2013 Supreme(SC) 864

Supreme Court of India
A.K. PATNAIK & A.K. SIKRI, JJ.
Dr. P.B. Desai
Versus
State of Maharashtra & Another
Criminal Appeal No. 1432 of 2013 (Arising Out of S.L.P.(Crl.).No. 9568 of 2012)
Decided On : 13-09-2013

IMPORTANT POINT
Failure to act on the part of the appellant, in conducting surgical procedure, and not taking care thereafter as well, established his negligence in tort law i.e. in civil domain.
The crime as mentioned in section 338 I.P.C requires proof that the appellant caused the patient’s condition to the acute stage.

Headnote:Indian Penal Code, 1860- Section 32, 33 & 36- act include omission- There may be various circumstances where "act" would include "omission to act" as well. This is so recognized even in Sections 32, 33 & 36 of I.P.C.

        An omission is sometimes called a negative act, but this seems dangerous practice, for it too easily permits an omission to be substituted for an act without requiring the special requirement for omission liability such as legal duty and the physical capacity to perform the act. Criminal liability for an omission is also well accepted where the actor has a legal duty and the capacity to act. It is said that this rather fundamental exception to the act requirement is permitted because an actor’s failure to perform a legal duty of which he is capable, satisfies the purposes of the act requirement or at least satisfies them as well as an act does. Specifically these two special requirements for omission liability help to exclude from liability cases of -fantasizing and irresolute intentions, important purposes of the act requirement.

        Inaction often carries no implication of intention unless it is shown that the actor knows of his or her duty to act and the opportunity to do so.

        Liability for an omission requires a legal duty to act; a moral duty to act is not sufficient. (Paras 29, 30, 31, 32)

        Indian Penal Code, 1860- Section 36- Liability for omission of legal duty- Since there is no moral difference between (i) a positive act and (ii) an omission when a duty is established, it is to be borne in mind that cases of omissions, the liability should be exceptional and needs to be adequately justified in each instance. Secondly, when it is imposed this should be done by clear statutory language. Verbs primarily denoting (and forbidding) active conduct should not be construed to include omissions except when the statute contains a genuine implication to this effect. Thirdly, maximum penalties applied to active wrongdoing should not automatically be transferred to corresponding omissions; penalties for omissions should be re-thought in each case. (Paras 33, 34)

        Indian Penal Code, 1860- Section 338 r/w Section 109- Before a person is held guilty of the offence, following ingredients need to be established:

        a) Causing grievous hurt to a person.

        b) Grievous hurt should be the result of an act.

        c) Such act ought to have been rash and negligent.

        d) The intensity of commission of such an act ought to endanger human life or the personal safety of others. (Para 23)

        Indian Penal Code, 1860- Section 338 - Medical preofession- Indeed section 338 of the I.P.C does recognize unambiguously that the particular offence can be committed by omission. More so, the medical profession is included in it. The offence under section 338 of the I.P.C is capable of being committed by omission. (Para 33)

        The section itself carves out the standard of criminal negligence intended to distinguish between those whose failure is culpable and those whose conduct, although not up to standard, is not deserving of punishment. (Para 38)

        The decision of the appellant advising Exploratory Laparatomy was not an act of negligence, much less wanton negligence, and under the circumstances it was a plausible view which an expert like the appellant could take keeping in view the deteriorating and worsening health of the patient. As a consequence, opening of the abdomen and performing the surgery cannot be treated as causing grievous hurt. It could have been only if the doctors would have faltered and acted in rash and gross negligent manner in performing that procedure. It is not so. At the same time, his act of omission, afterwards, in not doing the surgery himself and remaining absent from the scene and neglecting the patient, even thereafter, when she was suffering the consequences of fistula, is an act of negligence and is definitely blame worthy. (though that is not the part of criminal charge) However, we are of the opinion that the omission is not of a kind which has given rise to criminal liability under the given circumstances. (Para 62)

        Medical negligence- The Doctor- Patient relationship- The existence of a doctor-patient relationship presupposes any obligations and consequent liability of the doctor to the patient. The formation of a doctor-patient relationship is integral to the formation of a legal relationship and consequent rights and duties, forming the basis of liability of a medical practitioner. Due to the very nature of the medical profession, the degree of responsibility on the practitioner is higher than that of any other service provider. The concept of a doctor -patient relationship forms the foundation of legal obligations between the doctor and the patient. (Paras 37, 38)

        Medical negligence- Duty of Care which a doctor owes towards his patient- Whenever the principle of ’duty to take care’ is founded on a contractual relationship, it acquires a legal character. Contextually speaking, legal ’duty to treat’ may arise in a contractual relationship or governmental hospital or hospital located in a public sector undertaking. (Para 40)

        One of the many indispensable duties which is of utmost importance is that when such a decisional shift is taken by a doctor against the line of renowned doctor who had earlier treated the patient, that doctor must exercise required personal attention to the patient during the operation. (Para 58, 59)

        Medical negligence- Breach of duty by medical professional amounting to negligence- When reasonable care, expected of the medical professional, is not rendered and the action on the part of the medical practitioner comes within the mischief of negligence, it can be safely concluded that the said doctor -did not perform his duty properly which was expected of him under the law and breached his duty to take care of the patient. (Para 41)

        Medical negligence- Consequences of Breach of duty to take care by medical professional- Civil liability- If the patient has suffered because of negligent act/ omission of the doctor, it undoubtedly gives right to the patient to sue the doctor for damages. This would be a civil liability of the doctor under the law tort and/ or contract. (Para 42)

        From the point of view of civil law it may be appropriate to impose liability irrespective of moral blameworthiness. (Para 44)

        Medical negligence- Consequences of Breach of duty to take care by medical professional- Civil liability- A negligent act, normally a tort, may also give rise to criminal liability as well. as far as the sphere of criminal liability is concerned, as mens rea is not abandoned, the subjective state of mind of the accused lingers a critical consideration. (Para 43, 45)

        The only state of mind which is deserving of punishment is that which demonstrates an intention to cause harm to others, or where there is a deliberate willingness to subject others to the risk of harm. Negligent conduct does not entail an intention to cause harm, but only involves a deliberate act subjecting another to the risk of harm where the actor is aware -of the existence of the risk and, nonetheless, proceeds in the face of the risk. (Para 46)

        If the conduct in question involves elements of recklessness, then it is punishable and should not be described as merely negligent. If, however, there is nothing to suggest that the actor was aware of the risk deliberately taken, then he is morally blameless and should face, at the most, a civil action for damages. (Para 47)

       Facts of the Case :

        The complainant was suffering from Cancer and was under medical treatment for last 10 year. She was sent home by the American doctors as inoperable. She was advised to take certain medicines. These medicines were being administered by Dr. Mukherjee. However, further complications arose in the meantime as vagina started bleeding which was not coming to a halt. Obviously, it was terminal stage for the patient. It is in this situation, opinion of the appellant was sought.

       Findings of the Court :

        The dilemma of a doctor in such a scenario can be clearly visualized viz., whether to leave the patient as it is or to take a chance, may be a very slim chance, to save or at least to try to prolong the life of the patient. It was not -an easy choice. Overcoming this difficult situation, the appellant took the bold decision viz. that surgical operation was worth taking a risk, as even otherwise, the condition of the patient was deplorable. it cannot be said that advise of the appellant for taking the surgical procedure was an act of wanton negligence.

        The appellant’s omission in not rendering complete and undivided legally owed duty to patient and not performing the procedure himself has not made any difference. It was not the cause of the patient’s death which was undoubtedly because of the acute chronic cancer condition. In such a scenario, it is enough to keep off the clutches of criminal law.

       Result : Appeal allowed.