This Article is written by Hitakshi Maggo from Fairfield Institute of Management and Technology.

Medical Negligence is something which is serious in nature, whenever someone get hurt or injured they seek someone’s professional’s help (doctors) whom they trust fully and want to be okay but contrary to this when doctors or medical staff negligently did something wrong which uplifts other persons problems then it is known as medical Negligence. Simply put, negligence is a breach of a legal duty of care. Negligence entails a lack of caution in a circumstance that necessitates caution. A breach of this duty gives the patient the right to sue for negligence. The individual providing medical advice and treatment must have the skill and knowledge to deliver and administer the appropriate treatment. Nobody is flawless, and even the most known and experienced doctor can make an error in identifying or diagnosing an illness.  Error commissioning or Negligence in the medical field could result in small injuries or even catastrophic injuries, and these errors could even result in death. It is human to make mistakes, but it is neglect to repeat the same error due to carelessness. The basic reason for medical negligence is that doctors’ or medical professionals’ carelessness is frequently demonstrated in a variety of situations where reasonable care is not done during diagnosis, procedures, or the injection of anaesthetic, for example.

Medical negligence is defined as a medical practitioner’s poor or unskilled treatment of a patient. This covers a nurse’s, physician’s, surgeon’s, pharmacist’s, or any other medical practitioner’s negligence in providing care. Medical malpractice occurs when patients are injured as a result of therapy provided by a doctor or other medical practitioner or health care provider.


In the case of medical malpractice, the plaintiff must establish the following elements:

  • Duty of care on the part of defendant
  • There has been a breach of that duty by the defendant.
  • As a result of the breach, the plaintiff sustained losses.

Doctors have certain responsibilities to their patients:

  • It is your responsibility to attend to the patient.
  • Obligation to take a reasonable level of caution.
  • The responsibility to decide what treatment should be delivered.
  • It is your responsibility to select how treatment should be administered.


This maxim means the things speaks for itself, In terms of medical malpractice, it refers to instances in which a doctor’s treatment fell significantly short of established standards of care, implying negligence.

The following is what the doctrine assumes:

  • The nature of the harm indicates that it could not have occurred without negligence.
  • There was no evidence that the patient was involved in any way with the injuries
  • The damage occurred in conditions that were under the doctor’s observation and control.

Sima Sunil Chaudhry v. Dr NileshLathiDCDRC, 2007/159

The aggrieved suffered postpartum haemorrhage with haemoperitium, severe anaemia, septicemia shock, and acute renal failure as a result of the procedure, so the complainant sued the doctor for medical negligence, and after all arguments and evaluation of evidence and facts, the commission came to the conclusion that the medical practitioner is simply not liable for medical negligence just because The standard of care has to be determined using the information available at the time of the incident.Because the patient did not respond favourably to the doctor’s operation or therapy right away, the doctor could not be held accountable for negligence under the res ipsa loquitur theory.

The following must be done in order to prove a res ipsa case:

  • It is well knowledge that if a case appears to be impossible to occur without the doctor’s negligence, it falls into the category of res ipsa cases.
  • The doctor had complete control over the equipment or method of treatment that caused the injury
  • The injury was one that the victim was unable to assume voluntarily.



Medical malpractice may fall under the jurisdiction of the criminal justice system in particular circumstances. When a doctor or hospital management commits a rash act that causes injury or death to a patient, they will be held liable under Section 304 of the Indian Penal Code, 1860, which states that when a person commits a negligent or rash act that results in a person’s death, they will be sentenced to two years in prison or a fine, or both. In criminal law, however, it is necessary to establish the doctor’s purpose and intent. The degree or amount of negligence is a factor in criminal law.

Provisions as per IPC

If a person conducts a hasty or careless act that endangers human life or the personal safety of others, he or she is guilty of Section 337 of the Indian Penal Code, 1860. The individual will be sentenced to a maximum of six months in prison or a fine of Rs. 500, or both.

If a person conducts a hasty or careless act that endangers human life or the personal safety of others, he or she is guilty under Section 338 of the Indian Penal Code, 1860. The offender will be sentenced to two years in prison or a fine of one thousand rupees, or both.

Kurban Hussein v. The State of Maharashtra (1965) 2 SCR 622

The following is taken from Section 304 (A) of the I.P.C., 1860:

“In order to impose criminal culpability under Section 304-A, the death must have occurred as a direct result of the accused’s reckless and negligent act, without the assistance of another person.”


A complaint for Medical Negligence can be filed under the Consumer Protection Act or by bringing a lawsuit in a civil court against a private medical facility or a practitioner who is not providing free medical care.

Indian Medical Association vs V.P Shantha and others  AIR 1996 SC 550

The court ruled that any patient who has been harmed by a failure in care from a government or private hospital can sue for damages under the Consumer Protection Act of 1986. In the case, the following points were discussed:

  • Consultation, diagnosis, treatment, and surgical services provided by a medical practitioner to a patient would fall under the definition of “service” as specified in section 2 (1) of the Consumer Protection Act, 1986.
  • Medical services provided without charge will be exempt from the provisions of the act. The Consumer Protection Act of 1986 will not cover services provided by a doctor under a contract for personal service. When the expenses are covered by the insurance provider, the hospital and doctors cannot claim as a free service.


Medical practitioners are entitled to protection as long as they carry out their responsibilities with reasonable ability and competence and in the best interests of the patients. Medical providers must prioritise the patients’ best interests and welfare. It is the civil society’s duty and obligation to ensure that medical professionals are not harassed or humiliated unnecessarily so that they can execute their professional tasks without fear. Negligence is the failure to perform a duty by failing to do something that a prudent and Based on the rules that generally govern the conduct of human affairs, a wise and reasonable person would do, or by doing something that a cautious and reasonable person would not do. As a result, some liabilities exist in order to correct any errors or deliver justice.In the case of V.N.Shrikhande vs Anita Sena Fernandes(2011) 1 SCC 53In circumstances of medical negligence, no straitjacket formula can be adopted for assessing whether the cause of action has accrued to the consumer,” the Supreme Court had said. Each case will be decided based on its own set of facts. If the effect of the doctor’s or anybody affiliated with him’s conduct is obvious, the cause of action will be presumed to have arisen on the date the act of negligence was committed.


Annals of Indian Academy of Neurology, Wolters Kluwer – Medknow Publications, Medical negligence: Indian legal perspective, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5109761/

Medical negligence: Coverage of the profession, duties, ethics, case law, and enlightened defense – A legal perspective, M. S. Pandit and ShobhaPandit, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779963/

Asiindia, https://asiindia.org/medical-negligence-the-judicial-approach-by-indian-courts/

Dayashankartiwari, 14 nov. 2013, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2354282