E-Notes Health Care Laws Unit - 4

Chanderprabhu Jain College of Higher Studies
&
School of Law
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(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)
E-Notes
Class : B.A.LL.B/ BBA LLB IX Sem

Subject : Health Care Law
Paper Code : LLB 509
Faculty Name : Mr. Sunil Kumar
UNIT-IV
REMEDIES FOR MEDICAL NEGLIGENCE
WINFIELD AND JOLOWICZ: According to Winfield and Jolowicz- Negligence

is the breach of a legal duty to take care which results in damage, undesired by the
defendant to the plaintiff.
In Blyth v. Birmingham Water Works Co, (1856) LR 11 Exch. 781;
ALDERSON, B. defined negligence as, negligence is the omission to do
something which a reasonable man…….. Would do, or doing something which
a prudent or reasonable man would not do.
In Lochgelly Iron & Coal Co. v. Mc Mullan, 1934 AC 1; LORD WRIGHT
said, negligence means more than headless or careless conduct, whether in
commission or omission; it properly connotes the complex concept of duty,
breach and damage thereby suffered by the person to whom the duty was
owing.
ESSENTIALS OF NEGLIGENCE
In an action for negligence, the plaintiff has to prove the following essentials:
1. DUTY TO TAKE CARE: One of the essential conditions of liability for
negligence is that the defendant owed a legal duty towards the plaintiff. The
following case laws will throw some light upon this essential element.
In Grant v. Australian Knitting Mills Ltd., 1935 AC 85; the plaintiff
purchased two sets of woolen underwear from a retailer and contacted a
skin disease by wearing underwear. The woolen underwear contained an
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excess of sulphates which the manufacturers negligently failed to

remove while washing them. The manufacturers were held liable as
they failed to perform their duty to take care.
2. DUTY TO WHOM: Donoghue v. Stevenson, 1932 AC 562 carried the idea
further and expanded the scope of duty saying that the duty so raised extends
to your neighbour. Explaining so as to who is my neighbour LORD ATKIN
said that the answer must be “the persons who are so closely and directly
affected by my act that I ought reasonably to have them in contemplation as
being so affected when I am directing my mind to the acts or omissions which
are called in question”.
3. DUTY MUST BE TOWARDS THE PLAINTIFF- It is not sufficient that
the defendant owed a duty to take care. It must also be established that the
defendant owed a duty of care towards the plaintiff.
In Bourhill v. Young, 1943 AC 92; the plaintiff, a fishwife, alighted
from a tram car. While she was being helped in putting her basket on her
back, a motor-cyclist after passing the tram collided with a motor car at
the distance of 15 yards on the other side of the tram and died instantly.
The plaintiff could see neither the deceased nor the accident as the tram
was standing between her and the place of accident. She had simply
heard about the collision and after the dead body had been removed she
went to the place and saw blood left on the road. Consequently, she
suffered a nervous shock and gave birth to a still-born child of 8 months.
She sued the representatives of the deceased motor-cyclist. It was held
that the deceased had no duty of care towards the plaintiff and hence she
could not claim damages.
4. BREACH OF DUTY TO TAKE CARE: Yet another essential condition for
the liability in negligence is that the plaintiff must prove that the defendant
committed a breach of duty to take care or he failed to perform that duty.
In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC
1750; a clock-tower in the heart of the Chandni Chowk, Delhi collapsed
causing the death of a number of persons. The structure was 80 years old
whereas its normal life was 40-45 years. The Municipal Corporation of
Dellhi having the control of the structure failed to take care and was
therefore, liable.
5. CONSEQUENT DAMAGE OR CONSEQUENTIAL HARM TO THE
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PLAINTIFF: The last essential requisite for the tort of negligence is that the
damage caused to the plaintiff was the result of the breach of the duty. The
harm may fall into following classes:-
• physical harm, i.e. harm to body;
• harm to reputation;
• harm to property, i.e. land and buildings and rights and interests pertaining
thereto, and his goods;
• economic loss; and
• Mental harm or nervous shock.
In Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC
634; a cotton mop was left inside the body by the negligence of the
doctor. The doctor was held liable.
DEFENCES FOR NEGLIGENCE:

In an action for negligence following defences are available:-
1. CONTRIBUTORY NEGLIGENCE: It was the Common law rule that
anyone who by his own negligence contributed to the injury of which he
complains cannot maintain an action against another in respect of it. Because,
he will be considered in law to be author of his wrong.
Butterfield v. Forrester, (1809) 11 East 60; the defendant had put a pole
across a public thoroughfare in Durby, which he had no right to do. The
plaintiff was riding that way at 8’O clock in the evening in August,
when dusk was coming on, but the obstruction was still visible from a
distance of 100 yards; he was riding violently, came against the pole and
fell with the horse. It was held that the plaintiff could not claim damages
as he was also negligent.
2. ACT OF GOD OR VIS MAJOR: It is such a direct, violent, sudden and
irresistible act of nature as could not, by any amount of human foresight have
been foreseen or if foreseen, could not by any amount of human care and skill,
have been resisted. Such as, storm, extraordinary fall of rain, extraordinary
high tide, earth quake etc.
In Nichols v. Marsland, (1875) LR 10 Ex.255; the defendant had a
series of artificial lakes on his land in the construction or maintenance of
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which there had been no negligence. Owing to an exceptional heavy

rain, some of the reservoirs burst and carried away four country bridges.
It was held that, the defendant was not liable as the water escaped by the
act of God.
3. INEVITABLE ACCIDENT: Inevitable accident also works as a defence of
negligence. An inevitable accident is that which could not possibly, be
prevented by the exercise of ordinary care, caution and skill. It means accident
physically unavoidable.
In Brown v. Kendal, (1859) 6 Cussing 292; the plaintiff’s and
defendant’s dogs were fighting, while the defendant was trying to
separate them, he accidentally hit the plaintiff in his eye who was
standing nearby. The injury to the plaintiff was held to be result of
inevitable accident and the defendant was not liable.
In Holmes v. Mather, (1875) LR 10 Ex.261, 267; a pair of horses were
being driven by the groom of the defendant on a public highway. On
account of barking of a dog, the horses started running very fast. The
groom made best possible efforts to control them but failed. The horses
knocked down the plaintiff who was seriously injured, it was held to be
an inevitable accident and the defendant was not liable.
In Stanley v. Powell, (1891) 1 QB 86; the plaintiff and the defendant,
who were members of a shooting party, went for pheasant shooting. The
defendant fired at a pheasant, but the shot from his gun glanced off an
oak tree and injured the plaintiff. It was held that the accident was an
inevitable accident and the defendant was not liable.
The original Indian Penal Code, 1860 had no provision providing punishment
for causing death by negligence. Section 304-A was inserted in the Code in
1870 by the Indian Penal Code (Amendment) Act, 1870. This section did not
create a new offence but was directed towards the offences which fall outside
the range of section 299 and 300 of the Indian Penal Code, 1860 (herein after
referred as I.P.C.) when neither intention nor knowledge to cause death is
present.
304A. Causing death by negligence.--Whoever causes the death of any
person by doing any rash or negligent act not amounting to culpable homicide
shall be punished with imprisonment of either description for a term which
may extend to two years, or with fine, or with both.
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The provisions of this section apply to cases where there is no intention to

cause death, and no knowledge that the act done in all probability would cause
death. The Supreme Court has clarified that the section 304-A of I.P.C. is
applicable only when death is caused due to rash and negligent act of the
accused, which is an essential element to attract said provision. But a colossal
group of legal scholars have always questioned whether this section provides
punishment for manslaughter without intention or is it a 'license to kill' in
disguise of a rash and negligent act.
This section deals with homicide by negligence and covers that class of
offences, where death is caused neither intentionally nor with the knowledge
that the act of the offender is likely to cause death, but because of the rash and
negligent act of the offender. This clause limits itself to rash and negligent acts
which cause death, but falls short of culpable homicide of either description.
When any of the two elements, namely, intention or knowledge, is present this
section has no application. Intentional shooting at a fleeing person and hitting
someone else to death comes under the section 300 read with section 301 of
the I.P.C. It is not a negligent act so as to come under section 304-A.
Thus it's clear that the facts which must be proven in order to invoke the
applicability of this section are essentially three folds:
• (1) Death of a human being;
• (2) The accused caused the death;
• (3) The death was caused by the doing of a rash and negligent act, though it
did not amount to culpable homicide.
Sections 80 and 88 of the Indian Penal Code contain defences for doctors accused
of criminal liability.
Under Section 80 (accident in doing a lawful act) nothing is an offence that is
done by accident or misfortune and without any criminal intention or
knowledge in the doing of a lawful act in a lawful manner by lawful means and
with proper care and caution.
According to Section 88, a person cannot be accused of an offence if she/ he
performs an act in good faith for the other’s benefit, does not intend to cause
harm even if there is a risk, and the patient has explicitly or implicitly given
consent.
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Burden of proof and chances of error

The burden of proof of negligence, carelessness, or insufficiency generally lies with
the complainant. The law requires a higher standard of evidence than otherwise, to
support an allegation of negligence against a doctor.
In cases of medical negligence the patient must establish her/ his claim against the
doctor.
In Calcutta Medical Research Institute vs Bimalesh Chatterjee (1991)
it was held that the onus of proving negligence and the resultant
deficiency in service was clearly on the complainant.
In Kanhaiya Kumar Singh vs Park Medicare & Research Centre
(1991) , it was held that negligence has to be established and cannot be
presumed. Even after adopting all medical procedures as prescribed, a
qualified doctor may commit an error. The Supreme Court has held, in
several decisions, that a doctor is not liable for negligence or medical
deficiency if some wrong is caused in her/ his treatment or in her/ his
diagnosis if she/ he has acted in accordance with the practice accepted as
proper by a reasonable body of medical professionals skilled in that
particular art, though the result may be wrong.
Before the case of Jacob Mathew vs State of Punjab, the Supreme Court
of India delivered two different opinions on doctors’ liability.
In Mohanan vs Prabha G Nair and another (2004), it ruled that a
doctor’s negligence could be ascertained only by scanning the material
and expert evidence that might be presented during a trial.
Whereas, in Suresh Gupta’s case in August 2004 the standard of
negligence that had to be proved to fix a doctor’s or surgeons criminal
liability was set at “gross negligence” or “recklessness.” The Supreme
Court distinguished between an error of judgement and culpable
negligence. It held that criminal prosecution of doctors without adequate
medical opinion pointing to their guilt would do great disservice to the
community. A doctor cannot be tried for culpable or criminal negligence
in all cases of medical mishaps or misfortunes.
A doctor may be liable in a civil case for negligence but mere carelessness or want of
due attention and skill cannot be described as so reckless or grossly negligent as to
make her/ him criminally liable. The courts held that this distinction was necessary so
that the hazards of medical professionals being exposed to civil liability may not
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unreasonably extend to criminal liability and expose them to the risk of imprisonment
for alleged criminal negligence.
Hence the complaint against the doctor must show negligence or rashness of such a
degree as to indicate a mental state that can be described as totally apathetic towards
the patient. Such gross negligence alone is punishable.
On September 9, 2004, Justices Arijit Pasayat and CK Thakker referred the
question of medical negligence to a larger Bench of the Supreme Court. They
observed that words such as “gross”, “reckless”, “competence”, and
“indifference” did not occur anywhere in the definition of “negligence” under
Section 304A of the Indian Penal Code and hence they could not agree with
the judgement delivered in the case of Dr Suresh Gupta.
The issue was decided in the Supreme Court in the case of Jacob Mathew vs
State of Punjab (2004). The court directed the central government to frame
guidelines to save doctors from unnecessary harassment and undue pressure in
performing their duties.
It ruled that until the government framed such guidelines, the following guidelines
would prevail:
A private complaint of rashness or negligence against a doctor may not be
entertained without prima facie evidence in the form of a credible opinion of
another competent doctor supporting the charge.
In addition, the investigating officer should give an independent opinion,
preferably of a government doctor.
Finally, a doctor may be arrested only if the investigating officer believes that she/ he
would not be available
NEGLIGENCE UNDER CONSUMER PROTECTION LEGISLATIONS

Under consumer protection laws, medical negligence is another form of deficiency in
service. It is most akin to the liability under the law of torts. But there is stricter and
broader liability in this situation as failure to exercise skill and care as is ordinarily
expected of a medical practitioner is the test under consumer protection laws.
In India, all medical services fall under the purview of the Consumer Protection Act
1986. The interests of the consumers are protected against the deficiency of services.
As per section 2 (1) of the Consumer Protection Act, 1986 the deficiency of
service means any default, imperfection or inadequacy in the nature, quality, or
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manner of performance that should be maintained by any law for the time being in
force. It shall be undertaken to be performed by a person in pursuance of a contract or
the service provided. It is comprehensive legislation implemented to promote and
safeguard the concerns of the consumers. To establish a relation between the CPA
and the medical profession, it is essential to understand whether the patient can be
considered a 'consumer' as per the definitions of CPA.
In order to deal with this uncertainty, the courts clarified that the medical treatment
rendered to a patient for a certain amount of consideration is a service as described
under the CPA. Hence it can be stated that medical professionals who render services
are liable to the patient for injury caused due to negligence on his part for prosecution
unless arrested.
• Negligence is simply the failure to exercise due care. The three ingredients of
negligence are as follows:
• The defendant owes a duty of care to the plaintiff.
• The defendant has breached this duty of care.
• The plaintiff has suffered an injury due to this breach.
• Medical negligence is no different. It is only that in a medical negligence case,
most often, the doctor is the defendant.
When does a duty arise?
It is well known that a doctor owes a duty of care to his patient. This duty can either
be a contractual duty or a duty arising out of tort law. In some cases, however, though
a doctor-patient relationship is not established, the courts have imposed a duty upon
the doctor. In the words of the Supreme Court “every doctor, at the governmental
hospital or elsewhere, has a professional obligation to extend his services with due
expertise for protecting life” (Parmanand Kataria vs. Union of India). These cases are
however, clearly restricted to situations where there is danger to the life of the
person. Impliedly, therefore, in other circumstances the doctor does not owe a duty.
What is the duty owed?
The duty owed by a doctor towards his patient, in the words of the Supreme Court is
to “bring to his task a reasonable degree of skill and knowledge” and to exercise “a
reasonable degree of care” (Laxman vs. Trimback). The doctor, in other words, does
not have to adhere to the highest or sink to the lowest degree of care and competence
in the light of the circumstance. A doctor, therefore, does not have to ensure that
every patient who comes to him is cured. He has to only ensure that he confers a
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reasonable degree of care and competence.

For instance, in Indrani Bhattacharjee v. Chief Medical Officer and Ors, the
doctor failed to advise the patient to consult cardiologist as the ECG of the
patient was not normal. Instead of that doctor gave him medicines for the
gastric problem which amounted to deficiency in service as per the Consumer
Protection Act.
In the case of Kusum Sharma v. Batra Hospital and Medical Research
Center and Ors, the court states that if the medical practitioner fails to
maintain the standards of reasonable care, then they will be held liable for
medical negligence, which gives appearance of deficiency in medical service
as per Section 2 (1) (g) of Consumer Protection Act.
The District Consumer Forum has laid the order to refund the amount with
interest in case of Kidney Stone Center v. Khem Singh, where the patient was
suffering from the problem of stone in the urethra. The defendant promised to
remove the stone without surgery by paying ten thousand rupees but failed to
do so.
When doctors do the treatment or give their services without charging the
patients, they are not held liable either individually or vicariously. Therefore,
the free treatment at government or non-government hospital, dispensary or a
nursing home, health care centre cannot be considered as service defined under
Section 2 (1) (o) of the Consumer Protection Act, 1986. Therefore, the
contract of providing the service is beyond the ambit of the Consumer
Protection Act. The Act cannot rescue the patients, where they take free
services or are paying only a nominal fee for the registration purpose.
However, if the medical practitioner or doctors waive the charges due to the
incapability of patients to pay the costs, then they are considered as consumers
and can Sue under the Act.
In Indian Medical Association v. P Santha, it is observed that the doctors or
medical practitioners will be held liable for their services unless the exceptions
mentioned in this case are not followed. The court states that the patients
cannot be treated as a contract of personal services.
The complaints under the Consumer Protection Act can be filed at the District
Forum, State Commission and National Commission.
If the value of compensation and services claimed is less than 20 lakh rupees, then
the matter will be filed before the District Forum.
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If the value of the goods or services and the compensation claimed is below one crore
rupees, then the matter will be referred to the State Commission.
And if the value of the goods or services and the compensation exceeds more than
one crore rupees, the matter is referred to the National Commission. There is a
minimal fee for filing a complaint before the District Consumer Redressal Forums,
State Commission and National Commission.
Who can file a complaint?
A consumer or any recognized consumer association, i.e., voluntary consumer
association registered under the Companies Act, 1956 or any other law for the time
being in force, whether the consumer is a member of such association or not, or the
central or state government.
Who is a consumer?
A consumer is a person who hires or avails of any services for a consideration that
has been paid or promised or partly paid and partly promised or under any system of
deferred payment and includes any beneficiary of such services other than the person
hires or avails of the services for consideration paid or promised, or under any system
of deferred payment, when such services are availed of with the approval of the first
mentioned person. This definition is wide enough to include a patient who merely
promises to pay.
What is a complaint?
A complaint is an allegation in writing made by a Complainant, i.e., a consumer that
he or she has suffered loss or damage as a result of any deficiency of service.
What is deficiency of service?
Deficiency of service means any fault, imperfection, shortcoming, or inadequacy in
the quality, nature, or manner of performance that is required to be maintained by or
under any law for the time being in force or has been undertaken to be performed by
a person in pursuance of a contract or otherwise in relation to any service.
Where is a complaint filed?
A complaint can be filed in:
the District Forum if the value of services and compensation claimed is less than 20
lakhs rupees, before the State Commission, if the value of the goods or services and
the compensation claimed does not exceed more than 1 crore rupees, or in the
National Commission, if the value of the goods or services and the compensation
exceeds more than 1 crore rupees.
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What is the cost involved in filing a complaint?

There is a minimal fee for filing a complaint before the district consumer redressal
forums.
Is there any provision for appeal?
An appeal against the decision of the District Forum can be filed before the State
Commission. An appeal will then go from the State Commission to the National
Commission and from the National Commission to the Supreme Court. The time
limit within which the appeal should be filed is 30 days from the date of the decision
in all cases.
What are the powers of the consumer redressal forums?
The forums have a variety of powers. They are:-
1. the summoning and enforcing of the attendance of any defendant or witness
and examining the witness under oath,
2. the discovery and production of any document or other material object
producible as evidence,
3. the reception of evidence on affidavits,
4. the summoning of any expert evidence or testimony,
5. the requisitioning of the report of the concerned analysis or test from the
appropriate laboratory or from any other relevant source,
6. Issuing of any commission for the examination of any witness, and any other
matter which may be prescribed.
How does adjudication of liability take place?
The process before the competent forum will be set in motion in the following
manner. When the Complainant files a written complaint, the forum, after admitting
the complaint, sends a written notice to the opposite party asking for a written version
to be submitted within 30 days. Thereafter, subsequent to proper scrutiny, the forum
would ask for either filing of an affidavit or production of evidence in the form of
interrogatories, expert evidence, medical literature, and judicial decisions.
Reasonable Degree of Care
Reasonable degree of care and skill means that the degree of care and competence
that an “ordinary competent member of the profession who professes to have those
skills would exercise in the circumstance in question.” At this stage, it may be
necessary to note the distinction between the standard of care and the degree of care.
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The standard of care is a constant and remains the same in all cases. It is the
requirement that the conduct of the doctor be reasonable and need not necessarily
conform to the highest degree of care or the lowest degree of care possible. The
degree of care is a variable and depends on the circumstance. It is used to refer to
what actually amounts to reasonableness in a given situation.
Thus, though the same standard of care is expected from a generalist and a specialist,
the degree of care would be different. In other words, both are expected to take
reasonable care but what amounts to reasonable care with regard to the specialist
differs from what amount of reasonable care is standard for the generalist. In fact, the
law expects the specialist to exercise the ordinary skill of this specialty and not of any
ordinary doctor. Though the courts have accepted the need to impose a higher degree
of duty on a specialist, they have refused to lower it in the case of a novice.
Another question that arises is with regard to the knowledge that is expected from a
doctor. Should it include the latest developments in the field, hence require constant
updating or is it enough to follow what has been traditionally followed? It has been
recognized by the courts that what amounts to reasonableness changes with time. The
standard, as stated clearly herein before requires that the doctor possess reasonable
knowledge. Hence, we can conclude that a doctor has to constantly update his
knowledge to meet the standard expected of him. Furthermore, since only reasonable
knowledge is required, it may not be necessary for him to be aware of all the
developments that have taken place.
When does the liability arise?
The liability of a doctor arises not when the patient has suffered any injury, but when
the injury has resulted due to the conduct of the doctor, which has fallen below that
of reasonable care. In other words, the doctor is not liable for every injury suffered by
a patient. He is liable for only those that are a consequence of a breach of his duty.
Hence, once the existence of a duty has been established, the plaintiff must still prove
the breach of duty and the causation. In case there is no breach or the breach did not
cause the damage, the doctor will not be liable. In order to show the breach of duty,
the burden on the plaintiff would be to first show what is considered as reasonable
under those circumstances and then that the conduct of the doctor was below this
degree.
Normally, the liability arises only when the plaintiff is able to discharge the burden
on him of proving negligence. However, in some cases like a swab left over the
abdomen of a patient or the leg amputated instead of being put in a cast to treat the
fracture, the principle of ‘res ipsa loquitur’ (meaning thereby ‘the thing speaks for
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itself’) might come into play. The following are the necessary conditions of this
principle.
Complete control rests with the doctor.
It is the general experience of mankind that the accident in question does not happen
without negligence. This principle is often misunderstood as a rule of evidence,
which it is not. It is a principle in the law of torts. When this principle is applied, the
burden is on the doctor/defendant to explain how the incident could have occurred
without negligence. In the absence of any such explanation, liability of the doctor
arises.
Normally, a doctor is held liable for only his acts (other than cases of vicarious
liability). However, in some cases, a doctor can be held liable for the acts of another
person which injures the patient. The need for such a liability may arise when the
person committing the act may not owe a duty of care at all to the patient or that in
committing the act he has not breached any duty.
A typical example of a case where such a situation may arise is in the case of a
surgery. If a junior doctor is involved as part of the team, then his duty, as far as the
exercise of the specialist skill is concerned, is to seek the advice or help of a senior
doctor. He will have discharged his duty once he does this and will not be liable even
if he actually commits the act which causes the injury. In such a case, it is the duty of
the senior doctor to have advised him properly. If he did not do so, then he would be
the one responsible for the injury caused to the patient, though he did not commit the
act. When there is no liability
A doctor is not necessarily liable in all cases where a patient has suffered an injury.
This may either be due to the fact that he has a valid defence or that he has not
breached the duty of care. Error of judgment can either be a mere error of judgment
or error of judgment due to negligence. Only in the case of the former, it has been
recognized by the courts as not being a breach of the duty of care. It can be described
as the recognition in law of the human fallibility in all spheres of life.
A mere error of judgment occurs when a doctor makes a decision that turns out to be
wrong. It is situation in which only in retrospect can we say there was an error. At the
time when the decision was made, it did not seem wrong. If, however, due
consideration of all the factors was not taken, then it would amount to an error of
judgment due to negligence.
What Constitutes Medical Negligence?
Failure of an operation and side effects are not negligence. The term negligence is
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defined as the absence or lack of care that a reasonable person should have taken in
the circumstances of the case. In the allegation of negligence in a case of wrist drop,
the following observations were made. Nothing has been mentioned in the complaint
or in the grounds of appeal about the type of care desired from the doctor in whom he
failed. It is not said anywhere what type of negligence was done during the course of
the operation. Nerves may be cut down at the time of operation and mere cutting of a
nerve does not amount to negligence. It is not said that it has been deliberately done.
To the contrary it is also not said that the nerves were cut in the operation and it was
not cut at the time of the accident.
Sd/-
Ms. Sunil Kumar
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Chanderprabhu Jain College of Higher Studies

Class : B.A.LL.B/ BBA LLB IX Sem

REMEDIES FOR MEDICAL NEGLIGENCE

WINFIELD AND JOLOWICZ: According to Winfield and Jolowicz- Negligence

excess of sulphates which the manufacturers negligently failed to

DEFENCES FOR NEGLIGENCE:

which there had been no negligence. Owing to an exceptional heavy

The provisions of this section apply to cases where there is no intention to

Burden of proof and chances of error

NEGLIGENCE UNDER CONSUMER PROTECTION LEGISLATIONS

reasonable degree of care and competence.

What is the cost involved in filing a complaint?

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