1. Medical Negligence and Law.
 Contract Act 1872.
 Law of Tort.
 Consumer Protection Act 1986.
 Indian Penal Code 1860.
103/17/14

2. Medical Negligence.
 Recently Supreme Court awarded around 7
cores damages against three doctors and
AMRI Hospital Calcutta. Highest ever in the
history of India.
 Every year around 98000 cases of Medical
negligence occurs.
 Filling of Medical Negligence case is on the
rise.
203/17/14

3. Duty of Doctor.
 Laxman Joshi v Babu Godbole, AIR 1969 SC
128. reduction of fracture by Doctor without
administration of anesthesia.
 A duty of care – Take or not to take case.
 A duty of care- Deciding the treatment.
 A Duty of care- Administration of treatment.
303/17/14

4. Medical Negligence.
 Bolam v Frien Hospitals Management
Committee- “A doctor is not guilty of
negligence if he has acted in accordance with
practice accepted as proped by reasonable
body of medical man skilled in that
particular art”
403/17/14

5. Medical Negligence.
 Bolitho v City and Hackeny Health Authority
(1997) 4 All ER 771-doctors does not escape his
liability merely by adopting one of the
standard practice. Doctor must have applied
their minds to comparative risks and benefits
of accepted standard and chosen the right
one.
 Bolam ratio protects Doctors and Bolitho
favors patient.
503/17/14

6. Medical Negligence.
 Indian Supreme Court followed ratio of
Bolam.
 Supreme Court in Malay Kumar v Dr
Sukumar Mukerjee,(2009)9 SCC 332, followed
Bolitho case- quality of care to be expected to
be in tune with proportionate to reputation
of hospitals.
 liable-over dose, not informing side effects,
not taking extra care in high mortality.
603/17/14

7. Doctors Discretionary.
 Reasonable care to be determined by
taking the circumstances in which
doctor is placed.
 Where there is different course of
treatment-doctor has discretionary.
 Rule of error judgment.
 Difference between normal and
emergency course.
703/17/14

8. Contract Act.
 No legal duty to treat the patient except
contract.
 Advice and consultation through TV and News
Paper-not contract.
 The informed consent.
 No Assurance of Success of Treatment.
 Discretionary power to chose mode of
treatment.
803/17/14

9. Duty of patient.
 Necessary truthful information.
 Duty to follow the instructions.
 Duty to follow up the further
treatment.
 Consultation in Emergency.
903/17/14

10. Exemptions from Consent.
 Emergency.
Emotionally and psychologically
weak patient.
Wavier.
1003/17/14

11. Tort.
 Independent of Contract.
 Treatment without consent amounts
Assault and Battery.
 Treatment can not continued
against wish of patient.
 In case of unconscious patient-
guardian should consult doctor.
1103/17/14

12. Tort.
 Passive euthanasia is permissible.
 Standard of care is reasonable.
 Vicarious liability is applicable,
even hospital can be sued.
 Doctrine of Ipsa loquitur-facts it self
speaks.
03/17/14 12

13. Contributory Negligence.
 Contributory negligence-patient failed
to take care about himself.
 Choosing wrongful doctor which is
apparent.
 Failure to furnish necessary information.
 Refusal to submit for further test.
1303/17/14

14. Contributory Negligence.
 Failure to follow doctor instructions.
 Failure to Mitigate the Harm.
 Contributory Negligence is not absloute
defense.
 Contributory Negligence is applicable to
conscious patient.
 In case of non-Conscious patient, duty is on
doctor or guardian.
 Contributory Negligence of guardian is
attributed to patient.
1403/17/14

15. Other Defense.
 Volienti non fit injuria- defense of consent.
 It is applicable to risk involved in the
treatment without negligence of doctor.
 Inevitable Accident-in the course of
operation- unexpected response which
requires higher care than prescribed by
law.
 Emergency situation-doctor need not have
necessary qualification and specialization.
1503/17/14

16. Consumer Act 1986.
 Time Bound Remedy.
 Economical Remedy.
 Simple Procedure.
 Free service and service under personal
contract excluded.
 Indian Medical Association v. Shanta, AIR
1996 SC 550- Consideration should be fee not
tax.
1603/17/14

17. Consumer Act 1986.
 G.M. Central Railway(2007) 4 SCC 596
railway employees are consumer for railway
hospitals - service is free of cost.
 Kishore Lal v Chairman ESIC (2007) 4 SCC 579
held-beneficiary of ESI hospital is consumer.
 Martin F.D’Souza v Mohad Ishaq, (2009) 3 SCC
1-Negilgence-Prima Facie Evidence-Refer the
matter to Expert Committee-Negative Report-
not proceed with case.
03/17/14 17

18. Consumer Protection Act 1986.
 Supreme Court-Kishan Rao v Nikil Super
Speciclity Hospital (2010) 5 SCC 513, wrongful
treatment –not every case has to be referred
to expert committee. Earlier ratio over-ruled.
 Parmanand Katara v Union of India AIR
1989 SC 2039-No refusal of medical
treatment to accident patient in need.
 Sparing Meadow Hospital(1998) 4 SCC 39-
injuction by unqualified Nurse-vegetative
state-17.5 Lakh.
03/17/14 18

19. Consumer Act 1986.
 Kantha Motecha v United Insurance Co,
Maharashtra State commission-held foetus is
consumer.
 Standard of care needs to be enhanced.
 District Forum pecuniary Jurisdiction needs to
be enhanced.
 It must be expanded to Taluka level.
 One of the member should be doctor.
 Compulsory insurance for Hospitals and clinic
like motor vehicle.
03/17/14 19

20. IPC.
 Section 304-A-Rash and negligent Act
causes death not amounting culpable.
 Judiciary made difference between civil
and criminal negligence.
 Negligence should be gross and
recklessness.
 Negligence directly related to existing
facility, infrastructure, and availability of
staff.
03/17/14 20

21. IPC
 Two Judges Bench Suresh Gupta v. Govt of
NCT of Delhi-held 304A does not include word
gross and recklessness.
 Three judges bench in Jacob Mathew v state of
Punjab, (2005) 3 SCC 576-held negligence
should be gross and recklessness.
 No Private complaint unless there is prima-
facie evidence from expert.
 Police FIR only after Medical Expert Opinion.
03/17/14 21

22. IPC.
 Doctor need not be arrested, unless not co-
operating in investigation, likely to escape
and for collecting evidence.
03/17/14 22