Medical Negligence is a breach of duty which is legal in nature as it is the duty of the doctor to take care of the patient till the patient recovers. Lately, the health care industry is facing lots of complaints with respect to hospital facilities, professional excellence, the form of treatment and method of diagnosis and many more complaints.

After the doctor-patient relationship has come under the ambit of the Consumer Protection Act, many patients have filed complaints against reputed doctors and have also got compensation for the mistake that medical professionals have committed.

However, one must know that even doctors can commit mistakes while rendering treatment to the patient or diagnosing the health condition.Therefore, certain rights must be given to the doctors in cases of medical negligence with an opportunity to hear them out too before taking the final decision.

To prove that medical negligence has been committed by the doctors, one has to fulfil all the required criteria of medical negligence.

• The duty of care on the part of the doctor.
• The breach of duty by the doctor.
• Facts of the case.
• The proximate cause of the negligent act.
• Damage caused to the patient that is irreversible.

There is an exception in cases where a doctor has charged no fees for the treatment or operation of the patient. In such cases, that particular doctor cannot be sued in the court of law for medical negligence as mentioned in section 2(1) of the Consumer Protection Act 1986.

The National Disputes Redressal Commission, along with the Supreme Court of India has held that the doctor is not always liable in cases of medical negligence. If the patient’s body does not react toward a particular set of treatment, there are chances that the doctor will not be held liable.

This term has been taken from the basis of a Latin maxim that is “qui facet per alium facet per se” it means that one who acts through another’s actions for their own benefit. With respect to doctors and medical hospitals, it means that the patient who needs proper care and treatment, and if the hospital staff is not able to deliver, the staff, as well as the hospital, will be liable. This is a case of vicarious liability. Vicarious liability is the situation where the act of one person causes the liability on the other person.

1. Risk Factor -The operations which are carried out by trained doctors are usually conducted after calculating the approximate risk and on a joint decision made by the patient and the operating doctor. It is said that there is always a complication factor involved in surgeries and operations which are performed by the doctor and thus, in those cases, the doctors cannot be held liable for the medical negligence caused to the patient as the patient after knowing all nuances of the operation has given consent for the same.
2. Due Care - No case of medical negligence shall be valid against the doctor or the hospital if the doctor has taken due care and diligence during the treatment and the operation.
3. Patient Negligence - If some damage is done due to the patient’s negligence then in such cases the jurisdiction of medical negligence may be limited as such injury is caused due to the patient’s own mistake and not that of the doctor.
4. No Breach of Duty - If the plaintiff or the appellant is not able to prove that the doctor has committed medical negligence, then this can be a ground of defence that can be used by the doctor.
5. If the Appellant has sued the Wrong Party – The accused party to the case must be proved. Otherwise, the accused doctor will have an upper hand and can use this as a defence.

In cases where the individual who is suing the medical professional is not clear about the complaint, then the doctor has a chance to prove his/her innocence. Thus, the above defences are available to the doctor where negligence has been proved but the proof is not substantial. In cases where the medical negligence has been proved, and the punishment is given, then the professional involved can move the higher court.

The medical profession is one of the oldest and noblest professions in India; they provide a new life to the patient. Thus, it is very important that flexible laws are made so that the doctors are assigned adequate rights in order to prove them innocent. This will help to upload the dignity of the doctors in India.