Medical negligence — the legal test in India
Whether a doctor was negligent is not, in Indian law, a question of whether the treatment went well. It is a question of whether the doctor's conduct fell below the standard of an ordinary skilled practitioner in that branch of medicine — the test laid down by McNair J in Bolam v Friern Hospital Management Committee, [1957] 1 WLR 582, adopted as the governing standard for India by a three-judge Bench of the Supreme Court in Jacob Mathew v State of Punjab, (2005) 6 SCC 1. The same judgment fixed a separate and higher threshold for criminal liability — gross negligence or recklessness, not mere lack of care — and read that requirement into the prosecution of doctors under Section 304A of the Indian Penal Code, the predecessor of Section 106(1) of the Bharatiya Nyaya Sanhita, 2023. Kusum Sharma v Batra Hospital and Medical Research Centre, (2010) 3 SCC 480 distilled the position into eleven working principles. Martin F D'Souza v Mohd Ishfaq, (2009) 3 SCC 1 added a mandatory pre-FIR peer-review filter; V Kishan Rao v Nikhil Super Speciality Hospital, (2010) 5 SCC 513 read that filter down within months. This guide sets out the test, the civil-criminal distinction, and the pre-FIR screening procedure as they now operate.
The law of medical negligence in India is doctrinally settled but operationally contested. It is settled because a three-judge Bench of the Supreme Court in Jacob Mathew v State of Punjab, (2005) 6 SCC 1 adopted the Bolam test from English law as the standard for civil and disciplinary liability and laid down a higher threshold of gross negligence or recklessness for criminal prosecution — a framework reaffirmed and elaborated by Kusum Sharma v Batra Hospital and Medical Research Centre, (2010) 3 SCC 480. It is contested because the practical machinery — the pre-FIR peer-review filter introduced by Martin F D'Souza v Mohd Ishfaq, (2009) 3 SCC 1 and substantially confined by V Kishan Rao v Nikhil Super Speciality Hospital, (2010) 5 SCC 513 — continues to generate friction between the criminal-justice apparatus, the medical profession and the consumer-protection forums. This article sets out the doctrinal frame, the standard of care, the civil-criminal distinction and the screening procedure for a criminal complaint, in the form a researcher needs to understand a typical medical-negligence litigation.
The Bolam test — the doctrinal anchor
The standard of care expected of a medical practitioner is fixed by the test laid down by McNair J in Bolam v Friern Hospital Management Committee, [1957] 1 WLR 582. The case arose from electro-convulsive therapy administered without muscle-relaxants and without restraints; the patient suffered fractures. Directing the jury, McNair J said: "Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill". The doctor need not possess the highest expert skill; it is sufficient that he exercises "the ordinary skill of an ordinary competent man exercising that particular art".
The Bolam test has two operative limbs. The first is the standard — that of the ordinary skilled practitioner professing the particular special skill. The second is the defence — that a doctor is not negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical opinion, even if a contrary body of opinion would have done otherwise. The House of Lords in Maynard v West Midlands Regional Health Authority, [1985] 1 All ER 635 affirmed both limbs and added that it is not enough to show that there exists a body of competent professional opinion which considers that the defendant's decision was wrong if there also exists a competent body of opinion that supports it as reasonable. Lord Scarman, recording the leading speech, quoted Lord President Clyde in Hunter v Hanley, 1955 SC 200: "In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men… The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care".
Bingham LJ in Eckersley v Binnie, (1988) 18 Con LR 1 restated the standard in the terms in which it has since been most frequently quoted in Indian judgments — a professional man should command the corpus of knowledge that forms part of the professional equipment of the ordinary member of his profession, should not lag behind in knowledge of new developments, should bring to any task no less expertise than other ordinarily competent members of the profession would bring, but need bring no more. The standard is that of the reasonable average; the law does not require that a professional be a "paragon combining the qualities of polymath and prophet". The House of Lords in Bolitho v City and Hackney Health Authority, [1998] AC 232 qualified Bolam by adding that the body of professional opinion relied upon must withstand logical analysis — a defence cannot stand on a practice that is incapable of reasoned justification. The Bolitho qualifier has been received in Indian decisions but plays a limited role; Indian courts rarely reject a body of professional opinion as illogical.
Adoption in India — Jacob Mathew v State of Punjab
The Bolam standard was applied in Indian decisions long before Jacob Mathew — by the Supreme Court in Dr Laxman Balkrishna Joshi v Dr Trimbak Bapu Godbole, AIR 1969 SC 128 (a Fatal Accidents Act case where the doctor performed a fracture-reduction without anaesthesia), in Achutrao Haribhau Khodwa v State of Maharashtra, (1996) 2 SCC 634 (a mop left inside the patient's abdomen, res ipsa loquitur applied), in Poonam Verma v Ashwin Patel, (1996) 4 SCC 332 (a homoeopath prescribing allopathic medicine, held negligent per se) and in Spring Meadows Hospital v Harjol Ahluwalia, (1998) 4 SCC 39 (the error-of-judgment distinction). What Jacob Mathew added was a comprehensive doctrinal restatement and, separately, a separate test for criminal negligence.
The facts of Jacob Mathew were narrow. A 75-year-old terminal cancer patient was admitted to a hospital in Ludhiana. He had difficulty breathing. The doctors attached an oxygen cylinder, which turned out to be empty. The patient died. The doctors were prosecuted under Section 304A of the Indian Penal Code. The matter came up on a question of law referred to a three-judge Bench — what is the standard of negligence to be applied for fastening criminal liability on a doctor for an act or omission in the course of medical treatment. The Bench, speaking through R C Lahoti CJ, set out the law in twelve paragraphs of conclusions that have since been treated as authoritative. The first set of conclusions adopted Bolam for civil liability — negligence is the breach of a duty, the standard is that of the ordinary competent practitioner, a doctor following a practice accepted as proper by a responsible body of medical opinion is not negligent merely because a different practice was also available, a mere error of judgment is not negligence, and the doctrine of res ipsa loquitur must be applied with extreme care and caution in medical-negligence cases.
The second set of conclusions drew the line between civil and criminal liability. Drawing on Lord Atkin's speech in Andrews v Director of Public Prosecutions, [1937] AC 576 — "simple lack of care, such as will constitute civil liability, is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established" — and the earlier Indian decision in Syad Akbar v State of Karnataka, (1980) 1 SCC 30, the Bench held that for criminal liability under Section 304A IPC, the negligence must be "gross" or of a "very high degree", not merely the lack of care that would suffice for tortious or contractual liability. The Bench framed this requirement in the language of mens rea — that the negligence must approach recklessness, in the sense of running a risk known to be unjustifiable.
The doctrinal framework set out in Jacob Mathew is, in working language, this. A doctor who fails to bring to a task the ordinary skill of an ordinary competent practitioner in his branch may be held liable in damages — to the patient or the patient's estate, in tort, in contract, before a consumer forum, or in a writ proceeding against a state hospital. A doctor who fails to bring that skill in a manner amounting to gross negligence or recklessness may, additionally, be prosecuted — under Section 106(1) of the Bharatiya Nyaya Sanhita, 2023 [Section 304A IPC], with the higher threshold of gross negligence read into the statutory phrase "rash or negligent act". The first head reaches the doctor who fails to meet the average; the second head reaches the doctor who departs from the average so grossly that the criminal law is engaged.
The eleven Kusum Sharma principles
The Supreme Court in Kusum Sharma v Batra Hospital and Medical Research Centre, (2010) 3 SCC 480 distilled the position emerging from Bolam, Jacob Mathew, and the line of decisions since Laxman Balkrishna Joshi into eleven working principles that the trial courts and consumer forums have since cited as the operative summary. The principles are an exposition rather than a code, but they capture the test in the form in which it is most often applied:
One — negligence is the breach of a duty to exercise care. Two — negligence is an essential ingredient of liability; absent breach of duty, there is no liability. Three — the medical professional is expected to bring a reasonable degree of skill and knowledge, not the highest skill. Four — a professional may be held liable on one of two findings: that he was not possessed of the requisite skill which he professed, or that he did not exercise with reasonable competence the skill that he did possess. Five — the standard is that of the ordinary competent person exercising ordinary skill in the profession. Six — it is well-settled that simple lack of care, error of judgment or accident is not proof of negligence. Seven — so long as a doctor follows a practice acceptable to the profession of his day, he cannot be held liable for negligence merely because a better alternative was available. Eight — when a charge is framed against a doctor for criminal negligence, the standard of negligence required is gross, of a very high degree. Nine — the standard is to be judged in the light of knowledge available at the time of the incident, not at the date of trial. Ten — the medical profession needs protection against frivolous and unjust prosecution; the courts should be careful to dispose of cases at the threshold where the allegation does not, even if proved, amount to negligence. Eleven — accident during the course of treatment has a wider meaning; care must be taken not to confuse the result of an accident with the consequence of negligence.
The eleven principles are, in working effect, a translation of the Bolam standard and the Jacob Mathew civil-criminal distinction into the language a District Consumer Forum, a Civil Court or a Sessions Court uses. The most consequential is the eighth — that criminal negligence requires a "very high degree" of departure from the standard, a degree that approaches recklessness. The most-cited in defence submissions is the seventh — that a doctor following a practice acceptable to the profession is not negligent merely because a better alternative was available.
The civil-criminal distinction
The civil and criminal standards have different doctrinal roots, different evidentiary requirements and different remedial consequences. The civil standard is the breach-of-duty standard of the tort of negligence — duty, breach, damage causally connected. The proof requirement is preponderance of probabilities. The remedies are compensation in tort under the Fatal Accidents Act, 1855 (where death has occurred) or general damages in tort, compensation under the Consumer Protection Act, 2019 [Indian Medical Association v V P Shantha, (1995) 6 SCC 651], or damages in a civil suit. The criminal standard is the gross-negligence-or-recklessness standard read into Section 106(1) of the Bharatiya Nyaya Sanhita, 2023 [Section 304A IPC] by Jacob Mathew. The proof requirement is beyond reasonable doubt. The remedies are imprisonment up to five years or fine or both under Section 106(1) BNS (the punishment was up to two years under the old Section 304A IPC; the BNS enhanced the maximum and inserted a special category at five-year-and-fine for a registered medical practitioner causing death by a rash or negligent act in medical procedure — Section 106(1) read with the BNS first proviso to that sub-section).
The general exceptions in the BNS to acts done in good faith by medical practitioners — Section 26 [Section 88 IPC] (act not intended to cause death, done by consent in good faith for the person's benefit), Section 27 [Section 89 IPC] (act done in good faith for the benefit of a child or insane person, by consent of guardian), Section 30 [Section 92 IPC] (act done in good faith for the benefit of a person without consent, in an emergency), and Section 31 [Section 93 IPC] (communication made in good faith for the benefit of the person to whom it is made) — continue to operate as defences in any criminal prosecution of a medical practitioner. The illustrations to these sections — the surgeon performing a likely-fatal operation with the patient's consent in good faith for the patient's benefit; the surgeon performing a trepan on an unconscious patient in good faith without consent — were carried forward from the IPC into the BNS substantially intact.
The doctrine of res ipsa loquitur — the thing speaks for itself — operates differently in the two jurisdictions. In civil proceedings, the rule may be applied where the cause of the injury is in the exclusive control of the defendant and the accident is such that, in the ordinary course, it would not have happened if those in control had used proper care. The classical illustrations in medical-negligence law are the swab left inside the abdomen (Achutrao Haribhau Khodwa) or the wrong limb amputated. The Supreme Court in Jacob Mathew held that res ipsa loquitur cannot be invoked to fix the essential ingredient of an offence under Section 304A IPC — in criminal proceedings, the prosecution must prove the gross negligence affirmatively, and the rule of evidence cannot substitute for that proof.
Civil forums — IMA v V P Shantha and the consumer route
The doctrinal question of whether a patient's complaint against a doctor can be heard by a consumer forum at all was settled by the three-judge Bench in Indian Medical Association v V P Shantha, (1995) 6 SCC 651. Medical services rendered to a patient by a medical practitioner — by way of consultation, diagnosis and treatment, both medicinal and surgical — fall within the ambit of "service" as defined in the Consumer Protection Act, 1986 (and the Consumer Protection Act, 2019 that has since replaced it). Services rendered free of charge to everyone availing them are outside "service", but the payment of token registration charges does not alter the position. A government hospital that charges some patients and treats others free will be covered as to the paying patients and the non-paying patients alike, since the cross-subsidy means the service is not rendered free. The consequence of Shantha is that the consumer forum is, in practice, the default forum for medical-negligence complaints in India — quicker than a civil suit, with no court-fee bar at the District Commission for claims up to Rs 50 lakh, and equipped with summary procedure under Section 38 of the Consumer Protection Act, 2019.
The compensation jurisdiction of the consumer forum has been used in a long line of cases — including the very high quantum awarded in Balram Prasad v Kunal Saha, (2014) 1 SCC 384 (Rs 6.08 crore against Advanced Medicare and Research Institute and three doctors for the death of Dr Kunal Saha's wife at AMRI Hospital, Kolkata in 1998 — the largest medical-negligence award in Indian history). The proof requirement before the consumer forum is the civil standard — preponderance of probabilities — and the Bolam framework supplies the standard of care. The Supreme Court in Kusum Sharma emphasised, however, that the consumer forum is not to be more relaxed than a civil court in applying the standard — the doctor is entitled to the same Bolam defence, the same protection against being judged with hindsight, and the same evidential burden on the patient to establish the breach.
Criminal forums — Jacob Mathew and the gross-negligence threshold
A patient or the patient's family who wishes to invoke the criminal law against a doctor — for the death of a patient under Section 106(1) of the Bharatiya Nyaya Sanhita, 2023 [Section 304A IPC], or for grievous hurt under Section 117(2) BNS [Section 326 IPC] in the rare case where intention or recklessness can be alleged — must clear the gross-negligence threshold laid down in Jacob Mathew. The doctrinal anchor is the formulation Lord Atkin gave in Andrews and the Supreme Court adopted in Syad Akbar: "Simple lack of care, such as will constitute civil liability, is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established".
What this means in practice is that the same fact-pattern that supports compensation before a consumer forum will not, without more, support a criminal prosecution. The Supreme Court in State of Punjab v Shiv Ram, (2005) 7 SCC 1, decided alongside Jacob Mathew, applied the framework to a failed sterilisation operation and held that the failure of the surgery in a small percentage of cases is a recognised risk of the procedure, not negligence. The Court in Jacob Mathew itself observed that "indiscriminate prosecution of medical professionals for criminal negligence is counter-productive and does no service or good to the society" — the language has since been used in dozens of orders quashing criminal proceedings against doctors at the high-court stage under Section 528 of the BNSS [Section 482 CrPC].
The pre-FIR screening procedure — D'Souza and Kishan Rao
The procedural machinery for a criminal complaint against a doctor is the most operationally consequential aspect of the post-Jacob Mathew framework. The Supreme Court in Jacob Mathew itself laid down two procedural safeguards in paragraph 52 of the judgment. First — a private complaint against a doctor for criminal negligence should not be entertained by a court unless the complainant has produced prima facie evidence in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused. Second — the investigating officer should, before proceeding against the doctor, obtain an independent and competent medical opinion, preferably from a doctor in government service qualified in that branch, who can give an opinion on the matter without bias or prejudice.
The Supreme Court in Martin F D'Souza v Mohd Ishfaq, (2009) 3 SCC 1 went further. The Court directed that, before a criminal complaint against a doctor or a hospital was entertained — and before any private complaint was filed with the police or a magistrate — the case ought first to be referred to a competent doctor or committee of doctors specialising in the field, and the criminal complaint should be entertained only after the doctor or committee reported a prima facie case of medical negligence. The direction was framed in mandatory terms and read as imposing a pre-FIR peer-review filter as a condition of registering a case against a doctor.
The Supreme Court — also in a two-judge Bench, also in 2010, decided within a year and a half of D'Souza — read down the mandatory peer-review filter in V Kishan Rao v Nikhil Super Speciality Hospital, (2010) 5 SCC 513. The Bench held that D'Souza had stated the requirement of expert evidence too widely, and that the Jacob Mathew safeguards did not impose an inflexible pre-FIR filter applicable to every case. Where the doctrine of res ipsa loquitur applies — the swab inside the abdomen, the wrong drug administered, the oxygen cylinder found empty — expert evidence is not a sine qua non. The pre-FIR screening procedure that survives Kishan Rao is therefore narrower than D'Souza's formulation but broader than Jacob Mathew's — the investigating officer is required to obtain an independent and competent medical opinion before proceeding against a doctor under Jacob Mathew, but the absence of such an opinion does not vitiate the proceedings where res ipsa loquitur applies or where the negligence is on the face of the record.
The practical position after Kishan Rao is that a complainant who wants to invoke the criminal law against a doctor should — in addition to the police complaint or the private complaint to the magistrate — obtain a written opinion from a competent doctor in the relevant specialty, preferably one in government service or in a medical college, supporting the allegation of gross negligence. The opinion is not a strict statutory requirement; it is the operational consequence of the Jacob Mathew safeguard combined with the D'Souza direction as confined by Kishan Rao. Without such an opinion, the investigating officer is likely to refuse to register an FIR, the magistrate is likely to refuse process under Section 227 of the BNSS [Section 204 CrPC], and the high court is likely to quash the proceedings under Section 528 BNSS [Section 482 CrPC]. With such an opinion, the criminal complaint clears the screening threshold and proceeds to investigation on the merits.
Standard of proof — expert evidence and res ipsa loquitur
The civil and consumer forums apply preponderance of probabilities. The complainant must lead expert evidence on the standard of care expected of the doctor, the breach of that standard in the case at hand, and the causal connection between the breach and the injury. The expert is typically a doctor in the same specialty who deposes that the impugned treatment fell below the standard of an ordinary competent practitioner in that field. The doctor's defence is, in turn, expert evidence from one or more doctors in the same field who depose that the treatment chosen was a recognised option within the spectrum of acceptable practice — the Bolam defence in evidential form. The forum then weighs the competing expert testimony and decides whether the complainant has discharged the burden.
The exception is the case to which res ipsa loquitur applies. Where the cause of the injury is in the exclusive control of the doctor or the hospital and the accident is one that would not, in the ordinary course, have happened without negligence — the wrong limb amputated, the wrong patient operated, the swab left inside the abdomen, the wrong drug administered, the oxygen cylinder discovered empty — the rule allows the forum to infer negligence without affirmative expert evidence. The Supreme Court in Jacob Mathew warned that the rule must be applied with "extreme care and caution" in medical-negligence cases; the Supreme Court in Kishan Rao read the rule into the post-D'Souza framework as the principal carve-out from the pre-FIR peer-review filter. The Bolitho qualification — that the body of professional opinion relied upon must withstand logical analysis — is the doctrinal cousin of res ipsa loquitur on the merits side: where the defence opinion cannot be reconciled with the facts, the forum is not bound to accept it.
Disciplinary proceedings — the NMC route
The legal test under Jacob Mathew and Kusum Sharma is the standard for liability — for damages, for compensation under the Consumer Protection Act, 2019, and for criminal prosecution. The standard for disciplinary action against a doctor's registration is the standard of professional misconduct under the National Medical Commission Act, 2019 and the regulations made under it — historically the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 and now the Code of Medical Ethics under the NMC Regulations, 2023. The disciplinary standard is lower than the criminal standard but distinct from the civil standard — the question before the Ethics and Medical Registration Board of the NMC under Section 30 of the NMC Act, 2019 is whether the doctor's conduct amounted to professional misconduct under the Code, not whether it caused damage to the patient. A complaint to the State Medical Council under Section 35 of the NMC Act, 2019, with an appeal to the Ethics and Medical Registration Board of the NMC and a further appeal to the NMC, is one of the five forums available to a patient — distinct from the consumer forum, the civil suit, the criminal complaint and the writ proceeding against a state hospital. The route is taken up in detail in the companion guide on filing a medical-negligence complaint.
What the test produces — and what it does not
The Bolam-Jacob Mathew framework produces a settled doctrinal standard for medical-negligence litigation in India — the ordinary skilled practitioner test for civil liability, the gross-negligence threshold for criminal liability, the eleven Kusum Sharma working principles for the consumer forum and the civil court, the Jacob Mathew safeguards as confined by Kishan Rao for the pre-FIR screening. What the framework does not produce is a tariff of outcomes. Two cases with similar fact-patterns can be decided differently by different consumer forums because the question of whether the doctor's conduct fell below the standard of an ordinary competent practitioner is a question of fact, to be decided on the expert evidence in each case. The doctor's defence under the second limb of Bolam — that the treatment was in accordance with a practice accepted as proper by a responsible body of medical opinion — turns on whether the forum is persuaded that such a body exists and that the doctor was acting in accordance with it.
The contested operational questions — whether the D'Souza direction continues to bind investigating officers after Kishan Rao (the better view is that it survives as a safeguard but not as an inflexible rule), whether the gross-negligence threshold applies equally to a charge under Section 117(2) BNS [Section 326 IPC] as it does to the standard charge under Section 106(1) BNS [Section 304A IPC], whether a senior doctor in a teaching hospital is to be judged by the same standard as a small-town general practitioner (the better view, drawn from Eckersley v Binnie, is that the standard is the same in kind but adjusted for the specialty and the resources available) — continue to work themselves out at the high-court and Supreme-Court level.
The practical takeaway for a researcher reading the cases is that the standard is a standard of conduct, not a standard of outcome. A doctor who has done what an ordinary competent practitioner in the field would have done — with the knowledge available at the time, with the resources to hand, and with the consent of the patient where consent was required — is not negligent because the treatment did not work. A doctor who fell below that standard is liable in damages; a doctor whose conduct shocks the conscience is liable to prosecution. The test is the same test the Supreme Court adopted from McNair J in 1957 and re-anchored in 2005 — the rest is fact-finding.