Author: R. abinaya, Chennai Dr. Ambedkar Govt. Law College, Pudupakkam
ABSTRACT :
The medical negligence is increasing in day to day life in India ,nearly 65000 case of medical negligence case filed in 2025.The medical negligence laws followed in India was criminal liability under sec 106 of BNS,Non fatal injury under sec 125 s comes under dentition term of services so the monetary compensation was given to the patient and at last vicarious liability. In mostly we follow the bolam test which state that the doctors was not liable because the doctors will works as duty care and the doctors is well know of their of job. The legislation frame work in India was under National Medical Council regarding medical negligence. The constitution frame work in India was increase due to the lack of legislation framework.The patient protection was enhanced through clinical establishment act and charter of patient act.
TO THE POINT:
This article stays that the medical negligence in India was daily reported case were thousand but still the Indian system has follow the old method as bola m test and still now there no separate legislation frame work was formed. The UN has formed the protection patient guidelines 2016 after the guideline India formed an guideline in 2019. but still the medical negligence were reported ,In Dec 2025 a child was admitted for AIIMS hospital Bhopal because negligence of nurse the child was died but the FIR was filed after six month ,so delaying of investigation leads to the destroy o f evidence .so to protecting the doctor is fair under Article 19 of constitution to freedom of practice profession but the profession was in manner of duty of care and diagnosis of doctor, antithesis and other part of the medical field should have an duty of care but now the private hospital has increase day by day in India because of infrastructure and earning capacity some hospital has surgery was failed still they keep patient for profit those because there is no single legislation for medical negligence since case only filed under BNS and tort or National Medical Council even though the state has separated medical board to investigate the negligence but there is no proper guidelines for the medical negligence so the judiciary and the legislation has to brought strict and proper single legislation for medical negligence.
Legal jargon
The medical negligence case involve several legal jargon can discussed ; firstly BNS sec 106 causing a death of the person through rash or negligent act that not amount to
✓ Sec 125 and 126 of BNS : s.125 criminalize act or negligence act that endanger human life. S,126 wrongful restraint
✓ Consumer protection act 2019 say that medical comes under the “services” so the deficient medical care can claim an financial compensation
✓ Vicarious liability : when one person committee an wrongful act legally responsible for someone act
✓ Bolam standard ; a medical practitioner was not negligent for action done by him , when responsible and recognized body of medical profession.
✓ National medical commission act : if the negligence of medical practitioner was proofed the commission has right cancel the licence
✓ Strict criminal guidelines; to protect the doctors from the immediate arrest and harassment ,the SC says that criminal proceed cannot be mandate under separate medical board.
The proof ;
The medical negligence in AIIMS Bhopal a 3 years old child was died due the negligent of nurse in hospital even though the patient attender as requested them to wait until the doctor arrives still the nurse has diagnosis due to negligent but the FIR was filed after 6 months still the nurse in the hospital
The twenty four years old men was died due to the wrong diagnosis of the doctor the young boy was died but still the innocent public lose their life due to negligence but still the case law judgement protecting the medical practitioner
CASE LAW:
1. Jacob Mathew Vs. State of Punjab : this case dealt that patient oxygen cylinder was empty even when the patient gets up the medical practitioner said not to wake up at last the patient was died the SC held medical practitioner not negligent and the criminal charged not to filed and said it is normal .
2. Laxman v. Trimba : “The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment implicitly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment.
3. Achutrao Haribhau Khodwa v. State of Maharashtra: medical practitioner has differ methods of dealing an patient so it is not necessary to guity of an negligence
CONCULSION:
the medical negligence in India has been increase day to day life so the Indian constitution under Article 21 of constitution says that right to life which includes health of the public and which includes in DPSP but this guidelines to state to protect the patient and have an proper duty of care in India. The legal perspective of medical negligence state that the criminal liability was dealt under the BNS and civil liability under consumer protection act 2019 and the other part of it was medical counsel board but India need a effective single legislation to prevent from medical negligence in India
FAQS;
Whether the medical counsel board is effective?
The medical negligence board is not effective because the board member has power to cancel the licence but investigation is transparent still unkown.
whether the patient rights is protected in India ?
The patient rights is protect under the clinical establishment act which only laws that protect the patient other civil liability has monetary compensation to dealt with negligent.
