"Nobody can be blamed for this except changing method of providing medical service." — Dr. Mahendra K. Joshi

What Is Medical Negligence? How India Kept a Law the UK Itself Abandoned

An Englishman named Mr. Bolam should thank our judiciary from heaven. Because of a single 1957 ruling bearing his name, Indian courts have spent nearly seven decades deciding whether doctors are negligent using a test the country that invented it has since moved on from — twice.

Neither "negligence" nor "medical negligence" is defined in any Indian statute. No legislature has bothered. No medico-legal jurist has stepped up to fix that gap either. So Indian courts keep reaching for a borrowed, outdated English yardstick — and applying it long after England itself decided it wasn't good enough.

Key Takeaways

• Medical negligence has no statutory definition in India — courts have simply imported English case law wholesale, without questioning whether it fits.
• The Bolam Test (1957) lets a doctor escape liability by finding just one expert willing to say "I'd have done the same" — regardless of whether that was actually the safest option.
• The UK itself corrected course twice: Bolitho (1997) demanded that expert opinion survive logical scrutiny, and Montgomery (2015) replaced "doctor knows best" with genuine patient autonomy.
• Indian courts have had 25+ years and 10+ years respectively to adopt these corrections. They mostly haven't.
• Indian judiciary continues to treat Indian patients as incapable of understanding risk — an assumption that insults both their literacy and their right to information.
• Meanwhile, defendant doctors routinely get away with affidavits asserting "we did nothing wrong," with no expert evidence required to back it up.

The Test Was Never Built for Medicine

"Negligence" as a legal concept didn't even originate in a hospital — it came from a burst water pipe.

In Blyth v. Birmingham Waterworks Co. (1856) 11 Exch. 781, a fire plug failed during an unusually severe frost, flooding a house. The court held that negligence means failing to do what a reasonable, prudent person would do. English judges later lifted this wholesale into medicine by simply swapping "reasonable man" for "reasonable doctor" — as if a burst pipe during a natural calamity has anything meaningful in common with a trusting patient placing their body in a doctor's hands.

It doesn't. A patient goes to a doctor for a cure, not to gather evidence for a future lawsuit. Families don't sue when a patient dies from their disease or from age. They sue when the injury is unexpected, unrelated to what was being treated, and looks avoidable — what doctors call iatrogenic harm. That distinction should matter. Indian courts have largely let it not matter.

The Burden-Shift Rule Exists — It's Just Rarely Enforced Honestly

To be fair, the legal framework itself isn't broken. When a patient is treated for ailment X and instead develops unrelated complications Y and Z, the logic is sound:

1. The patient shows, on balance of probability (51%), that the harm was unexpected and unrelated to the original condition.
2. The burden then shifts to the doctor to explain what happened.
3. Absent a credible explanation, the negligent treatment is treated as the proximate cause.

The Supreme Court said as much plainly in Savita Garg v. National Heart Institute, 2004 (8) SCC 56 — once the complainant's initial burden is discharged, the doctor must show every possible measure was taken to rule out negligence.

The rule is fine. What's broken is what courts accept as satisfying it — which, as we'll get to, is often nothing more than a doctor's own signed word.

Bolam: A Case Decided on the Wrong Question Entirely

Then, almost a century after Blyth, arrived Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118 — the case that would shape medical negligence law for the next 67 years and counting.

The facts: A psychiatric patient was advised to undergo ECT. His doctor gave no muscle relaxant, applied no manual restraint, and never warned him of the risk of fracture. The patient suffered bilateral fractures of the acetabula. He sued.

The psychiatrist's expert testified that plenty of doctors avoided relaxants back then, and that warning patients wasn't standard unless they asked. The court bought it, dismissed the case, and Justice McNair laid down what's now called the Bolam Test: a doctor isn't negligent if they acted in line with a practice accepted by a responsible body of medical opinion — even if another responsible body disagrees.

This is usually dressed up as the "4 D's": Duty, Dereliction, Direct Causation, Damages. Sounds tidy. It isn't.

Here's the problem the court never actually confronted: the real question was never "was this accepted practice?" It should have been — why didn't he simply use a safe, available muscle relaxant that would have prevented the fracture entirely? It's hard not to wonder whether the real reason was simpler and less noble: not wanting to call in an anaesthetist and split the fee.

Bolam didn't just excuse one psychiatrist. It handed the entire medical profession a permanent shield: find one expert willing to say "I'd have done the same," and liability disappears — no matter how avoidable the harm was, no matter how weak the justification.

What This Looks Like in an Indian Courtroom Today

In most Indian medical negligence cases, the defendant doctor or hospital doesn't even need to clear Bolam's already-low bar properly. They simply file an affidavit stating the treatment was correct — full stop. No expert evidence required. No independent scrutiny. Courts routinely accept this as gospel.

Meanwhile, the complainant — usually a grieving, financially exhausted patient's family — faces something close to impossible: finding a doctor willing to testify against another doctor in open court. Off the record, plenty of doctors will admit a colleague's treatment was negligent. On record, in front of a judge, that same doctor suddenly remembers professional loyalty. It is not difficult to find an expert witness against a doctor in India — it is, to use the plain word for it, namumkin. Impossible.

Occasionally a consumer court sees through a favorable expert committee report and calls it biased. That should be the rule, not the rare exception.

The World Bolam Was Built For No Longer Exists

Bolam is a 1957 ruling being applied to 21st-century medicine. Consider what didn't exist when it was decided: no AIDS, no MRI or CT, no ultrasound, no open-heart or keyhole surgery, no ICU as we know it, barely any specialists. Most diseases had exactly one treatment path — so of course doctors weren't obligated to discuss alternatives that didn't exist.

Today nearly every condition has multiple treatment options. Patients carry the entirety of medical literature in their pocket. We live under a Right to Information regime and a culture of informed consent. And yet the same 1957 assumption persists in Indian courtrooms: that patients can't be trusted with the full picture, so doctors needn't disclose it. That's not deference to medical expertise — it's condescension dressed up as legal doctrine.

Medicine itself changed too — from a calling, to a business, to what is now, in many corners, an industry. The doctor-patient relationship shifted with it. Nobody forced that change on the profession. It did it to itself, then asked the law to keep pretending nothing happened.

Even the Old English Precedent Says More Than Indian Courts Let It

The Supreme Court's own reasoning in Spring Meadows Hospital v. Harjol Ahluwalia, I (1998) CPJ 1 (SC), is sharper than how it's typically applied. The Court explicitly warned that hospitals operating "in the garb of doing service to humanity" have continued commercial activities while "mercilessly extracting money from helpless patients" — and that it is the function of medical ethics to ensure the doctor's inherent superiority in the relationship is never abused.

The judgment also revisited Whitehouse v. Jordan (1981) 1 All ER 267, where an obstetrician's excessive force during a forceps delivery caused brain damage. Lord Denning called it a mere "error of judgment" — not negligence. The House of Lords rejected that letoff. Lord Fraser's test still stands: an error a reasonably careful professional would have made isn't negligence; an error such a professional would not have made, is — regardless of how sympathetically the doctor frames their own mistake.

The Court even acknowledged that gross errors — wrong drug, wrong anaesthetic gas — should trigger liability outright, sometimes under res ipsa loquitur. All the right words exist in Indian jurisprudence. They're simply not applied with any consistency.

The UK Fixed This Twice. India Didn't Bother Once.

Bolitho (1997): No More Blind Deference

Forty years after Bolam, the UK finally admitted the test had a hole in it. In Bolitho v. City and Hackney Health Authority (1997) 4 All ER 771, the House of Lords ruled that courts cannot simply accept an expert's opinion as "reasonable" or "responsible" without first checking whether that opinion actually survives logical scrutiny. In plain terms: the medical profession does not get to play God, and courts are not required to nod along with whatever a hired expert says.

Indian courts have had this correction available for over 25 years. Application remains reluctant and inconsistent at best.

Montgomery (2015): The Patient Gets a Say

The UK went further in Montgomery v. Lanarkshire Health Board [2015] UKSC 11. A small-stature diabetic patient specifically asked her doctor about pregnancy risks. She was never told about the 9–10% risk of shoulder dystocia in vaginal delivery, nor offered a cesarean. Her baby suffered shoulder dystocia and resulting cerebral palsy.

The UK Supreme Court didn't just tweak Bolam — it threw it out for consent cases entirely, replacing it with the Prudent Patient Test: doctors must disclose any risk a reasonable person in the patient's position would find significant. Patient autonomy over doctor's discretion. "Doctor knows best" was formally retired.

India hasn't retired anything. The judiciary believes that Indian people are not competent to understand about the risks involved or about alternative treatments. They are not capable of deciding neither about their health nor their bodies!

Litigation traces back to 1947 (Amelia Flounders v. Dr. Clement Periara, applying English common law wholesale), picked up after the Consumer Protection Act of 1986 and IMA v. V.P. Shantha (1995) — and courts are, by and large, still deciding cases on the original, unmodified 1957 Bolam standard. Not Bolitho. Not Montgomery. Bolam.

Civil vs. Criminal: The One Distinction Courts Do Get Right

• Civil negligence: proof on balance of probability — more likely than not (51%).
• Criminal negligence: proof beyond reasonable doubt — a genuinely higher bar.

This distinction is applied correctly. It's almost everything upstream of it that isn't.

Conclusion

Even the UK recognized its own system was too costly, too complex, and too slow — prompting Chief Medical Officer Sir Liam Donaldson's 2003 proposal for an NHS redress scheme, one that would assess claims against alternative tests alongside Bolam, not in place of scrutiny.

The underlying duty was never complicated: a doctor must explain the risks and alternatives of a proposed treatment, plainly and honestly. When a patient suffers unexpected, unrelated harm, and that is shown on balance of probability, the burden shifts to the doctor to explain — not to hide behind an affidavit and a friendly expert.

Globally, courts have moved through three stages: reasonable care until 1960, competent care by 1975, and now an expectation that doctors demonstrate a genuine, consistent effort toward optimal care within available resources. India remains parked at the first stop, still citing 1957 as though nothing since has mattered.

Nobody handed the medical profession this problem. It built it — through the shift from a calling to an industry, through affidavits nobody has to prove, through experts nobody can find, through a judiciary content to let a 67-year-old English ruling stand in for actual scrutiny. As William James Mayo put it: the aim of medicine is to prevent disease and prolong life — the ideal medicine is to eliminate the need of a physician. Indian law hasn't caught up to that ideal. It hasn't even caught up to 1997.

About the Author

Dr. Mahendra K. Joshi, M.S. (General Surgery), LL.M. (Criminology), M.A.S.L.M.E. (USA)
Ex. Member, State Consumer Commission — Gujarat
[email protected] | 91 98790 94226