Mukul Bansal: Medical Negligence In India
Medical negligence is defined as the negligent, improper, or unskilled treatment of a patient by a health care professional. On the other hand, Negligence is an offense under tort, IPC, Indian Contracts Act, Consumer Protection Act and many more. Negligence has been enshrined under section 304-A of the Indian Penal Code. Section 304-A of the code states that:
“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”
From the section it is clear that negligence especially medical negligence has the following essentials:
- Doctor’s duty to attend the patient with care:
It is the duty of the doctor to take utmost care of their patient and not to neglect their welfare. A doctor or a medical practitioner when attends to his patients, owes him the following duties of care:
- A duty of care in deciding whether to undertake the case
- A duty of care in deciding what treatment to give
- A duty of care in the administration of the treatment
Held in, Bolam v Friern Hospital Management Committee 
“All medical professionals have a duty of care towards patients in so much as they must do what they can to keep them safe from harm. If a doctor, nurse, dentist, radiographer or any other medical professional fails in their duty to provide a reasonable standard of care towards a patient then it can lead to a medical negligence compensation claim. The standard test to measure whether there has been a breach in their duty of care is known as the Bolam test”
Looking into these aspects it becomes the primary duty of every docter to take a good care of his patient. Even by going out of the way many a times especially in looking after the treatment for her rare disease.
- Is Doctor acting in a negligent manner?
It is to be kept in mind that in the cases of gross medical negligence the principle of res ipso loquitur is to be applied. The principle of res ipso loquitur is said to be essentially an evidential principle and the said principle is intended to assist the claimant. Res Ipso loquitur means things speaks for itself; while deciding the liability of the doctor it has to be well established that the negligence pointed out should be a breach in due care which an ordinary practitioner would have been able to keep.
The same essentials have also been reiterated by the Hon’ble Supreme Court in the case of Kusum Sharma v. Batra hospital 
The medical professionals are often called upon to adopt a procedure that involves higher risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken a higher element of risk to redeem the patient out of his suffering which did not yield the desired result may not amount to negligence. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence.
In Gian chand v. Vinod kumar Sharma it was held that shifting of the patient from one ward to another in spite of requirement of instant treatment to be given to the patient resulting in damage to the patient’s heath then the doctor or administrator of the hospital shall be held liable under negligence.
ROLE OF CONSENT
Consent plays a very important role in the case of medical negligence because only then a doctor can prove that the act was done under the permission of the patient or the family members. Consent has been explained under section 88 of the Indian Penal code. Section 88 in The Indian Penal Code states that:
“An Act not intended to cause death, done by consent in good faith for person’s benefit.—Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.”
A clear reading of section 88 draws forward the following essentials:
- No Criminal Intention to cause Death
Section 88 clearly states that the doer of such an act should not have any intention to cause death to such other person for whose benefit the act is done. It is important to bring to notice that emphasis is on ‘Intention’ and not on knowledge, therefore even if the person had the requisite knowledge that the act is likely to cause death, it will absolve the doer from doing any such act under section 88 of the code. The same is also clear from the illustration enshrined under section 88 of the code.
- For the benefit of the person
The act must be done for the benefit of such a person in order to avail the exemption from criminal liability under section 88. The benefit is also not only restricted to pecuniary benefits as enshrined under section 92.
In G.B. Ghatge v. Emp the accused, a school teacher, gave five or six strokes by cane to a boy student about fifteen years of age who was found guilty of misconduct in his class. The court held that the teacher could not be held guilty under section 323 of the Code as he had acted in good faith for the benefit of the boy, and as delegate of the parent he was protected under section 88 of the Code since the punishment was to correct the boy and to maintain school discipline for which the parent or guardian must be held to have an implied consent. If, however, a teacher uses unreasonable and immoderate force against a student, he cannot be protected under this section and his act cannot be held to be done in good faith.
Under section 88, consent from such a person for whose benefit such act is done is required. However the consent may be oral or written.
In case of Samira Kohli vs. Dr. Prabha Manchanda and Ors. I the apex court held that consent given for diagnostic and operative laparoscopy and “laporotomy if needed” does not amount to consent for a total hysterectomy with bilateral salpingo opherectomy. The appellant was neither a minor nor mentally challenged or incapacitated. As the patient was a competent adult, there was no question of someone else giving consent on her behalf. The appellant was temporarily unconscious under anesthesia, and as there was no emergency. The respondent should have waited until the appellant regained consciousness and gave proper consent. The question of taking the patient’s mother’s consent does not arise in the absence of emergency. Consent given by her mother is not a valid or real consent.
- Good faith
The most important ingredient is that the act by the doer must be done in good faith without any intention to cause death or any grevious hurt. Good Faith has been defined under section 52 of the Indian Penal Code which states that:
“Any act done in due care and attention”
In R.P. Dhanda v. Bhurelal, the appellant, a medical doctor, performed an eye- operation for cataract with the patient’s consent. The operation, however, resulted in loss of sight. It was held that since the doctor had acted in good faith for the benefit of the patient, he was protected under section 88 of the Code.
In case of medical negligence, this due care and attention is also to be accompanied by sufficient knowledge and experience.
Bolam v Friern Hospital Management Committee  1 WLR 582
 Kusum Sharma v. Batra hospital (2010)3 SCC480
 A.I.R. 2008 H.P. 97
 G.B. Ghatge v. Emp 1949 CriLJ 789
 Samira Kohli vs. Dr. Prabha Manchanda and Ors. (2008) CPJ 56 (SC),
 R.P. Dhanda v. Bhurelal 1987 CriLJ 1316