Meaning of Negligence
According to Halsbury’s Laws of England Ed.4 Vol.26 pages 17-18, the definition of Negligence is as under:-
“22. Negligence : Duties owed to patient. A person who holds himself out as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case: a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment (b) A breach of any of these duties will support an action for negligence by the patient (c).”
Negligence comprises of
(i)a legal duty to exercise due care on the part of the party complained of;
(ii) breach of the said duty ; and
(iii) consequential damage.
From these general statements, it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet.
♦To establish liability it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.
♦A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC 2377 or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.
♦There may be a few cases where an exceptionally brilliant doctor performs an operation or prescribes a treatment which has never been tried before to save the life of a patient when no known method of treatment is available. If the patient dies or suffers some serious harm, should the doctor be held liable? In our opinion he should not. Science advances by experimentation, but experiments sometime end in failure e.g. the operation on the Iranian twin sisters who were joined at the head since birth, or the first heart transplant by Dr. Barnard in South Africa. However, in such cases it is advisable for the doctor to explain the situation to the patient and take his written consent[Martin F. D’ Souza vs Mohd. Ishfaq on 17 February 2009]
The only assurance which a professional can give is that he is professionally competent, has requisite skill and has undertaken the task entrusted to him with reasonable care.
in Bolam vs. Friern Hospital Management Committee (1957) 1 WLR 582 as follows :
“Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill….. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”
In Poonam Verma v. Ashwin Patel & Ors. (1996) 4 SCC 332 where the question of medical negligence was considered in the context of treatment of a patient, it was observed as under:-
“40. Negligence has many manifestations – it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or Negligence per se.”
(1) Negligence is the breach of a duty caused by 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ’duty’, ’breach’ and ’resulting damage’.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of
knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam’s case  1 W.L.R. 582, 586 holds good in its applicability in India.
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
(6) The word ’gross’ has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be ’gross’. The expression ’rash or negligent act’ as occurring in Section 304A of the IPC has to be read as qualified by the word ’grossly’.
(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.
In view of the principles laid down hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr. Suresh Gupta’s case (2004) 6 SCC 422 and re-affirm the same.
The error of Judgement :
M/s Spring Meadows Hospital and Anr. v. Harjol Ahluwalia through K.S. Ahluwalia and Anr. (1998) 4 SCC 39 is again a case of liability for negligence by a medical professional in civil law. It was held that an error of judgment is not necessarily negligence. The Court referred to the decision in Whitehouse & Jorden,  1 ALL ER 267, and cited with approval the following statement of law contained in the opinion of Lord Fraser determining when an error of judgment can be termed as negligence:-
“The true position is that an error of judgment may, or may not, be negligent, it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary
care, might have made, then it is not negligence.”
General Direction before taking cognisance
Martin F. D’ Souza vs Mohd. Ishfaq(2009) 3 SCC 1 on 17 February, 2009
We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the doctor/hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew case, otherwise the policemen will themselves have to face legal action.
Criminal Liability of Negligence
The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals.
This court in Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra (1965) 2 SCR 622, while dealing with Section 304A of IPC, the following statement of law by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap (1902) 4 Bom LR 679, was cited with approval:-
“To impose criminal liability under Section 304A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another’s negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non.
304A. Causing death by negligence—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.
Traditionally, before court directed payment of tort compensation, the claimant had to establish the fault of the person causing injury or damage. But of late, it shall appear from different judicial pronouncements that the fault is being read as because of someone’s negligence or carelessness. Same is the approach and attitude of the courts while judging the various liability of the employer for negligence of the employee. Negligence is the omission to do something which a reasonable man is expected to do or a prudent man is expected not to do. Whether in the facts and circumstances of a particular case, the person causing injury to the other was negligence or not has to be examined on the materials produced before the Court. It is the rule that an employer, though guilty of no fault himself, is liable for the damage done by the fault or negligence of his servant acting in the course of his employment. In some case, it can be found that an employee was doing an authorised act in an unauthorised but not a prohibited way. The employer shall be liable for such act, because such employee was acting within the scope of his employment and in so acting done something negligent or wrongful. A master is liable even for acts which he has not authorised provided they are so connected with acts which he has been so authorised. On the other hand, if the act of the servant is not even remotely connected within the scope of employment and is an independent act, the master shall not be responsible because the servant is not acting in the course of his employment but has gone outside
Kusum Sharma & Ors vs Batra Hospital &Med.Research [ 10 February 2010]
Section 21 of the Consumer Protection Act, 1986 -The appellants attributed death of Shri Sharma because of negligence of the doctors and the hospital. The appellants alleged that the informed consent was completely lacking in this case. The appellants also had the grievance that they were not told about the possible complications of the operation.They were told that it was a small and specific surgery, whereas, the operation lasted for six hours. The appellants alleged that pancreatic abscess was evident as a result of pancreatic injury during surgery. The appellants further alleged that there was nothing on record to show that Dr. Kapil Kumar, respondent no. 3 possessed any kind of experience and skill required to undertake such a complicated operation. The appellants also had the grievance that they were not informed in time of the damage caused to the body of pancreas and the removal of the spleen . Held -We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.
Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
Supreme court Cases
Petition filed by the appellant under Section 482 CrPC for quashing the criminal proceedings initiated against her under Section 304-A IPC was dismissed-SLP-Accused is a Surgeon on Call-Held: it cannot be said that the appellant is guilty of criminal negligence. At best it is an error of judgment. No case of committing a rash and negligent act contemplated under Section 304-A IPC is made out.
Defence allowed: Error of judgment
M/s Spring Meadows Hospital and Anr. v. Harjol Ahluwalia through K.S. Ahluwalia and Anr. (1998) 4 SCC 39
The Hospital is the appellant in Civil Appeal-Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and in some situations even the principle of Res ipsa loquitur can be applied. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing of his duties properly.
Consumer Defined: In the present case, we are concerned with clause (ii) of Section 2(1)(d). In the said clause a consumer would mean a person who hires or avails of the services and includes any beneficiary of such services other than the person who hires or avails of the services. When a young child is taken to a hospital by his parents and the child is treated by the doctor, the parents would come within the definition of consumer having hired the services and the young child would also become a consumer under the inclusive definition being a beneficiary of such services. The definition clause being wide enough to include not only the person who hires the services but also the beneficiary of such services which beneficiary is other than the person who hires the services, the conclusion is irresistible that both the parents of the child as well as the child would be consumer within the meaning of Section 2(1)(d)(ii) of the Act and as such can claim compensation under the Act.
Mental agony of Parents: the mental agony of the parent will not be dismissed in any manner merely seeing the only child living a vegetative state on account of negligence of the hospital authorities on a hospital bed. The agony of the parents would remain so long as they remain alive and the so-called humanitarian approach of the hospital authorities in no way can be considered to be a factor in denying the compensation for mental agony suffered by the parents
- State of Haryana vs. Smt. Santra (2000) 5 SCC 182:: AIR 2000 SC 3335
- Indian Medical Association vs V P Santha. AIR 1996 SC 550
- Observations of Lord President Clyde in Hunter vs Hanley (1955) SLT 213. In: Nathan HL. Medical Negligence.London: Butterworths; 1957.
- Whitehouse vs. Jordan (1981) 1 All ER 267 the House of Lords.
- Smt J S Paul vs Dr (Mrs) A Barkataki (2004) 10 CLD 1 (SCDRC – MEGHALAYA).
- Dr Prem Luthra vs Iftekhar (2004) 11 CLD 37 (SCDRC – UTTARANCHAL); Mrs Savitri Devi vs Union of India IV (2003) CPJ 164; Dr Devendra Madan vs Shakuntala Devi I (2003) CPJ 57 (NC).
- Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole AIR 1969 (SC)128
- Dr Janak Kantimathi Nathan vs Murlidhar Eknath Masane 2002 (2) CPR 138.
- Poonam Verma vs Ashwin Patel (1996) 4 SCC 332
- House of Lords decision in R vs Adomako (1994) 3 All ER 79
- Calcutta Medical Research Institute vs Bimalesh Chatterjee I (1999) CPJ 13 (NC)
- Kanhaiya Kumar Singh vs Park Medicare & Research Centre III (1999) CPJ 9 (NC)
- Mohanan vs Prabha G Nair and another (2004) CPJ 21(SC), of 2004 Feb 4.
Section 304A read with Section 34 of the Indian Penal Code-Complaint that death of patient[ the deceased Jiwan Lal was suffering from cancer in an advanced stage and as per the information available] was occurred due to the carelessness of doctors and nurses and non-availability of oxygen cylinder and the empty cylinder was fixed on the mouth of the patient and his breathing was totally stopped hence my father died. The Judicial Magistrate First Class, Ludhiana framed charges under Section 304A, IPC against the two accused persons, Both of them filed a revision in the Court of Sessions Judge submitting that there was no ground for framing charges against them. The revision was dismissed. The appellant filed a petition in the High Court under Section 482 of the Code of Criminal Procedure praying for quashing of the FIR and all the subsequent proceedings.It was submitted before the High Court that there was no specific allegation of any act of omission or commission against the accused persons in the entire plethora of documents comprising the challan papers filed by the police against them. The learned single Judge who heard the petition formed an opinion that the plea raised by the appellant was available to be urged in defence at the trial and, therefore, a case for quashing the charge was not made out. Vide order dated 18.12.2002, the High Court dismissed the petition. An application for recalling the abovesaid order was moved which too was dismissed on 24.1.2003. Feeling aggrieved by these two orders, the appellant has filed these appeals by special leave. Held : It is a case of nonavailability of oxygen cylinder either because of the hospital having failed to keep available a gas cylinder or because of the gas cylinder being found empty. Then, probably the hospital may be liable in civil law but the accused appellant cannot be proceeded against under Section 304A IPC on the parameters of Bolam’s test.
Defence allowed: Institutional failure
Arrest : A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.