Doctor-Patient Relationships: The Distinction Between Contractual and Tortious Liability

By Almas Shaikh, National University of Advanced Legal Studies, Kochi

Editor’s Note: Doctors and patients share a legal fiduciary relationship which is contractual in nature. Due to this, a doctor owes a reasonable duty of care towards his patient. In case of breach of the same on account of negligence, the doctor is subject to liability, which may be both contractual as well as tortious. Liability may even be vicarious in nature. In India, liability may also arise under the Consumer Protection Act, 1986. This paper examines the different forms of liabilities arising out of doctor-patient relationships.


This paper deals with the distinctions between the contractual and tortious liability of the doctor towards a patient. Firstly, an outline of the legal connotation of a doctor-patient relationship will be discussed. Next, a distinction will be drawn out between the role of a contract and a tort in such a relationship. Lastly, a mention is mad about the consumer protection act of 1986 in India and how this act has made it possible for the patients to sue hospitals under the said act. Thus only the liability of doctors has been discussed in the paper. The data has been collected from several research papers and books. Also, the internet has proved to be a useful ally in the search for materials.

NOTE: the use of the terms doctor, physician and surgeon have been used interchangeably unless stated otherwise.

Whenever a doctor cannot do good, he must be kept from doing harm.”


The relationship between doctors and their patients has received philosophical, sociological, and literary attention since Hippocrates, and is the subject of some 8,000 articles, monographs, chapters, and books in the modern medical literature. A robust science of the doctor–patient encounter and relationship can guide decision making in health care plans.[i] It is a relationship based mainly on trust.

A doctor-patient relationship is one of the most fundamental relationships all over the world. A good doctor-patient relationship is necessary for a decent practice of healthcare and a resultant high quality of life. The trust that a patient places on a doctor or surgeon is paramount. This trust is directly linked with the health of a person. The doctor on the other hand must take utmost care to treat the patient. The patients must be treated with sensitivity, dignity and respect. When one comes to the technicalities of it, a legal question arises as to when a person becomes a patient, what is the legal duty of the doctor towards him, and when the said duty expected of the doctor is not fulfilled, can the doctor be sued.

This relationship has been briefly discussed in the present paper, and will cover in concise manner the liabilities in contracts, torts and consumer protection.


There are many identities based on the doctor-patient relationships. It is principally a fiduciary relationship, based on mutual good faith and trust. A legal relationship between the two also exists. This deals with contractual obligations, tortious liabilities and standard of care accepted of doctors.

From the legal viewpoint, it is generally acknowledged that there are three major dimensions to the patient-doctor relationship. The first dimension is contractual: Once a relationship is initiated, it is subject to the principles of the law of contracts. Second, in a consensual relationship, doctors are required to obtain competent informed consent from their patients before care and treatment can be provided. Third, quality assurance concerns require that the doctor apply appropriate standards of care in providing service to the patient. Doctors have become subject to fiduciary law, which acknowledges that in certain legal relationships where one party is more powerful than the other, the more powerful party, in this case the physician, is subject to a higher standard than is imposed by traditional principles in the law of contracts or torts.[ii]

A physician is held to a standard of medical care defined by the accepted standards of practice in his or her area of practice. Some of the obligations of a physician’s duty of due care include the obligation to fully inform the patient of his or her condition, to continue to provide for medical care once the physician-patient relationship has been established, to refer the patient to a specialist, if necessary, and to obtain the patient’s informed consent to the medical treatment or operation. Confidentiality laws protect the physician-patient relationship and the patient’s consent must be obtained before medical records may be released.[iii]

The nature of the distinction between contract law and tort law has, of course, been the focal point of a great debate in the past. However, it is worth noting that for several hundred years common lawyers have played around with the boundary between contract and tort. When the rules of contract law seemed to lead to unreasonable and unjust results, lawyers have simply bypassed traditional contract doctrine by invoking tort; equally, when tort law seemedunsatisfactory for this or that reason, lawyers have developed alternative linesof approach byinvoking contract.[iv]


Liability of a physician under medical malpractice can be categorized into three different types:

  1. The custom-based standard of care
  2. Variations in the standard of care
  3. Qualification and examination of medical experts

  1. The Custom-based standard or care

The custom-based standard of care is the level of work and input expected of the doctors with respect to their patients. It is measured on a scale, not only that of a reasonable man, but to the average care and skill shown by other doctors. There are different standards of care for different level of medical practitioners, like the standard of care for residents or specialists.

The boundaries of the standard of care are very fickle. In the case of McCarty v. Mladineo[v], the court stated that it was error to instruct that the standard is that of a “minimally competent physician”. Instead, it was replaced by the terms “reasonably prudent, minimally competent” physician.

It has been observed that custom-based standard of care is not something which is determined by actual practice. It is something determined by whether a certain medical practice is acceptable or not. This acceptance may differ from one school of medicine to other. Medically, both the schools of thought may not have been absolutely proven right or wrong. What matters usually is that the acceptance is derived from one of these, not from both.

The implementation of such custom-based standard of care is very difficult. It deals with an invisible average line of the skill, capacity and competence of doctors in close relations with accepted practices. But some people believe that there is no standard of care to adhere by. They believe in the “snowflake” attitude, stating that each and every patient is unique.

An important case law to be noted here is that of McCourt v. Abernathy.[vi] In this case, the patient, Wendy McCourt was admitted to the hospital for shortness of breath and chest wall pain. It was stated by the patient that while working with the horses a few days ago, she was injured by a horse and hyper extended her left shoulder. She also stated that two days prior to the horse accident she had pricked her finger with a pin, but continued to work around the manure. Her doctors, Dr. Abernathy and Clyde were board certified family practitioners. Dr. Abernathy treated Wendy for a pulled muscle. But a few days later, her condition worsened. Dr. Clyde treated her for a pulled chest muscle and also treated the puncture wound to Wendy’s finger at that time. After a few days more of worsening condition, she was referred to Dr. Kovaz, an internist, who immediately moved her into the intensive care unit. Unfortunately, Wendy died from beta strep septicemia.

An expert testimony was taken from Dr. Neal Craine and Dr. Kenneth DeHart. They believed that Wendy could have been saved, and countless such opportunities had been presented during the course of her unsuccessful treatment. Thus it was stated that the treatment meted out to Wendy was well below the standard of care.

The jury charged them with the punitive damages which came to a total of $2,550,000. This was challenged and an appeal was made. But the higher court did not find no abuse of the trial judge’s discretion in this respect.

Another case which is of paramount importance is the case of Locke v. Pachtman[vii]. The plaintiff Locke underwent a hysterectomy at the University of Michigan hospital. The procedure was performed by Defendant, Dr. Pachtman. During the operation, while Defendant was beginning repair of the rectocele, the needle she was using broke. Defendant searched unsuccessfully for the needle for over an hour. She then abandoned the search and closed the incision. Defendant informed Plaintiff afterward of the needle breakage and told her that the needle could remain inside her without causing any problems. However, after experiencing pain, Plaintiff visited another doctor who was able to remove the broken portion of the needle. Plaintiff then sued Defendant alleging negligence on res ipsa loquitor grounds. This court rejected plaintiff’s attempt to prove negligence by way of res ipsa loquitor. It stated that a bad result is not sufficient to satisfy res ipsa loquitor. Something more is required, be it the common knowledge that the injury does not ordinarily occur without negligence or expert testimony to that effect. In this case, it was neither within the jury’s common understanding nor testified to by an expert that use of a small needle is negligent.[viii]

  1. Variations in the Standard of Care

The term standard of care has been found to be extremely ambiguous. It is a subjective measure put up which will differ from person to person. Physicians are generally judged on the principle of what is actually said to be the prevailing practice and professional consensus. Care has to be taken that these qualities must not be confused with which is the best and only way to treat a patient. Medicine is an inexact science and it is severely difficult to prove one methodology to be superior to the other. Variations could be structured around anything. The first and foremost which comes to mind is that around schools of thought and training. There are different sets of beliefs and techniques used by the physicians that it is difficult to pinpoint a correct one.

Also, the standard of care differs from one specialization and practice location to the other. For example, the level of expertise expected of a general physician and an expert in one particular field are totally different. While the physician is assumed to know generally the conditions, the specialist will recognize even the little degrees of distinction shown in the symptoms.

In the case of Jones v. Chidester[ix], Dr. Chidester performed orthopedic surgery on the leg of Mr. Jones.To obtain a bloodless field, Dr. Chidester used a tourniquet and released it at intermittent times. It was later discovered that Mr. Jones had nerve damage to his leg. Mr. Jones contended that his nerve damage was caused by the use of the tourniquet during surgery. Each side produced evidence and witnesses that supported use of tourniquets and avoidance of tourniquets. The jury was instructed that when there are two schools of thought, it is not the job of the jury to determine which school is more medically appropriate when both schools have their respective and respected advocates. Dr. Chidester was not held liable for exercising his judgment in applying a course of treatment supported by a reputable and respected body of medical experts, even if another body of experts would have performed a different treatment.[x]

The case of Chapel v. Allison[xi], deals with the locality with respect to the standard of care expected of physicians. Mr. Chapel was injured by a horse, taken to an emergency room at Livingston Memorial Hospital where he was treated by Dr. Allison. He applied a long leg cast extending from Chapel’s mid-thigh down to and including his foot. This cast was put during February of 1983 and removed in May 1983. It was noticed that Mr. Chapel’s leg showed a varus deformity (bow-leggedness). This could be corrected using a procedure called “osteotomy”. The issue raised here was whether a non-board certified general practitioner could be held to a standard of care of a reasonably competent general practitioner acting in the same locality or similar community and under similar circumstances. Chapel’s expert witness testified that a general practitioner would not normally handle that type of injury. It was held that a non-board certified member could actually be held to the standard of reasonable care of a reasonably competent general practitioner.

  1. Qualification and examination of medical experts

In Thompson v. Carter[xii], the plaintiff contended that she developed Steven Johnson Syndrome as a result of Dr. Robert Carter’s negligent prescribing of the drug Bactrim. She brought in Mr. Hughes to testify as an expert witness. But he did not have a medical degree. A question was raised as to whether a person having medical knowledge but no medical degree could be allowed to testify as an expert witness. It was said The Circuit Court, Harrison County, Kosta N. Vlahos, J., directed verdict for physician and patient appealed. The Supreme Court, Prather, J., held that: (1) drug package insert, properly identified, was admissible under hearsay exception; (2) expert witness in fields of pharmacology and toxicology should have been allowed to testify concerning medical standard of care with respect to use and administration of drug in question; and (3) exclusion of that evidence warranted new trial. The case was reversed and remanded for new trial.

It was understood that the witness who would be called in as an expert need not necessarily hold a medical degree. Instead it is necessary that the person possess medical knowledge. A similar decision was given in the matter of Cornfeldt v. Tongen.[xiii]


In the present day, the doctor-patient relationship is basically a contract involving money exchange of two or more parties. When applying only contractual relationships, the physician is required to provide the patient with only those services that the two of them had agreed upon. Either a third party would be willing to pay for the services obtained by the patient or the patient themselves would delve into their own pockets for the payment of the same. This relationship between the doctor and the patient could be easily declined if the patient refuses to pay.

A patient can sue a physician for their breach of contract. A contractual approach to forming a partnership between doctor and patient is presented in both theoretical and practical terms. Four basic contractual assumptions underlie the doctor-patient relationship: both the doctor and the patient have unique responsibilities; the relationship is consensual, not obligatory; both doctor and patient must be willing to negotiate; and each must gain something in the encounters. Clinical examples are used to show practical implications of this model. Although explicit contracts are not needed for all patients, a contractual analysis of doctor-patient interactions helps both participants share the responsibility for patient care.[xiv]

A contractual relationship between the two recognizes that only the patient will recognize what is wrong with him or her, and that they will make an informed decision and subsequently either consent to it or refuse the said process of treatment. This informed consent, or lack thereof could be given after being fully aware of the risks or benefits involved in the treatment offered.

An important case which comes under the head of breach of contract is that of Sullivan v. O’Connor[xv]. Ms. Sullivan, a professional entertainer who wished to change the shape of her nose to improve her appearance. She went to Dr. O’Connor, a plastic surgeon, who agreed to perform the surgery. Photographs were taken and a line was drawn on the picture over the bridge of the nose to illustrate the intended change. Ms. Sullivan was informed that the procedure, known as a rhinoplasty, would be completed in two operations. 2 After undergoing the operations it became evident that too much bone had been removed, leaving Ms. Sullivan with a nose which was “concave” to the midline at which point it became bulbous and asymmetrical. This disfiguration required a third operation which failed to improve the nose, but further corrective procedures were considered too precarious. Ms. Sullivan filed suit against Dr.O’Connor, alleging in the first count of the complaint that she had entered into a contract with him to perform plastic surgery on her nose and thereby enhance her beauty, and that he had breached the contract by failing to achieve the desired result. The second count lay in negligence, alleging that Dr. O’Connor was negligent in performing the surgery.[xvi] The jury returned a verdict for the plaintiff on the contract count and for the defendant on the negligence count. The judge then instructed the jury on the issue of damages.[xvii]

If the law deals with the doctor patient relationship as a contract, similar to any other contracts, it can be argued that the physician must have corresponding rights and liabilities. Thus, if the physician is to be held free to contract and to be liable on his promise, he should not then be free to provide for his own protection in advance by the simple expedient of having the patient sign a printed form, in consideration of his agreement to treat him, absolving the physician of any and all liability whether based on negligence or purported representation.[xviii]

But due to the obvious burden of somebody’s life, health and livelihood is upon the doctor, they are expected to have a greater sense of responsibility towards their patients. It is said that a strong public policy which pervades this field tries to uplift the contractual relationship from the level of ordinary commercial contracts.

When usually, the liability of the physicians and the surgeons is talked about, it basically always deals with malpractice. The liability of a doctor or surgeon under the ambit of contract can be broadly classified to be of two types; breach of implied contract and breach of express contracts.

Malpractice in the pertinent legal literature is inextricably bound up with the idea of breach of implied contract. This was especially true of the older cases wherein malpractice was regarded simply as a form of breach of implied contract. The physician or surgeon was spoken of as impliedly holding himself out as possessing the degree of learning, skill and experience ordinarily possessed by the profession in similar localities. When he failed to exercise such usual knowledge and skill, he was regarded as having breached his contractual duty to his patient.[xix]

Another aspect with relation to the contractual liability of physicians is the proper limitations of damages. The measure of damages for breach of contract is generally expressed as one intended to put the plaintiff in as good a position as he would have been in had the defendant kept his contract, including also compensation for any consequences which were reasonably foreseeable and within the contemplation of the parties at the time the contract was entered into. Traditionally, under this rule, physical pain and mental suffering are not proper elements of damage. Normally, only in tort actions or, more pointedly, actions for malpractice, are pain and suffering or mental anguish allowed as elements of damage. Moreover, a tort rule of damages allows compensation also for impaired earning capacity, loss of time, and consequential damages.[xx]

A strict adherence to fixing of damages in contracts may lead to disappointing remedies. The breach of a contract may lead to injury and mental suffering. A few jurisdictions have indeed invoked what amounts to a tort rule of damages in cases where the action was unquestionably based on breach of contract. These cases involved failure of the defendant to perform his contract, resulting in needless pain and suffering to the plaintiff. Thus, in Coffey v. Northwestern Hosp. Assoc.[xxi], where there was a breach of contract by defendant to provide hospital services, the court reasoned that the physical pain and mental anguish suffered might fairly be said to have been within the contemplation of the parties when the contract was made. In Galveston, H. and S.A. Ry. Co. v. Rubio[xxii], the appellant having breached its agreement to provide medical care and attention, the court held that damages for both mental and physical suffering were recoverable even though the damages sought were for breach of contract since the very subject matter of the contract was the health of the employee. It remains to be asked whether a contract rule of damages would not then be appropriate in a case where the issue of pain and suffering is not an essential factor. Such a fact situation might be similar to that presented by Hawkins v. McGee[xxiii], where the defendant allegedly promised, and “I will guarantee to make the hand a hundred per cent perfect hand”. There the measure of damages was, in keeping with the contract rule, held to be the difference between the value of a perfect or good hand as promised and the value of the hand in its present condition, including any incidental consequences fairly within the contemplation of the parties when they made their contract. Upon analysis, however, even in this fact situation the contract rule of damages appears to be not wholly appropriate.[xxiv]

With the above mentioned discussions, it is well settled that a doctor is liable for breach of contracts. But the contracts made by physicians differ from ordinary commercial contracts under two very broad and important heads: (i) they are impressed with a very strong public policy; (ii) they do not seek profit like other commercial bodies.


A second set of rules that the law imposes on the patient-physician relationship is the law of torts. Once the relationship is created by mutual assent, tort rules intervene to establish the standard of care owed by the physician. In tort terms, the problem of the physician’s role in the face of resource constraints translates into the following question: Does tort law prescribe a “unitary” standard of care, under which the physician must behave reasonably regardless of resource constraints, or does the law allow resource constraints to be taken into consideration in determining what is reasonable?[xxv]

In rejecting a purely contractual approach, the common law recognizes the power imbalance between the parties by protecting the patient from the risks of arm’s-length bargaining. In its place, the law imposes a set of non-negotiable tort and fiduciary duties on the physician as the more powerful party. The duties that the courts impose may not always achieve optimal results, but the law assumes that externally imposed terms governing the relationship are more likely to lead to an efficient result than terms negotiated by the parties themselves.[xxvi] Of course, here note should be taken that the discussion does not involve the physician taking undue advantage of the patient.

Alternative Theories of Liability

As is seen previously, the liability of a doctor with respect to his patients oscillates between the spheres of contract law and tort law. More often than not, these two spheres overlap extensively and hence it is a tough task for lawyers to identify the claim under which a case can be filed. The next few sections of this paper deal with the alternate liability against physicians under tort law

  • Res Ipsa and Negligence Per Se:

The following four factors are necessary to make a res ipsa loquitor claim. (a) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (b) it must be caused by an agency or an instrumentality within the exclusive control of the defendant; (c) it must not have been due to any voluntary contribution on the part of the plaintiff; (d) evidence of the true explanation of the event must be more readily accessible to the defendant than to the plaintiff.

The case which has been referred to again and again when it comes to negligence is that of Locke v. Pachtman[xxvii]. The facts of the case have been briefly stated above. The plaintiff, had added that, even if the expert testimony was insufficient, her case could have proceeded to the jury on the theory of res ipsa loquitor.

Apart from this case, there are other instances that a case may be given directly to the jury without calling in an expert witness. Such instances include leaving behind foreign objects in the body after a surgery has been performed, like a clamp or a sponge. Injury to an organ of the body which was not involved in the operation or removing of the wrong appendage or organ also comes under this.

Negligence per se is stronger still. Here the negligence referred to is not the one made not knowing the law, it does not need any violation of the statute.

An Indian case of negligence, which can be considered while discussing on this topic is that of Jacob Mathew v. State of Punjab[xxviii]. 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 analysed 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.

In this case, the Supreme Court of India went into details of what is the meaning of negligence by medical professionals.

Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.

So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.[xxix]

Another very well-known case is the English case, i.e. the Bolam case[xxx]. John Hector Bolam suffered from depression and was treated at the Friern Hospital in 1954 by 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.[xxxi]

  • Vicarious liability:

Vicarious liability in the simplest of terms refers to one person getting blamed for he incompetence o mistake of another. In these cases it usually is applied to master-servant, employer-employee or principal-agent relationships.

In the case of Franklin v. Gupta[xxxii], it was stated by Judge Wilner that Appellant, an unfortunate soul with a host of physical and emotional problems, also developed carpal tunnel syndrome — a condition that causes pain in the wrist and muscle weakness in the hand. He consulted Dr. Shanker L. Gupta, a general surgeon, who recommended surgical treatment for that condition.

Surgery was scheduled at Church Hospital for 10:00 a.m. July 17, 1981. Dr. Herbert S.T. Lee, an anesthesiologist, and Gary J. Sergott, a certified registered nurse anesthetist, were assigned by the hospital to administer and monitor the anesthesia. Unfortunately, Dr. Lee was also scheduled to administer and monitor anesthesia to another patient in another operating room at the hospital at the same time. Dr. Lee chose to tend to the other patient, and so the actual administration and monitoring of the anesthesia to appellant fell to Nurse Sergott. As we shall see, things did not go as planned. The anesthesia administered by Nurse Sergott was not only not effective, but appellant suffered certain physical and emotional trauma from it, and the surgery was eventually cancelled. As a result of this experience, appellant filed a claim with the Health Claims Arbitration Office against Dr. Gupta, Dr. Lee, Nurse Sergott, and the hospital. After an evidentiary hearing, the arbitration panel found no liability on the part of any of the defendants and entered an award in their favor. Appellant rejected the award and filed suit in the Circuit Court for Baltimore City.

After a de novo trial, the jury agreed with the arbitration panel that there was no liability on the part of Dr. Gupta, but it concluded that the other defendants were culpable. It returned a verdict in favor of Dr. Gupta but against Dr. Lee, Nurse Sergott, and the hospital in the amount of $375,000.[xxxiii]

The trial court granted the three losing defendants’ motions for a new trial or, in the alternative, remittitur or all but $50,000, citing the failure of appellant to show convincing evidence that the treatment rendered caused most of his injuries. Plaintiff appealed.[xxxiv]

Usually in such vicarious liability cases, the rule of Captain of the ship is used. Captain-of-the-Ship Doctrine is a principle of medical-malpractice law, holding a surgeon liable for the actions of assistants who are under the surgeon’s control but who are employees of the hospital, not the surgeon. The surgeon as “the captain of the ship,” is directly responsible for an alleged error or act of alleged negligence because he or she controls and directs the actions of those in assistance. This common law doctrine is often used in operating room situations.[xxxv]

  • Strict Liability:

Strict liability or liability without fault is not new to law. It deals with such situations where a careful person is held liable for an entirely reasonable mistake.

In Helling v. Carey[xxxvi], Justice Utter said the following words:

“The difficulty with this approach is that we judges, by using a negligence analysis, seem to be imposing a stigma of moral blame upon the doctors who, in this case, used all the precautions commonly prescribed by their profession in diagnosis and treatment. Lacking their training in this highly sophisticated profession, it seems illogical for this court to say they failed to exercise a reasonable standard of care. It seems to me we are, in reality, imposing liability, because, in choosing between an innocent plaintiff and a doctor, who acted reasonably according to his specialty but who could have prevented the full effects of this disease by administering a simple, harmless test and treatment, the plaintiff should not have to bear the risk of loss. As such, imposition of liability approaches that of strict liability.”

Doctor-Patient relationship under Consumer Protection Act

Doctor patient relationship can also be considered as one where payment is given for services rendered. Here a patient is depicted to be in a consumeristic role. In the IMA v. V P Shantha[xxxvii] case, the question raised was whether a medical practitioner could be said to have been rendering services as defined under Section 2(1) (o) of the Consumer Protection Act of 1986. As a result of the judgment given in this case, medical profession has been brought under the Section 2(1) (o) of CPA, 1986 and also, it has included the following categories of doctors/hospitals under this Section:

  • All medical / dental practitioners doing independent medical / dental practice unless rendering only free service.
  • Private hospitals charging all patients.
  • All hospitals having free as well as paying patients and all the paying and free category patients receiving treatment in such hospitals.
  • Medical / dental practitioners and hospitals paid by an insurance firm for the treatment of a client or an employment for that of an employee.

Further, the judgment conceded that the summary procedure prescribed by the CPA would suit only glaring cases of negligence and in complaints involving complicated issues requiring recording of the evidence of experts, the complainant could be asked to approach the civil courts.

Also, this judgment said that the deficiency in service means only negligence in a medical negligence case and it would be determined under CPA by applying the same test as is applied in an action for damages for negligence in a civil court.

As a result of this judgment, virtually all private and government hospitals and the doctors employed by them and the independent medical / dental practitioners except primary health centers, birth control measures, anti-malaria drive and other such welfare activities can be sued under the CPA.[xxxviii]

As can be derived from the judgment given by the Supreme Court, the judgment was an important one and could be taken as a landmark case under the medical arena in India.


Medical profession is touted to be the noble profession, a profession where in doctors heroically save the lives of other and hence make the world a happy place to live in. but doctors are also humans, and mistakes, whether intentional or not, are bound to happen. The burden upon the doctors to not make such mistakes is profound as somebody’s life and health is on the line. As seen above, we know that many mistakes are made or seem like they have been committed by doctors. In such cases, the patients can approach the courts to rectify the wrong done to them. And the doctors can be held liable either under contracts or torts. This has paved the way for numerous matters to come to the eyes of the. All that can be hoped now is that the doctors take their responsibility seriously and try to give sufficient attention and care to their patients. Because, as Cicero said,

“In nothing do men more nearly approach the gods than in giving health to men.”



  • Hall, Bobinski & Orentlicher, “Medical Liability and Treatment Relationships”, Wolters Kluwer (2nd, 2008)
  • Consumer Protection Act, 1986


  • S Atiyah, Medical Malpractice and the Contract/Tort Boundary, Law and Contemporary Problems, Vol. 49 (1986).
  • Carol Buchele Bonebrake, “Contractual Liability in Medical Malpractice”, 24 DePaul L. Rev. 212 1974-1975
  • Arnold J. Miller, “The Contractual Liability of Physicians and Surgeons”, Washington University Law Quarterly, 1953 (Wash. U. L. Q. 413 1953).
  • Maxwell J Mehlman, “The Patient-Physician Relationship in anEra of Scarce Resources: Is There aDutyto Treat?”, Connecticut Law Review, (25 Conn. L. Rev. 349 1992-1993)
  • Anurag K Agarwal, “Medical Negligence: Law and Interpretation”, IIM Ahmedabad.

WEBSITES: (last viewed on 2/10/2013)

Edited by Sinjini Majumdar

[i]See also

[ii]See also:

[iii]See also:

[iv] P.S Atiyah, Medical Malpractice and the Contract/Tort Boundary, Law and Contemporary Problems, Vol. 49 (1986).

[v] 636 So. 2d 377 (Miss. 1994)

[vi] 457 S.E.2d 603 (S.C. 1995)

[vii] 521 N.W.2d 786 (Mich. 1994)

[viii]See also:

[ix] 610 A.2d 964 (Pa. 1992)

[x]See also:

[xi] 785 P.2d 204 (Mont. 1990)

[xii] 518 So. 2d 609 (Miss. 1987)

[xiii] 262 N.W.2d 684 (Minn. 1977)

[xiv]See also:

[xv] 296 N.E.2d 183 (Mass. 1973)

[xvi] Carol Buchele Bonebrake, “Contractual Liability in Medical Malpractice”, 24 DePaul L. Rev. 212 1974-1975

[xvii] Hall, Bobinski & Orentlicher, “Medical Liability and Treatment Relationships”, Wolters Kluwer (2nd edn., 2008)

[xviii]Supra note 6

[xix] Arnold J. Miller, “The Contractual Liability of Physicians and Surgeons”, Washington University Law Quarterly, 1953 (Wash. U. L. Q. 413 1953).

[xx]Id. p 424

[xxi] 96 Ore. 100, 183 Pac. 762

[xxii] 65 S.W. 1126 (Tex. 1901).

[xxiii] 84 N.H. 114, 146 Atl. 641 (1929)

[xxiv]Supra note 14

[xxv] Maxwell J Mehlman, “The Patient-Physician Relationship in anEra of Scarce Resources: Is There aDutyto Treat?”, Connecticut Law Review, (25 Conn. L. Rev. 349 1992-1993)


[xxvii]Supra note 6

[xxviii] (2005) 6 SCC 1

[xxix] Anurag K Agarwal, “Medical Negligence: Law and Interpretation”, IIM Ahmedabad.

[xxx]Bolam v. Friern Hospital Management Committee, [1957] 1 WLR 582

[xxxi]Supra note 26

[xxxii] 567 A.2d 524 (Md. App. 1990)

[xxxiii]See also:

[xxxiv]Supra note 17

[xxxv]See also:

[xxxvi] 519 P.2d 981 (Wash. 1974)

[xxxvii] 1996 AIR 550

[xxxviii]See also:

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