Showing posts with label Negligence. Show all posts
Showing posts with label Negligence. Show all posts
Sunday, January 10, 2016
Saturday, November 23, 2013
Can doctors be prosecuted for medical negligence ???
From https://www.facebook.com/groups/176583359210439/permalink/178323772369731/ The question of liability of doctors for negligence came before the Supreme Court of India in the case of Jacob Mathew Vs State of Punjab (2005). On 15th February 1995, a patient was admitted in a private ward of the CMC hospital, Ludhiana. The patient felt serious difficulties in breathing at about 11pm on the night of 22nd February 1995. Patient’s son immediately contacted the nurse who in turn called the doctors. After about 20-25 minutes Dr. Jacob Mathew and Dr. Allen Joseph came to the patient’s room and connected an oxygen cylinder to patient’s mouth, but the cylinder was found empty. No other cylinder was available in the room at that time. However the patient’s son managed a cylinder from the adjoining room but no arrangement was made to make the cylinder functional. 5-7 minutes were wasted in this process and by that time the patient died. An F.I.R was lodged in this connection and the judicial magistrate Ist class Ludhiana framed charges under sections 304A and 34 IPC against the two doctors for negligence. A revision petition was filed by both the doctors in the court of sessions judge but the same was dismissed. The High Court also dismissed the petition filed by both the doctors for quashing the FIR and all subsequent proceedings. The aggrieved doctors then filed a petition before the Supreme Court of India by special leave. The main issue before the court in this case was to ascertain the liability of doctors for negligence under civil and criminal law. The hon’ble court observed that, there is a difference in the concept of negligence under civil and criminal laws. In criminal law, the amount and degree of negligence is determinative of liability. Mens rea or mental element cannot be excluded in case of criminal negligence. For the existence of criminal rashness or negligence it is to be found that the rashness was of such degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The professionals such as lawyers or doctors posses special skills for performing special tasks, but that does not mean that they can assure about the positive results in every dealing. What they can assure is that, they posses the requisite skill in their respective branch of profession and they will exercise their skill with reasonable competence while performing the task. It is not compulsory for every professional to posses the highest level of skill in his respective branch of profession. A mere accident or deviation from the normal professional practice is not necessarily an evidence of negligence. Sometimes there may be an error of judgment while making a choice between the available procedures. But as long as the adopted procedure is found to be acceptable by medical science as on that date, the medical practitioner cannot be held negligent merely because he choose to follow one procedure and not the other resulting in failure. The court further observed that if a doctor is kept under the fear of legal action then he cannot perform a successful treatment. A doctor under the fear of facing a criminal prosecution in the event of failure for whatever reasons, whether attributable to him or not, can never go for a successful treatment. Even the doctors may feel it better to leave a terminal patient untreated when the chances of success may be less than 10% or so. In case of serious patients who are in a state of ‘coma’ or in case of grave emergencies where the patients death is almost certain, the doctors may try for a last effort towards saving the life, but if there is a fear of criminal prosecution then the doctors may not go for taking a risk and facing a legal action. “Negligence” with reference to doctors necessarily calls for a different treatment. Our criminal law has invariably placed the medical professionals on a different pedestal from the ordinary mortals. The Indian Penal Code under the chapter of general exceptions provide exemptions for acts not intended to cause death , done by consent in good faith for person’s benefit. Section 92 provides exemptions for acts done in good faith for the persons benefit without his consent though the act causes harm to that person and the person has not consented to suffer such harm. However doctors can also be prosecuted for an offence containing rashness or negligence, but there is a need for protecting doctors from frivolous and unjust prosecutions. The hon’ble court formulated the following guidelines to be followed, which should govern the prosecution of doctors for offences of which criminal rashness 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. A doctor accused of rashness and negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld. The court finally held that, even if all the averments made in the complaint of the present case are proved, they do not make out a case of criminal rashness or negligence on the part of the accused appellant. The accused appellant cannot be prosecuted under section 304A IPC, however the hospital may be liable in civil law.
Thursday, May 09, 2013
Delhi High Court rules doctors not responsible if patients do not respond to treatment
Delhi High Court rules doctors not responsible if patients do not respond to treatment From : http://www.dailymail.co.uk/indiahome/indianews/article-2309018/Delhi-High-Court-rules-doctors-responsible-patients-respond-treatment.html A Delhi High Court said a doctor cannot be held liable if the patient has not responded favourably to a treatment. The order came out after the court refused to frame charges against two doctors and three nurses of RBTB Hospital accused of causing a man's death due to negligence. Additional Sessions Judge Kamini Lau said a doctor can be held liable for a patient's death only if the negligence so established is gross and not just based upon an error of judgment. The court further said even if the doctors were found guilty in departmental inquiry in the matter, it does not make them liable for criminal negligence as the standard of both the inquiries are different. It added that it was the court's obligation to ensure that doctors and medical practitioners are protected from frivolous and unjust prosecution and they be summoned only in cases of high degree of culpable criminal negligence. The case was filed against the medical professionals on the ground that Attar Mohammad, who was admitted to the hospital on June 26, 2002 in a critical condition, had died on June 29, 2002 due to gross negligence of the doctors and nurses on duty.
Monday, March 12, 2012
Doctors not to be arrested for Medical Negligence
Judgment of Jacob Mathew case Appeal (CRI) 144-145 of 2004 which clearly states as follows
"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".
Tamil Nadu IMA has approached the Tamil Nadu Government and got a GO NO.220 of 2008 Dated 4.7.2008 to implement the same Judgment in our State. It is high time IMA Head Quarters should get such an order from Central Government and also the respective state branches should approach and get a similar GO no.220 of 2008 like Tamil Nadu.
Sunday, August 09, 2009
Doctors acquitted of criminal negligence
http://www.hindu.com/2009/08/09/stories/2009080959691000.htm
New Delhi: The Supreme Court has upheld a Calcutta High Court judgment acquitting three doctors of criminal negligence in the death of Anuradha Saha, wife of Kunal Saha, a doctor based in the United States.
Anuradha Saha, a child psychologist, died in 1998 at 36, following complications in treatment at the Advanced Medicare Research Institute (AMRI), Kolkata. Dr. Saha’s relative, Malai Ganguly, registered a criminal case against doctors Abani Roy Choudhury, Mukherjee and Baidyanath Halder, alleging medical negligence.
While Dr. Choudhury was acquitted by the trial court, it sentenced the other two to three months’ imprisonment. The High Court, on appeal, acquitted both.
Meanwhile, a complaint filed by Dr. Saha seeking a compensation of Rs. 77 lakh was dismissed by the National Consumer Disputes Redressal Commission. The present appeals were filed by Malai Ganguly and Dr. Saha against the High Court judgment and the Commission’s order.
On Friday, A Bench, consisting of Justices S.B. Sinha and Deepak Verma, dismissed the criminal appeals but slapped costs of Rs. 5 lakh on the AMRI and Rs. 1 lakh on Dr. Mukherjee.
Criminal intention
The Bench, in its 132-page judgment, said: “For negligence to amount to an offence the element of mens rea [criminal intention] must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much high. Negligence which is not of such a high degree may provide a ground for action in civil law but cannot form the basis for prosecution. 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 senses and prudence would have done or failed to do.”
In the instant case, “negligent action has been noticed with respect to more than one respondent. A cumulative incidence, therefore, has led to the death of the patient. It is to be noted that doctrine of cumulative effect is not available in criminal law. The complexities involved in the instant case, as also the differing nature of negligence exercised by various actors, make it very difficult to distil individual extent of negligence with respect to each of the respondents.”
Writing the judgment, Justice Sinha said: “The law on medical negligence also has to keep up with the advances in medical science as to treatment as also diagnostics. Doctors must increasingly engage with patients during treatment, especially when the line of treatment is a contested one and hazards are involved. Standards of care in such cases will involve the duty to disclose to patients the risks of serious side-effects or about alternative treatments. In the times to come, litigation may be based on the theory of lack of informed consent.”
As regards the civil appeal, the Bench said the Commission was clearly wrong in opining that there was no negligence on the part of the hospital or the doctors. It, therefore, remitted the matter to the Commission for determining the quantum of compensation preferably within six months. “We further direct that if any foreign expert is to be examined, it shall be done only through videoconferencing and at the cost of respondents.”
Sunday, June 07, 2009
“Transfusion of wrong blood group is medical negligence”
http://www.hindu.com/2009/06/04/stories/2009060453861800.htm
“Transfusion of wrong blood group is medical negligence”
Legal Correspondent| Supreme Court upholds award of Rs. 2 lakh compensation to deceased’s family |
The victim was transfused with B+ blood instead of her group A+
She died of septicemia and not due to mismatched blood transfusion: PGIMER
New Delhi: The Supreme Court has held that transfusion of wrong blood group to a patient amounted to medical negligence.
A Bench consisting of Justices D.K. Jain and R.M. Lodha said: “The law takes no cognisance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence.”
The Bench upheld compensation of Rs. 2 lakh ordered by the State Consumer Disputes Redressal Commission and confirmed by the National Commission to the husband and children of a woman who died due to transfusion of wrong blood group at the Postgraduate Institute of Medical Education and Research (PGIMER), Chandigarh.
Writing the judgment, Justice Lodha said that “with regard to professional negligence, it is now well settled that a professional may be held liable for negligence if 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 Bench said “it is equally well settled that the standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary person exercising skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practises.”
In the instant case Harjit Kaur was admitted to the PGIMER on April 19, 1996 for treatment of burn injuries. On May 15, she was transfused with A+ blood which was her blood group.
However during the second blood transfusion on May 20, she was transfused with B+ blood group, instead of A+. Her condition started deteriorating and it transpired that due to transfusion of mismatched blood, the kidney and liver got damaged. She died on July 1, 1996.
On a complaint from her husband Jaspal Singh, the State Commission held that the death was due to medical negligence and awarded Rs. 2 lakh compensation. On appeal by the PGIMER, the National Commission confirmed the award and the present appeal by the Institute was against that order.
The appellant contended that Harjit Kaur died of septicemia and not by mismatched blood transfusion and sought quashing of the National Commission’s order.
Appeal dismissed
Dismissing the appeal and upholding the award with Rs. 20,000 costs, the Bench said: “Although she [Mrs. Kaur] survived for about 40 days after mismatched blood transfusion it cannot be said that there was no causal link between the mismatched transfusion of blood and her death.
Wrong blood transfusion is an error which no hospital/doctor exercising ordinary care would have made. Such an error is not an error of professional judgment but in the very nature of things a sure instance of medical negligence. The hospital’s breach of duty in mismatched blood transfusion contributed to her death, if not wholly, but surely materially. Mismatched blood transfusion to a patient having sustained 50 per cent burns by itself speaks of negligence.”
DoctorsandLaw Opinion :
- We are not able to guess how the following statement is arrived at : Although she [Mrs. Kaur] survived for about 40 days after mismatched blood transfusion it cannot be said that there was no causal link between the mismatched transfusion of blood and her death. If a person has survived for 40 days after a transfusion, then the death is not probably due to it. Mismatched Transfusion in a mistake and has to be punished, but to attribute everything to it is a bit too far.
- We fully endorse this statements Wrong blood transfusion is an error which no hospital/doctor exercising ordinary care would have made. Such an error is not an error of professional judgment but in the very nature of things a sure instance of medical negligence. Mismatched blood transfusion to a patient having sustained 50 per cent burns by itself speaks of negligence.”
- And we would like to know how the court decided on this statement : The hospital’s breach of duty in mismatched blood transfusion contributed to her death, if not wholly, but surely materially.
- There are two questions involved here. Question 1. Was there a case of negligence. Answer 1. Question 2. Did the negligence contribute to death It seems that this question was not examined separately, but the answer arrived at based on Answer 1 alone
- Bottomline : This judgement once again reiterates our stand that COPRA Cases are decided on emotion and not based on facts, which is contrary to the basic tenets of the Law.
Saturday, November 10, 2007
Instructions of Director General of Police, Tamil Nadu
Office of the Director General of Police,
Admiralty House, Govt. Estate,
Anna Salai, Chennai - 600 002.
Admiralty House, Govt. Estate,
Anna Salai, Chennai - 600 002.
S.NO. 119825/1 &0/CON.97. -Dated : 27.05.97
MEMORANDUM
Instructions were issued in Chief office Memo vide (C.N.) 8523/1 & O Confd 1/91) dated 6.4.91 that when complaints of cognizable offences are received against Medical Practitioners relating to criminal negligence in the course of Medical treatment arrests need not be resorted to as a matter of course. It was also emphasized in the memo that when the Medical practitioner is involved in such police complaint the fact should be brought to the notice of higher supervisory Officers who will keep a close watch on the progress of the case to ensure that there is no vindictive or vexations action.
2. Inspite of these specific instructions an instance has come to notice where in a similar complaints of negligence on the part of a Medical Practitioners arrests have been made resulting in avoidable criticism against the Police. It is once again reiterated that in such cases arrests should not be resorted to as a matter of course. The cases will be duly investigated and any action should be fully supported by a documentary evidence, supervisory approval strengthened with the opinion of the Law office.
3. These instructions will be followed in future.
4. Please acknowledge the receipt.
Thursday, August 05, 2004
Doctors Not to be Arrested Supreme Court Appeal (crl.) 778 of 2004
CASE NO.:
Appeal (crl.) 778 of 2004
PETITIONER:
Dr. Suresh Gupta
RESPONDENT:
Govt. of N.C.T. of Delhi & Anr.
DATE OF JUDGMENT:
04/08/2004
BENCH:
Y. K. Sabharwal & D. M. Dharmadhikari
JUDGMENT:
J U D G M E N T
(Arising out of SLP(Crl.) No. 2931 of 2003)
Dharmadhikari J.
Leave to appeal is granted.
The appellant who is a Doctor (Plastic Surgeon) is in the dock as an
accused on the charge under Section 304 A of the Indian Penal Code [for
short the 'IPC'] for causing death of his patient on 18.4.1994. The patient
was operated by him for removing his nasal deformity. It may be mentioned
at the outset, that the Anesthetist who was assisting the surgeon in the
operation was also made co-accused but it is reported that he died pending
the trial. The proceedings, therefore, stand abated against him.
The appellant urged before the Magistrate that the medical evidence
produced by the prosecution, does not make out any case against him to
proceed with the trial. The learned magistrate in deciding to proceed with
the trial recorded following reasons in the impugned order dated
28.11.1998 passed by him :-
"Postmortem report is very categorical and very clear and it has been
clearly mentioned therein that death was due to the complication
arising out of the operation. That operation was conducted by both
the accused persons. It is also clear from the material on record that
deceased was young man of 38 years having no cardiac problem at all
and because of the negligence of the doctors while conducting
minor operation for removing nasal deformity, gave incision at
wrong part due to that blood seeped into the respiratory
passage and because of that patient immediately collapsed
and died and it was also attempted to show by the accused persons
that he was alive at that time and was taken to Ganga Ram Hospital
for further medical attention.
It is clear from the record that patient had actually died at the clinic of
the accused and therefore, I am of the opinion that there are sufficient
grounds on record to make out a prima facie case against both the
accused for commission of offence under Section 304A IPC. Let notice
be served accordingly."
[Emphasis supplied]
As the Magistrate decided to proceed with the trial, the doctor
approached the High Court by petition under Section 482 of the Code of
Criminal Procedure. The High Court refused to quash the criminal
proceedings and upheld the order of the Magistrate, although it records that
the Metropolitan Magistrate was obviously wrong, in the absence of any
medical opinion, in coming to a conclusion that the surgeon had given a cut
at wrong place of the body of the patient at the time of operation leading to
blood seeping into the respiratory passage and blocking it resulting in his
death. The High Court, however, declined to quash the proceedings against
the doctor for the alleged criminal liability. In the impugned order dated
1.4.2003, it recorded its reasons thus :-
"In the present case two doctors who conducted the post-mortem
examination have taken an emphatic stand which they have reiterated
even after the Special Medical Board opinion, that death in this case
was due to 'asphyxia resulting from blockage of respiratory
passage by aspirated blood consequent upon surgically incised
margin of nasal septum.' This indicates that adequate care was
not taken to prevent seepage of blood down the respiratory
passage which resulted in asphyxia. The opinion of the Special
Medical Board is not free from ambiguity for the reasons already given.
Such ambiguity can be explained by the concerned doctors when they
are examined during the trial."
Learned senior counsel Shri Ashok Desai appearing for the doctor,
has taken us through the contents of the medical opinions produced by the
prosecution with the complaint and some medical books and decided cases
to submit that accepting the entire case of the prosecution, as has been laid
before the trial magistrate, to be true, no case for convicting the doctor for
criminal negligence under section 304A IPC has been made out. He submits
that in the larger interest of medical profession, the criminal proceedings
instituted against his client deserve to be quashed.
Reliance is placed on the House of Lords decision in the case of
R. vs. Adomako [1994 (3) All E. R. 79]; Suleman Rehman Mulani vs.
State of Maharashtra [1968 (2) SCR 515] and Laxman Balkrishna
Joshi vs. Trimbak Bapu Godbole [1969 (1) SCR 206].
We have also heard learned senior counsel Shri Harish Chandra for
the prosecution, who supported the view taken by the Magistrate and the
High Court that the surgeon was guilty of gross negligence in giving an
incision at the wrong place and did not take necessary precautions in the
course of surgical operation to prevent seepage of blood down the
respiratory passage of the patient and the resultant death by asphyxia.
It is settled position in law that the inherent power of the High Court
under section 482 Criminal Procedure Code for quashing criminal
proceedings can be invoked only in cases where on the face of the
complaint or the papers accompanying the same no offence is made out for
proceeding with the trial. In other words, the test is that taking the
allegations and the complaint, as they are, without adding or subtracting
anything, if no offence is made out, the High Court will be justified in
quashing the proceedings [See Municipal Corporation of Delhi vs. Ram
Kishan Rohtagi (AIR 1983 SC 67); and Durgs Inspector vs. B.K.
Krishnaiah (AIR 1981 SC 1164)]
To decide whether on the basis of the complaint and the medical
opinion produced along with it, any offence is made out or not, it is
necessary to examine the papers produced with the complaint. The patient
died in the course of surgical operation on 18.4.1994, but the post-mortem
was conducted on 21.4.1994. By that time rigor mortis had almost passed
off. The post-mortem report gave opinion on the cause of death by
recording thus :-
"Asphyxia resulting from blockage of respiratory passage by aspirated
blood consequent upon surgically incised margin of nasal septum. The
cause of death to the best of my knowledge and answers to the
question put by IO."
A Special Medical Board of four eminent doctors was constituted by
the investigating agency out of which three recorded their unanimous
opinion as under :-
After the perusal of all the documents produced before the Committee,
we are of the view that the death of Mr. Siavash Karim Arbab,
occurred due to sudden cardiac arrest, the direct cause of which
(Cardiac Arrest) cannot be ascertained. However, possible cause
leading to cardiac arrest can be as follows :-
1. Hypotension due Head-up-Position
2. Adverse drug reaction
3. Hypoxia
Death due to Asphyxia resulting from blockage of air passage
secondary to ante-mortem aspiration of blood from the wound
is not likely in the presence of cuffed endo-tracheal tube of
proper size (8.5), which was introduced before the operation
and remained in position till the patient was declared dead in
Sir Ganga Ram Hospital, as per statements of members of the
operating team and available records. In the post-mortem report
there is presence of clotted fluid blood in respiratory passage, which
invariably occurs ante-mortem due to aspiration from operation site.
However, the presence of fluid and clotted blood in the
respiratory passage, as noted in the post-mortem report, due
to trickling of decomposition bloody fluid and some clot present
in the nostril from the site of incision in the nose, cannot be
ruled out after the tube is taken out. It is worth mentioning in the
present case that the death occurred on 18.4.1994 at 2.30 p.m. and
the post-mortem was conducted on 21.4.1994 at 12.20 p.m. when
sufficient degree of decomposition had started.
Sd/- Dr. Bharat Singh Sd/- Dr. Rizvi Sd/- P.L. Dhingra
Chairman Member Member
[Emphasis supplied]
One of the members of the doctors team Prof. Jagannatham gave a
separate report which reads as under :-
"After going through he relevant papers/documents and surgery and
anaesthesia notes, it was observed that, what medical care was
actually extended to the patient from 5 a.m. to 8.30 a.m. on
18.4.1994 at Delhi Plastic Surgery Clinic. It is surprising that the
patient's physical status belonged to ASA Grade-I. The actual cause of
cardiac arrest on the table noticed immediately after the start of
operation, was not clear and it still stands as enigmas whether the
surgeon had given any adrenaline infiltration to the patient or
originally planned to do the surgery under local anaesthesia could not
be decided. There is no mention about the use of inhalation
anaesthesia during the surgical procedure under the general
anaesthesia.
However, both anaesthetics and the surgeon immediately noticed the
cardiac arrest and started resuscitative measures well-in time to save
the patient's life. With all good intentions and team spirit, they
transported the patient under manual ventilation (supporting
respirations) and shifted the patient to Ganga Ram Hospital's ICU.
Sd/-
(Dr. Jagannatham)
15.11.1995"
It is on these medical papers produced by the prosecution, we have
to decide whether the High Court was right in holding that criminal liability
prima facie has arisen against the surgeon and he must face the trial. The
legal position is almost firmly established that where a patient dies due to
the negligent medical treatment of the doctor, the doctor can be made
liable in civil law for paying compensation and damages in tort and at the
same time, if the degree of negligence is so gross and his act was reckless
as to endanger the life of the patient, he would also be made criminally
liable for offence under section 304A of IPC.
Section 304A of IPC reads thus :-
"304A. Causing death by negligence. Whoever causes the death
of any person by doing any rash or negligent act not amounting to
culpable homicide, shall be punished with imprisonment of either
description for a term which may extent to two years, or with fine, or
with both."
On behalf of the doctor learned counsel referred to section 80 and
section 88 of the IPC to contend that in various kinds of medical treatment
and surgical operation, likelihood of an accident or misfortune leading to
death cannot be ruled out. A patient willingly takes such a risk. This is part
of doctor patient relationship and mutual trust between them.
Section 80 and 88 read as under :-
"80. Accident in doing a lawful act. Nothing is an offence which is
done by accident or misfortune, and without any criminal intention or
knowledge in the doing of a lawful act in a lawful manner by lawful
means and with proper care and caution.
88. Act not intended to cause death, done by consent in good
faith for person's benefit. Nothing which is not intended to cause
death, is an offence by reason of any harm which it may cause, or be
intended by the doer to cause, or be known by the doer to cause, or
be known by the doer to be likely to cause, to any person for whose
benefit it is done in good faith, and who has given a consent, whether
express or implied, to suffer that harm, or to take the risk of that
harm."
Applying the laid down test for quashing or refusing to quash the
criminal proceedings under section 482 of the Criminal Procedure Code, we
have to find out whether from the complaint and the accompanying medical
papers and by accepting the entire case alleged by the prosecution to be
true, an order of conviction of the doctor for offence under section 304A of
IPC can be passed.
The operation was performed on 18.4.1994 and the patient is alleged
to have died on the same day. The post-mortem was performed after three
days i.e. on 21.4.1994. According to the post-mortem report, the cause of
death was : "blockage of respiratory passage by aspirated blood consequent
upon surgically incised margin of nasal septum."
The medical experts constituting the Special Medical Board set up by
the investigation have opined that "the blockage of air passage was due to
aspiration of blood from the wound and it was not likely in the presence of
cuffed endo-tracheal tube of proper size being introduced before the
operation and remained in position." The team of experts also opined that
'presence of fluid and clotted blood in respiratory passage is likely, as it
invariably occurs ante-mortem due to aspiration from operation site.' But
they also opined that 'presence of fluid and clotted blood in the respiratory
passage, as noted in the post-mortem report, due to trickling of
decomposition bloody fluid and some clot present in the nostril from the site
of incision in the nose, cannot be ruled out after the tube is taken out.'
Dr. Jagannatham, one of the members of the Special Medical Team
constituted during investigation has, however, given separate opinion, the
details of which we have quoted above. It seems to be to some extent in
favour of the accused surgeon. From the post-mortem report and the
opinion of the three medical experts of the medical team specially
constituted, the case of the prosecution laid against the surgeon is that
there was negligence in 'not putting a cuffed endo-tracheal tube of proper
size' and in a manner so as to prevent aspiration of blood blocking
respiratory passage.
For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as "gross negligence" or recklessness". It is not merely lack of necessary care,
attention and skill. The decision of the House of Lords in R. Vs. Adomako
(Supra) relied upon on behalf of the doctor elucidates the said legal
position and contains following observations :-
"Thus a doctor cannot be held criminally responsible for patient's death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State."
Thus, when a patient agrees to go for medical treatment or surgical
operation, every careless act of the medical man cannot be termed as
'criminal'. It can be termed 'criminal' only when the medical man exhibits a
gross lack of competence or inaction and wanton indifference to his
patient's safety and which is found to have arisen from gross ignorance or
gross negligence. Where a patient's death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might
create civil liability but would not suffice to hold him criminally liable.
This approach of the courts in the matter of fixing criminal liability on the doctors, in the course of medical treatment given by them to their patients, is necessary so that the hazards of medical men in medical profession being exposed to civil liability, may not unreasonably extend to
criminal liability and expose them to risk of landing themselves in prison for alleged criminal negligence.
For every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment. Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large because if the courts were to impose criminal liability on hospitals and doctors for everything that goes
wrong, the doctors would be more worried about their own safety than giving all best treatment to their patients. This would lead to shaking the mutual confidence between the doctor and patient. Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an offence of culpable negligence.
No doubt in the present case, the patient was a young man with no history of any heart ailment. The operation to be performed for nasal deformity was not so complicated or serious. He was not accompanied even by his own wife during the operation. From the medical opinions produced by the prosecution, the cause of death is stated to be 'not introducing a cuffed endo-tracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage'. This act attributed to the doctor, even if accepted to be true, can be described as negligent act as there was lack of due care and precaution. For this act of negligence he may be liable in tort but 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.
Between civil and criminal liability of a doctor causing death of his patient the court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrong doing i.e. a higher degree of morally blameworthy conduct.
To convict, therefore, a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The courts have, therefore, always insisted in the case of alleged criminal offence against doctor causing death of his patient during treatment, that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable.
See the following concluding observations of the learned authors in
their book on medical negligence under the title 'Errors, Medicine and the
Law' [by Alan Merry and Alexander McCall Smith at pg. 247-248]. The
observations are apt on the subject and a useful guide to the courts in
dealing with the doctors guilty of negligence leading to death of their
patients :-
"Criminal punishment carries substantial moral overtones. The doctrine
of strict liability allows for criminal conviction in the absence of moral
blameworthiness only in very limited circumstances. Conviction of any
substantial criminal offence requires that the accused person should
have acted with a morally blameworthy state of mind. Recklessness
and deliberate wrong doing, levels four and five are classification of
blame, are normally 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.
Blame is a powerful weapon. When used appropriately and according
to morally defensible criteria, it has an indispensable role in human
affairs. Its inappropriate use, however, distorts tolerant and
constructive relations between people. Some of life's misfortunes are
accidents for which nobody is morally responsible. Others are wrongs
for which responsibility is diffuse. Yet others are instances of culpable
conduct, and constitute grounds for compensation and at times, for
punishment. Distinguishing between these various categories requires
careful, morally sensitive and scientifically informed analysis."
After examining all the medical papers accompanying the complaint,
we find that no case of recklessness or gross negligence has been made out
against the doctor to compel him to face the trial for offence under section
304A of the IPC. As a result of the discussion aforesaid on the factual and
legal aspect, we allow this appeal and by setting aside the impugned orders
of the Magistrate and of the High Court, quash the criminal proceedings
pending against the present doctor who is accused and appellant before us.
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