Medical negligence lawyers for patients and families

Civil test

Bolam test, Jacob Mathew (2005)

Consumer limit

2 years from the cause of action

Criminal law

Section 106 BNS (old 304A IPC)

Key evidence

Medical records and expert opinion

What counts as medical negligence?

A bad outcome is not, by itself, negligence. Medicine involves risk, and a doctor is not liable merely because treatment failed or because another doctor would have chosen differently. Liability arises when the doctor or hospital:

• did not have the skill they claimed to have, or
• did not exercise that skill with reasonable competence in the particular case.

This is the Bolam test, from the English case Bolam v. Friern Hospital Management Committee (1957), which the Supreme Court adopted in Jacob Mathew v. State of Punjab (2005): a doctor is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical opinion. Typical negligence cases include wrong-site surgery, instruments left inside the body, failure to diagnose obvious conditions, wrong medication or dosage, lack of informed consent, delayed referral, and hospitals operating without adequate staff or equipment. Where the harm speaks for itself, such as a swab left in the abdomen, courts apply res ipsa loquitur and the burden shifts to the hospital.

Consumer commission, civil suit or criminal complaint

In Indian Medical Association v. V.P. Shantha (1995) the Supreme Court held that medical services paid for are "services" under consumer law. Services rendered entirely free of charge to all patients are excluded, but free treatment given to some patients in a hospital that charges others is covered. You can choose one or more routes:

Most families seeking compensation use the consumer commission, because it is faster and cheaper than a civil suit. Complex cases needing extensive expert evidence may suit a civil court.

Criminal negligence: Section 106 BNS and Jacob Mathew

Section 106(1) of the Bharatiya Nyaya Sanhita, 2023, which replaced Section 304A of the IPC from 1 July 2024, punishes causing death by a rash or negligent act not amounting to culpable homicide. It carries up to five years' imprisonment and fine, but where the act is done by a registered medical practitioner while performing a medical procedure, the maximum is two years and fine.

For criminal liability the negligence must be gross, of a very high degree, not a mere error of judgment. In Jacob Mathew the Supreme Court laid down safeguards that still govern these cases:

• A private complaint against a doctor should not be entertained unless the complainant produces prima facie evidence in the form of a credible opinion of another competent doctor supporting the charge.
• The investigating officer should obtain an independent medical opinion, ideally from a doctor in government service qualified in that branch, before proceeding.
• A doctor should not be arrested routinely unless arrest is necessary for the investigation.

Families should therefore treat a criminal complaint as a serious step that needs medical support, not as a lever for settlement.

Informed consent and hospital liability

A doctor must obtain the patient's informed consent before treatment, explaining the nature of the procedure, its material risks and the alternatives in language the patient understands. In Samira Kohli v. Dr. Prabha Manchanda (2008) the Supreme Court held that consent given for a diagnostic procedure does not authorise a further surgical procedure, such as removal of an organ, unless it is needed to save life in an emergency. A blanket consent form signed at admission is rarely enough for a major procedure.

Hospitals are liable not only for their doctors' negligence but also for their own failures: inadequate staff, untrained nursing, faulty equipment, poor infection control, absence of blood or emergency facilities, and failure to refer the patient in time. Corporate hospitals cannot avoid liability by treating consultants as independent contractors where the patient chose the hospital rather than the doctor.

Evidence: records and expert opinion

Everything turns on the record. Patients have a right to obtain their medical records, and the regulations governing doctors require hospitals to maintain records of indoor patients and supply copies on request, normally within 72 hours. Ask in writing for the complete file: admission notes, consent forms, operation notes, anaesthesia records, nursing charts, investigation reports, the discharge summary and, in a death, the post-mortem report.

Commissions can decide simple cases on the record. In V. Kishan Rao v. Nikhil Super Speciality Hospital (2010) the Supreme Court held that expert evidence is not required in every consumer case, only where the issue is complex. Even so, we obtain an independent opinion from a specialist in the relevant field before filing, both to test the claim and to support it.

How compensation is assessed

There is no fixed table for medical negligence. Commissions and courts award amounts under heads such as medical expenses already incurred and future treatment costs, loss of income and earning capacity, pain and suffering, loss of amenities of life and, in death cases, loss of dependency for the family calculated on the deceased's income. Hospitals and doctors are often jointly liable, because the hospital is vicariously liable for its staff. Many hospitals and doctors carry professional indemnity insurance, which helps with recovery.

Limitation is two years from the cause of action before the consumer commission. Time usually runs from the date of the negligent act, or from when the patient discovered the harm if it was not apparent earlier, so do not delay. For injuries outside a hospital setting, see our personal injury page.

If you are a doctor or hospital

We also defend doctors and hospitals. Early steps matter: preserve the full record without alteration, inform your indemnity insurer, and respond to legal notices and police inquiries through counsel. A complaint unsupported by medical opinion can often be challenged at the threshold, and in criminal matters relief may be sought from the High Court by a petition for quashing where the safeguards in Jacob Mathew were not followed.

Documents you need

Collect as much of the medical record as you can:

• Complete hospital file, including admission and operation notes
• Consent forms signed before surgery or procedure
• Investigation and imaging reports
• Discharge summary, or death certificate and post-mortem report
• All bills and payment receipts
• Prescriptions and records from later treatment elsewhere
• Income proof of the patient, for loss of earnings or dependency

How we handle it for you

1. Collect the records

   We help you request the complete medical file from the hospital in writing.

2. Independent review

   A specialist reviews the treatment against accepted practice.

3. Advice on the route

   We advise on consumer, civil or criminal action, or whether no claim lies.

4. Notice and filing

   Legal notice to the hospital and doctors, then the complaint with expert support.

5. Trial and recovery

   We lead evidence, cross-examine where needed and pursue payment of the award.

Why clients choose ProudLegal

Frequently asked questions