Medical Negligence

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The medical profession is undoubtedly considered one of the most respectable and noble professions across the globe. Doctors possess the potential to cure the most fatal of the diseases like Cancer, TB etc. This is the reason why medical professionals, are at times considered gods by patients. But like every other profession, this profession also is not immune to negligence.

In fact, it can be said that when there’s even a fraction of the chance of medical negligence the same gods can appear as devils; the reason being, negligence in this field can cost a life. Medical malpractice has become a relatively serious issue not only in India but the rest of the world. In India alone, 5 million deaths happen every year due to medical negligence. The same is also the 3rd major cause of death in the United States of America.

In this assignment, we shall not only be diving deep into what medical malpractice means in Torts law, but we shall further be evaluating the legal scenario of the same in both the USA and India and conclude by suggesting measures and little alternatives which might help mitigate the problem in a significant way.

What is medical malpractice?

Malpractice: The term malpractice refers to the inability of a professional to perform his/her job with a reasonable degree of skill to re causes injury or loss’’.[1]

Malpractices are often referred to as negligence.

Essentials for malpractice/negligence

  1. Duty of care: Defendant owed a duty of care towards the plaintiff.
  2. Breach of duty of care: The defendant breached the particular duty of care he owed to the plaintiff.
  3. Injury due to duty of care: There has to be an injury to the plaintiff as a result of the breach of the duty by the defendant.

Medical malpractice

The concept of medical malpractices can be traced back to a legal document from ancient Mesopotamia that states “The doctor has treated a gentleman the lancelet of bronze and has caused the gentleman to die or has opened an abscess of the eye for a gentleman for a bronze lancelet and has caused the loss of gentleman’s eye, one shall cut off his hands”.

Although extreme it can be referred that there existed provisions for penalizing medical malpractices in the most ancient of human civilizations.[2]

When a medical professional administers a sub-standard treatment to the patient, then it can be said that medical malpractice is committed. The injured patient may claim compensation under medical malpractice law, a dimension of tort law that governs injuries to persons or property when no crime or breach of contract exists.

Malpractice is a form of professional tort or civil liability in which a doctor’s negligent or wrongful care causes injury to a patient. Failure to attend or treat, diagnosis error, failure to obtain a complete medical record, treatment errors, or advice and communication failure are all examples of these.[3]

When a physician agrees to take a medical case, it is reasonable for the patient to assume that the physician possesses the basic skills that a regular medical professional needs to have while administering a standard treatment.

When a patient agrees to be treated, it becomes the doctor’s responsibility to use reasonable care and diligence in the exercise of his skill set and the application of his knowledge to perform the treatment to cure the ailment of the patient.

The law holds a physician liable for an injury to his patient caused by a lack of standard knowledge and skill or an omission to demonstrate reasonable care, based on his failure to use diligent judgement.

The rule regarding learning and skill does not require the surgeon to possess extraordinary learning and skill which belongs only to a few professionals of rare resource base, but rather that which is possessed by the average professions of the medical fraternity in good standing.

The rule requiring him to use his diligent judgment does not hold him liable for an error of judgement as long as he does what he claims to believe is best after careful consideration. His implied involvement with his patient does not assure a desirable outcome, but he implicitly promises to use the average physician’s skill and knowledge to take reasonable care and use his best judgement in order to achieve a favourable outcome.

Medical malpractice in the United States [a comparative study]

Medical malpractice acquired fame in the 1800s. Until the 1960s, however, claims for compensation for medical malpractice were fragile in numbers and had a negligible effect on the practice of medicine. The country saw an incredible hike in the number of medical malpractice claims in the 1960s, and today, lawsuits filed by dissatisfied patients alleging physician malpractice are relatively common.

In the United States, unlike in many other countries, medical malpractice law has conventionally been governed by individual member states rather than the federal government. It is on the patient to prove that subpar medical care resulted in an injury in order to seek compensation for injuries caused by medical negligence.

The complaint of medical negligence must be filed within a certain time period, referred to as the statute of limitations, which varies by state. Once the plaintiff has established the existence of medical malpractice, it is up to the court to determine the monetary damages that must be paid to the plaintiff.

The courts in the United States have established four fundamental elements for filing a claim for damages for medical malpractice. To begin, the plaintiff/patient must establish the existence of a doctor-patient relationship, as this establishes a duty of reasonable care that the doctor owes the patent.

Second, it must be established that there was a ‘breach’ of duty by the doctor, either in the form of substandard surgical performance or a failure on the part of the professional to record a significant detail of the patient’s medical history.

Third, harm should be done to the patient. It is not necessary to state how devastating or extensive the harm was, but the plaintiff must bear some of the consequences. However, the greater the extent of harm caused, the greater the chance of successful litigation and a larger compensatory award.

Finally, it is critical that the patient has continued to suffer harm “as a result of the doctor’s breach of duty.” This means that while multiple types of damages (emotional harm, psychological harm, etc.) may be incurred by the patient, medical malpractice is only established when the harm is caused by the doctor’s “breach of the duty to perform reasonable standards of treatment due to his negligence.”

In other words, there must be a direct link between both the breach and the injury.

Cross vs. Guthery, When Mrs. Cross complained that something was wrong with her breast, her husband called in a doctor named Guthery. Mrs. Cross was examined by a physician who diagnosed her with scrofula and amputated her breast.

Mrs. Cross died shortly after the surgery as a result of a blood clot. Dr. Guthery sent her husband a fifteen-pound bill. Cross hired the services of a lawyer, who convinced a jury to dismiss Dr. Guthery’s bill and award Cross forty pounds as compensation for the loss of his wife’s companionship.

The formation of the blood clot was obvious evidence that the surgical procedure was performed carelessly. Mrs. Cross and Dr. Guthery had a relationship here. Dr. Guthery infringed his duty by conducting a subpar amputation, which resulted in the formation of a clot of blood (harm). With all ingredients in place. This is how a malpractice claims suit was formed.

In an important case, Huntly vs. Handley (1955), the negligence alleged was that a needle that was too thin and fragile was used for intramuscular injection and that it was withdrawn at a different perspective than it was inserted. The jury decided in favour of the defendant doctor, but an appeal resulted in a new trial. Lord President Clyde mentioned in his decision on that appeal:

“In the medical fraternity, there is sufficient room for genuine conflict of ideas, and one man is not at fault merely because his judgement differs from that of another professional, or due to illustrating less skill or knowledge than others. The true test for establishing a doctor’s negligence in diagnosis or treatment is whether he been proven to be guilty of such failure that no doctor of ordinary skill would be guilty of if acting with ordinary care.[4]

This judgement brings clarity to the fact that it is not necessary for a medical professional to perform his duty with the best of his knowledge or skill but at a reasonable/basic standard of practice that has been prescribed for a particular medical case.

Although medical negligence is the third leading causes of death in the United States it is inferred that the country consists of strict provisions for a medical negligence case.

In the early 1990s, malpractice compensations reached massive numbers in the US. As anticipated, malpractice indemnity instalments accelerated to four months’ salary for doctors. Doctors replied by deciding to halt delivery services in small towns out across the United States. During childbirth, the government was bound to airlift expecting women to city centres which was evidently unsustainable and risky.

As a consequence, multiple states in the United States capped negligence compensations at approximately three hundred grand. This cap drastically decreased malpractice suits. Notwithstanding, one in every 14 doctors (7.4%) in the United States is sued each year.[5]

Although medical error is the third leading cause of death in the United States it is inferred that the country consists of strict provisions for medical negligence cases. It is also important to keep in mind the factor of best of the world infrastructure, facilities and technologies behind the medical treatments in the entire United States.

Medical negligence – Indian legal perspective

Indian law categorises medical negligence into three dimensions: –

Criminal negligence

Indian penal code has indirectly laid down provision for suing doctors for negligence. ‘Section 304A’ of the IPC 1860 states “whoever causes the death of a person by a rash or negligent act not amounting to culpable homicide shall be punished with a term of two years or with a fine or with both.” 

Thus, criminal liability can be imposed on a medical professional in scenarios like death of a patient during the phase of administering anaesthesia during the hours of operation where there is a presence of gross negligence or malicious intention.

In the case of Juggan Khan vs. State of Madhya Pradesh, the defendant, a certified Homoeopathic physician, after seeing an advertisement for ‘guinea worm treatment’, a woman approached him. She became unconscious after taking the medication he prescribed, and she died in the evening despite the availability of antidotes.

The appellant was charged with a death sentence under Section 302 of the Indian Penal Code. The judge determined that prescribing lethal drugs without proper screening and awareness was neglectful.[6]


According to Section 80, “nothing is an offence that is committed by accident or misfortune and without any criminal intent or knowledge in the doing of a lawful act in a legal manner by lawful means and with proper care and caution.”

“A person cannot be arrested on charges of an offence if she or he performs an act in good faith for the benefit of another, does not intend to cause harm even when there is a risk, and the patient has given explicit or implicit consent,” Section 88 states.

Civil negligence

To sue a doctor under civil law, it must be proven that it was the negligence of the doctor or hospital that resulted in the patient incurring damages. Practitioners who provide free services can also be sued under civil law.

Consumer protection

After a long run of speculation and debates in 1990s whether medical services came under the ambit of ‘services. In 1995, the SC decision in the case ‘Indian Medical Association vs. V.P. Shanta & Ors[7].’brought medical services within the purview of “service” in the ‘Consumer Protection Act of 1986’.

This re-established the association between patients and physicians by awarding contractual patients the ability to file complaint against doctors if they were harmed during treatment in ‘procedure free’ consumer rights.

Complaints are filed in district forums where the claim for compensation is less than 20 lakh rupees. If the compensation is less than one crore rupees, the case is investigated by the State Commission; if the compensation exceeds one crore rupees, the case is heard by the National Commission.[8]

Burden of proof

The patient bears the burden of proof in a medical malpractice case. The patient (plaintiff) must set up his or her assertion against the doctor and indicate that the doctor’s actions were negligent. Carelessness must be proven, not assumed. Although, when a medical professional’s conduct betrays proper management, the burden of proof shifts to the doctor.

In this case, the patient is not required to submit proof to establish the standard of care, and the entire surgery is conducted inside the surgery room in the absence of the patient’s attendants. The concept of “res ipsa loquitor” comes into play in this case, which implies that one’s actions speak for themselves. This is used when the plaintiff cannot identify the nature of the carelessness that caused him or her to suffer damages. He also is unable to determine how the defendant caused the injuries.

The procedure of filing a medical negligence complaint in India

The following steps must be followed when filing a complaint about medical negligence: –

The complaint must be filed with the local police department as well as the State Medical Council. The report can be sent to the State Medical Examiner if only the police file it. If the Council finds the report to be grave, it may refer it to various other courts in accordance with the applicable sections.

If the case is criminal in nature, the state will be challenged against the health professional or hospital. A doctor’s certificate may be suspended for a set period of time if it is noticed to be fraudulent.

The council must start deciding whether the situation poses a serious threat to the patient’s life. If the Council considers the report serious, it has the authority under the relevant sections to refer it to various other courts.

If the case is criminal in nature, the state, not the health professional or the hospital, will be prosecuted. If the council helps determine that the case poses a high risk to the patient’s life, the doctor’s certification may be suspended for a set period of time.

The doctor’s negligence will be rightly punished, taking into consideration all of the facts and circumstances of the case. If the patient still feels disgruntled, he or she has the right to file an appeal with the Medical Council of India.

The consumer courts may also assist the patient in obtaining monetary compensation. Consumer Courts do not have the authority to punish offenders; they can only compensate them. If the complainant is still unhappy with the Consumer Court’s decision, one may file an appeal with the National Consumer Dispute Resolution Commission.


According to a Harvard University study, nearly 5 million deaths in India occur as a result of medical negligence/errors caused by a void of practical knowledge among professionals of medical faternity to handle patients prior to/after admission to the hospital.

According to the study, most doctors, despite their highly qualified medical education, unavailability of regular skills in identifying and managing unforeseen events and situations that have a catastrophic impact on the patient’s health outcome.

According to the study, the numbers could have been much lower not only if bare minimum medical facilities were present in the hospital, but also if medical professionals were skilled at both technical and non-technical aspects of patient management. [9]

Conclusion & suggestion

We discussed the theory of medical malpractices on a thorough note by defining what malpractice meant in torts law and how the concept of medical negligence originated in the first place. Moving on, we mentioned and distinguished the legal prospects of both the US and India by citing various landmark cases and differing views of judges in both the countries.

Here, the primary observation was that in US the legislations and proceedings were more citizen centric and stricter as compared to India where it is much more complex to even file a suit for medical negligence. In India it can be said that it’s difficult to establish a case against the defendant due to presence of rigid legislations.

The difference in the scenarios in medical malpractices is an also a reflection of the difference in the availability of medical infrastructure, technology, per capita etc incomes of both countries.

However, while researching about medical negligence, we found a common reason of this issue despite the differences in both the countries i.e., lack practical knowledge among medical professionals regarding managing patients and their complications during treatments.

An important suggestion from our side would be an introduction of a time bound course in the medical institutions in the final year of graduation that would not only train young professionals to smoothly handle patients while treating them but also prepare them for unconventional situations during the treatment where they perfectly ensure the safety of their patients.



[1] ‘Malpractice’ (, 2022)   <> accessed 20 September 2022.

[2] ‘An Introduction To Medical Malpractice In Tthe individual United States’ (National Library of medicine, 2008) <> accessed 20 September 2022.

[3] <http://Medical Negligence-Medical Malpractice-American Experience, 37 JILI (1995) 390> accessed 20 September 2022.

[4] ‘S. S. W. Davis, ‘Medical Negligence’ (1978) 3 Legal Service Bull 175

[5] ‘Are Large Compensation Pay-outs for Negligence Good for Medicine in India?’ (2014) 349 British Medical Journal.

[6] ‘Struti Surendra, ‘Medical Negligence in India – A Critical Study’ (2020) 3 Int’l JL Mgmt. & Human 995

[7] ‘Jaya Kumar Jolad v. Bhabha Atomic Research Centre Hospital’, 2016 SCC Online NCDRC 905

[8] ‘Struti Surendra, ‘Medical Negligence in India – A Critical Study’ (2020) 3 Int’l JL Mgmt. & Human 995

[9] ‘India, P., 2022. India’s medical error deaths, nearly 5 mn a year, can be cut by 50%: Expert’. [online] Available at: <> [Accessed 22 September 2022].’

This article has been authored by Digvijay Khatai and Jibisa Janvi Behera, students at National Law University, Odisha.

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