Commercialization Of Medical Practise And Understanding Medical Negligence: A Legal View

This blog is inscribed by Sanjana Kiran.

Introduction To Medical Commercialisation And Negligence : 

Since the very beginning, the doctor-patient relationship has been known to be relied on mutual trust, conviction, faith, and belief in the medical professional’s knowledge. The fortunate profession was practiced with a vision of god-like qualities along with the level of respect that is given to the doctors. However, over the years and commercialization of health care and the view of profit for managerial ideas, the profession is sometimes seen to have run out of faith, leading to a deteriorated relationship that is essential for the very profession[1]. Although formerly doctors were covered by the Law of torts, Indian Penal Code, etc, nevertheless with the passing of medical practice under the Consumer Protection Act, 1989[2], litigations against doctors and their negligent medical practices are on the rise. Although doctors practicing ethically and honestly should not have any reason for fear. Law whether civil, criminal, or consumer law, can only set the outer limits of acceptable conduct i.e. minimum standards of professional care and skill, leaving the question of an ideal to the profession itself[3]. The practitioner must essentially bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.[4] Failure to use the due skill in diagnosis with the result that wrong treatment is given is negligence. As said by Halsbury’s law of England over the degree of skill and care required by a medical practitioner. The medical profession has been brought under Section 2(1) (o) of CPA, 1986.[5] Although services rendered by a doctor under the contract of personal service were not covered in the consumer protection act 1986. Chief Justice Tyndall had mentioned in 1838, “All professionals must also exercise a reasonable degree of care, a proper standard of skills presented.” Supreme Court makes it obligatory in Parmanand Katara v. Union of India[6] the case that “every doctor, at the governmental hospital or elsewhere, has a professional obligation to extend his services with due expertise for protecting life”. Medical council of India that is guided by the Medical Council Act 1956, but nowadays question raise relating to the working ability of medical council of India, PIL filed in the Supreme Court by “People for Better Treatment”. (PBT) in 2000 (W.P. Civil No. 317/2000), it was unraveled that the failure of the council to perform his duty[7]. The medical council of India although monitoring the practices of the medical professions and in their possible rights established the Indian Medical Council Act, 1956[8] to ensure the complete discipline of medical practitioners. But as a concerned and rightful citizen who avails services and has a fiduciary relationship with the doctor needs to seek justice when negligently provided for. 

Historical Understanding To Medical Negligence : 

A deep understanding of the earlier civilization and how they had taken on medical negligence and the following legal enforcement[9]. Ancient sources mention how the city of Babylonia some 20 Centuries before the Christian era mentioned medical negligence and their subsequent punishments, for example, cause of death by a bronze lancet would lead to a punishment of cutting off the physician’s hands being cut off. This led to similar practises of punishments in the contemporary civilisation. The purpose of the criminal proceedings was to punish the defender / Medical professional and protect and vindicate the larger interest of the masses. The victim or harmed were not given any compensation or awarded any dames or so. However, this was changed with the evolution of the common law in England. With this thought and consideration of various factors, since the 14th Century, medical negligence was more logically analysed to be a tort than a crime, thus being the evolution of it becoming a tort, or wrongdoing. Compensation to the patient or the relative for their possible whole loss was seen as a more accepted understanding than the punishment to the practitioner.  

An Indian Perspective To Medical Negligence : 

In terms of India and their perceptions of terming it as a service along with the various other consumer protection services, accepted all those cases against a medical practitioner and their negligence in any civil court for monetary compensation, under the law of torts for Fatal Accidents Act 1855.[10] Although this means was present to apply for compensation and avail legal remedies, the case would take years, and expenditure in terms of money over litigation and other charges would be huge. Like in the case of Achutrao Haribabu Khodwa v. State of Maharashtra[11], the plaintiff received his requested compensation of Rs. 36000 by the Supreme Court after 33 years of the death of the patient due to negligent care of medical professionals often creating hesitation and dilution in persuading a case against a medical professional. 

The Hon’ble judge held in the case of Indian Medical Association v. V.P.Shantha[12] that any medical professional practicing should be held liable when they are found to be negligent or when they have taken negligent decisions towards their duty to care. The Hon’ble judge also mentioned that if any professional is doubted of his duty, a Bolam Test must be sufficient and efficient for an essential test against understanding if the professional was negligent in their duty of care. This was well introduced to understand any breach in the duty of care of a medical professional in the clinical negligence claim trial of the English court, Bolam v. Friern Hospital Management Committee[13]. landmark decision Indian Medical Association v. V.P. Shantha and Others[14], C.P.J as successfully laid down a certain guideline for medical negligence and define the efficiency of consumer protection. It has held certain exceptions like Service rendered to the patient in (free of cost or charity) by a medical professional would not fall under the definition of ‘service’ under Consumer Protection Act, 1986. 

With the current scenario of negligence and commercial medical practice, as seen in the case of Dr. Laxman Balkrishna v. Dr. Triambak [15] the Supreme Court mentioned that “Any medical negligence case that concerns to the various questions of facts the burden to prove this negligence lies clearly upon the complainant or plaintiff, which means that they have the liability to convince the court on their version of facts being true.” The Indian courts do not use the principle of “Res-Ipsa-Loquitur or accident sufficient to imply a negligent duty.” 

The subsequent criminal provision under the Indian Penal Code, 1860[16] – Section 304A[17] which subsequently protects the acts of medical professionals. According to this Act and section whoever be the individual who causes the death of the person due to negligence or a rash act, not amounting to culpable homicide. Sections 52, 80, 81, 304-A, 337, and 338, others cover the acts of medical malpractices. In the case of Mohanan v. Prabha G Nair[18], the bench of the supreme court held that “quashing the complaint by the High Court at the threshold where culpability could be established only on proper analysis of expert evidence adduced by the complainant is not justified”. However, this was volte-faced by the court in the case of Dr. Suresh Gupta v. Government of N C T of Delhi[19] setting that for being put under the Section 304A of the Indian Penal Code, 1860[20], the doctor would have to be held under criminal negligence and added terms like “gross negligence” or “Recklessness”. 

Similarly when in the discussion of Section 304A of the Indian Penal Code, 1860,[21] ” Between Civil and Criminal Liability of a doctor causing the death of his patient the court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor[22]. Though in the case of Jacob Mathew v. State of Punjab[23] under the terminology of “criminal negligence” and defined the same as “to prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.” 

Conclusion :

Simple human negligence of negligence in the duty to care can cause an increase in the risk of life, such as the profession of a medical practitioner. Medicine is the noblest artforms of all, being a trustful and ethical profession when discussed with the sense of commercial purposes it draws a negative sense. The purpose of it being a monitored profession is due to the sheer negligence of the professionals in their practice. The possible criminal and tort related legal enquires draws on the question of this entire profession being lost in its selfless demands. Furthermore, a basic need for safe and monitored use and regulation of the relation of consumers and the services is thus required. 

References :

  1. Saurabh  R.  Shrivastava,  Parteek  R.  Shrivastava  &  Jegadeesh  Ramaswamy,  Scope of consumer protection act in the medical profession in  India,  Department of  Community  Medicine,  Shri  Sathya  Sai medical college and research institute, Kancheepuram, Tamil Nadu, India, 2014. 
  2. Ian   Kennedy, Contemporary   Legal and   Social   Issues in   Medical   Practice and   Health   Care, 13 Commw. L. Bull. 1021 (1987).
  3. Dr.Chandra Prakash, Dr S.K. Roy & Dr Renu Bala, Consumer Protection Act, 2007 (CPA / COPRA) Related to Medical Profession, JIAFM, 29(3),2007. 
  4. Karunakaran Mathiharan. (2006). Supreme Court on Medical Negligence. Economic and Political Weekly, 41(2), 111-115. Retrieved March 22, 2020, from
  5. Katherine Rowe et al., Medical Practices, in The Cambridge Guide to the Worlds of Shakespeare, 811–815 (Todd H. J. Pettigrew).
  6. JOSEPH J. FINS, Commercialism in the Clinic: Finding Balance in Medical Professionalism, 16 Cambridge Quarterly of Healthcare Ethics, 425–432 (2007)

[1] Saurabh R. Shrivastava, Parteek R. Shrivastava & Jegadeesh Ramaswamy, Scope of consumer protection act in the medical profession in India, Department of Community Medicine, Shri Sathya Sai medical college and research institute, Kancheepuram, Tamil Nadu, India, 2014 

[2] Consumer Protection Act, 1986 Act No. 68. 

[3] Dr.Chandra  Prakash,  Dr  S.K.  Roy& Dr Renu  Bala,  Consumer  Protection  Act(CPA  /  COPRA)  Related to Medical Profession, 2007, JIAFM, 29(3),2007.

[4] JOSEPH J. FINS, Commercialism in the Clinic: Finding Balance in Medical Professionalism, 16 Cambridge

   Quarterly of Healthcare Ethics, 425–432 (2007).

[5] Consumer Protection Act, 1986 Act No. 68

[6] Parmanand Katara v. Union of India and Ors. 1989 SCR (3) 997.

[7] Ian   Kennedy, Contemporary   Legal and   Social   Issues in   Medical   Practice and   Health   Care, 13 Commw. L. Bull. 1021 (1987).

[8] Indian Medical Council Act, 1956 (102 of 1956). 

[9]Karunakaran Mathiharan. (2006). Supreme Court on consumer right, Weekly, 41(2), 111-115. Retrieved March 22, 2020, from

[10] Fatal Accidents Act, 1855 (Act 3 of 1951). 

[11] Achutrao Haribabu Khodwa v. the State of Maharashtra, 1996 SCC (2) 634, JT 1996 (2) 624. 

[12] Indian Medical Association v. V.P. Shantha,  1996 AIR 550.

[13] Bolam v. Friern Hospital Management Committee, 1957 1 WLR 583.

[14] Indian Medical Association v. V.P. Shantha,  1996 AIR 550. 

[15]Dr Laxman Balkrishna v. Dr Triambak, AIR 1969 SC 128. 

[16] Indian Penal Code, 1860 (Act 45 of 1860). 

[17] Indian Penal Code, 1860 (Act 45 of 1860), Section 304A. 

[18] Mohanan v. Prabha G Nair, 2004 (2) SCR 112. 

[19] Dr Suresh Gupta v. Government of N C T of Delhi, 2004 SCR 2931. 

[20] Indian Penal Code, 1860 (Act 45 of 1860), Section 304A.

[21] Indian Penal Code, 1860 (Act 45 of 1860), Section 304A.

[22] Karunakaran Mathiharan. (2006). Supreme Court on Medical Negligence. Economic and Political

   Weekly, 41(2), 111-115. Retrieved March 22, 2020, from

[23] Jacob Mathew v. State of Punjab, 2005 SCCL.COM 456. 

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