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LEGAL REGIMES FOR MEDICAL NEGLIGENCE IN INDIA: A CRITICAL ANALYSIS ON THE NECESSITY OF A COMPREHENSIVE LEGAL FRAMEWORK
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LEGAL
REGIMES FOR MEDICAL NEGLIGENCE IN INDIA: A CRITICAL ANALYSIS ON THE NECESSITY
OF A COMPREHENSIVE LEGAL FRAMEWORK
AUTHORED BY
- ADITYA GOYAL
Advocate/Attorney, Bar Council of
India, Aditya Goyal and Associates, India and UAE
CO-AUTHOR -
AKSHITA GOYAL
Advocate/Attorney, Bar Council of
India, Lexstone Group Law Office, India
Abstract
Medical negligence (MN) remains a
significant issue within the healthcare (HC) system in India, where the medical
profession is held in high esteem but is not immune to human error. This study
examines the various legal frameworks—civil, criminal, and consumer law—that
address MN, outlining the challenges of holding HC providers accountable due to
the complex nature of medical practice. Legal provisions under the Indian Penal
Code (IPC), Tort Law, and the Consumer Protection Act (CPA) provide avenues for
patients to seek redressal, though each system operates under distinct legal
principles. The study also offers recommendations to address the MN crisis,
including the creation of a national database, uniform compensation measures,
and an analysis of judicial decisions to enhance healthcare system
transparency. Ultimately, the study advocates for stronger legal protections,
comprehensive reforms, and a balanced approach to uphold both patient rights
and medical professionalism in India.
Keywords: Medical negligence, legal framework,
criminal liability, compensation.
Introduction
The field of medicine is often
regarded as one of the most honourable professions in India. A patient
sometimes compares the doctor to a god or a goddess. On top of that, God is
without mistakes. With, it is the viewpoint of the patient. As it is a human
tendency to make mistakes; so, do medical professionals. Negligence is a possible behaviour among
medical professionals. If there are two incidents of neglect, it could lead to
a substantially more serious problem. Within the context of MN, determining who
was irresponsible is of the utmost importance along with the conditions that
surrounded it. These kinds of problems are brought before the courts in a
country that is committed to the rule of law, and it is anticipated of the
judges that they will make decisions. On the other hand, since judges lack
experience in medical science, thus find it difficult to determine whether a
patient was neglected in their medical care[1].
The decisions that they make are based on the opinions of specialists. When
reaching a decision, judges make use of fundamental legal concepts in
conjunction with the laws that are currently in effect. The principles that
serve as the guiding principles are reasonableness and wisdom. Given that these
issues are fundamental to the medical profession and that hospitals are
influenced by the reinterpretation of existing laws concerning HC
professionals, it is essential to address them at both the individual physician
level and the institutional level of the hospital[2].
This is because hospitals are directly influenced by the reformulation of laws
that pertain to medical professionals.
The Government of India is going to act
to reduce the amount of uncertainty that is caused by the growing count of MN
lawsuits in the nation. There exists a significant desire for a new provision
or a separate legal framework that may settle the situation in a manner that is
speedy, accurate, and prudent.
A further RTI submitted by Vidhi
disclosed the DMC carried out 3,836 investigations into HC practitioners for
any professional misconduct or negligence from 2002 to 2022. Also, warnings
were given in 160 instances. In an additional 160 instances, the names of
practitioners were provisionally expunged from the registries[3].
Figure 1: Recent Cases of Medical
Negligence[4]
Figure 2: Causes of Medical
Malpractices Claims (2017-2021)[5]
Table 1: Latest statistic of medical
Negligence in India[6]
|
Aspect
|
Details
|
|
Annual Medical Malpractice Cases in
India
|
5.2 million cases
|
|
Growth in Caseloads
|
110% increase in caseloads
|
|
Growth in Legal Disputes
|
400% increase in legal disputes
|
|
Healthcare Professionals Following
Moral Standards
|
Only 46% adhere to moral standards
|
|
Leading Causes of Medical Error
Deaths
|
- Surgical errors: 80% of deaths
- Poor management: 70% of emergency deaths |
|
11%
|
|
17%
|
|
32%
|
|
24%
|
Figure 3: Most cases State wise[7]
Negligence
Negligence
happens to be the breach of obligation characterized by the execution of an act
that a prudent individual would not undertake or the oversight of an act that a
prudent person, according to conventional norms of conduct, would do. To be
negligent and hence liable for damages, a defendant must have owed the
plaintiff a duty to exercise ordinary care along with skill, and the plaintiff
must have experienced some kind of harm owing to the defendant's failure to do
so[8].
There are
three forms of negligence:
·
The
condition of mind where it opposes the intent.
·
Inconsiderate
behaviour
·
Neglecting
one's responsibilities
Medical
Negligence – Laws in India
MN transpires when a HC provider fails
to deliver the desired quality of care, causing damage or injury straight to
the patient. The legal recourse available for MN victims can be sought through
civil law, criminal law, and consumer law in India. Each of these legal systems
offers distinct approaches to address MN and hold healthcare professionals
accountable.
1. Criminal Law (Indian Penal Code -
IPC)
Under criminal law, MN can lead to
criminal liability if a HC provider’s negligent actions directly cause harm or
death. The Indian Penal Code[9]
(IPC) addresses such cases through various sections:
-
Section
304A[10]:
This section entails "causing death by negligence." If a patient's
death occurs due to a doctor's rash or negligent behavior, it constitutes a
criminal offense under this section. The penalty may include incarceration for up
to two years, or a monetary fine, or both.. For example, if a doctor
administers anesthesia carelessly, leading to death, they can be charged under
Section 304A.
-
Section
337[11]:
This section covers causing "hurt by an act endangering life or personal
safety of others" through negligence, which results in harm but not death.
In such cases, the doctor can face imprisonment for up to 6 months, or a fine,
or both.
-
Section
338[12]:
This deals with "causing grievous hurt by negligence," where the
injury is serious but does not result in death. It can lead to more severe
penalties compared to Section 337.
Criminal liability requires proof
that the doctor’s actions amounted to gross negligence or recklessness, causing
harm or death. However, medical professionals acting in good faith and
following medical protocols are protected from prosecution under Section 88[13]
of the IPC, which exempts acts carried out for the patient’s benefit.
2. Civil Law (Tort Law)
Under civil law, MN is primarily
addressed through tort law[14],
where the injured patient can file a claim for compensation for the harm
caused. In civil cases, the standard of proof is grounded in the
"preponderance of evidence"—that is, it must be more likely than not
that the doctor’s MN resulted in the injury.
-
Negligence
and Breach of Duty: In civil law, a MN claim can be filed if the healthcare
provider breaches the duty of care owed to the patient. Also, the duty of care
is the responsibility of the doctor or medical professional to provide
treatment in a manner that is consistent with accepted medical standards. If
the standard of care is violated and this breach results in injury, the doctor
can be held liable.
-
Damages:
The patient may be entitled to compensation for physical injury, medical costs,
loss of income, and mental pain. The compensation amount varies depending on
the injury’s severity and the scale of negligence involved[15].
3. Consumer Law (Consumer Protection
Act - CPA)
The CPA[16]
of 1986 provides an additional recourse for patients suffering due to MN, as
medical services are classified as a "service" under the Act.
Patients can file a complaint before the Consumer Forums if they believe the
medical service was deficient or the standard of care was not met.
-
Section
2(1)(0)[17]
of CPA: It defines "deficiency in service," which includes MN. This
can apply to hospitals, doctors, and healthcare institutions that provide
inadequate treatment, either by omission or commission.
-
Redressal:
Under the CPA, the patient or complainant can seek remedies such as
compensation for harm or injury, as well as an order to rectify the situation
(such as proper treatment or care). Patients can file complaints in District
Forums, State Forums, or National Forums, depending on the value of the claim.
-
Burden
of Proof: The patient or complainant must prove that the service was deficient,
but the process is often simpler than in civil law cases, as consumer courts
follow a more lenient standard of proof. Also, experts are often relied upon
for opinion, much like in civil court proceedings.
-
Case
Example: In State of Haryana v. Smt. Santra[18],
the Indian Supreme Court (ISC) ruled that doctors must provide a reasonable standard
of care and expertise. If a doctor or hospital fails to meet this standard and
a patient is harmed, it amounts to a deficiency of service, and the patient can
claim compensation per the CPA[19].
4. Summary of Legal Recourses
-
Criminal
Law: Prosecutes doctors for gross negligence leading to death or injury.
Proving criminal negligence requires establishing that the doctor’s conduct was
reckless or resulted in harm without justification.
-
Civil
Law: Focuses on the duty of care owed to the patient. If a doctor’s failure to obey
medical standards causes harm, the patient can claim damages for the injuries
sustained.
-
Consumer
Law: Allows patients to file any complaints within consumer courts for
deficient medical services under the CPA. It is designed to offer an accessible
platform for all patients to seek restitution for damages resulting from
medical malpractice.
In all cases, proving MN is
challenging due to the complex nature of medical practice, requiring expert
testimony and clear evidence of breach. However, these legal avenues provide
critical means for patients to seek justice and hold HC professionals
accountable.
Case Laws
In the Martin F. D'Souza vs Mohd.
Ishfaq[20]
case (17 February 2009), the ISC addressed MN. The patient, Martin F.
D'Souza, sued Dr. Mohd. Ishfaq, claiming that the latter caused him suffering
and injury as a result of his surgical procedures. Whether the doctor had
provided the necessary level of care, whether the plaintiff had established
carelessness, and the significance of expert evidence in cases involving MN
were the primary concerns in this case. The Court's decision in Dr. Ishfaq's
favor highlights the fact that doctors cannot be held responsible for
unpleasant outcomes if they adhere to established medical standards. It went on
to say that the plaintiff carries the burden of proof in proving carelessness,
not just that something unpleasant happened. Aside from being factually sound,
the Court emphasized that expert testimony should neither be broad or
subjective. Furthermore, it was pointed out that unless extreme carelessness is
demonstrated, medical practitioners are not accountable for mistakes in
judgment. A patient's informed permission is still required before any surgery
may proceed, but the decision made it clear that this does not constitute
carelessness if the procedure fails. The verdict highlighted that unfavorable
results do not constitute proof of carelessness and set significant standards
for MN actions in India.
In the Kusum Sharma & Ors vs
Batra Hospital & Medical Research Centre[21] case
(2010), the ISC dealt with a claim of MN following a patient’s death during
surgery at Batra Hospital. The family of Kusum Sharma filed a lawsuit against
the hospital and its doctors, claiming the patient's cardiac arrest and
subsequent death were the consequence of surgical negligence. The case's
fundamental questions were whether the hospital and its doctors and nurses had
failed in their duty of care and whether the victims should get damages. The
plaintiffs were successful in having the hospital and its physicians found
guilty of gross negligence by the ISC. It stressed that doctors along with
hospitals are responsible for providing patients with adequate treatment, and
that patients should be compensated when their deaths occur as a result of
their negligence. Additionally, it emphasized how critical it is for hospitals
to advise patients accurately and clearly about the dangers associated with
medical operations. Patients and their families have the right to seek justice
in cases of medical malpractice, and this case emphasized the prominence of
accountability in healthcare.
In the Brij Mohan Kher vs N.H. Banka[22]
case, the ISC dealt with a dispute regarding MN. In his lawsuit against Dr.
N.H. Banka, Brij Mohan Kher claimed that the doctor was negligent and caused
Kher pain and harm. Whether the doctor had neglected to utilise reasonable care
and skill throughout the patient's medical treatment was the main concern.
After reviewing the evidence, the court stressed that there must be proof that
the doctor's conduct were negligent if medical standards and procedures are to
be developed. There was no evidence of Dr. Banka's gross negligence, and the
court ruled that the treatment was within the bounds of reasonable medical
practice. Further emphasis was placed on the fact that doctors and hospitals
cannot be held responsible for mistakes or negative results so long as they
follow standard medical procedures. At the end of the day, the ruling
reaffirmed the idea that cases claiming MN need proof of a departure from
conventional care, not just bad results.
Recommendations to intensify our
combat against the malpractice crisis
1.
A comprehensive national database must be
constructed to precisely quantify the count of lawsuits filed against
physicians along with institutions across multiple platforms.
Claims’ thematic categorization must be analyzed to implement risk management within clinical environments and enhance awareness across healthcare providers.
Claims’ thematic categorization must be analyzed to implement risk management within clinical environments and enhance awareness across healthcare providers.
2.
In instances of established carelessness, a uniform
approach must be implemented to ascertain compensation for circumstances that
are consistent nationwide.
3.
Data on monetary awards (be it economic, or non-economic,
or punitive) from orders along with judgments must be documented and analyzed
to facilitate necessary tort changes and advance an accessible and sustainable
HC system.
4.
A database categorizing MN by act or subject should
be established on esteemed courts’ websites, and commissions, along with
medical councils to facilitate the retrieval of judgments and decrees.
5.
To understand the psychological factors and
deficiencies within our system regarding appeals, it is essential to analyze
the volume of appeals submitted against the rulings or verdicts issued by
various commissions, and courts, along with medical councils.
6.
Any decision, and judgment, or even opinion that is
reversed, altered, or remanded by a superior commission, and court, or even appellate
body ought to be meticulously scrutinized to identify deficiencies within our
legal and regulatory frameworks and HC systems, and appropriate measures must
be implemented to systematically rectify them[23].
Conclusion
Finally, patients and healthcare
providers in India are still dealing with medical negligence. Although doctors
are held in high regard for their selfless nature, it is important to remember
that they are human and can make mistakes, some of which can have serious
consequences. Despite its intended purpose of ensuring accountability, the
intricate nature of medical practice presents obstacles to the legal system
governing medical negligence, which is based on both civil and criminal law.
There must be stricter legal
protections and a more active judiciary to deal with the rising tide of medical
negligence along with malpractice cases. Essential measures toward reforming
the healthcare system include recommendations such as the creation of a
national database for malpractice cases, thematic classification of claims,
consistent compensation procedures, and systematic review of court rulings. We
can achieve a balance between medical professionals' accountability and
patients' trust in them by making sure they follow high standards of care and
giving patients more ways to get their problems fixed. All parties concerned
hope that these reforms will create a more open, responsible, and long-lasting
healthcare system.
References
Articles
2.
Tiwari
DS, “Medical Negligence in India” [2022] International Journal of Health
Sciences 10765
3.
Raveesh
BN, Nayak RB and Kumbar SF, “Preventing Medico-Legal Issues in Clinical
Practice” (2016) 19 Annals of Indian Academy of Neurology 15
4.
Ravi
K, Devnath GP and James RI, “Medical Negligence in India: Urgent Call for
Comprehensive Data, Tort Reforms, and Cultural Transformation to Revitalize
Healthcare System” (2024) 17 Medical Journal of Dr D Y Patil Vidyapeeth 259
5.
Chandrakar
E, Singh N and Tyagi S, “Critical Analysis Study on Various Indian Legislations
for Medical Negligence” [2022] International Journal of Health Sciences 8191
6.
Raj A, “Critical Analysis of Legal Regimes for Medical Negligence in
India- Need for a Comprehensive Legal Framework” (Ambily Perayil and National
University of Advanced Legal Studies, Kochi, 2020) http://14.139.185.167:8080/jspui/bitstream/123456789/454/1/LM0320003-PHL.pdf
Webpages
1.
Pratyush
Deep and Pratyush Deep, “Battling Bias: India’s Medical Councils Often Fail
Patients in Medical Negligence Cases” (Newslaundry, June 14, 2024) https://www.newslaundry.com/2024/06/14/battling-bias-indias-medical-councils-often-fail-patients-in-medical-negligence-cases
2.
Business Standard, “Over 5.2 Mn Medical Malpractice Cases Filed in India
Annually, Shows Data” (www.business-standard.com, April 29, 2024) https://www.business-standard.com/finance/personal-finance/over-5-2-mn-medical-malpractice-cases-filed-in-india-annually-shows-data-124042900073_1.html
Cases
1. State
Of Haryana & Ors vs Smt. Santra on 24 April, 2000
2. Martin
F. D' Souza vs Mohd. Ishfaq on 17 February, 2009, AIR 2009 SUPREME COURT 2049.
3. Kusum
Sharma & Ors vs Batra Hospital & Med.Research Centre, on 10 February,
2010, 2010 (3) SCC 480.
4. Brij
Mohan Kher Vs N. H. Banka, 1995 CPJ 99 NC.
Laws and statutes
1. Indian Penal Code, 1860, Act No. 45
of 1860.
2. Section 304A. Causing death by
negligence. - India Code
3. IPC Section 337 - Causing hurt by act
endangering life
4. IPC Section 338 - Causing grievous
hurt by act endangering life.
5. Section 88 in The Indian Penal Code,
1860
6. Consumer Protection Act, 2019, Act
No. 35 of 2019.
7. Section 2(1) in The Consumer
Protection Act, 1986
[1] Rahul, “Comparative Study on
Medical Negligence” (2019) 4 International Journal of Multidisciplinary
[2] Raveesh BN, Nayak RB and Kumbar
SF, “Preventing Medico-Legal Issues in Clinical Practice” (2016) 19 Annals of
Indian Academy of Neurology 15
[3] Pratyush Deep and Pratyush Deep,
“Battling Bias: India’s Medical Councils Often Fail Patients in Medical
Negligence Cases” (Newslaundry, June 14, 2024)
[4] Pratyush Deep and Pratyush Deep,
“Battling Bias: India’s Medical Councils Often Fail Patients in Medical
Negligence Cases” (Newslaundry, June 14, 2024)
[6] Business Standard, “Over 5.2 Mn
Medical Malpractice Cases Filed in India Annually, Shows Data” (www.business-standard.com,
April 29, 2024)
[7] Business Standard, “Over 5.2 Mn
Medical Malpractice Cases Filed in India Annually, Shows Data” (www.business-standard.com,
April 29, 2024)
[8] Tiwari DS, “Medical Negligence in
India” [2022] International Journal of Health Sciences 10765
[9] Indian Penal Code, 1860, Act No.
45 of 1860.
[10] Section 304A. Causing death by
negligence. - India Code
[11] IPC Section 337 - Causing hurt by
act endangering life
[12] IPC Section 338 - Causing grievous
hurt by act endangering life.
[13] Section 88 in The Indian Penal
Code, 1860
[14] Tort law is the branch of the law
that deals with civil suits, with the exception of disputes involving
contracts. Tort law is considered to be a form of restorative justice since it
seeks to remedy losses or injury by providing monetary compensation.
[15] Raj A, “Critical Analysis of Legal
Regimes for Medical Negligence in India- Need for a Comprehensive Legal
Framework” (Ambily Perayil and National University of Advanced Legal Studies,
Kochi, 2020)
[16] Consumer Protection Act, 2019, Act
No. 35 of 2019.
[17] Section 2(1) in The Consumer
Protection Act, 1986
[18] State Of Haryana & Ors vs Smt.
Santra on 24 April, 2000
[19] Chandrakar E, Singh N and Tyagi S,
“Critical Analysis Study on Various Indian Legislations for Medical Negligence”
[2022] International Journal of Health Sciences 8191
[20] Martin F. D' Souza vs Mohd. Ishfaq
on 17 February, 2009, AIR 2009 SUPREME COURT 2049.
[21] Kusum Sharma & Ors vs Batra Hospital
& Med.Research Centre, on 10 February, 2010, 2010 (3) SCC 480.
[22] Brij Mohan Kher Vs N. H. Banka,
1995 CPJ 99 NC.
[23] Ravi K, Devnath GP and James RI,
“Medical Negligence in India: Urgent Call for Comprehensive Data, Tort Reforms,
and Cultural Transformation to Revitalize Healthcare System” (2024) 17 Medical
Journal of Dr D Y Patil Vidyapeeth 259
Article Information
LEGAL REGIMES FOR MEDICAL NEGLIGENCE IN INDIA: A CRITICAL ANALYSIS ON THE NECESSITY OF A COMPREHENSIVE LEGAL FRAMEWORK
Authors: ADITYA GOYAL, AKSHITA GOYAL
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/10/21
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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- License CC 4.0
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