medical negligence

A doctor owes the patient a duty of care in deciding whether to treat, what treatment to give, and how to give it. The standard is that of an ordinarily competent practitioner in that field (the Bolam test), not the highest expert. A doctor is not negligent merely because another body of opinion preferred a different method, or because the treatment failed.

Liability may be civil (tort or consumer complaint, since medical services are “services”) or criminal. For criminal liability the Supreme Court requires gross negligence or recklessness, a much higher degree than for civil liability.

Example

Leaving a surgical sponge inside the patient's abdomen was treated as medical negligence under the principle of res ipsa loquitur.

In Indian law

• Jacob Mathew v. State of Punjab, 2005 INSC 334: Bolam test; gross negligence needed for criminal liability
• Indian Medical Association v. V.P. Shantha, 1995 INSC 720: medical services fall under consumer law
• Section 106(1), BNS (old s.304A IPC): causing death by negligence, with a lighter punishment for registered medical practitioners

See also

negligence · duty of care · res ipsa loquitur · deficiency in service

Read more in the study notes

• Need for ADR, international commitments and suitability of disputes (Alternative Dispute Resolution Systems)
• Criminal complaints: information to the police and private complaints under the BNSS (Drafting, Pleading and Conveyance)
• NHRC: functions, powers, procedure and effectiveness (Human Rights Law and Practice)
• Negligence (Law of Torts)
• Consumer Protection Act, 2019 (Law of Torts)
• Medical deviance: medical ethics, negligence, the Lentin Commission and drug abuse (White Collar Crimes)