Consumer Monograph Series No. 16 Doctor-Patient Relationship · The doctor-patient relationship is at the center of conception of medicine. The relationship between doctors and their

Centre for Consumer Studies Indian Institute of Public Administration New Delhi

Doctor-Patient Relationship Care, Consent and Negligence

Consumer Monograph Series No. 16

DOCTOR-PATIENT RELATIONSHIPCARE, CONSENT AND NEGLIGENCE

DOCTOR-PATIENT RELATIONSHIPCARE, CONSENT AND NEGLIGENCE

Sapna ChadahAssistant Professor

Administrative & Constitutional LawsCCS, IIPA

Centre for Consumer StudiesIndian Institute of Public Administration

New Delhi

iv

Price: ̀ 50

ISBN : 81-86641-75-0

2014 editionReprinted 2015

This Monograph is Published with the Financial Assistance fromDepartment of Consumer Affairs, Ministry of Consumer Affairs,Food & Public Distribution, Government of India

Printed at : New United Process, A 26, Phase II, Naraina Indl Area, New Delhi-110028

PREFACE

Medical profession has long been one of the most trusted socialinstitutions due to high standard of education, ethical standards thatprotect the interests of patients and recognising that public trust isthe greatest asset. However, like all social institutions medicine hasalso witnessed a fall from the public trust. Since the late 1990s, dueto constant commercialisation of the profession the relationshipbetween doctors and patients has undergone a change. The impactof socio-economic developments on medical practice has beenphenomenal. Slowly and steadily, the medical profession has beendriven by the market forces resulting in decline of professional ethics.The medical profession's mandate to take care of clients has to someextent been undermined by the influx of money into health care. Therise of patient consumerism, the advent of evidence-based medicine,and the increasing power of the pharmaceutical industry are someof the recent challenges to the profession. Interpersonal trust indoctor-patient relation depends on the degree to which patients seetheir doctors as competent, responsible, and caring. Thecommercialization of medical care, conflicts of interest, mediaattention to medical uncertainty and error, and the growth of managedcare are all challenging patients' trust in the profession.

The current situation of the medical market place makes itincreasingly difficult to cleanly separate market and profession. Thereigning metaphor of medical consumerism is that medical care is aservice like any other, and that patients are consumers who canchoose who should provide medical services and even what kind ofservices to purchase. Increasingly health is viewed as 'commodity'and individuals as health care 'consumers'. The consumerism hasbecome pervasive in health care, reflecting a changed relationshipbetween health care professionals and patients. The patient-physicianrelationship has shifted away from a paternalistic relationship towarda client-provider one. The growing health care costs, publicizedmalpractice lawsuits, and excessive treatments and tests have furthercontributed to the increasing distrust of physicians. The rise in

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dissatisfaction with medical services is leading to increase in litigationand complaining about health services when they feel they havebeen mistreated. More of them are willing to sue for compensationwhen they feel they have lost out because of negligence or illtreatment. Doctors can no longer assume that their patients willaccept their word without question. There is need to develop a strongsystem of regulation which ensures standards and assures quality.We need a system, which is designed to serve the needs, wishes andvalues of the consumers of health services and promote a healthypatient-doctor relationship based on trust.

The monograph analyses the doctor-patient relationship andhighlights some of the issues, which have emerged with thecommercialization of the profession. It further examines the dutiesand responsibilities of the doctors towards their profession, patientsand community in general; extent to which doctors and hospitals aresubject to the law; and how doctor can be held responsible,accountable and answerable under the legal framework. It explainsthe concept of medical negligence, the standard of care expected ofmedical professionals, their liability under civil and criminal law andextent of their accountability under the Consumer Protection Act.

I am grateful to the Centre for Consumer Studies, Indian Instituteof Public Administration, New Delhi, particularly Prof. Suresh Misra,Coordinator of the Centre for giving me the opportunity to write thismonograph. I am sure this monograph will help educate theconsumers about the concept of medical negligence and the recourseavailable to them in case of mistreatment and ill-treatment.

Place: New Delhi Sapna ChadahDated: August 2014

CONTENTS

Page

Preface v

Introduction 1

Changing Doctor-Patient Relationship 3

Regulation of Medical Profession 4

Negligence-Concept and Definition 15

Medical Negligence 16

Standard of Care 18

Duties of a Doctor 25

Duties of Doctor under Code of Medical Ethics 26

Liability under Other Laws 30

Liability for Professional Misconduct 31

Criminal Liability 31

Contractual Liability 39

Medical Services under Consumer Protection Act 39

Instances of Deficiency in Medical Services 43

Doctrine of Informed Consent 49

Burden of Proof 58

Applicability of Res ipsa loquitur in Medical Negligence 67

Emergency Care 71

Compensation 75

Vicarious Liability 82

Medical Negligence: What Patients should Know? 84

Conclusion 85

Annexure 87

DOCTOR-PATIENT RELATIONSHIP–CARE, CONSENT AND NEGLIGENCE

INTRODUCTION

The right to health has been recognized as one of the basic humanrights. The Universal Declaration of Human Rights, 1948 in Article25 establishes that “Everyone has the right to a standard of livingadequate for the health and well-being of himself and of his family,including food, clothing, housing and medical care and necessarysocial services, and the right to security in the event of unemployment,sickness, disability, widowhood, old age or other lack of livelihood incircumstances beyond his control”. Article 12 of the InternationalCovenant on Economic, Social and Cultural Rights, 1966 states: “TheStates Parties to the present Covenant recognize the right of everyoneto the enjoyment of the highest attainable standard of physical andmental health”. Right to life enshrined in Article 21 of the Constitutionof India includes right to health. The jurisprudence of personhood orphilosophy of right to life envisaged under the said Article enlargesin its sweep to encompass human personality in its full blossom withinvigorated health, which is a wealth to the citizen to earn his livelihood,to sustain the dignity of the person to live a life with dignity. In factthe dream of healthy nation is engrafted in the Directive Principlesof State Policy as an integral part of the Constitution. Article 21 ofthe Constitution of India casts obligation on State and medicalprofessionals to preserve life. Every doctor whether at a Governmenthospital or otherwise has the professional obligation to extend hisservices with due expertise for protecting life. No law or state actioncan intervene to avoid or delay the discharge of the paramountobligation cast upon the members of medical profession. Theobligation being total, absolute and paramount, laws of procedurewhether in statutes or otherwise, which would interfere with thedischarge of this obligation cannot be sustained and must, therefore,

2 DOCTOR-PATIENT RELATIONSHIP

give way. The Directive Principles in Part IV of the Constitution1alsocast an obligation on the State to ensure the creation and sustenanceof conditions congenial to good health.

However, it is important to recognize that all the necessary actionsto protect, promote and fulfil the right to health cannot be securedimmediately because the states do not have resources to do so. TheWorld Medicines Situation 2011 Report brought out by World HealthOrganisation (WHO) had said that the doctors, on an average, indeveloping countries spend less than 60 seconds in prescribingmedicines and explaining the regimen to their patients. Consequently,only half of the patients receive any advice on how to take theirmedicines and about one-third of them don’t know how to take drugsimmediately on leaving the facility. According to WHO the dispensingtime greatly influences how the medicines are used. As the dispensingtime is a minute, in such circumstances it is not surprising that theadherence to medicines is poor. One of the reasons for the patientsgetting less than adequate time for consultation is that the doctor-population ratio is not favourable in our country. MCI’s own assessmentsays India has just one doctor for 1,700 people. In comparison thedoctor-population ratio globally is 1.5:1000. In developing countries, inprimary care, less than 40 percent of patients in public sector and 30percent of patients in private sector are treated in accordance withstandard treatment guidelines. The report cites, only about 60 percentcountries train their medical students on various aspects of prescribingmedicines and only about 50 percent require any form of continuingmedical education. The basic training for nurses and paramedical staff,who often do a bulk of prescribing, was even less – only about 40percent of countries give them basic training on how to prescribe. Thereport shows, though 80 percent of all prescribed medicines aredispensed – usually they are done by untrained personnel – and asmany as 20-50 percent of medicines dispensed are not labeled.2

India presently has a ratio of one doctor per 1,700 citizens.According to the Union Health Ministry figures there are about 6-6.5 lakh doctors available. But India would need about four lakhmore by 2020 to maintain the required ratio of one doctor per 1,000

1Articles 38, 39(e) (f), 42, 47 and 482Kounteya Sinha, Docs will have to spend more time with patients, Times of

India, Pune, August 28, 2011, p. 5

DOCTOR-PATIENT RELATIONSHIP 3

people. This includes 50,000 for PHCs; 0.8 lakh for community healthcentres (CHCs); 1.1 lakh for 5,642 sub-centres and another 0.5 lakhfor medical college hospitals. According to Union Health Ministrydata, the present doctor-population ratio is 0.5 per 1,000 and thetarget by 2025 is 0.8 per 1,000. In the current scenario of doctor-population ratio, the number of doctors required in the rural areaswas enormous and target of one-doctor-for-1,000 population cannotbe met before 2020. According to MCI estimates the targeted doctor-population ratio of 1: 1000 would be achievable by the year 2031.According to the 12th Plan document, 6,91,633 physicians are availableduring the 11th Plan and expected availability for the 12th Plan by2017 is 8,48,616 at annual capacity of 42,570 doctors.3

If shortage of doctors is one problem, their unwillingness to workin the rural hinterland is another, creating artificial scarcity in thearea and high concentration in another. As per rural health statistics2012, there were 1,48,366 sub-centres, 24,049 PHCs and 4,833 CHCsfunctioning in the country. Forget about sub-centres, doctors are notavailable even in CHCs. Compared to requirement for existinginfrastructure, there was a shortfall of 74.9 percent of surgeons,65.1 percent of obstetricians and gynaecologists, 79.6 percent ofphysicians and 79.8 percent of paediatricians. Overall, there was ashortfall of 69.7 percent specialists at the CHCs.4

Changing Doctor-Patient Relationship

The doctor-patient relationship is at the center of conception ofmedicine. The relationship between doctors and their patients isshaped by our understanding of medicine as a vocational profession,fundamentally concerned with well-being and promoting health.However, the relationship between doctors and their patients hasbeen changing and is currently under more pressure than ever before.The first physician and his relationship with his patients was uniqueand unquestioned. However, the classical concept of doctor-patientrelationship prevalent in the olden days has undergone drastic changesin the present age.

3U Anand Kumar, (22nd September 2013), India has just one doctor for every1,700 people, http://www.newindianexpress.com/magazine/India-has-just-one-doctor-for-every-1700-people/2013/09/22/article1792010.ece#.Uw1xJmKSwwo

4Ibid


There has been drastic change in the attitude of doctors andmedical professionals in today’s time. Hesitation on the part ofmedical professionals in taking rural assignments, commercializationof profession, mushrooming of large number of private hospitals andnursing homes, ‘business’ attitude amongst the medical practitionersand hospitals and ‘services’ of medical establishments becoming apurchasable commodities and thereby posing the question whetherdoctor patient relationship is different or is like any other commercialtransaction. With the passage of time not only has practice ofmedicine graduated to become independent and noble profession,but his relationship has slowly shifted from ‘Next to God’ to ‘Friend,Philosopher and Guide’, to ‘respected professional’ and, today, as‘service provider’ in terms of the Consumer Protection Act.Withincreased consumer awareness and rising expectation, increasingnumber of complaints are being filed by dissatisfied patients resultingin growing distrust between patients and doctors and increased costof medical treatment. The aggrieved patients are now resorting tolegal remedy for negligence on the part of the medical practitioner.The accountability of the doctor under the law of professionalnegligence has emerged as a debatable issue among the medicalfraternity all over the country.

Regulation of Medical Profession

The Indian Medical Degrees Act, 1916

The objective of the Act to regulate the grant of titles implyingqualification in Western medical science and the assumption and useby unqualified persons of such title. For the purpose of this Act“Western medical science” means the western methods of AllopathicMedicine Obstetrics and Surgery but does not include theHomeopathic or Ayurvedic or Unani system of medicine. The rightof conferring, granting or issuing in the State degrees, diplomas,licenses, certificates or other documents stating or implying that theholder, grantee or recipient thereof qualified to practices westernmedical science, shall be exercisable only by the authorities specifiedin the schedule and such other authority as the State Governmentmay, by notification in the Office Gazette and subject to suchconditions and restrictions as it thinks fit to impose, authorize in this


behalf.5 Save as provided by section 3, no person in the States shallconfer, grant, or issue, or hold himself out as entitled to confer, grantor issue any degree, diploma,licence, certificate or other document,stating or implying that the holder grantee or recipients qualified topractice western medical science.6 Whoever contravenes theprovisions of section 4 shall be punishable with fine, which may extendto one thousand rupees; and if the person so contravening is anassociation, every member of such association, who knowingly andwillfully authorizes or permits the contravention shall be punishablewith fine, which may extend to five hundred rupees.7Whoevervoluntarily and falsely assumes or uses any title or description or anyaddition to his name implying that he holds a degree, diploma, licenseor certificate conferred, granted or issued by any authority referredto in section 3 or recognized by the General Council of MedicalEducation of the United Kingdom or that he is qualified to practicewestern medical science, shall be punishable with fine which mayextend to two hundred and fifty rupees, or if he subsequently commitsand is convicted of an offence punishable under this section, withfine which may extend to five hundred rupees.8

The Indian Medical Council Act, 1956

This Act provides constitution of the Medical Council of India(MCI) and the maintenance of a Medical Register for India and formatters connected there with.9 The Central Government shall causeto be constituted a council consisting of the following members,namely:- (a) One member from each State other than a Union Territoryto be nominated by the Central Government in consultation with theState Government concerned (b) One member from each Universityto be elected from amongst the members of the medical faculty ofthe University by members of the Senate of the University or incase the University has no Senate, by members of the Court (c)One member from each State in which a State Medical Register ismaintained, to be elected from amongst themselves by persons

5 Indian Medical Council Act, 1956, Section 36Ibid Section 47Ibid Section 58Ibid Section 69 Indian Medical Council Act, 1956 Preamble


enrolled on such register who possess the medical qualificationsincluded in the First or the Second Schedule or in Part II of the ThirdSchedule (d) Seven members to be elected from amongst themselvesby persons enrolled on any of the State Medical Registers whopossess the medical qualifications included in Part I of the ThirdSchedule (e) Eight members to be nominated by the CentralGovernment.10 The functions of the Council are: maintenance ofuniform standards of medical education, both undergraduate andpostgraduate; recommendation for recognition/de-recognition ofmedical qualifications of medical institutions of India or foreigncountries; permanent registration/provisional registration of doctorswith recognised medical qualifications; and reciprocity with foreigncountries in the matter of mutual recognition of medical qualifications.Instructions and procedure for recognition of medical institutions andto monitor and maintain standards of medical education have alsobeen specified under the Act.11

The registered medical persons are entitled to practice allopathicsystem of medicine. The medical qualifications included in theSchedules shall be sufficient qualification for enrolment on any StateMedical Register. A registered medical practitioner is entitled to : (a)hold office as physician or surgeon or any other office (by whateverdesignation called) in Government or in any institution maintained bya local or other authority; (b) practice medicine in any State; (c) signor authenticate a medical or fitness certificate or any other certificaterequired by any law to be signed or authenticated by a duly qualifiedmedical practitioner; (d) give evidence at any inquest or in any courtof law as an expert under section 45 of the Indian Evidence Act,1872 on any matter relating to medicine.The Medical Council ofIndia shall cause to be maintained in the prescribed manner a registerof medical practitioners to be known as the Indian Medical Register,which shall contain the names of all persons who are for the timebeing enrolled on any State Medical Register and who possess anyof the recognised medical qualifications.12 The Registrar of theCouncil, may, on receipt of the report of registration of a person in aState Medical Register or on application made in the prescribed

10Ibid Section 311Ibid Sections 16-2012Ibid Section 21


manner by any such person, enter his name in the Indian MedicalRegister, provided that the Registrar is satisfied that the personconcerned possesses a recognised medical qualification.13 If the nameof any person enrolled on a State Medical Register is removed therefrom in pursuance of any power conferred by or under any lawrelating to medical practitioners for the time being in force in anyState, the Council shall direct the removal of the name of such personfrom the Indian Medical Register.14

The Council may prescribe standards of professional conductand etiquette and a code of ethics for medical practitioners. Theviolations of the Regulations made by the Council in this regard shallconstitute professional misconduct.15 The Council has maderegulations for “Standards of Professional Conduct, Etiquette andCode of Ethics” known as Indian Medical Council (ProfessionalConduct, Etiquette and Ethics) Regulations notified in 2002, whichshould be observed by medical practitioners. These are mandatoryand followed by all other State Medical Councils.

The Dentists Act, 1948

The Act was enacted to make provision for the regulation ofthe profession of dentistry and for that purpose to constitute DentalCouncils.16 The Dental Council of India constituted by the CentralGovernment, is a Statutory Body incorporated under an Act toregulate the Dental Education and the profession of Dentistrythroughout India.

As per the provisions of the Act, the functions of Dental Councilof India include – (i) Maintenance of uniform standards of DentalEducation – both at Undergraduate and Postgraduate levels. Itenvisages inspections/visitations of Dental Colleges for permissionto start Dental colleges, increase of seats, starting of new P.G. courses;(ii) To prescribe the standard curricula for the training of dentists,dental hygienists, dental mechanics and the conditions for such training;(iii) To prescribe the standards of examinations and other requirementsto be satisfied to secure for qualifications, recognition under the

13Ibid Section 2314Ibid Section 2415Ibid Section 20A16The Dentist Act, 1948, Preamble


Act.Under section17A of the Act the Council has power to prescribestandards of professional conduct and etiquette or the code of ethicsfor dentists. The violation of the regulations specified by the Councilin this regard shall constitute professional misconduct. The DentalCouncil has brought out the Dentist (Code of Ethics) Regulations,1976 for laying down the standards of professional conduct andetiquette for dentists. The Council shall maintain a register of dentiststo be known as the Indian Dentists Register and consisting of theentries in all the State registers of dentists.

The Indian Medicine Central Council Act, 1970

The Indian Medicine Central Council Act, 1970 provides for theconstitution of a Central Council of Indian Medicine and themaintenance of a Central Register of Indian Medicine and for mattersconnected therewith.17 “Indian Medicine” means the system of Indianmedicine commonly known as Ashtang Ayurveda, Siddha orUnaniTibb; whether supplemented or not by such modern advancesas the Central Council may declare by notification from time to time.18

The purpose of the Council is to: prescribe minimum standards ofeducation in Indian Systems of Medicine viz. Ayurved, Siddha,UnaniTibb advise Central Government in matters relating torecognition (inclusion/withdrawal) of medical qualification in/fromsecond schedule to Indian Medicine Council Act, 1970; maintain aCentral Register on Indian Medicine and revise the register fromtime to time; and prescribe Standards of Professional Conduct,Etiquette and Code of Ethics to be observed by the practitioners.

The Homoeopathy Central Council Act, 1973

The objective of the Act is to provide for the constitution of aCentral Council of Homoeopathy and the maintenance of a CentralRegister of Homoeopathy and for matters connected therewith.19

The Central Government under the provisions of Act has constitutedthe Central Council of Homoeopathy. The functions of the Councilare to: maintain the register of physicians of homoepathy whoreceived education in India or abroad; prescribe the minimum

17 Indian Medicine Central Council Act, 1970 Preamble18Ibid Section 2(1)(e)19Homoeopathy Central Council Act, 1973 Preamble


standards of education required for granting the recognition to thequalifications, institutions, etc; conduct inspections of institutions forgranting recognition or withdrawal of recognition; and take actionagainst those physicians who have committed professional misconduct.

A person who is registered as homeopathic practitioner canpractice homeopathic medicine only and he cannot be registeredunder the Indian Medical Council Act, 1956 or under the StateMedical Council Act, because of the restriction on registration ofpersons not possessing the requisite qualifications. Accordingly, adoctor registered as homeopathic practitioner is guilty of negligencein prescribing allopathic medicines to the patient without beingqualified in that system of medicine. It was held by the SupremeCourt in PoonamVerma vs. Ashwin Patel20 that a homeopathicpractitioner practicing allopathic system of medicine withoutpossessing requisite qualification and without being registered underIndian Medical Council Act, 1956 or State Medical Council Act isliable to be prosecuted under section 15(3) of the Indian MedicalCouncil Act, 1956.

The Indian Nursing Council Act, 1947

The objective of the Act is to constitute an Indian Nursing Councilin order to establish a uniform standard of training for nurses, midwivesand health visitors. The functions of the Indian Nursing Council areto:21

� establish and monitor a uniform standard of nursing educationfor nurses-midwife, Auxiliary Nurse- Midwives and health visitorsby doing inspection of the institutions;

� establish and monitor a uniform standard of nursing educationfor nurses-midwife, Auxiliary Nurse- Midwives and health visitorsby doing inspection of the institutions;

� recognize the qualifications under section 10(2)(4) of the IndianNursing Council Act, 1947 for the purpose of registration andemployment in India and abroad;

� give approval for registration of Indian and Foreign Nurses

20AIR 1996 SC 21112 1h t t p : / / w w w. i n d i a n n u r s i n g c o u n c i l . o rg / a b o u t - i n d i a n - n u r s i n g -

council.asp?show=about-aim retrieved on January 29, 2014

1 0 DOCTOR-PATIENT RELATIONSHIP

possessing foreign qualification under section 11(2)(a) of the IndianNursing Council Act, 1947;

� prescribe minimum standards of education and training in variousnursing programmes and prescribe the syllabus and regulationsfor Nursing programmes;

� withdraw the recognition of qualification under section 14 of theAct in case the institution fails to maintain its standards underSection 14 (1)(b) that an institution recognised by a State Councilfor the training of nurses, midwives, Auxiliary Nurse Midwivesor health visitors does not satisfy the requirements of the Council;

� advise the State Nursing Councils, Examining Boards, StateGovernments and Central Government in various important itemsregarding Nursing Education in the Country;

� regulate the training policies and programmes in the field ofNursing;

� recognise Institutions/Organisations/Universities impartingMaster’s Degree/ Bachelor’s Degree/P.G. Diploma/ Diploma/Certificate Courses in the field of Nursing;

� recognise Degree/Diploma/Certificate awarded by ForeignUniversities/ Institutions on reciprocal basis;

� promote research in Nursing;

� maintain Indian Nurses Register for registration of NursingPersonnel;

� prescribe code of ethics and professional conduct; and

� improve the quality of nursing education.

The Pharmacy Act, 1948

The Pharmacy Act, 1948 regulates the profession of pharmacyand for that purpose to constitute Pharmacy Councils. The functionsof the Pharmacy Council of India is to: prescribe minimum standardof education required for qualifying as a pharmacist; framing ofEducation Regulations prescribing the conditions to be fulfilled bythe institutions seeking approval of the PCI for imparting educationin pharmacy; ensure uniform implementation of the educationalstandards throughout the country; inspection of Pharmacy Institutionsseeking approval under the Pharmacy Act to verify availability of

DOCTOR-PATIENT RELATIONSHIP 1 1

the prescribed norms; approve the course of study and examinationfor pharmacists i.e. approval of the academic training institutionsproviding pharmacy courses; withdraw approval, if the approvedcourse of study or an approved examination does not continue to bein conformity with the educational standards prescribed by the PCI;approve qualifications granted outside the territories to which thePharmacy Act extends i.e. the approval of foreign qualification; andmaintain Central Register of Pharmacists.22

The Clinical Establishments (Registration and Regulation)Act, 2010

The Clinical Establishments (Registration and Regulation) Act,2010 has been enacted by the Central Government to provide forregistration and regulation of all clinical establishments in the countrywith a view to prescribing the minimum standards of facilities andservices provided by them. The Act has taken effect in the fourstates namely; Arunachal Pradesh, Himachal Pradesh, Mizoram,Sikkim, and all Union Territories since 1st March, 2012 vide Gazettenotification dated 28th February, 2012. The states of Uttar Pradesh,Rajasthan and Jharkhand have adopted the Act under clause (1) ofArticle 252 of the Constitution. The Ministry has notified the NationalCouncil for Clinical Establishments and the Clinical Establishments(Central Government) Rules, 2012 under this Act vide Gazettenotifications dated 19th March, 2012 and 23rd May, 2012 respectively.The Act is applicable to all kinds of clinical establishments from thepublic and private sectors, of all recognized systems of medicineincluding single doctor clinics. The only exception will beestablishments run by the Armed forces.23

The Act also seeks to improve the quality of health servicesthrough the National Council for Standards by prescribing minimumstandards of facilities and services, which may be provided by them.This would permit categorization and classification of different clinicalestablishments depending on their geographical location as well asservices offered. It will also initiate the process for the creation of a

22General Information-About PCI. http://www.pci.nic.in/GeneralInformation/AboutPCI/Introduction.aspx

23The Clinical Establishments (Registration and Regulation) Act, 2010; http://clinicalestablishments.nic.in/cms/Home.aspx


national registry of clinical establishments existing in the country.Despite many State Legislatures having enacted laws for regulatinghealth care providers, the current regulatory process for health careproviders in India is inadequate or not responsive to ensure healthcare services of acceptable quality and prevent negligence.Accordingly, a need has long been felt for a central legislation forensuring uniform standards of facilities and services by the clinicalestablishments.24

The Act comes in the series of attempts by the CentralGovernment health agencies to codify and manage the healthcaremedical services sector in the country. The regulatory authoritieshave always felt that the data and information on the providers hasbeen static and minimal real time. Monitoring and implementation of‘Quality’ standards has been a major issue in the sector. This Actaims at bringing concerns of quality too at the forefront of regulation.This Act brings in hope for the common consumer regarding thelevel of prescribed minimum standards of infrastructural and ethicalissues in healthcare.25

For the purpose of the Act the “clinical establishment” means—(i) a hospital, maternity home, nursing home, dispensary, clinic,sanatorium or an institution by whatever name called that offersservices, facilities requiring diagnosis, treatment or care for illness,injury, deformity, abnormality or pregnancy in any recognised systemof medicine established and administered or maintained by any personor body of persons, whether incorporated or not; or (ii) a placeestablished as an independent entity or part of an establishmentreferred to in sub-clause (i), in connection with the diagnosis ortreatment of diseases where pathological, bacteriological, genetic,radiological, chemical, biological investigations or other diagnostic orinvestigative services with the aid of laboratory or other medicalequipment, are usually carried on, established and administered ormaintained by any person or body of persons, whether incorporatedor not, and shall include a clinical establishment owned, controlled or

24Press Release: Enactment of Clinical Establishments (Registration & RegulationAct) 2010, Press Information Bureau, GoI, Release ID :57413, http://pib.nic.in/newsite/erelease.aspx?relid=57413

25Clinical Establishments Act: A new chapter for the Indian medical sector, June13, 2012, http://modernmedicare.co.in/articles/clinical-establishments-act-a-new-chapter-for-the-indian-medical-sector/


managed by— (a) the Government or a department of theGovernment; (b) a trust, whether public or private; (c) a corporation(including a society) registered under a Central, Provincial or StateAct, whether or not owned by the Government; (d) a local authority;and (e) a single doctor, but does not include the clinical establishmentsowned, controlled or managed by the Armed Forces.26

The Act provides for establishment of National Council for clinicalestablishments by the Central Government.27 The National Councilshall- (a) compile and publish a National Register of clinicalestablishments within two years from the date of the commencementof this Act; (b) classify the clinical establishments into differentcategories; (c) develop the minimum standards and their periodicreview; (d) determine within a period of two years from itsestablishment, the first set of standards for ensuring proper healthcareby the clinical establishments; (e) collect the statistics in respect ofclinical establishments; and (f) perform any other function determinedby the Central Government from time to time.28 Every StateGovernment shall by notification constitute a State Council for clinicalestablishments or the Union territory Council for Clinicalestablishments, as the case may be.29 The State Council or the UnionTerritory Council shall perform the following functions, namely: (a)compiling and updating the State Registers of clinical establishment;(b) sending monthly returns for updating the National Register; (c)representing the State in the National Council; (d) hearing of appealsagainst the orders of the authority; and d) publication on annual basisa report on the state of implementation of standards within theirrespective States.30 The State Government shall also, by notification,set-up an authority to be called the district registering authority foreach district for registration of clinical establishments.31

No person shall run a clinical establishment unless it has been dulyregistered in accordance with the provisions of this Act.32 Forregistration and continuation, every clinical establishment shall fulfil

26Clinical Establishments (Registration and Regulation) Act, 2010 Section 2(1)(c)27Ibid Section 328Ibid Section 529Ibid Section 8 (1) &(2)30Ibid Section 8 (5)31Ibid Section 10(1)32Ibid Section 11


the following conditions, namely: (i) the minimum requirement ofpersonnel as may be prescribed; (ii) provisions for maintenance ofrecords and reporting as may be prescribed; (iii) such other conditionsas may be prescribed. The clinical establishment shall undertake toprovide within the staff and facilities available, such medical examinationand treatment as may be required to stabilise the emergency medicalcondition of any individual who comes or is brought to such clinicalestablishment.33 The Act provides that the Clinical establishments ofdifferent systems shall be classified into such categories, as may beprescribed by the Central Government, from time to time. Differentstandards may be prescribed for classification of different categories;however, in prescribing the standards for clinical establishments, theCentral Government shall have regard to the local conditions.34 Thecertificate of registration shall be kept affixed in a conspicuous placein the clinical establishment in such manner so as to be visible to everyone visiting such establishment.35

Whoever contravenes any provision of this Act shall, if no penaltyis provided elsewhere, be punishable for the first offence with finewhich may extend to ten thousand rupees, for any second offencewith fine which may extend to fifty thousand rupees and for anysubsequent offence with fine which may extend to five lakh rupees.36

Whoever carries on a clinical establishment without registration shall,on first contravention, be liable to a monetary penalty up to fiftythousand rupees, for second contravention with a monetary penaltywhich may extend to two lakh rupees and for any subsequentcontravention with a monetary penalty which may extend to fivelakh rupees. Whoever knowingly serves in a clinical establishmentwhich is not duly registered under this Act, shall be liable to a monetarypenalty which may extend to twenty-five thousand rupees.37 Whoeverwilfully disobeys any direction lawfully given by any person or authorityempowered under this Act to give such direction, or obstructs anyperson or authority in the discharge of any functions which suchperson or authority is required or empowered under this Act to

33Ibid Section 1234Ibid Section 1335Ibid Section 1836Ibid Section 4037Ibid Section 41(1)&(2)


discharge, shall be liable to a monetary penalty which may extend tofive lakh rupees. Whoever being required by or under this Act tosupply any information wilfully withholds such information or givesinformation which he knows to be false or which he does not believeto be true, shall be liable to a monetary penalty which may extend tofive lakh rupees.38 Whoever contravenes any provision of this Actor any rule made there under resulting in deficiencies that do notpose any imminent danger to the health and safety of any patientand can be rectified within a reasonable time, shall be punishablewith fine which may extend to ten thousand rupees.39

Negligence-Concept and Definition

Negligence is not susceptible to any precise definition. Variousmeanings may be attributed to negligence. First, negligence connotescareless state of mind which may amount to recklessness orindifference. This meaning of negligence is the basis of criminalliability. Secondly, negligence is careless conduct without referenceto any duty to take care like in case of contributory negligence. Lastly,negligence refers to a breach of legal duty to take care. Lord Wrightpointed out “Negligence means more than headless or carelessconduct, whether in omission or commission; it properly connotesthe complex concept of duty, breach and damage thereby sufferedby the person to whom the duty was owing”.40 Negligence is thebreach of duty caused by the omission to do something which areasonable man, guided by those considerations which ordinarilyregulate the conduct of human affairs would do, or doing somethingwhich a prudent and reasonable man would not do.41 According toWinfield42 “negligence as a tort is the breach of a legal duty to takecare which results in damage, undesired by the defendant to theplaintiff”. The essential components of definition of negligence aspropounded by Charlesworth and Percy43 are:

• the existence of a duty to take care, which is owed by thedefendant to the complainant;

38Ibid Section 42(1) &(2)39Ibid Section 4340Lochgelly Iron and Coal Co. vs. M. Mullan[1934] AC 1.41Blyth vs Birmingham Waterworks Co., (1856) 11 Ex 78142Winfield and Jolowicz, Tort, 12th Edition, p.6943Charlesworth & Percy on Negligence, 9th Edn, p. 16


• the failure to attain that standard of care, prescribed by thelaw, thereby committing a breach of such duty; and

• damage, which is both casually connected with such breachand recognized by the law, has been suffered by thecomplainant.

Negligence is not an absolute term, but is a relative one; it israther a comparative term. It varies as per the circumstances. Theomission to do what the law obligates or even the failure to do anythingin a manner, mode or method envisaged by law would equally andper se constitute negligence. Tortious liability arises from the breachof a duty primarily fixed by law, the duty is towards the persongenerally and its breach is redressible by an action for unliquidateddamages. When a medical practitioner accepts the responsibility andundertakes the treatment of a patient, he owes a duty to the patientto use diligence, care, knowledge, skill and caution in administeringthe treatment. Neither any contractual relationship nor any rewardfor service is necessary. The law requires fair and reasonablestandard of care and competence.

Medical Negligence

Medical profession is considered as a most pious profession allover the world. A doctor is placed only second to Almighty God.Medical profession is a humanitarian service, it is human and humanein its application. Its sole object is improvement of the quality of thelife of the people and alleviation of sickness and suffering. It is asubtle blend of science and humanities. It is not a mathematicalprocess but a deductive science. It is a service orientated liberalprofession having a self-regulating code of ethics. It is a science ofuncertainty and the art of possibility. A medical professional dealswith human body consisting of flesh and emotions. He does not dealwith a machine. In the famous case of Hucks vs. Cole,44 LordDenning pointed out that a charge of professional negligence againsta medical man stood on a different footing to a charge of negligenceagainst the driver of a motor car. It affected his professional statusand reputation. Therefore, the burden of proof was correspondinglygreater.

441968 (118) New Law Journal 469


Medical negligence means, negligence resulting from the failureon the part of the doctor to act in accordance with medical standardsin practice, which are being practiced by an ordinary and reasonablycompetent man practicing the same profession. In Dr. C.J.Subramania vs. Kumarasamy,45 the Madras High Court hasobserved that medicine is an inexact science and it is unlikely that aresponsible doctor would intend to give an assurance to achieve aparticular result. Not everyone or mere error of judgment can becastigated as negligence in the legal sense, but it is only such anerror which a reasonably competent professional man, acting withordinary care might not commit.

The doctors owe a duty of care to their patients. Failure to showdue care or skill in medical treatment resulting in death, injury or painto the patient gives rise to a cause of action. Shelat J. in Dr. LaxmanBalkrishna Joshi vs. Dr. Trimbak Babu Godbole46 laid down thecriteria to determine duty of medical man as follow:

“A person (doctor) who holds himself out ready to give medicaladvice and treatment impliedly undertakes that he is possessedof skill and knowledge for that purpose. Such a person whenconsulted by a patient owes him certain duties, viz. a duty ofcare in deciding whether to undertake the case; a duty of care indeciding what treatment to give or a duty of care in theadministration of that treatment. A breach of any of those dutiesgives a right of action for negligence to the patient”.

Every person has a duty to take reasonable care to avoidforeseeable harm to his neighbour. The professional has no duty toguard against the risks which are beyond the ambit of theprofessional’s contemplation and as such truly unforeseeable. Thequestion of foreseeability is to be judged according to the knowledgepossessed by the professional at the time of accident, and not by thewisdom of hindsight. The subsequent developments cannot be takeninto consideration to hold the professional negligent. In Roe vs.Minister of Health47 an anaesthetist was acquitted of the chargesof negligence for administering an anaesthetic kept in a manner

45I (1994) CPJ 50946AIR 1969 SC 12847(1954) 2 QB 66


thought to be safe in 1947 though subsequent developments in medicalscience proved that manner of keeping the anaesthetic as dangerous.

Standard of Care

Bolam Test

The standard of skill and competence expected from medicalman was laid down by McNair J. in Bolam vs. Friern HospitalManagement Committee48 known as Bolam Test which is as follows:

“ …where you get a situation which involves the use of somespecial skill or competence, then the test whether there has beennegligence or not is not the test of the man on the top of a Claphamomnibus, because he has not got this special skill. The test is thestandard of the ordinary skilled man exercising and professing tohave that special skill. A man need not possess the highest expertskill at the risk of being found negligent. It is well established lawthat it is sufficient if he exercises the ordinary skill of an ordinarycompetent man exercising that particular art. A doctor is not guiltyof negligence if he has acted in accordance with a practice acceptedas proper by a responsible body of medical man skilled in thatparticular art. Putting it the other way round a doctor is not negligent,if he has acted in accordance with such a practice, merely becausethere is a body of opinion that takes a contrary view. At the sametime, that does not mean that a medical man can obstinately andpig-headedly carry on with some old technique if it has been provedto be contrary to what is really substantially the whole of informedmedical opinion”.

The “Bolam Test” was summarized by Bingham, L.J. inEckersley vs. Binnie,49 in the following words:

“From these general statements it follows that a professionalman should command the corpus of knowledge which formspart of the professional equipment of the ordinary member ofhis profession. He should not lag behind other ordinary assiduousand intelligent members of his profession in the knowledge ofnew advances, discoveries and developments in his field. He

48(1957) 1 WLR 58249(1988)18 Con LR


should have such an awareness as an ordinary competentpractitioner would have of the deficiencies in his knowledge andthe limitations on his skill. He should be alert to the hazards andrisks in any professional task that he undertakes to the extentthat other ordinary competent members of the profession wouldbe alert. He must bring to any professional task he undertakesno less expertise, skill and care than other ordinary competentmembers of his profession would bring, but need bring no more.The standard is that of the reasonable average. The law doesnot require a professional man that he should be a paragoncombining the qualities of paragon and prophet.”

The degree of skill and care required by a medical practitioner isso stated in Halsbury’s Laws of England (Fourth Edition, Vol.30,Para 35):

“The practitioner must bring to his task a reasonable degree ofskill and knowledge, and must exercise a reasonable degree ofcare. Neither the very highest nor a very low degree of careand competence, judged in the light of the particularcircumstances of each case, is what the law requires, and aperson is not liable in negligence because someone else of greaterskill and knowledge would have prescribed different treatmentor operated in a different way; nor is he guilty of negligence ifhe has acted in accordance with a practice accepted as properby a responsible body of medical men skilled in that particularart, even though a body of adverse opinion also existed amongmedical men.

Deviation from normal practice is not necessarily evidence ofnegligence. To establish liability on that basis it must be shown(1) that there is a usual and normal practice; (2) that the defendanthas not adopted it; and (3) that the course in fact adopted is oneno professional man of ordinary skill would have taken had hebeen acting with ordinary care.”

The doctor is not held negligent simply because something goeswrong. He is not liable for mischance or misadventure, or for anerror of judgment. He is not liable for taking one choice out of two orfor favouring one school rather than another. He is only liable when


he falls below the standard of a reasonably competent practitioner inhis field so that his conduct may be deserving of censure orinexcusable.50 A doctor is required to exercise a reasonable degreeof care- that degree of care and competence which “an ordinarymember of the profession who professes to have those skills wouldexercise in the circumstances in question”. However, there isdifference in ‘standard of care’ on one hand and ‘degree of care’ onthe other. The standard of care expected from a doctor remainssame in all the cases, but the degree of care will be different indifferent circumstances. While the same standard of care is expectedfrom a generalist and a specialist, the degree of care would bedifferent. A higher degree of skill is expected from a specialist whencompared to that of a generalist. What amount to reasonable degreeof care, changes with the advancement of science and technology.A doctor is required to constantly update his knowledge and improvethe standard expected of him.

The Supreme Court of India in Dr. Laxman Balkrishna Joshivs Dr. Trimbak Babu Godbole & Anr.51 has held that :

“A person who holds himself out ready to give medical adviceand treatment impliedly undertakes that he is possessed of skilland knowledge for the purpose. The practitioner must bring tohis task a reasonable degree of skill and knowledge and mustexercise a reasonable degree of care. Neither the very highestnor a very low degree of care and competence judged in thelight of the particular circumstances of each case is what thelaw requires. The doctor no doubt has a discretion in choosingtreatment which he proposes to give to the patient and suchdiscretion is relatively ample in case of emergency.”

A mistake by a medical practitioner which no reasonablecompetent and a careful practitioner would have committed is anegligent one. The skill of medical practitioners differs from doctorto doctor. The very nature of the profession is such that there maybe more than one course of treatment which may be advisable fortreating a patient. Courts would indeed be slow in attributingnegligence on the part of a doctor if he has performed his duties to

50Hucks vs. Cole, 1968 (118) New Law Journal 469.51AIR 1969 SC 128


the best of his ability and with due care and caution. Medical opinionmay differ with regard to the course of action to be taken by thedoctor treating a patient, but as long as a doctor acts in a mannerwhich is acceptable to the medical profession and the court findsthat he has attended on the patient with due care, skill and diligence.52

The Bolam case in common laws jurisdictions is weakened in recentyears by reasons of series of decisions in Australia [Rogers v. Whitaker:(1992) 109 Aus LR 625 and Roenbreg v. Percival 2001 HCA 18];Canada [Ribl v. Hughes: (1980) 114 DLR 3d 1] and the United Statesand even in the United Kingdom. Bolitho v. City and Hackney HealthAuthority, [(1997) 4 All ER 771 (HL)] is one of the cases where theCourt got away from yet another aspect of Bolam case.

Bolitho Case

In this case53 Patrick, a two years old boy was admitted to St.Bartholomew’s suffering from croup and was treated under the careof the senior pediatrics registrar, Dr. Janet Horn, and the senior houseofficer in pediatrics, Dr. Keri Rodger. He suffered catastrophic braindamage as a result of cardiac arrest induced by respiratory failure.Dr. Horn was charged of medical negligence for breach of her dutyof care as she did not attend Patrick after receiving such telephonecalls or arrange for a suitable deputy to do so. The real question waswhat would Dr. Horn or that other doctor have done, or what shouldthey have done. Whether Dr. Horn would have intubated (or madepreparations for intubation), and, even if she would not, whethersuch a failure on her part would have been contrary to acceptedpractice in the profession”. If she would not have intubated, wouldthat have been negligent?

In this case House of Lords observed that: In the Bolam caseHouse of Lords has stated that the defendant had to have acted inaccordance with the practice accepted as proper by a “responsiblebody of medical men” and had referred to “a standard of practicerecognised as proper by a competent reasonable body of opinion”and “respectable” body of professional opinion. The use of theseadjectives -responsible, reasonable and respectable—all show that

52Achutrao Haribhabu Khodwa & Ors. vs State of Maharashtra & Ors. (1996)2SCC 634

53Bolitho v. City and Hackney Health Authority [1997] 4 All ER 771


the court has to be satisfied that the exponents of the body of opinionrelied upon can demonstrate that such opinion has a logical basis. Inparticular in cases involving, as they so often do, the weighing ofrisks against benefits, the judge before accepting a body of opinionas being responsible, reasonable or respectable, will need to besatisfied that, in forming their views, the experts have directed theirminds to the question of comparative risks and benefits and havereached a defensible conclusion on the matter.

When the evidence shows that a lacuna in professional practiceexists by which risks of grave danger are knowingly taken, then,however small the risk, the court must anxiously examine thatlacuna—particularly if the risk can be easily and inexpensivelyavoided. If the court finds, on an analysis of the reasons given fornot taking those precautions that, in the light of current professionalknowledge, there is no proper basis for the lacuna, and that it isdefinitely not reasonable that those risks should have been taken, itsfunction is to state that fact and where necessary to state that itconstitutes negligence. In such a case the practice will no doubtthereafter be altered to the benefit of patients. On such occasionsthe fact that other practitioners would have done the same thing asthe defendant practitioner is a very weighty matter to be put on thescales on his behalf; but it is not conclusive. The court must be vigilantto see whether the reasons given for putting a patient at risk arevalid in the light of any well-known advance in medical knowledge,or whether they stem from a residual adherence to out-of-date ideas.

In cases of diagnosis and treatment there are cases where, despitea body of professional opinion sanctioning the defendant’s conduct,the defendant can properly be held liable for negligence. That isbecause, in some cases, it cannot be demonstrated to the judge’ssatisfaction that the body of opinion relied upon is reasonable orresponsible. In the vast majority of cases the fact that distinguishedexperts in the field are of a particular opinion will demonstrate thereasonableness of that opinion. In particular, where there arequestions of assessment of the relative risks and benefits of adoptinga particular medical practice, a reasonable view necessarilypresupposes that the relative risks and benefits have been weighedby the experts in forming their opinions. But if, in a rare case, it canbe demonstrated that the professional opinion is not capable of


withstanding logical analysis, the judge is entitled to hold that thebody of opinion is not reasonable or responsible.

The court emphasised the view that it will very seldom be rightfor a judge to reach the conclusion that views genuinely held by acompetent medical expert are unreasonable. The assessment ofmedical risks and benefits is a matter of clinical judgment which ajudge would not normally be able to make without expert evidence.It would be wrong to allow such assessment to deteriorate intoseeking to persuade the judge to prefer one of two views both ofwhich are capable of being logically supported. It is only where ajudge can be satisfied that the body of expert opinion cannot belogically supported at all that such opinion will not provide the benchmark by reference to which the defendant’s conduct falls to beassessed.

Upholding the conclusions reached by the Court of Appeal anddismissing the appeal, the HoL in the present case on the basis ofexpert evidence did not hold the doctor guilty. According to theexpert’s view intubation was not the right course as being“unreasonable and illogical.” Although Patrick had two severerespiratory crises, he had recovered quickly from both and for therest presented as a child who was active and running about. Theexpert’s view was that these symptoms did not show a progressiverespiratory collapse and that there was only a small risk of totalrespiratory failure. Intubation is not a routine, risk-free process. It is“a major undertaking—an invasive procedure with mortality andmorbidity attached—it was an assault.” It involves anaesthetisingand ventilating the child. A young child does not tolerate a tube easily“at any rate for a day or two” and the child unless sedated tends toremove it. In those circumstances it cannot be suggested that it wasillogical for Dr. Dinwiddie a most distinguished expert to favour runningwhat, in his view, was a small risk of total respiratory collapse ratherthan to submit Patrick to the invasive procedure of intubation.

In Kusum Sharma & Ors. vs. Batra Hospital & MedicalResearch Centre and Ors.54 on scrutiny of the leading cases ofmedical negligence both in our country and other countries especiallyin United Kingdom, the Supreme Court laid down some basic

54I (2010) CPJ 29 (SC)


principles to deal with the cases of medical negligence. The courtheld that in deciding whether the medical professional is guilty ofmedical negligence following principles must be kept in mind:

i. Negligence is the breach of a duty exercised by omission todo something which a reasonable man, guided by thoseconsiderations which ordinarily regulate the conduct ofhuman affairs, would do, or doing something which a prudentand reasonable man would not do.

ii. Negligence is an essential ingredient of the offence. Thenegligence to be established by the prosecution must beculpable or gross and not the negligence merely based uponan error of judgment.

iii. The medical professional is expected to bring a reasonabledegree of skill and knowledge and must exercise a reasonabledegree of care. Neither the very highest nor a very lowdegree of care and competence judged in the light of theparticular circumstances of each case is what the lawrequires.

iv. A medical practitioner would be liable only where his conductfell below that of the standards of a reasonably competentpractitioner in his field.

v. In the realm of diagnosis and treatment there is scope forgenuine difference of opinion and one professional doctor isclearly not negligent merely because his conclusion differsfrom that of other professional doctor.

vi. The medical professional is often called upon to adopt aprocedure which involves higher element of risk, but whichhe honestly believes as providing greater chances of successfor the patient rather than a procedure involving lesser riskbut higher chances of failure. Just because a professionallooking to the gravity of illness has taken higher element ofrisk to redeem the patient out of his/her suffering which didnot yield the desired result may not amount to negligence.

vii. Negligence cannot be attributed to a doctor so long as heperforms his duties with reasonable skill and competence.Merely because the doctor chooses one course of action inpreference to the other one available, he would not be liable


if the course of action chosen by him was acceptable to themedical profession.

viii. It would not be conducive to the efficiency of the medicalprofession if no doctor could administer medicine without ahalter round his neck.

ix. It is the bounden duty and obligation of the civil society toensure that the medical professionals are not unnecessarilyharassed or humiliated so that they can perform theirprofessional duties without fear and apprehension.

x. The medical practitioners at times also have to be savedfrom such a class of complainants who use criminal processas a tool for pressurizing the medical professionals/hospitalsparticularly private hospitals or clinics for extracting uncalledfor compensation. Such malicious proceedings deserve tobe discarded against the medical practitioners.

xi. The medical professionals are entitled to get protection solong as they perform their duties with reasonable skill andcompetence and in the interest of the patients. The interestand welfare of the patients have to be paramount for themedical professionals.

Duties of a Doctor

Doctors generally have certain duties towards their patients.Some of the important duties which have been recognized are:

� To exercise a reasonable degree of skill and knowledge anda reasonable degree of care;

� To exercise reasonable care in deciding whether toundertake the case and also in deciding what treatment togive and how to administer that treatment;

� To extend his service with due expertise for protecting thelife of the patient and to stabilize his condition in emergencysituations;

� To attend to his patient when required and not to withdrawhis services without giving him sufficient notice;

� To study the symptoms and complaints of the patient carefullyand to administer standard treatment;


� To carry out necessary investigations through appropriatelaboratory tests wherever required to arrive at a properdiagnosis;

� To advise and assist the patient to get a second opinion andcall a specialist if necessary;

� To obtain informed consent from the patient for procedureswith inherent risks to life;

� To take appropriate precautionary measures beforeadministering injections and medicines and to meetemergency situations;

� To inform the patient or his relatives the relevant facts abouthis illness;

� To keep secret the confidential information received fromthe patient in the course of his professional engagement;and

� To notify the appropriate authorities of dangerous andcommunicable diseases.55

Duties of Doctor under Code of Medical Ethics

Indian Medical Council (Professional Conduct, Etiquette andEthics) Regulations, 2002

Every system of medicine has brought out a set of regulations tomaintain the professional conduct and etiquette among its members.In exercise of the powers conferred under section 20A read withsection 33(m) of the Indian Medical Council Act, 1956 the MedicalCouncil of India, with the previous approval of the CentralGovernment, has made regulations relating to the ProfessionalConduct, Etiquette and Ethics for registered medical practitionersknown as the Indian Medical Council (Professional Conduct, Etiquetteand Ethics) Regulations, 2002. The duties and responsibilities of thedoctors are enlisted in Chapters 1to 5 of the above regulations.

Duties and Responsibilities of the Physician in General

� A physician shall uphold the dignity and honour of his profession.

55M. K. Balachandran, Consumer Protection Act and Medical Profession, CCS,IIPA, 2006, pp. 7-8


� The prime object of the medical profession is to render serviceto humanity; reward or financial gain is a subordinateconsideration. Who-so-ever chooses his profession, assumes theobligation to conduct himself in accordance with its ideals.

� A physician should be an upright man, instructed in the art ofhealings. He shall keep himself pure in character and be diligentin caring for the sick; he should be modest, sober, patient, promptin discharging his duty without anxiety; conducting himself withpropriety in his profession and in all the actions of his life.

� No person other than a doctor having qualification recognised byMedical Council of India and registered with Medical Council ofIndia/State Medical Council (s) is allowed to practice Modernsystem of Medicine or Surgery.

� Physicians should merit the confidence of patients entrusted totheir care, rendering to each a full measure of service anddevotion.

� Physicians should try continuously to improve medical knowledgeand skills and should make available to their patients and colleaguesthe benefits of their professional attainments.

� The physician should practice methods of healing founded onscientific basis and should not associate professionally with anyonewho violates this principle. The honoured ideals of the medicalprofession imply that the responsibilities of the physician extendnot only to individuals but also to society.

� For the advancement of his profession, a physician should affiliatewith associatios and societies of allopatic medical profession andinvolve actively in the functioning of such bodies.

� Every physician shall maintain the medical records pertaining tohis / her indoor patients for a period of 3 years from the date ofcommencement of the treatment in a standard proforma laiddown by the Medical Council of India. If any request is made formedical records either by the patients / authorised attendant orlegal authorities involved, the same may be duly acknowledgedand documents shall be issued within the period of 72 hours.

� A Registered medical practitioner shall maintain a Register ofMedical Certificates giving full details of certificates issued.


� Efforts shall be made to computerize medical records for quickretrieval.

� Every physician shall display the registration number accordedto him by the State Medical Council / Medical Council of India inhis clinic and in all his prescriptions, certificates, money receiptsgiven to his patients.

� Every physician should, as far as possible, prescribe drugs withgeneric names and he / she shall ensure that there is a rationalprescription and use of drugs.

� A Physician should expose, without fear or favour, incompetentor corrupt, dishonest or unethical conduct on the part of membersof the profession.

� The personal financial interests of a physician should not conflictwith the medical interests of patients. A physician should announcehis fees before rendering service and not after the operation ortreatment is under way. It is unethical to enter into a contract of “nocure no payment”. Physician rendering service on behalf of the stateshall refrain from anticipating or accepting any consideration.

� The physician shall observe the laws of the country in regulatingthe practice of medicine and shall also not assist others to evadesuch laws. He should be cooperative in observance andenforcement of sanitary laws and regulations in the interest ofpublic health.

Duties of Physicians to their Patients

Obligations to the Sick

� Though a physician is not bound to treat each and every personasking his services, he should not only be ever ready to respondto the calls of the sick and the injured, but should be mindful ofthe high character of his mission and the responsibility hedischarges in the course of his professional duties. In histreatment, he should never forget that the health and the lives ofthose entrusted to his care depend on his skill and attention.

� A physician should endeavour to add to the comfort of the sickby making his visits at the hour indicated to the patients.

� A physician advising a patient to seek service of another physician


is acceptable, however, in case of emergency a physician musttreat the patient.

� No physician shall arbitrarily refuse treatment to a patient.However, for good reason, when a patient is suffering from anailment which is not within the range of experience of the treatingphysician, the physician may refuse treatment and refer the patientto another physician.

� Medical practitioner having any incapacity detrimental to thepatient or which can affect his performance vis-à-vis the patientis not permitted to practice his profession.

� Patience and delicacy should characterize the physician.

� Confidences concerning individual or domestic life entrusted bypatients to a physician and defects in the disposition or characterof patients observed during medical attendance should never berevealed unless their revelation is required by the laws of theState. Sometimes, however, a physician must determine whetherhis duty to society requires him to employ knowledge, obtainedthrough confidence as a physician, to protect a healthy personagainst a communicable disease to which he is about to beexposed. In such instance, the physician should act as he wouldwish another to act toward one of his own family in likecircumstances.

� The physician should neither exaggerate nor minimize the gravityof a patient’s condition. He should ensure himself that the patient,his relatives or his responsible friends have such knowledge ofthe patient’s condition as will serve the best interests of the patientand the family.

� A physician is free to choose whom he will serve. He should,however, respond to any request for his assistance in anemergency. Once having undertaken a case, the physician shouldnot neglect the patient, nor should he withdraw from the casewithout giving adequate notice to the patient and his family.

Duties of Physician in Consultation

� Unnecessary consultations should be avoided- in case of seriousillness and in doubtful or difficult conditions, the physician shouldrequest consultation, but under any circumstances such


consultation should be justifiable and in the interest of the patientonly and not for any other consideration. Consulting pathologists/radiologists or asking for any other diagnostic lab investigationshould be done judiciously and not in a routine manner.

� In every consultation, the benefit to the patient is of foremostimportance. All physicians engaged in the case should be frankwith the patient and his attendants.

� Utmost punctuality should be observed by a physician in makingthemselves available for consultations.

� All statements to the patient or his representatives should takeplace in the presence of the consulting physicians, except asotherwise agreed. The disclosure of the opinion to the patient orhis relatives or friends shall rest with the medical attendant.

� No decision should restrain the attending physician from makingsuch subsequent variations in the treatment if any unexpectedchange occurs, but at the next consultation, reasons for thevariations should be discussed/explained.

� When a patient is referred to a specialist by the attendingphysician, a case summary of the patient should be given to thespecialist, who should communicate his opinion in writing to theattending physician.

� A physician shall clearly display his fees and other charges onthe board of his chamber and/or the hospitals he is visiting.Prescription should also make clear if the physician himselfdispensed any medicine.

� A physician shall write his name and designation in full alongwith registration particulars in his prescription letter head.

Liability under Other Laws

If the doctor is negligent in performance of his duties he is opento both criminal and civil liability. Besides the civil liability fornegligence under Law of Torts, the liability may also arise under theIndian Medical Council Act, 1956 for professional misconduct,criminal liability under Indian Penal Code, 1860 and contractual liabilityunder Indian Contract Act, 1872.


Liability for Professional Misconduct

The Indian Medical Association established under the IndianMedical Council Act, 1956 and the State Medical Councils establishedunder State Acts are empowered to take disciplinary action forprofessional misconduct against registered medical practitioner andremove their names from the Medical Register if they are found guiltyof professional misconduct. The Indian Medical Council (ProfessionalConduct, Etiquette and Ethics) Regulations, 2002 made under the Actprovides for taking action against professional misconduct includingremoval of names of medical professionals from the Register. Similarly,the Dentists Act, 1948 empowers the Dental Council of India toprescribe standards of professional conduct and etiquette or code ofethics for dentists.56 Section 41 of the Act prescribes procedure forremoval of name of any person from the register.

Criminal Liability

Unlike tort in which extent of liability depends on amount ofdamages, in criminal law the extent of liability depends on the amountand degree of negligence. The degree of negligence in criminal liabilityis higher than that of negligence in tortious liability. In tort unliquidateddamages are awarded whereas punishment is imposed for criminalliability. The civil and criminal remedies are not mutually exclusivebut clearly co-extensive and essentially differ in their context andconsequence. A criminal liability arises when it is proved that thedoctor has committed an act or omission which is the proximate,direct and substantive cause of death is grossly rash or negligent.Under Section 304A a doctor is also punishable if his act is foundgrossly rash and negligent. The offence is cognizable but bailableand triable by Magistrate of First Class. Under Section 304A:

Whosoever causes the death of any person by doing any rash ornegligent act not amounting to culpable homicide, shall bepunished with imprisonment of either description for a term whichmay extend to two year, or with fine, or with both.

In Juggankhan vs. the State of Madhya Pradesh57, theaccused, a registered Homoeopath, administered 24 drops of

56The Dentist Act, 1948 Section 17A57(1965) 1 SCR 14


stramonium and a leaf of dhatura to the patient suffering from guineaworm. The accused had not studied the effect of such substancesbeing administered to a human being. The poisonous contents of theleaf of dhatura, were not satisfactorily established by the prosecution.The Supreme Court exonerated the accused of the charge underSection 302 IPC. However, on a finding that stramonium and dhaturaleaves are poisonous and in no system of medicine, except perhapsAyurvedic system, the dhatura leaf is given as cure for guinea worm,the act of the accused who prescribed poisonous material withoutstudying their probable effect was held to be a rash and negligentact. It would be seen that the profession of a Homoeopath which theaccused claimed to profess did not permit use of the substanceadministered to the patient. The accused had no knowledge of theeffect of such substance being administered and yet he did so. Inthis background, the inference of the accused being guilty of rashand negligent act was drawn against him. The principle whichemerged was that a doctor who administers a medicine known to orused in a particular branch of medical profession impliedly declaresthat he has knowledge of that branch of science and if he does not,in fact, possess that knowledge, he is prima facie acting with rashnessor negligence.

In Poonam Verma v. Ashwin Patel and Ors.,58 a doctorregistered as medical practitioner and entitled to practice inHomoeopathy only, prescribed an allopathic medicine to the patient.The patient died. The doctor was held to be negligent and liable tocompensate the wife of the deceased for the death of her husbandon the ground that the doctor who was entitled to practice inhomoeopathy only, was under a statutory duty not to enter the fieldof any other system of medicine and since he trespassed into aprohibited field and prescribed the allopathic medicine to the patientcausing the death, his conduct amounted to negligence per seactionable in civil law.

In Dr. Suresh Gupta’s case59, the patient, a young man with nohistory of any heart ailment, was subjected to an operation performedby Dr. Suresh Gupta for nasal deformity. The operation was neither

58(1996) 4 SCC 33259Dr. Suresh Gupta vs. Govt. of NCT of Delhi and Anr. (2004) 6 SCC 422.


complicated nor serious; however, the patient died. On investigation,the cause of death was found to be “not introducing a cuffedendotracheal tube of proper size as to prevent aspiration of bloodfrom the wound in the respiratory passage”. The Supreme Courtopined that this act attributed to the doctor, even if accepted to betrue, could be described as an act of negligence as there was lack ofdue care and precaution. But, the Court categorically held “for thisact of negligence he may be liable in tort, his carelessness or want ofdue attention and skill cannot be described to be so reckless or grosslynegligent as to make him criminally liable”.

The Court held:

“When a patient agrees to go for medical treatment or surgicaloperation, every careless act of the medical man cannot be termedas ‘criminal’. It can be termed ‘criminal’ only when the medicalman exhibits a gross lack of competence or inaction and wantonindifference to his patient’s safety and which is found to havearisen from gross ignorance or gross negligence. Where apatient’s death results merely from error of judgment or anaccident, no criminal liability should be attached to it. Mereinadvertence or some degree of want of adequate care andcaution might create civil liability but would not suffice to holdhim criminally liable.

This approach of the courts in the matter of fixing criminal liabilityon the doctors, in the course of medical treatment given by themto their patients, is necessary so that the hazards of medical menin medical profession being exposed to civil liability, may notunreasonably extend to criminal liability and expose them to riskof landing themselves in prison for alleged criminal negligence.

For every mishap or death during medical treatment, the medicalman cannot be proceeded against for punishment. Criminalprosecutions of doctors without adequate medical opinion pointingto their guilt would be doing great disservice to the community atlarge because if the courts were to impose criminal liability onhospitals and doctors for everything that goes wrong, the doctorswould be more worried about their own safety than giving allbest treatment to their patients. This would lead to shaking the


mutual confidence between the doctor and patient. Every mishapor misfortune in the hospital or clinic of a doctor is not a grossact of negligence to try him for an offence of culpable negligence.

Between civil and criminal liability of a doctor causing death ofhis patient the court has a difficult task of weighing the degreeof carelessness and negligence alleged on the part of the doctor.For conviction of a doctor for alleged criminal offence, thestandard should be proof of recklessness and deliberate wrongdoing i.e. a higher degree of morally blameworthy conduct.

To convict, therefore, a doctor, the prosecution has to come outwith a case of high degree of negligence on the part of the doctor.Mere lack of proper care, precaution and attention orinadvertence might create civil liability but not a criminal one.The courts have, therefore, always insisted in the case of allegedcriminal offence against doctor causing death of his patient duringtreatment, that the act complained against the doctor must shownegligence or rashness of such a higher degree as to indicate amental state which can be described as totally apathetic towardsthe patient. Such gross negligence alone is punishable.”

In Jacob Mathew vs. State of Punjab and another60 thedeceased Jiwan Lal was suffering from cancer in an advanced stage.He was admitted as patient in a private ward of CMC Hospital. Hefelt difficulty in breathing. The complainant’s elder brother contactedthe duty nurse, who in her turn called some doctor to attend to thepatient. No doctor turned up for about 20 to 25 minutes. Then, Dr.Jacob Mathew and Dr. Allen Joseph came to the room of the patient.An oxygen cylinder was brought and connected to the mouth of thepatient but the breathing problem increased further. The oxygencylinder was found to be empty. There was no other gas cylinderavailable in the room. Another gas cylinder was brought from theadjoining room. However, there was no arrangement to make thegas cylinder functional and in-between, five to seven minutes werewasted. By this time, another doctor came who declared that thepatient was dead. An FIR was lodged on ground that the death ofthe patient has occurred due to the carelessness of doctors and nurses.

60(2005) 6 SCC 1


The Supreme Court held that the accused appellant cannot beproceeded against under Section 304A IPC on the parameters ofBolam’s test. Reaffirming the legal principles for the prosecution ofa medical professional under Section 304-A of IPC for rash ornegligent act laid down in Dr. Suresh Gupta vs. Government NCTof Delhi61 the Apex Court summed up conclusions as under:62

(1) Negligence is the breach of a duty caused by omission to dosomething which a reasonable man guided by thoseconsiderations which ordinarily regulate the conduct ofhuman affairs would do, or doing something which a prudentand reasonable man would not do. Negligence becomesactionable on account of injury resulting from the act oromission amounting to negligence attributable to the personsued. The essential components of negligence are three:‘duty’, ‘breach’ and ‘resulting damage’.

(2) Negligence in the context of medical profession necessarilycalls for a treatment with a difference. To infer rashness ornegligence on the part of a professional, in particular a doctor,additional considerations apply. A case of occupationalnegligence is different from one of professional negligence. Asimple lack of care, an error of judgment or an accident, is notproof of negligence on the part of a medical professional. Solong as a doctor follows a practice acceptable to the medicalprofession of that day, he cannot be held liable for negligencemerely because a better alternative course or method oftreatment was also available or simply because a more skilleddoctor would not have chosen to follow or resort to that practiceor procedure which the accused followed. When it comes tothe failure of taking precautions what has to be seen is whetherthose precautions were taken which the ordinary experienceof men has found to be sufficient; a failure to use special orextraordinary precautions which might have prevented theparticular happening cannot be the standard for judging thealleged negligence. So also, the standard of care, whileassessing the practice as adopted, is judged in the light of

61(2004) 6 SCC 42262Jacob Mathew vs. State of Punjab and another (2005) 6 SCC 1 para 49


knowledge available at the time of the incident, and not atthe date of trial. Similarly, when the charge of negligencearises out of failure to use some particular equipment, thecharge would fail if the equipment was not generallyavailable at that particular time (that is, the time of theincident) at which it is suggested it should have been used.

(3) A professional may be held liable for negligence on one ofthe two findings: either he was not possessed of the requisiteskill which he professed to have possessed, or, he did notexercise, with reasonable competence in the given case, theskill which he did possess. The standard to be applied forjudging, whether the person charged has been negligent ornot, would be that of an ordinary competent person exercisingordinary skill in that profession. It is not possible for everyprofessional to possess the highest level of expertise or skillsin that branch which he practices. A highly skilled professionalmay be possessed of better qualities, but that cannot be madethe basis or the yardstick for judging the performance of theprofessional proceeded against on indictment of negligence.

(4) The test for determining medical negligence as laid down inBolam’s case [1957] 1 W.L.R. 582, 586 holds good in itsapplicability in India.

(5) The jurisprudential concept of negligence differs in civil andcriminal law. What may be negligence in civil law may notnecessarily be negligence in criminal law. For negligence toamount to an offence, the element of mens rea must beshown to exist. For an act to amount to criminal negligence,the degree of negligence should be much higher i.e. gross orof a very high degree. Negligence which is neither grossnor of a higher degree may provide a ground for action incivil law but cannot form the basis for prosecution.

(6) The word ‘gross’ has not been used in Section 304A of IPC,yet it is settled that in criminal law negligence or recklessness,to be so held, must be of such a high degree as to be ‘gross’.The expression ‘rash or negligent act’ as occurring in Section304A of the IPC has to be read as qualified by the word‘grossly’.


(7) To prosecute a medical professional for negligence undercriminal law it must be shown that the accused did somethingor failed to do something which in the given facts andcircumstances no medical professional in his ordinary sensesand prudence would have done or failed to do. The hazardtaken by the accused doctor should be of such a nature thatthe injury which resulted was most likely imminent.

(8) Res ipsa loquitur is only a rule of evidence and operates inthe domain of civil law specially in cases of torts and helpsin determining the onus of proof in actions relating tonegligence. It cannot be pressed in service for determiningper se the liability for negligence within the domain of criminallaw. Res ipsa loquitur has, if at all, a limited application intrial on a charge of criminal negligence.

The Supreme Court giving guidelines for prosecution held:

“As we have noticed hereinabove that the cases of doctors(surgeons and physicians) being subjected to criminal prosecutionare on an increase. Sometimes such prosecutions are filed byprivate complainants and sometimes by police on an FIR beinglodged and cognizance taken. The investigating officer and theprivate complainant cannot always be supposed to haveknowledge of medical science so as to determine whether theact of the accused medical professional amounts to rash ornegligent act within the domain of criminal law under Section304-A of IPC. The criminal process once initiated subjects themedical professional to serious embarrassment and sometimesharassment. He has to seek bail to escape arrest, which may ormay not be granted to him. At the end he may be exonerated byacquittal or discharge but the loss which he has suffered in hisreputation cannot be compensated by any standards.

We may not be understood as holding that doctors can never beprosecuted for an offence of which rashness or negligence is anessential ingredient. All that we are doing is to emphasize theneed for care and caution in the interest of society; for, the servicewhich the medical profession renders to human beings is probablythe noblest of all, and hence there is a need for protecting doctors


from frivolous or unjust prosecutions. Many a complainant prefersrecourse to criminal process as a tool for pressurizing the medicalprofessional for extracting uncalled for or unjust compensation.Such malicious proceedings have to be guarded against.

Statutory Rules or Executive Instructions incorporating certainguidelines need to be framed and issued by the Government ofIndia and/or the State Governments in consultation with theMedical Council of India. So long as it is not done, we proposeto lay down certain guidelines for the future which should governthe prosecution of doctors for offences of which criminal rashnessor criminal negligence is an ingredient. A private complaint maynot be entertained unless the complainant has produced primafacie evidence before the Court in the form of a credible opiniongiven by another competent doctor to support the charge of rashnessor negligence on the part of the accused doctor. The investigatingofficer should, before proceeding against the doctor accused ofrash or negligent act or omission, obtain an independent andcompetent medical opinion preferably from a doctor in governmentservice qualified in that branch of medical practice who cannormally be expected to give an impartial and unbiased opinionapplying Bolam’s test to the facts collected in the investigation. Adoctor accused of rashness or negligence, may not be arrested ina routine manner (simply because a charge has been levelledagainst him). Unless his arrest is necessary for furthering theinvestigation or for collecting evidence or unless the investigationofficer feels satisfied that the doctor proceeded against would notmake himself available to face the prosecution unless arrested,the arrest may be withheld.”63

Other provisions of the Indian Penal Code which may be relevantare Section 312 (causing miscarriage), Section 313 (causingmiscarriage without woman’s consent), Section 314 (death causedby act done with the intent to cause miscarriage if the act was donewithout woman’s consent), Section 315 (act done with the intent toprevent the child from being borne alive or to cause it die after birth),Section 316 (causing death of quick unborn child by an act amountingto culpable homicide), Section 317 (exposure and abandonment of

63Ibid paras 51, 52, 53


child under twelve years, by parents or persons having care), Section318 (concealment of birth by secret disposal of dead body), Section337 (rash or negligent act resulting in simple hurt), Section 338 ( rashor negligent act resulting in grievous hurt). Criminal liability may alsoarise under a number of other statutes such as the Indian MedicalCouncil Act, 1956, the Dentists Act, 1948, the Medical Terminationof Pregnancy Act, 1971, the Pre-natal Diagnostic Techniques(Regulation and Prevention of Misuse) Act, 1994, the Transplantationof Human Organs Act, 1994 and other penal laws enacted by theParliament and State legislatures.

Contractual Liability

An agreement supported by consideration is a contract. Theliability under contract arises under the explicit or implied terms ofthe contract. Liability in contract depends on the express or impliedterms agreed upon by the patient and the medical man. Consent fortreatment on payment of fee by the patient is an implied contractwith the doctor who undertakes treatment on acceptance of fee andimpliedly promises to exercise proper care and skill.

Medical Services under Consumer Protection Act

The expression service has been defined in the ConsumerProtection Act as service of any description which is made availableto potential user and includes but not limited to, the provision offacilities in connection with banking, financing, insurance, transport,processing, supply of electrical or other energy, board or lodging orboth, housing construction, entertainment, amusement or purveyingof news or other information, but does not include the rendering ofany service free of charge or under a contract of personal service.64

The deficiency in service is one of the grounds for filing complaintunder the Act and at present majority of complaints before theseadjudicatory bodies relate to the deficiency in service of variousservice providers. The term ‘deficiency’ has also been defined inSection 2(1)(g) of the Act. It means any fault, imperfection,shortcoming or inadequacy in the quality, nature and manner ofperformance which is required to be maintained by or under law forthe time being in force or has been undertaken to be performed by a

64Ibid Section 2(1)(o)


person in pursuance of a contract or otherwise in relation to anyservice.

The “service” defined in Section 2(1)(o) of the ConsumerProtection Act brings within its sweep service of any descriptionavailable to potential user. It is true that the professional services ofdoctors, engineers, lawyers, are not specifically mentioned in Section2(1)(o) of the Consumer Protection Act. The facilities of someservices mentioned in Section 2(1)(o) of the Consumer ProtectionAct are merely illustrative of the definition of service, which is wide,but not exhaustive. Naturally, the professional services of doctors,lawyers, engineers, architects and technical services of mechanics,contractors, builders, fall within the ambit of Section 2(1)(o) of theConsumer Protection Act because these services are available tothe hirer on payment of consideration. Any person who avails themedical services for consideration or beneficiary of those servicesis consumer within the ambit of the Act.

The National Commission in Cosmopolitan Hospital vs SmtVasantha P. Nair65 has settled the law by holding that the professionalservice rendered by a medical practitioner in his consulting room orclinic or hospital on payment amounts to hiring of service forconsideration, which is amenable to the jurisdiction of the ConsumerCourts established under Consumer Protection Act, 1986. The viewof the National Commission was upheld by the Supreme Court66

which has arrived at the conclusion that service rendered to a patientby a medical practitioner (except where the doctor renders servicefree of charge to every patient or under a contract of personalservice), by way of consultation, diagnosis and treatment, bothmedicinal and surgical, would fall within the ambit of “service” asdefined in section 2(1)(o) of the Consumer Protection Act.

The Supreme Court in Indian Medical Association vs V. P.Shantha67 has finally settled the issue of doctors and medicalprofessionals being proceeded against before the consumer forumsand decided several important questions relating to the applicabilityof the provisions of the Consumer Protection Act to the medicalprofession and to cases of medical negligence. The Supreme Court

65I (1992)CPJ 302 (NC)66Indian Medical Association vs. V. P. Shantha AIR 1996 SC 55067AIR 1996 SC 550


held as follows:

1. Service rendered to a patient by a medical practitioner(except where the doctor renders service free of charge toevery patient or under a contract of personal service), byway of consultation, diagnosis and treatment, both medicinaland surgical, would fall within the ambit of ‘service’ as definedin Section 2(1)(o) of the Act.

2. The fact that medical practitioners belong to the medicalprofession and are subject to the disciplinary control of theMedical Council of India and/or State Medical Councilsconstituted under the provisions of the Indian MedicalCouncil Act would not exclude the services rendered by themfrom the ambit of the Act.

3. A ‘contract of personal service’ has to be distinguished froma ‘contract for personal services’. In the absence of arelationship of master and servant between the patient andmedical practitioner, the service rendered by a medicalpractitioner to the patient cannot be regarded as servicerendered under a ‘contract of personal service’. Such serviceis service rendered under a ‘contract for personal service’and is not covered by exclusionary clause of the definitionof ‘service’ contained in Section 2(1)(o) of the Act.

4. The expression ‘contract of personal service’ in Section2(1)(o) of the Act cannot be confined to contracts foremployment of domestic servants only and the said expressionwould include the employment of a medical officer for thepurpose of rendering medical service to the employer. Theservice rendered by a medical officer to his employer underthe contract of employment would be outside the purview of‘service’ as defined in Section 2(1)(o) of the Act.

5. Service rendered free of charge by a medical practitionerattached to a hospital/Nursing home or a medical officeremployed in a hospital/Nursing home where such servicesare rendered free of charge to everybody, would not be“service” as defined in Section 2(1)(o) of the Act. Thepayment of a token amount for registration purpose only atthe hospital/nursing home would not alter the position.


6. Service rendered at a non-Government hospital/Nursinghome where no charge whatsoever is made from any personavailing the service and all patients (rich and poor) are givenfree service – is outside the purview of the expression‘service’ as defined in Section 2(1)(o) of the Act. Thepayment of a token amount for registration purpose only atthe hospital/Nursing home would not alter the position.

7. Service rendered at a non-Government hospital/Nursinghome where charges are required to be paid by the personsavailing such services, falls within the purview of theexpression ‘service’ as defined in Section 2(1)(o) of the Act.

8. Service rendered at a non-Government hospital/Nursinghome where charges are required to be paid by personswho are in a position to pay and persons who cannot affordto pay are rendered service free of charge would fall withinthe ambit of the expression ‘service’ as defined in Section2(1)(o) of the Act irrespective of the fact that the service isrendered free of charge to persons who are not in a positionto pay for such services. Free service, would also be“service” and the recipient a “consumer” under the Act.

9. Service rendered at a Government hospital/health centre/dispensary where no charge whatsoever is made from anyperson availing the services and all patients (rich and poor)are given free ‘service’- is outside the purview of theexpression ‘service’ as defined in Section 2(1)(o) of the Act.The payment of a token amount for registration purpose onlyat the hospital/nursing home would not alter the position.

10. Service rendered at a Government hospital/health centre/dispensary where service are rendered on payment ofcharges and also rendered free of charge to other personsavailing such services would fall within the ambit of theexpression ‘service’ as defined in Section 2(1)(o) of the Actirrespective of the fact that the service is rendered free ofcharge to persons who do not pay for such service. Freeservice would also be “service” and the recipient a“consumer” under the Act.

11. Service rendered by a medical practitioner or hospital/nursing


home cannot be regarded as service rendered free of charge,if the person availing the service has taken an insurancepolicy for medical care where under the charges forconsultation, diagnosis company and such service would fallwithin the ambit of ‘service’ as defined in Section 2(1)(o) ofthe Act.

12. Similarly, where, as a part of the conditions of service, theemployer bears the expenses of medical treatment of anemployee and his family members dependent on him, theservice rendered to such an employee and his familymembers by a medical practitioner or a hospital/nursing homewould not be free of charge and would constitute ‘service’under Section 2(1)(o) of the Act.

Instances of Deficiency in Medical Services

In Spring Meadows Hospital vs Harjol Ahluwalia68

Complainant’s child was admitted in the hospital and was diagnosedas suffering from typhoid fever. The nurse at the hospitaladministered internally “Lariago” injection. Immediately after theinjection was administered the child collapsed, suffered a massiveheart attack and was admitted into the emergency ward. Inspite ofthe treatment given, the doctors gave opinion that the child wouldonly live like a vegetable as irreparable damage has been caused tohis brain. The complainant filed complaint before the StateCommission alleging gross deficiency in service which was upheldby the National Commission. In appeal, the Supreme Court held thatwhen a young child is taken to a hospital by his parents and the childis treated by the doctors, the parents would come within the definitionof consumer having hired the services and the young child wouldbecome a consumer under the inclusive definition being a beneficiaryof such services and as such can claim compensation under the Act.

In Dr. M. Kumar vs. Vijay Kumar Srivastava69 the complainanttook his 8 years old son for removal of old teeth. The extraction waswrongfully done wherein actually four teeth were removed. It wasobserved that the doctor had no degree of B.D.S. or M.B.B.S. He

68III (1998) CPJ I (SC)69III (2011) CPJ 113 (NC)


had obtained degree in alternative medicines, which was notrecognized by M.C.I. Yet he was practicing medicine in the name ofthe “Dr. M. Kumar B.D.S.” from his clinic named “Kumar DentalHeath Care Centre”. The National Commission held it a case ofunfair trade practice, holding him liable for making a falserepresentation under Section 2(r)(ii) and Section 2(r)(vi).

In Dr. Martin Joseph & Anr. vs Faizal70 the complainant, aboy of nine, suffered an injury in which a large wooden piece piercedinto his left foot. He was operated to remove the wooden piece andthen referred to Dr Martin Joseph, an orthopaedic surgeon. Despitevarious surgeries and treatment the surgeon was not able to removethe wooden piece completely from the foot of the complainant. As aresult the complainant underwent a lot of sufferings, pain andexpenses without full relief. Complainant father filed a consumercomplaint alleging deficiency in service. The National Commissionheld that the facts of the case speak for themselves and the oppositeparties have not been able to explain how they failed, for nearly ayear, to locate and remove the remnant of the wooden piece fromthe foot of the patient, despite having subjected the patient to variousdiagnostic tests.

In CDR Hospital vs. Mrs. Nirmala Manaseh71 Complainantwent to the hospital of the appellant and the allegation of thecomplainant was that the saline ampule broke and the broken glasspieces got embedded in the complainant’s face and neck. Complainantfurther alleged that blisters had appeared on her face when the doctorapplied spirit on her face. The State Commission came to theconclusion that there was a clear case of medical negligence andallowed complaint awarding compensation and costs. The NationalCommission held that the said blisters on the face developed onlyafter application of liquid on the complainant’s face by the doctorand the reasoning based on which the State Commission passed itsorder was justified. Keeping in view the facts of the case, the NationalCommission held it to be deficiency in service.

In Shefali Bhargava vs. Indraprastha Apollo Hospital72

complainant’s case was that the respondent hospital gave her

70III (2011) CPJ 379 (NC)712004 (1) CPJ 70 (NC)72(2008) I CPJ 216 (NC)


transfusion of improperly tested blood thereby giving her an infectionof Hepatitis virus which ruined her life and the treatment of thesame was difficult and very expensive. Hospital could not give anysatisfactory explanation as to why urgent transfusion becamenecessary and why complainant’s mother’s blood which matchedthe patient was not used. Opposite party did not produce any recordto show that none of the donors was infected with Hepatitis C. Underthe circumstances it was held that the complainant got infection dueto transfusion of contaminated blood because of the respondent’snegligence. The National Commission allowed `10 lakhs towardscosts of the treatment already incurred and `8 lakhs towards cost offuture medical treatment.

In Kishori Lal vs. E. S. I Corporation73 the appellant’s wifewas admitted in the ESI dispensary at Sonepat for treatment ofdiabetes. However, her condition deteriorated and later her tests atprivate hospital revealed that she has been diagnosed incorrectly atthe ESI dispensary. The appellant was insured with ESI Corporation.The Supreme Court in the case held that the medical services renderedby the ESI fall within the ambit of definition of service under Section2(1)(o) of the Act and it cannot be regarded as free service. Theexpense incurred for the service rendered in the hospital would beborne by the contributions made to the insurance scheme by theemployer and the employee. Thus the person availing of such service,whereunder the charges for consultation, diagnosis and medicaltreatment borne by the insurer, such services fall within the ambit ofservice under CPA.

In B. Reghupathi (Dr.) & Anr. vs B. Vasantha & Ors74

complainant’s husband developed pain in his ear. After examinationby the appellant, it was found the pain was actually due to somemalignant growth in the throat. To know the nature of the growth,biopsy was conducted. The patient died in operation theatre due tocardiac arrest. It was found that the death occurred as anaesthesiawas not properly administrated. The appellant had failed to place theendotracheal tube while administering anaesthesia, which had to beintroduced prior to biopsy to keep the patient’s lungs free, maintain

73II(2007) CPJ 25(SC)74I (2008) CPJ 1 (NC)


the breathing and avoid mixing of particles from the food tube intothe air pipe of the human system. As the tube was not introduced, itresulted in the food particles entering into the air pipe and blocking it,thereby affecting the breathing of the patient and thereafter leadingto cardiac arrest. The National Commission held that in suchcircumstances, the principle of res ipsa loquitur would apply becausethe deceased went for biopsy but died of an event, which was notdisclosed by the appellant. It was held that cardiac arrest wasconsequence of deficiency in administering anaesthesia.

In Nizam Institute of Medical Sciences vs Prasanth S.Dhananka and others75 the respondent Prasant S. Dhananka, astudent of Engineering, was admitted to the hospital for excision oftumour. Immediately after the surgery, the complainant developedacute paraplegia with a complete loss of control over the lower limbs,and some other related complications, which led to prolongedhospitalization and he was ultimately completely paralyzed with nochange in his sensory deficit. This made him incapable of all normalchores. The Supreme Court held the opposite parties negligent asthey failed to take proper care in diagnosis and operation and therewas lack of informed consent. The complete investigations prior tothe actual operation had not been carried out. If a MRI or Myclographyhad been performed, the intraspinal extension could well have beenrevealed at the pre-operative stage which could have led to theintervention of a Neuro Surgeon at the time of removal of the tumourand the paraplegia perhaps avoided. On the question whether therequired consent for the excision of the tumour had been taken fromthe complainant or his parents, the Court held that no consent for theoperation had been taken. The consent given by the complainant forthe excision biopsy cannot, by inference, be taken as an impliedconsent for a surgery. It is clear from the evidence that there was nourgency in the matter as the record shows that discussions for thedeferment of the proposed excision biopsy had taken place betweenthe complainant, his parents and the doctor and the consent for theprocedure had been obtained. However, any implied consent for theexcision of the tumour cannot be inferred. Confirming the findingsof the Commission, the Supreme Court held that the attending doctors

75II (2009) CPJ 6 (SC)


were seriously remiss in the conduct of the operation and it was onaccount of this negligence that the Paraplegia had set in. For thenegligence of the doctors the Court granted `1,00,05,000 ascompensation.

In Malay Kumar Ganguly’s case76 the patient Anuradha, a childPsychologist by profession and her husband Dr. Kunal Saha, settledin USA came to Calcutta on vacation. While in Calcutta, Anuradhadeveloped fever along with skin rash which became worse. Dr.Mukherjee prescribed Depomedrol injection 80 mg twice daily forthe next three days. Despite administration of the said injection twicedaily, Anuradha’s condition deteriorated rapidly from bad to worseover the next few days. Accordingly, she was admitted at theAdvanced Medicare Research Institute (AMRI). Anuradha was alsoexamined by Doctors at AMRI and it was found that she had beensuffering from Erithima plus blisters. Her condition, however,continued to deteriorate further. As her condition deteriorated severelyshe was shifted to Breach Candy Hospital, Mumbai where shebreathed her last. Dr. Saha filed a complaint before the NationalCommission claimed an amount of compensation of ̀ 77,76,73,500/-with interest for the alleged deficiency in the service rendered byrespondents. NCDRC opined that all the necessary care was takenby Dr. Mukherjee and Dr. Haldar and there was no negligence onthe part of the doctors. On the question as to whether the respondentswere guilty of any negligence, the Supreme Court concluded thattreatment of Anuradha was not in accordance with the medicalprotocol. Those who support use and administration of steroid do sowith note of caution. They in no uncertain terms state that the sameshould be used at a preliminary stage. The opinion was that theuniversally accepted medicated treatment protocol had also not beenfollowed. It was also noted that there may well be a difference ofopinion on the course of action to be adopted while treating a patientof TEN, but the treatment line followed by Dr. Mukherjee whichentailed administration of 80 mg of Depomedrol injection twice wasnot supported by any school of thought. The treatment line did notflow from any considered affinity to a particular school of thought,but out of sheer ignorance of basic hazards relating to use of steroidsas also lack of judgment.

76Malay Kumar Ganguly vs Sukumar Mukherjee & Ors. III (2009) CPJ 17(SC)


In Ajay Gautam Vs. Amritsar Eye Clinic & Ors.77complainant/appellant Ajay Gautam, came across an advertisement of the oppositeparty-hospital-6/6 Lasik Laser Center, holding out claims about doingaway with the need for spectacles through laser surgery to bring therefractive power to Zero (o) without any adverse effect on visualacuity. The complainant met Dr. Dinesh Sharma for his aforesaidtreatment and after examination of his eyes, doctor assured andpromised to him that through lasik surgery P.R.K., he would bringthe refractive power of his eye to Zero without any effect on visualacuity and that the problem would not recur. Dr. Sharma conductedthe P.R.K Surgery on the left eye. After the surgery, his left eyebecame hyper-metropic due to which he could not see the near anddistant objects clearly. The complainant’s case that even after 16months of the surgery, the vision of the complainant had not stabilizedand complainant’s best visual acuity did not improve to 6/6 andcontinued to be 6/9. The complainant attributed the said reduction inthe vision in his left eye due to the negligence on the part of thedoctor in conducting the said procedure and they are guilty of adoptingunfair trade practice by publishing a misleading advertisement in thenewspapers. The doctor denied that any assurance or guaranteewas given to the complainant that his vision after the operation shallbe 6/6 without glasses and that he has not committed any unethicalpractice.The expert observed that “unaided 6/6 vision cannot beguaranteed to any patient irrespective of the actual surgical techniqueused, as there is often a minor refractive error remaining after theprocedure, and there is also some risk of overcorrection. Unaided 6/9 vision is not an uncommon occurrence after PRK and does notindicate any deficiency in the procedure”. The National Commissionon the basis of expert opinion ruled out any deficiency in theprocedure and rejected the contention of the appellant that therewas any deficiency in conducting the PRK surgery on the left eye ofthe complainant, as a result of which the unaided vision has settledat 6/9. However, on the question as to whether the doctor couldhave published the advertisement making the kind of claims in thesaid advertisement, the Commission was of the opinion that it hasalso been established that the doctor and the hospital are guilty of

77NCDRC First Appeal No. 428 of 2004 decided on 28th August, 2012


adopting unfair trade practice within the meaning of section 2 (1) (r)of the Consumer Protection Act, 1986 as well as violating the Codeof Ethics Regulations (Regulation No. 6.1) by publishing misleadingadvertisement. The National Commission rejected the doctor’scontention because the advertisement clearly held out to theprospective patients about a kind of guarantee ‘to get rid of spectaclesand contact lenses’ and ‘to see the world at large without spectacles’.Such a proclamation was sufficient to allure unwary intended patientsthat their vision would be corrected to 6 /6 situation without the useof the spectacles and contact lenses. In fact it was this advertisementwhich had attracted the complainant to approach the respondent forcorrection of his vision which could not be achieved to the extentmentioned in the advertisement so the proclamation appeared to bemisleading. In the result appeal was partly allowed and hospital anddoctor were directed to pay lump sum compensation of `1, 00,000/-to the complainant and also to give an undertaking before theCommission that he will not publish any such advertisement in future.

Doctrine of Informed Consent

Informed consent means the consent of the patient to theperformance of the health care services provided by a registeredmedical practitioner, that prior to the consent having been given, themedical practitioner has informed the patient of the nature of theproposed procedure or treatment, of those risks and alternativetreatment or diagnosis that a reasonable patient would considermaterial to the decision whether or not to undergo treatment ordiagnosis.78

The doctrine of informed consent has developed in the law asthe primary means of protecting a patient’s right to control his or hermedical treatment. Under the doctrine, no medical procedure maybe undertaken without the patient’s consent obtained after the patienthas been provided with sufficient information to evaluate the risksand benefits of the proposed treatment and other available options.The doctrine presupposes the patient’s capacity to make a subjectivetreatment decision based on her understanding of the necessarymedical facts provided by the doctor and on her assessment of her

78K.Mathiharan & Amrit K. Patnaik, (Ed), Modi’s medical jurisprudence andtoxicology, 23rd Edn. 2005, Lexis Nexis, Butterworths at p. 100


own personal circumstances. A doctor who performs a medicalprocedure without having first furnished the patient with informationneeded to obtain an informed consent will have infringed the patient’sright to control the course of her medical care, and will be liable inbattery even though the procedure was performed with a high degreeof skill and actually benefited the patient.79

Consent in the context of a doctor-patient relationship, meansthe grant of permission by the patient for an act to be carried out bythe doctor, such as a diagnostic, surgical or therapeutic procedure.Consent can be implied in some circumstances from the action ofthe patient. For example, when a patient enters a Dentist’s clinic andsits in the Dental chair, his consent is implied for examination, diagnosisand consultation. Except where consent can be clearly and obviouslyimplied, there should be express consent. There is, however, asignificant difference in the nature of express consent of the patient,known as ‘real consent’ in UK and as ‘informed consent’ in America.In UK, the elements of consent are defined with reference to thepatient and a consent is considered to be valid and ‘real’ when (i) thepatient gives it voluntarily without any coercion; (ii) the patient hasthe capacity and competence to give consent; and (iii) the patienthas the minimum of adequate level of information about the natureof the procedure to which he is consenting to. On the other hand, theconcept of ‘informed consent’ developed by American courts, whileretaining the basic requirements of consent, shifts the emphasis tothe doctor’s duty to disclose the necessary information to the patientto secure his consent. Informed consent’ is defined in Taber’sCyclopedic Medical Dictionary thus: “Consent that is given by aperson after receipt of the following information: the nature andpurpose of the proposed procedure or treatment; the expectedoutcome and the likelihood of success; the risks; the alternatives tothe procedure and supporting information regarding those alternatives;and the effect of no treatment or procedure, including the effect onthe prognosis and the material risks associated with no treatment.Also included are instructions concerning what should be done if theprocedure turns out to be harmful or unsuccessful.”80According toSection 90 of IPC, consent given under fear, fraud or

79Malette vs. Shulman 72 OR (2d) 417 in Ontario Court of Appeal80Samira Kohli vs Dr. Prabha Manchanda & Anr I (2008) CPJ 56 (SC) para 14


misrepresentation of facts or by a person who is ignorant of theimplications of his consent, or who is under twelve years of age, isinvalid.

A doctor is required, as part of his duty of care to his patient, toexplain what he intends to do, and the implication involved, in theway in which a responsible doctor in similar circumstances wouldhave done, and if there is a real risk of misfortune inherent in theprocedure, however well it is carried out, the doctor’s duty is towarn of the risk of such misfortune. A medical practitioner shouldinform his patient of the advantages and disadvantages, the risksand benefits of the proposed course of treatment, so that the patientmay exercise his right of self-determination about the proposed courseof treatment including investigations performed for the purpose ofroutine screening or for specific purpose of differential diagnosis.When questioned specifically by a patient of apparently sound mindabout the risks involved in a particular treatment proposed, thedoctor’s duty is to answer both truthfully and fully as the questionerrequires.81

In Samira Kohli vs Dr. Prabha Manchanda82 the appellant,an unmarried woman aged 44 years, visited the clinic of therespondent complaining of prolonged menstrual bleeding for nine days.The respondent examined and advised her to undergo an ultrasoundtest on the same day. After examining the report, the respondent hada discussion with appellant and advised her to come on the next dayfor a laparoscopy test under general anesthesia, for making anaffirmative diagnosis. Next day, the appellant went to the respondent’sclinic with her mother. On admission, the appellant’s signatures weretaken on: (i) admission and discharge card; (ii) consent form forhospital admission and medical treatment; and (iii) consent form forsurgery. The Admission Card showed that admission was fordiagnostic and operative laparoscopy.When the appellant was stillunconscious, Dr. Lata Rengen, who was assisting the respondent,came out of the Operation Theatre and took the consent of appellant'smother, who was waiting outside, for performing hysterectomy undergeneral anesthesia. Thereafter, the respondent performed a abdominal

81Sidaway vs. Board of Governors of Bethlem Royal Hospital and the MaudsleyHospital (1984) QB 493

82I (2008) CPJ 56 (SC)


hysterectomy (removal of uterus) and bilateral salpingo-oopherectomy (removal of ovaries and fallopian tubes).The appellantfiled a complaint before the National Consumer Disputes RedressalCommission claiming a compensation of `25 lakhs from therespondent. The appellant alleged that respondent was negligent intreating her; that the radical surgery by which her uterus, ovariesand fallopian tubes were removed without her consent, when shewas under general anesthesia for a Laparoscopic test, was unlawful,unauthorized and unwarranted; that on account of the removal ofher reproductive organs, she had suffered premature menopausenecessitating a prolonged medical treatment and a HormoneReplacement Therapy (HRT) course, apart from making hervulnerable to health problems by way of side effects. Thecompensation claimed was for the loss of reproductive organs andconsequential loss of opportunity to become a mother, for diminishedmatrimonial prospects, for physical injury resulting in the loss of vitalbody organs and irreversible permanent damage, for pain, sufferingemotional stress and trauma, and for decline in the health andincreasing vulnerability to health hazards.

Holding the respondent liable for negligence the Supreme Courtheld that prior to surgery, clear, real and valid consent is a must.There was an unauthorized removal of reproductive organs whenthe patient got admitted for Diagnostic Laparoscopy and the consenthad to be obtained before commencing the treatment. Unauthorizedadditional surgery may be beneficial to the patient or would saveconsiderable time, expense, pain and suffering, but it is no ground ofdefence in action in torts, for negligence, assault, battery. Consentgiven for diagnostic and operative Laparoscopy and Laparotomy ifneeded, does not amount to consent for OH-BSO surgery meant forremoving reproductive organs. Patient when competent adult, thereis no question of someone else giving consent. Consent given by themother not valid or real consent. Only exception, where additionalprocedure though unauthorized can be necessary, is in order to savelife or preserve health of a patient.

Summarizing the principles relating to consent the SupremeCourt held as follows:

(i) A doctor has to seek and secure the consent of the patientbefore commencing a ‘treatment’ (the term ‘treatment’


includes surgery also). The consent so obtained should bereal and valid, which means that: the patient should have thecapacity and competence to consent; his consent should bevoluntary; and his consent should be on the basis of adequateinformation concerning the nature of the treatment procedure,so that he knows what he is consenting to.

(ii) The ‘adequate information’ to be furnished by the doctor(or a member of his team) who treats the patient, shouldenable the patient to make a balanced judgment as to whetherhe should submit himself to the particular treatment or not.This means that the doctor should disclose (a) nature andprocedure of the treatment and its purpose, benefits andeffect; (b) alternatives if any available; (c) an outline of thesubstantial risks; and (d) adverse consequences of refusingtreatment. But there is no need to explain remote ortheoretical risks involved, which may frighten or confuse apatient and result in refusal of consent for the necessarytreatment. Similarly, there is no need to explain the remoteor theoretical risks of refusal to take treatment which maypersuade a patient to undergo a fanciful or unnecessarytreatment. A balance should be achieved between the needfor disclosing necessary and adequate information and atthe same time avoid the possibility of the patient being deterredfrom agreeing to a necessary treatment or offering to undergoan unnecessary treatment.

(iii) Consent given only for a diagnostic procedure, cannot beconsidered as consent for therapeutic treatment. Consentgiven for a specific treatment procedure will not be valid forconducting some other treatment procedure. The fact thatthe unauthorized additional surgery is beneficial to the patient,or that it would save considerable time and expense to thepatient, or would relieve the patient from pain and sufferingin future, are not grounds of defence in an action in tort fornegligence or assault and battery. The only exception to thisrule is where the additional procedure though unauthorized,is necessary in order to save the life or preserve the healthof the patient and it would be unreasonable to delay suchunauthorized procedure until patient regains consciousnessand takes a decision.


(iv) There can be a common consent for diagnostic and operativeprocedures where they are contemplated. There can alsobe a common consent for a particular surgical procedureand an additional or further procedure that may becomenecessary during the course of surgery.

(v) The nature and extent of information to be furnished by thedoctor to the patient to secure the consent need not be ofthe stringent and high degree but should be of the extentwhich is accepted as normal and proper by a body of medicalmen skilled and experienced in the particular field. It willdepend upon the physical and mental condition of the patient,the nature of treatment, and the risk and consequencesattached to the treatment.

In Dr. Sathy M. Pillai & Anr. vs. S. Sharma & Anr.83 thehospital obtained informed consent from the patient and the relativeson the printed forms in Malayalam wherein certain English wordslike ‘blood transfusion, Ultra Sound Scan’ were mentioned. But therewas no specific mention of the surgery viz. cervical encirclage andthe type of anaesthesia namely spinal anaesthesia or local anaesthesia.Signatures were taken from patient/ relative in mechanical fashion,much in advance of date scheduled for surgery. The NationalCommission held that such forms cannot be considered by any stretchof imagination that there was an informed consent.

In a case where complainant suffered from DysfunctionalUterine Bleeding (DUB) and her consent was taken for removal ofuterus through Total Abdominal Hysterectomy (TAH). However,hysterectomy operation was performed initially through vaginal routeand thereafter through abdominal route, resulting in rupture of bloodvessel and avulsion of vein. As a result ovaries and left kidney wereremoved. The National Commission held that express consent wasobtained only for TAH and no material was produced by the oppositeparty for choosing vaginal route instead of TAH. Opposite partytransgressed the authority and consent given by the complainant whichamounts to deficiency in service.84 In M. Chinnaiyan vs. Sri

83IV (2007) CPJ 131 (NC)84Saroj Chandhoke vs. Ganga Ram Hosp. & Anr. III(2007)CPJ 189 (NC)


Gokulam Hosp. & Anr.85 the complainant during hysterectomyoperation was transfused two units of blood which was contaminatedwith HIV Virus which resulted in death from HIV-AIDS after three-and-a-half years. The National Commission held that surgery involvesrisk and blood transfusion involves additional risk so the consent ofthe patient was also required for transfusion of blood. In the case, itis clear from the records that the complainant has given consentonly for hysterectomy operation to be performed under generalanaesthesia and not for transfusion of blood.

In Ramgopal Varshney vs. Lasor Sight India Pvt. Ltd.86 thedoctor did not obtain the consent of a patient for a cataract surgeryeven though he was conscious, mentally alert and capable of givingconsent. Consent was given by the grandson of the patient. TheNational Commission held that there was deficiency in service in notobtaining the consent of the patient and also observed:

“The concept of informed consent has come to the fore in recentyears and many actions have been brought by patients whoalleged that they did not understand the nature of the medicalprocedure to which they give consent. All information must beexplained in comprehensible non-medical terms preferably inlocal language about the (i) diagnosis (ii) nature of treatment(iii) risk involved (iv) prospects of success (v) prognosis of theprocedure if not performed and (vi) alternative methods oftreatment. The three important components of such consent areinformation, voluntariness and capacity.”

Informed Consent – Exceptions

There are three exceptions to the duty of disclosure whichare as follows:87

� Therapeutic Privilege-In non-elective treatment, onewhich is essential from a therapeutic point of view, wherethere is no choice to the patient but to opt for it, a doctor caninvoke the protection of therapeutic privilege for non-

85III (2007) CPJ 228 (NC)86I (2009) CPJ 23 (NC),87M. K. Balachandran, Consumer Protection Act and Medical Profession, CCS,

IIPA, 2006, pp. 28


disclosure. It cannot be extended to an elective treatment ora non-life threatening treatment like sterilization operationi.e one that a patient is free to choose.

The exception of therapeutic privilege applies when the physicianor the surgeon believes in the exercise of sound medical judgment,that the patient is so anxiety prone or disturbed that the informationwould not be processed rationally that it would probably causesignificant psychological harm. In such cases consultation with anotherphysician familiar with the patient (family doctor), with a close relativeor friend, or both, is advisable.88

� Emergency- In case of emergency or unconsciousness allthe considerations regarding consent will be set aside anddoctor will do whatever is necessary to save the life of thepatient or to prevent permanent disability or necessary painor suffering. A doctor can lawfully operate on or give othertreatment to adult patients who are incapable of consentingto his doing so, provided the treatment is in the best interestsof such patients i.e. it has been carried out either to savetheir lives or to ensure improvement or prevent deteriorationin their physical or mental health. Thus in circumstances ofgreat urgency warranting immediate treatment to save thelife of a patient there is no time to disclose the risks, thenature of proposed treatment and alternative methods oftreatment and as such the doctor can withhold the informationwith immunity from liability.

In Dr. T.T. Thomas vs. Elisa 89 the patient was admitted in theGeneral Hospital, Ernakulam with complaints of severe abdominalpain. It was diagnosed as a case of “perforated appendix withperitonitis” and was advised immediate operation. Dr. T.T. Thomas,the appellant, who was one of the civil surgeons of the General Hospitalduring the relevant time, examined the patient and confirmed thediagnosis, pursuant to which the patient was removed from theCasualty Ward to the Surgical Ward. No surgery was performed on

88K.Mathiharan & Amrit K. Patnaik, (Ed), Modi’s medical jurisprudence andtoxicology, 23rd Edn., 2005, LexisNexis, Butterworths at p. 100

89I (1987) ACC 445, AIR 1987 Ker 52


the patient on the day of his admission in the hospital. On the nextday his condition deteriorated fast and surgery could not be performedon him and later he died. The main contention of the appellant wasthat no surgery was done on the patient on day of admission becauseof the reluctance of the patient to undergo a surgery saying that “hehad similar attacks before and he used to get relief with injectionsand other medicines.” Therefore, other measures were taken toameliorate the condition of the patient, which grew worse by thenext day. Finally, the court delivered a verdict in favour of theplaintiffs stating that consent under such an emergent situation isnot mandatory. The High Court observed that the consent factormay be important very often in cases of selective operations, whichmay not be imminently necessary to save the patient’s life. Butthere can be instances where a surgeon is not expected to say that‘I did not operate on him because, I did not get his consent’. Suchcases very often include emergency operations where a doctorcannot wait for the consent of his patient or where the patient isnot in a fit state of mind to give or not to give a conscious answerregarding consent. Even if he is in a fit condition to give a voluntaryanswer, the surgeon has a duty to inform him of the dangers aheadof the risks involved by going without an operation at the earliesttime possible. When a surgeon or medical man advances a pleathat the patient did not give his consent for the surgery or the courseof treatment advised by him, the burden is on him to prove that thenon-performance of the surgery or the non-administration of thetreatment was on account of the refusal of the patient to giveconsent thereto. This is especially so in a case where the patient isnot alive to give evidence. Consent is implicit in the case of a patientwho submits to the doctor and the absence of consent must bemade out by the patient alleging it.

Section 92 of IPC offers immediate immunity for registeredmedical practitioner to proceed with appropriate treatment evenwithout consent of the patient in an emergency situation when thevictim is incapable of understanding the nature of the treatment orwhen there is no legal heirs to sign the consent.

� Waiver- A patient may repose his confidence on a doctorand request him not to furnish any information, in which casethe doctor may get a privilege of withholding information.


Burden of Proof

The general rule of negligence is that the burden of provingnegligence lies on the party who alleges it. It is for the patientcomplainant to establish his claim against the medical man. If the initialburden of negligence is discharged by the claimant, it would be for thehospital and the doctor concerned to substantiate their defence thatthere was no negligence. Thus the complainant must allege specificact of negligence and prove how that amounts to negligence. This hasto be supported by expert evidence or medical literature on the subject.A charge of negligence affects the professional status and reputationof a doctor. Therefore, the burden of proof on the part of thecomplainant alleging negligence of the doctor is correspondingly greater.A finding not based on any expert evidence cannot be sustained. InClark vs Maclenna90, it has been held as under:

“Although in an action in negligence the onus of proof normallyrested on the plaintiff, in a case where a general duty of carearose and there was a failure to take a recognised precautionand that failure was followed by the very damages which thatprecaution was designed to prevent, the burden of proof lay onthe defendant to show: first that he was not in breach of anyduty and second, if he had not been in breach of duty , that thedamage suffered by the plaintiff did not result from the breach.Accordingly, doctor owned a duty to his patient to observe theprecautions which were normal in the course of treatment thathe gave. Whether a patient suffered damages after there hadbeen departure from the orthodox course of treatment, the courthad to enquire whether the doctor had taken all proper factorsinto account prior to taking action in order to determine whetherthat departure was justified.”

The Supreme Court in Indian Medical Association vs V.P.Shantha & Ors.91 has observed as under:

“It is no doubt true that sometimes complicated questionsrequiring recording of evidence of experts may arise in acomplaint about deficiency in service based on the ground of

901983 (1) All ER 41691III (1995) CPJ 1 (SC)


negligence in rendering medical services by a medical practitioner,but this would not be so in all complaints about deficiency inrendering services by a medical practitioner. There may be caseswhich do not raise such complicated questions and the deficiencyin service may be due to obvious faults which can be easilyestablished such as removal of wrong limb or the performanceof operation on wrong patient or giving injection of a drug towhich the patient is allergic without looking into the outpatientcard containing the warning as in Chinkeow v Government ofMalaysia, (1967) 1WLR 813 P.C or use of wrong gas duringthe course of anesthetic or leaving inside the patient swabs orother items of operating equipment after surgery.”

Medical science is a difficult one. The court for the purpose ofarriving at a decision on the basis of the opinions of experts musttake into consideration the difference between an ‘expert witness’and an ‘ordinary witness’. The opinion must be based on a personhaving special skill or knowledge in medical science. It could beadmitted or denied. Whether such evidence could be admitted orhow much weight should be given thereto, lies within the domain ofthe court. The evidence of an expert should, however, be interpretedlike any other evidence. The Supreme Court in State of H.P. v. JaiLal and others, [ (1999) 7 SCC 280] held that an expert is not awitness of fact. His evidence is really of an advisory character. Theduty of an expert witness is to furnish the Judge with the necessaryscientific criteria for testing the accuracy of the conclusions so as toenable the Judge to form his independent judgment by the applicationof this criterion to the facts proved by the evidence of the case. Thescientific opinion evidence, if intelligible, convincing and testedbecomes a factor and often an important factor for considerationalong with the other evidence of the case. The credibility of such awitness depends on the reasons stated in support of his conclusionsand the data and material furnished which form the basis of hisconclusions. The report submitted by an expert does not go in evidenceautomatically. He is to be examined as a witness in court and has toface cross- examination.92

The role of expert medical witness is to inform the judge so as toguide him to correct conclusions. It must be for the judge to guess

92Malay Kumar Ganguly vs Sukumar Mukherjee & Ors. III (2009) CPJ 17(SC)


the weight and usefulness of such assistance as he is given and toreach his own conclusions accordingly. An expert witness in a givencase normally discharges two functions. The first duty of an expertis to explain technical issues as clearly as possible so that it can beunderstood by a common man. The other function is to assist thecourt in deciding whether the acts or omissions of medicalpractitioners or the hospital constitute negligence. In doing so, theexpert can throw considerable light on the current state of knowledgein medical science at the time when patient was treated. In most ofthe cases, the question whether a medical practitioner or hospital isnegligent or not, is a mixed question of fact and law and courts arenot bound in every case to accept the opinion of expert witness.Although in many cases the opinion of expert witness may assist thecourt to decide the controversy one way or the other.93

In Savita Garg (Smt.)vs. Director, National Heart Institute94

it has been observed as under:

“Once an allegation is made that the patient was admitted in aparticular hospital and evidence is produced to satisfy that hedied because of lack of proper care and negligence, then theburden lies on the hospital to justify that there was no negligenceon the part of the treating doctor or hospital. Therefore, in anycase, the hospital is in a better position to disclose what carewas taken or what medicine was administered to the patient. Itis the duty of the hospital to satisfy that there was no lack ofcare or diligence. The hospitals are institutions, people expectbetter and efficient service, if the hospital fails to discharge theirduties through their doctors, being employed on job basis oremployed on contract basis, it is the hospital which has to justifyand not impleading a particular doctor will not absolve the hospitalof its responsibilities.”

In Nizam Institute of Medical Sciences vs. Prasanth S.Dhananka & Ors.95 the Supreme Court held that in a case involvingmedical negligence, once the initial burden has been discharged by

93Kiran Gupta, The standard of care and proof of negligence in medical profession-A shift from Bolam to Bolitho, National Capital Law Journal, Vol XIV-XV, 2011-2012, pp. 1-43, at p. 34

94(2004) 8 SCC 5695 II(2009) CPJ 61(SC)


the complainant by making out a case of negligence on the part ofthe hospital or the doctor concerned, the onus then shifts on to thehospital or to the attending doctors and it is for the hospital to satisfythe Court that there was no lack of care or diligence.

The plaintiff in case of medical negligence is ordinarily requiredto produce, in support of his claim, the testimony of qualified medicalexperts. This is because the technical aspects of the claim willordinarily be far beyond the competence of the judges as they lackthe special expertise in the relevant field and are incapable of judgingwhether the facts described by the plaintiff add upto negligentconduct. In Sethuraman Subramaniam Iyer vs Triveni NursingHome & Anr.96 the Complainant’s wife was suffering from Sinusitis.Dr. Rao had diagnosed a condition of deviated Nasal Septum andadvised her that a minor operation would cure the ailmentpermanently. She was assured that there was no risk and the mortalityrate was nil. During the operation she suffered massive heart attackand died. The State Commission dismissed the complaint and heldthat opposite party 2 had taken necessary precautions and effectivemeasures to save deceased. The SCDRC relied on the affidavits offour doctors whose services were requisioned by opposite party 2.Complainant had not given any expert evidence to support allegations.In appeal the National Commission held that in absence of any expertevidence on behalf of the complainant, the State Commission wasright in relying upon the affidavits filed by the four doctors on behalfof the respondents. The State Commission was right in holding thatthere was no negligence on the part of the respondents. The StateCommission rightly analysed and appreciated the materials placedon the record.

In Nirmalendu Paul vs Dr. P.K. Bakshi & Anr.,97 dismissingthe complaint the State Commission held that the complainantconsulted various renowned Physicians of his town but none of themhas observed that the loss of vision was attributable to the wrongsurgery done by Opposite Party. The complainant did not examineany expert on the subject to establish his allegation of negligence onthe part of the doctor. The complainant should establish negligenceon the part of the doctor to succeed in a case like this. There is

96I (1998) CPJ 110 (NC)97I (2001) CPJ 466 (WB SCDRC)


hardly any cogent material to substantiate the allegations containedin the petition of the complainant. Under the circumstances thecomplainant has failed to prove the allegations against the oppositeparties.

In Dr. A.S. Nagpal & Anr. vs. Krishan Lal98 the complainantapproached Dr. Nagpal for treatment of his right eye and wasoperated upon. At the time of discharge he was suffering from heavypain and flow of water from right eye. Later he contacted Dr. B.S.Chhabra who advised him to approach Dayanand Medical Collegeand Hospital, Ludhiana. The Complainant went for treatment there.He lost vision in right eye completely and there was loss of vision inthe left eye to the extent of 25 percent. The complainant allegednegligence on the part of opposite party. The State Commission heldthat present is not a case of prima facie negligence on part of oppositeparty. It is a case where negligence on part of opposite party inperforming the operation on the right eye was required to be establishedfrom direct evidence or expert evidence. Under section 13 of theConsumer Protection Act, procedure is prescribed for the trial ofcomplaints. Under Section 13(4) of the Act, the evidence on affidavitscould also be received. No doubt, complainant in his affidavit statedthat he was operated upon by the opposite party and thereafter, heconsulted Dr. Chhabra who referred him to Dayanand Medical Collegeand he was treated there. But his affidavit as such cannot be treatedas sufficient to prove the prescription slip of Dr. Chhabra or the likedocuments of Dayanand Medical College as he made no reference tosuch documents in his affidavit filed before the District Forum. Beforethe District Forum, it was asserted in the written statement as well inthe affidavit filed by the opposite party that an opportunity to crossexamine Dr. Chhabra or any other doctor from Dayanand MedicalCollege, an expert should be afforded. Incidentally, in the impugnedorder, there is no reference in this context. As observed by the SupremeCourt in the case of Indian Medical Association, medical negligenceon the part of the doctor is to be proved as a fact by leading evidencewhich may be of an expert. Present is a case which could not bedecided simply on the affidavit of the complainant that after few daysof the operation, defect was noticed in the right eye and partial loss of

98III (1996) CPJ 220 Punjab SCDRC


vision in left eye was on that account. It may be observed at this stagethat there is a gap of about two weeks in between the treatment takenfrom the opposite party and subsequently, taken from DayanandMedical College. During this interval of about 15days, there is noevidence as to the type of treatment taken by the complainant. Onlyreference is made to the argument of learned counsel for the oppositeparty –the appellant that infection was noticed in right eye at the timeof admission of the complainant in the Dayanand Medical College andsuch infection which was bacterial could occur within 3-4 days andcaused damage to the eye. This infection found subsequently couldnot be correlated with the operation of the eye performed by theopposite party.

In N.S. Sahota vs New Ruby Hosp. & Ors.99 Complainant’swife was admitted in the respondent hospital. The complainant allegedthat Dr. Mandeep Singh Sethi could not properly diagnose the diseaseof his wife and whatever treatment was given by him was not proper.The State Commission held that after going through the records, it isclear that the doctors tried to the best of their knowledge and ability tosave the life of the patient. There is nothing on record to suggest thatthe opposite parties were negligent in the management of the patient.There was nothing to infer that the diagnosis made by Dr. Sethi or hisline of treatment was not proper especially when her daughter Dr.Kuldip Kaur, M.D. and Dr. Harmanjit Singh Heera, MD (son in law ofdeceased) have said nothing in their affidavits against the line oftreatment given to the deceased by the opposite party no. 3. Evenotherwise, their affidavits seem to be based on sentimental groundsbeing close relations of the deceased. The case in hand is not a caseof obvious or apparent negligence on the part of the opposite party inthe matter of diagnosing the disease. In order to prove negligence itwas expected of the complainant to produce medical expert. Sincethe present case does not fall in the first category of cases of apparentnegligence on the part of doctor, the evidence produced by thecomplainant himself is considered insufficient to prove negligence ofthe doctor, more so, in the absence of any medical witness producedon the subject. In the matter of giving proper treatment or delay, if any,in referring the patient for specialised treatment depends upon theopinion given by the experts. There is no evidence on record that the

99II (2000) CPJ 345 Punjab SCDRC


doctors were negligent in discharging their duty in the instant case.The burden of proving the negligent act or wrong diagnosing was onthe complainant. The complainant has not produced any direct expertevidence to show that the treatment given to his wife by the oppositeparties was wrong which resulted in her death alleging deficiency inservice.

In Nadiya’s case100 the complainant attracted by an advertisementin the newspaper which declared that ‘a dwarf could become AmitabBachan of tomorrow’, approached opposite party’s hospital forsurgery for increasing the height. Corticotomy surgery with externalfixator was done. The left leg remained shorter by 1½ inch than theright leg. A healthy girl after the surgery required the aid of walkeras she had to lean on the left. It was contended by the opposite partythat the complications arose because of failure to adhere toinstructions. The Commission held that it is settled position that in acomplaint which alleges negligence on part of a medical practitionerthe burden of proof is on the complainant. The burden on a complainantto establish negligence has to be judged on the facts of each case. Inthis case the complainant filed an affidavit detailing her case as wellas offered for cross-examination, that she had to go to Apollo hospitalis not challenged in the cross-examination. None of the oppositeparties has tendered any evidence either oral or documentary exceptproducing the case file. The question is whether the failure to examinethe said doctor, in the facts and circumstances of this case, wouldadversely affect the case of the complainant has to be judged in thecontext of the nature of the case pleaded by the opposite party, theaffidavit evidence and material produced. The complainant whenshe has consulted the 2nd opposite party was healthy without anycomplaint. Her position after the surgery at the discharge from thehospital along with the said evidence would show the burden is shiftedto the opposite parties to substantiate their case that the lifting of theleft limb was due to a complication which developed later. With regardto the nature of the case pleaded by 2nd opposite party and theevidence tendered by the complainant, unless the opposite partiessubstantiate, that deformity is the result of the condition pleaded bythem, the case of the complainant in this regard has to be accepted.

100Nadiya vs Proprietor Fatima Hospital & Ors.II (2001) CPJ 93 (KeralaSCDRC)


In Bolitho v. City and Hackney Health Authority101, the Houseof Lords held that in cases of diagnosis and treatment there arecases where, despite a body of professional opinion sanctioning thedefendant’s conduct, the defendant can properly be held liable fornegligence (I am not here considering questions of disclosure of risk).It is because, in some cases, it cannot be demonstrated to the judge’ssatisfaction that the body of opinion relied upon is reasonable orresponsible. In the vast majority of cases the fact that distinguishedexperts in the field are of a particular opinion will demonstrate thereasonableness of that opinion. In particular, where there arequestions of assessment of the relative risks and benefits of adoptinga particular medical practice, a reasonable view necessarilypresupposes that the relative risks and benefits have been weighedby the experts in forming their opinions. But if, in a rare case, it can bedemonstrated that the professional opinion is not capable ofwithstanding logical analysis, the judge is entitled to hold that the bodyof opinion is not reasonable or responsible. It will very seldom be rightfor a judge to reach the conclusion that views genuinely held by acompetent medical expert are unreasonable. The assessment ofmedical risks and benefits is a matter of clinical judgment which ajudge would not normally be able to make without expert evidence.However, it would be wrong to allow such assessment to deteriorateinto seeking to persuade the judge to prefer one of two views both ofwhich are capable of being logically supported. It is only where ajudge can be satisfied that the body of expert opinion cannot be logicallysupported at all that such opinion will not provide the bench mark byreference to which the defendant’s conduct falls to be assessed.

As regards the stage at which the expert evidence is required, agreat deal of confusion regarding medical negligence cases beforethe consumer fora was created by two Judge Bench decision inMartin F. De’Souza vs. Mohd. Ishfaq102 in which a criminalcomplaint against a doctor or hospital was equated with a complaintbefore the Consumer Fora and following directions were passed forthe consumer fora:

“Whenever a complaint is received against a doctor or hospital

101[1997] 4 All ER 7711022009 CTJ 352 (SC)(CP)


by the Consumer Fora (whether District, State or National) orby the Criminal Court then before issuing notice to the doctor orhospital against whom the complaint was made the ConsumerForum or Criminal Court should first refer the matter to acompetent doctor or committee of doctors, specialized in thefield relating to which the medical negligence is attributed, andonly after that doctor or committee reports that there is a primafacie case of medical negligence should notice be then issued tothe concerned doctor/hospital. This is necessary to avoidharassment to doctors who may not be ultimately found to benegligent. We further warn the police officials not to arrest orharass doctors unless the facts clearly come within theparameters laid down in Jacob Mathew’s case, otherwise thepolicemen will themselves have to face legal action.”

The resultant effect of the above verdict was that no morestraightaway registration of consumer complaints against medicalpractitioner could be possible. Before admitting any complaint againstthe doctor or hospital the consumer forum must have obtained expertopinion as a prerequisite. The Supreme Court decision in Martin F. D’Souza’s case was reviewed and reversed in the verdict in KrishnaRao vs. Nikhil Super Specialty Hospital103 wherein the SupremeCourt held:

“We are of the view that aforesaid directions are not consistentwith the law laid down by the larger Bench in Jacob Mathew. InMathew, the direction for consulting the opinion of another doctorbefore proceeding with criminal investigation was confined onlyin cases of criminal complaint and not in respect of cases beforethe Consumer Fora. The reason why the larger Bench in Mathewdid not equate the two is obvious in view of the jurisprudentialand conceptual difference between cases of negligence in civiland criminal matter. This has been elaborately discussed inMathew. This distinction has been accepted in the judgment ofthis Court in Malay Kumar Ganguly 2009 CTJ 1064(SC) (CP).Therefore, the general directions in D’souza case are, with greatrespect, inconsistent with the directions given in Mathew (supra)which is a larger Bench decision. Those directions in D’souza

103III (2010) CPJ I (SC)


are also inconsistent with the principles laid down in anotherthree-Judge Bench of this Court rendered in Indian MedicalAssociation wherein a three-Judge Bench of this Court, on anexhaustive analysis of the various provisions of the Act, heldthat the definition of `service’ under Section 2(1)(o) of the Acthas to be understood on broad parameters and it cannot excludeservice rendered by a medical practitioner. About the requirementof expert evidence, this Court made it clear in Indian MedicalAssociation that before the Fora under the Act both simple andcomplicated cases may come. In complicated cases whichrequire recording of evidence of expert, the complainant may beasked to approach the civil court for appropriate relief. This Courtopined that Section 3 of the Act provides that the provisions ofthe Act shall be in addition to and not in derogation of the provisionsof any other law for the time being in force. Thus the Actpreserves the right of the consumer to approach the civil courtin complicated cases of medical negligence for necessary relief.But this Court held that cases in which complicated questions donot arise the Forum can give redressal to an aggrieved consumeron the basis of a summary trial on affidavits.”

The Supreme Court thus concluded that:

“In view of the aforesaid clear formulation of principles on therequirement of expert evidence only in complicated cases, andwhere in its discretion, the Consumer Fora feels it is required thedirection in paragraph 106, quoted above in D’souza for referringall cases of medical negligence to a competent doctor or committeeof doctors specialized in the field is a direction which is contraryto the principles laid down by larger Bench of this Court on thispoint. In D’souza the earlier larger Bench decision in Dr. J. J.Merchant has not been noticed. Apart from being contrary to theaforesaid two judgments by larger Bench, the directions in paragraph106 in D’souza is also contrary to the provisions of the said Actand the Rules which is the governing statute.”

Applicability of Res ipsa loquitur in Medical Negligence

Res ipsa loquitur or res ipsa, as it is commonly called, is a ruleof evidence, not a rule of Substantive Law. It is a Latin maxim


which means ‘the thing speaks for itself’. A rebuttable presumptionor inference that the defendant was negligent, which arises uponproof that the instrumentality or condition causing the injury was inthe defendant’s exclusive control and that the accident was one thatordinarily does not occur in the absence of negligence. Res ipsaloquitur is one form of circumstantial evidence that permits areasonable person to surmise that the most probable cause of anaccident was the defendant’s negligence. Three basic requirementsmust be satisfied before a court can decide the question of negligenceunder res ipsa loquitur.

� Inference of Negligence: The plaintiff’s injury must be ofa type that does not ordinarily occur unless someone hasbeen negligent.

� Exclusive Control by the Defendant: The plaintiff’s injuryor damage must have been caused by an instrumentality orcondition that was within the exclusive control of thedefendant.

� Freedom from Contributory Negligence: The event inquestion must not have been attributable to any cause forwhich the plaintiff is responsible. The plaintiff must not havedone anything that significantly contributed to the accidentthat caused the injury.

Res ipsa loquitur is usually used when there is no direct evidenceof the defendant’s negligence. On the basis of the facts presented tothe court it decides the credibility and weight of the inference to bedrawn from the known facts and the court can conclude that thedefendant was negligent. If the defendant offers no explanation, thecourt can direct a verdict for the plaintiff if the inference is so strongthat reasonable jurors could not reach any other conclusion. If thedefendant presents evidence that makes it unlikely that he has actednegligently, the plaintiff will lose his case unless he can rebut theevidence, since such evidence destroys the inference of negligencecreated by res ipsa.104

In medical negligence cases also sometimes hardship is causedto the plaintiff in proving negligence on the part of defendant as the

104Res ipsa loquitur http://legal-dictionary.thefreedictionary.com/res+ipsa+loquitur


true cause of the accident is not known to him, but is solely withinthe knowledge of the defendant who caused it. Plaintiff can provethe accident but cannot prove how it happened to establish negligenceon the part of the defendant. Where thing is shown to be undercontrol and management of the defendant or his servants, and theaccident is such as in ordinary course of things does not happen ifthose who have the management use proper care, it affordsreasonable evidence, in the absence of explanation by the defendant,that the accident arose from want of care.Therein the doctrine ofres ipsa loquitur has been applied. The maxim has been applied ininstances like where due to complications death of the patientoccurred in four walls of the operation theatre where patient’s relativeshad no access, the onus lies on the defendant to explain the eventsthat lead to the death of the patient,105 where mop (towel) was leftinside the peritoneal cavity of the patient during sterilization operationresulting in death of the patient,106 sponge was left inside in theabdomen of the patient during caesarean operation,107 leaving arteryforceps inside the abdomen of the patient during caesareanoperation,108 where dental surgeon slipped needle into the stomachof the patient at the time of irrigating the mouth after extraction ofright molar teeth of the patient.109 Deficiency in service may be dueto obvious faults such as removal of wrong limb or performance ofan operation on the wrong patient or giving injection of a drug towhich the patient is allergic without looking into the outpatient cardcontaining the warning110 or use of a wrong drug during the courseof anaesthesia or leaving inside the patient swabs or other items ofoperating equipment after surgery. In Spring Meadows Hospitalvs. Harjol Ahluwalia111 the Supreme Court has held:

“Gross medical mistake will always result in finding ofnegligence. Use of wrong drug or wrong gas during the course ofanaesthesia will frequently lead to the imposition of liability and in

105Arunaben D. Kothari vs. Navdeep Clinic 1996 (3) CPR 20 (Guj)106Achutrao Haribhan Khodwa vs. State of Maharashtra (1996) 2 SCC 634107Aleyamma Varghese vs. Dewan Bahadur Dr. vs. Varghese 1997 (1) CPR 310 (ker)108Ms. Sau Madhuri vs. Dr. Rajendra 1996 (3) CPR 174 (NC)109Amblappa vs Sriman D. Veerendra Heggade 1999(3) CPR 72 (Bangalore)110As in Chinkeow vs. Government of Malaysia (1967) 1WLR 813 P.C.111I (1998)CPJ 1(SC)


some situations even the principle of res ipsa loquitur can beapplied.”

In Nanjappa Hosp. & Anr. vs P.S. Shylaja112 the doctorremoved the sutures within seven days of operation without waitingfor the complete healing of the wound as a result the complainantwas made to suffer burst abdomen. The National Commission appliedthe principle of res ipsa loquitur and held that it was deficiency inservice.

In Smt. Bhanupal vs Dr. Prakash Padode & Ors.113 the patient,complainant’s husband was admitted for operation of hernia and sameday operation was conducted. The patient died within 10 hours ofadmission in the operation theatre, in mysterious circumstances. Thecomplainant alleged that her husband died due to high dose ofanaesthesia. The Commission held that:

“In doctrine of common knowledge the patient’s relatives mustprove positive act of omission but they need not produce evidenceto establish the standard of care as entire operative procedurewas carried out in the absence of any patient’s relatives. Naturally,when all such medical or surgical procedure was carried outinside the operation theatre when nobody on the behalf of thepatient was present, the patient’s relatives were unable to seeany kind of medical/ surgical procedure or what exactly happenedinside the operation theatre. Therefore, the opposite parties andthe staff attending inside only had special knowledge of whathappened inside the operation theatre and the complainant is notin a position to exactly state the factual aspects of whatevertook place inside are all necessity of evidence in order to provethe medical negligence occurring on the hands of the oppositeparties. Therefore, it was a duty cast upon the opposite partiesto prove the fact that no sort of negligence took place inside theoperation theatre. Thus, the onus of proof shifting upon theopposite parties to substantiate the fact that there was nonegligence on their part.”

112III (2011) CPJ 360 (NC)113II (2000) CPJ 384 (MP SCDRC)


Emergency Care

In Pt. Paramanand Katara vs. Union of India & Ors.,114 theSupreme Court speaking through Justice Ranganath Misra, in thecontext of medico-legal cases, has emphasized the need for renderingimmediate medical aid to injured persons to preserve life and theobligations of the State as well as doctors in that regard. In the casea scooterist who was knocked down by a speeding car was taken tothe nearest hospital but the doctors there refused to attend on him.They told that he be taken to another hospital, located some 20kilometres away, which was authorised to handle medico-legal casesand the victim succumbed to his injuries before he could be taken tothe other hospital. A human right activist filed a writ petition in publicinterest under Article 32 of the Constitution on the basis of anewspaper report concerning the death asking for the directions tobe issued to the Union of India that every injured citizen brought fortreatment should instantaneously be given medical aid to preservelife and thereafter the procedural criminal law should be allowed tooperate in order to avoid negligent death, and in the event of breachof such direction, apart from any action that may be taken fornegligence, appropriate compensation should be admissible. Disposingof the Writ Petition, the Supreme Court has held:

� Article 21 of the Constitution casts the obligation on the Stateto preserve life.

� There can be no second opinion that preservation of humanlife is of paramount importance. That is so on account of thefact that once life is lost, the status quo ante cannot berestored as resurrection is beyond the capacity of man.

� The patient whether he be an innocent person or a criminalliable to punishment under the laws of the society, it is theobligation of those who are in-charge of the health of thecommunity to preserve life so that the innocent may beprotected and the guilty may be punished. Social laws donot contemplate death by negligence to tantamount to legalpunishment.

1141989 (4) SCC 286


� Every doctor whether at a Government hospital or otherwisehas the professional obligation to extend his services withdue expertise for protecting life.

� No law or State action can intervene to avoid/delay thedischarge of the paramount obligation cast upon membersof the medical profession. The obligation being total, absoluteand paramount, laws of procedure whether in statute orotherwise which would interfere with the discharge of thisobligation cannot be sustained and must, therefore, give way.

� The zonal regulations and classifications cannot also operateas fetters in the process of discharge of the obligation totreat an emergency.

� The Code of Medical Ethics framed by the Medical Councilunambiguously states that a medical professional shouldattend to a patient in emergency and everyone in medicalprofession is supposed to follow. This only reveals anunfortunate state of affairs where the decisions are taken atthe highest level good intentioned and for public good butunfortunately do not reach the common man and it onlyremains a text good to read and attractive to quote.

� It is clear that there is no legal impediment for a medicalprofessional when he is called upon or requested to attendto an injured person needing his medical assistanceimmediately. There is also no doubt that the effort to savethe person should be the top priority not only of the medicalprofessional but even of the police or any other citizen whohappens to be connected with the matter or who happens tonotice such an incident or a situation.

� The members of the legal profession, our law courts andeveryone concerned will also keep in mind that a man in themedical profession should not be unnecessarily harassed forpurposes of interrogation or for any other formality and shouldnot be dragged during investigations at the police station andit should be avoided as far as possible.

� Law courts will not summon a medical professional to giveevidence unless the evidence is necessary and even if he issummoned, attempt should be made to see that the men in


this profession are not made to wait and waste timeunnecessarily.

� The Court gave directions for giving adequate publicity tothe decision in this case by the national media, theDoordarshan and the All India Radio, as well as through theHigh Courts and the Sessions Judges.

In Paschim Banga Khet Mazdoor Samity vs State of WestBengal & Anr115, Hakim Seikh, a member of Paschim Banga KhetMazdoor Samity, an organization of agricultural labourers, fell off atrain at Mathurapur Station in West Bengal and suffered serioushead injuries and brain haemorrhage. He was taken to the PrimaryHealth Centre at Mathurapur. Since necessary facilities for treatmentwere not available at the Primary Health Centre, the medical officerin charge of the Centre referred him to the Diamond Harbour Sub-Divisional Hospital or any other State hospital for better treatment.Then he was taken to as many as seven state hospitals, but was notgiven treatment on ground of non-availability of beds though it wasan emergency case. Ultimately he was admitted in Calcutta MedicalResearch Institute, a private hospital, where he received treatmentas an indoor patient from July 9, 1992 to July 22, 1992 and he hadincurred expenditure of approximately `17,000/- in his treatment.Feeling aggrieved by the indifferent and callous attitude on the partof the medical authorities at the various State run hospitals in Calcuttain providing treatment for the serious injuries sustained by HakimSeikh, the petitioners filed writ petition. The question for considerationbefore the Supreme Court was whether the non-availability of facilitiesfor treatment of the serious injuries sustained by Hakim Seikh in thevarious Government hospitals in Calcutta has resulted in denial ofhis fundamental right guaranteed under Article 21 of the Constitution.

The Supreme Court held that the Constitution envisages theestablishment of a welfare state at the federal level as well as at thestate level. In a welfare state the primary duty of the Government isto secure the welfare of the people. Providing adequate medicalfacilities for the people is an essential part of the obligations undertakenby the Government in a welfare state. The Government dischargesthis obligation by running hospitals and health centres which provide

1151996 SCC (4) 37


medical care to the person seeking to avail those facilities. Article 21imposes an obligation on the State to safeguard the right to life ofevery person. Preservation of human life is thus of paramountimportance. The Government hospitals run by the State and themedical officers employed therein are duty bound to extend medicalassistance for preserving human life. Failure on the part of aGovernment hospital to provide timely medical treatment to a personin need of such treatment results in violation of his right to lifeguaranteed under Article 21. In the present case there was breachof the said right of Hakim Seikh guaranteed under Article 21 whenhe was denied treatment at the various Government hospitals whichwere approached even though his condition was very serious at thattime and he was in need of immediate medical attention. Since thesaid denial of the right of Hakim Seikh guaranteed under Article 21was by officers of the State in hospitals run by the State, the Statecannot avoid its responsibility for such denial of the constitutionalright of Hakim Seikh. In respect of deprivation of the constitutionalrights guaranteed under Part III of the Constitution the position iswell settled that adequate compensation can be awarded by the courtfor such violation by way of redress in proceedings under Articles32 and 226 of the Constitution. Hakim Seikh should, therefore, besuitably compensated for the breach of his right guaranteed underArticle 21 of the Constitution. Having regard to the facts andcircumstances of the case, we fix the amount of such compensationat `25,000/-. A sum of `15,000/- was directed to be paid to HakimSeikh as interim compensation under the orders of this Court datedApril 22, 1994. The balance amount should be paid by respondentNo. 1 to Hakim Seikh within one month.

On the remedial measures to rule out recurrence of suchincidents in future and to ensure immediate medical attention andtreatment to persons in real need, the Supreme Court held that inorder that proper medical facilities are available for dealing withemergency cases it must be that:

1. adequate facilities are available at the Primary Health Centreswhere the patient can be given immediate primary treatmentso as to stabilize his condition;

2. hospitals at the district level and Sub-Division level areupgraded so that serious case can be treated there;


3. facilities for giving specialist treatment are increased andare available at the hospitals at District level and Sub-Divisionlevel having regard to the growing needs.

4. in order to ensure availability of bed in an emergency atState level hospitals there be a centralized communicationsystem so that the patient can be sent immediately to thehospital where bed is available in respect of the treatmentwhich is required.

5. proper arrangement of ambulance is made for transport ofa patient from the Primary Health Centre to the Districthospital or Sub-Division hospital and from the District hospitalor Sub Division hospital to the State hospital.

6. the ambulance is adequately provided with necessaryequipment and medical personnel.

7. the Health Centres and the hospitals and the medicalpersonnel attached to these Centres and hospitals are gearedto deal with larger number of patients needing emergencytreatment on account of higher risk of accidents on certainoccasions and in certain seasons.

The Supreme Court further held that no doubt true that financialresources are needed for providing these facilities. But at the sametime it cannot be ignored that it is the constitutional obligation of theState to provide adequate medical services to the people. Whateveris necessary for this purpose has to be done. In the matter of allocationof funds for medical services the said constitutional obligation of theState has to be kept in view. It is necessary that a time-bound planfor providing these services should be chalked out for ensuringavailability of proper medical services in this regard as indicated byus and steps should be taken to implement the same.

Compensation

The damages for negligence are assessed on the principle thatthey are to be regarded as compensation for an injury sustained andnot as punishment for wrong inflicted. The abrupt termination of liferesults in loss to the dependents or to the estate. The determinationof the amount of compensation is basically a net balance of the lossand gain to the survivors of the dependents. The purpose of an award


of damages in tort is to make good to the injured plaintiff, so far asmoney could do, the loss that he had suffered as a result of the lossdone to him.

An action for personal injury including medical negligence is aclaim for compensation either by person who has sustained injury ordamage or in case of death of the person, by legal representatives,inceptor or administrator of the deceased. Merely proving negligenceon part of the person will not entitle him to claim compensation,proving injury or damage caused is must. Under the general principlesof tortious liability the medical practitioner who caused injury ordamage by negligence is bound to pay compensation and in case ofdeceased he has to compensate the family of the deceased patient.

In a suit for damages on account of negligence, the onus lies onthe patient to prove that the doctor was negligent, and the saidnegligence resulted in the injury which is complained to becompensated. The Hon’ble Supreme Court in Charan Singh v.Healing Touch Hospital116, has laid down that while quantifyingdamages, consumer forums are required to make an attempt to serveends of justice so that compensation is awarded, in an establishedcase, which not only serves, the purpose of recuperating the individual,but which also at the same time, aims to bring about a qualitativechange in the attitude of the service provider. Indeed calculation ofdamage depends upon the facts and circumstances of each case.No hard and fast rule can be laid down for universal application.

In Pramod Grover vs. Manvinder Kaur (Dr.) & Ors.117 Itwas held that directions to permanently restrain and debar the medicalprofessionals and to cancel their medical certificates or for the closureof the nursing home cannot be issued by the Consumer Fora asthere is no relief under Section 14(1) of the Act in which thosedirections can be given. However, other reliefs enlisted in the sectioncan be provided and for that matter the complaint is to be split forthe purpose of entertaining a claim in the matter of which relief canbe granted by the Consumer Fora and the reliefs which cannot beconsidered by the Fora.

1162000 (4) CPR 1 (SC)117II(2007) CPJ 63(NC)


In Nizam Institute of Medical Sciences vs Prasanth S.Dhananka and others118 the Supreme Court on the question ofcompensation emphasized as under:

“The Court has to strike a balance between the inflated andunreasonable demands of a victim and the equally untenableclaim of the opposite party saying that nothing is payable.Sympathy for the victim does not, and should not, come in theway of making a correct assessment, but if a case is made out,the Court must not be chary of awarding adequate compensation.The ‘adequate compensation’ that we speak of, must to someextent, be a rule of the thumb measure, and as a balance has tobe struck, it would be difficult to satisfy all the parties concerned.It must also be borne in mind that life has its pitfalls and is notsmooth sailing all along the way (as a claimant would have usbelieve) as the hiccups that invariably come about cannot bevisualized. Life it is said is akin to a ride on a roller coasterwhere a meteoric rise is often followed by an equally spectacularfall, and the distance between the two (as in this very case) is aminute or a yard. At the same time we often find that a personinjured in an accident leaves his family in greater distress, vis-a-vis a family in a case of death. In the latter case, the initial shockgives way to a feeling of resignation and acceptance, and intime, compels the family to move on. The case of an injured anddisabled person is, however, more pitiable and the feeling of hurt,helplessness, despair and often destitution endures every day.The support that is needed by a severely handicapped personcomes at an enormous price, physical, financial and emotional,not only on the victim but even more so on his family andattendants and the stress saps their energy and destroys theirequanimity. We can also visualize the anxiety of the complainantand his parents for the future after the latter, as must all of us,inevitably fade away. We, have, therefore computed thecompensation keeping in mind that his brilliant career has beencut short and there is, as of now, no possibility of improvement inhis condition, the compensation will ensure a steady andreasonable income to him for a time when he is unable to earn

118II(2009) CPJ 61(SC)


for himself.”

In the present case the court took into account a number offactors like requirement of nursing care, need for driver cumattendant as the complainant was confined to wheel chair and needfor physiotherapy etc. for computing compensation. The SupremeCourt held that the complainant is a highly qualified individual and isgainfully employed as an IT Engineer and earning a sum of `28Lakh per annum and is about 40 years of age. The very nature of hiswork requires him to travel to different locations but as he is confinedto a wheel chair he is unable to do so on his own. For his need for adriver cum attendant a sum of `7.2 Lakh was awarded. A total sumof `14,40,000/- was given towards nursing care. `10,80,000/- wasawarded for physiotherapy. Keeping in view the need for continuousmedical aid which would involve expensive medicines and othermaterial, and the loss towards future earnings etc., the opposite partieswere directed to pay a lump sum payment of `25 lakhs under eachof these two heads making a total of ̀ 50 lakhs. In addition, a paymentof `10 lakh was directed towards the pain and suffering that theappellant has undergone. The total amount thus computed wouldwork out to `1,00,05,000 (`1 crore 5 thousand).

In this case the Supreme Court has rejected the use of multipliersystem to calculate the quantum of compensation. The court heldthat the kind of damage that the complainant has suffered, theexpenditure that he has incurred and is likely to incur in the futureand the possibility that his rise in his chosen field would now berestricted, are matters which cannot be taken care of under themultiplier method.

In Dr. Balram Prasad vs. Dr. Kunal Saha &Ors.119 theSupreme Court considered the issue of compensation payable to theclaimant for the death of his wife due to the negligence of the hospitaland doctors. The appellant-doctors were aggrieved by the quantumof compensation awarded by the National Commission and the liabilityfastened upon them for the negligence on their part and had prayedto set aside the same by allowing their appeals. The appellant-AMRIHospital also questioned the quantum of compensation awarded andprayed to reduce the same by awarding just and reasonable

119(2013) 40 SCD 897


compensation by modifying the judgment. According to the claimantthe compensation awarded was inadequate, as the same is contraryto the admitted facts and law laid down by the Supreme Court incatena of cases regarding awarding of compensation in relation tothe proved medical negligence for the death of his wife AnuradhaSaha. The Supreme Court awarded a total amount of `6,08,00,550/-as the compensation in this appeal to the claimant by partly modifyingthe award granted by the National Commission under different headswith 6% interest per annum from the date of application till the dateof payment and laid down certain principles to calculate compensationin medical negligence case which are as under:

� One of the incidental issues which has also to be taken intoconsideration is inflation. Unfortunately, unlike otherdeveloped countries in India there has been no scientificstudy. It is expected that with the rising inflation the rate ofinterest would go up. In India it does not happen. It, therefore,may be a relevant factor which may be taken intoconsideration for determining the actual ground reality. TheNational Commission has rejected the claim of the claimantfor “inflation” made by him without assigning any reasonwhatsoever. It is an undisputed fact that the claim of thecomplainant has been pending before the NationalCommission and this Court for the last 15 years. The valueof money that was claimed in 1998 has been devalued to agreat extent. The claim of enhancement of compensation istherefore justified.

� Besides enhancement of compensation, the claimant hadsought for additional compensation of about ` 20 crores inaddition to his initial claim made in 2011 to include theeconomic loss that he had suffered due to loss of hisemployment, home foreclosure and bankruptcy in U.S.Awhich would have never happened but for the wrongful deathof his wife. Indisputably, grant of compensation involving anaccident is within the realm of law of torts. It is based on theprinciple of restitutio in integrum. The said principle providesthat a person entitled to damages should, as nearly as possible,get that sum of money which would put him in the sameposition as he would have been if he had not sustained the


wrong. It is the duty of the Tribunals, Commissions and theCourts to consider relevant facts and evidence in respect offacts and circumstances of each and every case for awardingjust and reasonable compensation. Therefore, we are of theview that the claimant is entitled for enhanced compensationunder certain items made by the claimant in additional claimpreferred by him before the National Commission.

� Loss of wife to a husband may always be truly compensatedby way of mandatory compensation. How one would do ithas been baffling the court for a long time. For compensatinga husband for loss of his wife, therefore, the courts considerthe loss of income to the family. It may not be difficult to dowhen she had been earning. Even otherwise a wife’scontribution to the family in terms of money can always beworked out. Every housewife makes a contribution to hisfamily. It is capable of being measured on monetary termsalthough emotional aspect of it cannot be. It depends uponher educational qualification, her own upbringing, status,husband’s income, etc. The status, future prospects andeducational qualification of the deceased must be judged fordeciding adequate, just and fair compensation. It is anundisputed fact that the victim was a graduate in psychologyfrom a highly prestigious Ivy League school in New York.She had a brilliant future ahead of her. However, the NationalCommission has calculated the entire compensation andprospective loss of income solely based on a pay receiptshowing a paltry income of only $30,000 per year which shewas earning as a graduate student. Therefore, the NationalCommission has committed grave error in taking that figureto determine compensation under the head of loss ofdependency. In view of law laid down by the Supreme Courtin various judgements with regard to the approach by theCommission in awarding just and reasonable compensationtaking into consideration the future prospects of the deceasedeven in the absence of any expert’s opinion must have beenreasonably judged based on the income of the deceased andher future potential in U.S.A. However, in the present casethe calculation of the future prospect of income of the


deceased has also been scientifically done by economicexpert Prof. John F. Burke.

� The National Commission has used the “multiplier” methodunder Section 163A read with the second schedule of theMotor Vehicles Act to determine the quantum ofcompensation in favour of the claimant. The SC held that acareful reading of the cases shows that this Court is skepticalabout using a strait jacket multiplier method for determiningthe quantum of compensation in medical negligence claimsand in various instances has chosen to deviate from thestandard multiplier method to avoid over-compensation andalso relied upon the quantum of multiplicand to choose theappropriate multiplier. The National Commission or this Courtis required to determine just, fair and reasonablecompensation on the basis of the income that was beingearned by the deceased at the time of her death and otherrelated claims on account of death of the wife of the claimantand following the multiplier method is not justified.

� The claimant had made a demand of `34,56,07,000/- underdifferent heads of ‘loss of income for missed work’,‘travelling expenses over the past 12 years’ and ‘legalexpenses including advocate fees’ etc. The claim of`1,12,50,000/- made by the claimant under the head of lossof income for missed work, was not allowed by the Courtsince, the same has no direct nexus with the negligence ofthe appellant- doctors and the Hospital. The court allowed acompensation of `10 lakhs under the head of ‘Travelexpenses over the past twelve years’ as the claimant was acitizen of U.S.A. and had been living there. It cannot bedenied that he had to incur travel expenses to come to Indiato attend the proceedings. The Claimant appeared in personbefore this Court to argue his case but he might have requiredrigorous assistance of lawyers to prepare his case, thereforea compensation of `1,50,000/- under the head of ‘legalexpenses’ was also granted. Therefore, a total amount of`11,50,000/- is granted to the claimant under the head of‘cost of litigation’.


Vicarious Liability

‘Vicarious’ means ‘one that takes or supplies the place ofanother.’120 In vicarious liability one person takes the place of anotheras far as liability is concerned. Under this principle the liability of thehospital authorities extends to the fault of doctors and othersemployees whether their employment is permanent, temporary orcasual, paid or honorary, whole time or part time as in the case ofvisiting physicians or surgeons. Lord Denning in Cassidy vs. Ministryof Health121 held:

“The authorities who run a hospital, be they local authorities,Government boards, or any other corporation, are in law underthe self-same duty as the humblest doctor; whenever they accepta patient for treatment, they must use reasonable care and skillto cure him of his ailment. … They must do it by the staff whichthey employ; and if their staff are negligent in giving the treatment,they are just as liable for that negligence as is anyone else whoemploys others to do his duties for him.”

The Supreme Court in Spring Meadows Hospital vs. HarjolAhluwalia122 held the hospital liable to pay compensation for thenegligence of its attending doctor and unqualified nurse, as the doctorrelied on the nurse to give intravenous injection to the patient insteadof the consultant doctor and thereby contributed to the irreparablebrain damage of the minor patient.

In Smt. Savita Garg vs The Director, National HeartInstitute123, the Supreme Court while speaking on the questionwhether non-impleading the treating doctor as party could result indismissal of the original petition for non-joinder of necessary partyhas held as follows:

“It is the common experience that when a patient goes to aprivate clinic, he goes by the reputation of the clinic and with thehope that proper care will be taken by the Hospital authorities. Itis not possible for the patient to know that which doctor will

120The Shorter Oxford English Dictionary, Vol. II, 3rd Edn, 1944121(1951)2 KB 343122I (1998) CPJ 1(SC)123(2004) 8 SCC 56


treat him. When a patient is admitted to a private clinic/ hospitalit is hospital/ clinic which engages the doctors for treatment. Inthe present case, the appellant’s husband was admitted to thebest of the hospital and it is not possible for the appellant to findout that who is the best doctor and who is not. Normally, theprivate clinics go by the reputation and people look forward forbest treatment when they are run commercially. It is theresponsibility of the clinic that they must provide best of theservices when they charge for the services rendered by them.In case it is found that services rendered by the clinic or hospital,as the case may be, is not up to the mark and it involves somenegligence on their part, for which the patients suffer, then theyare bound to reimburse them. They charge fee for the servicesrendered by them and they are supposed to bestow the bestcare.

As a matter of fact, when a patient is admitted to the highlycommercial hospital like the present institute, a thorough checkup of the patient is done by the hospital authorities, it is theInstitute which selects after the examination of the patient thathe suffers from what malady and who is the best doctor whocan attend, except when the patient or the family members desireto be treated by a particular doctor or the surgeon as the casemay be. Normally, the private hospitals have a panel of doctorsin various specialities and it is they who chooses who is to becalled. It is very difficult for the patient to give any detail thatwhich doctor treated the patient and whether the doctor wasnegligent or the nursing staff was negligent. It is very difficultfor such patient or his relatives to implead them as parties in theclaim petition. The patients once they are admitted to suchhospitals, it is the responsibility of the said hospital or the medicalinstitutions to satisfy that all possible care was taken and nonegligence was involved in attending the patient. The burdencannot be placed on the patient to implead all those treatingdoctors or the attending staff of the hospital as a party so as tosubstantiate his claim. In fact, once a claim petition is filed andthe claimant has successfully discharged the initial burden thatthe hospital was negligent, as a result of such negligence thepatient died, then in that case the burden lies on the hospital and


the concerned doctor who treated that patient that there was nonegligence involved in the treatment. Since the burden is on thehospital, they can discharge the same by producing that doctorwho treated the patient in defence to substantiate their allegationthat there was no negligence. In fact it is the hospital whoengages the treating doctor thereafter it is their responsibility.The burden is greater on the Institution/ hospital than that of theclaimant. The institution is private body and they are responsibleto provide efficient service and if in discharge of their efficientservice there are couple of weak links which has caused damageto the patient then it is the hospital which is to justify the sameand it is not possible for the claimant to implead all of them asparties.”

The State is vicariously liable for the tortious acts of its servantsor agents which are not committed in the exercise of its sovereignfunctions or in the exercise of sovereign powers delegated to suchpublic servants.124 The work of medical relief undertaken byGovernment through Primary Health Centre is not a sovereign functionof the State and as such the defence of sovereign immunity mustfail. Accordingly, the State would be vicariously liable for damagespayable on account of negligence of its doctors and other employees.The Supreme Court in State of Haryana vs. Smt. Santra125 heldthe State of Haryana vicariously liable for negligence of the doctorin a Government Hospital in performance of sterilization operationresulting in birth of an unwanted child.

Medical Negligence: What Patients should Know?

� While going to a doctor, take all previous medical reports.

� Ascertain the qualifications and the experience of the doctorin his area of specialization before consultation.

� During consultation with the doctor, get your doubts regardingthe treatment clarified.

� Before undergoing treatment consult another doctor and takea second expert opinion to double check on all the optionsavailable.

124State of Rajasthan v Vidyawati AIR 1962 SC 933125I (2000) CPJ 53 (SC)


� The patient or the family members must meet the doctorand discuss the possible risks or any other questions, whichworry them.

� Before giving written consent for the treatment read thecontents of the common drafted format before signing it.The patient must know for which treatment and procedurehe/she has consented.

� Preserve and maintain records, which include X-rays,medical prescription given by a doctor. Ask for yourMedical records which can now be obtained from thehospital by paying some minimum photocopy charges.

� If any untoward complication, allergies or pain is being feltafter taking a treatment immediately bring it to the noticeof the doctor.

� Take the medication prescribed at the proper time, in propermanner, in proper dosage and for the prescribed period.

� Follow doctor’s instructions and prescriptions regardingmedicines to be taken, method of taking medicines, timeperiod for which medication should be continued, exercise,diet etc.

� When blood transfusion is being done, the donor’s blooddetails must be checked i.e. date of collection of blood,date of expiry of blood and whether the same is free frominfection.

� The quality, cost and the benefits of treatment must bediscussed with the doctor.

� While purchasing medicines, ensure to get them from areputed chemist’s shop as many spurious harmful drugsare floating around. The receipt of the chemist must alsobe kept for future reference.

� One must not take allopathic treatment from a Homoeopath,Ayurvedic or Unani specialist who does not possess anydegree or diploma in Allopathy.

� Should follow the advice of the doctor regardinginvestigation and treatment.


� Should not desert the doctor and go away without informingthe doctor.126

Conclusion

The medical profession was important and will always remain soas it relates with human life. However, the doctor-patient relationshiphas undergone a drastic change over the period of time and the influenceof market forces is clearly visible on it. In olden days the phenomenonto sue doctor for negligence was a rare one but during the last decademany complaints of medical negligence have been handled by consumerforas. Today the educated and informed consumers seek good serviceand are not ready to suffer in silence for the deficiency on the part ofdoctors and hospitals. This has also made the doctors more cautiouswhile treating the patients. The patients are now being advised toundergo several tests before the preliminary diagnosis to prevent anykind of litigation later on. This has made the treatment costlier for theordinary patient. It is high time that the medical councils and internalgrievance redressal mechanism in the hospitals become more effectiveto check malpractices in the profession to help the consumers getredressal for their grievances without approaching adjudicatory bodiesunder the CPA.

126P.D.Shenoy, Medical negligence, Sterling Publishers Pvt. Ltd., 2013, pp.430-433


Annexure

MODEL FORM OF NOTICE, COMPLAINT, AFFIDAVIT AND REPLY

MODEL FORM-1 NOTICE BEFORE FILING THE COMPLAINTName and address (of the trader, dealer, firm, company, etc.)............................................................ (Complete address) IN RE: (Mention the goods/services complained of giving details).................................................................................................................Dear Sir,

This is to bring to your kind notice that 1 hadpurchased………….............from your ............................... for aconsideration of Rs……………………………...... paid in cash videyour cash memo/Receipt/InvoiceNo....................................................... (or through cheque No........................... dated ................... drawn on........................................bank for a sum of Rs ...........................

The said goods are suffering from the following defects:(i) ............................................

(ii) ............................................ etcI have reported the above matter to you several times (give

reference of earlier letters, if any) but despite all my pleadingsyou have not made good the defect in the goods (ordeficiency inservices) which is indeed regrettable and highly unbusiness like.On account of your aforesaid dereliction of duty and failure andneglect to rectify the same I have suffered losses/incurredexpenses........................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................

(give details) which you are liable to compensate to me. You are hereby finally called upon to

(i) remove the said defects in the goodsand/or

(ii) replace the goods with new goodsand/or

(iii) return the price/ charges paid


(iv) pay compensation for financial loss/injury/interestsuffered due to your negligence.................................................................

(give details)

in the sum of Rs ............................................ with interest@.............................................. % per annumwithin……………………days of the receipt of this noticefailing which 1 shall be constrained to initiate against you forredressal of my aforesaid grievances and recovery of theaforesaid amount such proceedings, both civil and criminalas are warranted by law, besides filing a complaint under thestatutory provisions of The Consumer Protection Act, 1986exclusively at your own risk, cost, responsibility andconsequences which please note.Place……………………..Dated............................... Sd/-

.………. . .


Model Form –2 -The Complaint

BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTESREDRESSAL FORUM AT ........................................................

ORBEFORE THE HON’BLE STATE CONSUMER DISPUTES

REDRESSAL COMMISSION AT ..................................................... OR

BEFORE THE HON’BLE NATIONAL CONSUMER DISPUTESREDRESSAL

COMMISSION AT NEW DELHIIN RE: COMPLAINT NO ........................ OF 20 ......... IN THE MATTER OF:

(FULL NAME) (DESCRIPTION) (COMPLETE ADDRESS)............... Complainant

VERSUS(FULL NAME) (DESCRIPTION) (COMPLETE ADDRESS)

................................. Opposite Party/ Parties

COMPLAINT UNDER SECTION I2/ SECTION 17/SECTION 21 OF THE CONSUMER PROTECTION

ACT, 1986.

RESPECTFULLY SHOWETH

INTRODUCTION

(In this opening paragraph the complainant should give hisintroduction as well as that of the opposite party/parties.

TRANSACTION

(In this paragraph complainant should describe the transactioncomplained of, i.e., particulars and details of goods/ services availed;items of goods/kind and nature of service; date of purchase of goods/availing of service; amount paid as price/consideration, full or inpart towards the goods/service; Photocopies of the bill/cash memo/voucher or receipt should be attached and properly marked asAnnexure – A,B,C and so forth or 1,2,3 and so forth).


DEFECT DEFICIENCY

(In this paragraph complainant should explain the grievance, i.e.,whether the loss or damage has been caused by some unfair tradepractice or restrictive trade practice adopted by any trader or thereis some defect in the goods or there has been deficiency in service orthe trader has charged excessive price for the goods. One shouldelucidate the nature of unfair trade practice adopted by the trader,i.e., relating to the quality of goods/services; sponsorship; warrantyor guarantee for such period promised. The nature and extent ofdefects in goods should be explained and so should the deficiency inservice. In case of excessive price one should specify the details ofactual price fixed by or under any law for the time being in force oras set out on goods and their packing vis-a-vis the price charged bythe trader. Complaint can also be filed against offer for sale of goodshazardous to life and safety when used. You should narrate yourgrievance and rest assured it is being read /heard by compassionateand pragmatic judges. Photocopies of relevant documents must beattached.)

RECTIFICATION

(In this paragraph complainant should highlight what attempts weremade by him to set things right, i.e., personal visits or negotiations;communication in writing if any; whether any legal notice was gotserved and / or whether he has approached any other agency forredressal like, Civil or Criminal Court of competent jurisdiction; thestage of its proceedings, its outcome, if any, alongwith copies (certifiedpreferably) of such proceedings. The nature of response got fromthe trader when irregularities were brought to his notice, should alsobe disclosed here).

OTHER PROVISIONS

(In this paragraph reference may be made to any other law or rulesor regulations of particular procedure which is applicable to the caseand/or which has been violated by the trader and consumer’s rightsunder the same. There are incidental statutory obligations, whichtraders must fulfil and in case of their failure to do so the case inprima facie made out and Forum would take cognizance).


EVIDENCE

(In this paragraph complainant should give details of documents and/or witnesses he will rely upon to substantiate his case. The documentsattached as Annexures as stated above may be incorporated in aproper list and a list of witnesses (if any) may be filed similarly).Theannexures should be attested as “True Copy”.

JURISDICTION

(In this paragraph complainant should liquidate the claim in thecomplaint, i.e., upto 20 lakh; 20 lakh to one crore; or above and setout the pecuniary jurisdiction of the Forum/ State Commission/NationalCommission, as the case may be. The territorial Jurisdiction shouldbe highlighted to obviate any formal objection).

LIMITATION

That the present complaint is being filed within the period prescribedunder section 24A of the Act.

RELIEF CLAIMED

(In this paragraph complainant should describe the nature of relief hewants to claim. i.e., for removal of defects in goods or deficiency inservice; replacement with new goods; return of the price or charges,etc., paid and/or compensation on account of financial loss or injuryor detriment to his interest occasioned by negligence of the oppositeparty and elucidate how you have calculated the amount ofcompensation claimed).

PRAYER CLAUSE

It is, therefore, most respectfully prayed that this Hon’ble Forum/Commission may kindly be pleased to....................................................................... (Details of reliefswhich complainant wants the Court to grant)Place: ................................... Dated: ...................................

Complainant Through ................................... (Advocate or Consumer Association, etc.)


Verification

I, ............................. the complainant above named, do herebysolemnly verify that the contents of my above complaint are true andcorrect to my knowledge, no part of it is false and nothing materialhas been concealed therein. Verified this ........................... day of............................ 20 ...... at .......... Complainant.Note: Although it is not compulsory, complainant may file an affidavit

in support of the complaint which adds to the truth and veracityof allegations and gives credibility to the cause. It need not beon a Stamp paper but one should get it attested from an OathCommissioner appointed by a High Court. The format is justas simple.


Model Form –3- Affidavit in support of the complaintBEFORE THE HON’BLE…………………..IN RE: COMPLAINTNO………….OF 20……………..IN THE MATTER OF:

…………………………………………………………

Complainant

Opposite party

AFFIDAVITAffidavit ofShri…………………………………………….S/o. Shri...............

aged………………………………years, resident of.....................

(1) That I am complainant in the above case, thoroughlyconversant with the facts and circumstances of the presentcase and am competent to swear this affidavit.

(2) That the facts contained in my accompanying complaint, thecontents of which have not been repeated herein for thesake of brevity may be read as an integral part of this affidavitand are true and correct to my knowledge.

DeponentVerification:

I, the above named deponent do hereby solemnly verify that thecontents of my above affidavit are true and correct to my knowledge,no part of it is false and nothing material has been concealed therein.Verified this…………………………day of…………………..20…………. at……….

Deponent


Model Form –4- Reply by the trader to the complaintBEFORE THE HON’BLE ……………………………………..THE CONSUMER DISPUTES REDRESSAL FORUM/COMMISSION AT………………………

IN RE: COMPLAINT NO…………………….OF20……………………..

IN THE MATTER OF:..................................................................................Complainant

VERSUS............................................................................Opposite PartyDATE OF HEARING……………………


WRITTEN STATEMENT ON BEHALF OFRESPONDENTS TO THE COMPLAINT OF THE

COMPLAINANTRESPECTFULLY SHOWETH:Preliminary Objections1. That the present complaint is wholly misconceived, groundless

and unsustainable in law and is liable to be dismissed as such.The transaction question was without any consideration and freeof charge.

2. That this Hon’ble Forum/ Commission has no jurisdiction toentertain and adjudicate upon the dispute involved in the complaintin as much as it is not a consumer dispute and does not fall withinthe ambit of the provisions of the Consumer Protection Act,1986,hereinafter called the said Act and is exclusively triable by aCivil Court and as such the complaint is liable to be dismissedsummarily on this score alone.

3. That the dispute raised by the complainant in the present complaintis manifestly outside the purview of the said Act and in any event,the Act is in addition to and not in derogation of the provisions ofthe.............. Act. The proceedings initiated by the complainantunder the Act are honest, null and void and without jurisdiction.

4. That the definitions of ‘Complainant’, ‘Complaint’ ‘ConsumerDispute’ and ‘Service’, as defined in Section 2(1) of the said Actdo not cover the claims arising under the present dispute and thatfrom the aforesaid definitions, the complainant is not’ consumer’and the controversy involved in the complaint is not a ‘consumerdispute’.

5. That the present complaint is baseless and flagrant abuse ofprocess of law to harass and blackmail the answering respondent.

6. That the complainant has no locus standi to initiate the presentproceedings.

7. That the complaint is bad for non-joinder of necessary and properparty and is liable to be dismissed on this score alone.

8 . That the complainant has already filed a Civil Suit for .................in a court of competent jurisdiction which is pending disposal inthe Court of ............. and the present complaint has becomeinfructuous.


9. That the present complaint is hopelessly barred by limitation. 10. That this Hon’ble Forum/Commission has no territorial or

pecuniary jurisdiction in as much as the amount involved in thesubject-matter exceeds/is less than the limit prescribed by Section11(1) Section 17(1)(a)(i)/Section 21(a)(i) of the Act.

11. That the present complaint is frivolous and vexatious and liableto be dismissed under Section 26 of the Act.

12. That the present complaint has not been verified in accordancewith law.

On Merits:In these paragraphs respondent must reply each and every

allegation made and contention raised by the complainant, factualand legal as well. In case one has already made good the defect ordeficiency, elucidate steps taken. One may have, inter alia, followinggoods defences as well.1. That the transaction entered between the parties to the above

dispute is a commercial one and the complainant cannot claimany relief from this authority in as much as ..............................(give details)

2. That the complainant had purchased the goods as a seller/retailer/distributor, etc., for consideration of resale and as such is barredfrom moving this Hon’ble Forum/Commission for the allegeddefect/deficiency etc. in as much as...........................................................................................(give details)

3. That the complainant has already availed the warranty periodduring which the answering respondent has repaired/replacedthe goods in question. The complainant is thus legally stoppedfrom enforcing this complaint or to take benefit of his own wrong.

4. That the present complaint is an exaggeration beyond proportiondespite the fact that the complainant is himself responsible fordelay and laches in as much as he has on several occasionschanged his option for class of goods/type of allotment schemeof flats/model of vehicle, etc ...............................................(give details)

5. That the answering respondent is well within his rights to chargeextra price for the subject-matter of the above dispute in as muchas time was not the essence of delivery thereof. The complainant


is liable to pay the increased price w.e.f ............ on account ofescalation due to excise duty/budgetary provisions etc. in as muchas…...........................................................(give details)

6. That the complainant has accepted the goods and/or servicetowards repair/replacement etc. without protest and the presentcomplaint is merely an after thought.

7. That without prejudice the answering respondent as a gesture ofgoodwill is prepared to........................................................................ (give details of rectification, if any, whichcan be done in case of minor or tolerable problems to avoidharassment to consumer and litigation problems)

The allegations of defect/default/negligence and/or deficiency inservice are wholly misconceived, groundless, false, untenable inlaw besides being extraneous and irrelevant having regard to thefacts and circumstances of the matter under reference.Prayer clause with all the submissions made therein is absolutelywrong and is emphatically denied. Complainant is not entitled toany relief whatsoever and is not entitled Model Form costs.

Sd/-(Opposite Party)

Place: ......................Dated: ...................... through

(Advocate)

Verification

I, .................... the above named respondent do hereby verify thatthe contents of paras ................ to .................... of the writtenstatement on merits are true and correct to my knowledge. Whileparas .............................. to ............ of preliminary objections and................ to ......... of reply on merits are true to my information,belief and legal advice received by me and believed to be true whilethe last para is prayer to this Hon’ble Court. Verified at ........................this .......................day of................. 20 .............

Sd/-(Opposite party)

INDIAN INSTITUTE OF PUBLIC ADMINISTRATION

The Indian Institute of Public Administration, established as an autonomous body under the Registration of Societies Act, was inaugurated on March 29, 1954 by Shri Jawaharlal Nehru who was the first President of the Society. The basic purpose of establishing this Institute was to undertake such academic activities as would enhance the leadership qualities and managerial capabilities of the executives in the government and other public service organizations. The activities of the Institute are organized in four inter-related areas of Research, Training, Advisory and Consultancy Services and Dissemination of Information.

CENTRE FOR CONSUMER STUDIES

CCS is dedicated to consumer studies and is sponsored by DCA, GoI. The objective of the CCS is to perform, facilitate and promote better protection of consumer's rights and interests with special reference to rural India. The broad areas of focus of the Centre comprise capacity building, advocacy, policy analysis, research, advisory and consultative services, and networking.

The Centre seeks to network with national and International agencies and interface with other stakeholders by serving as a bridging “think tank” with an intensive advocacy role. The Centre provides a forum for creating dialogue among policy makers, service providers, representatives of various business establishments and their associations, professional bodies/associations, civil society organizations, educational/research institutions, economic and social development organizations as well as leading NGOs.

Centre for Consumer StudiesRoom No. 11A

Indian Institute of Public AdministrationI.P. Estate, Ring Road

New Delhi-110002Tel: 011-23468347, 23705928 (Fax)

Email: Website: www.consumereducation.in

[email protected]

Documents

Consumer Monograph Series No. 16 Doctor-Patient Relationship · The doctor-patient relationship is at the center of conception of medicine. The relationship between doctors and their