No medical treatment or surgical operation is risk free.

As observed by Lord Denning in Roe and Woolley vs. The Ministry of Health and An Anaesthetist, (1954) 2 All ER 131:

“Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors like the rest of us, have to learn by experience; and experience often teaches in a hard way.”

When a person who is ill and is going to be treated in a hospital no matter what care is taken, there always exists some risk.

There is an implied contract between the doctor and patient where the patient is told that the medicine is not an exact science and the doctor shall use his experience and best judgment and the patient take the risk that the doctor may be wrong.

Under the provisions of Section 80 of Indian Penal Code, 1860, nothing is an offence which is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.

Under the provisions of Section 88 of Indian Penal Code, 1860, nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.”