Negligence is a failure to take reasonable precautions to avoid causing any form of harm or damage to someone else. The three important essentials which make an act or omission negligence are: (a) the defendant owes a duty of reasonable care to the plaintiff, (b) Such defendant has breached his duty of care towards the plaintiff, (c) The plaintiff has suffered an injury due to the defendant’s breach. Negligence does not arise in all the situations where a person acted in a wrongful conduct. For negligence to happen, it is essential that such misconduct has caused a foreseeable harm to the plaintiff.  A remote harm caused to the plaintiff by the actions of the defendant are not adequate grounds for proving negligence. By extending the ambit of the basic definition of negligence, medical negligence can be considered as failure of the medical practitioner to perform his duties towards the patients.
Medicine is of all the arts the most noble, but owing to the ignorance of those who practice it, and of those who, inconsiderately, form a judgment of them, it is at present far behind all the other art.
Medical negligence is a misconduct which results in the patients suffering from harm. The patient visiting the doctor expects medical attention with all the expertise and abilities that the doctor possesses in providing relief to his medical problem. A doctor owes certain duties to his patient as part of his profession and breach of such duty can give rise to a medical negligence suit against the doctor. 
After the enactment of the Consumer Protection Act, 1986, the public awareness regarding medical negligence is growing. Under the provisions of this Act, a grieved patient can seek redressal from the Consumer Courts. Medical negligence is punishable as an offence under various laws apart from the Consumer Protection Act, including IPC, Contract law and Tort law. This article aims at examining the requisites of medical negligence and the liability created by the actions of a negligent doctor. It also analyzes the legal position of medical negligence in India.
What is Medical Negligence?
The medical profession is considered as one of the noblest professions where the doctor preserves the life of a sick person and puts him out of his misery. There are situations where the life of the patient solely depends on the doctor treating him. When a patient approaches a hospital or a doctor, he expects to be treated well in a way which will cure his ailment or improve his condition. It is expected by the patients that they will be provided with all knowledge and skill-based medical treatment along with the expectation of not experiencing any harm in any matter owing the negligence of the hospital, doctor or the staff. It is not always possible for the doctor to save a dying person’s life, but it is surely expected that he would utilize his medical precision in appropriate manner and most importantly, not commit any negligent act leading to the worsening of the patient’s life. The failure of the doctor and hospital to discharge these duties is ultimately a tortious liability. A tort is a civil wrong which makes the wrongdoers liable to pay compensation to the victims. Medical Negligence, to an extent can also be termed as a contractual breach between the doctor and patient where the underlying contract exists because of informed consent, payment of fee and providing treatment.
Recently, people are becoming aware of their rights as consumers and they are filing suits against the hospital authorities or the doctor for exploiting their money by charging high fees in return of negligent services and treatments. The increasing awareness amongst the general public has created a sanction over the medical experts to perform their duties with proper care.
Every medical professional owes certain duties to his patient. The Supreme Court defined these duties in the various cases including the case of Dr. Laxman Balkrishna Joshi v. Dr. Trimbark Babu Godbole and Anr. . The court laid down that when a doctor is consulting a patient, he owes his patient certain duties like (a) duty of care while deciding whether or not to undertake the case, (b) duty of reasonable care while deciding the treatment to be given to the patient, (c) duty of care in the administration of the entire treatment. These are the vital and implicit duties of the doctor and breach of any of these duties would amount to a cause of action for medical negligence. 
Doctors have an underlying duty of obtaining prior consent from the patient regarding the treatment, diagnosis, transplants etc. Practitioners need to disclose the medical records and the possibilities of the treatment suggested. Since the patient is not expected to know the intricacies of the ailment or the treatment, the doctor is required to acquaint the patient with the condition, enough for him to make an informed decision. Even after the death of the patient, the doctor is obligated to obtain informed consent from the heirs about the post mortem, organ transplant, etc. The Supreme Court has established a position that in a situation where the patient is a competent adult and is capable of giving consent expressly, a mere assumption of what such consent could have been can amount to medical negligence. 
When is Liability considered?
For liability of a medical practitioner to be considered, there are certain conditions which need to be fulfilled. The accused doctor or the concerned authority must have committed an act or omission or commission which in turn led to breach of that person’s duty. If the person does not owe a duty of care to the victim, a claim of negligence will not succeed. Therefore it is essential to prove that there was an act or omission which led to an injury being caused to the complainant in a situation where the wrongdoer owed a duty of reasonable care to the victim. Since the medical profession is constantly evolving, it is not possible for the doctor to render 100% results leading to curing of the ailment. Therefore, for the claim to succeed, the complainant has to cite the best evidence available which proves that the doctor was expressly negligent causing direct injury to the patient.
There are some conditions where the complainant is not required to cite any evidence or proof of negligence by invoking the principle of ‘res ipsa loquitur’. This is a Latin maxim which means that ‘things speak for itself’. In the cases where it is a clear gross negligence by the doctor which has led to grievous injury to the patient, no evidence is required to be filed by the claimant. The National Consumer Disputes Redressal Commission applied this principle in various cases and the victims were awarded damages for the medical negligence. 
In the landmark case of V. Kishan Rao v. Nikhil Super Specialty Hospital , an officer in the malaria department filed a complaint against the hospital for negligently treating his wife. His wife was treated for typhoid fever instead of treating malaria. The hospital in this case was found guilty of medical negligence and the patient was awarded with a compensation of two lakhs.
Burden of Proof
The burden of proving the claim against the doctor or the hospital lies on the person who alleges the negligence against the doctor. Even after taking all medical procedures as prescribed, a trained doctor can make an error. Therefore, the complainant is required to prove the guilt and negligence of the doctor beyond reasonable doubt. The law requires a higher threshold of evidence to be produced to support the allegation against the doctor. It has been established by the Court in the case of Kanhaiya Kumar Singh v. Park Medicare & Research Centre  that negligence needs to be established by evidence and cannot be presumed by the court. Doctor cannot be held liable if he has acted in accordance with the proper practices, despite which the result turned out wrong. There is an implied risk on part of the patient and mutual trust between the doctor and patient.
Civil Liability in Medical Negligence
Medical Negligence can be termed as a breach of legal duty to care owed by the doctor to the patient. Any breach of a legal duty gives the patient a right to claim compensation from the wrongdoers by initiating against such negligence. Medical practitioners are professionals in their field and are expected to have appropriate skill and knowledge to treat the life of an individual.  Therefore, any medical practitioner gives an implied undertaking to the patient for acting with utmost care and using their skills to cure the ailment. Every doctor ‘has a duty to act with reasonable degree of care and skill’ . Under the purview of Civil law, the case for medical negligence can be initiated as a tortious act of negligence or under the Consumer Protection Act. Patient has a right to sue the doctor on grounds of negligence if he failed to perform his duties.
It is, however, not always possible for the doctor to provide a complete certainty of the condition of the patient or a guarantee of cure. Therefore, if the doctor has undertaken proper procedures and adopted the right course of treatment, he/she cannot be blamed for medical negligence if the patient is not cured of the ailment.  In the relationships between patient and doctor where the medical service is provided for free, the patients cannot sue the doctor or the hospital for the negligence. Section 2 of the Consumer Protection Act, 1986 defines a service as a paid commodity.  Therefore, doctors cannot be liable, individually or vicariously, if they do not charge fees. Free medical treatment at an NGO, free medical clinic or a nursing home cannot be considered within the ambit of ‘service’ and therefore, patients cannot claim for compensation in case of medical negligence from such medical institutions.
However, the Consumer Protection Act of 2019 has expressly excluded the healthcare sector from the purview of ‘service’ under the said definition of a consumer. This shall in future make any civil proceedings against the doctors on grounds of medical negligence difficult.
Criminal Liability in Medical Negligence
Section 304A of the Indian Penal Code, 1860 states that ‘Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.’ . While deciding the liability of medical negligence in a criminal action, the amount and degree of negligence is an important determining factor. Criminal liability invokes only in cases of gross negligence where the actions or omissions of a doctor led to the death of the patient. A doctor cannot be held criminally responsible for the death of a patient if the cause or reason of death was directly related to any act or omission of the doctor. .
The defenses available for doctors against the criminal liability are available under Sections 80 and 88 of the Indian Penal Code. Section 80 of the India Penal Code  defines the accident in doing a lawful act. This Section states that nothing is an offence committed by accident or without malafide intention while doing a lawful act in a lawful manner. The doctors perform their profession in a lawful manner and the negligent conduct is not intentional. Furthermore, Section 88 of the Indian Penal Code  states that a person acting in good faith for the benefit of others cannot be accused of an offence if he did not intend to cause harm. Since the patients had impliedly or expressly consented to the treatment, doctors should be provided with the defense of good faith.
Conclusions and Recommendation
Since the advent of mankind, the noble profession has only evoked instant reverence and respect. Past few years have seen an alarming number of complaints by patients potentially alleging medical malpractices and claims for compensation. In addition to this, criminal complaints were also filed alleging death of the patients owing to their negligent conduct. This upsurge of medical malpractice suits can be attributed to the increasing awareness amongst the public of the constitutionally-guaranteed rights and various health arena precedential sources laid down by the Supreme Court. Healthcare is one of the fundamental rights enshrined in our Constitution. The health of any country strongly reflects on the manpower and the growth rate.
But have we, as a country achieved our objective for strictly regulating and sanctioning the medical malpractices prevalent in the nation. The answer cannot be a complete yes. Despite the laws governing the principles of medical negligence and working towards holding the practitioners liable, we are a long way from reaching our target. The number of suits being filed against the medical practitioners are increasing. There is a dire requirement of external regulation and constant auditory practices since the individual self-regulation is adversely failing. Medical profession is now being seen as an entrepreneurial activity where the professions look for engaging returns on their investments. This shift from a noble service to a business activity is ghastly. There is a need for introspection by the doctors. They need to realize the sanctity of their profession and the disciplinarian principles required in their profession.
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BY ZEEL GONDALIYA | SYMBIOSES LAW SCHOOL PUNE