. The NCDRC held that the injury was of a type that would not
ordinarily occur in the absence of negligence, and that the burden of proof was on the
hospital to prove that they were not negligent.

Jacob Mathew v. State of Punjab (2005):

In this case, the Supreme Court held that res ipsa loquitur could be applied in medical
negligence cases where the injury was of a type that would not ordinarily occur in the
absence of negligence, and where the facts surrounding the injury suggested that the
healthcare professional was responsible.

Adjudication Liability In Medical Negligence In India

Adjudication of liability in cases of medical negligence in India is generally done through the
legal system, with cases being heard in civil courts, consumer forums, and medical councils.

In civil courts, victims of medical negligence can file a civil suit seeking compensation for
damages caused by the negligence.

In consumer forums, patients or their family members can file a complaint against the
healthcare professional or hospital, seeking compensation for any loss or harm suffered as a
result of medical negligence.
In addition to civil courts and consumer forums, medical councils in India are responsible for
regulating the conduct of healthcare professionals. Patients can file complaints with medical
councils if they believe that a healthcare professional has breached their ethical obligations or
standards of care. If the council finds that the healthcare professional has acted negligently, it
may take disciplinary action against them, including revoking their license to practice
medicine.

Related Provisions For Medical Negligence In India

In India, medical negligence cases are governed by the Indian Penal Code, 1860, the
Consumer Protection Act, 1986, and various judgments by the Supreme Court and High
Courts. Here are some provisions and defenses related to medical negligence cases in India:
Provisions:

Section 304A of the Indian Penal Code: This section deals with causing death by
negligence. If a medical professional causes the death of a patient due to negligence, they can
be punished with imprisonment for up to two years or a fine, or both.
Section 337 of the Indian Penal Code: This section deals with causing hurt by an act
endangering life or personal safety. If a medical professional endangers the life or safety of
a patient due to negligence, they can be punished with imprisonment for up to six months
or a fine, or both.
Section 338 of the Indian Penal Code: This section deals with causing grievous hurt by an
act endangering life or personal safety. If a medical professional causes grievous hurt to a
patient due to negligence, they can be punished with imprisonment for up to two years or a
fine, or both.

The Consumer Protection Act, 1986: Under this act, patients have the right to file
complaints against medical professionals and seek compensation for medical negligence.

Defenses:
 1. Error of Judgment: If a medical professional makes a reasonable and honest error in
judgment while treating a patient, it may not be considered negligence.
2. Emergency Situations: If a medical professional acted in good faith to save a patient's
life in an emergency situation, they may not be considered negligent.
3. Contributory Negligence: If the patient contributed to their injury or death through
their own negligence, the medical professional may not be held entirely responsible.

4. Section 80 of the Indian Penal Code, 1860, says that anything which happens as a
result of an 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 is not an offense.
5. Section 81 of the Indian Penal Code, 1860, states that if anything is done merely by
the reason that it is likely to cause harm but if the same is done without any intention
to cause harm and in good faith in order to avoid other damages to a person or his
property is not an offense.
6. Section 88 of the Indian Penal Code, 1860, says that no one can be made an accused
of any offense if he performs an act in good faith for the good of other people and
does not intend to cause harm even if there is a risk involved and the patient has given
the consent explicitly or implicitly.

Supreme Court Landmark Judgements

There have been several landmark judgments by the Supreme Court of India in cases of
medical negligence. Here are some of the significant ones:

Bolam vs. Friern Hospital Management Committee (1957)

In this case, the court established the "Bolam Test," which states that a medical professional
is not guilty of negligence if they have acted in accordance with a practice accepted as proper
by a responsible body of medical men skilled in that particular field.

Indian Medical Association v. V.P. Shantha (1996)

This case established the concept of 'informed consent,' which means that a patient must be
fully informed of the risks involved in a medical procedure before giving consent. The
Supreme Court held that failure to obtain informed consent from a patient can amount to
medical negligence.

Samira Kohli v. Dr. Prabha Manchanda (2008)

This case addressed the issue of vicarious liability in cases of medical negligence. The
Supreme Court held that a hospital can be held liable for the negligence of its employees,
even if the hospital itself was not directly at fault.
CONCLUSION
Medical negligence is a serious issue in India that can result in harm to patients, loss of life,
and emotional distress for their families. The legal framework for medical negligence in India
is based on the Indian Penal Code, the Consumer Protection Act, and various judgments by
the Supreme Court and High Courts.
Medical professionals have a legal and ethical duty to provide the best possible care to their
patients and to avoid any harm caused due to negligence. Patients also have the right to seek
compensation for any harm caused due to medical negligence.