LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More


  • In the case of “Jacob Mathew V. State of Punjab”, here it was clarified that for negligence to be considered a criminal offence, there has to be a higher degree of negligence which is also referred to as “gross negligence” or “recklessness”, as well as the very presence of “mens rea that is guilty mind”, and on the other hand, civil negligence involves a lower degree and does not required proving intent, only a breach of duty that caused harm. 
  • In India, medical negligence is defined into criminal and civil law, with specific provisions such as Section 304-A of the Indian Penal Code that punishes medical professionals who because of their actions during the course that leads to a patient’s death, also section 88 and 92 of the IPC provide immunity on the other hand for doctors acting in good faith, especially in emergencies where patient consent is not “Feasible”.
  • The Consumer Protection Act of 1986, provisions in this has expanded the rights of patients treating them as “Consumers of medical services”, in the case of “The Indian Medical Association V. V.P. Shantha”, here the judgment of this case confirmed that paid medical services fall under “Service” as defined by the Act, making medical professionals accountable for “Deficiencies in service”, except in cases where free treatment or uncontrollable high-risk performance is involved.


Medical malpractice occurs when a doctor/physician's actions or omissions during patient treatment deviate from accepted medical practice norms, resulting in patient injury. This form of malpractice is a specific category within “Tort Law”, which addresses professional negligence. Derived from the “Norman” word for “Wrong”, tort law establishes and provides remedies for civil wrongs that are separate from contractual or criminal violations. Negligence, in this context, refers to behaviour that fails to meet a defined standard. The most common benchmark in tort law is the “reasonable person” standard a legal concept that represents how a typical individual would act under similar circumstances to protect others from foreseeable harm.

The word “Malpractice” is derived from the Latin words “Malus (bad)” and “Practicare (to practice)”, the literal meaning of “Malpractice” is, when a professional fails to deliver the standard of care that is owed to a client, which subsequently causes grave harm or injury. The concept of “Malpractice” applies mostly to two professions ‘Doctors and Lawyers’. When “Medical Malpractice” is involved, it denotes any action or inaction by the doctors that deviates from established and accepted standards of care and harms the patient. The term “Medical Malpractice” is commonly used in Western countries (specifically the USA), however, in India it is “Medical Negligence”. Legal malpractice happens when a lawyer’s negligence or intentional wrongdoing harms a client. Not every mistake by a lawyer qualifies as malpractice. To prove legal malpractice, one must show an attorney-client relationship, a breach of duty, causation, and monetary loss. In India, legal malpractice is referred to as “Professional misconduct”.

Medical negligence, or medical malpractice is a legal concept where a healthcare professional fails to provide the standard of care expected, resulting in harm to the patient. This can occur through acts of omission or commission. It is important to note that not all adverse medical outcomes are due to negligence. Medical treatment involves many variables, and not every negative result is the result of a healthcare professional’s failure.  To prove medical negligence, it must be demonstrated that the healthcare professional breached their duty of care by failing to meet the required standard. This is serious with potentially severe consequences for patients, and healthcare professionals must provide care that meets the expected standards to avoid such situations. Patients affected by medical negligence have the right to seek legal redress and compensation for their injuries. 

Examples of medical negligence include misdiagnosis, incorrect treatment or medication, surgical; errors, failure to obtain informed consent, and inadequate follow-up care. These can result in a range of injuries or harm to the patient, including physical, emotional, and financial damages. In the landmark case of “Jacob Mathew V. State of Punjab”, the Supreme Court gave its judgment by framing guidelines for holding doctors criminally liable for professional negligence or service deficiencies. This case involved a doctor from CMC, Chandigarh, who was accused of negligence resulting in the death of a terminally ill cancer patient due to the unavailability of oxygen. The Supreme Court ruled that the doctor could not be prosecuted in this instance. The court emphasized the need for extreme care and caution when initiating criminal proceedings against medical practitioners for alleged negligence. The court highlighted the noble nature of the medical profession and the necessity of protecting doctors from unjust prosecutions. The court clarified that this protection does not mean doctors are immune from prosecution. Instead, it underscores the importance of careful consideration in such cases to balance societal interests and ensure justice. 

With growing “injustice to doctors” in recent times due to patients and families taking disadvantage of the laws, the Central Government of India has recently amended the new criminal code to reduce the punishment for doctors in cases of medical negligence, previously a doctor’s negligence leading to death was treated almost as severely as murder. This change was made following requests from the Indian Medical Association (IMA).

According to Clause 106 of the “Bharatiya Nyaya Sanhita 2023” (IPC), the offence of “Causing death by negligence” carries a punishment of up to five years of imprisonment and a fine. However, the new amendment specifies that if such an act is committed by a registered medical practitioner during a medical procedure, the punishment is reduced to imprisonment for up to two years and a fine. Additionally, an amendment to the “Bharatiya Nagarik Suraksha Sanhita 2023” (CrPC) has made this offence “cognizable and bailable”. 

Millions of lives worldwide are negatively impacted by medical misconduct daily, making it a major problem in India. Medical malpractice occurs when a healthcare professional deviates from accepted standards of practice, causing harm. According to a survey by “Banglore’s National Law School of India University (NLSIU), medical negligence in India has increased by 400% over the past decade. Historical cases show this issue is not new, in the year 1953, a child in Pune, Maharashtra died due to improper anaesthesia during surgery, “The Anamika Ray Memorial Trust” reports that medical malpractice leads to 98,000 deaths annually in India, with approximately 5.2 million medical injuries reported each year. 


Looking back at the history of medical negligence, it was noted in ancient civilizations that medical negligence was often treated as a crime rather than a tort, however over the period of time the judiciary strengthened and began to view it more as a civil wrong rather than criminal, wherein it was noted that they were hesitant to hold physicians criminally liable for their malpractice and deviation from standard practices. This reluctance was based on the assumption that a sensible practitioner, who is acting in good faith, aims to provide the best possible care. The evolution of common law on “Professional negligence” was established in the landmark case of “Donoghue V. Stevenson”, wherein it was stated that medical negligence can be said as a subset of professional negligence that requires an additional view through the infamous “The Bolam Test”.

This was upheld in the landmark judgement of “Jacob Mathew V. State of Punjab”, where it was stated that a professional should possess the knowledge expected of an ordinary, diligent member of their profession, and stay updated with advances in their field. Medical negligence legally refers to the breach of duty of care that results in harm. This harm can have consequences of financial loss, health deterioration, trauma, or irreversible conditions for the patient. India’s legal principles are heavily influenced by English law, including the precedent set by “Bolam V. Friern Hospital Management Committee” (1957). In Bolam’s case, the court ruled that an error constitutes negligence if a reasonably competent professional would not have made it under similar circumstances.

The Supreme Court of India, in the case of “Kusum Sharma & Ors V. Batra Hospital & Medical Research” (2010), defined negligence as the breach of duty, either by failing to do something a reasonable person would do or by doing something a prudent person would not do. In another landmark case of “Jacod Mathew V. State of Punjab & Anr” (2005), the Supreme Court of India set essential guidelines for distinguishing between medical accidents and criminal negligence. The court emphasized that an adverse outcome from a medical procedure does not automatically constitute criminal negligence. 

The Indian legal system has been slow to adapt to international developments in medical negligence law. Initially, most medical negligence claims were treated as criminal offences under the Indian Penal Code. In a landmark case of “Juggankhan V. State of Madhya Pradesh”, where a homoeopathy doctor prescribed a poisonous ayurvedic medicine and was found guilty of gross negligence, despite the doctor’s imprisonment, the patient’s family couldn’t claim damages under tort law. 

The introduction of the Consumer Protection Act (CPA) in 1986 provided a civil remedy for claimants to seek damages and compensation for injuries caused by medical negligence. Claimants could file complaints under Sections 11(i), 17, or 21 of the CPA. These complaints must be filed within two years unless a valid reason for the delay is provided. 

In a landmark case in 2005, the Supreme Court in the case of “Jacob Mathew” established guidelines for medical negligence in India. This case allowed claimants to seek compensation for injuries and file criminal complaints against negligent doctors. However Indian courts face challenges in interpreting “Rash or negligent” under Section 304(A) of the IPC as “Grossly negligent”. This interpretation makes it difficult for claimants to prove negligence, as courts often apply this standard even in cases of ordinary negligence. Additionally, there is ambiguity between civil and criminal liability, with no clear criteria provided by the Supreme Court. To prove medical negligence, three essential components must be established: Duty of Care, Breach of Duty, and the resulting Damage or Injury to the patient.


Forensic medicine has a very crucial role in the decree of medical negligence cases, wherein it provides essential insights and evidence that determine whether a medical professional was unsuccessful in meeting the required standard of care, medical negligence is often referred to as medical malpractice also, it occurs when a medical professional deviates from accepted norms of medical practice, causing harm to the patient. The integration of forensic medicine in these cases ensures a thorough investigation, helping to establish fats and deliver justice. In other words, the term forensic medicine can also be known as legal medicine which can defined as the application of medical knowledge to legal problems that arise, also that encompasses a range of activities such as ‘Autopsies’ wherein it determines the cause of death, subsequently analyzing medical records and provides testimony of an expert in the court of law. Forensic medicine bridges the gap between medicine and law, which ensures the medical facts of the incident are accurately presented in the legal context.

Key Functions of Forensic Medicine in Medical Negligence

  1. Autopsy and Cause of Death: Among the main duties of forensic medication in medical oversight situations is performing autopsies. A post-mortem examination is an in-depth examination of a dead person's body to figure out the reason for fatality. In instances where medical negligence is thought a post-mortem examination can disclose vital info regarding whether the fatality was brought on by a clinical mistake, improper therapy, or failure to identify a problem properly. For example, if a client passes away unexpectedly after a medical treatment a forensic pathologist can execute a post-mortem examination to determine any kind of medical mistakes such as perforations or missed out on injuries, that might have added to the individual's fatality. The searches from the post-mortem examination can give concrete proof to sustain insurance claims of medical carelessness.
  2. Evaluation of Medical Records: Forensic experts carefully examine case histories to recognize any kind of variances from conventional techniques. This evaluation entails analyzing the client's background therapy strategies, and medicine management, along with the timeline of treatment given. By contrasting these documents with developed medical standards forensic experts can recognize circumstances where the doctor might have fallen short of providing ideal treatment. For instance, if an individual experienced damaging impacts because of the wrong drug dose a forensic experts can map the mistake back with the case history to figure out where the blunder took place. This evaluation is important in developing the violation of the task and also connecting it to the injury endured by the individual.
  3. Expert Testimony: Forensic medicine specialists frequently work as professional witnesses in court, offering statement that describes complicated medical problems in a fashion easy to understand to courts and also juries. Their proficiency aids clear up whether the criterion of treatment was breached as well as if the violation directly created the client's injury or fatality. In medical oversight situations, the statement of a forensic specialist can be critical. They can describe the medical treatments including analysing the seekings from the post-mortem examination or case histories along with giving an honest viewpoint on whether the doctor's activities satisfied the anticipated criteria. This testament aids the court make educated choices based on medical proof.

Instances of Forensic Medicine in Medical Negligence Cases 

  1. Medical (Surgical) Errors:  In situations of surgical mistakes forensic medication plays an important duty in establishing the specific root cause of difficulties or fatality. Forensic pathologists can recognize blunders such as preserved medical tools, damages to bordering body organs or inappropriate medical methods. These searchings are important in verifying that the damage arises from carelessness instead of an unpreventable problem. For example, if a client passes away from inner blood loss after a surgical procedure, a forensic pathologist can carry out an autopsy to identify if the blood loss was because of a specialist's mistake such as accidentally reducing an embolism. Post-mortem examination searching can after that be utilised to sustain insurance claims of medical carelessness.
  2. Medication Errors: The ‘Medication Errors’, such as inaccurate dosage or the management of the incorrect medicine, can have extreme effects on people. Forensic professionals evaluate the person's case history, medication logs, and also pharmacy store documents to map the resource of the mistake. This examination assists develop whether the mistake was scheduled neglect by the recommending medical professional, registered nurse, or pharmacologist. For instance, if an individual experiences a serious sensitive response to a drug they ought to not have gotten, a forensic specialist can evaluate the medical reports to establish if the person's allergic reaction was recorded as well as whether appropriate procedures have adhered to avoid the management of the contraindicated drug.
  3. Misdiagnosis and also Delayed Diagnosis: Misdiagnosis or postponed medical diagnosis can bring about considerable injury particularly if the person misses out on important therapy home windows for major problems. Forensic experts evaluate the analysis procedure, consisting of the examination of signs and symptoms, buying of examinations, along analysis of outcomes, to identify if the doctor stopped working to identify the problem appropriately. In instances where an individual passes away from a problem that must have been identified previously, forensic specialists can contrast the signs as well as examination results versus basic analysis treatments. If the doctor missed out on apparent indicators or stopped working to buy required examinations it can be taken into consideration oversight.
  4. The Legal Framework as well as Forensic Medicine: The duty of forensic medicine in medical carelessness is sustained by the legal structure that controls clinical methods. In several nations including India as well as the United States, medical negligence is resolved via tort legislation, which handles civil misdoings. To verify medical oversight, the complainant needs to develop 4 aspects: obligation, violation of that task, source coupled with problems.
  5. Responsibility: Medical care provider has the task of liking their individuals, suggesting they are bound to provide therapy that satisfies approved medical requirements. Forensic specialists assist figure out whether the doctor owed a task of liking the person by examining the connection between the client as well as the supplier.
  6. Breach of Duty: A violation of responsibility happens when the doctor falls short of fulfilling the criterion of treatment anticipated in their career. Forensic medication is important in developing this violation by contrasting the company's activities to developed standards and also techniques. The forensic expert's evaluation of case histories, post-mortem examination searches and also various other proof assists show whether the criterion of treatment was breached.
  7. Causation: Causation links the violation of a task to the damage experienced by the person. It has to be revealed that the provider’s activities directly created the injury or fatality. Forensic experts play an essential function in developing causation by offering proof that links the medical professional’s carelessness to the person's injury. This might entail examining case histories and carrying out autopsies coupled with utilizing techniques to map the root cause of injury.
  8. Damages: The last component confirms that the person experienced problems which can be physical, psychological, or monetary. Forensic experts aid in quantifying these problems by recording the degree of the damage together with giving proof of the effect on the person's life. This proof is important in figuring out the settlement owed to the person or their household."


Forensic experts play a crucial function in medical oversight situations by reviewing whether a doctor has actually breached the criterion of treatment and also establishing if such infractions created damage to the person. Their competence is critical in offering unbiased medically based analyses that can make clear complicated medical problems for lawful processes. The requirement of treatment in clinical technique describes the degree of proficiency along with therapy that a fairly competent healthcare specialist with comparable training together with experience would certainly offer under comparable scenarios. It is a criterion versus which medical professional activities are evaluated to establish whether they satisfied specialist commitments. Forensic experts typically medical professionals with specialized training, are contacted to weigh whether the medical therapy supplied satisfied the approved criterion of treatment.

  1. Evaluation of Medical Records: Forensic specialists start by carefully examining the person's medical report. These reports consist of the person's background, analysis examinations, therapy strategies, and drug management, coupled with notes from the doctor. The purpose is to reconstruct the series of medical occasions resulting in the claimed oversight.
  2. Comparison with Established Guidelines: The specialist contrasts the therapy offered the well-established medical standards as well as methods. This contrast aids in determining any kind of variances from approved medical methods. As an example, if a client was detected with a details problem the specialist will certainly analyze whether the analysis examinations plus therapies suggested straighten with the conventional standards for taking care of that problem.
  3. Assessment of Practitioner's Actions: Forensic experts evaluate the activities of the doctor to identify if they correspond to what a skilled expert would certainly carry out in comparable scenarios. This consists of reviewing the timeliness of medical diagnosis, the suitability of therapy, as well as the decision-making procedure.
  4. Contextual Analysis: The experts additionally think about the context in which the doctor runs. Elements such as the schedule of sources, the necessity of the circumstance, & the individual's problem are taken into consideration to make certain a reasonable analysis. As an example, emergency scenarios might warrant variances from common treatments.
  5. Recognizing Causation: Causation in medical negligence describes the causation link between the doctor's breach of duty and also the damage experienced by the client. It needs to be confirmed that the activities (or absence) directly triggered the person's injury or exacerbated their problem.

Function of Forensic Experts in Determining Causation

Developing causation is an essential plus frequently complicated component of medical negligence situations. Forensic experts play an essential function in this procedure with the complying with actions:

  1. Assessing Medical Records and also Test Results: Experts carefully check out the client's medical reports as well as examination results to determine the series of occasions that caused the injury. This consists of searching for indications of exactly how the individual's problem developed as well as exactly how the therapy influenced their health and wellness.
  2. Identifying Deviation from Standard of Care: The experts figure out if there was an inconsistency in the standard of treatment as well as whether this variance could have created the injury. As an example, if medical treatment was done inaccurately, causing inner blood loss, the professional would certainly connect the inappropriate strategy to the resulting injury.
  3. Associating Actions to Outcomes: Forensic experts associate the doctor's activities (or no actions) with the individual's results. They utilize medical expertise together with experience to develop a rational link between the violation of a task and also the injury. As an example, if a postponed medical diagnosis brought about an individual's problem intensifying, the professional would certainly describe exactly how the hold-up added to the damage.
  4. Utilizing Differential Diagnosis: Experts frequently utilize differential medical diagnosis, an approach utilized to determine an illness or problem based on an individual's signs and symptoms to eliminate various other possible root causes of the injury. This assists develop that the damage was certainly because of the service provider's carelessness instead of various other variables.
  5. Statistical plus Scientific Evidence: In many cases, forensic experts depend on analytical together with medical proof to sustain their verdicts. As an example, they might refer to clinical literary works or scientific research that shows a clear web link between the requirement of treatment infractions along the sort of injury received by the person.
  6. The Role of Expert Testimony: Forensic experts usually offer statements in court to discuss their searchings to the court along with the court. Their testament is important in assisting the court in comprehending intricate medical concerns as well as in developing whether the requirement of treatment was breached, and also if such offences triggered damage to the client.

Elements of Expert Testimony

  1. Qualification along with Expertise: The specialist starts by developing their credentials together with proficiency. This consists of their academic history, expert experience, along with any kind of appropriate qualifications. Establishing a reputation is vital for the court to consider their statement trusted.
  2. Description of Standard of Care: The expert discusses the requirement of treatment appropriate to the situation. They define what an objectively experienced healthcare provider would certainly have carried out in comparable conditions utilizing medical standards along with specialist criteria as recommendations.
  3. Discussion of Findings: The experts provide their searchings from the case history testimonial as well as various other evaluations. They detail the certain activities taken by the healthcare supplier as well as contrast them to the criterion of treatment. Any kind of variances are highlighted and also described carefully.
  4. Establishing Causation: The experts discuss exactly how the inconsistencies in the standard of treatment triggered the individual's injury. They give a sensible series of occasions that connect the company's activities to the damage experienced. This commonly includes in-depth descriptions of medical treatments, analysis examinations along therapy results.
  5. Addressing Counterarguments: Throughout cross-examination, the expert might be doubted by the protection lawyer. They have to be prepared to deal with counterarguments and also difficulties in their searchings. This needs an extensive understanding of the instance information as well as the capability to clarify complicated medical ideas.
  6. Effect of Expert Testimony: An Expert’s statement can substantially influence the result of a medical negligence situation. A well-supported coupled with plainly offered testimony can assist the court in recognizing the subtleties of the instance, and bring about a reasonable judgment. On the other hand, vague or badly sustained testament can weaken the instance as well as result in negative results for the complainant.
  7. Obstacles Faced by Forensic Experts: Medical situations are frequently complicated including numerous aspects that can affect the result. Separating the particular source of damage and also showing oversight calls for precise evaluation plus a deep understanding of medical treatments plus criteria.
  8. Staying up to date with Advances in Medicine: Medical expertise coupled with modern technology are continually advancing. Forensic experts need to remain upgraded with the current growths to guarantee their analyses plus statements are precise as well as appropriate.
  9. Keeping Objectivity: Forensic experts should keep neutrality and also impartiality. They must give honest, medical audio proof, no matter which side they are making evidence for. This moral duty is vital in keeping the reputation of forensic medication in lawsuits.


Finally, forensic medication plays a vital duty in the evaluation along with the settlement of medical malpractice instances giving necessary understandings as well as proof to establish whether doctors have fulfilled the called-for criterion of treatment as well as whether their activities have triggered injury to individuals. With its combination of rights into lawful procedures, forensic medication makes certain comprehensive examinations, and precise discussion of medical truths, as well as the shipment of justice. The lawful structure bordering medical carelessness, both in India together with globally underscores the value of developing tasks of treatment, violation of tasks, causation, as well as problems. Forensic experts add significance to every of these aspects by diligently examining medical reports contrasting activities to well-known standards determining variances from the criterion of treatment, as well as establishing causation with extensive evaluation of clinical proof.

Skilled testimony supplied by forensic experts functions as a vital device in aiding courts to recognize intricate medical problems, as well as make educated choices. Their credentials, competence, as well as the capacity to connect intricate clinical ideas in a clear as well as reasonable, are necessary in forming the result of medical negligence situations. Nevertheless, forensic experts additionally deal with obstacles, consisting of the intricacy of medical situations the requirement to remain upgraded with breakthroughs in medication and innovation, and also the moral obligation to preserve neutrality as well as impartiality. Regardless of these obstacles, forensic medication remains important in dealing with clinical oversight making certain responsibilities for doctors and also offering choices for clients that have actually endured damage. As medical scientific research as well as lawful criteria progress the function of forensic experts will certainly continue to be critical in connecting the void between medication plus regulation inevitably adding to the reasonable and also simple resolution of medical negligence situations.

"Loved reading this piece by anshika parth?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"

Tags :

Category Others, Other Articles by - anshika parth