Medical negligence - Good faith -Tort - Profession - Res ipsa loquitur - Guideline - Prosecute - Doctor - Supreme Court

Cited:

1) Dr. Suresh Gupta v. Govt. of NCT of Delhi and Anr. (2004) 6 SCC 422

2) Law of Torts, Ratanlal & Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P. Singh)

3) Charlesworth & Percy on Negligence (Tenth Edition, 2001)

4) R. v. Lawrence, [1981] 1 All ER 974 (HL)

5) Andrews v. Director of Public Prosecutions, [1937] A.C. 576

6) Syad Akbar v. State of Karnataka (1980) 1 SCC 30

7) Reg v. Idu Beg (1881) 3 All. 776

8) Bhalchandra Waman Pathe v. State of Maharashtra 1968 Mh.L.J. 423

9) Michael Hyde and Associates v. J.D. Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J.

10) Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R.

582, 586'

11) Eckersley v. Binnie, [1988] 18 Con. L.R. 1, 79 

12) Halsbury’s Laws of England (Fourth Edition, Vol.30, Para 35)

13) Hucks v. Cole, [1968] 118 New U 469

14) Maynard v. West Midlands Regional Health Authority, [1985] 1 All ER 635 (HL)

15) Hunter v. Hanley 1955 SLT 213 at 217

16) Krishnan and Anr. v. State of Kerala (1996) 10 SCC 508 

17) Roscoe’s Law of Evidence (Fifteenth ‘Edition) 

18) Privy Council in John Oni Akerele v. The King AIR 1943 PC 72

19) Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra (1965) 2 SCR 622

20) Emperor v. Omkar Rampratao 4 Bom LR 679

21) Kishan Chand & Anr. v. The State of Haryana (1970) 3 SCC 904

22) Juggankhan v. The State of Madhya Pradesh (1965) 1 SCR 14

23) Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr. (1969) 1 SCR 206

24) Indian Medical Association v. V.P. Shantha and Ors. (1995) 6 SCC 651

25) Poonam Verma v. Ashwin Patel and Ors., (1996) 4 SCC 332

26) Achutrao Haribhau Khodwa and Ors. v. State of Maharashtra and Ors. (1996) 2 SCC 634 

27) M/s Soring Meadows Hospital and Anr. Hariol Ahluwalia through K.S. Ahluwalia and Anr. (1998) 4 SCC 39

28) Whitehouse & Jorden, [1981] 1 ALL ER 267

29) State of Harvana and Ors. v. Smt. Santra, (2000) 5 see 182

In The Supreme Court Of India

Criminal Appellate Jurisdiction - Criminal Appeal Nos.144-145 Of 2004

Jacob Mathew (Appellant)

Versus

State of Punjab & Anr. (Respondents)

R.C. Lahoti, CJI

The gist of the information is that on 15.2.1995, the informant’s father, late Jiwan Lal Sharma was admitted as a patient in a private ward of CMC Hospital, Llldhiana. On 22.2.1995 at about 11 p.m., Jiwan Lal felt difficulty in breathing. The complainant’s elder brother, Vijay Sharma 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 to 25 minutes. Then, Dr. Jacob Mathew, the appellant before us and Dr. Allen Joseph came to the, room of the patient. An 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 the 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. Vijay Sharma went to the adjoining room and brought a gas cylinder there from. However, there was no arrangement to make the gas cylinder functional and in-between; 5 to 7 minutes were wasted. By this time, another doctor came who declared that the patient was dead.

Negligence as a tort

The jurisprudential concept of negligence defies any precise definition. Eminent "jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential: thought is well stated in the Law of Torts, Ratanlal & Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P. Singh). It is stated (atp.441-442) - "Negligence is the breach of a duty caused by the 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. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property............The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort.”

According to Charlesworth & Percy on Negligence (Tenth Edition, 2001), in current forensic speech, negligence has three meanings. They are: (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but anyone of them does not necessarily exclude the other meanings. (Para 1.01) The essential components of negligence, as recognized, are three: "duty”, "breach” and "resulting damage”, that is to say:-

1. the existence of a duty to take care, which is owed by the defendant to the complainant;

2. the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and

3. damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant. (Para 1.23)

If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence. (Para 1.24)

Negligence - as a tort and as a crime

The term ‘negligence’ is used for the purpose of fastening the defendant with liability under the Civil Law and, at times, under the Criminal Law. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence upto the modern times. Generally speaking, it ‘is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in Criminal Law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in Civil Law. The essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence.

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Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

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Negligence by Professionals

In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result.

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Deviation from normal practice is not necessarily evidence of negligence. ‘To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had her been acting with ordinary care.”

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To impose criminal liability under Section 304-A, 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 the proximate and efficient cause without the intervention of another’s negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non.

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Guidelines - Re: prosecuting medical Professionals

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 donor 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 leveled against him). Unless his arrest is necessary for furthering the investigation or for collectin9 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.