Some months or maybe one year ago, I read about a tragic accident where a new-born baby was charred to death reportedly due to the overheating of the incubator in a city-based hospital. The incident occurred at the Vatsalya Hospital in the city’s Budhwar Peth area. The child suffered more than 80% burns when the incubator reportedly overheated… Read More »

Some months or maybe one year ago, I read about a tragic accident where a new-born baby was charred to death reportedly due to the overheating of the incubator in a city-based hospital. The incident occurred at the Vatsalya Hospital in the city’s Budhwar Peth area. The child suffered more than 80% burns when the incubator reportedly overheated and died despite undergoing treatment in the hospital’s intensive care unit (ICU). || Death Is Not Always An Act Of God, Sometimes Its Clear Cut Negligence – By Deeksha Kathayat.

A case was lodged under sections 287 (Negligent conduct with respect to machinery) and 338 (Causing grievous hurt by act endangering life or personal safety of others) against the hospital’s gynaecologist Gaurav Chopade and his staff. The parents have accused the staff of negligence.

Well, this is not the first case of medical negligence; unfortunately, there are many, and the more unfortunate thing is that very few people are aware as to what are the remedies available in such cases? What will be the penal action taken against the accused medical practitioners?

But before that let us see what exactly is NEGLIGENCE?

Negligence is simply a failure to exercise due care. The three ingredients of negligence are as follows:

  1. The defendant owes a duty of care to the plaintiff
  2. The defendant has breached this duty of care.
  3. The plaintiff has suffered an injury due to his breach.

And in case of medical negligence mostly the doctor is the defendant. Negligence is predominantly a theory of liability concerning allegations of medical malpractice, making this type of litigation part of the Tort Law.

Also to safeguard medical practitioners who can be held liable for negligence only if one can prove that he is guilty of a failure that no doctor with ordinary skills would be guilty of if acting with reasonable care. An error of judgment constitutes negligence only if a reasonably competent professional with the standard skills that the defendant professes to have, and acting with ordinary care, would not have made the same. The reason for such a safeguard is no human being is perfect and even the most renowned specialist could make a mistake in detecting or diagnosing the true nature of a disease. Also, medicine is a science of uncertainty and an art of probability.

INDIAN PENAL CODE sec. 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 contain the law of medical malpractice in India.

A physician can be charged with criminal negligence when a patient dies from the effects of anaesthesia during an operation or other kinds of treatment if it can be proved that the death was the result of malicious intention or gross negligence. Before the administration of anaesthesia or performance of an operation, the medical man is expected to follow the accepted precautions.

“Gross lack of competency or gross inattention, or wanton indifference to the patient’s safety, which may arise from gross ignorance of the science of medicine and surgery or through gross negligence, either in the application and selection of remedies, lack of proper skill in the use of instruments and failure to give proper attention to the patient.” (Hampton v/s State; State v/s Lester)

The liability of a doctor arises not when the patient suffers injury but when the injury results due to the conduct of the doctor, which was below reasonable care. Clearly, the hilarious phrase that “No physician is really good before he has killed one or two patients” will not work because if death is due to negligence he will be liable. Once there exists a duty which has to be established by the patient, then the next step is to prove a breach of such duty and the causation.

Normally the liability arises only when the plaintiff is able to discharge the burden on him of proving negligence. However, in some cases, the principle of res ipsa loquitor” which means that thing speaks for it might come into action. Mostly the doctor is liable only for his own acts. However, in some cases, a doctor can also be made vicariously liable for the acts of another. The example of such a situation is when a junior doctor assisting the senior doctor commits a mistake it becomes the duty of the senior to have supervised him hence vicariously liable.


The Supreme Court in AS Mittal Vs. The State of UP while dealing with a public interest litigation alleging negligence on the part of the doctors in providing services at an eye camp organized by the Lions Club observed that although the intention of the camp was noble but proved a disastrous medical misadventure for the patients.

Some 84 patients lost vision due to a mistake on the part of the medical practitioner during eye camps. The court awarding compensation on humanitarian grounds pointed out that if any of the victims are eligible for pension under any of the existing schemes in force in the state, their cases shall be considered for such benefit. The court directed the Legal Aid and Advice Boards of UP State to take up this issue and process the claims of the victims for such other benefits which provides aid to the aged, the disabled and the destitute, subject to the condition that the victims satisfy the conditions of those schemes.

Examples Pertaining To Medical Negligence

  1. Theory of res ipsa loquitur [a thing speaks of itself] – in case any instrument left in the body, a wrong part removed, allopathic treatment given by a homoeopathic doctor etc.
  2. Wrong treatment due to the wrong diagnosis.
  3. Money receipt or prescription or discharge summary or test reports when not provided.
  4. When treatment not chosen as accepted and established in medical norms /as per medical research/available medical literature.

Remedies available

Medicine is a noble profession and practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is that the law requires.

  1. Civil liability- as mentioned before, the person who possesses special knowledge and skill in a field and uses this knowledge to treat the other person then he owes a duty of acre to the other person. If a wrong is committed by him in this period, then he is liable to pay damages in the form of compensation to him. In some situation senior doctors or the hospital authorities can also be vicariously held liable for the wrongs committed by junior doctors.
    2. Criminal liability: there may be an occasion when the patient has died after the treatment and criminal case is filed under section 304A of the IPC of allegedly causing death by rash or negligent act. The commencement or pendency of criminal trial would not act as bar to parallel civil proceedings for recovery of money.

But there are large numbers of cases where criminal law and civil laws can run side by side. The two remedies are not mutually exclusive but clearly co-extensive and essentially differ in their context and consequence. The object of the criminal law is to punish an offender who committed the negligence but in civil law, the objective is not to punish but to get compensation from the other person.


What medical practitioners should keep in mind is that Doctors are considered to be visible gods who can renew the life of persons who are languishing from diseases, injuries and defect. They should perform their duty diligently and not negligently.

Article by Deeksha Kathayat



  1. Times of India Article
  2. Indian Express Article

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Updated On 19 March 2020 12:13 AM GMT
Deeksha Kathayat

Deeksha Kathayat

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