Legal Article on Medical Negligence and Malpractice

Legal Article on Medical Negligence and Malpractice 

Legal Article on Medical Negligence and Malpractice
Legal Article on Medical Negligence and Malpractice

Author -Ira Bhandula (student of Bharati Vidyapeeth University, Department of Law, Paschim Vihar)


In recent times, medical negligence has emerged as a significant concern in India. Despite being considered one of the noblest professions, the medical field is not exempt from instances of negligence, which can result in the loss of a patient’s life or severe physical impairment. Tragically, there have been cases where incompetent or poorly educated doctors have intentionally victimized innocent patients. The extent of negligence or intentional misconduct by medical professionals has often led to legal disputes.The objective of this paper is to examine the notion of negligence within the medical field, taking into consideration the Supreme Court of India’s interpretation of the law.


The medical profession holds a position of great honor among all other professions in India. Patients often regard doctors as godlike figures, believing them to be infallible. However, this perception does not align with reality, as doctors are, in fact, human beings prone to making mistakes. Doctors may unintentionally commit errors, and even the support staff may display carelessness at times. When two acts of negligence occur, they can lead to a much larger problem, possibly due to gross negligence. In such situations, it becomes crucial to identify the party responsible for the negligence and the circumstances under which it occurred.

In a nation dedicated to upholding the principles of justice, such issues are brought before the court where judges are entrusted with the responsibility of making decisions. Nevertheless, determining negligence on the part of doctors poses a challenge for judges, as they lack expertise in the field of medical science. Hence, their judgments rely heavily on the opinions of experts. Judges employ the fundamental principles of law in conjunction with the prevailing legislation to arrive at a verdict. Reasonableness and prudence serve as the guiding principles in this process.


It is a challenging task to provide a precise definition of negligence; nevertheless, this concept has been acknowledged in the field of jurisprudence. In India, the authoritative work on this subject is ‘The Law of Torts’ authored by Ratanlal and Dhirajlal. Negligence has been described as follows: Negligence refers to the violation of a duty caused by the failure to perform an action that a reasonable person, guided by the usual considerations that govern human conduct, would do, or by performing an action that a prudent and reasonable person would not do. Actionable negligence occurs when there is a failure to exercise ordinary care or skill towards an individual to whom the defendant owes the responsibility of providing such care or skill. As a result of this negligence, the plaintiff has suffered harm to their person or property.

The concept encompasses three elements of negligence:

(1) The legal obligation to exercise reasonable care by the accused party towards the party filing the complaint, within the boundaries of their duty.

(2) Failure to fulfill this duty,

(3) Resulting in consequential harm.

Medical Negligence

When a medical professional service provider engages in unethical behavior, such as manipulating medical knowledge or licensing, it not only constitutes negligence but also resembles a form of terrorism.

In the matter of Poonam Verma v. Ashwin Patel & Ors, the Supreme Court deliberates on the various forms of medical negligence. The court determined that negligence can take on multiple forms, including active negligence, collateral negligence, comparative negligence, concurrent negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful negligence.


In accordance with the linglish language, an individual who engages in a particular activity as a full-time occupation, for payment, or to sustain their livelihood is referred to as a professional. These individuals possess a comprehensive understanding of the specific conventions, protocols, and etiquettes associated with their respective professions. Professionals are bound by a set of ethical guidelines and standards, which are enforced by regulatory bodies within their profession. They are held in high regard and esteemed within society.

Negligence by Medical professionals

A person who presents themselves as capable of providing medical advice or treatment implicitly asserts that they possess the necessary expertise and knowledge for such purposes. Whether this individual is a licensed medical professional or not, if they are consulted by a patient, they owe certain responsibilities to that patient. These responsibilities include exercising care in determining whether to take on the case, exercising care in determining the appropriate treatment, and exercising care in administering that treatment. If any of these duties are breached, the patient may have grounds to pursue a negligence claim.

The Supreme Court of India has thoroughly examined the concept of negligence in the case of Jacob Mathew. When it comes to the medical profession, negligence requires a unique approach. In order to determine if a medical professional, especially a doctor, has acted negligently, additional factors must be taken into account.

The Delhi High Court established in 2005 that there are three degrees of negligence in civil law:

(1) lata culpa, which refers to gross neglect.

(2) levis culpa, which pertains to ordinary neglect.

(3) Levissima culpa, which denotes slight neglect.

Not every act of negligence committed by a doctor will result in punishment. Slight neglect is not punishable, and as the name suggests, ordinary neglect is also not subject to punishment. By combining these two categories, we can identify negligence for which the doctor will be held liable and negligence for which the doctor will not be held liable. In most cases, the distinction between the two will be clear, but difficulties arise in situations where the line is blurred.

In terms of medical negligence, various prominent judgments have outlined the legal position. 

In the case of Bolam v. Friera Hospital Management Committee, John Hector Bolam sought treatment for his depression at Frien Hospital in 1954. The treatment he received was electro-convulsive therapy (E.C.T.), during which he did not receive any relaxant drugs. However, nurses were present on both sides of the couch to ensure he did not fall off. Unfortunately, Bolam sustained fractures during the treatment and subsequently filed a lawsuit against the hospital, claiming negligence and seeking damages.

One of the key issues in this case was the lack of warning provided to Bolam regarding the risks associated with the treatment, specifically the absence of relaxant drugs. It was revealed that the hospital did not inform Bolam about this aspect when he consented to the treatment. Expert opinions were presented, indicating that there were accepted practices in the medical community to administer relaxant drugs during such treatments. Additionally, there were differing practices regarding the warning given to patients, with some doctors providing it to all patients and others only when specifically asked about the risks. After careful consideration, the court concluded that the doctors and the hospital were not negligent in their actions. This decision was based on the fact that there were differing practices within the medical community regarding the administration of relaxant drugs and the provision of warnings. Therefore, it was determined that the doctors and the hospital had followed an acceptable standard of care in this particular case.

In the case of Jacob Mathew v. State of Punjab a patient, was admitted to CMC Hospital in Ludhiana, Punjab. He experienced difficulty in breathing and waited for about 20-25 minutes without any doctor attending to him. Eventually, two doctors, Dr. Jacob Mathew and Dr. Allen Joseph, arrived and attempted to assist the patient by connecting an oxygen cylinder to his mouth. Surprisingly, the patient’s breathing problem worsened. Despite the medical staff’s instructions to remain in bed, the patient tried to get up. Unfortunately, it was discovered that the oxygen cylinder was empty. Another cylinder was brought, but it was too late as the patient had already passed away. The incident sparked outrage against the doctors, hospital staff, and the hospital itself, leading to the matter being taken to the Supreme Court of India. The court thoroughly examined the case, considering various aspects of negligence including civil, criminal, torts, and professional negligence. Ultimately, it was determined that there was no evidence of criminal recklessness or negligence.

In the case of A.S. Mittal v. State of UP, a significant harm was inflicted upon the patients who underwent surgery at a government-organized eye camp in Uttar Pradesh. Unfortunately, some of these patients lost whatever little vision they had, resulting in a permanent loss of sight. The highest court strongly condemned the negligent actions of the doctors involved, acknowledging that surgical procedures inherently carry risks, but emphasizing that a mistake made by a medical practitioner that no competent and careful practitioner would have made is considered negligence. Consequently, compensation was awarded to the affected individuals.

Similarly, in the case of State of Haryana v. Santra, the court upheld a judgment that awarded damages for medical negligence. This negligence arose from a failed sterilization operation, which resulted in the patient giving birth to an unwanted child. It was discovered that the doctor had only operated on the right fallopian tube, leaving the left fallopian tube untouched. The patient had been informed that the operation was successful and that she would not be able to conceive in the future. The court deemed this to be a clear case of medical negligence and justified the decree for compensation in tort.

Nevertheless, the Supreme Court clarified in the case of State of Punjab v. Shiv Ram that the occurrence of a woman becoming pregnant and giving birth after undergoing a sterilization procedure does not hold the operating surgeon or their employer responsible for the unintended pregnancy or unwanted child. The court emphasized that the failure of sterilization due to natural causes or the fact that the method used is considered foolproof and guarantees 100% success does not provide any basis for a claim of compensation. In reaching this conclusion, the court referred to various authoritative textbooks on Gynecology and empirical research, which acknowledge a failure rate ranging from 0.3% to 7% depending on the chosen technique out of several recognized and accepted ones.

The case of Poonam Verma v. Ashwin Patel highlights yet another irresponsible action committed by the doctor. In this particular instance, a doctor who was licensed to practice homeopathy was found guilty of negligence for prescribing allopathic medicines, which ultimately led to the patient’s death. The doctor’s negligence was severe and clearly violated his professional duty. He completely disregarded logic and abandoned his ethical obligations. It is argued that it would have been more appropriate to prosecute the doctor for criminal negligence, as he violated section 15(3) of the Medical Council Act, 1956.

Medical Negligence: A Civil wrong or Criminal Offence

The term negligence serves the purpose of holding the defendant accountable under civil law (the law of torts) and sometimes even under criminal law. However, plaintiffs often argue that negligence is negligence, and there is no distinction between the two when it comes to breaching one’s duty and causing harm. Lord Atkin, in his speech during the Andrews v. Director Public Prosecution case, explained the difference between the two. He stated that a mere lack of care, which is sufficient to establish civil liability, is not adequate for the criminal law. In criminal law, there are varying degrees of negligence, and a very high level of negligence must be proven to establish a felony. Therefore, for negligence to be considered an offense, it is necessary to demonstrate the presence of a mens rea (guilty mind), and the negligence should be gross or of an extremely high degree.

In the realm of Criminal law, negligence or recklessness must reach a level of severity that it can be deemed as gross. The highest court in the case of Jacob Mathew v. State of Punjab has clarified that the term “rash and negligent act” mentioned in section 304-A of the LP.C should be accompanied by the qualifier “grossly”. In order to bring charges of negligence against a medical professional under criminal law, it must be proven that the accused either did something or failed to do something that no reasonable and prudent medical professional would have done or failed to do in the given circumstances. The actions taken by the accused doctor must involve a level of risk that would make the resulting injury highly likely. Based on the aforementioned, it can be inferred that the differentiation between civil and criminal liability in cases of medical negligence lies in the doctor’s conduct, which must be grossly negligent, reckless, or of an extremely high degree.


Upon careful examination of the current paper, I have reached the following conclusion. Negligence can arise from two sources: either it is the negligence of the doctor or the negligence of the staff. It is possible for both the doctor and the staff to be negligent in certain cases. In most instances, this will result in joint and several liability, holding both the doctor and the hospital accountable. The allocation of liability between them will be determined based on their mutual agreement. When it comes to determining negligence, courts typically rely on expert advice, unless there is a clear violation of protocol or unreasonable and reckless behavior. However, this approach introduces a significant level of subjectivity, undermining the intended certainty and specificity of the law. Recent decisions have taken positive steps towards clarifying this ambiguous area, but there is still much work to be done by the courts in delivering clearer judgments that benefit the general public. Currently, these judgments allow for a considerable amount of discretion, which can be exercised in an undesirable manner by various individuals, including doctors and judicial officers. Therefore, there is a need for more precise and certain laws on this subject, which will provide a better understanding of the “reasonable man.”


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