Medical Negligence Law in India Is Built on a Foundation That Was Never Meant for India
In 2005, the Supreme Court of India decided Jacob Mathew vs State of Punjab. The doctors were accused of criminal negligence under Section 304A of the Indian Penal Code. The Supreme Court, through a three-judge bench, acquitted them.
In doing so, the Court did something with far-reaching consequences. It formally adopted the Bolam test as the governing standard for assessing medical negligence in India. It also introduced the word ‘gross’ into Section 304A IPC, without making any formal amendments to law and without defining the meaning. While the section simply says ‘rash or negligent act’, the Court, borrowing from English jurisprudence, added the qualifier ‘gross’.
The Bolam test was born in the womb of the NHS, and unfortunately, the Indian Supreme Court chose to overlook this fact when it transplanted Bolam onto Indian soil.
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The Problem with Importing Medical Negligence Law
The NHS, when Bolam was decided in 1957, was the near-exclusive provider of healthcare in England. It was funded by the British state. When a patient—the victim of negligence—sued the hospital, he was actually suing the state.
Now contrast this with India. The private sector accounts for most of the treatment value in India. Private hospitals constitute a large chunk of operational hospitals. And unlike the NHS, it answers to no Parliament, no public accounts committee, and no meaningful regulator with teeth.
When negligence occurs in an NHS hospital, NHS Resolution, a state institution, investigates the claims. No individual has any vested interest in protecting the individual doctor or in denying a lawful claim. It wants to minimise claims, yes, but it does so through systemic improvements, not by shielding negligent doctors.
When negligence occurs in a private hospital in India, the Medical Negligence Board is constituted to investigate. It is generally composed of government doctors or nominated by government, who may have professional, social, or financial ties to the accused. The board members do not live in ivory towers but mingle with the accused socially, and thus they are amenable to influence.
In England, the NHS paid an average of £204,672 per settled negligence claim in 2023-24, which translates to about Rs 2.1 Crore in absolute terms and about 45-50 lakh INR on PPP basis. Importantly, NHS Resolution decides the claim amount in about 1-3 years, and the cases which are straightforward—i.e., where the principle of Res Ipsa Loquitur applies—perhaps much faster.
In India, families of the victims have no real chance of receiving anything. Firstly, they have to obtain a medical opinion substantiating the allegations of medical negligence, then fight a battle for at least two decades across the ladder of Consumer Courts for a claim, not to mention the final appeal before the Supreme Court.
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But is the pace of justice the only issue? No. The quantum of compensation rubs salt on the wound. The poorer you are, the lesser the claim you get, because the claims jurisprudence is based on the potential of a person to earn during his lifetime. So a daily wager will get far less claim than a middle-class person. We cannot draw a comparison with the rich, because they never suffer on account of negligence. Medical negligence law in India is not class-agnostic.
Unfortunately, the legal framework governing medical negligence law in India, borrowed wholesale from England for the purpose of shielding the doctors, has simultaneously refused to borrow the English commitment to adequate and faster compensation. We have taken the shield without the sword.
Was it by oversight or was it a structural choice? In all probability, it was a deliberate choice made under the influence of the medical establishment that has successfully lobbied for its own protection while offering nothing in return to the patients.
Medical negligence law in India operates within a system where the private actor faces no meaningful liability, where compensation is nominal, where investigation is done by the very professional fraternity it is supposed to scrutinise. The same test, in these two environments, produces opposite outcomes.
In England, Bolam ensures that doctors are not unfairly prosecuted for honest clinical mistakes. In India, Bolam ensures that doctors are not prosecuted for anything at all—worse still, even when they should have been charged with homicide.
The Deeper Absurdity: When Law Produces No Offenders
But there is a deeper absurdity buried under all of this, and it touches on something more fundamental than legal principles. It touches on the nature of existence itself.
Existence is relational. A thing does not exist in a vacuum; it exists in relation to other things. I exist because someone can see me, hear me, or be affected by me. The moment there is no perceiving subject, existence becomes meaningless, absurd.
Apply this to law. A criminal provision exists as a law only in so far as it can produce an offender. If a section criminalises an act but is structured in such a way that no one can ever be convicted under it, then what exactly is the status of that law?
Section 304A of the IPC—now Section 106 of the Bharatiya Nyaya Sanhita—criminalises causing death by a rash or negligent act. To the best of my understanding, since 1860, when the IPC was enacted, no doctor in India has been convicted and imprisoned under this section in a completed trial for death caused by medical negligence in the course of treatment. Not one, at least when I look in hindsight. So the inference we can draw is that in a country with 1.4 billion people, millions of hospital admissions, and a private healthcare sector worth nearly a hundred billion dollars, Indian doctors are the smartest creatures and cannot harm anyone—but even this statement is absurd.
The law exists. But the offender does not exist, because he cannot exist. The legal system has ensured that the conditions for an offender to emerge can never be met.
There is nothing wrong, in principle, with borrowing from foreign jurisprudence. Law has always been a borrowing enterprise. The English common law borrowed from Roman law. American constitutional law borrowed from English traditions. India’s Constitution borrowed from the Government of India Acts, from the Irish Constitution, from the American Bill of Rights.
But every meaningful borrowing involves adaptation. You take the principle and you ask: does the underlying assumption hold in our context? If it does not, you modify the principle or you reject it.
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The English courts had already begun to chip away at Bolam before Jacob Mathew was decided. In Bolitho v. City and Hackney Health Authority (1997), the House of Lords held that the peer opinion relied upon must also be logically defensible. A judge cannot simply accept a body of medical opinion without scrutinising whether it stands up to rational analysis. If Indian judges start applying their brains, most of the biased medical negligence reports will be thrown out on the first hearing.
The Bolam test in England had already been qualified. The court that imported it into India in 2005 imported an already-outdated version, without the Bolitho qualification, and applied it as if it were an absolute standard.
Furthermore, the UK has since moved toward a patient-centered standard on informed consent—the Montgomery test (2015). It gives greater weight to what a reasonable patient would want to know, rather than simply what a responsible body of doctors would choose to disclose. English medical negligence law has been evolving. Medical negligence law in India, frozen by Jacob Mathew, has not.
Genuine Reform: What Medical Negligence Law in India Needs
What would genuine adaptation look like? It would, at minimum, require the following recognitions. First, that India’s healthcare is primarily private, not public, and that the peer review mechanism cannot be assumed to be independent. Second, that the standard of compensation must match the standard of protection. You cannot import English protection for doctors while ignoring English compensation for patients. Third, that the procedural conditions for filing a complaint—i.e., requiring a prior medical opinion—must account for the reality that obtaining such an opinion in India is, for most families, effectively impossible.
None of these adaptations have been made. The law was transplanted without its roots. And roots, as any farmer will tell you, are not optional.
The argument here is not that doctors should be prosecuted for honest mistakes. Medicine is not an exact science. Decisions are made under pressure, with incomplete information, in conditions where even the best-trained mind can err. The reality is that doctors committing a bona fide mistake deserve protection.
But in India, the protection has become immunity. A system designed to produce zero convictions is not a system that distinguishes between honest mistakes and willful negligence. It is a system that demolishes accountability at its foundation.
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What is needed, and what has been absent, is genuine structural reform in three directions.
First, the Medical Negligence Board system must be reformed. The composition of these boards cannot continue to be determined by the same administrative machinery that has institutional ties to the private healthcare sector. Independent composition, with mandatory inclusion of patient representatives and legal professionals, is a minimum requirement. The boards must be required to give reasons and not conclusions alone. And if the members of the board manipulate the report, they should be prosecuted under relevant sections of criminal law.
Second, the Bolam standard must be applied with the Bolitho qualification at minimum. A responsible body of medical opinion that is logically indefensible cannot serve as a shield. Indian courts must be willing to scrutinise the reasoning of expert opinion, not merely count heads in the medical community.
Third, and most importantly, the asymmetry between the protection imported from English law and the compensation denied must be addressed. If the standard for proving negligence is going to remain as demanding as Jacob Mathew makes it, then the compensation available when negligence is proved must be commensurate with English standards. You cannot keep the English shield coupled with an Indian staff.
The victims of medical negligence know, somewhere deep inside, that no justice will come. And yet they file. Petition after petition. Court after court. Year after year. Not because they believe the system will deliver, but because stopping feels like a betrayal of the dead. So to push for justice is the only option, no matter how illusory or absurd it may be.
This is a modern-day Sisyphus, who is not condemned by gods but by our system. With each dismissal of a petition or a complaint, the boulder comes down. And then the next victim steps forward. Fresh grief. Fresh hope. Same boulder. Same hill. Sisyphus at least knew what he was condemned to and he found it duty-bound to keep pushing the boulder, but these victims are condemned to the same thing, but with an illusion of belief.
In this ordeal, the hope is the cruelest part. Not the pain. Pain is survivable. The boulder will come down. It always does. And somewhere in Gurugram, in Chandigarh, in a district court corridor that smells of damp files and broken promises, someone is already bending their back to push it up again.
