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Medical Negligence

Written by:
Prachi Darji
Published on

Medical Negligence – Civil Liability or Criminal Liability

Medical profession is a divine profession which has induced hope in human minds to live a long life. Doctor is just like God for patients and thus, they build great expectations from him/her. They tend to forget the reality that Doctor is also human and he/she may also commit an error or a mistake. It may happen that any negligent act by the Doctor or his/her support staff might lead to serious consequences on the health of the patient or in extreme cases, also result to his/her death.

The growing awareness in Indian Society about their legal rights and the law has brought forward numerous complaints against Doctors by the aggrieved patients or their aggrieved families under Consumer Protection Act, 1986 or filing of civil/criminal suits under Indian Penal Code, 1860. Let’s understand more about medical negligence and its legal scenario in India.

What comprise Medical Negligence?

The term ‘Negligence’ is defined in the ‘Law of Torts’, where, Negligence is a violation of a duty if any reasonable man fails to do it without exercising due care as per the guided considerations of his/her profession or skill. The Supreme Court of India has passed a judgment from a case, whereby, professionals like Lawyers, Doctors, Architects and others are included in the category of persons owning some skills or skilled persons in general.


In short, it involves three main legal elements of Negligence:-

  • That the Defendant is professionally as well as lawfully obliged to exercise due care to the applicant while performing his/her duty;
  • That the Defendant has violated this duty/obligation of care;
  • That the applicant has suffered severe consequences like injury due to this violation.

In consideration to the similar analogy, Medical Profession might be held liable for medical Negligence. It is due to the fact that Doctor professes the requisite skills to perform medical practice and he/she shall exercise his/her duty with reasonable degree of care as well as competence. Here, Doctor is that defendant and aggrieved party may file the complaint or civil suit against him/her.

What could be the right standard of judging Medical Negligence?

Medical Negligence cannot be judged like any other professional negligence as it involves additional considerations. Medical Profession calls for differential treatment depending on the patient’s disease, diagnosis, circumstantial actions at the time of incident, his/her use of implementing old technique than advanced ones and many others. If the doctor is following a medically accepted practice with diligence and caution, he/she cannot be held liable for medical negligence.

Delhi High Court denounced in 2005 and laid down 3 degrees of negligence in civil law starting with:

  • Gross Neglect
  • Ordinary Neglect
  • Slight Neglect

It was determined that not all the acts of negligence by the Doctor can be held punishable. Later, after great amount of discussion between the judicial authorities, it was understood and agreed that the act of medical negligence will be analyzed from all possible legal perspectives i.e. Civil, Criminal, under Torts, be professional committees etc. to reach to a reasonable verdict. 

How Medical Negligence arise Civil Liability?

The field of medicine requires extreme carefulness in the eyes of law and if there is any breach of this legal obligation to exercise care or caution, it will legally permit the patient to initiate legal proceedings against this act of medical negligence.

But, the Doctor can be held liable under Civil Law only if it is proved that he/she is found guilty of a failure by understanding that any other doctor with ordinary skills would also be guilty of it if he/she acts with reasonable care. It can’t be denied that he/she is also a human and can’t make any mistake or conduct any error while detecting any ailment or diagnosing the nature of disease. It is obvious that they cannot take the guarantee of any cure or treatment, hence it has to be seen that they have opted a right course of treatment for the patient’s disease and has executed with the ideally best method and manner that is apt for the patient. If everything stands in order, he/she cannot be blamed for medical negligence.

What necessary evidence is required to prove medical negligence in the court?

  • The applicant can file the medical negligence complaint for civil liability only after aforesaid conditions are aptly satisfied and where such act has led to injury to the patient.
  • The appeal can be filed before the civil court jurisprudence by the aggrieved applicant and the burden of proof submission lies on him/her.
  • The applicant must prove the allegation by referring the optimally best evidence available in the medical science.
  • The evidence has to be supported by an expert’s opinion.

 Medical Negligence under the purview of Criminal Law – A deep diagnosis

Indian Penal Code, 1860 contains the legal provisions that describe or explain medical malpractice in India. Sections 304A, 336, 337, 338 hold substantial relevance and there have been several criminal complaints that have been filed under these sections, due to the allegations that the criminal offences had been committed by Doctors or medical professionals in the form of medical negligence and thus, have resulted in loss of life or irreplaceable injury to the aggrieved patients.

Section 304A of the Act addresses death caused by negligence and thus attract serious punishment i.e. imprisonment where on the other hand Section 80 of the Act implicate that nothing is an offence if it is an act of accident or misfortune and also without any criminal intention or knowledge, but if done in legally acceptable manner & means. Then there is Section 88 which provides a general exception and allows exemption for acts not intended to cause death but is done with good faith with consent for person’s benefit.

The rationale discussion between judicial authorities that lead them to hold that criminal liability will arise on medical professional if that rashness is gross. It has to be higher than civil liability cases i.e. death or injury is the direct consequence of medical negligence act. In other words, gross negligence will include:-

  • Gross lack of competency
  • Gross inattention
  • Shameless indifference to the patient’s safety due to gross ignorance of medical science/surgery
  • Lack of proper skill in the use of medical appliances or instruments
  • Gross recklessness in application or selection of treatments or cures
  • Absolute failure to give adequate attention to the patient.

Consumer Protection Act and Medical Negligence

The Consumer Protection Act, 1886 is authorized to take complaints against the services provided by Medical practitioners as they are contracts of service. But, if the services are rendered free of charge or at nominal prices, then the Act will not play the role of legal rescuer.

Procedure to get a Redressal in case of medical negligence complaint

  • Complaint to the Local Medical Professional Body or Medical Council:-

If they are convinced with your professional misconduct complaint, then they have the authority to cancel medical license for a temporary or permanent period, depending on the seriousness of the complaint.

The aggrieved party can file the complaint to the right authority with the help of a skillful lawyer.

  • Onus to prove medical negligence:

The burden to prove the act of medical negligence by the medical practitioner will fall upon the patient. If he/she fails to provide conclusive or substantive evidence on any one of the medical negligence conditions, then there is no possibility for settlement, compensation and justice. The most difficult part to provide is expert’s opinion who can willfully testify against other doctors.

  • File the complaint at Consumer Court or Courts of Justice:

The litigation process at courts is quite an expensive one in comparison to filing complaints at consumer protection court.

Role of Judiciary System in cases of Medical Negligence

The complaints, appeals or suits are determined by Judges who have no experience or knowledge of medical science. Their verdict or decision is executed on the reliability of expert’s opinion and on the basis of their own prudence as well as reasonableness. It has often led to subjective judgments or decisions which can entirely defeat the purpose of law.

With time and innovation, new orders have come into force and are contradicted by some other new judgment. It has made the whole procedure difficult for a common man to comprehend and interpret.


Medical Profession and Doctors are the most sacrosanct part of our society and any indiscriminate litigation or complaint of medical negligence on them without any concrete proof can do no good to the society. The counter results would be that these doctors will start practicing defensive medicine than innovative by the fear of legal sword. It doesn’t mean that doctors can’t be held liable for any medical negligence offence. The ideal way would be to analyze genuine complaints and do justice in the best way that suits right for the society.