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
|Case name:||Jacob Mathew Vs. State of Punjab & Anr.|
|Case number:||Crl.Appeal 144-145 of 2004|
|Court:||The Supreme Court of India|
|Bench:||Justice R.C. Lahoti, Justice G.P. Mathur, Justice P.K Balasubramanyan|
|Decided on:||AUGUST 05, 2005|
|Relevant Act/Sections:||Section 304A read with Section 34 of the Indian Penal Code, Section 482 of the Code of Criminal Procedure|
- BRIEF FACTS AND PROCEDURAL HISTORY:
- On February 15, 1995, the informant’s father, was admitted as a patient in the private ward of a hospital. On February 22, 1995 at about 11 p.m., the patient felt difficulty in breathing. The complainant’s elder brother, who was present in the room contacted the duty nurse, who in turn called a doctor to attend to the patient. No doctor turned up for 20-25 minutes. Then doctors 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. Elder Son of the patient went to the adjoining room and brought a gas cylinder. However, there was no arrangement to make the gas cylinder functional and meanwhile, 5-7 minutes were wasted.
- By this time, another doctor came and declared that the patient was dead. Taking into consideration, the above mentioned circumstances a complaint was filed by the informant stating how the non-availability of oxygen and negligence of doctors led to his father’s demise.
- On the above said report, an offence under Sections 304-A and 34 of the Indian Penal Code was registered and investigated.
- The Judicial Magistrate First Class, Ludhiana framed charges under Section 304A, IPC against the two accused persons, both doctors. Both of them filed a revision in the Court of Sessions Judge submitting that there was no ground for framing charges against them. The revision was dismissed.
- The appellant filed a petition in the High Court under Section 482 of the Code of Criminal Procedure praying for quashing of the FIR and all the subsequent proceedings. It was submitted before the High Court that there was no specific allegation of any act of omission or commission against the accused persons in the entire plethora of documents comprising the challan papers filed by the police against them. The High Court dismissed the petition
- The learned single Judge who heard the petition formed an opinion that the plea raised by the appellant was available to be urged in defense at the trial and therefore, a case for quashing the charge was not made out.
- ISSUE BEFORE THE COURT:
- Is there a difference in civil and criminal law on the concept of negligence?
- Whether a different standard is applicable for recording a finding of negligence when a professional, in particular, a doctor is to be held guilty of negligence?
- RATIO OF THE COURT:
- The learned counsel made reference to the case Dr. Suresh Gupta Vs. NCT Delhi & anr., in this case the doctor treated a patient with heart ailment who was subjected to a very basic operation, however he died. On investigation, it was found that the doctor inserted a tube in the body the size of which was not perfect and thus, could not control the blood flow. Thus, the court in this case regarded it as a case of negligence on behalf of the doctor.
- However, the present bench did not agree with the opinion of the bench in the above mentioned case and said negligence should be “gross” isn’t per se a requirement of S. 304 A of IPC and also, attributing the term to a specific group of professionals say doctors would be unjustified.
- To understand the concerned issues better the court examined the jurisprudence behind the term “Negligence” and further stated “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.”
- Further, the court said damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant. If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence.
- 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.
- Subsequently, the court stated 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 indifference to the consequences. Looking at the purview and various degrees of negligence, the court further said, the factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime.
- To be latter, the negligence has to be gross or of a very high degree. 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.
- To ensure a just and fair rule of law, and in absence of Statutory Rules or Executive Instructions, the Supreme Court gave the Guidelines regarding prosecuting medical professionals as follows: (A.) The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science, so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of Criminal Law under Section 304-A of the Indian Penal Code. (B.)The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end, he may be exonerated by acquittal or discharge but the loss, which he has suffered in his reputation, cannot be compensated by any standards. (C.)The court said the judgement may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that it focuses on doing is to emphasize the need for care and caution in the interest of society; for the service, which the medical profession renders to human beings, is probably the noblest of all and hence there is a need for protecting doctors from frivolous or unjust prosecution. (D.)Many a times complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
- Further the court added, 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 in regard 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 collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.
- To sum up, the court gave out main pointers, regarding the “negligence” aspect the court opined the essential components of negligence are three: ‘duty’, ‘breach’ and ‘resulting damage’. Therefore, Negligence in the context of medical profession necessarily calls for a treatment with a difference. 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 a 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.
- Secondly, 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 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.
- Lastly, 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. Therefore, the guidelines as mentioned above shall be adhered to.
- In the instant case all the averments made in the complaint, even if held to be proved, do not make out a case of criminal rashness or negligence on the part of the accused appellant. It is not the case of the complainant that the accused-appellant was not a doctor qualified to treat the patient whom he agreed to treat. It is a case of nonavailability of oxygen cylinder either because of the hospital having failed to keep available a gas cylinder or because of the gas cylinder being found empty. Then, probably the hospital may be liable in civil law but the accused appellant cannot be proceeded against under Section 304A IPC on the parameters of Bolam’s test.
- DECISION HELD BY COURT:
- In this case the judgement was given by JUSTICE R.C.LAHOTI that the court had left to the Central and State Governments to give rules and regulations, as in India it is a state subject.
- The guidelines as prescribed by the Hon’ble judges prescribe an opinion from a proper Government doctor before proceeding against a doctor.
- The accused doctor can present his defense by obtaining from expert of choice after the case is charge sheeted and the case comes before the court for examination.
- The prosecution of the accused appellant under Section 304A/34 IPC was quashed.