B R E A C H O F
C O N T R A C T
&
L I A B I L I T Y
MODULE 3.1 MEDICAL LAW &
ETHICS
C REAT E D BY –
SIDDHARTH SAXENA,
T EAC HI N G A SSO C I AT E (LAW ),
DHA RMA SHA ST RA N AT I O N A L
L A W U N I V E R S I T Y, J A B A L P U R
Doctor – Patient
Relationship as Contract
• 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.
Can a patient sue?
• Apatient can sue a physician for their breach
of contract. Acontractual 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:
1. both the doctor and the patient have
unique responsibilities;
2. the relationship is consensual, not
obligatory;
3. both doctor and patient must be willing to
negotiate;
4. and each must gain something in the
encounters.
Contractual
Liability of Doctors
• The contracts made by doctors differ from
ordinary commercial contracts under two
very broad and important heads:
1. (i) they are impressed with a very
strong public policy;
2. (ii) they do not seek profit like other
commercial bodies.
• Contractual liability is determined by
terms of the contract negotiated by the
parties i.e. doctor/hospital and patient.
• The contract may be in implied terms –
taking vaccination shots at the
vaccination center.
Contractual Liability in
Express Contracts
• Terms of contract which are generally expressed
have to be interpreted in a different manner.
• Express contracts would actualize damages in
case of breach, duties and rights of the parties
and intended result.
• Intended result can't be guaranteed in medical
cases. Doctors generally don’t promise the
surety of attaining successful outcomes of the
treatment.
• Even exercise of utmost diligence, knowledge
and skill does not guarantee the success of the
treatment due to various underlying factors
such as genetics, medical history etc.
• However, the lack of skill, diligence, care and
knowledge or sufficiency of it doesn’t waive the
liability either.
Contractual Liability in
Express Contracts
• Terms of contract shall determine the
extent of liability of the doctor.
• If the terms warrant the absolute
success of the treatment, any
deviance thereof will render doctor to
be absolutely liable by law as per the
terms under Section 74 of ICA, 1872.
• Due to law favouring the patient
implicitly by considering the doctor-
patient relationship to be a fiduciary
one, doctors/hospital avoid express
terms of liability.
Cases where desired outcome
has to be achieved
• The notion of express absoluteness of
success of medical treatment is
absent in most contracts.
• However, exceptions to the notion
exist as well.
• Cosmetic surgeries, dental surgeries
and sterilization procedures are
exceptions to this general notion.
• In such cases, doctors undertake the
absolute success of the treatment.
Slight deviance would make the
doctor strictly liable.
