Duty, Consent and Liability: Medical Negligence in Indian Medical Jurisprudence

Indian medical jurisprudence has settled several things well. The standard of care is a professional one, measured at the time of the act. Criminal liability is reserved for gross negligence. Emergencies carry a duty that formalities cannot suspend, and consumer remedies remain open to paying patients. What stays unsettled is consent, especially how much a patient must be told, and how the protections the law offers doctors are to reach the police station and the magistrate’s court in practice. These are less problems of doctrine than of implementation, and clearer judicial statements and better institutional design could solve a good part of them. The law cannot make medicine free of error. It can insist that when error occurs it is judged fairly, neither by the angry hindsight of a grieving family nor by the unexamined loyalty of colleagues.

[1]   Laxman Balkrishna Joshi v. Trimbak Bapu Godbole, A.I.R. 1969 S.C. 128. [2]   Parmanand Katara v. Union of India, (1989) 4 S.C.C. 286. [3]   Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582 (Q.B.). [4]   Bolitho v. City and Hackney Health Authority, [1998] A.C. 232 (H.L.). [5]   Jacob Mathew v. State of Punjab, (2005) 6 S.C.C. 1. [6]   Martin F. D’Souza v. Mohd. Ishfaq, (2009) 3 S.C.C. 1. [7]   V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 S.C.C. 513. [8]   Kusum Sharma v. Batra Hospital & Medical Research Centre, (2010) 3 S.C.C. 480. [9]   Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023), ss. 26, 30, 106. [10]   Samira Kohli v. Dr. Prabha Manchanda, (2008) 2 S.C.C. 1.