Criminal negligence vis-à-vis medical professionals, a Supreme Court Ruling

Dr Suganthi Iyer

There exists a lot of confusion as to what is criminal negligence amongst medical practitioners. A judgment has recently been passed which clearly pictures for professionals like doctors, lawyers, architects, etc as to what is criminal negligence. As far as professionals are concerned, this was essential as people were generally not clear about what is criminal negligence with respect to professionals. Criminal complaints are being filed against doctors alleging commission of offence punishable u/s 304 A or section 336/ 337/ 338 of the IPC alleging rashness or negligence on part of the doctors resulting in loss of life or injury to the patient. This judgement has enabled us to examine the concept of negligence, in particular “Professional Negligence” as to when and how it often gives rise to an action under the criminal law.

The Supreme Court Judgement (Jacob Mathew v/s State of Punjab and Others) The Father (Mr JS) of the complainant was admitted as a patient in “C” Hospital in Ludhiana for treatment of malignancy which was in an advanced stage. On 22nd February 1995, at about 11 pm., Mr JS felt difficulty in breathing. His elder son 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 - 25 minutes. Then Doctor M and Dr J came to the room of the patient and 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 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. The patient’s son went to the adjoining room and brought a gas cylinder therefrom. However, there was no arrangement to make the gas cylinder functioning and five to seven minutes were wasted. By this time, another doctor came and declared the patient dead.

The latter part of the FIR states: “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 rites and I have come here for suitable action to be taken.” As per the statement, death has occurred due to carelessness of doctors and nurses concerned and to fit empty gas cylinder.

On the above said report and offence under sec 304(A)/34 IPC was registered and investigated. There was no specific allegation of action of omission or commission against the accused person before the High court who finally dismissed the petition. Hence, the appellant filed an appeal in the Supreme Court and the ruling is described hereunder.

Negligence as a tort

Negligence as a breach of duty caused by omission to do something, which a reasonable man would do or doing something which a prudent reasonable man would not do. The essential concepts of negligence are the existence of a duty to care failing to attain that standard of care and thereby breach in duty and damage caused to the complainant.

Negligence as a tort and crime

In tort it is an amount of damage which is a issue but in criminal law it is the amount of degree of negligence that determines the liability. The degree of negligence has to be higher than that in civil law. The essential ingredient of “mens rea” exists when there is a charge of criminal negligence. Criminal negligence is “Gross & Culpable Neglect or failure” to exercise reasonable and proper care to guard against injury when it was the imperative duty of the accused person to adopt. The feature of grossness or degree those assume significance in negligence punishable is a crime where the negligence has to be gross or of a very high degree.

Negligence by Professionals

Professionals such as doctors, lawyers, architects and others are included in the category of persons professing special skill. Any reasonable man practicing a profession requires particular level of learning and impliedly assures the person dealing with him that he possesses such requisite qualifications and that he will profess his skill with reasonable degree of care and caution. It follows that a professional man should command corpus of knowledge of the profession he is practicing. He should not lag behind other intelligent members of his profession in knowledge of new advances. He should be alert to the hazard and risk in any professional task he undertakes. He must bring to any professional task he undertakes expertise, skill and care similar to other ordinary members of his profession, but need bring no more. The standard is that of the reasonable average. He need not possess the highest nor a very low degree of care and competence. A person is not liable in negligence because someone 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 reasonable body of medical men skilled in that particular art. The medical practitioner is liable only if his conduct fell below that of the standard of a reasonable competent practitioner in his field.

Medical Professional in Criminal Law

The criminal law has placed a medical professional on a pedestal different from any ordinary mortals. The Indian Penal Code sets out a few examples. Sector 88 provide exemption for acts not intended to cause death done by consent in good faith for the persons benefit. Sector 92 provide for the 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 the person has not consented to suffer harm. Section 93 saves from criminality certain communication made in good faith.

Conclusion

The doctor is not criminally responsible for a patient’s death unless his negligence or incompetence show such disregard for life and safety for others as to amount to a crime. The degree of negligence required is that it should be gross.

To impose crime liable under section 304A 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 proximate and efficient cause without the intervention of another’s negligence.

To prosecute a medical professional for negligence under criminal law 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 sense and prudence would have done or failed to do. Guidelines regarding prosecution of medical professionals.

Prosecutions are filed by private complainants and sometimes by police on an FIR being lodged. The police do not have the knowledge whether the act of the accused medical professional amounts to rash or negligent act. Hence, care and caution has to be instituted for protecting doctors from frivolous or unjust prosecutions,since, the process once initiated subjects the doctor to serious embarrassment and harassment. He has to seek bail and may be exonerated. But, the loss which he has suffered in his reputation, can never be compensated. Hence, malicious proceedings have to be guarded against.

Statutory rules with guidelines need to be issued by the Government in consultation with Medical Council of India. Hence, till such time, it is said that a private complaint need not be entertained unless another credible opinion to support the charge of rashness or negligence on part of the accused doctor is produced. The investigating officer should obtain an independent opinion before proceeding the accused doctor. A doctor who has been accused may not be arrested just because a charge has been levelled against him unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the accused doctor would not make himself available to face the prosecution unless arrested.

The writer is Assisstant Medical Director,Hinduja Hospital, Mumbai

Email:drsiyerin@yahoo.co.in