With the advent of the Consumer Protection Act, more and more patients are filing cases pertaining to negligence against medical practitioners. Negligence is a breach of duty to care. When a medical professional offers medical service and treatment, he/she is impliedly stating that they have the competency i.e. the skill and the knowledge, to decide whether or not to take the case, the treatment to be performed and administered. This is called the “implied undertaking” on the end of such medical professional. Every doctor has a duty to act with care and skill. Medical practitioners may be held liable for a negligent act, either individually or vicariously, except when they render service without charging fee. A medical practitioner can be held liable only if it is proven that he did not take reasonable care as expected from a medical practitioner with ordinary degree of skills. This does not include error in judgement, which means, a medical professional possessing a standard degree of skills committing an error even while acting with ordinary care. In cases where despite taking maximum care and employing the suitable treatment, the skilled medical practitioner is not successful in curing the patient, he/she cannot be held liable for negligence as medical practitioners cannot give a warranty of perfection. In some cases, doctrine of res ispa loquitur (the thing speaks for itself) can be invoked where no proof of negligence is required. Highest possible degree of skill is not expected from the medical practitioner, only those skills which an average person with his qualifications ought to have.
In civil law, the liability of the offence is based upon the amount of damages incurred, whereas in criminal law, the amount and degree of negligence is a factor in determining the liability. If it is established that the medical practitioner is negligent or incompetent, and have disregard for the life and safety of his patient, which results in the death of the patient then it amounts to a crime against the State.
However, the provisions of the Indian Penal Code also lays down the defenses which can be given to the medical professionals. In case of an absence of any criminal intention or knowledge, an offence resulting from an accident or misfortune, despite taking proper care and caution, will not make the medical practitioner liable for negligence. Similarly, a medical practitioner cannot be accused of an offence if she/ he performs an act in good faith for the patient’s benefit and does not intend to cause harm even if there is a risk and the patient has explicitly given consent.