professional liability of hospitals

8/18/2019 Professional Liability of Hospitals

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HEALTH LAW

ProfessionalLiabilityof


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LIST OF CASES

1. Acchutrao Haribhau Khodwa v. State of Maharashtra

2. Andrews v. Director Public Prosecution

3. Aparna Dutta v. Apollo Hospitals Enterprises td

!. Arland v. "a#lor

$. Asha Devi Paris v. Stepne# %orou&h 'ouncil

(. A.S.Mittal v. State of )P

*. %alton v. Stone

+. %ola, v. -riern Hospital Mana&e,ent 'o,,ittee

. %oo/er v. 0enborn

1. %l#th v. %ir,in&ha, 0aterwor/s 'o

11. 'ates v. Mon&ini %rothers

12. Devi v. )tta, %hoi

13. las&ow 'orporation v. Muir

1!. ndian Medical Association v. 4.P. Shantha and 5rs

1$. shwar Devi v. )nion of ndia

1(. 6acob Mathew v. State of Pun7ab

1*. 6oseph 8 Pappachan v. Dr. eor&e Moon7erl#

1+. Kusu, Shar,a v. %atra Hospital

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1. a9,an v. "ri,ba/

2. Ma/bool Ah,ed v. %hura al

21. Mata Prasad v. )nion of ndia

22. Ma/bool Ah,ed v. %hura al

23. Meadows Hospital : Anr. v. Har7ol Ahluwalia : Anr ;

2!. M. K. ouri/utt# : etc. v. M. K. Madhavan and 5rs

2$. Mr. M


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3. State of Har#ana v. Santra

!. State of Pun7ab v. Shiv


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INTRODUCTION

Medical profession is the one of the noblest profession a,on& all other professions in ndia.

-or a patient; the doctor is li/e od. And; the od is infallible. %ut that is what the patient

thin/s. n realit#; doctors are hu,an bein&s. And; to err is hu,an. Doctors ,a# co,,it a

,ista/e. Doctors ,a# be ne&li&ent. "he support staff ,a# be careless. "wo acts of

ne&li&ence ,a# &ive rise to a ,uch bi&&er proble,. t ,a# be due to &ross ne&li&ence.

An#thin& is possible. n such a scenario; it is critical to deter,ine who was ne&li&ent; and

under what circu,stances.

n a countr# co,,itted to the rule of law; such ,atters are ta/en to the court and 7ud&es are

supposed to decide. However; ne&li&ence b# doctors is difficult to be deter,ined b# 7ud&es as

the# are not trained in ,edical science. "heir decisions are based on e9perts@ opinion. 6ud&es

appl# the basic principles of law in con7unction with

the law of the land to ,a/e a decision.


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NEGLIGENCE

t is ver# difficult to define ne&li&ence however; the concept has been accepted in

7urisprudence. "he authoritative te9t on the sub7ect in ndia is the Baw of "orts@ b#


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t would be absurd to hold an# person liable for his ever# careless act or even for ever#

careless act that causes da,a&e. He ,a# onl# be liable in ne&li&ence if he is under a le&al

dut# to ta/e care. e&al dut# is different fro, the ,oral; reli&ious or social dut# and

therefore; the plaintiff consu,er has to establish that the wron&doer owed to hi, a specific

le&al dut# to ta/e care of which he has ,ade a breach. A person is onl# reGuired to ,eet the

standard of care where he has an obli&ation or a dut# to be careful. "hus it ,a# be said that

the Idut#J is Ithe relation between individuals who i,poses upon one a le&al obli&ation for

the benefit of otherJ. Put in other ter,s the dut# is Ian obli&ation; reco&ni>ed b# law; to

avoid conduct frau&ht with unreasonable ris/ of dan&er to others.J "hus the e9istence of dut#

towards the plaintiff beco,es i,portant factor for fi9ation of the liabilit# of the tortfeasor.

Duty depends on reasonable foreseeability of injury:

0hether the defendant owes a dut# to the plaintiff or not depends on reasonable

foreseeabilit# to the plaintiff. f at the ti,e of the act or o,ission; the defendant could

reasonabl# foresee in7ur# to the plaintiff he owes a dut# to prevent that in7ur# and failure to

do that ,a/es hi, liable. Dut# to ta/e care is the dut# to avoid doin& or o,ittin& to do

an#thin&; the doin& or o,ittin& to do which ,a# have as its reasonable and probable

conseGuence in7ur# to others; and the dut# is owed to those to who, in7ur# ,a# reasonabl#

and probabl# be anticipated if the dut# is not observed.2

ord Mac,illan e9plained the standard of foresi&ht of a reasonable ,an in Glasgow

Corporation v. Muir 3 as followsC

I"he standard of foresi&ht of the reasonable ,an is; in one sense; an i,personal test.

t eli,inates the personal eGuation and is independent of the idios#ncrasies of the

particular person whose conduct is in Guestion. So,e persons are b# nature undul#ti,orous and i,a&ine ever# path beset with lions. 5thers; of ,ore robust

te,pera,ent; fail to foresee or nonchalantl# disre&ard even the ,ost obvious

dan&ers. "he reasonable ,an is presu,ed to be free both fro, apprehension and

fro, over confidence; but there is a sense in which the standard of care of the

reasonable ,an involves in its application a sub7ective ele,ent.J

2 Bourhill v.Young ; 1!3 A.' 2

3 1!3 A.'. !!+.

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t is still left to the 7ud&e to decide what; in the circu,stances of the particular case; the

reasonable ,an would have had in conte,plation and what accordin&l#; the part# sou&ht to

be ,ade liable ou&ht to have foreseen. Here; there is roo, of diversit# of views0hat to

one 7ud&e ,a# see, farfetched to another both natural and probable.

n Booker v. Wenborn4; the defendant boarded a train which had 7ust started ,ovin& but /ept

the door of carria&e open. "he door open outside; and created a dan&er to those standin& on

the platfor,. "he plaintiff; a porter; who was standin& on the ed&e of the platfor, was hit b#

the door and in7ured. t was held that the defendant was liable because a person boardin& a

,ovin& train owed a dut# of care to a person standin& near it on the platfor,.

n S. Dhanaveni v. State of Tamil a!u"

; the deceased slipped into a pit filled with rainwater in the ni&ht. He cau&ht hold of nearb# electric pole to avert a fall. Due to lea/a&e of

electricit# in the pole; he was electrocuted. "he respondent; who ,aintained the electric pole

was considered ne&li&ent and was held liable for the death of the deceased.

n another case na,ed #ural transport Servi$e v. Be%lum Bibi & ; the conductor of an

overloaded bus invited the passen&ers to travel on the roof of the bus. 5n the wa#; the bus

swerved on the ri&ht side to overta/e a cart. 5ne of the passen&ers on the roof of the bus;

"ahir Sei/h; was struc/ b# an overhan&in& branch of a tree. He fell down and received

,ultiple in7uries on the head; chest etc. and as a conseGuence thereof he died. n an action b#

%e>lu, %ibi; the ,other of the deceased; it was held that there was ne&li&ence on the part of

both the driver and conductor of the bus; and the defendant was held liable for the sa,e. n

this case it was observed Ithat invitin& passen&ers to travel precariousl# on the top of an

overcrowded bus is itself a rash and ne&li&ent act and that part when passen&ers were bein&

,ade to travel on the roof; a &reater a,ount of care and caution on the part of the driver was

called for so that his leavin& the ,etallic trac/ b# swervin& on the ri&ht so close to a tree

with over han&in& branch for overta/in& a cart while in speed is also a rash and ne&li&ent act.

n another case na,ed 'shwar Devi v. (nion of 'n!ia) it was held ne&li&ent to start a bus

before passen&ers &et into it.

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n Makbool *hme! v. Bhura +al , also it was held that the driver and the conductor owe a

dut# of care towards passen&ers.

n Mun$ipal Corporation of Delhi v. Subhagwanti - a cloc/ tower situated in the heart of the

cit#; i.e. 'handini 'how/; Delhi collapsed causin& the death of a nu,ber of persons. "he

structure was + #ears old whereas its nor,al life was !!$ #ears. "he Municipal

'orporation of Delhi; which was havin& control of the structure had obviousl# failed to &et

the periodical chec/ up and the necessar# repairs done. "he defendant corporation was;

therefore; held liable to pa# co,pensation for the conseGuences of the collapse of the

structure.

n Mata rasa! v. (nion of 'n!ia/0//

the &ates of a railwa# crossin& were open. 0hile thedriver of truc/ tried to cross the railwa# line; the truc/ was hit b# an inco,in& train. t was

held that when the &ates of the level crossin& were open; the driver of the truc/ could assu,e

that there was no dan&er in crossin& the railwa# trac/. "here was ne&li&ence on the part of

the railwa# ad,inistration and the# were; therefore held liable.

n case of 1rissa #oa! Transport Co. +t!. v. (makant Singh 11; the bus driver was held

liable for the death of two passen&ers as he tried to cross the level crossin& but could not do

so due to ,echanical defect in the truc/. "here was enou&h ti,e to cross the level crossin&

and he was aware of the ,echanical defect. "hus; he was held ne&li&ent.

No liability when injury not foreseeable:

=o liabilit# can be levied on the defendant if it can be proved that he; in an# reasonable

circu,stances; could not foresee the in7ur#. "he followin& cases will ,a/e this point clearC

* A..


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n Cates v. Mongini Brothers/2; the plaintiff; a lad# visitor to a restaurant was in7ured b# the

fallin& of ceilin& fan on her. "he reason for the fallin& of the fan was a latent defect in the

,ental suspension rod of the fan. "he defect could not have been discovered b# a reasonable

,an. n an action a&ainst defendant who were runnin& the restaurant; it was held that since

the har, was not foreseeable; the# were not ne&li&ent and therefore were not liable for the

lad# plaintiff.

n #an v. oungs/3; the defendant@s servant; while drivin& a lorr#; suddenl# died; which

resulted in an accident and conseGuent in7ur# to the plaintiff. "he driver appeared to be Guite

health# and the defendant could not foresee his sudden death. t was held that the accident

was due to an Act of od and the defendant was not liable for the sa,e.

Reasonable foreseeability does not mean remote possibility:

"o establish ne&li&ence it is not enou&h to prove that the in7ur# was foreseeable; but a

reasonable li/elihood of the in7ur# has to be shown because Iforesee abilit# does not include

an# idea of li/elihood at allJ. "he dut# is to &uard a&ainst probabilities rather than bare

possibilities. n Fardon v. Harourt Rivington!" ; the court set out the reasonable ,an test for

foresee abilit#. If the possibilit# of dan&er e,er&in& is reasonabl# apparent; then to ta/e

precautions is ne&li&ence but if the possibilit# of dan&er e,er&in& is onl# a ,ere possibilit#

which would never occur to the ,ind of reasonable ,an; then there is no ne&li&ence in not

havin& ta/in& e9traordinar# precautions.J

n Devi v. (ttam Bhoi /" a bo# of about *+ #ears was hit b# a truc/ at about 2C3p.,. in the

broad da#li&ht; as a result of which he received ,ultiple in7uries. t was held that the driver

while ne&otiatin& a place freGuented b# children should have ta/en &reater care as the

behavior of the children is unpredictable. -ro, the nature of in7uries received; ne&li&ence onthe part of the driver was presu,ed and he was held liable.

12 11* 1 %o, .


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n Balton v. Stone/& ; a bats,an hit a ball and the ball went over a fence and in7ured a person

on the ad7oin hi&hwa#. "his &round had been used for about #ears and durin& the last 3

#ears; the ball had been hit in the hi&hwa# on about si9 occasions but no one had been

in7ured. "he 'ourt of Appeal held that the defendants were liable for ne&li&ence. %ut the

House of ords held that the defendants were not liable on the basis of ne&li&ence.

2. Breach of Duty

"he second i,portant essential to hold the tortfeasor liable in ne&li&ence is that the defendant

,ust not onl# owe a dut# of care to the plaintiff; but also he ,ust be in breach of it. "he test

for decidin& whether there has been a breach of dut# was laid down in oftcited dictu, of

Alderson %; in Blth v. Birmingham Waterworks Co.!

case; wherein it was held thatInegligene is breah of duty aused by the omission to do something whih a reasonable

man# guided upon those onsiderations whih ordinarily regulate the ondut of human

affairs# would do# or doing something whih a prudent and reasonable man would not do.J

n the above definition of the breach of dut#; the e,phasis is on the conduct of a $reasonable

man‟ which is a ,#thical creature of law whose conduct is the standard b# which the 'ourts

,easure the conduct of all other persons and find it to be proper or i,proper in particular

circu,stances as the# ,a# e9ist fro, ti,e to ti,e.

"he House of ords; in %rland v. &aylor has su,,ari>ed the characteristics of the

Lreasonable ,an accordin& to which Lhe is not e9traordinar#; or unusual creature he is not‟

a superhu,an he is not reGuired to displa# the hi&hest s/ill of which an#one is capable he is

not a &enius who can perfor, unco,,on feats; nor is he possessed of unusual powers of

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case to case; i.e. hi&her the ,a&nitude of ris/ &reater de&ree of standard of care would be

needed.

-urther there are two factors in deter,inin& the ,a&nitude of ris/; i.e.

i the seriousness or the &ravit# of the in7ur# ris/ed and

ii the li/elihood of the in7ur# bein& in fact caused.

n irmala v. Tamil a!u 5le$tri$it Boar! case; the plaintiff@s husband while at wor/ in

his far, was electrocuted and died instantaneousl# as he ca,e in contact with a live wire

that had snapped. Holdin& the defendants liable in ne&li&ence; the court noted that the

defendants have failed to ensure proper ,aintenance as a result wires snapped and further

that the# had failed to provide a device whereb# the snapped wire would have auto,aticall#

beco,e dead and har,less.1+

n Bhagwat Sarup v. 6imalaa Gas Co.; the plaintiff boo/ed replace,ent of a coo/in& &as

c#linder with the defendant; who had the &as a&enc# in Shi,la. "he defendant@s deliver#

,an too/ a c#linder into the plaintiff@s house. "he cap of the c#linder bein& defective; he

tried to open it b# /noc/in& at the sa,e with the a9e. "his resulted in da,a&e to the c#linder and lea/in& of &as therefro,. So,e fire was alread# burnin& in the /itchen and the lea/ed

&as cau&ht fire. As a conseGuence of the fire; the plaintiff@s dau&hter died; so,e other fa,il#

,e,bers received severe burn in7uries and so,e propert# inside the house was destro#ed b#

fire. t was held that the defendant@s servant was ne&li&ent in openin& the c#linder and the

defendant was held liable for conseGuences of such ne&li&ence. So far as the ,a&nitude of

ris/ is involved; it ,a# be noted that it depends fro, case to case.

n aris v. Stepne Borough Coun$il /-; the plaintiff who had onl# one health# e#e was

blinded in the course of e,plo#,ent. "he plaintiff contended that the e,plo#ers o,itted to

1+ A< 1+! Mad 21 'ee; also; (erala 'tate )letriity Board v. 'uresh (umar ; 1+(

A'6 + wherein a ,inor bo# ca,e in contact with overhead electric wire which had

sa&&ed to 3 feet above the &round; &ot electrocuted thereb# and received burn in7uries. "he

Electricit# %oard had a dut# to /eep the overhead wire 1$ feet above the &round. "he

%oard was held liable for breach of its statutor# dut#.

1 1$1N A' 3(*

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provide hi, with &o&&les and thus were in breach of their dut# to ta/e reasonable care of his

safet# because; the# ,ust have /nown that the conseGuences of an accident to his &ood e#e

would be particularl# disastrous. "he court held the defendant liable.

n State of M.. v. *sha Devi 20 an accident was caused b# police vehicle collidin& with a

culvert. "he vehicle toppled; as a result of which five constables were /illed. "he speed of 3

/,. at the relevant ti,e was considered to be e9cessive even thou&h it was a hi&hwa#;

because when it a crowded road or at the road >i&>a& and narrow culverts are there; where

onl# one vehicle can pass; the speed of 3 /,. will be hi&h as the vehicle cannot be

controlled in such a situation. Another factor indicatin& ne&li&ence was that !$ persons were

sittin& b# the side of the driver and there was no space to chan&e the &ears so as to stop the

vehicle.

3. Breach of Duty "ust have cause# the Da"a$e:

"he third and last essential of ne&li&ence is that the plaintiff is reGuired to prove the causal

connection between the breach of dut# and the da,a&e; i.e. where so,e fault is attributed to

the defendant; the plaintiff ,ust prove that the defendant was ne&li&ent. "he sa,e ,a# be

seen in Madras Hi&h 'ourt decision in an!ian #oa!was Corp. v. 7arunanithi . n this

case; three i,,ature bo#s were ridin& a bic#cle. 5n seein& so,e do&s fi&htin& ahead; the#

lost the balance and fell down. "he driver of a bus saw the bo#s fallin& but did not

i,,ediatel# appl# the bra/es; as a result of which the bus ran over the ri&ht ar, of one of

those bo#s. "he failure of the driver to stop the bus was held to be a clear case of ne&li&ence

on his part. However; if the plaintiff fails to prove ne&li&ence on part of the defendant; the

defendant would not be ,ade liable. "his situation ,a# be e9plained b# a case decided b#

the House of ords; wherein the court observed thatC

*the party see+ing to reover ompensation for damage must ma+e out that the party

against whom he omplains was in the wrong. &he burden of proof is learly upon

him# and he must show that the loss is to be attributed to the negligene of the

opposite party. ,f at the end# he leaves the ase in even sales# and does not satisfy

2 A..


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the ourt that it was oasioned by the negligene or default of the other party# he

annot sueed.-!

"he above observation la#s e,phasis on the ne&lect of the defendant and i,poses a dut#

upon the plaintiff to prove the causal lin/a&e between ne&li&ent act and the da,a&e; i.e. to

sa# that the burden of proof in such cases lies on the plaintiff. "he initial burden of proof at

least a prima faie case of ne&li&ence as a&ainst the defendant lies on the plaintiff. However;

there are certain cases wherein the plaintiff need not prove that and the inference of

ne&li&ence is drawn fro, the facts alle&ed b# the plaintiff. "here is a presu,ption of

ne&li&ence accordin& to the ,a9i, I #es 'psa +o8uitor - which ,eans that 9thing speaks for

itself: . 0hen the accident defect in &oods or deficienc# in services e9plains onl# one thin&

that the accident or such defect in &oodsOdeficienc# in service would not have occurred

unless the defendant had been ne&li&ent; the law raises a presu,ption of ne&li&ence on the

part of the defendant. "he plaintiff; in order to clai, benefit of the ,a9i, res ipsa lo/uitor#

has to ,eet three i,portant reGuire,ents for its applicationC

i "hat the Ithin&J causin& the da,a&e was in the control of the defendant or his

servants; or a&ents

ii "hat accident ,ust be such as would not in the ordinar# course of thin&s have

happened without ne&li&ence and

iii "hat there is absence of e9planation of the actual cause of the accident.

n Muni$ipal Corporation of Delhi v. Subhagwanti ; 1rs 22; the 'loc/ "ower at 'handani

'how/ in Delhi; collapsed causin& death of the plaintiffJs husband; was found to be

Ie0lusive by under the ownership and ontrol of the appellant or its servants-. "he 'hief

En&ineer stated that the collapse of the 'loc/ "ower was due to thrust of the arches on the top

portion and the ,ortar had deteriorated to such an e9tent that it was without an# ce,entin&

properties. "he court; on the basis of evidence ca,e to a conclusion that Lthe ,ere fact that

there was a fall of the 'loc/ "ower tells its own stor# in raisin& an inference of ne&li&ence so

as to establish a pri,a facie case a&ainst the appellants the defendants.

21 A< 1+2 Mad 1!

22 1*! 1 S ' ' (

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%rofessional Lia)ility

t covers all aspects of professionals to follow codes of conduct when providin& care or

services in their field. n the event of the failure to adhere to the professional codes of ethics

b# the service provider a professional liabilit# clai, can be filed for.

Ne$li$ence )y %rofessionals

n law of ne&li&ence; professionals such as law#ers; doctors; architects and others are

included in the cate&or# of persons professin& so,e special s/ill or s/illed persons &enerall#.

A professional ,a# be held liable for ne&li&ence on one of the findin&s of twoC one; either he

was not possessed of the reGuisite s/ill which he professed to have or two that; he did not

e9ercise; with reasonable co,petence in a &iven case; the s/ill which he did profess.

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NEGLIGENCE B* +EDIC(L %RO&E''ION(L'

A person who holds hi,self out as read# to &ive ,edical advice or treat,ent i,pliedl#

underta/es that he is possessed of s/ill and /nowled&e for the purpose. Such a person;

whether he is ,edical practitioner or not; who is consulted b# a patient; owes hi, certain

duties; na,el# a dut# of care in decidin& whether he underta/es the case a dut# of care in

decidin& what treat,ent to &ive and dut# of care in his ad,inistration of that treat,ent. A

breach of an# of these duties will support an action for ne&li&ence b# patient.

n


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would fail if the eGuip,ent was not &enerall# available at that particular ti,e that is; the

ti,e of the incident at which it is su&&ested it should have been used.

De$ree of Ne$li$ence

"he Delhi Hi&h 'ourt laid down in 2$ that in civil law; there are three de&rees of

ne&li&ence2$C

i lata ulpa; &ross ne&lect

ii levis ulpa; ordinar# ne&lect; and

iii levissima ulpa; sli&ht ne&lect.

Ever# act of ne&li&ence b# the doctor shall not attract punish,ent. Sli&ht ne&lect will surel#

not be punishable and ordinar# ne&lect; as the na,e su&&ests; is also not to be punished. f we

club these two; we &et two cate&oriesC ne&li&ence for which the doctor shall be liable and that

ne&li&ence for which the doctor shall not be liable. n ,ost of the cases; the dividin& line

shall be Guite clear; however; the proble, is in those cases where the dividin& line is thin.

As re&ards "e#ical ne$li$ence; the le&al position has been described in several leadin&

7ud&,ents. So,e of these are &iven belowC

Bolam v. =riern 6ospital Management Committee2&

6ohn Hector %ola, suffered fro, depression and was treated at the -riern Hospital in 1$!

b# E.'.". electroconvulsive therap#. He was not &iven an# rela9ant dru&; however; nurses

were present on either side of the couch to prevent hi, fro, fallin& off. 0hen he consented

for the treat,ent; the hospital did not war, hi, of the ris/s; particularl# that he would be

&iven the treat,ent without rela9ant dru&s. He sustained fractures durin& the treat,ent and

sued the hospital and clai,ed da,a&es for ne&li&ence. E9perts opined that there were two

practices accepted b# the,C treat,ent with rela9ant dru&s and treat,ent without rela9ant

dru&s.


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the patients and also to &ive the warnin& onl# when the patients as/ about the ris/s. "he court

concluded that the doctors and the hospital were not ne&li&ent.

ab2)

n this case a patient was ad,itted to 'M' Hospital; udhiana. He felt difficult# in

breathin&. =o doctor turned up for about 22$ ,inutes. ater two doctors Dr. 6acob

Mathew and Dr. Allen 6oseph ca,e and an o9#&en c#linder was brou&ht and connected to

the ,outh of the patient. Surprisin&l#; the breathin& proble, increased further. "he patient

tried to &et up. "he ,edical staff as/ed hi, to re,ain in bed. )nfortunatel#; the o9#&en

c#linder was found to be e,pt#. Another c#linder was brou&ht. However; b# that ti,e the

patient had died. "he ,atter a&ainst doctors; hospital staff and hospital went up to theSupre,e 'ourt of ndia. "he court discussed the ,atter in &reat detail and anal#>ed the

aspect of ne&li&ence fro, different perspectives civil; cri,inal; torts; b# professionals; etc.

t was held that there was no case of cri,inal rashness or ne&li&ence.

"he Supre,e 'ourt in +a?man v. Trimbak 2, heldC

Q"he duties which a doctor owes to his patient are clear. A person who holds hi,self out read# to &ive ,edical advice and treat,ent i,pliedl# underta/es that he is

possessed of s/ill and /nowled&e for the purpose. Such a person when consulted b# a

patient owes hi, certain duties vi>.; a dut# of care in decidin& whether to underta/e

the case; a dut# of care in decidin& what treat,ent to &ive or a dut# of care in the

ad,inistration of that treat,ent. A breach of an# of those duties &ives a ri&ht of

action for ne&li&ence to the patient. "he practitioner ,ust brin& to his tas/ a

reasonable de&ree of s/ill and /nowled&e and ,ust e9ercise a reasonable de&ree of

care. =either the ver# hi&hest nor ver# low de&ree of care and co,petence 7ud&ed in

the li&ht of the particular circu,stances of each case is what the law reGuires.J

n *$hutrao 6aribhau 7ho!wa v. State of Maharashtra2- the Supre,e 'ourt said55 Q"he

s/ill of ,edical practitioners differs fro, doctor to doctor. "he ver# nature of the profession

is such that there ,a# be ,ore than one course of treat,ent which ,a# be advisable for

2* 2$ ( S'' 1

2+ A< 1( S' 12+ 2 A< 1( S' 23**

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treatin& a patient. 'ourts would indeed be slow in attributin& ne&li&ence on the part of a

doctor if he has perfor,ed his duties to the best of his abilit# and with due care and caution.

Medical opinion ,a# differ with re&ard to the course of action to be ta/en b# a doctor

treatin& a patient; but as lon& as a doctor acts in a ,anner which is acceptable to the ,edical

profession and the 'ourt finds that he has attended on the patient with due care s/ill and

dili&ence and if the patient still does not survive or suffers a per,anent ail,ent; it would be

difficult to hold the doctor to be &uilt# of ne&li&ence.Q

n Spring Mea!ows 6ospital ; *nr. v. 6ar>ol *hluwalia ; *nr.2- the Ape9 'ourt has

specificall# laid down the followin& principles for holdin& doctors ne&li&entC

Iross "e#ical "ista,e will alwa#s result in a findin& of ne&li&ence. )se of wron&dru& or wron& &as durin& the course of anaesthetic will freGuentl# lead to the

i,position of liabilit# and in so,e situations even the principle of res ipsa lo/uitur

can be applied. Even dele&ation of responsibilit# to another ,a# a,ount to

ne&li&ence in certain circu,stances. A consultant could be ne&li&ent where he

dele&ates the responsibilit# to his 7unior with the /nowled&e that the 7unior was

incapable of perfor,in& of his duties properl#. 0e are indicatin& these principles

since in the case in hand certain ar&u,ents had been advanced in this re&ard; which

will be dealt with while answerin& the Guestions posed b# us.J

n *.S.Mittal v. State of (. .30 # an irreparable da,a&e was done to the e#es of so,e of the

patients who were operated at an e#e ca,p or&ani>ed b# the &overn,ent of )ttar Pradesh.

So,e of the patients who underwent sur&er# could never see the li&ht of the da#; i.e.

whatever little vision the# had even that was lost. "he ape9 court co,in& heavil# on the

errin& doctors held that; Ithe law reco&ni>es the dan&ers which are inherent in sur&ical

operations and that will occur on occasions despite the e9ercise of reasonable s/ill and care

but a ,ista/e b# a ,edical practitioner which no reasonabl# co,petent and a careful

practitioner would have co,,itted is a ne&li&ent one.J "he co,pensation was awarded.

2 1+ ! S'' 3 at !*-

3 A< 1+ S' 1$*

Page | 1%


21/39

-urther; in State of 6arana v. Santra3/ the court upheld the decree awardin& da,a&es for

,edical ne&li&ence on account of the lad# havin& &iven birth to an unwanted child due to

failure of sterili>ation operation because it was found on facts that the doctor had operated

onl# the ri&ht fallopian tube and had left the left fallopian tube untouched. "he patient was

infor,ed that the operation was successful and was assured that she would not conceive a

child in future. A case of ,edical ne&li&ence was found and a decree for co,pensation in tort

was held 7ustified.

However; the ape9 court has e9plained in State of un>ab v. Shiv #am32 ; that I,erel#

because a wo,an havin& under&one a sterili>ation operation beco,in& pre&nant and

deliverin& a child thereafter; the operatin& sur&eon or his e,plo#er cannot be held liable on

account of the unwarranted pre&nanc# or unwanted child. -ailure due to natural causes; no

,ethod of sterili>ation bein& fool proof or &uaranteein& 1R success; would not provide

an# &round for a clai, of co,pensation.J "he court after referrin& to several boo/s on

#necolo and e,pirical researches concluded that Lauthoritative te9t boo/s on

necolo and e,pirical researches reco&ni>e the failure rate of .3R to *R dependin& on

the techniGue chosen out of several reco&ni>ed and accepted ones.J

oonam @erma v. *shwin atel 33 # reflects #et another rec/less act on part of the doctor. n

this case a doctor who was re&istered as a ,edical practitioner and was entitled to pratie in

homoeopathy was found to be &uilt# of ne&li&ence for prescribin& allopathic ,edicines

resultin& in the death of the patient . "he doctor was &rossl# ne&li&ent and in clear breach of

dut# as a doctor. He defied all sense of lo&ic and for&ot his ethics. t is sub,itted that it

would have been better had the doctor been prosecuted under cri,inal ne&li&ence as he

violated section 1$3 of the Medical 'ouncil Act; 1$(.

n one of the ,ost recent decision in 7usum Sharma v. Batra 6ospital 34 # the Hon@ble

Supre,e 'ourt has settled the law relatin& ,edical ne&li&ence. Mr. Dalveer %andari; 6.;

scrutini>in& the cases of ,edical ne&li&ence both in ndia and abroad speciall# that of the

31 2 $ S'' 1+2

32 2$ * S' 1

33 A< 1( S' 2111

3! 21 3 S'' !+

Page | 2&


22/39

)nited Kin&do, has laid down certain basic principles to be /ept in view while decidin& the

cases of ,edical ne&li&ence. Accordin& to the court; Lwhile decidin& whether the ,edical

professional is &uilt# of ,edical ne&li&ence; the followin& well/nown principles ,ust be

/ept in viewC

1. =e&li&ence is the breach of a dut# e9ercised b# o,ission to do so,ethin& which a

reasonable ,an; &uided b# those considerations which ordinaril# re&ulate the conduct

of hu,an affairs; would do; or doin& so,ethin& which a prudent and reasonable ,an

would not do.

2. =e&li&ence is an essential in&redient of the offence. "he ne&li&ence to be established

b# prosecution ,ust be culpable or &ross and not the ne&li&ence based upon the error of 7ud&,ent.

3. "he ,edical professional is e9pected to brin& a reasonable de&ree of s/ill and

/nowled&e and ,ust e9ercise a reasonable de&ree of care. =either ver# hi&hest nor a

ver# low de&ree of care and co,petence 7ud&ed in the li&ht of the particular

circu,stances of each case is what the law reGuires.

!. A ,edical practitioner would be liable onl# where his conduct fell below that of the

standards of a reasonabl# co,petent practitioner in his field.

$. n the real, of dia&nosis and treat,ent there is scope for &enuine difference of

opinion and one professional doctor is clearl# not ne&li&ent ,erel# because his

conclusion differs fro, that of the other professional doctor.

(. "he ,edical professional is often called upon to adopt a procedure which involves

hi&her ele,ent of ris/; but which he honestl# believes as providin& &reater chances of

success for the patient rather than a procedure involvin& lesser ris/ but hi&her

chances of failure. 6ust because a professional loo/in& to the &ravit# of illness has

ta/en hi&her ele,ent of ris/ to redee, the patient out of hisOher sufferin& which did

not #ield the desired result ,a# not a,ount to ne&li&ence.

*. =e&li&ence cannot be attributed to a doctor so lon& as he perfor,s his duties with

reasonable s/ill and co,petence. Merel# because the doctor chooses one course of

Page | 21


23/39

action in preference to the other one available; he would not be liable if the course of

action chosen b# hi, was acceptable to the ,edical profession.

+. t would not be conducive to the efficienc# of the ,edical profession if no doctor

could ad,inister ,edicine without a halter round his nec/.

. t is our bounden dut# and obli&ation of the civil societ# to ensure that ,edical

professionals are not unnecessaril# harassed or hu,iliated so that the# can perfor,

their professional duties without fear and apprehension.

1. "he ,edical practitioners at ti,es have to be saved fro, such a class of co,plainants

which use cri,inal process as a tool for pressuri>in& the ,edical

professionalsOhospitals; particularl# private hospitals or clinics for e9tractin& uncalled

for co,pensation. Such ,alicious proceedin&s deserve to be discarded a&ainst the

,edical practitioners.

11. "he ,edical professionals are entitled to &et protection so lon& as the# perfor, their

duties with reasonable s/ill and co,petence and in the interest of the patients. "he

interest and welfare of the patients have to be para,ount for the ,edical

professionals.

"he court did not rest the case here; i.e. b# la#in& down eleven principles for deter,inin& the

breach of dut# b# ,edical professionalsOhospitals; but went a step ahead b# observin& that;

*,n our onsidered view# the aforementioned priniples must be +ept in view while deiding

the ases of medial negligene.J "he court further adds a word of caution b# statin& that;

*6e should not be understood to have held that dotors an never be proseuted for

medial negligene. %s long as the dotors have performed their duties and e0erised

an ordinary degree of professional s+ill and ompetene# they annot be held guilty of

medial negligene. ,t is imperative that the dotors must be able to perform their

professional duty with free mind.-

"he above listin& of Ibasic principlesJ with a direction that the# ,ust be /ept in view while

decidin& the cases of ,edical ne&li&ence reflects the 7udicial attitude of the Hon@ble ape9

court. t ,a# be noted that an# decision; 7ud&,ent passed b# the Supre,e 'ourt beco,eslaw of the land and is auto,aticall# bindin& on all other lower courts in the countr# b#

Page | 22


24/39

virtue of Article 1!1 of the 'onstitution of ndia.3$ "hus the above principles ,ust be ta/en

as Ilaw of the land on medial negligene-.

3$ Article 1!1 readsC I 7aw delared by the 'upreme 4ourt shall be binding on all ourts

within the territory of ,ndia-.

Page | 23


25/39

+EDIC(L NEGLIGENCE ( CI/IL 0RONG OR CRI+IN(L

O&&ENCE

"he ter, ne&li&ence is used for the purpose of fastenin& the defendant with liabilit# under

civil law the law of torts and; at ti,es; under the cri,inal law. %ut often it is alle&ed b# the

plaintiffs that ne&li&ence is ne&li&ence and that no distinction can be drawn between the two

so far as it relates to breach of his dut# and resultant da,a&e. E9plainin& the difference

between the two; ord At/in in his speech in %ndrews v. Diretor 8ubli 8roseution; statedC

ISi,ple lac/ of care such as will constitute civil liabilit# is not enou&h for

purposes of the cri,inal law there are de&rees of ne&li&ence and a ver high !egreeof negligen$e is re8uire! to be prove! before the felon# is established.J3(

"hus for ne&li&ence to be an offence; the ele,ent of mens rea &uilt# ,ind ,ust be shown

to e9ist and the ne&li&ence should be &ross or of ver# hi&h de&ree.3*

3( 13* 2 All E< $$2 H

3* 'ee; 'harlesworth : Perc# on Negligene; 1th Edn; 21; para 1.13 A clear distinction

e9ists between Isi,ple lac/ of careJ incurrin& civil liabilit# and Iver# hi&h de&ree of

ne&li&enceJ which is reGuired in cri,inal cases. Also there is a ,ar/ed difference as to

evidence; vi>. the proof; in civil and cri,inal proceedin&s.

Page | 2


26/39

n 'ri,inal law; ne&li&ence or rec/lessness ,ust be of such a hi&h de&ree as to be held

B&ross@. "he ape9 court in ab; has e9plained that Ithe

e9pression rash and ne&li&ent act occurrin& in Section 3!A of the .P.' should be Gualified

b# the word B&rossl#@. "o prosecute a ,edical professional for ne&li&ence under cri,inal law

it ,ust be shown that the accused did so,ethin& or failed to do so,ethin& which in the &iven

facts and circu,stances no ,edical professional in his ordinar# senses and prudence would

have done or failed to do. "he ha>ard ta/en b# the accused doctor should be of such a nature

that the in7ur# which has resulted was ,ost li/el# i,,inent.J3 -ro, the above it ,a# be

inferred that the distinction between civil and cri,inal liabilit# in ,edical ne&li&ence lies in

the conduct of the doctor which should be of &ross or rec/less or of a ver# hi&h de&ree.

+EDIC(L NEGLIGENCE (ND 1O'%IT(L'

Hospitals in ndia ,a# be held liable for their services individuall# or vicariousl#. "he# can

be char&ed with ne&li&ence and sued either in cri,inalO civil courts or 'onsu,er 'ourts. As

liti&ations usuall# ta/e a lon& ti,e to reach their lo&ical end in civil courts; ,edical services

have been brou&ht under the purview of 'onsu,er Protection Act; 1+( wherein the

co,plainant can be &ranted co,pensation

for deficienc# in services within astipulated ti,e of 1$ da#s.

'ases; which do not co,e under the

purview of 'onsu,er Protection Act; 1+(

e.&.; cases where treat,ent is routinel#

provided free of cost at non&overn,ent or

&overn,ent hospitals; health centres; dispensaries or nursin& ho,es; etc. can be ta/en up

with cri,inal courts where the health care provider can be char&ed under Section 3!A P'

for causin& da,a&es a,ountin& to rash and ne&li&ent act or in 'ivil 'ourts where

co,pensation is sou&ht in lieu of the da,a&e suffered; as the case ,a# be.

Proceedin&s; a ,ere preponderance of probabilit# is sufficient; and the defendant is not

necessaril# entitled to the benefit of ever# reasonable doubt but in cri,inal proceedin&s the

persuasion of &uilt ,ust a,ount to such a ,oral certaint# as convinces the ,ind of the court;

as a reasonable ,an be#ond all reasonable doubt.


27/39

S' !1; wherein the court e9plainin& distinction between civil and cri,inal liabilit# held

that Ifor fi9in& cri,inal liabilit# on a doctor or sur&eon the standard of ne&li&ence reGuired

to be proved should be so hi&h as can be described as &ross ne&li&ence of rec/lessness.

,ere inadvertence or so,e de&ree of want of adeGuate care and caution ,i&ht create a civil

liabilit# but would not suffice to hold hi, cri,inall# liable.J

Lia)ility of hospitals in cases of ne$li$ence

Hospitals liabilit# with respect to ,edical ne&li&ence can be direct liabilit# or vicarious

liabilit#. Direct liabilit# refers to the deficienc# of the hospital itself in providin& safe and

suitable environ,ent for treat,ent as pro,ised. 4icarious liabilit# ,eans the liabilit# of an

e,plo#er for the ne&li&ent act of its e,plo#ees. An e,plo#er is responsible not onl# for hisown acts of co,,ission and o,ission but also for the ne&li&ence of its e,plo#ees; so lon& as

the act occurs within the course and scope of their e,plo#,ent. "his liabilit# is accordin& to

the principle of Irespondeat superior J ,eanin& Ilet the ,aster answerJ. E,plo#ers are also

liable under the co,,on law principle represented in the atin phrase; Q/ui fait per alium

fait per seQ; i.e. the one who acts throu&h another; acts in his or her own interests. "his is a

parallel concept to vicarious liabilit# and strict liabilit# in which one person is held liable in

'ri,inal aw or "ort for the acts or o,issions of another. An e9ception to the above principle

is Bborrowed servant doctrine@ accordin& to which the e,plo#er is not responsible for

ne&li&ent act of one of its e,plo#ee when that e,plo#ee is wor/in& under direct supervision

of another superior e,plo#ee e.&. 0here a sur&eon e,plo#ed in one hospital visits another

hospital for the purpose of conductin& a sur&er#; the second hospital where the sur&er# was

perfor,ed would be held liable for the acts of the sur&eonN.

Direct lia)ility

A hospital can be held directl# liable for ne&li&ence on ,an# &rounds.

-ailure to ,aintain eGuip,ents in proper wor/in& condition constitutes ne&li&ence. n case

of da,a&e occurrin& to a patient due to absenceO nonwor/in& eGuip,ent e.&. o9#&en

c#linder; suction ,achine; insulator; ventilator etc. the hospital can be held liable.

-ailure to hand over copies of ,edical records; ra#s; etc.; constitutes ne&li&ence or

deficienc# in service. n ndia; a provision in respect of ,edical records has been ,ade in

Page | 2"


28/39

The In#ian +e#ical Council 2%rofessional Con#uct- Eti3uette an# Ethics4 Re$ulations

5665;


29/39

ev#in& of e9cessOwron& char&es is considered as deficienc# of service and can be clai,ed

under 'onsu,er Protection Act and in 'ivil 'ourt. 'har&in& for a bed facilit# which was not

provided; ta/in& surchar&es; a,ount ta/en as ,edico le&al char&es etc. are e9a,ples where

hospitals can face liti&ations. A patient can file a co,plaint in 'onsu,er 'ourt if the hospital

char&es fees in e9cess of that ,entioned in the list of char&es displa#ed or disclosed or

a&reed upon.

0ith re&ards to H4 : H%sA&; ,ost of the hospitals have ,ade it ,andator# to &et all their

indoor patients investi&ated for H4 : H%sA&. "hese investi&ations are not a part of an#

treat,ent and are done without prior consent of the patient. 'arr#in& out such investi&ations

without the consent that too for reasons not related to the treat,ent of the patient can be

considered as unethical practice and either a co,plaint can be lod&ed with State Medical

'ouncil or char&esO da,a&es can be clai,ed throu&h civil liti&ation or consu,er foru,. H4

testin& is either ,andator# or voluntar#. 0hen testin& is le&all# done without the consent of

the person; it is /nown as ,andator# testin& e.&.; for screenin& donors of blood; se,en;

or&ans or tissues in order to prevent trans,ission of H4 to the recipient of the biolo&ical

products. n all other circu,stances; it has to be voluntar#; i.e.; with the /nowled&e and

e9press written consent of the person as it is necessar# to respect the individual@s need to

,aintain confidentialit#.

Hospitals can be char&ed with ne&li&ence for trans,ission of infection includin& H4;

H%sA&; etc. if an# patient develops such infection durin& the course of treat,ent in the

hospital and it is proved that the sa,e has occurred on account of lapse on part of the

hospital.

As applicable to an# other or&ani>ation; hospitals too cannot blan/l# refuse to &ive

e,plo#,ent on the basis of an individual@s H4 status. t depends on what 7ob a particular

person is to be e,plo#ed for. A >eropositive individual can be e,plo#ed if there is no

Guestion of hi,Oher co,in& in contact with patients or procedures that can result in spread of

infection. f an# person on the rolls of a hospital is found to be >ero positive or develops

ADS; the hospital should review that person@s staff privile&es and deter,ine whether or not

the ,edical condition interferes with the persons@ abilit# to perfor, on the 7ob and whether

the condition creates a health ris/ to the patients. "he 'entre for Disease 'ontrol 'D'N

althou&h does not advise that H4 positive individuals be routinel# restricted fro,

Page | 2$


30/39

perfor,in& sur&er#; it does reco,,end that the restrictions be deter,ined on a case b# case

basis. "he e,plo#ee could be &iven other duties in the hospital that involves lesser de&ree of

direct patient care or could be reGuired to use e9tra safet# precautions while dealin& with

patients. "here is no &enerall# accepted ,edical evidence that H4 can be trans,itted

throu&h nor,al da# to da# contact in t#pical private wor/place settin&. "he 'D' has issued

&uidelines that reco&ni>e that; with the e9ception of health care wor/ers and personal service

wor/ers who use instru,ents that pierce s/in; no testin& or restriction is indicated for

wor/ers /nown to be infected with H4 but otherwise is able to perfor, their 7obs. f an#

hospital does not follow the &uidelines and there results an infection of the patient; it can be

held directl# responsible for ne&li&ence.

Misleadin& si&nboards; prescription slips and advertise,ents of hospitals can be construed as

deficienc# in service or unfair trade practice under the 'onsu,er Protection Act; 1+( and

da,a&es can be awarded for such practices. 0ron& clai,s of availabilit# of certain facilities

li/e so,e hospitals clai,in& in their si&n boardsOprescription slips that 2! hr e,er&enc#

services are available in their setup but in fact the# lac/ basic e,er&enc# facilities li/e

services of a doctor round the cloc/; necessar# eGuip,ent in wor/in& order; intensive care

facilities etc. construes ne&li&ence. 0ron& depiction of Gualifications of doctor li/e MD

#n.N a&ainst a doctor@s na,e creatin& an i,pression and ,isleadin& the patients that the

doctor possesses P de&ree in #naecolo whereas it was obtained fro, er,an# and was

eGuivalent to M%%S as per rules of M' ,a# also be construed as ne&li&ence 13 1 'P


31/39

hi, of his ail,ent. "he hospital authorities cannot; of course; do it b# the,selves the# have

no ears to listen to the stethoscope; and no hands to hold the sur&eon@s scalpel. "he# ,ust do

it b# the staff which the# e,plo# and if their staffs are ne&li&ent in &ivin& treat,ent; the#

are 7ust as liable for that ne&li&ence as an#one else who e,plo#s other to do his duties for

hi,.

n another 7ud&,ent b# the Madras Hi&h 'ourt in *parna Dutta v. *pollo 6ospitals

5nterprises +t! .40; it was held that it was the hospital that was offerin& the ,edical services.

"he ter,s under which the hospital e,plo#s the doctors and sur&eons are between the, but

because of this it cannot be stated that the hospital cannot be held liable so far as third part#

patients are concerned. t is e9pected fro, the hospital; to provide such a ,edical service and

in case where there is deficienc# of service or in cases; where the operation has been done

ne&li&entl# without bestowin& nor,al care and caution; the hospital also ,ust be held liable

and it cannot be allowed to escape fro, the liabilit# b# statin& that there is no ,asterservant

relationship between the hospital; and the sur&eon who perfor,ed the operation. "he hospital

is liable in case of established ne&li&ence and it is no ,ore a defence to sa# that the sur&eon

is not a servant e,plo#ed b# the hospital; etc.

n another 7ud&,ent b# the =ational 'onsu,er


32/39

case. t does not ,atter whether the# are per,anent or te,porar#; resident or visitin&

consultants; whole or part ti,e. "he hospital authorities are usuall# held liable for the

ne&li&ence occurrin& at the level of an# of such personnel. 0here an operation is bein&

perfor,ed in a hospital b# a consultant sur&eon who was not in e,plo#,ent of the hospital

and ne&li&ence occurred; it has been held that it was the hospital that was offerin& ,edical

services. "he ter,s under which the defendant hospital e,plo#s the doctors and sur&eons are

between the, but because of this it cannot be stated that the hospital cannot be held liable so

far as third part# patients are concerned. "he patients &o and &et the,selves ad,itted in the

hospital rel#in& on the hospital to provide the, the ,edical service for which the# pa# the

necessar# fee. t is e9pected fro, the hospital; to provide such ,edical service and in case

where there is deficienc# of service or in cases li/e this; where the operation has been done

ne&li&entl# without bestowin& nor,al care and caution; the hospital also ,ust be held liable

and it cannot be allowed to escape fro, the liabilit# due to reason of none9istin& ,aster

servant relationship between the hospital and the sur&eon.

"here are ,an# instances where a senior or superspecialist perfor,s sur&er# in a centre

where such e9pertise is not locall# available. After the sur&er#; the postoperative care is left

to the local co,petent doctor. -ailure of the seniorOsuper specialist to personall# supervise

the postoperative care ,a# not constitute ne&li&ence provided the doctor to who,

responsibilit# of the postoperative care lies is co,petent sa,e appl#in& to a visitin&

ph#sician. t has been held b# =ational 'onsu,er


33/39

co,pensation paid to the co,plainant ,a# be recovered fro, the &overn,ent doctors whose

ne&li&ence has been established. "he Hon@ble Supre,e 'ourt in *$hutrao ; 1rs v. State of

Maharashtra ; 1rs 42 has observed that runnin& a hospital is a welfare activit# underta/en

b# the overn,ent but it is not an e9clusive function or activit# of the overn,ent so as to

be re&arded as bein& in e9ercise of its soverei&n power. Hence; the State would be

vicariousl# liable for the da,a&es which ,a# beco,e pa#able on account of ne&li&ence of

its doctors or other e,plo#ees.

n another case of Smt. Santra v. State of 6arana ; 1rs43; the contention that the State is

not vicariousl# liable for the ne&li&ence of its officers in perfor,in& the sterili>ation

operation was not accepted in view of the above 7ud&,ent of the Supre,e 'ourt of ndia.

n another case of #a>mal v. State of #a>asthan44; where the patient died of neuro&enic shoc/

followin& laparoscopic tubal li&ation done at a pri,ar# health centre; an enGuir# co,,ittee

constituted on the directions of the


34/39

responsible for the vicarious liabilit# of the acts co,,itted b# the e,plo#ee in the course of

such e,plo#,ent. t is for the State to deter,ine the liabilit# of the errin& doctors. t is their

internal affair but so far as patient is concerned she can recover the a,ount fro, the State

overn,ent. t is the dut# of the authorities under the State to see that its e,plo#ees are

available in ti,e in the hospital. f for an# reason; a doctor or e9pert is not available; the

Hospital authorities would have /nown before hand and so,e other persons should be

posted. "he pri,ar# responsibilit# of the Hospital authorities is to see that there is no

ne&li&ence on its part or on the part of its officers. "he nonprovidin& of a doctor or

anaesthetist or an assistant is essentiall# a lapse on the part of hospital authorities and are

thus liable for ne&li&ence.

n #. . Sharma v. State of #a>asthan4) ; where a wo,an died because of ,is,atched blood

transfusion; the State was held vicariousl# responsible for the ne&li&ent act of its blood ban/

officer and the doctor who transfused the blood. t was further held that the State of


35/39

Appointin& practitioners of Alternative S#ste,s of Medicine A#urvedaO )naniO SidhaN or

Ho,eopaths in hospitals &ivin& services in allopath# too a,ounts to ne&li&ence. t is the

dut# of the hospital to provide properl# Gualified; s/illed and e9perienced doctors for

treat,ent. "he Supre,e 'ourt of ndia has held that there is no scope for a person who is

re&istered under the ndian Medicine 'entral 'ouncil Act; 1* 'ouncil for re&istration of

practitioners of ndian Medicine A#urveda; )nani and SidhaN and enrolled on the State or

'entral es the Gualification of inte&rated

courses or other Gualifications as Bsufficient Gualification@ for re&istration in the State

Medical


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both private clinics and overn,ent hospitals; are entitled to see/ da,a&es under the

'onsu,er Protection Act; 1+(. A few i,portant principles laid down in this case includeC

1. Service rendered to a patient b# a ,edical practitioner e9cept where the doctor

renders service free of char&e to ever# patient or under a contract of personal service

b# wa# of consultation; dia&nosis and treat,ent; both ,edicinal and sur&ical; would

fall within the ambit of *servie- as defined in setion ;!< ;o< of the 4.8. %t .

2. "he fact that ,edical practitioners belon& to ,edical profession and are sub7ect to

disciplinar# control of the Medical 'ouncil of ndia and; or the State Medical

'ouncils would not e0lude the servie rendered by them from the ambit of 4.8. %t.

3. "he service rendered b# a doctor was under a contract for personal service rather than

a contract of personal service and was not covered b# the e9clusionar# clause of the

definition of service contained in the '.P. Act.

!. A service rendered free of char&e to ever#bod# would not be service as defined in the

Act.

$. "he hospitals and doctors cannot clai, it to be a free service if the e9penses have been borne b# an insurance co,pan# under ,edical care or b# one@s e,plo#er under

the service conditions.

CO'CL(SIO'

"here are two possibilities in cases of ne&li&ence either it is ne&li&ence of the doctor or it is

ne&li&ence of the staff. "here ,a# be a possibilit# of ne&li&ence; both of the doctor and the

staff. n ,ost of the cases; it will be a case of 7oint and several liabilit#; and both the doctor

and the hospital will be liable. "he division of liabilit# between the two of the, will be

decided accordin& to the understandin& between the two. As far as deter,inin& ne&li&ence is

considered; courts have to depend on the advice of e9perts; e9cept in cases of blatant

violation of protocol and doin& thin&s which are considered to be unreasonable and

i,prudent. "he level of sub7ectivit# in such decisions is Guite hi&h and the purpose of law to

be certain and specific is defeated to a lar&e e9tent.


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Page | 3#


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)I)LIO*+PH,

'tatutes

• "he 'onstitution of ndia

• "he 'onsu,er Protection Act; 1+(

• "he Medical 'ouncil Act; 1$(

• ndian Penal 'ode; 1+(

Boo,s

• 0H4 olowi? on &ort ; Sweet : Ma9well; nternational

Student Edition; 1+.

• a9,inath and M Sridhar; Ramaswamy ,yer@s &he 7aw of &orts; e9is=e9is

%utterworths; =inth Edn; 23.

• M.K. %alachandran; 4onsumer 8rotetion %t and 2edial 8rofession; Depart,ent

of 'onsu,er Affairs; ovt. of ndia in association with ..P.A.; =ew Delhi; 2(;

professional liability of hospitals

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