The case analysis is written by Preeti Bafna, a second-year student of Unitedworld School of Law, Karnavati University. In this case, the author briefly explained the case of Jacob Mathew v. State of Punjab.
In a landmark judgment, the supreme court of India laid down guidelines in cases of alleged negligence against medical practitioners in India. It clearly stated that there is a need for protecting doctors from frivolous or unjust prosecution The complainant’s elder brother, Vijay Sharma who was present in the room contacted the duty nurse, who in her turn called some doctor to attend to the patient. No doctor turned up for about 20 to 25 minutes. Then, Dr. Jacob Mathew, the appellant before us and Dr.Allen Joseph came to the room of the patient. Negligence or recklessness being ‘gross’ is not a requirement of Section 304A of IPC
(2005) 6 SCC 1
Cji R.C. Lahoti, G.P. Mathur, P.K.Balasubramanyan
Date of Judgement:
5 August, 2005
Appeal (crl.) 144-145 of 2004
Ashok Kumar Sharma, the respondent No. 2 herein filed a First Information Report with police station whereupon an offence under Section 304A read with section 34 of the Indian Penal Code (for short “the IPC”) was registered. The gist of the information is that on 15.2.1995, the informant’s father, late Jiwan Lal Sharma was admitted as a patient in a private ward of CMC Hospital, Ludhiana. On 22.2.1995 at about 11 p.m., Jiwan Lal felt difficulty in breathing. The complainant’s elder brother, Vijay Sharma who was present in the room contacted the duty nurse, who in her turn called some doctor to attend to the patient. No doctor turned up for about 20 to 25 minutes. Then, Dr. Jacob Mathew, the appellant in the case and Dr. Allen Joseph came to the room of the patient. An oxygen cylinder was brought and connected to the mouth of the patient but the breathing problem increased further. The patient tried to get up but the medical staff asked him to remain in the bed. The oxygen cylinder was found to be empty. There was no other gas cylinder available in the room. Vijay Sharma went to the adjoining room and brought a gas cylinder therefrom. However, there was no arrangement to make the gas cylinder functional and in-between 5 to 7 minutes were wasted. By this time, another doctor came who declared that the patient was dead. Thereafter, Judicial Magistrate First Class, Ludhiana framed charges under Section 304A, IPC against the two accused persons, both doctors. 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. The learned single Judge who heard the petition formed an opinion that a case for quashing the charge was not made out. Feeling aggrieved by the orders of High Court, the appellant approached the Supreme Court by Special Leave.
Issues Before the Court
1. Is there a difference in civil and criminal law on the concept of negligence; and
2. 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?
The Court at the very outset, in the light of present case, made a general observation that with the awareness in the society and the people in general gathering consciousness about their rights, actions for damages in tort are on the increase. Not only civil suits are filed, the availability of a forum for grievance redressal under the Consumer Protection Act, 1986 having jurisdiction to hear complaints against professionals for ‘deficiency in service’, which expression is very widely defined in the Act, has given rise to a large number of complaints against professionals, in particular against doctors, being filed by the persons feeling aggrieved. Criminal complaints are being filed against doctors alleging commission of offences punishable under Section 304A or Sections 336/337/338 of the IPC alleging rashness or negligence on the part of the doctors resulting in loss of life or injury (of varying degree) to the patient
- 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.
- Negligence in the context of medical profession necessarily calls for a treatment with a difference.
- 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 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.
- 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’.
- 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.
- Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law especially in cases of torts and helps in determining the onus of proof in actions relating to negligence.
The Court in light of the above principles laid down certain guidelines that would govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient:
- A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.
- The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam’s test to the facts collected in the investigation.
- A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled 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.
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