2005 Supreme(SC) 988

2005(5) Supreme 297
Supreme Court of India
(From Punjab and Haryana High Court)
R.C. Lahoti, CJI, G.P. Mathur & P.K. Balasubramanyan, JJ.
Jacob Mathew —Appellant
versus
State of Punjab & Anr. —Respondents
Criminal Appeal Nos. 144-145 of 2004
Decided on 5-8-2005
Counsel for the Parties :
For the Appearing Parties : G.E. Vahanvati, Solicitor General, Rakesh Dwivedi, Ashok H. Desai, Vivek K. Tankha, Sr. Advocates, Rupinder Singh Suri, Mrs. Gurvinder Suri, Jagjit Singh Chhabra, Atul Nanda, Addl. Advocate General for State of Punjab, Bimal Roy Jad, P.N. Suri, Maninder Singh, Kirtiman Singh, Saurabh Mishra, Angad Mirdha, Mrs. Pratibha M. Singh, Devadatt Kamat, Ms. Rameeza Hakem, Chinmoy Pradip Sharma, Hrishikesh Barua, Ms. Suruchi Suri, Ravinder Narain, Ms. Sushma Sharma, Ms. Meghalee Barthakur, Ms. Kanika Gamber, Rajan Narain, Harekhrishna Upadhyaya, Prashant Kumar, Siddhartha Singh Chauhan, Harsh Pathak, A.A. Maitrya, Praveen Khattar, Mrs. Sudha Gupta, Avik Datta and V.K. Monga, Advocates.

Very important points
1. A private complaint may not be entertained against a doctor 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.2. 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 the arrest is necessary for furthering the investigation or for collecting evidence.3. Simply because a patient has 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.

Headnote:(i) Indian Penal Code, 1860—Section 304A/34—Medical negligence —Concept of—Liability under civil law and under the criminal law—Distinction —FIR filed by respondent alleging carelessness of doctors and nurses and non availability of oxygen cylinders resulting in death of his father—Complainant’s father was admitted as a patient in appellant’s hospital—Patient felt difficulty in breathing—Oxygen cylinder available was found empty—There was no arrangement to make the gas cylinder functional—Patient died as much time was wasted—Charges under Section 304A/34 IPC were framed against two doctors—Revision filed by doctors submitting that there was no ground for framing charges against them as the patient was treated with utmost care and caution and given all the required medical assistance by doctors and para medical staff—Whether accused can be pro­ceeded against under Section 304A IPC —(No)—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 appellant doctors.

       Held : As the question of medical negligence arose for consideration, we thought it fit to issue notice to Medical Council of India to assist the Court at the time of hearing which it has done. In addition, a registered society - ‘People for Better Treatment’, Kolkata; Delhi Medical Council, Delhi Medical Association and Indian Medical Association sought for intervention at the hearing as the issue arising for decision is of vital significance for the medical profession. They too have been heard. Mainly, the submissions made by the learned counsel for the parties and the intervenors have centred around two issues : (i) Is there a difference in civil and criminal law on the concept of negligence?; and (ii) 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? 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. The present one is such a case. The order of reference has enabled us to examine the concept of ‘negligence’, in particular ‘professional negligence’, and as to when and how it does give rise to an action under the criminal law. We propose to deal with the issues in the interests of settling the law. (Paras 9 and 10)

       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 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. When it comes to the failure of taking precautions what has to be seen is whether 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 W.L.R. 582, 286 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 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 act’ as occurring in Section 304A 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.

       In view of the principles laid down hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr. Suresh Gupta’s case (2004) 6 SCC 422 and re-affirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh Gupta’s case. We may not be understood as having expressed any opinion on the question whether on the facts of that case the accused could or could not have been held guilty of criminal negligence as that question is not before us. We also approve of the passage from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Suresh Gupta’s case. (Paras 49 and 50)

       Reverting back to the facts of the case before us, we are satisfied that 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 non-availability 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 (or may not be — we express no opinion thereon) but the accused appellant cannot be proceeded against under Section 304A IPC on the parameters of Bolam’s test. (Para 54)

       (ii) Indian Penal Code, 1860—Section 304A—Medical negligence—Cases of doctors (Surgeons and Physi­cians) being subjected to criminal pro­se­cution—Guidelines issued by the Supreme­ Court.

       Held : As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. 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 IPC. 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. We 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 we are 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 prosecutions. Many a 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. Statutory Rules or Executive Instruc­tions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should 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. (Paras 51 to 53)