Vicarious Liability of Hospitals

The medical career is one of the oldest, and most humanitarian, professions. After Lord, doctors in India are considered as second life savers. In contrast to other cases of neglect, the quality of care rendered by physicians and hospital authorities is expected to be higher. The government and physicians must also take due precautions to prevent medical incompetence.

The Black law dictionary definition of negligence “ conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of  statue or valid municipal ordinance or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it.

As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes”. The basic elements of Negligence are (a) Duty of Care (b) Breach of Duty (c)Cause in fact  (d)Proximate Cause  and (e) Damage. These are the basic elements of negligence, to prove the case of negligence all these criteria must be satisfied and in cases of medical negligence in India, the ambit of  duty of care and proximate cause increases, as there are life involve in this situation”.

The principle of vicarious liability is based on a Latin maximqui facit per alium facit per se which describes that the one who acts through another act in his or her own interest. The patient only requires diligent and proper care, if any of the staff of the hospital is negligent in the performance of their prescribed work, the hospital will be held liable on the negligent conduct of even borrowed doctors for specific performance of certain operations.”This principle was established in the case of ” Aparna Dutt .V. Apollo Hospital Enterprises Ltd”.


Where there is a medical negligence, “the liability of  hospitals  may  be  direct  or  vicarious.  The  hospitals directly liable in a case of death or injury as a result of poor maintenance of hospitals, incompetent staff, misleading advertisement or other unfair trade practice, poor maintenance of records of medical treatment. The “vicarious liability principle is under the doctrine of respondent superior which implies that a person is liable for the tort committed by another person.

In a case Ready Mixed Concrete vs. Minister of Pensions, the court developed multiple test where it emphasized that all factors in the employment relationship status should be considered since there is no conclusive or definite test. In another case of  Smt. Santra v. State of Haryana & Ors, the contention that the State is not  vicariously  liable  for  the  negligence  of  its  officers  in  performing  the  sterilization operation was not accepted in view of the above judgment of the Supreme Court of India.

In another case of  Dr. M. K. Gourikutty & etc. v. M. K. Madhavan and Ors, where patient had  died  following  post  partum  sterilization,  the  Court  found  negligence  on  part  of  the defendants  and  liability  was  fixed  on  State  Government,  anaesthesiologists  and  other  staff instead of holding only the State vicariously liable.”


In Roman law, negligence is signified by the terms “culpa” and “negligentia”; as contrasted with “dolus” or wrongful intention. Care or absence of “negligentia” is “deligentia”. “The use of the word diligence in this sense is obsolete in modern English, though it is still retained as an archaism of legal diction”.

Negligence is culpable (punishable) carelessness – conduct which involves an unreasonably great risk of causing harm to another. It is the absence of such care as it was the duty of the defendant to use. It excludes wrongful intention in that no result which is due to carelessness can have also been intended and nothing which was intended can have been due to carelessness.

Wrongful intention (mens rea) implies design and purpose while negligence implies that somebody is acting carelessly and without that design. Medical negligence is an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and which causes injury to the patient. As regards medical negligence, the legal position has been described in several leading judgments. Some of these are given below :

  • Bolam v. Friern Hospital Management Committee :- “John Hector Bolam suffered from depression and was treated at the Friern Hospital in  1954by E.C.T. (electro-convulsive therapy). He was not given any relaxant drug, however, nurses were present on either side of the couch to prevent him from falling off. When he consented for the treatment, the hospital did  not warm  him  of the risks,  particularly that he would  be given the treatment without relaxant drugs. He sustained  fractures during the treatment and sued  the  hospital  and  claimed  damages  for  negligence.  Experts opined  that there  were two practices  accepted  by  them:  treatment  with  relaxant  drugs  and  treatment  without  relaxant drugs. Regarding the warning also, there were two practices prevalent: to give the warning to the patients and also to give the warning only when the patients ask about the risks. The court concluded that the doctors and the hospital were not negligent.”
  • Jacob Mathew Vs. State of Punjab:- “In  this  case  a  patient  was  admitted  to  CMC  Hospital,  Ludhiana.  He  felt  difficulty  in breathing.  No  doctor  turned  up  for  about  20-25  minutes.  Later  two  doctors  –  Dr.  Jacob Mathew and Dr. Allen Joseph  –  came and an oxygen cylinder was brought and connected to the  mouth of the patient. Surprisingly, the breathing problem  increased  further. The patient tried  to  get  up.  The  medical  staff  asked  him  to  remain  in  bed.  Unfortunately,  the  oxygen cylinder was  found to be empty.  Another cylinder was  brought. However, by that time the patient  had  died.  The  matter  against  doctors,  hospital  staff  and  hospital  went  up  to  the Supreme  Court  of  India.  The  court  discussed  the  matter  in  great  detail  and  analyzed  the aspect of negligence from different perspectives  –  civil, criminal, torts, by professionals, etc. It was held that there was no case of criminal rashness or negligence.”

There are many more cases such as in Achutrao Haribhau Khodwa v. State of Maharashtra,  Spring Meadows Hospital & Anr. v. Harjol Ahluwalia & Anr, A.S.Mittal v. State of UPState of Haryana v. Santra, State  of  Punjab  v.  Shiv  Ram, Poonam Verma  v.  Ashwin Patel


In one of the earliest significant ruling in  Vasantha P. Nair  v.  Smt. V.P. Nair[1], “the National Commission upholding the decision of Kerala State Commission had held that a patient is a consumer  and  the  medical  assistance  was  a service  and,  therefore,  in  the  event  of  any deficiency  in  the  performance  of  medical  service  the  consumer  courts  can  have  the jurisdiction.  It  was  further  observed  that  the  medical  officer’s  service  was  not  a  personal service so as to constitute an exception to the application of the Consumer Protection Act. ”

In  Indian Medical Association  v.  V.P. Shantha and Ors[2], “the apex court has put an end to this  controversy  and  has  held  that  patients  aggrieved  by  any  deficiency  in  treatment,  from both  private  clinics  and  Government  hospitals,  are  entitled  to  seek  damages  under  the Consumer Protection Act, 1986. A few important principles laid down in this case include:

1.  Service  rendered  to  a  patient  by  a  medical  practitioner  (except  where  the  doctor renders service free of charge to every patient or under a contract of personal service) by way of consultation, diagnosis and treatment, both medicinal and surgical,  would fall within the ambit of service as defined in section 2(1) of the C.P. Act. the apex court has laid down 12 important principles stating the law with definite terms in this case .

2.  The  fact  that  medical  practitioners  belong  to  medical  profession  and  are  subject  to disciplinary  control  of  the  Medical  Council  of  India  and,  or  the  State  Medical Councils would not exclude the service rendered by them from the ambit of C.P. Act.

3.  The service rendered by a doctor was under a contract for personal service rather than a contract of personal service and was not covered by the exclusionary clause of the definition of service contained in the C.P.Act.

4.   A service rendered free of charge to everybody would not be service as defined in the Act.

5.  The  hospitals  and  doctors  cannot  claim  it  to  be  a  free  service  if  the  expenses  have been borne by an insurance company under medical care or by one’s employer under the service conditions.”

It  is submitted that as the law on medical negligence appears to have been settled by the Hon’ble apex court, there is a need to have a settled legal position in other sectors as well so far as it relates to the consumer protection in India.”

[1] I (1991) C.P.J. 1685.

[2] AIR 1996 SC 550; the apex court has laid down 12 important principles stating the law with definite terms in this case .

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