August 23, 2016 In Uncategorized




“Negligence is the rust of the soul that corrodes through all her best resolves.” – Owen Feltham

Doctors are considered akin to God for their ability to save lives and infuse hope in ailing patients. However, sometimes the doctors, we rely upon, fail to heal our lives and instead the health of the patient worsens. In the case of medical negligence, the doctor will be held liable for certain medical malpractices and a patient can sue for any form of mistreatment.

Even though, a doctor does not assure his patient of a positive result, a medical professional impliedly assures his patient that he possesses the requisite skill and while treating the patient, he would use reasonable “standard of care”. The “standard of care” is defined as what a reasonably prudent medical provider would or would not have done under the same or similar circumstances.

Medical negligence also known as medical malpractice is improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional. It is punishable under various laws such as torts, IPC, Indian Contracts Act, Consumer Protection Act, etc. As per Moni v. State of Kerala[1] In the case of medical man, negligence means failure to act by the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms to one of these proper standards, then he is not negligent.”

Therefore, it involves three elements of negligence: (a) a legal duty to exercise due care on the part of the treating; (b) breach of the said duty; and (c) resulting damage.

The Supreme Court had ruled in Anuradha Saha’s Case[2] that: “The patients, irrespective of their social, cultural and economic background, are entitled to be treated with dignity, which not only forms their fundamental right but also their human right.”


When a doctor attends his patient, he owes him certain duties of care. Those are:

  • A duty of care in deciding whether to undertake this case.
  • A duty of care in deciding what treatment to give.
  • A duty of care in administrating that treatment is properly given.


A breach of any of these duties gives a right of action for negligence to the patient. A breach of duty is committed by a doctor when he does not perform the standard of care.


Negligence in India can be of both civil and criminal nature. Charges of medical malpractice can be brought under the normal civil courts and criminal courts or the consumer forum.

The court in the case of Syad Akbar v State of Karnataka[3] considered that there is a distinction between negligence actionable under tort (civil) and under criminal law and established that, to be actionable under criminal law, the negligence should be extremely gross or of a very high degree.

In Jacob Matthews’s case[4], the Supreme Court further held that: “Criminal liability would arise only if the doctor did something in disregard of the life and safety of the patient.”

Thus, to impose criminal liability under the provisions of Indian Penal Code, 1860, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and the act must be the proximate and efficient cause without the intervention of another’s negligence.


It is derived from the Latin word “res ipsa,” which means “the thing speaks for itself.” Res ipsa loquitur allows plaintiffs to use circumstantial evidence to infer negligence. This principle comes into operation only when there is proof that the occurrence was unexpected, that the accident could not have happened without negligence on the part of the doctor and the circumstances conclusively show that only the doctor is liable. In other words, when the act speaks for itself and no evidence is required.

Examples include: leaving behind abdominal pack in the abdomen post operation (Aparna Dutta v. Apollo Hospital Enterprises Ltd.[5]) or the amputation of a leg instead of being put in a cast to treat the fracture etc.

This doctrine is only a rule of evidence and is applicable in the domain of civil law and not criminal law.


The burden of proof lies on the complainant. The accused person will be presumed innocent until proof beyond reasonable doubt is adduced by the prosecution. In Kanhaiya Kumar Singh v. Park Medicare & Research Centre[6] it was held that negligence has to be established and cannot be presumed.


Defences for the accused doctors are available under the provisions of Indian Penal Code, 1860. Where:

  • The offence is done by accident or misfortune and without any criminal intention or knowledge in a manner with proper care and caution.
  • A doctor cannot be accused of an offence if she/he performs an act in good faith for the patient’s benefit and does not intend to cause harm even if there is a risk, and the patient has explicitly or implicitly given consent.




Senior Associate

The Indian Lawyer & Allied Services



[1] Moni vs State Of Kerala [SA.No. 832 of 2000(G)]

[2]Kunal Saha v. AMRI (Advanced Medical Research Institute) (2006) CPJ 142 NC

[3] Syad Akbar vs State Of Karnataka ,  1979 AIR 1848, 1980 SCR (1) 25

[4] Jacob Mathew v. State of Punjab (A.I.R 2005 SC 3180)

[5] Mrs. Arpana Dutta vs Apollo Hospitals Enterprises ltd, Madras, [2002 ACJ 954, AIR 2000 Mad 340, (2000) IIMLJ 772]

[6] Kanhaiya Kumar Singh vs Park Medicare & Research Centre III (1999) CPJ 9 (NC)


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