1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 21 OF 2009
1 Dr. Prasanna s/o Sudhakarrao Deshmukh..
age 34 years, occ. Medical Practice
r/o BD-6, Kasliwal Angan, Ulka Nagari
Aurangabad
Dist. Aurangabad.
2 Sunita d/o Bansi Bhalerao
age 23 years, occ. Service
r/o Gautam nagar, Opp. Govt. Milk Dairy
Aurangabad.
3 Madhav s/o Trimbak Chavan
age 27 years, occ. Service
r/o Aurangabad. .. PETITIONERS
VERSUS
1 State of Maharashtra
2 Amar s/o Wamanrao Deshmukh
age 19 years, occ. Education
r/o c/o Dr. P.A. Deshmukh,
Khokadpura, Aurangabad. .. RESPONDENTS
Shri V.J. Dixit, Senior Counsel holding for Shri S.Y. Mahajan, Advocate for the
petitionres.
Shri V.H. Dighe, APP for the State.
Shri S.J. Salunke, Advocate holding for Shri V.D. Salunke, Advocate for
respondent no. 2.
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CORAM : R. M. BORDE, J.
DATE : 25 June, 2009.
th
ORAL JUDGMENT :
1 Heard Shri V.J. Dixit, learned Senior Counsel holding for Shri S.Y.
Mahajan, learned counsel for the appellants, Shri V.H. Dighe, learned APP for
the State and Shri S.J. Salunke, learned counsel holding for Shri V.D. Salunke,
learned counsel for respondent no. 2.
2 Petition was taken up for admission on 28-4-2009. After hearing the
arguments for some time, it was agreed by the parties that the petition can
be disposed of at admission stage. As such, the matter came to be posted
to 15-6-2009. Today the petition is taken up for final hearing. Rule. Rule
made returnable forthwith. With the consent of the parties, the matter is
taken up for final disposal at admission stage.
3 Petitioner no. 1 is a Medical Practitioner and is a director of Sai
Hospital and Critical Care Unit situate in Samarth Nagar, Aurangabad. He
holds post graduate degree in medicine and is also an intensivist. Other
petitioners are the employees of the Sai Hospital. Petition is presented
seeking relief in respect of quashment of the criminal proceeding initiated
against the petitioner on registration of Crime No. 555/2008 at Kranti Chowk
police station, Aurangabad for offences punishable under section 304-A, 201
r/w section 34 of the Indian Penal Code. It is alleged in the First Information
Report that patient by name Shweta Wamanrao Deshmukh was referred to
the hospital for treatment by one Dr. Shahpurkar who had diagnosed her as
suffering from falciparum malaria. Dr. Shahpurkar is also a post graduate
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degree holder in medicine. On pathological examination, he has reached
the diagnosis that the patient is suffering from falciparum malaria. On
admission of the patient, it is contended that she was prescribed medicine
quinine tablet. However, she refused to take the drug. As such, it was noted
on the case paper accordingly. It transpires that during the night time,
quinine was injected to her. However, she developed symptom of Cardiac
Toxicity. She was moved to Intensive Care Unit. However, she expired at 1.45
hours.
4 Complainant is the brother of the deceased who has alleged that
deceased was sensitive to anti-malarial drug i.e. quinine and had refused to
take the tablet. Doctors have exhibited callousness and negligence in
administering quinine through intra venous mode. According to the
informant, the drug quinine was administered to the patient by the nurse
through intra venous mode. Doctor was not present when the drug was
administered. After the death of patient, the doctors advised against
conducting post mortem examination. As such, no post mortem
examination was conducted. It is alleged that death of the patient is as a
result of negligence on the part of the doctors. Death of the patient
occurred on 14-9-2008 whereas the First Information Report is lodged by
brother of the deceased on 5-12-2008. It is stated that police have
completed the investigation and the charge sheet is also presented to the
court.
5 Copy of the report submitted by the Expert Committee conducting
enquiry in respect of the circumstances leading to the death of deceased
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Shweta is placed on record. The Committee consists of three medical
professionals. On perusal of the papers, the Expert Committee has
concluded that the patient was suffering from Falciparum malaria and at
the time of admission of the patient her vital parameters were normal. The
Committee reached conclusion that the patient was not suffering from
cerebral Malaria and the death certificate issued in that behalf does not
appear to be correct. It is noted in the report that the case papers reveal
that at 1.40 pm doctor issued instructions for administering quinine injection
600 mg in 1. slowly over 6 hours. However, after administration of drug, the
patient became serious and died at 1.45 am. At the stage of hearing of the
petition, final report of Enquiry Committee is also placed on record on which
reliance is placed by the respondent. In the final report also the Committee
of doctors have confirmed the initial diagnosis that the patient was suffering
from falciparum malaria and was not having cerebral malaria. Death of the
patient can be attributed to administration of drug quinine. The Committee
has opined that there occurs reaction to the drug quinine in rare
circumstances, but such possibilities cannot be overlooked totally. The
Committee could not conclude as to whether the drug was administered
through drip or was pushed by intra venous mode as contended by the
relatives of the petitioner. However, if the drug is pushed by intra venous
mode, it may result in death of the patient.
6 Shri Dixit, learned senior counsel appearing for the petitioner has
vehemently contended that the petitioner no. 1, physician administering the
treatment, was qualified and was competent to administer the treatment.
Diagnosis of the patient was also correct and the available mode of
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treatment for treating malaria is administration of drug quinine. It is
contended that even if it is assumed that the patient was not suffering from
cerebral malaria, however, the mode of treatment does not change. The
prescribed drug for treating falciparum malaria as well as cerebral malaria is
quinine. The drug quinine may also cause Cardiac Toxicity which has also
been noted by the Expert Committee. However, the patient is likely to react
to a drug in different manner and if the death of the patient in the instant
matter even if assuming is attributable to administration of anti malaria drug
i.e. quinine by intra venous mode, no gross negligence can be attributed to
the physician. He further contends that there is difference between ‘civil
liability’ and ‘criminal negligence’. It is contended that in order to attract
culpability under section 304-A of the Indian Penal Code, it is to be
demonstrated that negligence and recklessness is of such a high degree so
as to term as ‘gross’. The expression ‘rash and negligent act’ as occurring in
section 304-A of the Indian Penal Code is to be read as qualified by word
‘grossly’. He contends that a medical professional can be held liable for
negligence on one of the two findings; either he does not possess all the
requisite skill which he professed to have possessed or, he does not exercise
with reasonable competence in the given case the skill which he possesses.
In the instant matter, the petitioner is a qualified medical practitioner
possessing post graduate degree in medicine. Diagnosis of the patient was
correct so also the line of treatment adopted also cannot be termed
erroneous. In such circumstances, it is contended that no negligence is
attributable to the petitioner. He further contends that even if liability is
required to be fasten, it may be under civil law. A professional may be liable
under civil law (or may not be) but the accused / petitioner cannot be
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prosecuted under section 304-A of the Indian Penal Code on the
parameters of Bolam’s case.
7 Per contra, it has been urged by learned counsel appearing for the
complainant that the petitioner has not exhibited the degree of professional
skill as is expected from a medical professional. According to him,
deceased was a student of first year BAMS course and she had informed the
doctor that she is sensitive to drug quinine. However, inspite of this fact,
administration of drug quinine to the patient, amounts to culpable
negligence. It is contended that the drug was pushed through vein and, the
petitioner no. 1, treating physician was not present when the drug was
administered. This, according to the learned counsel for the complainant,
amounts to gross negligence, and, as such, the petitioners are liable to be
prosecuted.
8 In order to appreciate the arguments advanced by the learned
counsel, it would be appropriate to refer to the judgments laying down the
principles in respect of medical negligence requiring prosecution of the
medical professional.
. In the mater of Dr. Suresh Gupta vs. Govt. of N.C.T. Of Delhi and
another reported in 2004 AIR sCW 4442, initiation of criminal proceeding
against the medical professional was questioned and quashment of the
proceeding was sought taking recourse to provisions of section 482 of the
Code of Criminal Procedure. In the reported matter the patient, a young
man not having history of heart ailment was subjected to operation
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performed by Dr. Suresh Gupta for nasal deformity. The operation was
neither complicated nor serious. The patient died. On investigation, the
cause of death was found to be “not introducing a cuffed endotracheal
tube of proper size” so as to prevent aspiration of blood blocking respiratory
passage. The court found that the act attributable to the doctor even if
accepted to be true, can be described as an act of negligence as there
was lack of due care and precaution. For this act of negligence, he may be
liable in tort, as carelessness or want of due attention and skill cannot be
described to be so reckless or grossly negligent so as to make him criminally
liable. Taking parallel from Gupta’s case (cited supra) it is canvassed that in
the given set of facts, a medical professional may be liable in tort but cannot
be made criminally liable. Reliance is placed on the observations of the
Apex court in paragraph nos. 20 to 26 of the judgment :
20 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. v. 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.”
21 Thus, when a patient agrees to go for medical
treatment or surgical operation, every careless act of
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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.
22 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.
23 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.
24 No doubt in the present case, the patient was
a young man with no history of any heart ailment. The
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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
would 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.
25 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 offfence,
the standard should be proof of recklessness and
deliberate wrong doing i.e. A higher degree of morally
blameworthy conduct.
26 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.
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. In this context, reference can be made to a leading judgment of the
Apex court concerning the subject in the matter of Jacob Mathew vs. State
of Punjab and another reported in AIR 2005 Supreme Court 3180. In the
reported matter also criminal proceedings for commission of offence
punishable under section 304-A of the Indian Penal Code were initiated
against the medical professional on the allegations that the informant’s
father was admitted as patient in a private ward of CMC Hospital, Ludhiana.
On 22-2-1999 at 11.00 pm he felt difficulty in breathing. Complainant’s elder
brother contacted the duty nurse who in turn called the doctor to attend
the patient. However, the doctor did not turn up for 20 to 25 minutes. Then
Dr. Jacob Mathew and other doctor came to the room of the patient.
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. Oxygen cylinder was
found to be empty. There was no other gas cylinder available in the room.
One Vijay went to the adjoining room and brought gas cylinder. Thus, there
was no arrangement to make the gas cylinder functional and in between 5
to 6 minutes time was wasted. By the time, another doctor came who
declared the patient as dead. According to the complainant, the treating
doctors were negligent and as such were liable to be prosecuted under
section 304-A r/w section 34 of the Indian Penal Code. While dealing with
the matter, the Apex court has drawn distinction between ‘negligence as
tort’ and ‘negligence as crime’. The Apex court has extensively dealt with all
the aspects of negligence by the professionals and has laid down that every
type of negligence is not actionable in criminal law. In order to prosecute a
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medical professional even if section 304-A of the Indian Penal Code does
not refer to the word ‘gross’ the same is to be read into section and the
expression rash or negligent act occurring in section 304-A of the Indian
Penal Code is to be read as qualified by word ‘grossly’. The Apex court has
also ruled that the principle of res ipsa loquitur cannot be pressed in service
for determining per se liability for negligence within the domain of criminal
law. The points those arose for consideration before the Apex court were i) is
there difference in civil and criminal law on the concept of negligence and;
ii) whether a different stand is applicable for recording a finding of
negligence when a professional, in particular a doctor is to be held guilty of
negligence. Negligence is defined in Law of Torts, Ratanlal & Dhirajlal
(Twenty fourth Edition 2002) as :
. “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
pat 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.”
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12 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
any one 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 reach and recognized by
the law, has been suffered by the complainant.
. The Apex court has observed in paragraph no. 15 of the judgment
thus :
15. In order to hold the existence of criminal rashness
or criminal negligence it shall have to be found out that
the rashness was of such a degree as to amount to taking
a hazard knowing that the hazard was of such a degree
that injury was most likely imminent. The element of
criminality is introduced by the accused having run the
risk of doing such an act with recklessness and
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13speech in Andrews v. Director of Public Prosecutions,
[1937] AC 576, stated, “Simple lack of care – such as willconstitute civil liability is not enough; for purposes of the
criminal law there are degrees of negligence; and a veryhigh degree of negligence is required to be proved
before the felony is established.” Thus, a clear distinction
exists between “simple lack of care” incurring civil liability
and “very high degree of negligence” which is requiredin criminal cases. Lord Porter said in his speech in the
same case — “A higher degree of negligence has always
been demanded in order to establish a criminal offence
than is sufficient to create civil liability. (Charlesworth &Percy, idbi, Para 1.13)
.
While dealing with the concept of negligence by a medical
professional, the Apex court has observed in the judgment thus :
26 A mere deviation from normal professional practice
is not necessarily evidence of negligence. Let it also be
noted that a mere accident is not evidence ofnegligence. So also an error of judgment on the part of a
professional is not negligence per se. Higher the
acuteness in emergency and higher the complication,
ore are the chances of error of judgment. At times, the
professional is confronted with making a choice betweenthe devil and the deep sea and he has to choose the
lesser evil. The medical professional is often called upon
to adopt a procedure which involves higher element of
risk, but which he honestly believes as providing greater
chances of success for the patient rather than aprocedure involving lesser risk but higher chances of
failure. Which course is more appropriate to follow, would
depend on the facts and circumstances of a given case.
The usual practice prevalent now-a-days is to obtain the
consent of the patient or of the person incharge of the
patient if the patient is not be in a position to give consent
before adopting a given procedure. So long as it can be
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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.
27 No sensible professional would intentionally commit
an act or omission which would result in loss or injury to the
patient as the professional reputation of the person is at
stake. A single failure may cost him dear in his career.
Even in civil jurisdiction, the rule of res ipsa loquitur is not of
universal application and has to be applied with extreme
care and caution to the cases of professional negligence
and in particular that of the doctors. Else it would be
counter productive. Simply because a patient has not not
favourably responded to a treatment given by a physician
or a surgery has failed, the doctor cannot be held liable
per se by applying the doctrine of res ipsa loquitur.
28 Res ipsa loquitur is a rule of evidence which in
reality belongs to the law of torts. Inference as to
negligence may be drawn from proved circumstances by
applying he rule if the cause of the accident is unknown
and no reasonable explanation as to the cause is coming
forth from the defendant. In criminal proceedings, the
burden of proving negligence as an essential ingredient of
the offence lies on the prosecution. Such ingredient
cannot be said to have been proved or made out by
resorting to the said rule (See Syad Akbar v. State of
Karnataka (1980) 1 SCC 30). Incidentally, it may be
noted that in Krishnan and Anr. v. State of Kerala (1996) 10
SCC 508 the Court has observed that there may be a
case where the proved facts would themselves speak of
sharing of common intention and while making such
observation one of the learned judges constituting the
Bench has in his concurring opinion merely stated “res ipsa
loquitur”. Nowhere it has been stated that the rule has
applicability in a criminal case and an inference as to an
essential ingredient of an offence can be found proved
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by resorting to the said rule. In our opinion, a case under
Section 304A IPC cannot be decided solely by applying
the rule of res ipsa loquitur.
29 A medical practitioner faced with an emergency
ordinarily tries his best to redeem the patient out of his
suffering. He does not gain anything by acting with
negligence or by omitting to do an act.
Obviously,therefore, it will be for the complainant to
clearly make out a case of negligence before a medical
practitioner is charged with or proceeded against
criminally. A surgeon with shaky hands under fear of legal
action cannot perform a successful operation and a
quivering physician cannot administer the enddose of
medicine to his patient.
30 If the hands be trembling with the dangling fear of
facing a criminal prosecution in the event of failure for
whatever reason – whether attributable to himself or not,
neither a surgeon can successfully wield his life-saving
scalper to perform an essential surgery, nor can a
physician successfully administer the life-saving dose of
medicine. Discretion being better part of valour, a
medical professional would feel better advised to leave a
terminal patient to his own fate in the case of emergency
where the chance of success may be 10% (or so), rather
than taking the risk of making a last ditch effort towards
saving the subject and facing a criminal prosecution if his
effort fails. Such timidity forced upon a doctor would be
a disservice to the society.
31 The purpose of holding a professional liable for his
act or omission, if negligent, is to make the life safer and to
eliminate the possibility of recurrence of negligence in
future. Human body and medical science both are too
complex to be easily understood. To hold in favour of
existence of negligence, associated with the action or
inaction of a medical professional, requires an in-depth
understanding of the working of a professional as also the
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nature of the job and of errors committed by chance,
which do not necessarily involve the element of
culpability.
32 The subject of negligence in the context of
medical profession necessarily calls for treatment with a
difference. Several relevant considerations in this regard
are found mentioned by Alan merry and Alexander
McCall Smith in their work “Errors, Medicine and the
Law” (Cambridge University Press, 2001). There is a
marked tendency to look for a human actor to blame for
an untoward event a tendency which is closely linked with
the desire to punish. Things have gone wrong and,
therefore, somebody must be found to answer for it. To
draw a distinction between the blameworthy and the
blameless, the notion of mens rea has to be elaborately
understood. An empirical study would reveal that the
background to a mishap is frequently far more complex
than may generally be assumed. It can be demonstrated
that actual blame for the outcome has to be attributed
with great caution. For a medical accident or failure, the
responsibility may lie with the medical practitioner and
equally it may not. The inadequancies of the system, the
specific circumstances of the case, the nature of human
psychology itself and sheer chance may have combined
to produce a result in which the doctor’s contribution is
either relatively or completely blameless. Human body
and its working is nothing less than a highly complex
machine. Coupled with the complexities of medical
science, the scope for misimpressions, misgivings and
misplaced allegations against the operator i.e. The
doctor, cannot be ruled out. One may have notions of
best or ideal practice which are different from the reality
of how medical practice is carried on or how in real life
the doctor functions. The factors of pressing need and
limited resources cannot be ruled out from consideration.
Dealing with a case of medical negligence needs a
deeper understanding of the practical side of medicine.
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. Conclusions are drawn in paragraph no. 49 of the judgment. Those
are :-
49 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 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
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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 WLR 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
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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 at’ as occurring in Section304A 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.
. While dealing with the case in hand, the Apex court has recorded
that the averments made in the complaint ( in reported judgment) even if
held to be proved do not make out case of criminal rashness or negligence
on the part of accused / appellant. It is not the case of the complainant
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that the accused / appellant was not a doctor qualified to treat the patient
whom he agreed to treat. It is a case of non-availability of oxygen cylinder
either because of hospital having failed to keep available the gas cylinder
or because of gas cylinder being found empty. Then, probably the hospital
may be liable in civil law (or may not be) but the accused appellant cannot
be proceeded against under Section304A IPC on the parameters of Bolam’s
test.
9 In the instant case also, petitioner no. 1, treating physician, is qualified
to administer treatment. He possesses adequate degree of knowledge as
well as skill to treat the patients. Diagnosis of the physician that the patient
was suffering from malaria cannot be said to be incorrect. It is also not
disputed that quinine is the drug prescribed for treating the ailment. Even if,
assuming that the patient was not suffering from cerebral malaria, there is no
duel opinion that for treating patient for falciparum malaria or cerebral
malaria, the drug which is generally administered is quinine. The Committee
has also observed in the report that the doctor had directed to administer
the drug slowly over a period of six hours. It is also not unknown that the
drug has a side effect of (Cardiac Toxicity). In such circumstances, merely
because the doctor was not present when the injection was administered,
could not be the reason for holding him liable under criminal law. It is also
reported by the Committee citing reference to the authority on the subject
“Goodman and Gilman’s The Pharmacological Basis of Therapeutics, 11
th
Edn., page no. 1038-1039” that quinine is the choice of treatment for
resistance of falciparum malaria despite its antiquity and considerable
toxicity. It is also noted in the text that the drug may cause Cardio Vascular
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complications. It is thus clear that the line of treatment adopted by the
doctor was correct and the drug usually administered has side effect in
respect of Cardiac Toxicity. In this situation therefore, merely because the
patient reacted adversely on administration of drug cannot be attributed to
the treating physician and in any case he cannot be held liable for criminal
negligence.
10 Learned counsel for the complainant has placed reliance on a
judgment in the matter of Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu
Godbole and another reported in AIR 1969 Supreme Court 128. Reported
matter is in respect of tortuous liability and is not relevant for the purpose of
determination of criminal liability of the medical professional. Learned
counsel for the complainant has also placed reliance on a judgment in the
matter of Dr. Jacob Mathew to which reference has been made in the
instant judgment quite extensively. It is contended that the negligence
exhibited by the doctor is gross negligence and as such, proceeding cannot
be quashed. However, considering the facts and circumstances of this
case, I am of the opinion that the petitioners cannot be held criminally liable
for the act alleged against them. On careful consideration of the
parameters laid down by the Apex court while dealing with the aspect of
fastening criminal liability against the medical professionals, I am of the
opinion that the petitioner herein cannot be held responsible for commission
of offence under section 304-A of the Indian Penal Code. Criminal
proceedings initiated at the instance of the complainant / respondent no. 2
herein therefore are required to be quashed. In the result the petition
deserves to be allowed and the same is accordingly allowed. Criminal
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proceeding initiated against the accused pursuant to registration of Crime
No. 555/08 registered at Kranti Chowk police station, Aurangabad and the
proceedings taken up before the court in pursuance to presentation of the
charge-sheet in the matter are quashed and set aside. Rule is accordingly
made absolute.
( R. M. BORDE, J.)
dyb/office/cwp21.09.odt
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