Medical Negligence and the Remedies Available


“A doctor, like anyone else who has to deal with human beings, each of them unique, cannot be a scientist; he is either, like the surgeon, a craftsman, or, like the physician and the psychologist, an artist. This means that in order to be a good doctor, a man must also have a good character, that is to say, whatever weaknesses and foibles he may have, he must love his fellow human beings in the concrete and desire their good before his own.”

These words are aptly put by W. H. Auden, showing the huge responsibility on a doctor’s shoulder to be selfless and treat his patient with utmost care and caution. Being a doctor is an honorable profession, which is often referred to as the hand of God. Having been called as professionals and trusted to keep our lives safe, breach of duty, failure to keep up with reasonable standards, or being negligent are not expected from them and may invite to the offence of medical negligence. The damage or injury caused by the doctor can be actionable in the court of law, and remedies will be provided to the plaintiff in case the negligence is proved. A patient cannot make a doctor liable for the breach of his duty if there is no relationship between them.

What is Medical Negligence?

Medical Negligence can be defined as doing something which a reasonably prudent medical practitioner would not do, or the omission to do something which a reasonably prudent medical practitioner would do under like circumstances with the patient. Even the slightest injury or damage caused to the patient by a doctor’s negligence, who as a professional was expected to work in a reasonable way due to their reputation or skills, give rise to the tort of medical negligence. It is the doctor’s duty to make decisions that will be in the best interest of the patient even if the patient condition is severely critical and the chances of survival are minimal. There are some essentials to constitute the tort of medical negligence they are as follows-

  1. A professional duty owed to the patient: Duty owned is a legal obligation applied on the professional that they will perform the required task, in which foreseeable injury may happen, with a reasonable standard of care.
  2. Breach of such duty: Failure to keep up with the duty owned will lead to the breach of duty, which is not ordinarily expected from a professional. If the professional acted reasonably and aptly, then there is no negligence.
  3.  Injury caused by the breach resulting in damages: The breach of duty may lead to the infliction of some damage to the patient or relative, be it financial, physical or mental. There must be a link between the patient injury and the professional’s action.

Medical Ethics and Malpractices

Medical ethics are basically moral principles or agendas that govern a doctor’s behavior or the conducting of medical activity. A physician should be equipped with moral ethics along with medical knowledge and technical skills. Proper ethical behavior gives a boost to the reputation and goodwill of the professional, attracting more patients looking for appropriate medical treatment.

Medical malpractices or professional negligence is defined as an act or omission done by a professional, which leads to the deviation from ethical practices and norms resulting in injury to the patient. This leads to the downgrading of the reputation and goodwill of the professional concerned.

Medical malpractice has a stricter punishment as compared to medical negligence. The variation of the professional practice from the accepted medical standard of care can be helpful to determine whether the injury was caused by an avoidable but unintentional mistake, i.e. medical negligence or intentionally negligent action, i.e. medical malpractice. 

The Doctrine of Res Ipsa Loquitur

The legal maxim ‘Res Ipsa Loquitur’ is a Latin phrase which means that ‘the thing speaks for itself has been explained in Halsbury’s Law of England, through this Doctrine the patient gives an advantage to his case as the incident which happened could not have been possible without circumstantial negligence of the doctor. It is an exception to the general rule. This doctrine shifts the burden to proof of the case from the patient to the professional as the facts are transparent and show that the breach of duty and injury has been caused.

The doctrine of res ipsa loquitur has 3 essentials

  1. The injury inflicted upon the patient in no situation can be voluntary or with the proper consent.
  2. The injury caused must be done by the method or instrument under the professional’s supervision and control.
  3. The situation in which the injury was caused must be under explicit circumstances and can only be performed due to negligence.

The Bolam and Bolitho Test

The Bolam Test establishes in the landmark case of Bolam v Friern Hospital Management Committee. It states, “If a doctor acts in accordance with a responsible body of medical opinion, he or she will not be negligent.” It basically defines the reasonable standard of care expected from the medical practitioner in order not to be guilty of negligence. To use Bolam Test, a doctor should be able to prove that another practitioner with the same skills would have taken the same measures as he did to prevent the deteriorating of the condition of the patient. In the last judgement, it was observed that this law is not applicable in the case of few or minority opinions. The further amendments in the law sowed the seed for the formation of the Bolitho Test.

The Bolitho test resulted from case Bolitho v City and Hackney HA, which further extends the Bolam Test. This test clarifies the Bolam test. The test states that the court has to be satisfied that the opinions of the doctors that have been relied upon for the judgment have a logical basis and are not part of a vague and ambiguous argument.

How to File a Complaint against Medical Negligence

  1. The complaint will be filed against the professional with the local police and the State Medical Council. To gather facts, the victim can get access to all the medical records within 72 hours of the appointment, which is given under MCI guidelines.
  2. If the complaint is filed to the police, they then begin to share the complaint detailswith the State Medical council.
  3. If the council discovers enough evidence regarding the case, they will forward the required reports to the courts.
  4. If the case is criminal, then it will be against the state versus the hospital or doctor. If the threat or severity is so serious that it poses a danger to the life of the other patient, then it may also suspend the doctor’s license for a particular limit of time.
  5. The facts and severity of the offence will decide the punishment of the doctor in case found guilty.
  6. In case of dissatisfaction of the patient, s/he may appeal to the Medical Council of India(MCI)
  7. Filing the complaint in consumer court will be helpful in case of financial reimbursement as needed by the patient.
  8. If the patient is still not satisfied with the consumer court’s decision, s/he can always seek further remedy in National Consumer Redressal Forum and the Apex Court for trial.

Challenges faced by the Victims

  1. Many people are not aware of their rights relating to how to get remedies against the case of medical negligence.
  2. The process of getting justice could be time consuming and expensive, which can build up a lot of mental pressure on the consumer.
  3. The doctor may tamper with the medical records or evidences in the suspicion of the case to be filed against them, making it impossible for patients to retrieve it.
  4. Due to the well-reputed and gaining the support of a minority of doctors by the defendant may become a hindrance for the victim to seek justice.
  5. Claiming insurance in these cases could prove to be an exhausting and toilsome process.

Legal Remedies for Medical Negligence

  1. Medical Council of India: The complaint before the Medical Council of India can be filed in case of medical negligence, which comes under disciplinary action.MCI recognizes the degree facilitated by various institutions and universities for medical purposes. The statutory organization has the power of disciplinary control over the practitioners and can temporarily or permanently remove the registry of a medical practitioner from the medical registers if they are found to be guilty. Any action that degrades the profession’s image as a whole will be termed as “serious professional misconduct”, and the punishment will be decided accordingly.
  2. Consumer Court: The patient can file a suit against a medical practitioner under Consumer Protection Act, 1986 if he could present her/himself as a consumer. Filing complaint under consumer court comes under compensatory action.

Consumer: The consumer is a person who has hired goods or services and has paid for them. Therefore, in the case of free treatment received by any person, s/he cannot be termed a consumer.

The Section 2(1)(o) of the Consumer Protection Act mentions the ‘deficiency of service’ which defines any mistake, flaw, etc. in the quality or manner of performance that is necessary to be maintained by or under any law or it has been undertaken to be performed by a person in pursuance of a contract or otherwise.

To file a suit against a medical practitioner, nursing home or hospital for their service, the definition of service thus given should fall under Section 2(1)(i) of the Consumer Protection Act.

Hierarchy for Consumer Dispute Redressal Commission

  • District Consumer Redressal Forum (Section 9-15of CPA, 1986) – Pecuniary jurisdiction up to 20 lakhs.
    1. State Consumer Redressal Forum (Section 16-19 of CPA, 1986) – Pecuniary jurisdiction from 20 lakhs to 1 crore.
    2. National Consumer Redressal Forum (Section 20-24 of CPA, 1986) – Pecuniary jurisdiction for more than 1 crore.
    3. Supreme Court of India.(Section 23 of CPA, 1986)
  • Civil court: Filing a complaint under civil court comes under compensatory action. In the case of a complaint under the law of torts, the breach of duty and presence of negligence is a must. The burden to prove the practitioner guilty lies on the victim. Accordingly, in the case of a complaint under the law of contract, the victim must prove that there is a contractual agreement between the parties, the victim and the medical practitioner, for the hiring of services.
  • Criminal Court: Filing complaint under criminal court comes under Punitive action. The criminal liability can be imposed under Section 304-A of the Indian Penal Code. In case of death of a patient due to rash and negligent act of the medical practitioner which could have been prevented by taking the reasonable duty of care, and there is no involvement of other alien force the medical practitioner can be tried in the criminal court for Criminal negligence. Their merely lack of care doesn’t qualify the victim to approach the criminal court. The act done must be of ‘gross negligence’ or ‘recklessness’.

In Dr Suresh Gupta Case,2004 the Supreme Court observed that after the death of the patient, the medical practitioner could only be held liable only if the act done by them amounts to a severely gross and reckless act which cannot be expected from the prudent, reasonable being who is also a professional.

  • Human Rights Commission: Filing complaint under Human Rights Commission comes under Recommendatory action. NHRC is a statutory public body that constantly inquires into the violation of human rights and facilitates measures to implement basic human rights effectively. Each patient, irrespective of their background, has the right to life and health. NHRC/SHRC endorse the victim by explaining to them the legal aspects and procedure while persuading the state to compensate and provide immediate relief to the victims.


Being a medical practitioner is a reputed job that demands proper action in case of any situation, be it a minor cut or a fatal wound. Medical practitioners are judged with reference to the other professionals of the same field of work. A job that demands particular skill, ability, experience and professionalism requires the special duty of care towards others.

The constitution of India provides the fundamental Right to Life and Health under Article 21. Thus, any type of infringement in our Fundamental Rights should not be tolerated by the judiciary, and proper remedies should be provided in case of medical negligence. Medical Services should be treated as the “services” as it does not constitute a personal service contract. Thus no master-servant relationship arises.

It is high time for the medical practitioners to restore the belief and trust among the patients, which was downgraded due to increasing medical negligence cases and keep in mind their ethical morality and proper, righteous treatment of the patient.

This article is authored by Sarthak Pant, student at DSNLU



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