Sunday, May 17, 2009

Criminal Medical Negligence, Jacob Mathew’s Case

2005 AIR 3180 SC,
CASE NO.:
Appeal (crl.)  144-145 of 2004

PETITIONER:
Jacob Mathew                                  

RESPONDENT:
State of Punjab & Anr.                       

DATE OF JUDGMENT: 05/08/2005

BENCH:
CJI R.C. LAHOTI,G.P. MATHUR & P.K.BALASUBRAMANYAN

JUDGMENT:
J  U  D  G  M  E  N  T


R.C. LAHOTI,  CJI 

Ashok Kumar Sharma, the respondent no.2 herein filed a First
Information Report with police station, Division No. 3, Ludhiana,
whereupon an offence under Section 304A read with Section 34 of the
Indian Penal Code (for short "the IPC") was registered.  The gist of the
information is that on 15.2.1995, the informant's father, late Jiwan Lal
Sharma was admitted as a patient in a private ward of CMC Hospital,
Ludhiana.  On 22.2.1995 at about 11 p.m., Jiwan Lal felt difficulty in
breathing.  The complainant's elder brother, Vijay Sharma who was
present in the room contacted the duty nurse, who in her turn called
some doctor to attend to the patient.  No doctor turned up for about
20 to 25 minutes.  Then, Dr. Jacob Mathew, the appellant before us
and Dr.Allen Joseph came to the room of the patient.  An oxygen
cylinder was brought and connected to the mouth of the patient but
the breathing problem increased further.  The patient tried to get up
but the medical staff asked him to remain in the bed.  The oxygen
cylinder was found to be empty.  There was no other gas cylinder
available in the room.  Vijay Sharma went to the adjoining room and
brought a gas cylinder therefrom.  However, there was no
arrangement to make the gas cylinder functional and in-between, 5 to
7 minutes were wasted.  By this time, another doctor came who
declared  that the patient was dead.  The latter part of the FIR states
(as per the translation in English as filed by the complainant):_

"________the death of my father
was occurred due to the carelessness of
doctors and nurses and non availability of
oxygen cylinder and the empty cylinder was
fixed on the mouth of my father and his
breathing was totally stopped hence my
father died.  I sent the dead body of my
father to my village for last cremation and
for information I have come to you. Suitable
action be done Sd/-     ----  As per statement
of intimator the death of Jiwan Lal Sharma
has occurred due to carelessness of doctors
and nurses concerned and to fit empty gas
cylinder."

    On the abovesaid report, an offence under Section 304A/34 IPC
was registered and investigated.  Challan was filed against the two
doctors.

    The Judicial Magistrate First Class, Ludhiana framed charges
under Section 304A, IPC against the two accused persons, both
doctors.  Both of them filed a revision in the Court of Sessions Judge
submitting that there was no ground for framing  charges against
them.  The revision was dismissed. The appellant filed a petition in the
High Court under Section 482 of the Code of Criminal Procedure
praying for quashing of the FIR and all the subsequent proceedings.

    It was submitted before the High Court that there was no
specific allegation of any act of omission or commission against the
accused  persons in the entire plethora of documents comprising the
challan papers filed by the police against them.  The learned single
Judge who heard the petition formed an opinion that the plea raised by
the appellant was available to be urged in defence at the trial and,
therefore, a case for quashing the charge was not made out. Vide
order dated 18.12.2002, the High Court dismissed the petition.  An
application for recalling the abovesaid order was moved which too was
dismissed on 24.1.2003.  Feeling aggrieved by these two orders, the
appellant has filed these appeals by special leave.
 
According to the appellant, the deceased Jiwan Lal was suffering
from cancer in an advanced stage and as per the information
available, he was, in fact, not being admitted by any hospital in the
country because his being a case of cancer at terminal stage.  He was
only required to be kept at home and given proper nursing, food, care
and solace coupled with prayers.  But as is apparent from the records,
his sons are very influential persons occupying important positions in
Government.   They requested the hospital authorities that come what
may, even on compassionate grounds their father may be admitted in
the hospital for regulated medical treatment and proper management
of diet.  It was abundantly made clear to the informant and his other
relations who had accompanied the deceased that the disease was of
such a nature and had attained such gravity, that peace and  solace
could only be got at home.  But the complainant could prevail over the
doctors and hospital management and got the deceased admitted as
an in-patient. Nevertheless, the patient was treated with utmost care
and caution and given all the required medical assistance by the
doctors and para-medical staff.  Every conceivable effort was made by
all the attending staff comprising of doctors and nurses and other
para-medicals to give appropriate medical treatment and the whole
staff danced attendance on the patient but what was ordained to
happen, did happen.  The complainant and his relations, who were
misguided or were under mistaken belief as to the facts, lodged police
report against the accused persons _ wholly unwarranted and
uncalled for.

    The matter came up for hearing before a Bench of two learned
judges of this Court.  Reliance was placed by the appellant on a recent
two-judge Bench decision of this Court in  Dr. Suresh Gupta v. Govt.
of NCT of Delhi and Anr. (2004)  6 SCC 422.  The Bench hearing this
appeal doubted the correctness of the view taken in Dr. Suresh
Gupta's case and vide order dated 9.9.2004 expressed the opinion
that the matter called for consideration by a Bench of three Judges.
This is how the case has come up for hearing before this Bench.
   
In Dr. Suresh Gupta's case, the patient, a young man with no
history of any heart ailment, was subjected to an operation performed
by Dr. Suresh Gupta for nasal deformity.  The operation was neither
complicated nor serious. The patient died.  On investigation, the cause
of death was found to be "not introducing a cuffed endotracheal tube
of proper size as to prevent aspiration of blood from the wound in the
respiratory passage".  The Bench formed an opinion that this act
attributed to the doctor, even if accepted to be true, could be
described as an act of negligence as there was lack of due care and
precaution.  But, the Court categorically held _ "for this act of
negligence he may be liable in tort, his carelessness or want of due
attention and skill cannot be described to be so reckless or grossly
negligent as to make him criminally liable".

    The referring Bench in its order dated 9.9.2004 has assigned
two reasons for their disagreement with the view taken in Dr. Suresh
Gupta's case which are as under:-

(1)    Negligence or recklessness being 'gross' is not a requirement of
Section 304A of IPC and if the view taken in Dr. Suresh
Gupta's case is to be followed then the word 'gross' shall have
to be read into Section 304A IPC for fixing criminal liability on a
doctor.  Such an approach cannot be countenanced.

(2)     Different standards cannot be applied to doctors and others.  In
all cases it has to be seen whether the impugned act was rash
or negligent. By carrying out a separate treatment for doctors
by introducing degree of rashness or negligence, violence would
be done to the plain and unambiguous language of section
304A.  If by adducing evidence it is proved that there was no
rashness or negligence involved, the trial court dealing with the
matter shall decide appropriately.  But a doctor cannot be
placed at a different pedestal for finding out whether rashness
or negligence was involved.

We have heard the learned counsel for the appellant, the
respondent-State and the respondent complainant.  As the question of
medical negligence arose for consideration, we thought it fit to issue
notice to Medical Council of India to assist the Court at the time of
hearing which it has done.  In addition, a registered society _ 'People
for Better Treatment', Kolkata; Delhi Medical Council, Delhi Medical
Association and Indian Medical Association sought for intervention at
the hearing as the issue arising for decision is of vital significance for
the medical profession.  They too have been heard. Mainly, the
submissions made by the learned counsel for the parties and the
intervenors have centred around two issues : (i) Is there a difference
in civil and criminal law on the concept of negligence?; and (ii)
whether a different standard is applicable for recording a finding of
negligence when a professional, in particular, a doctor is to be held
guilty of negligence?

    With the awareness in the society and the people in general
gathering consciousness about their rights, actions for damages in tort
are on the increase.  Not only civil suits are filed, the availability of a
forum for grievance redressal under the Consumer Protection Act,
1986 having jurisdiction to hear complaints against professionals for
'deficiency in service', which expression is very widely defined in the
Act, has given rise to a large number of complaints against
professionals, in particular against doctors, being filed by the persons
feeling aggrieved.    Criminal complaints are being filed against doctors
alleging commission of offences punishable under Section 304A or
Sections 336/337/338 of the IPC alleging rashness or negligence on
the part of the doctors resulting in loss of life or injury (of varying
degree) to the patient.  The present one is such a case.  The order of
reference has enabled us to examine the concept of 'negligence', in
particular 'professional negligence', and as to when and how it does
give rise to an action under the criminal law.  We propose to deal with
the issues in the interests of settling the law.

Negligence as a tort
    The jurisprudential concept of negligence defies any precise
definition.  Eminent jurists and leading judgments have assigned
various meanings to negligence.  The concept as has been acceptable
to Indian jurisprudential thought is well-stated in the Law of Torts,
Ratanlal & Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P.
Singh).  It is stated (at p.441-442) ___ "Negligence is the breach of a
duty caused by the omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a prudent and
reasonable man would not do.  Actionable negligence consists in the
neglect of the use of ordinary care or skill towards a person to whom
the defendant owes the duty of observing ordinary care and skill, by
which neglect the plaintiff has suffered injury to his person or
property. _______ The definition involves three constituents of
negligence: (1) A legal duty to exercise due care on the part of the
party complained of towards the party complaining the former's
conduct within the scope of the duty; (2) breach of the said duty; and
(3) consequential damage.  Cause of action for negligence arises only
when damage occurs; for, damage is a necessary ingredient of this
tort."

    According to Charlesworth & Percy on Negligence (Tenth Edition,
2001), in current forensic speech, negligence has three meanings. 
They are: (i) a state of mind, in which it is opposed to intention; (ii)
careless conduct; and (iii) the breach of duty to take care that is
imposed by either common or statute law.  All three meanings are
applicable in different circumstances but any one of them does not
necessarily exclude the other meanings. (Para 1.01)  The essential
components of negligence, as recognized, are three: "duty", "breach"
and "resulting damage", that is to say:-
1.    the existence of a duty to take care, which is
owed by the defendant to the complainant;

2.    the failure to attain that standard of care,
prescribed by the law, thereby committing a
breach of such duty; and

3.    damage, which is both causally connected
with such breach and recognized by the law,
has been suffered by the complainant. (Para
1.23)


If the claimant satisfies the court on the evidence that these three
ingredients are made out, the defendant should be held liable in
negligence. (Para 1.24)

Negligence __ as a tort and as a crime
    The term 'negligence' is used for the purpose of fastening the
defendant with liability under the Civil Law and, at times, under the
Criminal Law.  It is contended on behalf of the respondents that in
both the jurisdictions, negligence is negligence, and jurisprudentially
no distinction can be drawn between negligence under civil law and
negligence under criminal law.  The submission so made cannot be
countenanced inasmuch as it is based upon a total departure from the
established terrain of thought running ever since the beginning of the
emergence of the concept of negligence upto the modern times.
Generally speaking, it is the amount of damages incurred which is
determinative of the extent of liability in tort; but in criminal law it is
not the amount of damages but the amount and degree of negligence
that is determinative of liability.  To fasten liability in Criminal Law, the
degree of negligence has to be higher than that of negligence enough
to fasten liability for damages in Civil Law.  The essential ingredient of
mens rea cannot be excluded from consideration when the charge in a
criminal court consists of criminal negligence. In R. v. Lawrence,
[1981] 1 All ER 974 (HL), Lord Diplock spoke in a Bench of five and
the other Law Lords agreed with him.  He reiterated his opinion in R.
v. Caldwell 1981(1) All ER 961 (HL) and dealt with the concept of
recklessness as constituting mens rea in criminal law.  His Lordship
warned against adopting the simplistic approach of treating all
problems of criminal liability as soluble by classifying the test of
liability as being "subjective" or "objective", and said "Recklessness on
the part of the doer of an act does presuppose that there is something
in the circumstances that would have drawn the attention of an
ordinary prudent individual to the possibility that his act was capable
of causing the kind of serious harmful consequences that the section
which creates the offence was intended to prevent, and that the risk of
those harmful consequences occurring was not so slight that an
ordinary prudent individual would feel justified in treating them as
negligible.  It is only when this is so that the doer of the act is acting
'recklessly' if, before doing the act, he either fails to give any thought
to the possibility of there being any such risk or, having recognized
that there was such risk, he nevertheless goes on to do it."

    The moral culpability of recklessness is not located in a desire to
cause harm.  It resides in the proximity of the reckless state of mind
to the state of mind present when there is an intention to cause harm. 
There is, in other words, a disregard for the possible consequences. 
The consequences entailed in the risk may not be wanted, and indeed
the actor may hope that they do not occur, but this hope nevertheless
fails to inhibit the taking of the risk.  Certain types of violation, called
optimizing violations, may be motivated by thrill-seeking.  These are
clearly reckless.

    In order to hold the existence of criminal rashness or criminal
negligence it shall have to be found out that the rashness was of such
a degree as to amount to taking a hazard knowing that the hazard was
of such a degree that injury was most likely imminent.  The element of
criminality is introduced by the accused having run the risk of doing
such an act with recklessness and indifference to the consequences. 
Lord Atkin in his speech in Andrews v. Director of Public
Prosecutions, [1937] A.C. 576, stated, "Simple lack of care _ such
as will constitute civil liability is not enough; for purposes of the
criminal law there are degrees of negligence; and a very high degree
of negligence is required to be proved before the felony is
established."  Thus, a clear distinction exists between "simple lack of
care" incurring civil liability and "very high degree of negligence" which
is required in criminal cases.  Lord Porter said in his speech in the
same case ___ "A higher degree of negligence has always been
demanded in order to establish a criminal offence than is sufficient to
create civil liability. (Charlesworth & Percy, ibid, Para 1.13)

    The fore-quoted statement of law in Andrews has been noted
with approval by this Court in Syad Akbar v. State of Karnataka
(1980) 1 SCC 30.  The Supreme Court has dealt with and pointed out
with reasons the distinction between negligence in civil law and in
criminal law.  Their Lordships have opined that there is a marked
difference as to the effect of evidence, viz. the proof, in civil and
criminal proceedings.  In civil proceedings, a mere preponderance of
probability is sufficient, and the defendant is not necessarily entitled to
the benefit of every reasonable doubt; but in criminal proceedings, the
persuasion of guilt must amount to such a moral certainty as
convinces the mind of the Court, as a reasonable man, beyond all
reasonable doubt.  Where negligence is an essential ingredient of the
offence, the negligence to be established by the prosecution must be
culpable or gross and not the negligence merely based upon an error
of judgment.

    Law laid down by Straight, J. in the case Reg v. Idu Beg
(1881) 3 All. 776, has been held good in cases and noticed in
Bhalchandra Waman Pathe v. State of Maharashtra 1968 Mh.L.J.
423 ? a three-Judge Bench decision of this Court.  It has been held
that while negligence is an omission to do something which a
reasonable man, guided upon those considerations which ordinarily
regulate the conduct of human affairs, would do, or doing something
which a prudent and reasonable man would not do; criminal
negligence is the gross and culpable neglect or failure to exercise that
reasonable and proper care and precaution to guard against injury
either to the public generally or to an individual in particular, which
having regard to all the circumstances out of which the charge has
arisen, it was the imperative duty of the accused person to have
adopted.

    In our opinion, the factor of grossness or degree does assume
significance while drawing distinction in negligence actionable in tort
and negligence punishable as a crime.  To be latter, the negligence has
to be gross or of a very high degree.

Negligence by professionals
    In the law of negligence, professionals such as lawyers, doctors,
architects and others are included in the category  of persons
professing some special skill or skilled persons generally.  Any task
which is required to be performed with a special skill would generally
be admitted or undertaken to be performed only if the person
possesses the requisite skill for performing that task.  Any reasonable
man entering into a profession which requires a particular level of
learning to be called a professional of that branch, impliedly assures
the person dealing with him that the skill which he professes to
possess shall be exercised and exercised with reasonable degree of
care and caution.  He does not assure his client of the result.  A lawyer
does not tell his client that the client shall win the case in all
circumstances.  A physician would not assure the patient of full
recovery in every case.  A surgeon cannot and does not guarantee that
the result of surgery would invariably be beneficial, much less to the
extent of 100% for the person operated on.  The only assurance which
such a professional can give or can be understood to have given by
implication is that he is possessed of the requisite skill in that branch
of profession which he is practising and while undertaking the
performance of the task entrusted to him he would be exercising his
skill with reasonable competence.  This is all what the person
approaching the professional can expect.  Judged by this standard, a
professional may be held liable for negligence on one of two findings:
either he was not possessed of the requisite skill which he professed to
have possessed, or, he did not exercise, with reasonable competence
in the given case, the skill which he did possess.  The standard to be
applied for judging, whether the person charged has been negligent or
not, would be that of an ordinary competent person exercising
ordinary skill in that profession.  It is not necessary for every
professional to possess the highest level of expertise in that branch
which he practices.  In Michael Hyde and Associates v. J.D.
Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J. said that
where a profession embraces a range of views as to what is an
acceptable standard of conduct, the competence of the defendant is to
be judged by the lowest standard that would be regarded as
acceptable. (Charlesworth & Percy, ibid, Para 8.03)

    Oft'quoted passage defining negligence by professionals,
generally and not necessarily confined to doctors, is to be found in the
opinion of McNair J. in Bolam v. Friern Hospital Management
Committee, [1957] 1 W.L.R. 582, 586 in the following words:
    "Where you get a situation which involves the
use of some special skill or competence, then the
test as to whether there has been negligence or not
is not the test of the man on the top of a Clapham
omnibus, because he has not got this special skill. 
The test is the standard of the ordinary skilled man
exercising and professing to have that special skill .
. . A man need not possess the highest expert skill;
it is well established law that it is sufficient if he
exercises the ordinary skill of an ordinary
competent man exercising that particular art."
(Charlesworth & Percy, ibid, Para 8.02)

    The water of Bolam test has ever since flown and passed under
several bridges, having been cited and dealt with in several judicial
pronouncements, one after the other and has continued to be well
received by every shore it has touched as neat, clean and well-
condensed one.  After a review of various authorities Bingham L.J. in
his speech in Eckersley v. Binnie, [1988] 18 Con.L.R. 1, 79
summarised the Bolam test in the following words:-
    "From these general statements it follows that a
professional man should command the corpus of
knowledge which forms part of the professional
equipment of the ordinary member of his
profession.  He should not lag behind other
ordinary assiduous and intelligent members of his
profession in knowledge of new advances,
discoveries and developments in his field.  He
should have such an awareness as an ordinarily
competent practitioner would have of the
deficiencies in his knowledge and the limitations on
his skill.  He should be alert to the hazards and
risks in any professional task he undertakes to the
extent that other ordinarily competent members of
the profession would be alert.  He must bring to
any professional task he undertakes no less
expertise, skill and care than other ordinarily
competent members of his profession would bring,
but need bring no more.  The standard is that of
the reasonable average.  The law does not require
of a professional man that he be a paragon
combining the qualities of polymath and prophet."
(Charlesworth & Percy, ibid, Para 8.04)

    The degree of skill and care required by a medical practitioner is
so stated in Halsbury's Laws of England (Fourth Edition, Vol.30,
Para 35):-
    "The practitioner must bring to his task a
reasonable degree of skill and knowledge, and
must exercise a reasonable degree of care.  Neither
the very highest nor a very low degree of care and
competence, judged in the light of the particular
circumstances of each case, is what the law
requires, and a person is not liable in negligence
because someone else of greater skill and
knowledge would have prescribed different
treatment or operated in a different way; nor is he
guilty of negligence if he has acted in  accordance
with a practice accepted as proper by a responsible
body of medical men skilled in that particular art,
even though a body of adverse opinion also existed
among medical men.

    Deviation from normal practice is not
necessarily evidence of negligence.  To establish
liability on that basis it must be shown (1) that
there is a usual and normal practice; (2) that the
defendant has not adopted it; and (3) that the
course in fact adopted is one no professional man
of ordinary skill would have taken had he been
acting with ordinary care."

Abovesaid three tests have also been stated as determinative of
negligence in professional practice by Charlesworth & Percy in their
celebrated work on Negligence (ibid, para 8.110)

In the opinion of Lord Denning, as expressed in Hucks v. Cole,
[1968] 118 New LJ 469, a medical practitioner was not to be held
liable simply because things went wrong from mischance or
misadventure or through an error of judgment in choosing one
reasonable course of treatment in preference of another.  A medical
practitioner would be liable only where his conduct fell below that of
the standards of a reasonably competent practitioner in his field.

    The decision of House of Lords in Maynard v. West Midlands
Regional Health Authority, [1985] 1 All ER 635 (HL) by a Bench
consisting of five Law Lords has been accepted as having settled the
law on the point by holding that it is not enough to show that there is
a body of competent professional opinion which considers that decision
of the defendant professional was a wrong decision, if there also exists
a body of professional opinion, equally competent, which supports the
decision as reasonable in the circumstances.  It is not enough to show
that subsequent events show that the operation need never have been
performed, if at the time the decision to operate was taken, it was
reasonable, in the sense that a responsible body of medical opinion
would have accepted it as proper.  Lord Scarman who recorded the
leading speech with which other four Lords agreed quoted the
following words of Lord President (Clyde) in Hunter v. Hanley 1955
SLT 213 at 217, observing that the words cannot be bettered _ "In the
realm of diagnosis and treatment there is ample scope for genuine
difference of opinion and one man clearly is not negligent merely
because his conclusion differs from that of other professional men_The
true test for establishing negligence in diagnosis or treatment on the
part of a doctor is whether he has been proved to be guilty of such
failure as no doctor of ordinary skill would be guilty of if acting with
ordinary care_".  Lord Scarman added _ "a doctor who professes to
exercise a special skill must exercise the ordinary skill of his speciality. 
Differences of opinion and practice exist, and will always exist, in the
medical as in other professions.  There is seldom any one answer
exclusive of all others to problems of professional judgment.  A court
may prefer one body of opinion to the other, but that is no basis for a
conclusion of negligence."  His Lordship further added "that a judge's
'preference' for one body of distinguished professional opinion to
another also professionally distinguished is not sufficient to establish
negligence in a practitioner whose actions have received the seal of
approval of those whose opinions, truthfully expressed, honestly held,
were not preferred."

    The classical statement of law in Bolam's case has been widely
accepted as decisive of the standard of care required both of
professional men generally and medical practitioners in particular.   It 
has been invariably cited with approval before Courts in India and
applied to as touchstone to test the pleas of medical negligence.  In
tort, it is enough for the defendant to show that the standard of care
and the skill attained was that of the ordinary competent medical
practitioner exercising an ordinary degree of professional skill.  The
fact that a defendant charged with negligence acted in accord with the
general and approved practice is enough to clear him of the charge. 
Two things are pertinent to be noted.  Firstly, the standard of care,
when assessing the practice as adopted, is judged in the light of
knowledge available at the time (of the incident), and not at the date
of trial. Secondly, when the charge of negligence arises out of failure
to use some particular equipment, the charge would fail if the
equipment was not generally available at that point of time on which it
is suggested as should have been used.

    A mere deviation from normal professional practice is not
necessarily evidence of negligence.  Let it also be noted that a mere
accident is not evidence of negligence.  So also an error of judgment
on the part of a professional is not negligence per se.  Higher the
acuteness in emergency and higher the complication, more are the
chances of error of judgment.  At times, the professional is confronted
with making a choice between the devil and the deep sea and he has
to choose the lesser evil.  The medical professional is often called upon
to adopt a procedure which involves higher element of risk, but which
he honestly believes as providing greater chances of success for the
patient rather than a procedure involving lesser risk but higher
chances of failure.  Which course is more appropriate to follow, would
depend on the facts and circumstances of a given case.  The usual
practice prevalent nowadays is to obtain the consent of the patient or
of the person incharge of the patient if the patient is not be in a
position to give consent before adopting a given procedure.  So long
as it can be found that the procedure which was in fact adopted was
one which was acceptable to medical science as on that date, the
medical practitioner cannot be held negligent merely because he chose
to follow one procedure and not another and the result was a failure.

    No sensible professional would intentionally commit an act or
omission which would result in loss or injury to the patient as the
professional reputation of the person is at stake.  A single failure may
cost him dear in his career.  Even in civil jurisdiction, the rule of res
ipsa loquitur is not of universal application and has to be applied with
extreme care and caution to the cases of professional negligence and
in particular that of the doctors.  Else it would be counter productive. 
Simply because a patient has not favourably responded to a treatment
given by a physician or a surgery has failed, the doctor cannot be held
liable per se by applying the doctrine of res ipsa loquitur. 

Res ipsa loquitur is a rule of evidence which in reality belongs to
the law of torts.  Inference as to negligence may be drawn from
proved circumstances by applying the rule if the cause of the accident
is unknown and no reasonable explanation as to the cause is coming
forth from the defendant.  In criminal proceedings, the burden of
proving negligence as an essential ingredient of the offence lies on the
prosecution.  Such ingredient cannot be said to have been proved or
made out by resorting to the said rule (See Syad Kabar v. State of
Karnataka (1980) 1 SCC 30).  Incidentally, it may be noted that in
Krishnan and Anr. v. State of Kerala (1996) 10 SCC 508 the Court
has observed that there may be a case where the proved facts would
themselves speak of sharing of common intention and while making
such observation one of the learned judges constituting the Bench has
in his concurring opinion merely stated "res ipsa loquitur'. Nowhere it
has been stated that the rule has applicability in a criminal case and an
inference as to an essential ingredient of an offence can be found
proved by resorting to the said rule.  In our opinion, a case under
Section 304A IPC cannot be decided solely by applying the rule of res
ipsa loquitur.
   
A medical practitioner faced with an emergency ordinarily tries
his best to redeem the patient out of his suffering.  He does not gain
anything by acting with negligence or by omitting to do an act. 
Obviously, therefore, it will be for the complainant to clearly make out
a case of negligence before a medical practitioner is charged with or
proceeded against criminally. A surgeon with shaky hands under fear
of legal action cannot perform a successful operation and a quivering
physician cannot administer the end-dose of medicine to his patient.

    If the hands be trembling with the dangling fear of facing a
criminal prosecution in the event of failure for whatever reason_
whether attributable to himself or not, neither a surgeon can
successfully wield his life-saving scalper to perform an essential
surgery, nor can a physician successfully administer the life-saving
dose of medicine.  Discretion being better part of valour, a medical
professional would feel better advised to leave a terminal patient to his
own fate in the case of emergency where the chance of success may
be 10% (or so), rather than taking the risk of making a last ditch
effort towards saving the subject and facing a criminal prosecution if
his effort fails.  Such timidity forced upon a doctor would be a
disservice to the society.

    The purpose of holding a professional liable for his act or
omission, if negligent, is to make the life safer and to eliminate the
possibility of recurrence of negligence in future. Human body and
medical science _ both are too complex to be easily understood.  To
hold in favour of existence of negligence, associated with the action or
inaction of a medical professional, requires an in-depth understanding
of the working of a professional as also the nature of the job and of
errors committed by chance, which do not necessarily involve the
element of culpability. 

    The subject of negligence in the context of medical profession
necessarily calls for treatment with a difference.  Several relevant
considerations in this regard are found mentioned by Alan Merry and
Alexander McCall Smith in their work "Errors, Medicine and the Law"
(Cambridge University Press, 2001).  There is a marked tendency to
look for a human actor to blame for an untoward event _ a tendency
which is closely linked with the desire to punish.  Things have gone
wrong and, therefore, somebody must be found to answer for it.  To
draw a distinction between the blameworthy and the blameless, the
notion of mens rea has to be elaborately understood.  An empirical
study would reveal that the background to a mishap is frequently far
more complex than may generally be assumed.  It can be
demonstrated that actual blame for the outcome has to be attributed
with great caution.  For a medical accident or failure, the responsibility
may lie with the medical practitioner and equally it may not.  The
inadequacies of the system, the specific circumstances of the case, the
nature of human psychology itself and sheer chance may have
combined to produce a result in which the doctor's contribution is
either relatively or completely blameless.  Human body and its working
is nothing less than a highly complex machine.  Coupled with the
complexities of medical science, the scope for misimpressions,
misgivings and misplaced allegations against the operator i.e. the
doctor, cannot be ruled out.  One may have notions of best or ideal
practice which are different from the reality of how medical practice is
carried on or how in real life the doctor functions.  The factors of
pressing need and limited resources cannot be ruled out from
consideration.  Dealing with a case of medical negligence needs a
deeper understanding of the practical side of medicine.

    At least three weighty considerations can be pointed out which
any forum trying the issue of medical negligence in any jurisdiction
must keep in mind.  These are:  (i) that legal and disciplinary
procedures should be properly founded on firm, moral and scientific
grounds; (ii) that patients will be better served if the real causes of
harm are properly identified and appropriately acted upon; and (iii)
that many incidents involve a contribution from more than one person,
and the tendency is to blame the last identifiable element in the chain
of causation _ the person holding the 'smoking gun'.

    Accident during the course of medical or surgical treatment has
a wider meaning.  Ordinarily, an accident means an unintended and
unforeseen injurious occurrence; something that does not occur in the
usual course of events or that could not be reasonably anticipated
(See, Black's Law Dictionary, 7th Edition).  Care has to be taken to see
that the result of an accident which is exculpatory may not persuade
the human mind to confuse it with the consequence of negligence.

Medical Professionals in Criminal Law
    The criminal law has invariably placed the medical professionals
on a pedestal different from ordinary mortals. The Indian Penal Code
enacted as far back as in the year 1860 sets out a few vocal examples. 
Section 88 in the Chapter on General Exceptions provides exemption
for acts not intended to cause death, done by consent in good faith for
person's benefit.  Section 92 provides for exemption for acts done in
good faith for the benefit of a person without his consent though the
acts cause harm to a person and that person has not consented to
suffer such harm.  There are four exceptions listed in the Section
which is not necessary in this context to deal with.  Section 93 saves
from criminality certain communications made in good faith.  To these
provisions are appended the following illustrations:-

Section 88
 A, a surgeon, knowing that a particular operation
is likely to cause the death of Z, who suffers under
a painful complaint, but not intending to cause Z's
death and intending in good faith, Z's benefit,
performs that operation on Z, with Z's consent.  A
has committed no offence.

Section 92
Z is thrown from his horse, and is insensible.  A, a
surgeon, finds that Z requires to be trepanned.  A,
not intending Z's death, but in good faith, for Z's
benefit, performs the trepan before Z recovers his
power of judging for himself.  A has committed no
offence.

    A, a surgeon, sees a child suffer an accident
which is likely to prove fatal unless an operation be
immediately performed.  There is no time to apply
to the child's guardian.  A performs the operation in
spite of the entreaties of the child, intending, in
good faith, the child's benefit.   A has committed
no offence.

Section 93
A, a surgeon, in good faith, communicates to a
patient his opinion that he cannot live.  The patient
dies in consequence of the shock.  A has committed
no offence, though he knew it to be likely that the
communication might cause the patient's death.

     It is interesting to note what Lord Macaulay had himself to say
about Indian Penal Code. We are inclined to quote a few excerpts from
his speech to the extent relevant for our purpose from "Speeches and
Poems with the Report and Notes on the Indian Penal Code" by Lord
Macaulay (Houghton, Mifflin and Company, published in 1874).
   
"Under the provisions of our Code, this case would
be very differently dealt with according to
circumstances.  If A. kills Z. by administering
abortives to her, with the knowledge that those
abortives are likely to cause her death, he is guilty
of voluntary culpable homicide, which will be
voluntary culpable homicide by consent, if Z.
agreed to run the risk, and murder if Z. did not so
agree.  If A causes miscarriage to Z., not intending
to cause Z.'s death, nor thinking it likely that he
shall cause Z.'s death, but so rashly or negligently
as to cause her death, A. is guilty of culpable
homicide not voluntary, and will be liable to the
punishment provided for the causing of
miscarriage, increased by imprisonment for a term
not exceeding two years.  Lastly, if A took such
precautions that there was no reasonable
probability that Z.'s death would be caused, and if
the medicine were rendered deadly by some
accident which no human sagacity could have
foreseen, or by some peculiarity in Z.'s constitution
such as there was no ground whatever to expect,
A. will be liable to no punishment whatever on
account of her death, but will of course be liable to
the punishment provided for causing miscarriage.
   
    It may be proper for us to offer some arguments in
defence of this part of the Code.
   
    It will be admitted that when an act is in itself
innocent, to punish the person who does it because
bad consequences, which no human wisdom could
have foreseen, have followed from it, would be in
the highest degree barbarous and absurd." (P.419)
   
    "To punish as a murderer every man who, while
committing a heinous offence, causes death by
pure misadventure, is a course which evidently
adds nothing to the security of human life.  No man
can so conduct himself as to make it absolutely
certain that he shall not be so unfortunate as to
cause the death of a fellow-creature.  The utmost
that he can do is to abstain from every thing which
is at all likely to cause death.  No fear of
punishment can make him do more than this; and
therefore, to punish a man who has done this can
add nothing to the security of human life.  The only
good effect which such punishment can produce
will be to deter people from committing any of
those offences which turn into murders what are in
themselves mere accidents.  It is in fact an addition
to the punishment of those offences, and it is an
addition made in the very worst way." (p.421)
   
    "When a person engaged in the commission of an
offence causes death by rashness or negligence,
but without either intending to cause death, or
thinking it likely that he shall cause death, we
propose that he shall be liable to the punishment of
the offence which he was engaged in committing,
superadded to the ordinary punishment of
involuntary culpable homicide.
   
    The arguments and illustrations which we have
employed for the purpose of showing that the
involuntary causing of death, without either
rashness or negligence, ought, under no
circumstances, to be punished at all, will, with
some modifications, which will readily suggest
themselves, serve to show that the involuntary
causing of death by rashness or negligence, though
always punishable, ought, under no circumstances
to be punished as murder."                        (P.422)


The following statement of law on criminal negligence by
reference to surgeons, doctors etc. and unskillful treatment contained
in Roscoe's Law of Evidence (Fifteenth Edition) is classic: 
"Where a person, acting as a medical man, &c.,
whether licensed or unlicensed, is so negligent in
his treatment of a patient that death results, it is
manslaughter if the negligence was so great as to
amount to a crime, and whether or not there was
such a degree of negligence is a question in each
case for the jury. "In explaining to juries the test
which they should apply to determine whether the
negligence in the particular case amounted or did
not amount to a crime, judges have used many
epithets, such as 'culpable,' 'criminal', 'gross',
'wicked', 'clear', 'complete.' But whatever epithet
be used and whether an epithet be used or not, in
order to establish criminal liability the facts must
be such that, in the opinion of the jury, the
negligence of the accused went beyond a mere
matter of compensation between subjects and
showed such disregard for the life and safety of
others as to amount to a crime against the State
and conduct deserving punishment." (p. 848-849)
       xxx                  xxx                   xxx

"whether he be licensed or unlicensed, if he display
gross ignorance, or gross inattention, or gross
rashness, in his treatment, he is criminally
responsible.  Where a person who, though not
educated as an accoucheur, had been in the habit
of acting as a man-midwife, and had unskilfully
treated a woman who died in childbirth, was
indicted for the murder, L. Ellenborough said that
there was no evidence of murder, but the jury
might convict of man-slaughter.  "To substantiate
that charge the prisoner must have been guilty of
criminal misconduct, arising either from the
grossest ignorance or the [most?] criminal
inattention.  One or other of these is necessary to
make him guilty of that criminal negligence and
misconduct which is essential to make out a case of
manslaughter."                     (p.849)


A review of Indian decisions on criminal negligence
    We are inclined to, and we must - as duty bound, take note of
some of the relevant decisions of the Privy Council and of this Court. 
We would like to preface this discussion with the law laid down by the
Privy Council in John Oni Akerele v. The King AIR 1943 PC 72. A
duly qualified medical practitioner gave to his patient the injection of
Sobita which consisted of sodium bismuth tartrate as given in the
British Pharmacopoea.  However, what was administered was an
overdose of Sobita.  The patient died.  The doctor was accused of
manslaughter, reckless and negligent act.  He was convicted.  The
matter reached in appeal before the House of Lords.  Their Lordships
quashed the conviction.  On a review of judicial opinion and an
illuminating discussion on the points which are also relevant before us,
what their Lordships have held can be summed up as under:-

(i)    That a doctor is not criminally responsible for a
patient's death unless his negligence or
incompetence went beyond a mere matter of
compensation between subjects and showed such
disregard for life and safety of others as to amount
to a crime against the State.;

(ii)    That the degree of negligence required is that it
should be gross, and that neither a jury nor a court
can transform negligence of a lesser degree into
gross negligence merely by giving it that
appellation.  ____ There is a difference in kind
between the negligence which gives a right to
compensation and the negligence which is a crime.

(iii)    It is impossible to define culpable or
criminal negligence, and it is not possible to make
the distinction between actionable negligence and
criminal negligence intelligible, except by means of
illustrations drawn from actual judicial opinion.
__.. The most favourable view of the conduct of an
accused medical man has to be taken, for it would
be most fatal to the efficiency of the medical
profession if no one could administer medicine
without a halter round his neck."
(emphasis supplied)

Their Lordships refused to accept the view that criminal negligence
was proved merely because a number of persons were made gravely ill
after receiving an injection of Sobita from the appellant coupled with a
finding that a high degree of care was not exercised.  Their Lordships
also refused to agree with the thought that merely because too strong
a mixture was dispensed once and a number of persons were made
gravely ill, a criminal degree of negligence was proved. 

    The question of degree has always been considered as relevant
to a distinction between negligence in civil law and negligence in
criminal law.  In Kurban Hussein Mohamedalli Rangawalla v.
State of Maharashtra (1965) 2 SCR 622, while dealing with Section
304A of IPC, the following statement of law by Sir Lawrence Jenkins in
Emperor v. Omkar Rampratap 4 Bom LR 679, was cited with
approval:-
"To impose criminal liability under Section 304-A,
Indian Penal Code, it is necessary that the death
should have been the direct result of a rash and
negligent act of the accused, and that act must be
the proximate and efficient cause without the
intervention of another's negligence.  It must be
the causa causans; it is not enough that it may
have been the causa sine qua non."

    K.N. Wanchoo, J. (as he then was), speaking for the Court,
observed that the abovesaid view of the law has been generally
followed by High Courts in India and was the correct view to take of
the meaning of Section 304A.  The same view has been reiterated in
Kishan Chand & Anr. v. The State of Haryana (1970) 3 SCC 904.

    In Juggankhan v. The State of Madhya Pradesh (1965) 1
SCR 14, the accused, a registered Homoeopath, administered 24 drops
of stramonium and a leaf of dhatura to the patient suffering from
guinea worm.  The accused had not studied the effect of such
substances being administered to a human being.  The poisonous
contents of the leaf of dhatura, were not satisfactorily established by
the prosecution.  This Court exonerated the accused of the charge
under Section 302 IPC.   However, on a finding that stramonium and
dhatura leaves are poisonous and in no system of medicine, except
perhaps Ayurvedic system, the dhatura leaf is given as cure for guinea
worm, the act of the accused who prescribed poisonous material
without studying their probable effect was held to be a rash and
negligent act.  It would be seen that the profession of a Homoeopath
which the accused claimed to profess did not permit use of the
substance administered to the patient. The accused had no knowledge
of the effect of such substance being administered and yet he did so. 
In this background, the inference of the accused being guilty of rash
and negligent act was drawn against him. In our opinion, the principle
which emerges is that a doctor who administers a medicine known to
or used in a particular branch of medical profession impliedly declares
that he has knowledge of that branch of science and if he does not, in
fact, possess that knowledge, he is prima facie acting with rashness or
negligence.

    Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole
and Anr. (1969) 1 SCR 206 was a case under Fatal Accidents Act,
1855.  It does not make a reference to any other decided case.  The
duties which a doctor owes to his patients came up for consideration.
The Court held that a person who holds himself out ready to give
medical advice and treatment impliedly undertakes that he is
possessed of skill and knowledge for that purpose.  Such a person
when consulted by a patient owes him certain duties, viz., a duty of
care in deciding whether to undertake the case, a duty of care in
deciding what treatment to be given or a duty of care in the
administration of that treatment.  A breach of any of those duties
gives a right of action for negligence to the patient.  The practitioner
must bring to his task a reasonable degree of skill and knowledge and
must exercise a reasonable degree of care.  Neither the very highest
nor a very low degree of care and competence judged in the light of
the particular circumstances of each case is what the law requires. The
doctor no doubt has a discretion in choosing treatment which he
proposes to give to the patient and such discretion is relatively ampler
in cases of emergency.  In this case, the death of patient was caused
due to shock resulting from reduction of the fracture attempted by
doctor without taking the elementary caution of giving anaesthetic to
the patient. The doctor was held guilty of negligence and liability for
damages in civil law.  We hasten to add that criminal negligence or
liability under criminal law  was not an issue before the Court _as it
did not arise and hence was not considered.

    In the year 1996, there are 3 reported decisions available. 
Indian Medical Association v. V.P. Shantha and Ors. (1995) 6
SCC 651 is a three-Judge Bench decision.      The principal issue which
arose for decision by the Court was whether a medical practitioner
renders 'service' and can be proceeded against for 'deficiency in
service' before a forum under the Consumer Protection Act, 1986.  The
Court dealt with how a 'profession' differs from an 'occupation'
especially in the context of performance of duties and hence the
occurrence of negligence. The Court noticed that medical professionals
do not enjoy any immunity from being sued in contract or tort (i.e. in
civil jurisdiction) on the ground of negligence.  However, in the
observation made in the context of determining professional liability 
as distinguished from occupational liability, the Court has referred to
authorities, in particular, Jackson & Powell and have so stated the
principles, partly quoted from the authorities :-

"In the matter of professional liability professions
differ from occupations for the reason that
professions operate in spheres where success
cannot be achieved in every case and very often
success or failure depends upon factors beyond the
professional man's control.  In devising a rational
approach to professional liability which must
provide proper protection to the consumer while
allowing for the factors mentioned above, the
approach of the Courts is to require that
professional men should possess a certain
minimum degree of competence and that they
should exercise reasonable care in the discharge of
their duties.  In general, a professional man owes
to his client a duty in tort as well as in contract to
exercise reasonable care in giving  advice or
performing services. (See : Jackson & Powell on
Professional Negligence, 3rd Edn., paras 1-04, 1-05,
and 1-56)."



    In Poonam Verma v. Ashwin Patel and Ors., (1996) 4 SCC
332 a doctor registered as medical practitioner and entitled to practice
in Homoeopathy only, prescribed an allopathic medicine to the patient. 
The patient died. The doctor was held to be negligent and liable to
compensate the wife of the deceased for the death of her husband on
the ground that the doctor who was entitled to practice in
homoeopathy only, was under a statutory duty not to enter the field of
any other system of medicine and since he trespassed into a
prohibited field and prescribed the allopathic medicine to the patient
causing the death, his conduct amounted to negligence per se
actionable in civil law.  Dr. Laxman Balkrishna Joshi's case (supra)
was followed.  Vide para 16, the test for determining whether there
was negligence on the part of a medical practitioner as laid down in
Bolam's case (supra) was cited and approved.
   
    In Achutrao Haribhau Khodwa and Ors. v. State of
Maharashtra and Ors. (1996) 2 SCC 634 the Court noticed that in
the very nature of medical profession, skills differs from doctor to
doctor and more than one alternative course of treatment are
available, all admissible.  Negligence cannot be attributed to a doctor
so long as he is performing his duties to the best of his ability and with
due care and caution.  Merely because the doctor chooses one course
of action in preference to the other one available, he would not be
liable if the course of action chosen by him was acceptable to the
medical profession.  It was a case where a mop was left inside the lady
patient's abdomen during an operation.  Peritonitis developed which
led to a second surgery being performed on her, but she could not
survive.  Liability for negligence was fastened on the surgeon because
no valid explanation was forthcoming for the mop having been left
inside the abdomen of the lady.  The doctrine of res ipsa loquitur was
held applicable 'in a case like this'.
   
    M/s Spring Meadows Hospital and Anr. v. Harjol
Ahluwalia through K.S. Ahluwalia and Anr. (1998) 4 SCC 39 is
again a case of liability for negligence by a medical professional in civil
law. It was held that an error of judgment is not necessarily
negligence.  The Court referred to the decision in Whitehouse &
Jorden, [1981] 1 ALL ER 267, and cited with approval the following
statement of law contained in the opinion of Lord Fraser determining
when an error of judgment can be termed as negligence:-
   
"The true position is that an error of
judgment may, or may not, be negligent, it
depends on the nature of the error.  If it is
one that would not have been made by a
reasonably competent professional man
professing to have the standard and type of
skill that the defendant holds himself out as
having, and acting with ordinary care, then it
is negligence.  If, on the other hand, it is an
error that such a man, acting with ordinary
care, might have made, then it is not
negligence."


    In State of Haryana and Ors. v. Smt. Santra, (2000) 5 SCC
182 also Bolam's test has been approved.  This case too refers to
liability for compensation under civil law for failure of sterilisation
operation performed by a surgeon.  We are not dealing with that
situation in the case before us and, therefore, leave it to be dealt
within an appropriate case.

Before we embark upon summing up our conclusions on the
several issues of law which we have dealt with hereinabove, we are
inclined to quote some of the conclusions arrived at by the learned
authors of "Errors, Medicine and the Law" (pp. 241-248), (recorded at
the end of the book in the chapter titled _ 'Conclusion') highlighting
the link between moral fault, blame and justice in reference to medical
profession and negligence.  These are of significance and relevant to
the issues before us.  Hence we quote :-

(i)    The social efficacy of blame and related sanctions in particular
cases of deliberate wrongdoings may be a matter of dispute, but
their necessity _ in principle _ from a moral point of view, has
been accepted.  Distasteful as punishment may be, the social,
and possibly moral, need to punish people for wrongdoing,
occasionally in a severe fashion, cannot be escaped.  A society
in which blame is overemphasized may become paralysed.  This
is not only because such a society will inevitably be backward-
looking, but also because fear of blame inhibits the uncluttered
exercise of judgment in relations between persons.  If we are
constantly concerned about whether our actions will be the
subject of complaint, and that such complaint is likely to lead to
legal action or disciplinary proceedings, a relationship of
suspicious formality between persons is inevitable. (ibid, pp.
242-243)

(ii)    Culpability may attach to the consequence of an error in
circumstances where substandard antecedent conduct has been
deliberate, and has contributed to the generation of the error or
to its outcome.  In case of errors, the only failure is a failure
defined in terms of the normative standard of what should have
been done.  There is a tendency to confuse the reasonable
person with the error-free person.  While nobody can avoid
errors on the basis of simply choosing not to make them, people
can choose not to commit violations.  A violation is culpable.
(ibid, p. 245). 

(iii)    Before the court faced with deciding the cases of professional
negligence there are two sets of interests which are at stake :
the interests of the plaintiff and the interests of the defendant. 
A correct balance of these two sets of interests should ensure
that tort liability is restricted to those cases where there is a
real failure to behave as a reasonably competent practitioner
would have behaved. An inappropriate raising of the standard of
care threatens this balance. (ibid, p.246).  A consequence of
encouraging litigation for loss is to persuade the public that all
loss encountered in a medical context is the result of the failure
of somebody in the system to provide the level of care to which
the patient is entitled.  The effect of this on the doctor-patient
relationship is distorting and will not be to the benefit of the
patient in the long run.  It is also unjustified to impose on those
engaged in medical treatment an undue degree of additional
stress and anxiety in the conduct of their profession.  Equally, it
would be wrong to impose such stress and anxiety on any other
person performing a demanding function in society. (ibid,
p.247).  While expectations from the professionals must be
realistic and the expected standards attainable, this implies
recognition of the nature of ordinary human error and human
limitations in the performance of complex tasks. (ibid, p. 247). 

(iv)    Conviction for any substantial criminal offence requires that the
accused person should have acted with a morally blameworthy
state of mind.  Recklessness and deliberate wrongdoing, are
morally blameworthy, but any conduct falling short of that
should not be the subject of criminal liability.  Common-law
systems have traditionally only made negligence the subject of
criminal sanction when the level of negligence has been high _ a
standard traditionally described as gross negligence.  In fact,
negligence at that level is likely to be indistinguishable from
recklessness. (ibid, p.248). 

(v)    Blame is a powerful weapon.  Its inappropriate use distorts
tolerant and constructive relations between people. 
Distinguishing between (a) accidents which are life's misfortune 
for  which   nobody  is   morally  responsible,  (b) wrongs
amounting to culpable conduct and constituting grounds for
compensation, and (c) those (i.e. wrongs) calling for
punishment on account of being gross or of a very high degree
requires and calls for careful, morally sensitive and scientifically
informed analysis; else there would be injustice to the larger
interest of the society. (ibid, p. 248). 

Indiscriminate prosecution of medical professionals for criminal
negligence is counter-productive and does no service or good to the
society.

Conclusions summed up       
         We sum up our conclusions as under:-

(1)    Negligence is the  breach of a duty caused by omission to do
something which a reasonable man guided by those
considerations which ordinarily regulate the conduct of human
affairs would do, or doing something which a prudent and
reasonable man would not do.  The definition of negligence as 
given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P.
Singh), referred to hereinabove, holds good.  Negligence
becomes actionable on account of injury resulting from the act
or omission amounting to negligence attributable to the person
sued. The essential components of negligence are three: 'duty',
'breach' and 'resulting damage'.

(2)    Negligence in the context of medical profession necessarily calls
for a treatment with a difference. To infer rashness or
negligence on the part of a professional, in particular a doctor,
additional considerations apply.  A case of occupational
negligence is different from one of professional negligence.  A
simple lack of care, an error of judgment or an accident, is not 
proof of negligence on the part of a medical professional.  So
long as a doctor follows a practice acceptable to the medical
profession of that day, he cannot be held liable for negligence
merely because a better alternative course or method of
treatment was also available or simply because a more skilled
doctor would not have chosen to follow or resort to that practice
or procedure which the accused followed. When it comes to the
failure of taking precautions what has to be seen is whether
those precautions were taken which the ordinary experience of
men has found to be sufficient; a failure to use special or
extraordinary precautions which might have prevented the
particular happening cannot be the standard for judging the
alleged negligence.  So also, the standard of care, while
assessing the practice as adopted, is judged in the light of
knowledge available at the time of the incident, and not at the
date of trial.  Similarly, when the charge of negligence arises out
of failure to use some particular equipment, the charge would
fail if the equipment was not generally available at that
particular time (that is, the time of the incident) at which it is
suggested it should have been used.

(3)     A professional may be held liable for negligence on one of the
two findings: either he was not possessed of the requisite skill
which he professed to have possessed, or, he did not exercise,
with reasonable competence in the given case, the skill which he
did possess.  The standard to be applied for judging, whether
the person charged has been negligent or not, would be that of
an ordinary competent person exercising ordinary skill in that
profession.  It is not possible for every professional to possess
the highest level of expertise or skills in that branch which he
practices.  A highly skilled professional may be possessed of
better qualities, but that cannot be made the basis or the
yardstick for judging the performance of the professional
proceeded against on indictment of negligence.

(4)     The test for determining medical negligence as laid down in
Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its
applicability in India.

(5)     The jurisprudential concept of negligence differs in civil and  
criminal law.  What may be negligence in civil law may not
necessarily be negligence in criminal law.  For negligence to
amount to an offence, the element of mens rea must be shown
to exist. For an act to amount to criminal negligence, the degree
of negligence should be much higher i.e. gross or of a very high
degree. Negligence which is neither gross nor of a higher degree
may provide a ground for action in civil law but cannot form  the
basis for prosecution.

(6)  The word 'gross' has not been used in Section 304A of IPC, yet it
is settled that in  criminal law negligence or recklessness, to be
so held, must  be of such a high degree as to be 'gross'.  The
expression 'rash or negligent act' as occurring in Section 304A
of the IPC has to be read as qualified by the word 'grossly'. 

(7)    To prosecute a medical professional for negligence under
criminal law it must be shown that the accused did something or
failed to do something which in the given facts and
circumstances no medical professional in his ordinary senses
and prudence would have done or failed to do.  The hazard
taken by the accused doctor should be of such a nature that the
injury which resulted was most likely imminent.

(8)      Res ipsa loquitur  is only a rule of evidence and operates in the
domain of civil law specially in cases of torts and helps in
determining the onus of proof in actions relating to negligence.  It
cannot be pressed in service for determining per se the liability
for negligence within the domain of criminal law. Res ipsa loquitur
has, if at all, a limited application in trial on a charge of criminal
negligence.

In view of the principles laid down hereinabove and the
preceding discussion, we agree with the principles of law laid down in
Dr. Suresh Gupta's case (2004)  6 SCC 422 and re-affirm the same. 
Ex abundanti cautela, we clarify that what we are affirming are the
legal principles laid down and the law as stated in Dr. Suresh Gupta's
case.  We may not be understood as having expressed any opinion on
the question whether on the facts of that case the accused could or
could not have been held guilty of criminal negligence as that question
is not before us.  We also approve of the passage from Errors,
Medicine and the Law by Alan Merry and Alexander McCall Smith which
has been cited with approval in Dr. Suresh Gupta's case (noted vide
para 27 of the report).

Guidelines _ re: prosecuting medical professionals
     As we have noticed hereinabove that the cases of doctors
(surgeons and physicians) being subjected to criminal prosecution are
on an increase. Sometimes such prosecutions are filed by private
complainants and sometimes by police on an FIR being lodged and
cognizance taken.  The investigating officer and the private
complainant cannot always be supposed to have knowledge  of
medical science so as to determine whether the act of the accused
medical professional amounts to rash or negligent act within the
domain of criminal law under Section 304-A of IPC.  The criminal
process once initiated subjects the medical professional to serious
embarrassment and sometimes harassment. He has to seek bail to
escape arrest, which may or may not be granted to him.  At the end
he may be exonerated by acquittal or discharge but the loss which he
has suffered in his reputation cannot be compensated by any
standards. 

     We may not be understood as holding that doctors can never be
prosecuted for an offence of which rashness or negligence is an
essential ingredient.  All that we are doing is to emphasize the need
for care and caution in the interest of society; for, the service which
the medical profession renders to human beings is probably the
noblest of all, and hence there is a need for protecting doctors from
frivolous or unjust prosecutions.  Many a complainant prefers recourse
to criminal process as a tool for pressurizing the medical professional
for extracting uncalled for or unjust compensation.  Such malicious
proceedings have to be guarded against. 

     Statutory Rules or Executive Instructions incorporating certain
guidelines need to be framed and issued by the Government of India
and/or the State Governments in consultation with the Medical Council
of India.  So long as it is not done, we propose to lay down certain
guidelines for the future which should govern the prosecution of
doctors for offences of which criminal rashness or criminal negligence
is an ingredient.  A private complaint may not be entertained unless
the complainant has produced prima facie evidence before the Court in
the form of a credible opinion given by another competent doctor to
support the charge of rashness or negligence on the part of the
accused doctor.  The investigating officer should, before proceeding
against the doctor accused of rash or negligent act or omission, obtain
an independent and competent medical opinion preferably from a
doctor in government service qualified in that branch of medical
practice who can normally be expected to give an impartial and
unbiased opinion applying Bolam's test to the facts collected in the
investigation.  A doctor accused of rashness or negligence, may not be
arrested in a routine  manner (simply because a charge has been
levelled against him).  Unless his arrest is necessary for furthering the
investigation or for collecting evidence or unless the investigation
officer feels satisfied that the doctor proceeded against would not
make himself available to face the prosecution unless arrested, the
arrest may be withheld.

Case at hand   
Reverting back to the facts of the case before us, we are
satisfied that all the averments made in the complaint, even if held to
be proved, do not make out a case of criminal rashness or negligence
on the part of the accused appellant.  It is not the case of the 
complainant that the accused-appellant was not a doctor qualified to
treat the patient whom he agreed to treat.  It is a case of non-
availability of oxygen cylinder either because of the hospital having
failed to keep available a gas cylinder or because of the gas cylinder
being found empty.  Then, probably the  hospital may be liable in civil
law (or may not be _ we express no opinion thereon) but the accused
appellant cannot be proceeded against under Section 304A IPC on the
parameters of Bolam's test.
Result

    The appeals are allowed.  The prosecution of the accused
appellant under Section 304A/34 IPC is quashed.

    All the interlocutory applications be treated as disposed of.

22 comments:

doctor negligence said...

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Charles Briggs said...

Medical negligence is professional carelessness committed by a physician or any relating staff members that does not conform to the accepted standards of medical practise and causes injury or even death to the patient.Most cases involve registered medical practitioners, doctors and surgeons, but similar principles are applied to relating staff members such as dentists, midwives, nurses, physiotherapists, psychologists and psychiatrists.

Rachel Booth said...

In order to have successful medical claim against a medical practitioner for being negligent, you must prove that he or she has breached the duty care while you are under in the process of the recovering and due to that breach you sustained an injury.

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