This is the single most important thing to understand before spending years on a claim. Medicine is not a guarantee, and the law does not treat an unsuccessful outcome as proof of fault.
The three elements
- Duty of care. Usually easy, since it arises from the doctor-patient relationship.
- Breach of the standard of care. The standard is that of an ordinary, reasonably competent practitioner exercising ordinary skill in that field. It is not the standard of the most eminent specialist available.
- Causation and damage. The breach must have caused the injury. This is where most claims fail, because the patient was often already seriously ill.
The governing authorities
Bolam v. Friern Hospital, adopted in India, holds that a doctor is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical opinion, even if others would have acted differently. Jacob Mathew v. State of Punjab (2005) applied this and added an important protection: for criminal liability, the negligence must be of a very high degree, gross or reckless, and a private complaint against a doctor should not be entertained without a credible opinion from another competent doctor.
That distinction between civil and criminal negligence now has a statutory counterpart. Section 106(1) of the Bharatiya Nyaya Sanhita, 2023 punishes causing death by a rash or negligent act with imprisonment which may extend to five years, but its proviso prescribes a lower maximum of two years where the act is done by a registered medical practitioner while performing a medical procedure. The Sanhita defines that expression by reference to the National Medical Commission Act, 2019: a practitioner holding a recognised medical qualification whose name is entered in the National Medical Register or a State Medical Register. So the special treatment turns on registration, and it does not extend to unregistered practitioners or to conduct outside a medical procedure.
Courts repeatedly distinguish between an error of judgement made in good faith while exercising reasonable skill, and a failure to exercise reasonable skill at all. Where two respectable schools of medical opinion exist, choosing one of them is not negligence. Deviating from both, without explanation, may be.
Where claims do succeed
- Retained instruments or swabs after surgery, and wrong-site or wrong-patient procedures. These attract res ipsa loquitur, the thing speaks for itself, shifting the burden to the hospital
- Operating without informed consent, or performing a procedure materially different from the one consented to
- Failure to investigate or refer where the symptoms plainly required it
- Administering a drug the records show the patient was known to be allergic to
- Vicarious liability of the hospital for its staff, and for failures of equipment, infection control and staffing
Two categories are worth adding because they are increasingly common and often missed. The first is a failure of the system rather than of a person: no blood in the bank, a ventilator that was not serviced, no anaesthetist on call, a pathology report that reached the ward two days late. The hospital owes its own duty on these, independently of any individual doctor, and this route survives even where no individual can be identified. The second is a failure to warn or to follow up: discharge without the warning signs being explained, or a critical report that came back abnormal after discharge and was never communicated. Both are proved from the records rather than from expert opinion, which makes them cheaper claims to run.
Where claims fail, which is more useful to know
- Causation is not proved. The patient was gravely ill on admission and the evidence cannot separate the disease from the treatment. This is the single largest reason claims are dismissed.
- No expert opinion, or an opinion from a doctor in a different speciality, or an opinion that criticises the outcome rather than identifying a departure from the standard.
- The records support the hospital. Contemporaneous notes recording that risks were explained, that the deterioration was recognised and acted on, and that referral was offered are very hard to displace.
- A recognised complication that was disclosed in the consent form and occurred without any departure from technique. That is misfortune, not negligence.
What you will need
The complete medical records, and an expert medical opinion from a practitioner in the same speciality saying what the standard required and how it was breached. Without that opinion, a claim is very difficult, and obtaining it should be the first step rather than the last.
A useful opinion is specific. It should identify the accepted standard of care for this presentation, cite the guideline or textbook it comes from, state exactly where the treatment departed from it, and say in terms that the departure caused or materially contributed to the injury. An opinion that says the outcome was unfortunate and better care might have helped is worth nothing at a hearing. Obtaining it early also tells you the one thing you most need to know, which is whether to spend the next three years on the claim at all.
Get the opinion from outside the city or the referral network if you can, because doctors are understandably reluctant to write against colleagues they work with. Pay for it, take it in writing on letterhead, and be ready for the author to be summoned. Where the claim is against a government hospital, the same standards apply but the forum may differ.
Once you have the records and an opinion that holds up, the next question is which of the three forums to use, and in what order. Our note on where to file a medical negligence claim compares them on cost, speed and what each can actually deliver, and our step by step guide on how to file a medical negligence complaint sets out the pleadings, the annexures and the sequence.