Abstract
The medical practitioners including doctors, surgeons, nurses have a special duty of care and professional conduct in the field of medical practice, this duty is considered both ethical and legal and failure to compliance usually triggers far-reaching legal consequences starting from mere suspension to permanent revocation of medical license. However, the incidents of medical negligence is not a new phenomenon or uncommon happening. Our Indian Statutes like IPC 1860 [now governed by BNS 2023], CrPC 1973 [now governed by BNSS 2023], The Indian Medical Council Act, 1956, Dentists Act, 1948, Consumer Protection Act 2019 with recent amendments and many more, have provide for a more stricture procedure for adjudicating cases on the matter of medical negligence and have imposed even more stricter penalties for the convicted offenders. From time to time the Supreme Court and the State High Courts have interpreted the meaning and scope of the term medical negligence, broadening, the arena of the duty of care and professional diligence of the medical experts and upholding the patient’s rights in cases of gross negligence of medical duties. But although despite of these developments loopholes still exists in the proper execution and implementation of these provisions. Through this blog an attempt has been made to explore the core of the matter of medical negligence, its meaning, types, legal frameworks and remedies available to the aggrieved individuals through landmark cases and legal developments and the present scenario of the problem in the contemporary recent times.
Keywords: Medical Negligence, Types, Legal Remedies, Medical Councils, Consumer Protection Act, 2019.
Introduction
Medical Negligence (also known as Medical Malpractice) refers to incidents wherein doctors injure their patients as a result of an act or omission while working in their professional capacity. While there is no definition under Indian Law, medical negligence is widely recognized as the means by which to establish liability against a physician. In order to prove medical negligence, a plaintiff must prove:
(1) that the defendant had a legal duty to exercise reasonable care to avoid injuring the plaintiff, (2) that the defendant breached that duty, and
(3) that the breach resulted in injury to the plaintiff.[1]
In the case Malay Kumar Ganguly v. Sukumar Mukherjee (AIR (2010) SC 1162)[2], the Supreme Court of India had an extensive discussion of medical negligence and the required standard of care when engaging in treatment of individual patients. The Court has established some principles to help in the process of determining medical negligence or insufficiency of service:
a) No Guarantee of Cure by Physicians: The Court held that no physician or surgeon can guarantee the cure of a patient. The uncertainties involved in the medical procedures and the responses of the patients indicate that even with the best medical care, the desired results cannot be guaranteed.
b) Required Standard of Skill and Care: The judgment held that physicians must use a fair and reasonable standard of skill in their practice. This is not the best standard of skill but requires a minimum standard of competency and knowledge required of a professional.
c) Choice of Treatment Modalities: When there are several treatment modalities available, the choice of one of them and its administration with due care and caution cannot be negligence. This is based on the understanding that medical practice is a complex decision-making process where there are several possible options.
d) Neglect in Treatment and Diagnosis: Neglect may arise due to the failure to act in accordance with the standard and reasonable level of skill and care. In particular, if a doctor fails to use the skill required while diagnosing a disease and thus adopts wrong treatment, then it may be considered as neglect.
e) Strategy in Complicated Cases: The Court also held that in such complicated cases where the medical issues involved are complex, it would be very cautious in holding a doctor negligent if the doctor had made his best efforts to the best of his knowledge.
Types Of Medical Negligence
The most common types of medical negligence can be listed as follows: [3]
a) Misdiagnosis or Delayed Diagnosis: Health care providers can commit malpractice by improperly diagnosing a patient with a simple medical problem or failing to provide timely diagnosis of a serious medical condition that leads to complications or a late diagnosis of that condition.
b) Surgical Errors: There are multiple ways that health care providers could cause harm during surgery. Some examples of surgical malpractice include performing surgery on the incorrect body part, leaving a surgical instrument inside a patient, or performing an unnecessary surgical procedure. All of these surgical errors can result in significant physical harm to a patient, as well as emotional trauma.
c) Medication Errors: Prescribing the wrong medication or dosage, failing to recognize potential allergies in patients, and failing to identify possible drug interactions also constitute malpractice. Each of these types of errors can cause damage to the patient's health or well-being.
d) Birth Trauma: Negligence in pregnancy and delivery may result in birth trauma to the mother and child. Failure to recognize and treat complications and monitor patients may have long-term consequences.
e) Lack of Informed Consent: Patients should have the right to make informed decisions about their healthcare. It can be described as negligence when healthcare providers neglect to inform patients about the possible risks, benefits, and alternatives of a medical procedure or treatment.
f) Failure to Follow Up: Medical negligence may also be exhibited by a healthcare provider’s failure to follow up with a patient after a medical procedure or treatment. Lack of follow-up may result in unattended complications or deterioration of existing health conditions.
Legal Steps that must be kept in view while filing a suit on Medical Negligence
Here are some legal steps that must be considered while filing a legal suit on the matter of Medical Negligence: [4]
1) Complaint to the State Medical Council: If you or someone else has suffered because of a negligent doctor; first file a complaint directly with your local State Medical Council. You may also file a complaint with the State's Consumer Court and/or pursue criminal charges against the negligent physician or hospital management.
a. If you're merely looking to get monetary damages filed as an original Complaint to the State's Consumer Court to expedite closure of your case.
b. In certain instances, the State's Consumer Court may modify or suspend a physician's license for reasons arising from the negligent act of the physician.
2) Appointing a Patient - Advocate: (a) The second thing which is very useful in the case of medical negligence is talking to a patient advocate.
b) A patient advocate will explain this case in the mind of the patient and request the patient to take appropriate action and resolve the issue.
c) The Patient Advocate may also assist the patient in case if compensation needs to be done due to negligence in treatment.
Legal Remedies available to the patients in cases of Medical Negligence
In cases of Medical Negligence, the following remedies or solutions can be sought by the patients: [5]
1) Indian Medical Council Act, 1956 and Dentists Act, 1948: The above-mentioned Acts deal with the medical profession of the allopathic physician and dentists in India. The Medical Council of India ("MCI") and Dental Council of India ("DCI") have been formed under the above-mentioned Acts and the state medical/dental councils through which the above-mentioned Acts are administered. The MCI and DCI are the highest councils of the country who possess powers over medical and dental professionals. The MCI and DCI have the authority to recognize the medical qualifications offered by any of the Indian as well as foreign institutions. All medical and dental professionals are required to get themselves registered with the MCI or DCI, as the case may be, to make themselves eligible for practice. The MCI/DCI or the concerned state council, as the case may be, can punish a person who falsely represents himself to be registered with them or is practicing without getting registered with them. The MCI also lays down the codes of professional conduct and code of ethics to be followed by all medical practitioners, which are actionable if breached. [6]
It is possible for a physician to face prosecution for negligent and/or illegal behaviour. Some often occurring (but certainly not all) ways in which a physician engages in negligent and/or illegal behaviour that may lead to prosecution are as follows:
1. Conviction by a Court for a Criminal Offence.
2. Failing to properly prepare and/or maintain records and reports.
3. Engaging in unprofessional conduct with patients.
4. Engaging in or assisting others in performing illegal procedures.
5. Committing any violations of the law regarding the regulation of Drugs and Cosmetics (Drugs and Cosmetics Act, 1940).
6. Accepting or receiving a commission.
7. Using a 'tout' to obtain business.
8. Employing unqualified workers.
9. Advertising for his or her practice.
10. Soliciting or aligning with a drug manufacturer's product.
11. Refusing to provide treatment to someone based on outside considerations.
It should be noted, however, that a physician who commits any of the aforementioned acts may not be compensated by the MCI, DCI, or state councils although the physician may be barred from working as a physician for life if found guilty of the act.
2) Civil Courts: This may be the oldest available remedy for the aggrieved. Thus, an aggrieved person can file an action for the award of damages and compensation against a medical professional for negligence in medicine. The law to sue in a court of law is from the Law of Torts. Tort has been derived from the Latin word "Tortum" meaning twist. It thus refers to the conduct not glaring of law. This is a branch of law that deals with a variety of "torts" or wrongful acts where the wrongdoer violates some legal rights given to some other person. A Tort can be defined as a civil wrong recoverable by an action for unliquidated damages and which is not breach of contract or breach of trust. Damages is therefore the most significant relief for a tort. The basis for Torts may be found in the provisions of section 357 of the Criminal Procedure Code of 1973 (CrPC) and in the Indian Fatal Accidents Act of 1855 (FAA).[7] The FAA was based on the UK Fatal Accidents Act of 1846 with some modifications to fit into the Indian context, and it provides a remedy for loss of earnings suffered by the deceased because they were killed by an actionable wrong.[8] The FAA can be interpreted as an all-encompassing statute pursuant to which the Supreme Court of India awarded damages to heirs of patients who died due to the medical negligence of their treating physicians (Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godhole, AIR 1969 SC 128).[9]
3) Indian Penal Code, 1860: The matters arising even prior to and even in derogation of CPA proceedings are being filed under the Indian Penal Code, 1860 ("IPC"). Medical negligence laws have been amended in respect of Sections 52, 80, 81, 88, 90, 91, 92, 304-A, 336, 337, and 338 of IPC in criminal law. The Supreme Court has held that in order to sustain criminal liability, the degree of negligence has to be more than the degree of negligence required to sustain civil liability.[10] Therefore, in a civil liability case, it may be sufficient if the plaintiff is able to prove that the doctor did not exercise reasonable care in accordance with the adopted standards, but in a criminal case against a doctor, it has to be proved that the doctor was grossly negligent to the point of recklessness (Martin F. D'Souza v. Mohd. Ishfaq (2009) 3 SCC 1).[11]
4) Monopoly Limits and Trade Practices Act, 1969: The act was first enacted under the Consumer Protection Act, before it was repealed and was replaced by the Competition Act 2002. Before enactment of CPA, the Monopolies and Restrictive Trade Practices Act had provided the only recourse for consumers to challenge unfair or restrictive trade practices of health care practitioners.[12]
5) Consumer Protection Act, 2019: Consumer Protection Act has redefined the consumer redressal system for customers of a whole lot of services such as health services.[13] The definition of ‘service’ under the Act includes medical services as well, as has been held in the landmark case Indian Medical Association v. V.P. Shantha.[14] ,
the following points can be culled out from this judgment:
a) Medical services are included within the definition of the service under the Act.
b) Free medical services provided by independent practitioners or hospitals are outside the purview of the Act.
c) Third-party paid medical services and paid medical services are within the purview of the Act.
d) Free and paid hospitals are within the purview of the Act.
In Nihal Kaur v. Director PGIMS [15] the deceased patient was found to have end-stage renal disease and to have had a pair of surgical scissors removed from their abdominal cavity by the surgeon at the time of last surgery (see paragraph 4D of the case). The surgeon was ultimately held liable for the conduct in question, and paid Rs. 1.20 Lacs (approximately 27,000 US dollars) to the state consumer court in Chandigarh, India.
6) Writ Jurisdiction of High Court and the Supreme Court: Distressed citizens may apply under Articles 226 and 32, respectively, to the High Court and Supreme Court of India for a remedy for an injury to their rights. The right to seek that remedy is conditioned upon the existence of a valid cause of action that gives that court jurisdiction over the injury. Remedial compensation for medical institutions or medical professionals who fail to fulfil their obligations in public law to patients is available. For example, if government-operated medical camps to perform cataract surgery were to go poorly, and as a result, a large number of patients lost their eyesight due to the poor performance of those operations, then were to go to the Supreme Court or the High Court to seek a remedy for their injuries. The United States District Courts (and other courts) could potentially exercise jurisdiction under Articles 32 and 226, respectively.[16]
Conclusion
The legal system for medical negligence, which has its roots in Tort Law, which holds that criminal responsibility in the medical field can be attributed only in instances of obvious gross negligence. The judicial precedents set by the Supreme Court of India provide a guideline for dealing with medical negligence cases, which can be complicated and difficult. The Consumer Protection Act provides an easily accessible and affordable means for victims of medical negligence to get justice, especially for those who cannot afford it. This legal system, although still developing, provides substantial protection to patients against medical negligence.[17]
The judicial system is actively working to protect the patients’ right to fair and equitable treatment, as well as to hold the medical profession accountable and build public trust, therefore confirming the vital importance of the judiciary’s role in establishing a fair and equitable healthcare system. India’s ability to build upon its legal system by eliminating obstacles such as cost-related barriers, promoting professional standards, and protecting the interests of patients will further support the establishment of a legal framework that addresses issues related to medical negligence, thereby creating an opportunity to develop justice and excellence within India’s healthcare system.
Reference
[1] A Critical Study of Medical Negligence in India: Regulations and Case Laws, Samisti Legal, https://samistilegal.in/a-critical-study-of-medical-negligence-in-india-regulations-and-case-laws/ (last visited February 23, 2026).
[2] Malay Kumar Ganguly v. Sukumar Mukherjee AIR (2010) SC 1162.
[3] Simon Law, P.C., Malpractice vs. Negligence (Simon Law, P.C.), available at: https://simonlawpc.com/medical-malpractice/malpractice-vs-negligence/ (last visited February 23, 2026).
[4] Sneha Mahawar & Kishita Gupta, Medical Negligence in India, iPleaders (Jan. 22, 2023), available at: https://blog.ipleaders.in/medical-negligence-india/ (last visited February 23, 2026).
[5] Medical Negligence – The Judicial Approach by Indian Courts, Asia School of Insurance (Oct. 9, 2006), available at: https://asiindia.org/medical-negligence-the-judicial-approach-by-indian-courts/ (last visited February 23, 2026).
[6] Indian Medical Council Act, 1956 and Dentists Act, 1948.
[7]Sec. 357 of The Criminal Procedure Code of 1973.
[8] UK Fatal Accidents Act of 1846.
[9] Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godhole, AIR 1969 SC 128.
[10] Indian Penal Code, 1860.
[11] Martin F. D'Souza v. Mohd. Ishfaq (2009) 3 SCC 1.
[12] Monopoly Limits and Trade Practices Act, 1969.
[13] Consumer Protection Act, 2019.
[14] Indian Medical Association v. V.P. Shantha AIR 1996 SC 550.
[15] Nihal Kaur v. Director PGIMS (CPJ 1996) 112.
[16] Articles 32 and 226 of The Constitution of India.
[17] Medical Negligence in India, De facto Law, https://www.defactolaw.in/post/medical-negligence-in-india (last visited February 23, 2026).