Ever since the advent of the healthcare industry, specifically the medical profession, the concept of medical negligence has also been prevalent; though it gained considerable prominence in our country after the enactment of the Consumer Protection Act in 1986 due to a greater number of patients becoming aware of their rights as well as the remedies available to them. In India, medical negligence is an offence under the IPC, Consumer Protection Act, Law of Torts, etc. A case for medical negligence can therefore be filed by a patient against his or her doctor under either criminal law or civil law; or under both simultaneously as the nature of both the cases are quite different. The degree of negligence that has to be proved in criminal as well as civil medical negligence cases differ, as a higher degree of negligence needs to be proved in the former when compared to the latter. As per the IPC, no act will be considered to be a crime unless it is accompanied by a guilty mind or a guilty intention. As medical practitioners carry out a treatment in good faith, for the benefit of the patient and with the consent of the patient, most of the provisions of the IPC are not applicable to them unless gross negligence is proved on their part.
The term negligence can be used to refer to failure to take the requisite care and caution that a rational human being would have taken in the same circumstance. Practicing medicine is quite a risky business and involves a lot of calculated guess-work on the part of the medical practitioner. As has been rightly stated by many, “to err is human”. The doctor may have to make certain decisions in the spur of the moment in accordance with what he or she believes is the best interest of the patient. Even though patients expect their doctors to cure or heal them completely of their infirmity or disease, doctors are also prone to making mistakes. For example, while trying to save the life of a person from a wild animal that is attacking, there always exists the risk that damage might be caused to the victim’s hands or legs in the process. However, this will not constitute negligence on the part of the rescuer. Similarly, while trying to save the life of a person who has encountered a severe accident, the medical practitioner might have to attempt a surgery which might be risky in nature. This will also not constitute negligence on the part of the surgeon or doctor.
CRIMINAL MEDICAL NEGLIGENCE BY MEDICAL PRACTITIONERS
The term negligence is used to refer to the failure to take requisite care and caution that a rational human being would have taken in the same circumstance. However, this term is quite ambiguous in nature as its definition has not been provided anywhere in the IPC. The existence of a legal duty, the breach of that legal duty and the occurrence of damage as a result thereof are considered to be the essentials of negligence. However, this depends on the facts and circumstances of the case and hence differs from one case to the other.As per the IPC, a medical practitioner such as a doctor or a surgeon can be held liable for criminal negligence under Section 304A, 337 or 338.
In order to prove the criminal medical negligence of a doctor under Section 304A of the IPC, the negligent act of the doctor must have been the “causa causans”, i.e. the primary and proximate cause of the loss or damage, and not the “causa sine qua non”, i.e. a secondary cause which though not direct, contributed to the loss or damage. However, cases filed by patients against medical practitioners are not limited to the Sections mentioned above. In fact, cases have been filed against doctors under Section 304, 312, 313, 314, 315, 316, 324 and 326 of the IPC even though these sections are general in nature and do not cater specifically to negligence cases.
In the case of Emperor v. Omkar Rampratap, the court held that in order to hold a person criminally liable under Section 304A of the IPC, the death that occurred should have been the result of a negligent act that had been carried out by the accused. The act carried out should also have been the real and immediate cause of the death. The court was therefore of the opinion that that the act should have been the “causa causans” and not merely the “causa sine qua non”.
A doctor does not always guarantee his or her patient full recovery from any disease or infirmity. A surgeon does not always assure his or her patients that the operation or surgery would be successful. The medical practitioner will simply exercise his skill and knowledge to treat the patient as well as he can. However, it is still possible that the treatment of the doctor may suffer from error in judgement.
In Whitehouse v. Jordan, the court stated that if the mistake that has been made is such that no man in the same profession who possessed a reasonable amount of skill and knowledge and who exercised reasonable amount of care and caution would have made, then it would amount to negligence. On the contrary, if the mistake made is such that a man in the same profession who possessed a reasonable amount of skill and knowledge and who exercised reasonable amount of care and caution would have made, then it will not amount to negligence.
JUDICIAL INTERPRETATION OF CRIMINAL MEDICAL NEGLIGENCE
In the case ofLaxman Balkrishna Joshi (Dr.) v. Dr. Trimbak Bapun Godbole,it was stated that a medical practitioner such as a doctor or surgeon owes a duty of care towards the patients who are under his or her treatment or care at the time. This duty of care owed by the medical practitioner extends to deciding whether or not to accept the case of the patient, deciding what treatment should be administered to the patient, providing the requisite treatment to the patient with all due care and caution, not accepting to treat any patient using treatment techniques that are beyond his or her control and having reasonable amount of skill and knowledge that a medical practitioner in his or her position is generally expected to have. If a medical practitioner breaches any of these duties, the patient has the right to file a case against him or her in the court of law for negligence.
In Juggan Khan v. State of Madhya Pradesh, a qualified medical practitioner administered stramonium and dhatura as part of treatment to a twenty-year-old girl who was suffering from guinea worm. After consuming this mixture, she fell sick and ultimately died. Examination and assessment thereof of her stomach did not detect any poisonous substance. However, the lower courts convicted the doctor under Section 302 of the IPC as it was contended that the death of the girl had been due to the dhatura administered by the doctor. The Supreme Court however made the doctor liable under Section 304A of the IPC for causing the death of the patient due to his own negligent act.
In P. N. D’Souza V Emperor, the accused ran a dispensary in which all the medicines always lay scattered around. One day, in order to prepare a medicine, he mixed a few medicines together without reading any of their labels. He then administered the medicine to several patients who visited thereafter. One of the patients died soon after consuming this medicine. The medical practitioner was held liable for negligence under Section 304A of the IPC as the death of the patient had been a result of his negligence.
In Jacob Mathew v. State of Punjab, which can be considered to be a landmark case in the field of criminal medical negligence in our country, the deceased had been admitted at a hospital for treatment. During the night, he had difficulty breathing. After some time, two doctors attended to him. Thereafter an oxygen cylinder was brought into the room of the patient. However, his breathing problem increased despite using the oxygen cylinder. It was then found out that the cylinder had been empty from the beginning. No extra cylinders were present in the hospital and hence the oxygen cylinder of the adjacent room was brought in. However, the cylinder could not be made to function due to some technical reason. Another doctor arrived after some time. However, the patient passed away before this. The Supreme Court in this case opined that in order to hold a medical practitioner criminally liable for the death of the patient who had been under his or her treatment or care, it had to be established that there had been negligence or incompetence on the part of the medical practitioner which was more in degree than would result in mere civil liability. This was because criminal liability as opposed to civil liability would arise only if the medical practitioner had done an act disregarding the threat that the act could cause to the life or safety of the patient who was under his or her treatment or care.
MEDICAL NEGLIGENCE UNDER THE IPC
Section 304A, 337 and 338 of the IPC are the only Sections in the entire Code that specifically mention the term negligence. As per Section 304A of the IPC, if an individual were to cause the death of another party due to his or her negligent act, which does not amount to the offence of culpable homicide, then he or she will be punished with either maximum of 2 years in prison or with fine or both imprisonment and fine together. However, cases can be filed by patients against medical practitioners under various other Sections of the IPC such as Sections 304, 312, 313, 314, 315, 316, 324 and 326 even though these Sections do not pertain to negligence cases alone.
In the case of Ram Nivas v. State of Uttar Pradesh, an unqualified doctor administered the wrong injection to a patient as a consequence of which the patient died. The doctor in this case was held liable under Section 304A of the IPC as it was held that the death of the patient had been due to the negligent act of the medical practitioner.
In Khusaldas v State of Madhya Pradesh, a doctor who had absolutely no knowledge about penicillin injection administered the same to a patient and the patient died as a result. The doctor was held liable by the court for negligence under Section 304A of the IPC.
According to Section 337 of the IPC, if an individual causes harm to another party by committing a negligent act that jeopardizes the life or safety of the other party, then he or she will be punished with imprisonment that may extend to a maximum period of six months or have to pay a sum of money that may extend to a maximum of five hundred rupees as fine or both together.
In Bhargava Giriyappa v. Emperor, the medical practitioner administered a deadly drug to his patient without properly understanding the consequences of the same. The medical practitioner also did not take the requisite care and caution to find out more about this drug before administering it. Therefore, the court held the medical practitioner to be liable under Section 337 of the IPC.
In the case of Gulam Hyder Punjabi v. Emperor, a medical practitioner conducted a surgery on his patient without taking due care or caution and without observing any of the requisite precautions for the same. The court held him to be liable for causing hurt under Section 337 of the IPC.
As per Section 338 of the IPC, if an individual causes grave or serious harm to another party by committing a negligent act that jeopardizes the life or safety of the other party, then he or she will be punished with imprisonment that may extend to a maximum period of two years or have to pay a sum of money that may extend to a maximum of one thousand rupees as fine or both together.
According to Section 304 of the IPC, if any individual commits the offence of culpable homicide that does not amount to the offence of murder, then he or she will be given the punishment of life imprisonment or imprisonment that may extend to a maximum period of ten years and will also have to pay a sum of money as fine if the act that caused the death of the victim was committed with the intention of causing the death of the other party or of causing such injury to the body of the victim as would have been likely to have caused the death of the other party. The individual will be given the punishment of imprisonment that may extend to a maximum period of ten years or have to pay a sum of money as fine or both together if knowledge of the likely death of the other party existed at the time when the act was committed but no intention to cause the death of the other party or to cause such injury to the body of the victim as would have been likely to have caused the death of the other party existed in the mind of the individual.
As per Section 312 of the IPC, if any individual wilfully causes a pregnant woman to miscarry and thereby lose her child, if the pregnant woman is at that stage of pregnancy where the movements of the child can be felt, then the punishment will extend to a maximum period of seven years coupled with fine. This punishment is subject to the exception that the miscarriage of the pregnant woman had not been caused in good faith so as to save the life of the woman.
According to Section 313 of the IPC, if any individual wilfully causes a pregnant woman to miscarry and thereby lose her child without the taking the permission of the pregnant woman, they will be punished with either life imprisonment or imprisonment that may extend to a maximum period of ten years coupled with fine regardless of the stage of pregnancy that she had reached at the time of miscarriage.
As per Section 314 of the IPC, if any individual commits an act, with the intention of causing the miscarriage of a pregnant woman that results in the death of the pregnant woman, they will be punished with imprisonment that may extend to a maximum period of ten years coupled with fine.
According to Section 315 of the IPC, if prior to the delivery of a child any individual, with the intention of preventing the child from coming into this world alive or of causing the child to die soon after it comes into this world, carries out an act in furtherance of this intention, then they will be punished with imprisonment that may extend to a maximum period of ten years or have to pay a sum of money as fine or both together.
According to Section 316 of the IPC, if any individual commits an act which results in the death of an unborn child, whose mother was at that stage of pregnancy where the movements of the child could have been felt, then that individual will be held liable for culpable homicide and punished with imprisonment that may extend to a maximum period of ten years coupled with fine if the act that had been committed by the individual would have resulted in culpable homicide under normal circumstances.
As per Section 324 of the IPC, if an individual wilfully causes harm to another person by shooting, stabbing or cutting using any sort of instrument or weapon or uses any sort of fire, heated substance, poison, corrosive substance, explosive substance, substance that is lethal to the body, animal, etc. which is likely to result in the death of the other person, then he or she will be punished with imprisonment that may extend to a maximum period of three years or have to pay a sum of money as fine or both together except in the situation mentioned in Section 334 of the IPC.
According to Section 326 of the IPC, if an individual wilfully causes grave or serious harm to another person by shooting, stabbing or cutting using any sort of instrument or weapon or uses any sort of fire, heated substance, poison, corrosive substance, explosive substance, substance that is lethal to the body, animal, etc. which is likely to result in the death of the other person, then he or she will be punished with either life imprisonment or imprisonment that may extend to a maximum period of ten years coupled with fine except in the situation mentioned in Section 335 of the IPC.
PROTECTION OF MEDICAL PRACTITIONERS FROM LIABILITY UNDER THE IPC
According to the IPC, no act can be considered to be a crime unless it is accompanied with guilty intention. As medical practitioners carry out treatment in good faith for the benefit of the patient, that too with the consent of the patient, most of the Provisions and Sections of the IPC cannot be made applicable to them unless gross negligence can be proved on their part.
The medical profession is quite a risky business as it involves a lot of calculated guess-work on the part of doctors and surgeons. Medical practitioners are often faced with life or death situations in which they have to make decisions in the spur of the moment according to what they think is in the best interest of the patient. However, it is possible that medical practitioners may also err in their judgement or assessment of the situation even though they took all the necessary precautions. It is also possible that their treatment is not successful even though they exercised a reasonable amount of skill and knowledge. This cannot amount to negligence and they cannot be punished for the same. Section 88 and 92 of the IPC thereby protect medical practitioners from criminal liability in such situations.
As per Section 88 of the IPC, an act which had not been committed with intention to cause the death of the other party cannot be considered to be an offence under the IPC regardless of the damage that it may cause to the other party or the damage that it intended to cause to the other party or the damage that was known to be likely to be caused to the other party as long as the other party, for whose benefit the act is being committed in good faith, has given consent expressly or impliedly to suffer the damage or to risk having to suffer the damage.
In the case of Emperor v. Suraj Bali, a medical practitioner conducted a cataract surgery on the eyes of a patient, in good faith for the betterment of the patient, with the full consent of the patient. Thereafter, the patient lost his eyesight. The court held that the doctor could not be held liable for medical negligence.
According to Section 92 of the IPC, no act can be considered to be an offence merely due to the damage that it may cause to the individual, for whose benefit it is being carried out in good faith even though it is being carried out without the consent of the individual, as long as the situation is such that it not in any way possible for the individual to provide his or her consent or if the individual is not capable in any manner of providing consent and also does not have any guardian from whom consent can be obtained in time so that the act can be performed so as to benefit the individual.
Most deaths caused due to professional negligence are registered under Section 304 of the IPC. However, the offence of culpable homicide as provided in this Section is a non bailable. This is often a source of great difficulty for doctors. This may also lead to loss in their reputation even if they are acquitted later on. However, if the death caused due to negligence had been registered under Section 304A of the IPC, the offence would have been a bailable one. The main difference between both the Sections is that in Section 304A, death is caused as a result of negligence whereas in Section 304, the concept of negligence is not present.
Similar judgement was passed in the case of Dr. Mrs. Mrudula S. Deshpande v. State of Maharashtra in which the petitioner was a medical practitioner who was being prosecuted under Section 304 of the IPC in the Sessions Court in Pune. She requested that her case be tried under Section 304A of the IPC instead in the Judicial First-Class Magistrate Court in Pune. This was initially rejected and hence a revision petition was filed. This was allowed and her case was thereafter transferred. The court was therefore of the opinion that if during the trial proceedings, sufficient evidence was produced to show that the charge could be framed under Section 304A of the IPC, then the court had the discretion to pass an order in this regard.
COMPARISON BETWEEN CIVIL AND CRIMINAL MEDICAL NEGLIGENCE
The difference between civil and criminal medical negligence is quite subtle and slightly ambiguous as the Supreme Court of India has nowhere laid down any concrete set of guidelines to differentiate between the two. The only clear distinction that can be seen is that a higher degree of negligence needs to be proved in the former when compared to the latter. Another fact that may be considered is that the amount of damage that was incurred and not the degree of negligence that occurred determines civil liability under negligence whereas the degree of negligence that occurred and not the amount of damage that was incurred determines criminal liability under negligence. This is because in some cases, the patient may have to suffer a lot of harm even though there was only a small amount of negligence on the part of the medical practitioner. It is also possible that there was a huge amount of negligence on the part of the medical practitioner but the patient did not suffer much harm as a result.
In the case of Syad Akbar v. State of Karnataka, the court stated that there was a difference in the proof or evidence that had to be provided under criminal and civil proceedings in order to prove negligence. In civil proceedings, the defendant is not always entitled to benefit of doubt and hence probability of occurrence is often enough to prove civil liability. However, in criminal proceedings, the guilt of the accused has to be proven beyond all reasonable doubt.
In the case of Dr. Suresh Gupta v. Government of NCT Delhi, the Supreme Court held that in order to establish criminal negligence on part of the medical practitioner, it has to be proved that the negligence that had been committed by him or her had been gross or reckless. It was therefore opined by the court that insufficient amount of care and caution or skill and knowledge would make the doctor or surgeon liable under civil law but not under criminal law.
In the case of Andrews v. Director of Public ProsecutionsLord Atkin explained the distinction between the term negligence as seen in civil law as well as criminal law. He was of the opinion that mere lack of care or caution such as would amount to civil liability under negligence was not enough to prove criminal liability under negligence. For the purpose of proving negligence under criminal law as opposed to civil law, an extremely high degree of negligence had to be established in the court of law.
In the case of Riddell v. Reid, Lord Porter opined that a higher degree of negligence was required to be established in order to prove criminal liability under negligence than was necessary to prove civil liability under negligence.
In the case of R. v. Lawrence, it was held by the court that in order to amount to negligence under criminal law, the element of mens rea was also quite important and could therefore not be excluded.
OTHER LAWS THAT GOVERN MEDICAL PRACTITIONERS AND HOSPITALS IN INDIA
Apart from the IPC, the Provisions and Sections of various other Acts are also applicable to medical practitioners and hospitals. These Statutes will also be taken into consideration while determining the liability of doctors and surgeons and whether the act that they committed would fall under the term negligence or not. The punishment for violation of these Provisions and Sections has been provided within these Statutes itself. However, in certain situations, Provisions and Sections of the IPC can also be used in order to file cases against medical practitioners for violation of these Statutes. The most important laws that govern the medical profession in our country are:
Indian Medical Council Act, 1956:
The Indian Medical Council Act contains provisions for the reconstruction of the Medical Council of India (MCI) and the upkeep of a Medical Registrar for the country. The Medical Council of India controls the registration of medical practitioners, starting of medical colleges, change in number of courses or seats, etc. and also ensures that the standard of medical education as well as medical practitioners conforms to the requisite standards.
Medical Termination of Pregnancy Act, 1971:
The Medical Termination of Pregnancy Act provides a legal framework for the termination of unwanted pregnancies for a wide range of reasons such as health risk to the mother or child, occurrence of pregnancy due to rape or failure of contraceptives, etc. by well qualified medical practitioners until the unborn child reaches 20 weeks. The Act regulates who can terminate, till when it can be terminated, where it can be terminated, etc.
The Consumer Protection Act, 1986:
The Consumer Protection Act was passed in order to protect and promote the rights and interests of the consumers in our country and to ensure that they receive a fair deal. The Act also provides redressal mechanisms so as to address the grievances of the consumers and provide them speedy remedy and compensation for their loss.
Transplantation of Human Organs and Tissues Act, 1994:
The Transplantation of Human Organs and Tissues Act provides a legal framework in order to regulate and control the removal, storage as well as transplantation of human organs for the purpose of conducting surgeries and operations so as to save the lives of people. It also strives to place impediments on the business of human organ sale as a way to make quick money.
Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994:
The Pre-Conception and Pre-Natal Diagnostic Techniques Act was passed in order to prevent sex selection, both before and after the conception of the child, as well as sex selective abortion of female foetuses in the country. This Act hence bans sex determination of the unborn child in any manner whatsoever.
Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002:
The Indian Medical Council Regulations prescribes the work ethics that have to be followed by medical practitioners such as doctors and surgeons. The code of conduct to be followed by them such as keeping medical records, having good medical practices, having good character, showcasing registration number, using common name of medicines, etc. as well as their duties are also specified in these Regulations.
SAFEGUARDS TO BE TAKEN BY MEDICAL PRACTITIONERS IN ORDER TO AVOID CRIMINAL PROSECUTION
As the number of cases that are filed nowadays alleging medical negligence on the part of doctors and surgeons are on the rise, medical practitioners as well as hospitals have to become more careful than they were before so as to not undergo criminal prosecution for medical negligence. They need to take certain steps and observe certain precautions for this. The precautions that have to be taken by them as laid down by the Supreme Court in the case of Martin F. D’Souza v. Mohammad Ishfaq are as follows:
- The practices that are currently followed, infrastructure, paramedical and other staff, hygiene and cleanliness as well as sterility in the hospital and its premises ought to be watched carefully.
- No prescription ought to ordinally be given without actual examination and assessment thereof. The practice of giving prescriptions through phone or other such media rather than in person, except in emergency situations, ought to be avoided as far as possible.
- A medical practitioner ought not to simply believe the symptoms stated by the patient as fact but rather ought to validate the same by conducting the requisite tests and assessing the results thereafter.
- A medical practitioner ought not to experiment while treating patients unless it is absolutely required and even in this scenario, he or she ought to obtain the consent of the patient for the same in writing.
- A specialist in that field of study or an expert in that area of medicine ought to be consulted in case any doubt arises during the course of treatment.
- A complete record of the diagnostics and treatment provided by the medical practitioner as well as other relevant details pertaining to the patient ought to be maintained at the hospital for future reference.
CONCLUSION AND SUGGESTIONS
Medical negligence is the negligent treatment of a patient by the medical practitioner treating him or her. A medical practitioner can be held liable for criminal medical negligence under Section 304A, 337 or 338 of the IPC. Cases for criminal medical negligence can also be filed by patients against the doctor treating them under Section 304, 312, 313, 314, 315, 316, 324 and 326 of the Code. The first three Sections specifically mention the term negligence whereas the other eight Sections do not. They are general in nature and hence do not cater to negligence cases alone. Medical practitioners carry out treatment in good faith with the consent of the patient and hence protection of medical practitioners from liability under criminal medical negligence is provided under Section 88 and 92 of the Code. There exist two kinds of liability under medical negligence: civil and criminal. In India, even though civil medical negligence cases are comparatively easy to prove, criminal medical negligence cases are extremely difficult to prove. Due to this, it is very hard to hold a doctor or a surgeon criminally liable for their negligence. Even though this often protects medical practitioners from unnecessary prosecution and punishment, it might act against the interests of patients in certain other cases. This is because there exist certain cases in which even after committing negligent acts that have caused severe harm to the patient, the patient was not able to prove beyond reasonable doubt that the medical practitioner had been grossly negligent. This should change.
Also, the difference between civil and criminal medical negligence is minimal and ambiguous in certain respects. This is because no concrete guidelines have been laid down to differentiate between the two. It would definitely be appreciated if proper guidelines for the same were established. As of now, medical negligence cases can be filed under civil law, criminal law or both together. This may waste the time of the court, the patient as well as the doctor. Instead, like in most other cases, patients should be asked to choose under what law they would like to file their case. Also, speaking from the point of view of medical practitioners, death of patients caused as a result of negligence on part of the doctor or surgeon should be filed under Section 304A of the IPC rather than Section 304 of the IPC. This is because culpable homicide that does not amount to the offence of murder is a non bailable offence whereas death due to negligence is a bailable offence. Medical practitioners, who carry out service for the benefit of their patients, should be given this consideration even though their negligent act resulted in the death of their patient.
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Emperor v. Omkar Rampratap, (1902) 4 Bom LR 679.
Supra 1, at 24.
Whitehouse v. Jordan, (1981) 1 All ER 261 (HL).
Laxman Balkrishna Joshi (Dr.) v. Dr. Trimbak Bapun Godbole, AIR 1969 SC 128.
Juggan Khan v. State of Madhya Pradesh, AIR 1965 SC 831.
P. N. D’Souza V Emperor, AIR 1920 All 32.
Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.
Ram Nivas v. State of Uttar Pradesh, (1998) Cr LJ 635.
Khusaldas v State of Madhya Pradesh, AIR 1960 MP 50.
Bhargava Giriyappa v. Emperor, AIR 1916 Bom 98 (2).
Gulam Hyder Punjabi v. Emperor, AIR 1915 Bom 101.
Supra 7, at 117.
Emperor v. Suraj Bali, (1908) 5 ALJ 155.
Dr. Mrs. Mrudula S. Deshpande v. State of Maharashtra, (2001) 3 BOM LR 205.
Supra 1, at 24.
Syad Akbar v. State of Karnataka, 1979 AIR 1848.
Dr. Suresh Gupta v. Government of NCT Delhi, (2004) 6 SCC 422.
Andrews v. Director of Public Prosecutions, (1937) 2 All ER 552 (HL).
Riddell v. Reid, (1943) AC 1 (HL).
M. R. Hariharan Nair, Supreme Court Judgement on Criminal Medical Negligence: A Challenge to the Profession, IJME 110, 110-111 (2005).
Martin F. D’Souza v. Mohammad Ishfaq, (2009) 3 SCC 1.