From Tort To Trial: Medical Negligence, Consumer Protection, And Rise Of Defensive Medicine
The Age of Medical Paternalism: A Silence Enforced by TrustUntil the closing years of the 20th century, the relationship between doctors and patients in India was shrouded in a culture of profound deference. Medical paternalism, a doctrine that placed supreme trust in the physician's wisdom, effectively insulated doctors from legal scrutiny. Courts were hesitant to intervene, and patients...
The Age of Medical Paternalism: A Silence Enforced by Trust
Until the closing years of the 20th century, the relationship between doctors and patients in India was shrouded in a culture of profound deference. Medical paternalism, a doctrine that placed supreme trust in the physician's wisdom, effectively insulated doctors from legal scrutiny. Courts were hesitant to intervene, and patients rarely envisioned recourse against those who wielded the scalpel or stethoscope. Medical errors, even when grievous, were treated as matters of fate or divine will, not legal accountability. There existed no clear pathway for patients to seek justice unless they pursued cumbersome and uncertain tort actions based on negligence, which were accessible only to a few. As the law sharpened its tools—from civil suits to consumer complaints to criminal charges—the doctor's sacred oath to heal has had to accommodate the growing demand to defend. This uneasy truce between care and caution defines the modern practice of medicine
The Consumer Protection Act: A Turning of the Tide
The landscape shifted dramatically with the passage of the Consumer Protection Act, 1986. For the first time, a patient was expressly recognized as a “consumer,” and the services rendered by a doctor were classified as a “service.” This quiet legal revolution found its most profound articulation in the Supreme Court's ruling in Indian Medical Association v. V.P. Shantha (1995). In Shantha, the Court declared that when a doctor agrees to treat a patient, it constitutes an actionable contract for the rendering of services for consideration—be it direct or through insurance or other payment schemes. Negligent treatment would thus amount to “deficiency in service” under the Consumer Protection Act. This ruling opened the floodgates. Patients now had inexpensive, efficient, and localized forums—the district, state, and national consumer commissions—to pursue claims against doctors and hospitals. The era of judicial deference began to yield to an era of judicial scrutiny.
From Bolam to Montgomery: An International Influence
Judicial approaches to medical negligence in India have not evolved in isolation. Indian courts have consistently been influenced by trends in the UK and Commonwealth jurisdictions. The Bolam test, originating in Bolam v. Friern Hospital Management Committee (1957), emphasized that a doctor was not negligent if their conduct aligned with a practice accepted as proper by a responsible body of medical professionals. For years, Bolam served as the lodestar. It was a principle that balanced patient claims against professional autonomy. However, with growing recognition of patient rights globally, the UK Supreme Court's ruling in Montgomery v. Lanarkshire Health Board (2015) introduced a paradigm shift: doctors must disclose material risks and respect patient autonomy, rather than unilaterally deciding what is best. Indian courts, notably in cases like Samira Kohli started cautiously that Bolam was the standard to be applied but held that a surgical procedure adopted removing ovaries, a decision taken at the operation table, for what was believed to be in patient's interest, without prior consent was an instance of medical negligence and in Agrasen Hospital, the Supreme Court firmly established this patient-centric approach, signalling a slow but steady departure from Bolam-style deference.
Beyond Civil Wrongs: When Negligence Becomes Criminal
Medical negligence is not always confined to civil liability. In cases of gross, brazen, or reckless negligence, criminal prosecution becomes a distinct possibility. Sections 304A, 337, and 338 of the Indian Penal Code can be invoked when a doctor's conduct amounts to culpable negligence resulting in death or bodily injury. However, Indian courts, recognizing the chilling effect this could have on medical practice, have laid down safeguards. In Jacob Mathew v. State of Punjab (2005), the Supreme Court held that to fasten criminal liability, the degree of negligence must be of a very high order—so gross that it can be described as “criminal.” Additionally, before prosecuting a doctor for criminal negligence, an independent medical opinion from a government doctor or panel was mandated. Thus, while access to civil remedies under the consumer law is liberal, the criminal threshold remains carefully guarded.
The Doctor's Dilemma: The Rise of Defensive Medicine
With these legal developments came an unintended consequence: defensive medicine. Fearful of litigation—whether civil or criminal—doctors increasingly opt for extensive investigations, imaging, and laboratory tests, even when clinical examination alone might suffice. Clinical acumen and the classic art of bedside diagnosis are slowly yielding to an investigation-based approach. MRI scans replace thorough physical examinations; blood panels are ordered for the mildest of fevers. Doctors, concerned about allegations of “missed diagnosis” or “failure to advise alternatives,” prefer to over-investigate rather than rely on their seasoned clinical judgment.
This shift carries profound implications:
- Costs Escalate: The financial burden on patients grows, often without commensurate clinical benefit.
- Patient Trust Erodes: Over-reliance on machines can alienate the patient from the human touch that is central to healing.
- Professional Satisfaction Declines: Doctors, trained in the art of clinical medicine, find themselves mired in bureaucratic paperwork and defensive record-keeping.
The profession is thus caught in a painful bind: a duty to heal, a fear of blame, and a system that increasingly rewards caution over courage.
Striking the Right Balance: Reform or Ruin?
The law must ensure accountability without paralyzing professional judgment. Judicial pronouncements have made commendable attempts to walk this tightrope. The Martin F. D'Souza v. Mohd. Ishfaq (2009) judgment, for instance, cautioned consumer fora against awarding damages for mere errors of judgment absent clear evidence of negligence. Similarly, the Consumer Protection Act, 2019, though expanding the pecuniary jurisdiction of forums, also emphasized alternative dispute resolution and expert panels to ensure that genuine grievances are separated from mere dissatisfaction.
Nevertheless, reforms must go further:
- Institutional Peer Review: Before a complaint reaches consumer courts, medical councils or institutional panels could be mandated to assess its prima facie validity.
- Training in Medical Law and Ethics: Medical curricula must integrate legal education so that doctors are better prepared.
- Transparency and Communication: Doctors must document discussions, consent, and advice meticulously but also engage patients with empathy, not fear.
A Healing Touch for the Law Itself
Medical negligence law in India has matured from the long shadows of tort to the open halls of consumer forums, and cautiously into the realm of criminal law. While the law now empowers patients, it must not cripple the noble intent at the heart of medicine. Doctors must not practice in fear. Patients must not suffer in ignorance. The courts, the clinics, and the communities must together build a culture where accountability, compassion, and clinical excellence coexist. Only then can the healing touch remain true—not just to the patient, but to the very soul of the profession.
Views Are Personal.
Author is a Former Judge of High Court of Punjab And Haryana.
The above is an excerpt taken from the book 'Medicine And Law' written by him and published by Thomson Reuters.
The book is Available in https://amzn.in/d/02RUSmj;