O n scrutiny of the leading cases of medical negligence both in our country and other
countries, specially United Kingdom, some basic principles emerge in dealing with the
cases of medical negligence. While deciding whether the medical professional is guilty
of medical negligence, following well-known principles must be kept in view:
(I) Negligence is the breach of a duty exercised by omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the conduct
of human affairs, would do, or doing something which a prudent and reasonable man
would not do.
(II) Negligence is an essential ingredient of the offence. The negligence to be
established by the prosecution must be culpable or gross and not the negligence
merely based upon an error of judgment.
(III) The medical professional is expected to bring 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 what the law requires.
(IV) A medical practitioner would be liable only where his conduct fell below that of the
standards of a reasonably competent practitioner in his field.
(V) In the realm of diagnosis and treatment, there is scope for genuine difference of
opinion and one professional doctor is clearly not negligent merely because his
conclusion differs from that of another professional doctor.
(VI) The medical professional is often called upon to adopt a procedure which involves
higher element of risk, but which he honestly believes as providing greater chances of
success for the patient, rather than a procedure involving lesser risk but higher chances
of failure. Just because a professional looking to the gravity of illness has taken higher
element of risk to redeem the patient out of his/her suffering which did not yield the
desired result may not amount to negligence.
(VII) Negligence cannot be attributed to a doctor so long as he performs his duties with
reasonable skill and competence. Merely because the doctor chooses one course of
action in preference to the other one available, he would not be liable if the course of
action chosen by him was acceptable to the medical profession.
(VIII) It would not be conducive to the efficiency of the medical profession if no Doctor
could administer medicine without a halter round his neck.
(IX) It is our bounden duty and obligation of the civil society to ensure that the medical
professionals are not unnecessarily harassed or humiliated so that they can perform
their professional duties without fear and apprehension.
(X) The medical practitioners at times also have to be saved from such a class of
complainants who use criminal process as a tool for pressurising the medical
professionals/hospitals particularly private hospitals or clinics for extracting uncalled
for compensation. Such malicious proceedings deserve to be discarded against the
medical practitioners.
(XI) The medical professionals are entitled to get protection so long as they perform
their duties with reasonable skill and competence and in the interest of the patients.
The interest and welfare of the patients have to be paramount for the medical
professionals.
Kusum Sharma v Batra Hospital and Medical Research Centre, 2010 (3)SCC 480
