MEDICAL NEGLIGENCE: CRIMINAL LIABILITY AND CIVIL TORT IN INDIA

INTRODUCTION

Imagine a scenario, a patient dies in a hospital because of a negligent surgeon, the aggrieved family files both a consumer complaint and a FIR. As the Indian legislature allows the party to challenge the defendants under both the laws of tort and criminal.

Since the time of Indian Penal Code (IPC), 1860, India has seen several case laws arguing over the medical negligence as a criminal offense, because of the argument that it causes the death of a person. Now, the Bhartiya Nyaya Sanhita (BNS) 2023 holds similar regulation for medical negligence.

The standard of medical negligence in India remains a tale of two thresholds – one under criminal liability and one as civil tort, which creates confusion for courts, practitioners and patients.

This article will explore about negligence, professional negligence, medical negligence under both IPC and BNS contrasting with the civil tort standard and the tensions remains.

ABOUT NEGLIGENCE

Negligence refers to breach of duty which leads to certain damages. It constitutes of: a legal duty which requires due care to proceed with; breach of the duty; and consequential damages. The Apex Court in Jacob Mathew v. State of Punjab[1] observed negligence as a breach of duty caused by the omission to do something which a reasonable man with ordinary prudent would do or not do. Actionable negligence consists of neglect of use of ordinary care or skill towards the person whom the defendant owes a duty.

PROFESSIONAL AND MEDICAL NEGLIGENCE

Any sensible man entering into a occupation required to have some basic learned skills is called a professional. Professionals such as lawyers, medical practitioners and architects are someone’s professing special skills to carry out their jobs. A professional may be held for negligence on one of two findings: either not possessed by required skills or did not exercise with reasonable competence[2].

In the opinion of Lord Denning, as expressed in Hucks vs Cole[3], a medical practitioner was not to be held liable because things went wrong from mischance or through error of choosing reasonable course of treatment . A medical practitioner would be liable only where his conduct fell below that of reasonable competent practitioner.

Every medical practitioner is required to follow theirs standards of duty to care for their patients, failing which they would be held liable. In medical practice duty of care is the legal obligation towards the patients that needs to be maintained. It is the foundational ethical principle, which is also formalized by World Medical Association and International Code of Medical Ethics.

MEDICAL  NEGLIGENCE UNDER IPC, 1860

The consequences of legally cognizable medical negligence can be put into three categories: Criminal liability, monetary liability and disciplinary action. In the indian Penal Code, 1860.

Section 304-A of IPC covered causing death by rash or negligent act, where there is neither intent or knowledge of impending death. This section involves active awareness to cause harm. Later, Supreme Court inserted the word ‘gross’ in Section 304 of IPC in the Jacob Mathew case.

In Kurban Hussein Mohomedalli Rangawalla v. State of Maharashtra[4], where legal standards for criminal negligence, were clearly distinguished between requirements for Section 304-A (causing death by negligence) and Section 285 (negligent conduct with respect to combustible matters) . Section 302 deals with intentional death or causing harm.

The following statement of law was cited with approval: To impose criminal liability under Section 304-A of IPC, it is necessary that death is the direct result of the negligent act and is the proximate cause of it. It should be the causa causans.

In Juggankhan v. The State of Madhya Pradesh[5], the accused a registered homeopath, administered 24 drops of stramonium and a leaf of dhatura to the patient suffering from guinea worm. The accused had not studied the effect. The court held the accused liable under section 302 of IPC, the act of accused was held to be rash and negligent. The court observed, “In our opinion, the principle which emerges is that a doctor who administers a medicine known to or used in a particular branch of medical profession impliedly declares that he has knowledge of that branch of science, and if he does not, he is acting with rashness or negligence.”

Thus, IPC defined rash or negligence that would cause harm, differentiating it from murder. The result was that mere negligence lead to criminal liability as court’s inconsistently applied “gross negligence’ on medical practitioners.

MEDICAL NEGLIGENCE UNDER BNS

The Bhartiya Nyaya Sannhita, 2023, the new penal code of India.

Section 106 (1) reads, “Whoever causes death of any person by doing any rash or negligent act, not amounting to culpable homicide, shall be punished with imprisonment for a term which may extend upto 5 years and shall also be liable to fine 5 years. If such act is done by a registered medical practitioner, while in duty, he shall be punished with imprisonment of a term which may extend upto 2 years and shall also be liable of fine”. The new addition to the Act, Bail is now presumptive in most cases.

The law explicitly defined “registered medical Practitioner” as someone who holds a valid qualification recognized under the National Medical Commission Act, 2019, whose name is actively registered on the National Medical Register or the State Register. BNS still has no definition for ‘gross negligence’.

Not all medical errors constitute criminal liability. To constitute an offense under Section 106, the negligence must be of high degree, for example, death by negligence. General acts of negligence not amounting to culpable homicide carry an imprisonment term of 5 years.

THE CIVIL TORT STANDARD

While the criminal law demands proofs of gross negligence,the civil tort operates on entirely lower plane; it determines whether a patient who fails to secure criminal belief can still obtain compensation and whether doctor can easily escape criminal liabilities.

The three part negligence test

As mentioned earlier, a claimant alleging medical negligence must establish three elements:

Firstly, that there was a duty to care that existed between the doctor and the patient. This duty arises at the very moment when the patient approaches the doctor for medical help, through a formal consultation, emergency situation or through telephone help. Secondly, the doctor or the medical practitioner committed a breach of duty. Duty that is expected from a reasonable competent medical professional. Lastly, the breach of duty caused harm to the patient.

The Bolam Test and its application in India

In English law, there’s a famous case, Bolam v. Friern Hospital Management Committee[6], McNair J. held that: A doctor is not negligent if he acts in accordance with a practice accepted as proper by a responsible body of medical professionals skilled in that particular field – even if there exists contradictory opinions.

The Supreme Court of India formally adopted the Bolam test in Jacob Mathew v. State of Punjab (2005), applying medical negligence not just criminal proceedings but affirming relevance to civil negligence determinations also.

In Kusum Sharma v. Batra Hospital and Medical Research Centre[7], the Supreme Court reaffirmed the Bolam standard for civil claims while noting that it not the exclusive rule. The court held that negligence must be against what a reasonably competent doctor in that situation would have done.

Consumer forums

The most consequential development in civil medical negligence was the Supreme Court’s ruling in Indian Medical Association v. V.P.Shantha[8], held that medical services fail within the definition “service” under the Consumer Protection Act, 1986. This single judgement made easier the access to medical negligence remedies – patients can approach District State or National Consumer Disputes Redressal Commissions with easier procedural requirements. The Conswumer PRotection Act, 2019 further strengthen the appraoch.

In consumer forums, patient need not carry burden of proof  against the medical practitioner negligence.

THE TENSION AND UNRESOLVED QUESTIONS

It is seen that an act of negligence in medical profession, is part of criminal liability and at times is also under the civil liability of tort law. The fact that judicial case law since the IPC to today BNS has seen medical negligence being filed as criminal cases and the legislatures have equally acknowledge it. Also the same negligent is filed under the Consumer forum as a part of Tort law. In John Oni Akerele v. The King[9], where a qualified medical practitioner gave an injection of Sobita, which consisted of sodium bismutch tartrate; later due to overdose the patient died. The doctor here, was accused of manslaughter and negligence. The Privy Council held that a doctor is not criminally responsible unless his negligence went beyond matter of compensation and such disregard causes threat to the State.

Thus, a medical negligence to be called as an criminal act needs to go beyond ordinary and such act should pose a threat against the society or state. As crimes are offenses against state and not individual.

As under the Tort law, the aggrieved part can file complaints in the consumer forums as negligence is fault in the service. Civil liability actually needs a reasonable check on the harm caused and negligence act.

Factual Data: India’s healthcare sector has seen 65,000 medical negligence cases filed in 2025 across State High Courts and the Supreme Court and the National Consumer Disputes Redressal Commission (NCDRC). Medical disputes form 2.2% of consumer complaints.[10]

This data concerns that lack of clarity in the judiciary leads to delays in the cases being solved. Petitioners while filing case in Consumer forum also file criminal cases against medical practitioners. In the same Consumer forums cases of shopping mishaps are also filed, how can the urgency in both the situations be same to get justice.

The effect on doctors seems to be unbothered, as medical associations have argued that liberal FIR filing discourages the risk taking factor in medical practice, which is yet important in order to save a life. On the other hand, patients argue that provision is to shield from the negligent practitioners.

INTERNATIONAL COMPARISON

MEDICAL NEGLIGENCE IN UNITED KINGDOM

The United Kingdom (UK) has several legal systems and in all systems negligence may be tried under the civil or criminal court system. Civil actions usually fall under tort law. In cases of medical negligence, claimant goes through services complaint’s process and the clinician defence union steps in for defending the defendant; and claim is anticipated. Thereafter, letter of claim is sent to the clinician, strict protocols of time limit are followed; the clinician and the union considers whether to settle or admit the harm done. Almost 70% of claims are resolved without court proceedings. Court procedures occur if the defendant has to defend the claims.

Criminal proceedings for medical negligence are less common in the UK. Such matters occur in cases of death. There are three conditions to bring the case to trial: (1) the trial is necessary for the public interest and on the balance of probability to be  successful. (2) the prosecution can prove beyond reasonable doubt that there was a breach of duty that caused death or injury.  (3) the negligence was “gross”, which means the negligence of the clinician was so bad that it caused death as to amount a criminal act.

Thus, UK has found a practical and step by step approach to solve the issue of medical negligence. A plus that majority cases get solved without entering the court.

CONCLUSION

As to conclude, medical negligence is duty to care, breach of the same duty and finally harm because of the breach. Shift from the IPC to BNS remains a change in the era of Indian Judiciary and Legislature. Although this shift has not defined, “gross negligence”, the punishments remain the same and so does the basic structure in the criminal liability in medical negligence. The Tort law perspective brings in light, that patients can approach the consumer forums to address issues and for a quick and low cost justice. The relevance of the case of Jacob Mathew has remained since then till today, the case ambiguities are ignored. The civil-criminal liability divide is necessary but practically confusing not only for thew petitioners, but also for the doctors and the forums and judiciary. To reform, gross negligence need to find statutory definition, and clear demarcation of civil and criminal liabilities are required.

RECOMMENDATIONS

A statutory definition of negligence and ‘gross negligence’ is need of the hour. A mandatory pre- FIR medical review is required to safeguard our medical practitioners also. Imposing medical malpractice insurance, would ease procedures that are delayed in consumer forums.

REFERENCE(S):

1. Sethi A, Bilgaiyan R. Doctors in conflict with the criminal law: A records review of gross medical negligence cases in the Indian Penal Code. Sri Ramchandra J Health Sci. 2024;4:6-11. doi: 10.25259/SRJHS_50_2023
2. Arlene Connelly & Mick Serpell, ‘Clinical Negligence’ (2020) 21 Anaesthesia and Intensive Care Medicine 524

[1] Jacob Mathew v. State of Punjab (2005) AIR 2005 S.C. 3180

[2] The concept is drawn from Jacob Mathew vs State of Punjab, ibid

[3] Hucks vs Cole (19680118 New LJ 469

[4] Kurban Hussein Mohomedalli Rangawalla v. State of Maharashtra (1965) 2 S.C.R. 622.

[5] Juggankhan v. the state of Madhya Pradesh (1965) 1 SCR 14

[6] Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582

[7] Kusum Sharma v. Batra Hospital and Medical Research Centre (2010) 3 SCC 480

[8] Indian Medical Association v. V.P.Shantha (19995) 6 SCC 651

[9] John Oni Akerele v. The King AIR (1943) P.C. 72

[10] Sunil Khatri, ‘65000 Medical negligence cases in India: What 2025 Data reveals about patient safety’ (Dr. Sunil Khatri & Associates, April 23) <https://www.delhimedicalnegligence.com/post/medical-negligence-cases-in-india>