Law is made either by legislatures, courts, customs or usages. Contrary to popular belief most of the law is made by courts. Judgments passed by higher courts like Supreme Court, High Court, National Consumer Disputes Redressal Commission, etc lay down new laws or strike down or amend existing laws. In case of medical laws nearly 95% of law is made by courts.

Texts of four most important judgments that are useful to doctors in India are reproduced. These judgments can be actually put to use before various authorities and courts at appropriate time by doctors. Three judgments are of the highest court of India - Supreme Court, hence every authority in India is bound to respect and follow laws prescribed in these judgments. A bare reading of these judgments will give clear insight on what is required by law from a doctor discharging his or her professional duties.

The Supreme Court has laid down that ‘real consent’ will be the standard for taking consent in India. This real consent is not of the stringent and high degree that is required in ‘informed consent.’ (para 31; para 32 (v); para 33) Simply stated, consent has been liberalized in favour of doctors.

The effect of this judgment will be felt in the days to come, when the above proposition of law will be cited to justify actions taken by doctors in taking consent.

This judgment also declares that a procedure/surgery can be extended beyond what was agreed or consented only to save the life or preserve the health of the patient and when any delay would be unreasonable. Such an extension cannot be justified on the ground that it was beneficial to the patient or would save considerable time and expense to the patient. (para 32 [iii])

The uncertainty on this aspect of medicine, especially amongst interventionists and surgeons, has been addressed by the Supreme Court.

This judgment gives three important rights to doctors. First, police will not proceed against a doctor accused of medical negligence without obtaining a suitable medical opinion preferably from a doctor in government service. Second, criminal courts also will have to follow the exercise of getting a medical opinion before entertaining a private complaint against a doctor. Third, police cannot arrest a doctor accused of negligence in a routine manner.

This judgment has removed the sting from criminal proceedings as far as doctors are concerned and frankly doctors must not fear police in cases of medical negligence.

This judgment can certainly be shown to police if they are harassing a doctor in a case of medical negligence. Not following the directions given by the Supreme Court can make the concerned police officer liable for contempt. In fact, in most of the States in India, this judgment and its implications have been circulated amongst police by the respective state governments.

This judgment protects the doctors from unnecessary harassment in courts when they appear as witnesses in medicolegal cases. The supreme court has directed all the lower courts not to unnecessarily summon a doctor to give evidence, to give them preference in court and not to keep them waiting and avoid unnecessary harassment by way of adjournments or cross-examination.

This judgment can be used by doctors in courtrooms when they are summoned as witnesses, especially in medicolegal cases.

But at the same time, this judgment also casts a duty on all doctors, in private and government hospitals, to attend emergency patients. This duty has been described as ‘total, absolute and paramount.’

This judgment lays down the principle that a doctor cannot be held negligent in following one of the existing medical opinions, even if the opinion is in minority. But this minority opinion must be acceptable to the science of medicine.

It lays down the parameters of the standard of care that is expected from a doctor by law. It is an authority on law and is often quoted with approval in both English courts and American courts which otherwise have fundamental differences on many aspects of law. In India, all aspects of medical practice are governed by Bolams Law or Bolams Test.

This judgment may not be practically useful to Indian doctors in the strict sense. But knowing he standard of care that law expects from every doctor can help in perfecting practice that will be acceptable in law.

Balram Prasad v/s Dr. Kunal Saha & Ors. Download
Coram: Mr. Justice V. Gopala Gowda & Mr. Justice Chandramauli Kr. Prasad
Date of judgment:24.10.2013

V. Kishan Rao v/s. Nikhil Super Speciality Hospital & Anr. Download
Coram: Mr. Justice G. S. Singhvi & Mr. Justice Asok Kumar Ganguly
Date of judgment:7.8.2009

Malay Kumar Ganguly v/s. Dr. Sukumar Mukherjee & Ors. Download
Coram:Mr. Justice S. B. Sinha & Mr. Justice Deepak Verma
Date of judgment:8.3.2010

Nizam Institute of Medical Sciences v/s. Prasanth S. Dhanaka & Ors. Download
Coram: Mr. Justice B. N. Agrawal, Mr. Justice Harjit Singh Bedi & Mr. Justice G. S. Singhvi
Date of judgment:14.5.2009

Dr. C. P. Sreekumar, M. S. (Ortho) v/s. S. Ramanujam Download
Coram:Mr. Justice Harjit Singh Bedi & Mr. Justice Dalveer Bhandari
Date of judgment:1.5.2009

Ms. Ins. Malhotra v/s. Dr. A. Kriplani & Ors Download
Coram:. Justice Lokeshwar Singh Pant & Mr. Justice Sudershan Reddy
Date of judgment:24.3.2009

Martin F. D’Souza v/s Mohd. Ishfaq Download
Coram: Justice Markandey Katju & Mr. Justice R. M. Lodha
Date of judgment:17.2.2009