Legal Consequences of Medical Negligence: What is The Difference between Negligence and Gross Negligence?




Can you trust your Doctor?

Can you trust your Doctor?

Do you feel like your health is deteriorating day by day though the doctor says your health is improving? Have you lost faith in your doctor? If you feel like you are not getting the proper medical treatment though you are spending a lot of money, at the end of the day you would want one thing i.e., justice. You would want your money back, may be you would like to get compensation for deterioration of your health and harassment.

But you are not allowed to charge him criminally for your dissatisfaction of the service rendered. As per the Indian Courts it will be total injustice to the medical practitioners to criminally charge them for their mistakes which may lead to a dire consequence, for example even death of a patient. It is so because human beings commit mistakes and though we treat the doctors as God, they are mere human beings.

In India the doctor- patient relationship is considered to be a very special and delicate kind of service provider- customer relationship where the doctor has the final say regarding the delivery of service as a customary practice. The Supreme Court hasheld that medical practitioners, government hospitals, private hospitals and nursing homes are covered under consumer law if it’s not a charitable medical clinic where services are rendered free of charge to everybody availing of the said service (Indian Medical Association v. V. P. Shantha). So as a consumer if you are unsatisfied you can go to a consumer court under the Consumer Protection Act, 1986. The relationship between such a consumer and a service provider is very delicate as it is built on the foundation of trust. The patient trusts the doctor with his life and the doctor has the duty to ensure best interest of the patient. Unlike in America where the relationship is based on the doctrine of informed consent (See more about informed consent in India, informed consent in other jurisdictions), here the Indian doctors always take the decision of the process of the treatment and generally the patient has no say in the decision making process. So basically if something goes wrong with the treatment then the doctors are responsible.

Medical Malpractice

Medical Malpractice

Broadly speaking, doctors can be held responsible under:

  • a) Consumer Protection Act, 1986
  • b) Civil negligence, or tort
  • c) Criminal negligence

Remedy under Consumer Protection Act:

At present the best remedy a patient can get is through a consumer forum petition. By treating medical profession as a service under the Consumer Protection Act it is now easier to get remedy for a negligent act of a doctor, which is timely and inexpensive, when compared to filing a civil or criminal suit or a writ petition. This is a very welcome development, as it ensures a remedy to aggrieved parties within 150 days from the file of complaint.

Remedy under Tort law:

Remedy is also available in tort law. Like all negligence claims under tort law, it requires the satisfaction of three criteria – a duty of care, a breach of duty and damages. However, in the specific context of the medical profession, the components duty of care and standard of care are assessed as per the professional standards of the medical community. Furthermore, it has to be taken into account that the medical science is an imprecise science, and it is next to impossible to be completely error free. In addition, there are frequently more than one available options of treatment, with medical practitioners having individual preferences. Therefore, it is not possible to single out a single stringent set of reasonable course of treatment or degree of care.

A doctor will not be held liable for professional negligence he follows a practice accepted to be proper by a responsible body of medical opinion, even if there is another body of medical experts holds a different view regarding that treatment or process.

Since such matters require determination of facts which are highly technical, a judge cannot rely upon his own layman logic or reasonableness; instead, he has to rely upon an expert opinion. However, a judge is permitted to choose between two conflicting expert opinions and can reject one of those opinions if it is not logically defensible.
These principles were laid down in two English cases Bolam v. Friem Hospital Management Committee, 1957 & Bolitho v. City and Hackney Health Authority, 1998).

Criminal Negligence: A matter beyond mere compensation

Gross Negligence

Gross Negligence


Criminal negligence matters are dealt under Ss 337(hurt), 338(grievous hurt) and 304A(culpable homicide not amounting to murder) of the Indian Penal Code. In order to prosecute a medical practitioner one has to prove malicious intention or gross negligence i.e., a high degree of negligent conduct. Moreover to start a criminal proceeding against a medical practitioner there has to be a prima facie evidence in the form of a credible opinion from a competent doctor, preferably a government doctor in the same field of medicine supporting the charges of rash and negligent act. The liability of a doctor always depends on the circumstances of a particular case. A mere lack of necessary care, attention or skill cannot be a good enough reason to prosecute a doctor as those will not constitute gross negligence. In English law this gross negligence has been defined as to show such disregard for life and the safety of others as to amount to a crime against the state and conduct deserving of punishment (R v. Bateman, 1925). The use of medical science is not error free and there are varieties of treatment method favored by various practitioners so it is not possible to set a stringent set of reasonable process of treatment or degree of care. Risk of failure is always there and we cannot take the benefit without taking any risk.

So something more than a mere negligence has to be proved in order to prosecute a doctor. In order to establish criminal negligence in diagnosis or treatment on the part of the doctors he has to be proved guilty of such failure as no doctor of ordinary skill would have been guilty of, if he was acting with reasonable care. It is a matter beyond mere compensation. It involves an utter disregard to the life and safety of others and a conduct deserving of punishment where the degree of negligence is much higher than that of a civil negligence case.

Immunity available to the Doctors:

  1. Doctors cannot be prosecuted without prima facie evidence in the form of a credible opinion from a competent doctor, preferably a government doctor in the same field of medicine supporting the charges of rash and negligent act.
  2. Cannot be arrested in a routine manner
  3. Cannot be arrested unless his arrest is necessary for
    1. Furthering the investigation
    2. Collection of evidence
    3. Producing him in front of the court to face the prosecution (In satisfaction of investigating officer only)



About Sanghita

Pursuing B.A. LL.B., Mass Communication, Security laws(Hons.) at National Law University Orissa.
This entry was posted in Criminal Negligence, Law, Medical Negligence and tagged , , . Bookmark the permalink.
  • guest

    Negligence has always been rampant. When I was very young, I had an accident, and a surgery followed. However, due to negligence at the time of the operation, an infection occurred and had to ampute the toes of left foot.
    Another I know, a towel was left inside the intestine after surgery and the lady still suffering to this day. The medical negligence laws should be strictly adhered to.

    • http://iPleaders.in Sanghita

      I am truly sorry for your loss. Don’t know how to express it but thank you for sharing it with me.

      As a law student I am curious if your family had filed any consumer suit for the loss you have suffered and if you had sought any legal remedy what was the outcome of it?

      The community of medical practitioners enjoys loads of privileges both legally and socially as I have discussed above in my post. So their conduct attracts a high degree of responsibility otherwise they should be held liable for their act according the law.

      I have also experienced irresponsible behaviour of the doctor and I am sure there would be many people like us. I strongly feel that they are irresponsible because they can easily get away with their misconducts as people hardly stand up and protest. Being a victim of medical negligence feels really helpless & depressing. Main problem is with the enforcement of the law. Making a person responsible for his misconduct is the best way to refrain him to commit the same mistake again and at the same time the victim gets compensated. Victim of medical negligence must be huge in number compared to the law suits filed relating it because we hardly go for a law suit.

      Because we believe it is time consuming, because we don’t know how to file a suit, because we don’t know that we can file a suit ourselves without any help of a lawyer in a consumer forum, because we believe law is for aliens and nothing useful for us, for the general people.

      Our aim of these posts are to make you aware of the laws and to make you believe that those are created for us, for a healthy disposal of problems and to sought remedy if any injustice is caused to us without making it unnecessarily complicated.

  • Tania Sarcar

    i am a law graduate too. graduated this year. it ws 1988 when this  happened and at that point of time we were not that aware. later when in law school, i realized a lot could have been done. its too late now. i don’t even think the doctor is alive now