Compensation for Medical Negligence


A medical profession is the profession in which it was stated that it was the noblest profession in the world. Peoples treat Doctors like their God. The term medical negligence means that an act or omission (failure to act) done by a medical practitioner deviating from the agreed standard of treatment. Doctors and their medical staff also have a duty to care towards their patients to provide treatment with medical standard of care. Medical negligence arises when a physician, dentist, nurse, surgeon or other medical professional carries out their work in a manner that deviates from this agreed medical practice. The effects of medical negligence under specific heads are discussed at the outset of this article, accompanied by a description of the basic constituents of medical negligence and the duties of doctors along with some examples and the minimum standards of treatment provided by law.

The latest judgment granting Rs. 11 Crore compensation was by far the highest payout in Indian medical negligence litigation history.


Negligence is the violation of a duty caused by the failure of doing something that a reasonable man would do or doing something that a prudent and rational man would not do. Basically, it means that breach of a duty of care which results in damage. If someone fails to do proper care over something this also know a negligence.

There are certain essentials in which plaintiff has to prove that it is negligence:

  • The appellant owed a duty of care towards the plaintiff – It means that every person owes another person a duty of care while conducting an act. In the case of Stansbele v. Troman[1], There was a function in a house and a decorator was told to carry out decorations in a house after the decorator decorated the house he left without locking the doors or informing anyone. A thief entered the house and stole some property the value of which the owner of the house claimed from the decorator. It was held that the decorator was liable as he was negligent in leaving the house open and failed his duty of care. In another case named Ishwar Devi v. Union of India [2]it was held negligent to start a bus before passengers get into it.
  • The appellant made the breach of that duty –In this it was a relationship between the defendant and the plaintiff and requires the defendant to act in a certain manner toward the plaintiff with proper care and caution. In the case of Donoghue v. Stevenson (1932)[3] it was stated that notwithstanding the fact that there was no contract between the seller and the individual causing the injury, an action for negligence may be successful because the claimant succeeded in arguing that she was entitled to a duty of care even though the damaged product was purchased, i.e. a bottle of ginger beer with a snail in it, not by herself but by her mother.
  • The appellant suffered damage – In this essential it is required to prove the causal connection between the breach of duty and the damage, i.e. where some fault is attributed to the defendant, the plaintiff must prove that the defendant was negligent. In the case of Municipal Corporation of Delhi v. Subhagvanti[4] there was clock tower which is very old situated right in the middle of Chandni Chowk suddenly collapsed and it causes the death of many people. It was 80 years old clock tower. The Municipal Corporation of Delhi has a control over clock tower and they had a duty of care towards the citizens that they had given a duty to repair the clock tower, they had breached their duty of care toward the public and were thereby liable.

Negligence by medical officers

An Individual whether he is a medical practitioner or not, who is consulted by a patient, owes him certain duties, namely a duty of care in deciding whether or not to take up the case deciding what treatment to give and duty of care in his administration of that treatment. A breach of any theses duties will support an action for negligence by patient. Negligence in the medical profession necessarily needs a differing treatment. If the charge of negligence arises from the failure to use certain specific equipment, the charge would fail if the equipment was not generally available at the time (i.e. the time of the incident) at which it was suggested that it should be used.

In the case of State of Haryana v. Santra[5] the doctors had operated only the right fallopian tube and had left the left fallopian tube untouched. The patient was informed that the operation was successful and was assured that she would not conceive a child in future. A case of medical negligence was found and a decree for compensation in tort was held justified. A patient who claim medical negligence can resort to any of the following legal remedies: (a) Complaining to the State Medical Council, (b) filing a case before a consumer court, (c) filing a case before a civil court, and (d) filing a criminal complaint citing gross negligence. Generally, a compensation for medical negligence is usually given by civil court or consumer court.

Types of Medical Negligence

  1. Misdiagnosis – Medication is the first step after admission to a hospital, medical clinic, emergency room, dental office, or any other professional health care elements must be check. To prove medical care to any patient, correct diagnosis of symptoms is required but sometimes an error may occur in cases where symptoms may not be readily apparent or telling.
  2. Delayed Diagnosis – A delayed diagnosis can be a form of medical negligence. A delay in diagnosis may result in the patient sustaining an unnecessary injury if the disease or injury is allowed to worsen rather than be treated. Basically, a diagnosis will not be made in a timely manner due to workload on doctors. In these cases the hospital or clinic may even be held liable for any damages resulting from the delay in diagnosis and treatment.
  3. Surgical Error – During a surgical procedure a medical negligence can also result in further surgeries, infection, internal organ damage, immune system failure and even death. Surgical process requires a high level of skill, knowledge and even the slightest mistakes can have profound effects on the patient. For example like if someone left something inside the body while doing a surgery.
  4. Errors in Anesthesia – Anesthesia is one of the most risky part of any major medical operation, it requires a specialist, an anesthesiologist, to administer and monitor the effect on the patient. Anesthesia malpractice can happen either during the pre-operation medical review, or during the procedure itself.
  5. Childbirth Trauma and Labor Malpractice – Child birth trauma is one of the most serious cause if medical negligence happens because during Instances of medical negligence during childbirth can occur in many ways, including failure to perform a C-section, mishandling of a difficult birth, induced labor complications, misdiagnosis of infant medical condition or failure to monitor fetal vital signs.

Calculation of Compensation

The victim must be compensated for financial damage caused by negligence on the part of the doctor / hospital, future medical costs and any pain and distress sustained by the victim. In India, the consumer court, or the civil court, has complete power over the compensation amount and is bound to consider the impact of the judgment because he/she sets a precedent even in the manner and quantum of damages awarded. In India mainly Multiplier method is carrying on to take compensation for any medical negligence happens with doctors or any medical staff. The usual formula utilized in calculating compensation is ((70-age) x annual income + 30% for inflation – 1/3 for expenses). Defendants claim that this is the amount that measures the damage suffered reasonably and should thus be used in cases of medical negligence.

After that the Supreme Court refused the multiplier method in cases of medical negligence and in place of that the Supreme Court added other aspects to the compensation measure, such as the victim’s insurance costs accrued during the trial, the costs of potential medical bills, reimbursement for mental pain and physical pain, and reimbursement for business failure and litigation costs.

Any medical negligence happens with any person then it was a person choice to choose that how they wish to address the problem. It was their choice that, they may approach the State Medical Council and, if they wish to receive compensation, go to the civil court or consumer court. The compensation is considered an ideal thing for medical negligence because it acts as insurance to the person who has suffered a loss, retribution toward negligent doctors and hospitals, and as a restraint to other doctors/hospitals. The way in which compensation for medical negligence is calculated depends not only on the injury sustained or the death caused, but also on the victim’s income and living standards.

Doctor or hospital who is responsible for paying compensation

In multiple occasions a hospital can be found vicariously responsible on several grounds. Several High Court judgments held hospitals vicariously liable for damages caused by their staff’s negligent actions to the patients. It was stated that whenever they accept a patient for treatment, they must use reasonable care and skill to ease him of his ailment. Of course the hospital authorities, do it by themselves; they have no ears to listen to the stethoscope, and no hands to hold the surgeon’s scalpel. They must do it by the staff which they employ; and if their staffs are negligent in giving treatment, they are just as liable for that negligence as anyone else who employs other to do his duties for him.

But in many cases doctors as well as hospitals both are liable for the medical negligence and both have to pay the compensation to patient. The Supreme Court decided that individual doctor should not pay the huge compensation until the hospital was also made party in the litigation. An individual private practitioner may not be able to pay the huge amounts that the court has given.

India: Two different paths

Mainly through the consumer courts the Indian legal system addresses medical negligence it was included under the scope of the Consumer Protection Act, 1987. The calculation of compensation is not precise or accurate. It is depend on case to case situation that how much the case was critical in nature. There is an urgent need to implement some specific guidelines, standards of evaluation to help the health system in providing better care. Awarded compensation must be fair, reasonable and prudent.


While doing this article it was concluded that negligence should be the principle of common man’s reasonableness of prudence, and negligence should be established to give the compensation in some cases. The medical profession requires a certain degree of knowledge and experience, and the quality of treatment in medical professional cases is usually high and should be taken.  In this article it was stated that the medical negligence cases generally deals in the consumer court or civil court.

After critical analyzing this article it was stated that in many cases there was a liability of both the doctors and hospital to compensate the patient if they cause any medical negligence to the patient. According to the agreement between the two, the division of responsibility shall be determined.

Frequently asked questions

  1. What are the types of Medical Negligence?
  2. What are the three essentials of Negligence? Explain with some case laws?
  3. What is the formula of Calculating compensation in terms of multiplier method?
  4. In which court medical negligence cases were go through?
  5. Briefly explain who is responsible for medical negligence? Is it doctors or hospitals?


[1] [1948] 2 KB 48

[2] A.I.R. 1969 Del 183

[3] [1932] AC 562

[4] 1966 AIR 1750, 1966 SCR (3) 649

[5] (2000) 5 SCC 182

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