MEDICAL NEGLIGENCE

 Presented by.

 Prof. Nirmal Kanti Chakrabarti

 Director, KIIT Law School
 KIIT University
 Bhubaneswar
Negligence
 Negligence is the breach of a duty caused by the
omission to do something which a reasonable man,
guided by those considerations which ordinarily
regulate the conduct of human affairs would do, or
doing something which a prudent and reasonable man
would not do.
 Actionable negligence consists in the neglect of the
use of ordinary care or skill towards a person to whom
the defendant owes the duty of observing ordinary
care and skill, by which neglect the plaintiff has
suffered injury to his person or property
Doctors Liability in Ancient
India: Kautilya’s Arthasastra
 The doctor is mandated to report to
the State whenever he is called to a
house to treat a severely wounded
person and also patients suffering
from unwholesome food or drink.
This will help him in saving himself
from the criminal accusations of not
attending to the patient.
Health Care at International
Level
 1. Article 25 Universal Declaration of Human
Rights,1948
 2. Art.12 Covenant on Economic, Social and Cultural
Rights,1966
 3. Art.2 World Health Organization Constitution
Legal Framework in India
 1. Tort Law & Constitutional Law
 2.Indian Penal Code; 3. Fatal Accident Act 1855; 4.
Dangerous Act 1930; 5. Drugs and Cosmetics Act 1940,
; 6. Drugs Control Act 1950; 7. Indian Medical Council
 1956; 8. The Dentists Act,1948; 9. Drugs and Magic
Remedies (objectionable Advertisement s)Act 1954
;10. Medical Termination of Pregnancy Act Act 1975; 11’
The Consumer Protection Act,1986; 12. Pre-natal
Diagnostic Techniques(Regulation and Prevention of
Misuse) Act 1994 ;13. Transplantation of Human
Organs Act,1994;
Liability under Tort Law
 Constituents of Negligence:
 1. A legal duty to exercise due care;
 2. Breach of the duty; and
 3. consequential damages.
Liability of Doctors
 1. A duty of care in deciding whether to undertake
the care;
 2. aA duty of care in deciding what treatment to give;
and
 3. a duty of care in the administration of that
treatment
BOLAM’S case:
 In the landmark Bolam case
It was held that:
In the ordinary case which does not involve any special
skill, negligence in law means a failure to do some act
which a reasonable man in the circumstances would
do, or the doing of some act which a reasonable man in
the circumstances would not do; . Negligence means
failure to act in accordance with the standard s
reasonably competent medical men at that time.
 The Supreme Court of India discussed the conduct of
professionals and what may amount to negligence by
professionals in Jacob Mathew’s case(Jacob Mathew vs.
State of Punjab AIR 2005 SC 3180):
Smt. Madhubala vs. Government
of NCT of Delhi; 2005 (118) DLT 515

 The Delhi High Court laid down in 2005 that in civil

law, there are three degrees of negligence:
 (i) lata culpa, gross neglect
 (ii) levis culpa, ordinary neglect, and
 (iii) levissima culpa, slight neglect.
 CRIMINAL LIABILITY
 I. P. C.
 S. 304a: Causing death by Negligence
 S. 88. Act not intended to cause death, done by
consent in good faith for person’s benefit
 Cr.P.C. 357; 357A
 Good faith- (s.52) Nothing is said to be done or
believed in ‘good faith’ which is done or believed
without due care and attention
Dr. Suresh Gupta vs. Government of N.C.T. of
Delhi(AIR 2004 SC 4091)

 In Dr. Suresh Gupta’s Case the court held that

 The legal position was quite clear and well settled that
whenever a patient died due to medical negligence,
the doctor was liable in civil law for paying the
compensation. Only when the negligence was so gross
and his act was so reckless as to endanger the life of
the patient, criminal law for offence under section
304A of Indian Penal Code, 1860 will apply.
Consumer Protection Act, 1986

 In 1995, the Supreme Court decision in Indian

Medical Association vs. V.P Shantha (1995)6
SCC 651 brought the medical profession within
the ambit of ‘ service’ as defined in the Consumer
Protection Act, 1986.
Contd.
 Section 2 (1) (g) CPA defines ‘deficiency in service ‘
as any fault , imperfection, shortcoming, or
inadequacy in quality, nature and manner of
performance which 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.
 A determination about deficiency in service for the
purpose of Section 2 (1) (g) is to be made by
applying the same test as is applied in an action for
damages for negligence.
Liability under Contract Act
 Vicarious Liability of Hospitals for acts of its Doctors
 (Syed Abdul Khader v. Rami Reddy, 1979 2 SCC 601)

 Contractual Liability of a doctor if he makes a promise

to produce a particular result(s.73)
Frontiers of Medical Technology
 Medical device innovation embraces the frontiers of
science and engineering, adapting computer
technology, nanotechnology and biotechnology to
medical applications.
 Medical device technology can be directly and
indirectly affected by a wide range of laws and
regulations and will face different regulatory and
legal hurdles.
 The Medical Devices Regulation Bill ,2006