In recent times, the Indian Society is experiencing a growing awareness regarding the patient’s rights. Since the Consumer Protection Act, 1986, has come into force, patients are able to file legal cases against doctors, establishing that they were negligent in providing medical service.

Negligence is an act carelessly done by a person resulting in damages to the others. Negligence is an offence under the law of tort, Indian Penal Code, Indian Contracts Act, Consumer Protection Act (CPA), and so on. Medical negligence is basically the misconduct by the medical practitioner by not providing services and hence resulting in a breach of their duties towards patients.

Negligence is the violation of a legal duty to care. Breach of this such duty gives the patient the right to initiate action for injury caused due to negligence.

• Negligence under the law of Tort

A tort can be defined as a civil wrong, for which action can be initiated for unliquidated damages. In certain cases, there can be concurrent liability under tort and contract. For instance, if there is a contract existing between a patient and a doctor, then the doctor, for his negligence, will be liable under the contract.

• Negligence under Civil law

Negligence is the breach of a duty to care. It means, committing carelessness when the law mandates carefulness. Breach of such duty gives the patient the right to initiate action against this negligence.

• Negligence under Criminal law.

Section 304A of the Indian Penal Code, 1860 says that whoever causes the death of a person by a rash or negligence not amounting to culpable homicide will be punished with imprisonment for a period of two years, or with a fine, or with both.

Sections 80 and 88 of the Indian Penal Code contain defence for doctors accused of criminal liability. Under Section 80 (accident in doing a lawful act) nothing is an offence that is done by accident or misfortune and without criminal motive or knowledge in the doing of a lawful act in a lawful mode by lawful means and with proper care and caution. According to Section 88, a person cannot be accused of an offence if she/ he performs an act in good faith for the other’s benefit, does not intend to cause harm even if there is a risk, and the patient has explicitly or implicitly given consent.

General Findings

• Burden of proof

The burden of proof in case of negligence lies with the complainant. The law requires evidence to support the allegation against a doctor. The patient must be able to establish her/ his claim against the doctor in case of negligence, carelessness, or insufficiency.

• Service rendered free of charge

Doctors aren't liable for their services individually or vicariously if they don't charge fees. Therefore free treatment/diagnosis at a non-government hospital, health centre, governmental hospital, dispensary or nursing home would not be considered a “service” as under the CPA.

• Guilty of commission or omission of an act

Doctors must use an ordinary degree of skill in treating the patient. A doctor can be held responsible for negligence only if one can prove that the doctor is guilty of failure in committing an act or the omission of an act, that no other doctor with ordinary skills would be guilty of.

• Conditions to prove liability

Before considering the liability of the doctor, certain conditions must be satisfied. The accused person must have omitted or committed; this act must be a breach of the person’s duty; and which must have caused harm to another person. The complainant must be able to prove the allegation levelled on the doctor by the best evidence in medical science and by demonstrating expert opinion.