EVOLUTION OF THE LAW RELATED TO MEDICAL NEGLIGENCE
The offence of medical neglect has still not been defined in the Indian Penal Code or some other Statute, but any act of clinical negligence harming people, grievous hurt or death may come within the ambit of penal provisions of Indian Penal Code, in compliance with Section 304A.
To be personally responsible for a medical professional's incompetence in criminal statute, it must be proven that the medical professional performed anything which, in ordinary and proper medical practice, would not have been done, or in setting up internal procedures, the medical professional did neglect to do something which would by ordinary medical protocol have been done so as to prevent any such negligence.
The degree of responsibility on the practitioner is higher than that of any other service provider. In order to obtain damages in criminal law, the extent of negligence needs to be greater than the standard of negligence that would warrant the duty of restitution under tort law, thus mens rea stopping the defence from functioning. Also, in cases of negligence, the liability is guilty of a culpable or gross negligence, not the simple negligence based upon simple errors of judgment.
Higher threshold -
The standard of care is the professional standard, which is mandated by statute. Once they sign a form of consent and agreement to care, the doctor or medical staff are responsible for any accidental mistake (e.g., causing a burn or an accident). Rather than criminal only, this distinction has been called a gradation of actions, wherein exhibiting a “gross lack of competence” evidences “want on indifference to patient safety” and “gross ignorance or corruption…”, particularly when found to “arise from gross negligence”. Merely error of judgment or accident, cannot attract criminal liability. Some degree of want of adequate care might create civil liability but not criminal. Therefore, a practitioner is not negligent as long as he or she conducts their duties with fair consistency and capacity. It is not the doctor's fault that he has chosen one course of action instead of another and his decision is acceptable to the medical profession.
It has also been held by the Apex Court that where the medical practitioner failed to take appropriate steps, so as to prevent aspiration of blood blocking respiratory passage, the act attributed to him may be described as negligent act but not so reckless as to make him criminally liable. Therefore, medical negligence in criminal law has a higher threshold, which is to be met in order to hold one criminally liable.
The Bolam Test -
The test for determining medical negligence as laid down in Bolam v. Friern Hospital Management Committee, is good in law even today. In the Bolam case, it was held that, “Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.” In many cases, the Supreme Court approved and applied this test for determining the negligence.
The quality of treatment is assessed based on available information and the state-of-the-art technology. For example, if the argument is that the doctor was incompetent because he refused to use a specific piece of equipment which should have been used, the court would examine whether the equipment in question was "in general use" and thus available for use. Every hospital cannot be assumed to be flawless, and there is no uniform quality of equipment and technique.
Evolution of medical negligence under IPC-
This section reveals the development of legislation with regards to medical malpractice and the Supreme Court's rulings over the same. I agree that errors of judgement by a doctor cannot always be viewed as negligence. Gross errors would, however, encourage the discovery of incompetence such as use of wrong medication or wrong gas during the course of anaesthetic procedure, delegation of the duty to a junior with the awareness that the junior is incapable of conducting the duties properly, removal of the wrong limb, conducting an operation on the wrong patient or administering a drug whereby the patient is allergic to without looking at the outpatient card containing the notice, and leaving syringes or other objects within the patients.
Persons not qualified in general or a certain branch of medicine yet embarking upon a treatment course in that field has been held to be negligent. Not seeking views of paediatric ophthalmologist, has been held to be an incidence of negligence. Instances of senior doctor choosing to conduct a surgery but actually leaving the patient to the treatment of a junior doctor, who is not inexperienced but has little expertise as well, even though such junior doctor completes the surgery without errors, has often contributed to the finding of medical negligence.
Before the case of Jacob Mathew, the Supreme Court delivered two different opinions on doctors’ liability. In Mohanan v. Prabha G Nair, it decided that the doctor's incompetence had to be proved by expert testimony and evidence provided at trial. However, in the case of Suresh Gupta, the level of incompetence in order to secure a verdict was set at “gross negligence” or “recklessness.”
In Suresh Gupta the Supreme Court differentiated between making an innocent mistake and deliberately disregarding one's obligations. In case of Dr. Suresh Gupta v. Govt. of NCT Delhi, the norm required criminal responsibility to be based on a high pedestal and held that simple lack of necessary treatment, consideration, or expertise was inadequate to keep one legally accountable for negligence. A doctor cannot be found responsible for any mishaps/incidents without evidence of negligence. Therefore, in order for a lawsuit against a doctor to be true, the case must prove incompetence or rashness of such a degree as to suggest an emotional condition that can be defined as completely apathetic towards the patient. Such criminal incompetence should result in prosecution.
The correctness of the opinion of the Supreme Court was consequently questioned because the terms “gross”, “reckless”, “competence”, “indifference” did not exist anywhere in the concept of negligence, and that separate levels of negligence cannot be attributed to the negligence of doctors and others. Thereafter, the case was appealed to a bench of greater criminal power.
Three-judge bench in Jacob Mathew v. State of Punjab on a reassessment recognized the method of high degree of carelessness being the precondition for fastening criminal liability as adopted in Dr. Suresh Gupta, and it was noted that “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.” Supreme Court in Jacob Mathew observed that the issue of negligence in the sense of medical practice necessarily calls for a care with a distinction. In the case of an elderly senior suffering from advanced cancer and not being able to breathe, the oxygen tank attached to the patient was found to be empty. By the time we could repair the part, the patient had already died. The Supreme Court agreed to reverse the High Court's decision, which ruled that the doctors involved in the killing should not be criminally charged.
Criminalization of Medical Negligence Under Sec. 304A: Criticism
The terms ‘rash and negligent’, as used by the apex court are not interchangeable, and instead of ‘or’ if ‘and’ is used it makes the terms meaningless. The explanation is that incompetence is a state of mind that struggles to predict the effects of an action. On the other hand, rashness is a state of mind that once foresaw the consequences of an action but neglected them. Any may be present in a human, but not both.
To explain this, imagine what might happen if a man were to throw a stone from the tenth floor of a house, without bothering to check if anyone could be below. It is said that he has committed negligent actions. However, if an entity realizes that his act will cause others to be hurt or killed, but continues to throw the stone anyway, it is said that he behaved rashly. How can the two forms of thinking be combined with one another in the same person?
The portion of the Indian Penal Code that governs reckless or careless conduct cannot be used for punishment for medical neglect, but it can only be used for punishment for negligent behaviour. The applicable provision of India's Penal Code is section 304A, which reads “punishment of death.” Whoever causes the death of any person by their own fault, shall be punished with imprisonment of any description for a period which may stretch to two years, or with fine, or with both.
As was explained above, rash means a person foresees the repercussions of their acts, but nevertheless decided to do what they had planned to do anyway. When a doctor realized that the patient could die as a result of an operation, and went through with the procedure, and if the patient died as a result, it would mean that the doctor had behaved negligently. This questions regarding the outcome, which are normal in clinical trials, are the reasons for seeking medical approval before such procedures or operations are performed. In this case, the above argument cannot be extended to doctors who have agreed on medication.
However, if the question asks about what if a doctor forgets scissors inside the body of the patient after an operation, or operates the left arm instead, or right arm. This form of wrongdoing is incompetence, but not medical malpractice. And those without medical backgrounds may argue that this is medical negligence, which doesn't require a degree in medicine. The word "medical negligence" means that only a medical doctor may decide whether there was negligence or not. However, this neglect and/or rashness is not protected by the provisions of this section since this occupation is special. If a trained driver is irresponsible or if they injure someone, it is not a matter of incompetence but rather murder. Medicine means messing in the lives of the patients all too often. Therefore, section 304A should not be used for wrongful death litigation.
Another issue caused by handling medical negligence litigation under this provision is that the courts are required to assume that the term ‘gross' hasn't been included in section 304A of IPC. But, in criminal negligence or recklessness, it may be to such a high degree as to be ‘gross'. Since Section 304A IPC has not used the term 'gross', it is settled that to be careless or reckless, a standard of negligence or recklessness must be of a high degree. The Supreme Court in P.B. Desai v. State of Maharashtra was categorical. The expression ‘rash or negligent act’ as occurring in Section 304A of the IPC has to be read as qualified by the word ‘grossly’. Mere neglect is not enough to cause a doctor to be responsible, but gross negligence is important. Gross error is termed rashness. Therefore, although the legislature chose to have both negligent act and rash act alike under section 304A, the judiciary read it in such a way as to exclude one aspect, negligent act, from the provision. This has two issues, one is that since negligence itself is a nil state of mind, how could there be more gradation into gross negligence?
If the court intended to conclude that the practitioner did not behave at all like a doctor, and displayed a lack of even common sense, so this might be considered gross negligence, which is not actual incompetence or medical malpractice. Therefore, it is submitted that when dealing with medical negligence cases under Section 304A of the Indian Penal Code, courts need to have a rethinking as to whether this section should be included.
The present decision, however, may give room for criticism that the court, vested with the authority to interpret the written law has, instead, ventured to modify the law by reading it the way it felt would be best for society. Since Section 304A only applies to careless or incompetent actions, it is unlikely the aggravating circumstance must be shown as mens rea in order to create a case of criminal negligence. The meaning of the prefix “gross” before “negligence” (the offence listed in Section 304A of the Indian Penal Code) also receives the same criticism.
It is also to be noted that the Supreme Court has observed the need to reconsider the parameters set down in Bolam test. The standards imposed by the court are fair, but not too low, nor too high, and holding blame in some cases breaks down transparency. In this respect, legislation zealously protects the autonomy of medical practitioners and completely recognizes that recommending unreasonably high expectations which have a kind of chilling impact which is not beneficial, however, the law still aims to preserve and safeguard the rights of a patient to expect a minimum quality of treatment.
Those who conduct their duties with reverence and care do not depend on the jurisdiction of the court in Jacob Mathew. Let not the profession grow more emboldened by the new shield, and let not their treatment and dealings to the patients become less vigilant, compassionate and civilized. When this continues, it would be a tragic day for those carrying a medical disorder. In fact, however, the decision, interpreting in certain aspects not in the written statute, will severely harm their rights. Although it is necessary to public health to save doctors doing their best, it is also necessary to condemn those who breach the oath they made. To be protected from this category implies misery for needy patients.
The Apex Court in Jacob Mathew had nevertheless cautioned prosecuting agencies that “Indiscriminate prosecution of medical professionals for criminal negligence is counter-productive and does no service or good to the society” adding that “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.” Therefore, these tests to determine criminal liability should be used with caution by the courts.
Hence, in this article, I’ve explored the criticism of criminal liability for medical negligence under Sec. 304 A, with special reference to the ruling of the Hon’ble court in Jacob Mathew.
Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582
Indian Medical Association v. V P Shantha (1995) 6 SCC 651
Jacob Mathew v. State of Punjab, AIR 2005 SC 3180 480
Malay Kumar Ganguly v. Sukumar Mukherjee, (2009) 9 SCC 221
Martin F. D'Souza v. Mohd. Ishfaq (2009) 3 SCC
Mohanan v. Prabha G. Nair, (2004) CPJ 21(SC)
Pandit Ukka Kolhe v. State of Maharashtra, MANU/ SC/0059/1963
PB Desai (Dr) v. State of Maharashtra, 2013 (11) Scale 429
Shivanand Doddamani v. State of Karnataka, 2011 Cr LJ 230 (Kant)
SK Jhunjunwala v. Dhanwanti Kour, (2019) 2 SCC 282
Spring Meadows Hospital v. Harjol Ahluwalia (1998) 4 SCC 39
State of Punjab v Sourabh Bakshi, MANU/SC/0362/2015
Surendra Chauhan v. State of MP, (2000) 4 SCC 110
Suresh Gupta (Dr) v. Govt of NCT of Delhi, (2004) 6 SCC 422
V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513
V. Krishnakumar v. State of Tamil Nadu and Ors., (2015) 9 SCC 388
Gaur K.D., Commentary on The Indian Penal Code (2nd ed
PSA Pillai: Criminal Law, 14th ed. (Chapter 33).
Ratanlal and Dhirajlal, Indian Penal Code (34th ed.), Chapter XVI Of Offences
Affecting The Human Body Of Offences Affecting Life.
Siddique Ahmed’s, Criminology and Penology (S.M.A. Qadri, 6th ed., 2014)
Agresari R Noolikar
4th year, BBA.LLB
Kle’s Law College