A CONCREATE SECOND OPINION OF PANEL OF DOCTORS MUST SUPPORT THE NEGLIGENCY  IN TRATEMENT(inadequate and inappropriate treatment) REQUIRES TO FILE A CRIMINAL COMPLAINT ON DOCTORS UNDER IPC 304A

Sir,

A panel of 4 Doctors have opined that the treatment was inadequate and inappropriate.  My contention is that even if the opinion is right it would not be "gross" negligence so as to attract 304A. Kindly enlighten.

 

“In the matter of professional liability, professions differ from other 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.”  – Supreme Court in Indian Medical Association Vs V.P Shantha and OthersThe term “Medical Negligence” is a term that explains culpable carelessness in the field of medical science. It involves risk to the health and being of an individual who entrusts his wellbeing into the hands of a medical professional. “Failure to exercise the degree of care considered reasonable under the circumstances, resulting in an unintended injury to another party” is called medical negligence. Other definitions of medical negligence include “Lack of due care or failure to do what is reasonable and prudent under the circumstances” and “Omission of something that a reasonable person, guided by those considerations that ordinarily regulate the conduct of human beings, would do, or doing something that a prudent, reasonable person would not do.” Negligence excludes wrongful intention because negligence and wrongful intention are mutually exclusive of each other. It must be remembered that the foremost pre-requisite of liability in criminal cases is the presence of intention- “a guilty mind”. This is supported by the well known maxim, “Actus non facit reum, nisi mens sit rea.” According to this maxim the act in itself does not amount to the guilt of the person; the presence of a guilty mind (mens rea) is of utmost importance.  Therefore, before a person is punished for an act done by him, it is imperative to test the mental attitude of the doer so as to determine whether the intention was to do harm to the other person or not. The act may have been wrongful but if the mental outlook of the doer is that of an innocent man he cannot be punished. Thus, the mental stance of the medical practitioner will have to concur with the act before he can be punished before law.  

 

 

Supreme Court Judgment- Jacob Matthews Vs State of Punjab (2005 Crl. L.J. 3710)

 

In recent times, the Supreme Court has sought to answer the question as to whether it has granted an impetus to the medical professionals when it comes to medical negligence. The recent Supreme Court judgments have created a wide array of confusion as to whether it has granted the medical practitioners a license to kill or has it provided them with necessary safeguards so as to maintain the sanctity of their profession. The Supreme Court judgment in Jacob Matthews Vs State of Punjab (2005 Crl. L.J. 3710) is marked as the landmark judgment in the field of medical negligence. The Supreme Court held that extreme ‘care’ and ‘caution’ should be exercised while initiating criminal proceedings against a medical practitioner. It has framed obligatory guidelines under which a medical practitioner could be held criminally liable on account of his professional negligence or deficiency of services. At the same time it has drawn up elaborate safeguards for the doctors, including immunity from getting arrested unless it is inevitable. Supporting its decision, the bench ruled that it was necessary “for, the service which medical profession renders to human beings is probably the noblest of all and hence there is a need for protecting doctors from unjust prosecutions.” The Court further added that “Negligence in the context of medical profession necessarily calls for a treatment with a difference… A simple lack of care, an error of judgment or an accident is not proof of negligence on the part of the medical professional. The Court however, made it plain that this does not mean that the doctors cannot be prosecuted at all. It said “all that we are doing is to emphasize the need for care and caution in the interest of the society…”. According to the ruling of the Court, mere error in judgment does not amount to medical negligence. The apex court in deciding this case had established three necessary guidelines so as to determine whether the medical practitioner is criminally liable or not. These guidelines are as mentioned under;

 

 

ü      A complaint against a doctor is not to be entertained unless the allegation against him is supported by a credible opinion given by another doctor. If the doctor feels that negligence on the part of the medical practitioner has resulted to the loss of well being of the plaintiff, then the complaint may be registered.

 

 

ü      The investigating officer before proceeding against the accused ought to get a medical opinion from a competent doctor, preferably in the government services, qualified in that field of medical sciences who can give an impartial opinion.

 

 

ü      The arrest of the accused should be withheld unless it is believed by the investigating officer unless he believes that it is necessary to arrest the accused so as to further the investigation of the case. It may further be withheld unless it is believed that the accused doctor will not make himself available to face the prosecution unless he is arrested.

 

 

However, the court specified that these provisions will be active till the Government in consultation with the Medical Council of India frame statutory rules regarding the same. In cases of medical negligence, a doctor has to prove in front of the court that he had used reasonable care in the treatment of his patients to the best of his judgment. The law requires a competent doctor to use that degree of skill which an averagely competent man of his profession ought to have; they do not expect him to possess highest degree of skill in the treatment of his patients. According to Lord Denning, “it would be a great disservice to the community at large, if we impose liability on the doctors for each and everything that goes wrong”.  

 

 

Are doctors infallible?

 

 

            There are often cases which show genuine malpractice on behest of the medico but due to the new ruling, they often escape. Their negligence goes unnoticed by to all except by the errant doctors. Voltaire, an eminent philosopher had once said, “Doctors are men who prescribe medicines of which they know little, to cure diseases of which they know less, in human beings of whom they know nothing”. Though the medical profession is still regarded as one of the noblest professions, there are more and more doctors taking advantage of the legal protection provided to them. This is one profession that has on a continuous basis dodged the jurisdiction of the courts of India. Another view taken of the Jacob Matthews Case is that when the Supreme Court held that a doctor cannot be held liable for the death of the patient, it had undermined equality before the eyes of law.

 

 

 

            In the case of Bhajan Lal Gupta Vs Moolchand Khairati Ram (2000 (1) CPJ 31), the judgment of the Supreme Court stated that, “one of the tests of medical negligence is that something which is required under medical practice to be done was not done or what was done was contradicted at the same time. It is also a settled principle of law that a specialist is supposed to know the latest technique for management of the patient and if he is ignorant about it, then he could be considered to be negligent in his profession.”

 

 

Courts are of the view that the evidence may not always depend on the testimony of a medical personnel alone. Sometimes the negligence deals with the basic requirements of a patient which even a normal witness with no medical background may know about. Therefore, the question that comes to one’s mind is that if there is such a negligence which is testified to have happened by a witness, should it not be taken into account? Such issues can be put to rest by a testimony of such a witness instead of a medical professional. Taking this view into account the Supreme Court acquitted Dr. Jacobs of all charges taking the Suresh Gupta Case ((2004) 6 SCC 422) as a precedent.

 

Though the constitution does not provide for some special privileges given to patients, Section 21 thrusts an obligation upon the medical professionals to protect life. It was held by the Supreme Court in the case of State of Punjab Vs Maninder Singh Chawla (AIR 1997 SC 1225) that, “Article 21 of the Constitution of India provides for the protection of life and personal liberty. The right to life enshrined in this article includes right to health, and the right to live with dignity. No one can violate the right to life. If anybody including a medical professional causes harm and injury to any person without his consent, he commits a criminal wrong giving rise to criminal liability”.

 

It becomes clear that a doctor has certain duties towards his patients which he needs to fulfill. If he fails in them he may be sued by the patient for an act of negligence.

 

Extent of Liability of Medical Professionals

 

 

            In the case of Indian Medical Association Vs V. P Shantha in the year of 1995, the Supreme Court judgment proved to be a monumental one. It changed the way one viewed the medical profession from a totally legal point of view. The judgment brought the medical profession within the ambit of the Consumer Protection Act, 1986. Patients could now sue the doctors for injuries sustained by them, in Consumer Courts. The judgment bound the doctors to their patients in a contractual way. The Supreme Court further specified that even though the service provided by the doctors was that of a personal nature, it cannot be supposed to fall within the purview of contract of personal service. It was held that such contractual obligation should be treated as a contract of service.

 

 

            Where free services are rendered to the patient by medical professionals, it will not fall within the ambit of the term ‘service’ unless the payment of the fees was waived due the patient’s inability to pay. Under civil law, where the territory of Consumer Protection Act ends, the field of the Law of Torts takes over to protect the interest of the patients. Where the patient cannot sue the doctor under the Consumer Protection Act because of the limitation under the term ‘service’, the patient can do so under the Law of Torts suing the doctor for injuries sustained by him due to the doctor’s negligence.

 

 

            Sometimes the negligence on the part of the doctor is so grave and obvious that the doctor then faces the threat of criminal proceedings. A doctor can be tried under Section 304-A of the Indian Penal Code, for causing death by a negligent act. It must be remembered that there are high standards to match up to, for proving a doctor grossly negligent. He cannot be proved negligent merely because there was lack of necessary care. Often cases test the well established principles of law. It does not happen often that a doctor is tried for murder, because doctors do not intend to kill their patients. Therefore, the guilty mind (mens rea) that needs to be proved in such cases test the Law. When doctors administer treatment to a patient, they do so in good faith for the patient’s benefit, and not with an intention to kill. For this reason Sections 87, 88, 89 and 92 of the Indian Penal Code provide immunity to the medical professionals. The onus of proof lies on the doctor. The doctor ought to prove that the treatment was done with the patient’s benefit in mind and in good faith.

 

 

            The courts in India, following England’s practice are inclined to the paternalistic model of physician- patient relationship. Paternalism means “interference with a person’s liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs and interests or values of the person coerced”. This has been further supported by the famous Bolam principle, which states that a doctor cannot be held liable when he acted as any other established, and responsible medical man would act.

 

 

Defense provided to the doctors

 

The doctors may plead the following defenses when they are subjected to an allegation of medical negligence-

 

a)      Where the doctor is confident that he had not been negligent in fulfilling his duty, he may simply deny the allegation.

 

 

b)      Where the patient has been negligent in following the orders of the doctor. For eg: If the doctor had asked the patient to come in for frequent check ups and the patient did not comply with the orders resulting in the damage to his health, the doctor cannot be held liable in such a case.

 

 

c)      Where the duty of the patient was delegated to a third party. In such a case the responsibility is on the person to whom the duty was delegated. However, if the doctor had been aware that the person to whom the duty was delegated was incapable, then the blame shall lie with the doctor. The doctor shall be liable for the duty of his staff if they are incapable. (Spring Meadows Vs Harjot Ahluwalia)

 

 

d)      Where the question is whether there was an act of negligence or not. There is always an assumption of risk in treatment. Once a person consents to treatment voluntarily he cannot ask for legal action. This is best explained by the maxim “Volunti non fit injuria”. However, if somewhere during the procedure negligent act had been done then he can ask for action.

 

 

e)      Where the complication is well known in the use of a drug. Sometimes certain drugs have some well known complications. If the necessary tests were conducted for the suitability of the drug and even after all that the complication occurred, the doctor cannot be held responsible for that.

 

 

f)        Where the case has already been completed between the two parties. Once the case has been completed between the two parties, it cannot be filed again (Res Judicata- the thing has been decided).

 

 

The Doctrine of Res Ipsa Loquitor

 

 

            “Res ipsa loquitor” means “things speak for themselves”. If a negligent act is done by a doctor he is to be held vicariously liable for the deed. In such cases the damage caused to the patient is so obvious that no proof as to the negligent act of the doctor is required. While discharging this burden, the plaintiff needs to satisfy the court of the truth in his allegations; after which the onus shifts to the defendant to prove his innocence. For the applicability of the maxim of Res Ipsa loquitor, the following three principles are of utmost importance:

 

 

a)      The opposite party must have been in control of things;

 

 

b)      Common norms suggesting that the injury in itself cannot happen without negligence;

 

 

c)      The cause of incident must be unknown or unascertainable.

 

 

 Some common examples as to when this principle is invoked are in cases where a wrong patient is treated or where the operation has been done (is) on a wrong part of the body.

 

 

 

Conclusion

 

 

            To conclude, in view of the varying decisions of the Supreme Court from the above discussion, the norms and trends that are needed (one needs) to check the medical negligence (on) are listed below:

 

ü      The surgeon must possess the required skills and knowledge that an average doctor ought to possess to undertake a particular treatment.

ü      He should not have failed to overlook anything basic or important which a man of his profession, with ordinary prudence level would have done.

ü      If out of the two choices in treatment the doctor picked the one which was acceptable to medical profession, he cannot be held liable for negligence merely because there was a better treatment available which he did not undertake.

After the Apex Court decision in the case of Jacob Matthew, it may be felt that the medical professionals have been given a free rein to do as they please. However, the Court had only reiterated what was already the judicial approach and reconfirmed its own judgment given in earlier judgments. But (However), the current trend has called for a system of internal and external standards to be set. The shift in the medical profession is being seen as a service that has been shifted to being seen as a business. Once the shift is complete, it would not be in the interest of the general public. Therefore, before the standards of the medicos change, an internal and external regulation system needs to be set up so as to keep a constant check on the medical professionals.  It must be remembered that a doctor- patient relationship is a sacred relationship. Nowadays it has  been under constant strain because the patient does not seem to trust the doctor. Therefore, it is a pre requisite for the doctors to behave in a helpful and a confident manner with the patient. If the patient is aware of what is involved in his treatment, he would share a different comfort level with his doctor. In order to achieve this, it is necessary to facilitate a good and a healthy relationship between a doctor and a patient.

At the same time its time the Court’s treated the doctors at par with other human beings instead of giving them special privileges. It often happens that doctors who actually indulge in a negligent act go scot free because of the special privilege that is provided to them. Doctors, like any other individual can make mistakes, except their mistake can cost us human lives; lives of the people who may mean the most to us.

 LINK: https: //jurisonline.in/2009/09/supreme-court-and-medical-negligence-%E2%80%93-necessary-protection-or-license-to-kill/

As regards medical negligence, the legal position has been described in several leading judgments. Some of these are given below.

1—In the leading case Bolam v. Friern Hospital Management Committee [(1957) 2 All ER, wherein judge Mc Nair J. has stated as follows:
"………….. where you get a situation which involves the use of some special skill or competence, then the test 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 at the risk of being found negligent. It is well-established law that it is sufficient if he exercise the ordinary skill of an ordinary competent man exercising that particular art. Counsel for the plaintiff put it in this way, that in the case of a medical man, negligence means failure to act in accordance with the
standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if a medical man conforms with one of those proper standards then he is not negligent. A doctor is not 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. Putting it the other way round, a
doctor is not negligent, if he is acting in accordance with such a practice, merely
because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion."

2-- The Supreme Court in Laxman v. Trimbak AIR 1969 SC 128, held:
"The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the 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 give 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 very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.”

3—In Achutrao Haribhau Khodwa v. State of Maharashtra [AIR 1996 SC 2377], the Supreme Court said--
"The skill of medical practitioners differs from doctor to doctor. The very nature of the
profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due
care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the
patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence."

4—In Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia & Anr., (1998) 4 SCC
39 at 47, the Apex Court has specifically laid down the following principles for holding
doctors negligent:
“Gross medical mistake will always result in a finding of negligence.
Use of wrong drug or wrong gas during the course of anaesthetic will
frequently lead to the imposition of liability and in some situations even
the principle of res ipsa loquitur can be applied. Even delegation of
responsibility to another may amount to negligence in certain
circumstances. A consultant could be negligent where he delegates the
responsibility to his junior with the knowledge that the junior was
incapable of performing of his duties properly. We are indicating these
principles since in the case in hand certain arguments had been advanced
in this regard, which will be dealt with while answering the questions
posed by us.”
5— In Poonam Verma Vs Ashwin Patel and Others, decided on 10.05.1996, the
Supreme Court observed as follows:
“13. Negligence as a tort is the breach of a duty caused by omission to do something
which a reasonable man would do, or doing something which a prudent and reasonable
man would not do. (See : Blyth v. Birmingham Waterworks Co., (1856) 11 Exch 781 :
Bridges v. Directors etc. of N. L. Ry. (1873-74) HL 213 : Governor-General in Council v.
Mt. Saliman, (1949) ILR 27 Pat 207 : (AIR 1949 Patna 388); Winfield and Jolowicz on
Tort).
14. The definition involves the following constituents :-
(1) a legal duty to exercise due care;
(2) breach of the duty; and
(3) consequently damages.
15. The breach of duty may be occasioned either by not doing something which a
reasonable man, under a given set of circumstances would do, or, by doing some act
which a reasonable prudent man would not do.
16. So far as persons engaged in Medical Profession are concerned, it may be stated that
every person who enters into the profession, undertakes to bring to the exercise of it, a
reasonable degree of care and skill. It is true that a Doctor or a Surgeon does not
undertake that he will positively cure a patient nor does he undertake to use the highest
possible degree or skill, as there may be person more learned and skilled than himself,
but he definitely undertakes to use a fair, reasonable and competent degree of skill. This
implied undertaking constitutes the real test, which will also be clear from a study and
analysis of the judgment in Bolam v. Friern Hospital Management Committee (1957) 2
All ER 118, in which, McNair, J., while addressing the jury summed up the law as under
:
"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. In the case of a medical man, negligence means failure to act in
accordance with the standards of reasonably competent medical men at
the time. There may be one or more perfectly proper standards, and if he
conforms with one of these proper standards, then he is not negligent".
17. This decision has since been approved by the House of Lords in Whitehouse v.
Jordan, (1981) 1 All ER 267 (HL); Maynard v. West Midlands Regional Health
Authority, (1985) 1 All ER 635 (HL); Sidaway v. Gethlem Royal Hospital, (1985) 1 All
ER 643 (HL); Chin Keow v. Govt. of Malaysia, (1967) 1 WLR 813 (PC).
18. The test pointed out by McNair, J. covers the liability of a Doctor in respect of his
diagnosis, his liability to warn the patients of the risk inherent in the treatment and his
liability in respect of the treatment.
19. This Court in Dr. Laxman Balakrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR
1969 SC 128, laid down that a Doctor when consulted by a patient owes him certain
duties, namely, (a) a duty of care in deciding whether to undertake the case; (b) a duty of
care in deciding what treatment to give; and (c) a duty of care in the administration of
that treatment. A breach of any of these duties gives a cause of action for negligence to
the patient.
20. The principles were reiterated in A.S. Mittal v. State of U.P., AIR 1989 SC 1570, in
which wide extracts from that judgment were made and approved”.
40. Negligence has many manifestations - it may be active negligence, collateral
negligence, comparative negligence, concurrent negligence, continued negligence,
criminal negligence, gross negligence, hazardous negligence, active and passive
negligence, wilful or reckless negligence or negligence per se, which is defined in Black's
Law Dictionary as under :
Negligence per se: Conduct, whether of action or omission, which may
be declared and treated as negligence without any argument or proof as
to the particular surrounding circumstances, either because it is in
violation of a statute or valid municipal ordinance, or because it is so
palpably opposed to the dictates of common prudence that it can be said
without hesitation or doubt that no careful person would have been guilty
of it. As a general rule, the violation of a public duty, enjoined by law for
the protection of person or property, so constitutes".
6-- In Jacob Mathew Vs. State of Punjab (2005)6 SCC 1, while dealing with the tests to
be kept in mind by the courts in dealing with cases of medical negligence, the Hon’ble
Supreme Court observed as follows:
•
“…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.”
• 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.
Dr. Sukumar Mukherjee and Ors., decided on 1st June,
7—In Dr.Kunal Saha v.
2006, the National Consumer Commission summarised the medical negligence law as
follows:
Real test for determining deficiency in service
Well laid down tests for determining deficiency in service are - whether
there is failure to act in accordance with standard of a reasonable competent medical
practitioner?
(i).
Whether there was exercise of reasonable degree of care?
(ii).
The degree of standard or reasonable care varies in each case depending
upon expertise of medical man and the circumstances of each case. On
this aspect, it would be worthwhile to refer to the enunciation from
Halsbury’s Laws of England.
“With regard to degree of skill and care required by the doctors, it has been
stated as under in (pr.36, p.36, Vol.30, Halsbury’s Laws of England, 4th Edn.)
“The practitioner must bring to his task a reasonable degree of skill and
knowledge, and must exercise a reasonable degree of care. Failure to use
due skill in diagnosis with the result that wrong treatment is given is
negligence. 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 exists among medical
men; nor is a practitioner necessarily negligent if he has acted in
accordance with one responsible body of medical opinion in preference to
another in relation to the diagnosis and treatment of a certain condition,
provided that the practice of that body of medical opinion is reasonable.”
The Apex Court aptly stated the said principles further in Dr.Laxman
Balakrishna Joshi Vs. Dr.Trimbak Bapu Godbole, AIR 1969 SC 128, which reads as
under:
“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: (cf. Halsbury’s Laws of England, 3rd ed. Vol. 26 p.17). The
doctor no doubt has discretion in choosing treatment which he proposes to
give to the patient and such discretion is relatively ampler in cases of
emergency.”
Similarly in Poonam Verma Vs. Ashwin Patel (1996) 4 SCC 332, dealing
with medical negligence, the Court observed that:

Contdddd...

“14. Negligence as a tort is the breach of a duty caused by omission to do
something which a reasonable man would do, or doing something which a
prudent and reasonable man would not do.
15. The definition involves the following constituents:
(1)
a legal duty to exercise due care;
(2)
breach of the duty; and
(3)
consequential damages.
16. The breach of duty may be occasioned either by not doing something
which a reasonable man, under a given set of circumstances would do, or, by
doing some act which a reasonable prudent man would not do.
17. So far as persons engaged in the medical profession are concerned, it may
be stated that every person who enters into the profession, undertakes to bring
to the exercise of it, a reasonable degree of care and skill. It is true that a
doctor or a surgeon does not undertake that he will positively cure a patient
nor does he undertake to use the highest possible degree of skill, as there may
be persons more learned and skilled than himself, but he definitely undertakes
to use a fair, reasonable and competent degree of skill. This implied
undertaking constitutes the real test, which will also be clear from a study and
analysis of the judgment in Bolam v. Friern Hospital Management
Committee5 in which, McNair, J., while addressing the jury summed up the
law as under:
“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 at the risk of being found negligent. It is well
established law that it is sufficient if he exercises the ordinary skill of
an ordinary competent man exercising that particular art. I do not think
that I quarrel much with any of the submissions in law which have
been put before you by counsel. Counsel for the plaintiff put it in this
way, that in the case of a medical man, negligence means failure to act
in accordance with the standards of reasonably competent medical
men at the time. That is a perfectly accurate statement, as long as it is
remembered that there may be one or more perfectly proper standards;
and if a medical man conforms with one of those proper standards then
he is not negligent.”
18. This decision has since been approved by the House of Lords in
Whitehouse v. Jordan; Maynard v. West Midlands Regional Health Authority;
Sidaway v. Bethlem Royal Hospital; Chin Keow v. Govt. of Malaysia.
19. The test pointed out by McNair, J. covers the liability of a doctor in
respect of his diagnosis, his liability to warn the patients of the risk inherent in
the treatment and his liability in respect of the treatment.”
If there are alternative procedures of treatment and if a Doctor adopts one
of them and conducts the same with due care and caution then no negligence can be
attributed towards him.
In substance, for establishing negligence or deficiency in service there
must be sufficient evidence that a Doctor or a hospital has not taken reasonable care
while treating the patient. Reasonable care in discharge of duties by the hospital and
Doctors varies from case to case and expertise expected on the subject which a Doctor of
a hospital has undertaken. Courts would be slow in attributing negligence on the part of
the Doctor if he has performed his duties to the best of his ability with due care and
It has been held in Dr. Anita Prashar Vs. Preeti Kochar and Anr. III (2005)
CPJ 638, and also in Hon’ble Supreme Court case in the case of Achutrao (1996) 2 SCC
634 that there are various mode and course of treatment and if a Doctor adopts one of
them with due care and caution the Court could indeed be slow in attributing negligence
on the part of a Doctor if he has performed his duties to the best of his ability and with
due care and caution.
Same view is expressed in Achutrao Haribhau Khodwa and Ors. Vs. State
of Maharashtra & Ors. – (1996) 2 SCC 634, wherein the Court observed:
“14. The skill of medical practitioners differs from doctor to doctor. The
very nature of the profession is such that there may be more than one
course of treatment which may be advisable for treating a patient. Courts
would indeed be slow in attributing negligence on the part of a doctor if he
has performed his duties to the best of his ability and with due care and
caution. Medical opinion may differ with regard to the course of action to
be taken by a doctor treating a patient, but as long as a doctor acts in a
manner which is acceptable to the medical profession and the court finds
that he has attended on the patient with due care, skill and diligence and if
the patient still does not survive or suffers a permanent ailment, it would
be difficult to hold the doctor to be guilty of negligence”.
…………………
……………………
As per the settled law discussed above, deficiency in medical negligence is to be judged
on the following principles:
It is to be remembered that a Doctor or a Surgeon does not undertake that
he will positively cure a patient nor does he undertake to use the highest
possible degree of skill, as there may be persons more learned and skilled
than himself, but he definitely undertakes to use a fair, reasonable and
competent degree of skill.
It is to be stated that if there are several modes of treatment and if a Doctor
adopts one of them and conducts the same with due care and caution then
no negligence can be attributed towards him;
(iii).
Secondly, in the case of medical man, negligence means, failure to act in
accordance with the standards of reasonably competent medical men at the
time.
(iv).
A medical practitioner is expected to exercise a reasonable degree of care
and exercise skill and knowledge which he possess;
No doubt, failure to use due skill in diagnosis with the result that wrong
treatment is given is negligence;
(vi).
Medical opinion may differ with regard to diagnosis or treatment, but in a
complicated case if they occur and Court will be slow in attributing
negligence on the part of the Doctor if he has performed his duties to the
best of his ability and with due care and caution.
8--In --Kalyani Dutta v. Tirath Ram hosp., decided 3-3-08, the Delhi State Consumer
Commission held as follows:
However, the definition of deficiency provided by Sec. 2(1)(g) of the Consumer
Protection Act, 1986 is so wide that it also takes in its fold the administrative deficiencies
of the hospital. For instance, not providing blood to a patient who could die if blood
transfusion is delayed for some time or not providing oxygen cylinder for want of which
the patient is likely to suffer, some time fatal, or admitting the patient in the Nursing
Home or hospital knowing it well that the doctors who are specialized and skilled for
treating the patient are not available for some reason or the other. Sometimes, sanitary
conditions of the hospital are so bad that it contributes to the worsening condition of the
patient. Sometimes, the wherewithal and paraphernalia of the hospital who have very
high reputation and claims themselves to be a five star or seven star hospital are not
Similarly any negligence in not attending to the patients in ICU who are
ordinarily not allowed any attendant amounts to negligence. Utmost care and round the
clock attendance is required for the patients in ICU. Nomenclature ICU itself suggests
that core should be of intensive nature. Any shortcoming, imperfection or inadequacy in
the quality, nature and manner of performance which is required to be maintained by or
under any law for the time being in force or has been undertaken to be performed by a
person in pursuance of a contract or otherwise in relation to any service.
In such like cases we have taken a view that the hospital alone can be held guilty
for deficiency in service in not taking proper care of the patient and once a patient is
admitted in the in the hospital/ICU it becomes their first and foremost duty to provide
each and every help to the patient depending upon the nature of disease and give proper
attendance for preventing any fall from the bed as has happened in the instant case or any
other eventuality causing any physical damage to the patient etc. Recently we have come
across and decided few cases of patients having fallen from the bed in ICU suffering
fractures particularly old and heart patients and even resulting in death.
However, in this case the OP had taken the plea that patient was suffering from
such disease that developed psychosis and broke the fence of the barrier attached to the
bed and had a fall. This itself shows that there was no person to attend to the patient and
that too in the ICU and this amounts to administrative deficiency”.

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