{"id":139555,"date":"2009-06-25T00:00:00","date_gmt":"2009-06-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/3-madhav-vs-2-amar-on-25-june-2009"},"modified":"2019-02-16T08:18:37","modified_gmt":"2019-02-16T02:48:37","slug":"3-madhav-vs-2-amar-on-25-june-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/3-madhav-vs-2-amar-on-25-june-2009","title":{"rendered":"3 Madhav vs 2 Amar on 25 June, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
3 Madhav vs 2 Amar on 25 June, 2009<\/div>\n
Bench: R. M. Borde<\/div>\n
                                                 1\n\n                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY,\n                                   BENCH AT AURANGABAD \n\n\n\n\n                                                                                   \n                           CRIMINAL WRIT PETITION NO. 21 OF 2009\n\n\n\n\n                                                           \n     1      Dr. Prasanna s\/o Sudhakarrao Deshmukh..\n            age 34 years, occ. Medical Practice\n\n\n\n\n                                                          \n            r\/o BD-6, Kasliwal Angan, Ulka Nagari\n            Aurangabad\n            Dist. Aurangabad.\n\n\n\n\n                                            \n     2      Sunita d\/o Bansi Bhalerao\n            age 23 years, occ. Service\n                          \n            r\/o Gautam nagar, Opp. Govt. Milk Dairy\n            Aurangabad.\n                         \n     3      Madhav s\/o Trimbak Chavan\n            age 27 years, occ. Service\n            r\/o Aurangabad.                                                      ..  PETITIONERS\n      \n\n\n     VERSUS\n   \n\n\n\n     1      State of Maharashtra\n\n\n\n\n\n     2      Amar s\/o Wamanrao Deshmukh\n            age 19 years, occ. Education\n            r\/o c\/o Dr. P.A. Deshmukh,\n            Khokadpura, Aurangabad.                                          .. RESPONDENTS\n\n\n\n\n\n     Shri V.J. Dixit, Senior Counsel holding for Shri S.Y. Mahajan, Advocate for the \n     petitionres.\n     Shri V.H. Dighe, APP for the State.\n     Shri   S.J.   Salunke,   Advocate   holding   for   Shri   V.D.   Salunke,   Advocate   for \n     respondent no. 2.\n                                                                 =====\n\n\n\n\n                                                           ::: Downloaded on - 09\/06\/2013 14:43:11 :::\n                                                      2\n\n                                                                CORAM :  R. M. BORDE, J.\n<\/pre>\n
                                                                DATE     :   25  June, 2009.\n                                                                                th\n\n\n\n\n                                                                                        \n     ORAL JUDGMENT :\n\n\n\n\n                                                               \n     1       Heard   Shri   V.J.   Dixit,   learned   Senior   Counsel   holding   for   Shri   S.Y. \n\n<\/pre>\n
     Mahajan, learned counsel for the appellants, Shri V.H. Dighe, learned APP for <\/p>\n
     the State and Shri S.J. Salunke, learned counsel holding for Shri V.D. Salunke, <\/p>\n
     learned counsel for respondent no. 2.\n<\/p>\n
     2       Petition was taken up for admission on 28-4-2009.   After hearing the <\/p>\n
     arguments for some time, it was agreed by the parties that the petition can <\/p>\n
     be disposed of at admission stage.  As such, the matter came to be posted <\/p>\n
     to 15-6-2009.   Today the petition is taken up for final hearing.   Rule.   Rule <\/p>\n
     made returnable forthwith.   With the consent of the parties, the matter is <\/p>\n
     taken up for final disposal at admission stage.\n<\/p>\n
     3       Petitioner   no.   1   is   a   Medical   Practitioner   and   is   a   director   of   Sai <\/p>\n
     Hospital and Critical Care Unit situate in Samarth Nagar, Aurangabad.   He <\/p>\n
     holds  post graduate  degree  in  medicine  and is  also  an  intensivist.   Other <\/p>\n
     petitioners   are   the   employees   of   the   Sai   Hospital.     Petition   is   presented <\/p>\n
     seeking relief in respect of quashment of the criminal proceeding initiated <\/p>\n
     against the petitioner on registration of Crime No. 555\/2008 at Kranti Chowk <\/p>\n
     police station, Aurangabad for offences punishable under section 304-A, 201 <\/p>\n
     r\/w section 34 of the Indian Penal Code.  It is alleged in the  First Information <\/p>\n
     Report that patient by name Shweta Wamanrao Deshmukh was referred to <\/p>\n
     the hospital for treatment by one Dr. Shahpurkar who had diagnosed her as <\/p>\n
     suffering from falciparum malaria.   Dr. Shahpurkar is also a post graduate <\/p>\n
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\n                                                     3<\/span><\/p>\n
     degree holder in medicine.  On pathological examination, he has reached <\/p>\n
     the   diagnosis   that   the   patient   is   suffering   from   falciparum   malaria.     On <\/p>\n
     admission of the patient, it is contended that she was prescribed medicine <\/p>\n
     quinine tablet.   However, she refused to take the drug.  As such, it was noted <\/p>\n
     on   the   case   paper   accordingly.     It   transpires   that   during   the   night   time, <\/p>\n
     quinine was injected to her.  However, she developed symptom of Cardiac <\/p>\n
     Toxicity.  She was moved to Intensive Care Unit.  However, she expired at 1.45 <\/p>\n
     hours.\n<\/p>\n
     4        Complainant  is  the  brother  of  the  deceased  who  has  alleged  that <\/p>\n
     deceased was sensitive to anti-malarial drug i.e. quinine and had refused to <\/p>\n
     take   the   tablet.     Doctors   have   exhibited   callousness   and   negligence   in <\/p>\n
     administering   quinine   through   intra   venous   mode.     According   to   the <\/p>\n
     informant,  the  drug quinine  was  administered  to  the  patient  by  the  nurse <\/p>\n
     through  intra  venous   mode.     Doctor  was   not  present  when  the   drug   was <\/p>\n
     administered.     After   the   death   of   patient,   the   doctors   advised   against <\/p>\n
     conducting   post   mortem   examination.     As   such,   no   post   mortem <\/p>\n
     examination was conducted.  It is alleged that death of the patient is as a <\/p>\n
     result   of   negligence   on   the   part   of   the   doctors.     Death   of   the   patient <\/p>\n
     occurred   on   14-9-2008   whereas   the   First   Information   Report   is   lodged   by <\/p>\n
     brother   of   the   deceased   on   5-12-2008.     It   is   stated   that   police   have <\/p>\n
     completed the investigation and the charge sheet is also presented to the <\/p>\n
     court.\n<\/p>\n
     5        Copy of the report submitted by the Expert Committee conducting <\/p>\n
     enquiry in respect of the circumstances leading to the death of deceased <\/p>\n
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\n                                                  4<\/span><\/p>\n
     Shweta   is   placed   on   record.     The   Committee   consists   of   three   medical <\/p>\n
     professionals.     On   perusal   of   the   papers,   the   Expert   Committee   has <\/p>\n
     concluded that the patient was suffering from Falciparum malaria and at <\/p>\n
     the time of admission of the patient her vital parameters were normal.  The <\/p>\n
     Committee   reached   conclusion   that   the   patient   was   not   suffering   from <\/p>\n
     cerebral Malaria and the death certificate issued in that behalf does not <\/p>\n
     appear to be correct.  It is noted in the report that the case papers reveal <\/p>\n
     that at 1.40 pm doctor issued instructions for administering quinine injection <\/p>\n
     600 mg in 1. slowly over 6 hours.   However, after administration of drug, the <\/p>\n
     patient became serious and died at 1.45 am.  At the stage of hearing of the <\/p>\n
     petition, final report of Enquiry Committee is also placed on record on which <\/p>\n
     reliance is placed by the respondent.  In the final report also the Committee <\/p>\n
     of doctors have confirmed the initial diagnosis that the patient was suffering <\/p>\n
     from falciparum malaria and was not having cerebral malaria.  Death of the <\/p>\n
     patient can be attributed to administration of drug quinine.  The Committee <\/p>\n
     has   opined   that   there   occurs   reaction   to   the   drug   quinine   in   rare <\/p>\n
     circumstances,   but   such   possibilities   cannot   be   overlooked   totally.     The <\/p>\n
     Committee could not conclude as to whether the drug was administered <\/p>\n
     through   drip   or   was   pushed   by   intra   venous   mode   as   contended   by   the <\/p>\n
     relatives of the petitioner.   However, if the drug is pushed by intra venous <\/p>\n
     mode, it may result in death of the patient.\n<\/p>\n
     6      Shri   Dixit,   learned   senior   counsel   appearing   for   the   petitioner   has <\/p>\n
     vehemently contended that the petitioner no. 1, physician administering the <\/p>\n
     treatment, was qualified and was competent to administer the treatment.\n<\/p>\n
     Diagnosis   of   the   patient   was   also   correct   and   the   available   mode   of <\/p>\n
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\n                                                       5<\/span><\/p>\n
     treatment   for   treating   malaria   is   administration   of   drug   quinine.     It   is <\/p>\n
     contended that even if it is assumed that the patient was not suffering from <\/p>\n
     cerebral malaria, however, the mode of treatment does not change.   The <\/p>\n
     prescribed drug for treating falciparum malaria as well as cerebral malaria is <\/p>\n
     quinine.   The drug quinine may also cause Cardiac Toxicity which has also <\/p>\n
     been noted by the Expert Committee.  However, the patient is likely to react <\/p>\n
     to a drug in different manner and if the death of the patient in the instant <\/p>\n
     matter even if assuming is attributable to administration of anti malaria drug <\/p>\n
     i.e. quinine by intra venous mode, no gross negligence can be attributed to <\/p>\n
     the physician.   He further contends that there is difference between ‘civil <\/p>\n
     liability’ and ‘criminal negligence’.   It is contended that in order to attract <\/p>\n
     culpability   under   section   304-A   of   the   Indian   Penal   Code,   it   is   to   be <\/p>\n
     demonstrated that negligence and recklessness is of such a high degree so <\/p>\n
     as to term as ‘gross’.  The expression ‘rash and negligent act’ as occurring in <\/p>\n
     section 304-A of the Indian Penal Code is to be read as qualified by word <\/p>\n
     ‘grossly’.   He contends that a medical  professional  can be  held liable for <\/p>\n
     negligence on one of the two findings; either he does not possess all the <\/p>\n
     requisite skill which he professed to have possessed or, he does not exercise <\/p>\n
     with reasonable competence in the given case the skill which he possesses.\n<\/p>\n
     In   the   instant   matter,   the   petitioner   is   a   qualified   medical   practitioner <\/p>\n
     possessing post graduate degree in medicine.  Diagnosis of the patient was <\/p>\n
     correct   so   also   the   line   of   treatment   adopted   also   cannot   be   termed <\/p>\n
     erroneous.     In   such   circumstances,   it   is   contended   that   no   negligence   is <\/p>\n
     attributable   to   the   petitioner.     He   further   contends   that   even   if   liability   is <\/p>\n
     required to be fasten, it may be under civil law.  A professional may be liable <\/p>\n
     under   civil   law   (or   may   not   be)   but   the   accused   \/   petitioner   cannot   be <\/p>\n
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\n                                                        6<\/span><\/p>\n
     prosecuted   under   section   304-A   of   the   Indian   Penal   Code   on   the <\/p>\n
     parameters of Bolam’s case.\n<\/p>\n
     7       Per contra, it has been urged by learned counsel appearing for the <\/p>\n
     complainant that the petitioner has not exhibited the degree of professional <\/p>\n
     skill   as   is   expected   from   a   medical   professional.     According   to   him, <\/p>\n
     deceased was a student of first year BAMS course and she had informed the <\/p>\n
     doctor   that   she   is   sensitive   to   drug   quinine.     However,   inspite   of   this   fact, <\/p>\n
     administration   of   drug   quinine   to   the   patient,   amounts   to   culpable <\/p>\n
     negligence.  It is contended that the drug was pushed through vein and, the <\/p>\n
     petitioner   no.   1,   treating   physician   was   not   present   when   the   drug   was <\/p>\n
     administered.   This, according to the learned counsel for the complainant, <\/p>\n
     amounts to gross negligence, and, as such, the petitioners are liable to be <\/p>\n
     prosecuted.\n<\/p>\n
     8       In   order   to   appreciate   the   arguments   advanced   by   the   learned <\/p>\n
     counsel, it would be appropriate to refer to the judgments laying down the <\/p>\n
     principles   in   respect   of   medical   negligence   requiring   prosecution   of   the <\/p>\n
     medical professional.\n<\/p>\n
     .       In   the   mater   of   Dr.   Suresh   Gupta   vs.   Govt.   of   N.C.T.   Of   Delhi   and<\/a> <\/p>\n
     another   reported   in  2004   AIR   sCW   4442,   initiation   of   criminal   proceeding <\/p>\n
     against   the   medical   professional   was   questioned   and   quashment   of   the <\/p>\n
     proceeding was sought taking recourse to provisions of section 482 of the <\/p>\n
     Code of Criminal Procedure.   In the reported matter the patient, a young <\/p>\n
     man   not   having   history   of   heart   ailment   was   subjected   to   operation <\/p>\n
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\n                                                    7<\/span><\/p>\n
     performed   by   Dr.   Suresh   Gupta   for   nasal   deformity.     The   operation   was <\/p>\n
     neither   complicated   nor   serious.     The   patient  died.     On  investigation,   the <\/p>\n
     cause of death was found to be “not introducing  a cuffed endotracheal <\/p>\n
     tube of proper size” so as to prevent aspiration of blood blocking respiratory <\/p>\n
     passage.   The court found that the act attributable to the doctor even if <\/p>\n
     accepted to be true, can be described as an act of negligence as there <\/p>\n
     was lack of due care and precaution.  For this act of negligence, he may be <\/p>\n
     liable in tort, as carelessness or want of due attention and skill cannot be <\/p>\n
     described to be so reckless or grossly negligent so as to make him criminally <\/p>\n
     liable.  Taking parallel from Gupta’s case (cited supra) it is canvassed that in <\/p>\n
     the given set of facts, a medical professional may be liable in tort but cannot <\/p>\n
     be made criminally liable.     Reliance is placed on the observations of the <\/p>\n
     Apex court in paragraph nos. 20 to 26 of the judgment :\n<\/p>\n
                20      For   fixing   criminal   liability   on   a   doctor   or <\/p>\n
                surgeon,   the   standard  of   negligence   required  to   be <\/p>\n
                proved   should   be   so   high   as   can   be   described   as
\n                “gross   negligence”   or   recklessness.”     It   is   not   merely
\n                lack   of   necessary   care,   attention   and   skill.     The
\n                decision   of   the   House   of   Lords   in   R.   v.   Adomako <\/p>\n
                (supra) relied upon on behalf of the doctor elucidates
\n                the   said   legal   position   and   contains   following
\n                observations :-\n<\/p><\/blockquote>\n
                .      “Thus   a   doctor   cannot   be   held   criminally <\/p>\n
                responsible for patient’s death unless his negligence or
\n                incompetence   showed   such   disregard   for   life   and
\n                safety of his patient as to amount to a crime against
\n                the State.” <\/p><\/blockquote>\n
                21    Thus, when a patient agrees to go for medical
\n                treatment or surgical operation, every careless act of <\/p>\n
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\n                                             8<\/span><\/p>\n
      the medical man cannot be termed as ‘criminal.’   It
\n      can be termed ‘criminal’ only when the medical man <\/p>\n
      exhibits a gross lack of competence or inaction and
\n      wanton indifference to his patient’s safety and which <\/p>\n
      is found to have arisen from gross ignorance or gross
\n      negligence.    Where   a  patient’s   death  results   merely
\n      from   error   of   judgment   or   an   accident,   no   criminal
\n      liability should be attached to it.   Mere inadvertence <\/p>\n
      or   some   degree   of   want   of   adequate   care   and
\n      caution might create civil liability but would not suffice
\n      to hold him criminally liable.\n<\/p>\n
      22      This   approach   of   the   Courts   in   the   matter   of
\n      fixing criminal liability on the doctors, in the course of <\/p>\n
      medical treatment given by them to their patients, is
\n      necessary   so   that   the   hazards   of   medical   men   in
\n      medical profession being exposed to civil liability, may <\/p>\n
      not   unreasonably   extend   to   criminal   liability   and
\n      expose them to risk of landing themselves  in prison for
\n      alleged criminal negligence.\n<\/p>\n
      23       For   every   mishap   or   death   during   medical <\/p>\n
      treatment,   the   medical   man   cannot   be   proceeded <\/p>\n
      against   for   punishment.     Criminal   prosecutions   of
\n      doctors   without   adequate   medical   opinion   pointing
\n      to their guilt would be doing  great disservice to  the
\n      community   at   large   because   if   the   Courts   were   to <\/p>\n
      impose   criminal   liability   on   hospitals   and   doctors   for
\n      everything   that   goes   wrong,   the   doctors   would   be
\n      more   worried  about   their  own   safety   than   giving   all
\n      best   treatment  to   their  patients.     This   would   lead   to
\n      shaking the mutual confidence between the doctor <\/p>\n
      and   patient.     Every   mishap   or   misfortune   in   the
\n      hospital   or   clinic   of   a   doctor   is   not   a   gross   act   of
\n      negligence   to   try     him   for   an   offence   of   culpable
\n      negligence.\n<\/p>\n
      24    No doubt in the present case, the patient was
\n      a young man with no history of any heart ailment.  The <\/p>\n
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\n                                         9<\/span><\/p>\n
      operation   to   be   performed   for   nasal   deformity   was
\n      not   so   complicated   or   serious.     He   was   not <\/p>\n
      accompanied   even   by   his   own   wife   during   the
\n      operation.   From the  medical  opinions produced by <\/p>\n
      the  prosecution,  the   cause   of   death  is  stated to   be
\n      ‘not   introducing   a   cuffed   endo-tracheal   tube   of
\n      proper size as to prevent aspiration of blood from the
\n      would in the respiratory passage.’   This act attributed <\/p>\n
      to the doctor, even if accepted to be true, can be
\n      described as negligent act as there was lack of due
\n      care and precaution.   For this act of negligence he
\n      may be liable in tort but his carelessness or want of <\/p>\n
      due attention and skill cannot be described to be so
\n      reckless or grossly negligent as to make him criminally
\n      liable.\n<\/p>\n
      25      Between civil and criminal liability of a doctor <\/p>\n
      causing death of his patient the Court has a difficult
\n      task   of   weighing   the   degree   of   carelessness   and
\n      negligence   alleged   on   the   part   of   the   doctor.     For
\n      conviction of a doctor for alleged criminal offfence,
\n      the   standard   should   be   proof   of   recklessness   and <\/p>\n
      deliberate wrong doing i.e. A higher degree of morally <\/p>\n
      blameworthy conduct.\n<\/p>\n
      26      To convict, therefore, a doctor, the prosecution
\n      has   to   come   out   with   a   case   of   high   degree   of <\/p>\n
      negligence on the part of the doctor.   Mere lack of
\n      proper   care,   precaution   and   attention   or
\n      inadvertence   might   create   civil     liability   but   not   a
\n      criminal   one.     The   Courts   have,   therefore,   always
\n      insisted   in   the   case   of   alleged   criminal   offence <\/p>\n
      against   doctor   causing   death   of     his   patient   during
\n      treatment,   that   the   act   complained   against   the
\n      doctor   must   show  negligence   or   rashness   of   such  a
\n      higher   degree   as   to   indicate   a   mental   state   which
\n      can   be   described   as   totally   apathetic   towards   the
\n      patient.  Such gross negligence alone is punishable.\n<\/p>\n
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\n                                                   10<\/span><\/p>\n
     .       In this context, reference can be made to a leading judgment of the <\/p>\n
     Apex court concerning the subject in the matter of Jacob Mathew vs. State <\/p>\n
     of Punjab and<\/a> another reported in  AIR 2005 Supreme Court 3180.     In the <\/p>\n
     reported   matter   also   criminal   proceedings   for   commission   of   offence <\/p>\n
     punishable   under   section   304-A   of   the   Indian   Penal   Code   were   initiated <\/p>\n
     against   the   medical   professional   on   the   allegations   that   the   informant’s <\/p>\n
     father was admitted as patient in a private ward of CMC Hospital, Ludhiana.\n<\/p>\n
     On 22-2-1999 at 11.00 pm he felt difficulty in breathing.  Complainant’s elder <\/p>\n
     brother contacted the duty nurse who in turn called the doctor to attend <\/p>\n
     the patient.  However, the doctor did not turn up for 20 to 25 minutes.  Then <\/p>\n
     Dr.   Jacob   Mathew   and   other   doctor   came   to   the   room   of   the   patient.\n<\/p>\n
     Oxygen cylinder was brought and connected to the mouth of the patient <\/p>\n
     but the breathing problem increased further.  The patient tried to get up but <\/p>\n
     the   medical   staff   asked   him  to   remain   in   the   bed.     Oxygen   cylinder   was <\/p>\n
     found to be empty.  There was no other gas cylinder available in the room.\n<\/p>\n
     One Vijay went to the adjoining room and brought gas cylinder.  Thus, there <\/p>\n
     was no arrangement to make the gas cylinder functional and in between 5 <\/p>\n
     to   6   minutes   time   was   wasted.     By   the   time,   another   doctor   came   who <\/p>\n
     declared the patient as dead.  According to the complainant, the treating <\/p>\n
     doctors   were   negligent   and   as   such   were   liable   to   be   prosecuted   under <\/p>\n
     section 304-A r\/w section 34 of the Indian Penal Code.   While dealing with <\/p>\n
     the matter, the Apex court has drawn distinction between ‘negligence as <\/p>\n
     tort’ and ‘negligence as crime’.  The Apex court has extensively dealt with all <\/p>\n
     the aspects of negligence by the professionals and has laid down that every <\/p>\n
     type of negligence is not actionable in criminal law.  In order to prosecute a <\/p>\n
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\n                                                    11<\/span><\/p>\n
     medical professional even if section 304-A of the Indian Penal Code does <\/p>\n
     not refer to the word ‘gross’  the same is to  be  read into  section and the <\/p>\n
     expression   rash   or   negligent   act   occurring   in   section   304-A   of   the   Indian <\/p>\n
     Penal Code is to be read as qualified by word ‘grossly’.  The Apex court has <\/p>\n
     also ruled that the principle of res ipsa loquitur cannot be pressed in service <\/p>\n
     for determining per se liability for negligence within the domain of criminal <\/p>\n
     law.  The points those arose for consideration before the Apex court were i) is <\/p>\n
     there difference in civil and criminal law on the concept of negligence and;\n<\/p>\n
     ii)   whether   a   different   stand   is   applicable   for   recording   a   finding   of <\/p>\n
     negligence when a professional, in particular a doctor is to be held guilty of <\/p>\n
     negligence.     Negligence   is   defined   in   Law   of   Torts,   Ratanlal   &   Dhirajlal <\/p>\n
     (Twenty fourth Edition 2002) as :\n<\/p>\n
               .       “Negligence   is   the   breach   of   a   duty   caused   by
\n               the omission to do something which a reasonable man, <\/p>\n
               guided by those considerations which ordinarily regulate
\n               the   conduct   of   human   affairs   would   do,or   doing <\/p>\n
               something which a prudent and reasonable man would
\n               not do.  Actionable negligence consists in the neglect of
\n               the use of ordinary care or skill towards a person to whom
\n               the defendant owes the duty of observing ordinary care <\/p>\n
               and skill, by which neglect the plaintiff has suffered injury
\n               to his person or property.—–\n<\/p>\n
               .        The   definition   involves   three   constituents   of
\n               negligence:  (1) A legal duty to exercise due care on the <\/p>\n
               pat   of   the   party   complained   of   towards   the   party
\n               complaining   the   former’s   conduct   within   the   scope   of
\n               the   duty;   (2)   breach   of   the   said   duty;   and   (3)
\n               consequential damage.  Cause of action for negligence
\n               arises   only   when   damage   occurs;   for,   damage   is   a
\n               necessary ingredient of this tort.”\n<\/p>\n
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\n                                                    12<\/span><\/p>\n
               12     According to Charlesworth & percy on Negligence <\/p>\n
               (Tenth   Edition,   2001),   in   current   forensic   speech,
\n               negligence has three meanings.  They are : (i) a state of <\/p>\n
               mind,   in   which   it   is   opposed   to   intention;   (ii)   careless
\n               conduct; and (iii) the breach of duty to take care that is
\n               imposed   by   either   common   or   statute   law.     All   three
\n               meanings are applicable in different circumstances but <\/p>\n
               any one of them does not necessarily exclude the other
\n               meanings.     (Para   1.01)     The   essential   components   of
\n               negligence,  as   recognized,  are   three:  “duty”,  “breach”
\n               and “resulting damage”, that is to say :-\n<\/p>\n
                    1     the   existence   of   a   duty   to   take   care, \n                           \n                    which   is   owed   by   the   defendant   to   the \n                    complainant;\n                          \n                    2      the failure to attain that standard of care, \n                    prescribed   by   the   law,   thereby   committing   a \n                    breach of such duty; and\n\n                    3      damage,   which   is   both   causally \n      \n\n\n                    connected with such reach and recognized by \n   \n\n\n\n<\/pre>\n
                    the law, has been suffered by the complainant.\n<\/p>\n
     .        The Apex court has observed in paragraph no. 15 of the judgment <\/p>\n
     thus :\n<\/p>\n
               15.      In order to hold the existence of criminal rashness <\/p>\n
               or criminal negligence it shall have to be found out that
\n               the rashness was of such a degree as to amount to taking
\n               a hazard knowing that the hazard was of such a degree
\n               that   injury   was   most   likely   imminent.     The   element   of
\n               criminality is introduced by the accused having run the
\n               risk   of   doing   such   an   act   with   recklessness   and
\n               indifference   to   the   consequences.     Lord   Atkin   in   his <\/p>\n
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\n                                                    13<\/span><\/p>\n
             speech   in   Andrews   v.   Director   of   Public   Prosecutions,
\n             [1937] AC 576, stated, “Simple lack of care – such as will <\/p>\n
             constitute civil liability is not enough; for purposes of the
\n             criminal law there are degrees of negligence; and a very <\/p>\n
             high   degree   of   negligence   is   required   to   be   proved
\n             before the felony is established.”  Thus, a clear distinction
\n             exists between “simple lack of care” incurring civil liability
\n             and “very high degree of negligence” which is required <\/p>\n
             in   criminal   cases.     Lord   Porter   said   in   his   speech   in   the
\n             same case — “A higher degree of negligence has always
\n             been demanded in order to establish a criminal offence
\n             than is sufficient to create civil liability.   (Charlesworth & <\/p>\n
             Percy, idbi, Para 1.13)  <\/p>\n
     .<\/p><\/blockquote>\n
           While   dealing   with   the   concept   of   negligence   by   a   medical <\/p>\n
     professional, the Apex court has observed in the judgment thus :\n<\/p>\n
             26      A mere deviation from normal professional practice
\n             is not necessarily evidence of negligence.   Let it also be
\n             noted   that   a   mere   accident   is   not   evidence   of <\/p>\n
             negligence.  So also an error of judgment on the part of a <\/p>\n
             professional   is   not   negligence   per   se.     Higher   the
\n             acuteness   in   emergency   and   higher   the   complication,
\n             ore are the chances of error of judgment.   At times, the
\n             professional is confronted with making a choice between <\/p>\n
             the   devil  and  the   deep   sea  and   he   has   to   choose   the
\n             lesser evil.   The medical professional is often called upon
\n             to adopt a procedure which involves higher element of
\n             risk, but which he honestly believes as  providing  greater
\n             chances   of   success   for   the   patient   rather   than   a <\/p>\n
             procedure   involving   lesser   risk   but   higher   chances   of
\n             failure.  Which course is more appropriate to follow, would
\n             depend on the facts and circumstances of a given case. <\/p><\/blockquote>\n
             The usual practice prevalent now-a-days is to obtain the
\n             consent of the patient or of the person incharge of the
\n             patient if the patient is not be in a position to give consent
\n             before adopting a given procedure.  So long as it can be <\/p>\n
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\n                                            14<\/span><\/p>\n
      found that the procedure which was in fact adopted was
\n      one which was acceptable to medical science as on that <\/p>\n
      date, the medical practitioner cannot be held negligent
\n      merely because he chose to follow one procedure and <\/p>\n
      not another and the result was a failure.\n<\/p>\n
      27      No sensible professional would intentionally commit
\n      an act or omission which would result in loss or injury to the <\/p>\n
      patient as the professional reputation of the person is at
\n      stake.    A   single   failure   may   cost   him   dear   in   his   career.
\n      Even in civil jurisdiction, the rule of res ipsa loquitur is not of
\n      universal application and has to be applied with extreme <\/p>\n
      care and caution to the cases of professional negligence
\n      and   in   particular   that   of   the   doctors.     Else   it   would   be <\/p>\n
      counter productive.  Simply because a patient has not not
\n      favourably responded to a treatment given by a physician
\n      or a surgery has failed, the doctor cannot be held liable <\/p>\n
      per se by applying the doctrine of res ipsa loquitur.\n<\/p>\n
      28        Res   ipsa   loquitur   is   a   rule   of   evidence   which   in
\n      reality   belongs   to   the   law   of   torts.     Inference   as   to
\n      negligence may be drawn from proved circumstances by <\/p>\n
      applying he rule if the cause of the accident is unknown <\/p>\n
      and no reasonable explanation as to the cause is coming
\n      forth   from   the   defendant.     In   criminal   proceedings,   the
\n      burden of proving negligence as an essential ingredient of
\n      the   offence   lies   on   the   prosecution.     Such   ingredient <\/p>\n
      cannot   be   said   to   have   been   proved   or   made   out   by
\n      resorting   to   the   said   rule   (See   Syad   Akbar   v.   State   of
\n      Karnataka<\/a>   (1980)   1   SCC   30).         Incidentally,   it   may   be
\n      noted that in Krishnan and Anr. v. State of Kerala (1996) 10
\n      SCC   508   the   Court   has   observed   that   there   may   be   a <\/p>\n
      case where the proved facts would themselves speak of
\n      sharing   of   common   intention   and   while   making   such
\n      observation   one   of   the   learned   judges   constituting   the
\n      Bench has in his concurring opinion merely stated “res ipsa
\n      loquitur”.     Nowhere it has been stated that the rule has
\n      applicability in a criminal case and an inference as to an
\n      essential ingredient of an offence can be found proved <\/p>\n
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\n                                             15<\/span><\/p>\n
      by resorting to the said rule.  In our opinion, a case under
\n      Section 304A IPC cannot be decided solely by applying <\/p>\n
      the rule of res ipsa loquitur.\n<\/p>\n
      29      A medical  practitioner faced with an emergency
\n      ordinarily   tries   his   best   to   redeem   the   patient   out   of   his
\n      suffering.     He   does   not   gain   anything   by   acting   with
\n      negligence   or   by   omitting   to   do   an   act.\n<\/p>\n
      Obviously,therefore,   it   will   be   for   the   complainant   to
\n      clearly make out a case of negligence before a medical
\n      practitioner   is   charged   with   or   proceeded   against
\n      criminally.  A surgeon with shaky hands under fear of legal <\/p>\n
      action   cannot   perform   a   successful   operation   and   a
\n      quivering   physician   cannot   administer   the   enddose   of <\/p>\n
      medicine to his patient.\n<\/p>\n
      30      If the hands be trembling with the dangling fear of <\/p>\n
      facing   a   criminal   prosecution   in   the   event   of   failure   for
\n      whatever reason – whether attributable to himself or not,
\n      neither   a   surgeon   can   successfully   wield   his   life-saving
\n      scalper   to   perform   an   essential   surgery,   nor   can   a
\n      physician   successfully   administer   the   life-saving   dose   of <\/p>\n
      medicine.     Discretion   being   better   part   of   valour,   a <\/p>\n
      medical professional would feel better advised to leave a
\n      terminal patient to his own fate in the case of emergency
\n      where the chance of success may be 10% (or so), rather
\n      than taking the risk of making a last ditch effort towards <\/p>\n
      saving the subject and facing a criminal prosecution if his
\n      effort fails.  Such  timidity forced upon a doctor would be
\n      a disservice to the society.\n<\/p>\n
      31     The purpose of holding a professional liable for his <\/p>\n
      act or omission, if negligent, is to make the life safer and to
\n      eliminate   the   possibility   of   recurrence   of   negligence   in
\n      future.   Human body and medical science both are too
\n      complex   to   be   easily   understood.     To   hold   in   favour   of
\n      existence   of   negligence,   associated   with   the   action   or
\n      inaction   of   a   medical   professional,   requires   an   in-depth
\n      understanding of the working of a professional as also the <\/p>\n
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\n                                         16<\/span><\/p>\n
      nature   of   the   job   and   of   errors   committed   by   chance,
\n      which   do   not   necessarily   involve   the   element   of <\/p>\n
      culpability.\n<\/p>\n
      32       The   subject   of   negligence   in   the   context   of
\n      medical  profession necessarily  calls  for treatment with a
\n      difference.    Several relevant considerations in this regard
\n      are   found   mentioned   by   Alan   merry   and   Alexander <\/p>\n
      McCall   Smith   in   their   work   “Errors,   Medicine   and   the
\n      Law”   (Cambridge   University   Press,   2001).     There   is   a
\n      marked tendency to look for a human actor to blame for
\n      an untoward event a tendency which is closely linked with <\/p>\n
      the   desire   to   punish.     Things   have   gone   wrong   and,
\n      therefore, somebody must be found to answer for it.   To <\/p>\n
      draw   a   distinction   between   the   blameworthy   and   the
\n      blameless, the notion of mens rea has to be elaborately
\n      understood.     An   empirical   study   would   reveal   that   the <\/p>\n
      background to a mishap is frequently far more complex
\n      than may generally be assumed.  It can be demonstrated
\n      that actual blame for the outcome has to be attributed
\n      with great caution.  For a medical accident or failure, the
\n      responsibility   may   lie   with   the   medical   practitioner   and <\/p>\n
      equally it may not.  The inadequancies of the system, the <\/p>\n
      specific circumstances of the case, the nature of human
\n      psychology itself and sheer chance may have combined
\n      to produce a result in which the  doctor’s contribution is
\n      either   relatively   or   completely   blameless.     Human   body <\/p>\n
      and   its   working   is   nothing   less   than   a   highly   complex
\n      machine.     Coupled   with   the   complexities   of   medical
\n      science,   the   scope   for   misimpressions,   misgivings   and
\n      misplaced   allegations   against   the   operator   i.e.   The
\n      doctor, cannot be ruled out.   One may have notions of <\/p>\n
      best or ideal practice which are different from the reality
\n      of how medical practice is carried on or how in real life
\n      the doctor functions.     The factors of pressing need and
\n      limited resources cannot be ruled out from consideration.
\n      Dealing   with   a   case   of   medical   negligence   needs   a
\n      deeper understanding of the practical side of medicine.\n<\/p>\n
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\n                                                       17<\/span><\/p>\n
     .        Conclusions are drawn in paragraph no. 49 of the judgment.   Those <\/p>\n
     are :-\n<\/p>\n
              49        We sum up our conclusions as under :-\n\n\n\n\n                                                                \n                   1       Negligence is the breach of a duty  caused by \n<\/pre>\n
                   omission   to   do   something   which   a   reasonable   man
\n                   guided   by   those   considerations   which   ordinarily
\n                   regulate   the   conduct   of   human   affairs   would   do,   or <\/p>\n
                   doing something which a prudent and reasonable man
\n                   would not do.  The definition of negligence as given in <\/p>\n
                   Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P.
\n                   Singh),   referred   to   hereinabove,   holds   good.\n<\/p>\n
                   Negligence becomes actionable on account of injury <\/p>\n
                   resulting   from   the   act   or   omission   amounting   to
\n                   negligence   attributable   to   the   person   sued.       The
\n                   essential components of negligence are three: ‘duty’,
\n                   ‘breach’ and ‘resulting damage’.\n<\/p>\n
                   2        Negligence in the context of medical profession <\/p>\n
                   necessarily calls for a treatment with a difference.   To
\n                   infer   rashness   or   negligence   on   the   part   of   a
\n                   professional,   in   particular   a   doctor,   additional
\n                   considerations   apply.   A   case   of   occupational <\/p>\n
                   negligence   is   different   from   one   of   professional
\n                   negligence.     A   simple   lack   of   care,   an   error   of
\n                   judgment or an accident,is not proof of negligence on
\n                   the part of medical professional.   So long as a doctor
\n                   follows   a   practice   acceptable   to   the   medical <\/p>\n
                   profession   of   that   day,   he   cannot   be   held   liable   for
\n                   negligence merely because a better alternative course
\n                   or   method   of   treatment   was   also   available   or   simply
\n                   because a more skilled doctor would not have chosen
\n                   to follow or resort to that practice or procedure which
\n                   the accused followed.  When it comes to the failure of
\n                   taking   precautions   what   has   to   be   seen   is   whether <\/p>\n
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\n                                            18<\/span><\/p>\n
      those   precautions   were   taken   which   the   ordinary
\n      experience of men has found to be sufficient; a failure <\/p>\n
      to use special or extraordinary precautions which might
\n      have   prevented   the   particular   happening   cannot   be <\/p>\n
      the   standard  for judging   the  alleged  negligence.     So
\n      also, the standard of care, while assessing the practice
\n      as   adopted,   is   judged   in   the   light   of   knowledge
\n      available  at  the   time  of  the  incident,  and  not at  the <\/p>\n
      date of trial.  Similarly, when the charge of negligence
\n      arises out of failure to use some particular equipment,
\n      the   charge   would   fail   if   the   equipment   was   not
\n      generally available at that particular time (that is, the <\/p>\n
      time of the incident) at which it is suggested it should
\n      have been used.\n<\/p>\n
      3<\/span><\/p>\n
              A professional may be held liable for negligence
\n      on one of the two findings:  either he was not possessed <\/p>\n
      of   the   requisite   skill   which   he   professed   to   have
\n      possessed,   or,   he   did   not   exercise,   with   reasonable
\n      competence in the given case, the skill which he did
\n      possess.     The   standard   to   be   applied   for
\n      judging,whether   the   person   charged   has   been <\/p>\n
      negligent   or   not,   would   be   that   of   an   ordinary <\/p>\n
      competent   person   exercising   ordinary   skill   in   that
\n      profession.     It   is   not   possible   for   every   professional   to
\n      possess   the   highest   level   of   expertise   or   skills   in   that
\n      branch which he practices.  A highly skilled professional <\/p>\n
      may be possessed of better qualities, but that cannot
\n      be   made   the   basis   or   the   yardstick   for   judging   the
\n      performance of the professional proceeded against on
\n      indictment of negligence.\n<\/p>\n
      4      The test for determining medical negligence as
\n      laid down in Bolam’s case (1957) 1 WLR 582, 586 holds
\n      good in its applicability in India.\n<\/p>\n
      5       The jurisprudential concept of negligence differs
\n      in civil and criminal law.   What may be negligence in
\n      civil law may not necessarily be negligence in criminal <\/p>\n
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\n                                                  19<\/span><\/p>\n
              law.     For   negligence   to   amount   to   an   offence,   the
\n              element of mens rea must be shown to exist.  For an act <\/p>\n
              to   amount   to   criminal   negligence,   the   degree   of
\n              negligence should be much higher i.e gross or of a very <\/p>\n
              high degree.  Negligence which is neither gross nor of a
\n              higher degree may provide a ground for action in civil
\n              law but cannot form the basis for prosecution.\n<\/p>\n
              6       The   word   ‘gross’   has   not   been   used   in   Section
\n              304A   of   IPC,   yet   it   is   settled   that   in   criminal   law
\n              negligence or   recklessness, to be so held, must be of
\n              such   a   high   degree   as   to   be   ‘gross’.     The   expression <\/p>\n
              ‘rash or negligent at’ as occurring in Section304A of the
\n              IPC  has to be read as qualified by the word ‘grossly’.\n<\/p>\n
              7<\/span><\/p>\n
                      To   prosecute   a   medical   professional   for
\n              negligence   under  criminal   law   it  must  be   shown  that <\/p>\n
              the accused   did something or failed to do something
\n              which in the given facts and circumstances no medical
\n              professional in his ordinary senses and prudence would
\n              have done or failed to do.   The hazard taken by the
\n              accused   doctor  should  be   of   such  a  nature   that  the <\/p>\n
              injury which resulted was most likely imminent.\n<\/p>\n
              8        Res ipsa loquitur is only a rule of evidence and
\n              operates in the domain of civil law specially in cases of
\n              torts   and   helps   in   determining   the   onus   of   proof   in <\/p>\n
              actions relating to negligence.  It cannot be pressed in
\n              service   for   determining   per   se   the   liability   for
\n              negligence within the domain of criminal law.  Res ipsa
\n              loquitur has, if at all, a limited application in trial on a
\n              charge of criminal negligence.\n<\/p>\n
     .     While dealing with the case in hand, the Apex court has recorded <\/p>\n
     that the averments made in the complaint ( in reported judgment)  even if <\/p>\n
     held to be proved do not make out case of criminal rashness or negligence <\/p>\n
     on the part of accused \/ appellant.   It is not the case of the complainant <\/p>\n
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\n                                                   20<\/span><\/p>\n
     that the accused \/ appellant was not a doctor qualified to treat the patient <\/p>\n
     whom he agreed to treat.  It is a case of non-availability of oxygen cylinder <\/p>\n
     either because of hospital having failed to keep available the gas cylinder <\/p>\n
     or because of gas cylinder being found empty.  Then, probably the hospital <\/p>\n
     may be liable in civil law (or may not be) but the accused appellant cannot <\/p>\n
     be proceeded against under Section304A IPC on the parameters of Bolam’s <\/p>\n
     test.\n<\/p>\n
     9       In the instant case also, petitioner no. 1, treating physician, is qualified <\/p>\n
     to administer treatment.   He possesses adequate degree of knowledge as <\/p>\n
     well as skill to treat the patients.  Diagnosis of the physician that the patient <\/p>\n
     was   suffering from malaria cannot be said to be incorrect.     It is also not <\/p>\n
     disputed that quinine is the drug prescribed for treating the ailment.  Even if, <\/p>\n
     assuming that the patient was not suffering from cerebral malaria, there is no <\/p>\n
     duel   opinion   that   for   treating   patient   for   falciparum   malaria   or   cerebral <\/p>\n
     malaria, the drug which is generally administered is quinine.  The Committee <\/p>\n
     has also observed in the report that the doctor had directed to administer <\/p>\n
     the drug slowly over a period of six hours.   It is also not unknown that the <\/p>\n
     drug has a side effect of (Cardiac Toxicity).   In such circumstances, merely <\/p>\n
     because the doctor was not present when the injection was administered, <\/p>\n
     could not be the reason for holding him liable under criminal law.  It is also <\/p>\n
     reported by the Committee citing reference to the authority on the subject <\/p>\n
     “Goodman   and   Gilman’s   The   Pharmacological   Basis   of   Therapeutics,   11
\n                                                                                                  th <\/p>\n
     Edn.,   page   no.   1038-1039”   that   quinine   is   the   choice   of   treatment   for <\/p>\n
     resistance   of   falciparum   malaria   despite   its   antiquity   and   considerable <\/p>\n
     toxicity.  It is also noted in the text that the drug may cause Cardio Vascular <\/p>\n
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\n                                                    21<\/span><\/p>\n
     complications.   It  is   thus   clear  that  the   line   of   treatment adopted  by   the <\/p>\n
     doctor   was   correct   and   the   drug   usually   administered   has   side   effect   in <\/p>\n
     respect of Cardiac Toxicity.   In this situation therefore, merely because the <\/p>\n
     patient reacted adversely on administration of drug cannot be attributed to <\/p>\n
     the treating physician and in any case he cannot be held liable for criminal <\/p>\n
     negligence.\n<\/p>\n
     10      Learned   counsel   for   the   complainant   has   placed   reliance   on   a <\/p>\n
     judgment in the matter of Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu <\/p>\n
     Godbole and another reported in  AIR 1969 Supreme Court 128.   Reported <\/p>\n
     matter is in respect of tortuous liability and is not relevant for the purpose of <\/p>\n
     determination   of   criminal   liability   of   the   medical   professional.     Learned <\/p>\n
     counsel for the complainant has also placed reliance on a judgment in the <\/p>\n
     matter   of   Dr.   Jacob   Mathew   to   which   reference   has   been   made   in   the <\/p>\n
     instant   judgment   quite   extensively.     It   is   contended   that   the   negligence <\/p>\n
     exhibited by the doctor is gross negligence and as such, proceeding cannot <\/p>\n
     be   quashed.     However,   considering   the   facts   and   circumstances   of   this <\/p>\n
     case, I am of the opinion that the petitioners cannot be held criminally liable <\/p>\n
     for   the   act   alleged   against   them.     On   careful   consideration   of   the <\/p>\n
     parameters laid down by the Apex court while dealing with the aspect of <\/p>\n
     fastening   criminal   liability   against   the   medical   professionals,   I   am   of   the <\/p>\n
     opinion that the petitioner herein cannot be held responsible for commission <\/p>\n
     of   offence   under   section   304-A   of   the   Indian   Penal   Code.     Criminal <\/p>\n
     proceedings initiated at the instance of the complainant \/ respondent no. 2 <\/p>\n
     herein   therefore   are   required   to   be   quashed.     In   the   result   the   petition <\/p>\n
     deserves   to   be   allowed   and   the   same   is   accordingly   allowed.     Criminal <\/p>\n
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\n                                          22<\/span><\/p>\n
     proceeding initiated against the accused pursuant to registration of Crime <\/p>\n
     No. 555\/08 registered at Kranti Chowk police station, Aurangabad and the <\/p>\n
     proceedings taken up before the court in pursuance to presentation of the <\/p>\n
     charge-sheet in the matter are quashed and set aside.  Rule is accordingly <\/p>\n
     made absolute.\n<\/p>\n
                                                              ( R. M. BORDE, J.)<\/p>\n
     dyb\/office\/cwp21.09.odt<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:43:11 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court 3 Madhav vs 2 Amar on 25 June, 2009 Bench: R. M. Borde 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. 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