Judgment by the Supreme Court of India – Case No. Appeal (crl.) 144-145 of 2004 Date of Judgment: 05/08/2005
Jiwan lal (suffering from cancer-terminal stage) was admitted to the hospital. He felt difficulty in breathing. Duty nurse called some doctor to attend to the patient. No doctor turned up for 20 to 25 minutes. Then the appellant and another doctor came to the patient’s room.
An oxygen cylinder was brought and connected to the mouth of the patient but the breathing problem increased further. The oxygen cylinder was found to be empty. There was no other gas cylinder available. Later, the patient was declared dead. An offence under Sections 304-A/34 Penal Code, I860 was registered and charges filed against the doctors. Doctor’s petition to High Court to quash the charges was dismissed. Hence the appeal
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ADVERTISEMENTS:
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 of 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 his sons, very influential persons occupying important positions in Government, could prevail over the doctors and hospital management and got the deceased admitted as an inpatient on compassionate grounds for regulated medical treatment and proper management of diet.
ADVERTISEMENTS:
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.
The patient was treated with utmost care and caution and given all the required medical assistance by the doctors and paramedical staff.
The complainant and his relations, who were misguided or were under mistaken belief as to the facts, lodged police report against the accused persons which was wholly unwarranted and uncalled for
The Hon. Court in its judgment concluded that:
A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional.
ADVERTISEMENTS:
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. 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.
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. The test for determining medical negligence as laid down in Bolam’s case [1957] 1 W.L.R. 582, 586 holds well in its applicability in India.
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.
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’.
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.
Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law especially 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.
Guidelines in respect of 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.
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 that 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 filed 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 he 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.
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.
(The statement of Law in Bolam’s case: “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 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.”)
Result:
The appeals are allowed. The prosecution of the accused appellant under Section 304A/34 IPC is quashed.