negligence or incompetence on the doctor’s part which went beyond a mere question of compensation on the basis of civil liability. Criminal liability would arise only if the doctor did something in disregard of the life and safety of the patient. Certain directions have also been given in the case. Negligence, in simple terms, is the failure to take due care and caution. It is a breach of a duty caused by the omission to do something, which a reasonable person – guided by those considerations, which ordinarily regulate the conduct of human affairs –should have done. It may also be doing something, which a prudent and reasonable person would not have done. The essential components of negligence are: ‘duty’, ‘breach’ and ‘resulting damage’. These definitions are rather relative and can change with the circumstances. When trying to drag a person away from the clutches of an attacking animal, one cannot ask whether this would cause damage to the person’s limbs. Doctors can also be faced with similar contingencies. On finding an accident victim in a dangerous condition, a doctor may have to attempt a crude form of emergency surgery to try and save the person’s life. No negligence is involved in such cases. Under the civil law, victims of negligence can get relief in the form of compensation from a civil court or the consumer forum. Here, the applicant only needs to prove that an act took place that was wanting in due care and caution, and the victim consequently suffered damage. There is a difference between civil and criminal negligence. However, in certain circumstances, the same negligent act may also be seen as criminal if it constitutes an offence under any law of the land. Since the medical profession renders a noble service, it must be shielded from frivolous or unjust prosecutions. With this perspective in mind the Court went into the question as to what is actionable negligence in the case of professionals. The law now laid down is as follows in the case of medical negligence: A simple lack of care, an error of judgment or an accident, even fatal, will not constitute culpable medical negligence. If the doctor had followed a practice acceptable to the medical profession at the relevant time, he or she 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. Professionals may certainly be held liable for negligence if they were not possessed of the requisite skill which they claimed, or if they did not exercise, with reasonable competence, the skill which they did possess. The word ‘gross’ has not been used in Section 304A of IPC. However, as far as professionals are concerned, it is to be read into it so as to insist on proof of gross negligence for a finding of guilty.\ The maxim Res ipsa loquitur (Let the event speak for itself; no other evidence need be insisted) is only a rule of evidence. It might operate in the domain of civil law; but that by itself cannot be pressed into service for determining the liability for negligence within the domain of criminal law. It has only a limited application in trial on a charge of criminal negligence. Statutory Rules or executive instructions incorporating definite guidelines governing the prosecution of doctors need to be framed and issued by the State and Central governments in consultation with the Medical Council of India (MCI). Until this is done, private complaints must be accompanied by the credible opinion of another competent doctor supporting the charge of rashness or negligence. In the case of police prosecutions, such an opinion should preferably from a doctor in government service. Doctors accused of rashness or negligence may not be arrested simply because charges have been leveled against them; this may be done only if it is necessary for furthering the investigation, or for collecting evidence, or if the investigating officer fears that the accused will abscond. Ordinary experience of men has found The Supreme Court has not stated, even now, that doctors can never be prosecuted for medical negligence. It has only emphasized the need for care and caution in prosecuting doctors in the interests of society. A certain amount of immunity or extra insulation is now allowed to them considering the noble service rendered by their fraternity and in view of the reports that complainants often use criminal cases to pressurize medical professionals and to extract unjust compensation. Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of 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 medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he can not be held liable foe 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 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 Prosecuting medical professionals police on an FIR being lodged and cognizance taken file by private complaints and such prosecutions sometimes. The investigating officer and the private complaint can not always supposed to have knowledge of medical science so as to determine whether the act of the 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 he has suffered in his reputation cannot be compensated by any standards. Doctor can never be prosecuted for an offence of Which rashness or negligence is an essential component? All that we are doing is to emphasize he 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 the doctors from frivolous or unjust prosecutions. Many a complaint prefers recourse to criminal process as a tool for pressuring the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against Statuary Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and / or State Governments in consultation with the Medical Council of India. So long as it is not done we propose to lay 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 accused doctor. The investigating officer, 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 Belem’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 leveled against him). Unless his arrest is necessary for furthering the investigation or for collection 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. The Law of Medical Negligence Abstracts from Selected Indian and Foreign Cases Affecting Doctors An effort has been made to collect material from some important Indian and Foreign decided cases where action was brought against Medical Professionals for alleged negligence and malpractice. Abstracts from a few such cases are being given hereunder for the benefit of the readers. Criminal liability in medical practice Legal liability in medical practice can be both civil and in rare cases criminal. Justice is administered both by the civil courts and the criminal courts. Offences against civil rights and liberties are redressed in the civil courts and criminal offences are punished by the criminal courts. The object of civil proceedings is to enforce a right – civil liability being wholly remedial. Whereas the object of criminal proceedings is to punish wrongs – criminal liability being wholly penal. In a civil trial, the civil courts decide whether the civil rights of a person are violated and if so, what the compensation is due and payable to him whereas the criminal courts determine the guilt or the innocence of a person. In criminal wrongs, the wrong doer is punished either by imprisonment or by fine or by both. Whereas in a civil wrong the injured party is compensated for the damage caused, which is paid to him by the wrong doer. Criminal wrongs are more harmful. They are supposed to be wrongs against the public at large whereas civil wrongs are less harmful and are wrongs against individuals and not against the society. Salmond distinguished criminal wrongs as ‘public wrongs’ and civil wrongs as ‘private wrongs’ and so in criminal wrongs, the State constitutes itself as a party to the proceedings, viz- the criminal proceedings are filed by the State. Private criminal proceedings can also be filed. In civil proceedings, the aggrieved individual moves to the civil court for compensation. The duty to take the requisite care and caution while treating a patient is a duty cast both under the civil law as well as the criminal law. Indifference to an obvious risk of injury to health Actual foresight of the risk coupled with the determination nevertheless to run it An appreciation of the risk coupled with an intention to avoid it, but the attempted avoidance involves a very high degree of negligence and Inattention to a serious risk, which goes beyond ‘mere inadvertence’ in respect of an obvious and important matter which the doctor’s duty, demanded, he should address. In short, the settled law is that the prosecution must prove The existence of duty to take care; A breach of duty causing death; and The breach of duty must be characterized as gross negligence. Whether the doctor’s breach of duty amounted to gross negligence, depended on the seriousness of the breach of duty committed by him in all the circumstances in which he was placed when the breach occurred. Furthermore what must also be considered is whether, having regard to the risk of death involved, the conduct of the doctor was so bad in all the circumstances as to amount to a criminal act or omission. This criterion of recklessness is based upon the premise that the doctor himself created the obvious and serious risk. Often the risk of danger to health is not created by the doctor, but pre-exists the doctor assuming a duty of care to the patient. It is thus, clear that the doctor must be proved to have been indifferent to an obvious risk of injury to health, or has actually so foreseen the risk but determined nevertheless to run it. Death due to medical negligence is an offence, which can be agitated both in the criminal court, under the Indian Penal Code or in the consumer court under the relevant sections of the Consumer Protection Act or alternatively the same may also be agitated in the civil courts under the Law of Torts. Section 304A of The Indian Penal Code deals with death caused by a rash or negligent act. The main difference between murder (section 302 IPC) and death due to a rash and a negligent act (section 304A IPC) is that in the former the reason to bring about death is ’intentional’ whilst in the latter; death is caused by an act where proper care and caution is not taken. The punishment under section 304A is two years imprisonment and fine. In criminal law, death due to negligence is not as severely punished as murder (intentional act). Whenever there is death due to negligence of a doctor, the State always books the doctor under s 304A of the Indian Penal Code and not under section 302. Rashness and negligence are not the same things. Negligence cannot be construed to mean rashness. There are different degrees of negligence and rashness. In order to amount to criminal rashness or criminal negligence the courts must find out that the rashness has been 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 to be occasioned thereby. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences. Moreover, in applying the above criterion it is necessary to avoid being influenced by the prejudice arising out of the loss of a life, which is so dominant a factor in accident cases. The distinction between the negligence, which is sufficient ground for a civil action, and the higher degree, which is necessary in criminal proceedings, is sharply insisted on in several cases. In criminal cases, the amount and degree of negligence are the determining factors. There must be mens rea in the criminal negligence also. In order to establish criminal liability the facts must be such that the negligence of the accused sent the case beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime. Simple lack of care such as will constitute civil liability is not enough.”? “The duty of a medical man, who undertakes the treatment of a patient, is to use a fair and reasonable standard of care and competence. Before a medical man can be held criminally responsible for the death of his patient, the prosecution must prove all matters necessary to establish civil liability, except pecuniary loss, and in addition must prove negligence or incompetence on his part which went beyond a mere matter of compensation between citizens and showed such disregard for the life and safety of others as to amount to a crime against the State. Where a doctor prepared an injection by dissolving some powder in water which he gave to fifty-seven children of whom five died and others were made ill, it was held that negligence, to be criminal, must be gross and that the only negligence on which reliance could be placed being the single act of dissolving the powder in water, a criminal degree of negligence had not been proved merely because too strong a mixture had once been dispensed and a number of children made gravely ill.” “Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in the circumstances which show that the actor has not exercised the caution, incumbent upon him, and that if he had, he would have had the consciousness. The immutability arises from the neglect of the civic duty of circumspection. It is manifest that personal injury, consciously and intentionally caused, cannot fall within either of these categories which are wholly inapplicable to the case of an act or series of acts, themselves intended, which are the direct producers of death. “Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury, but without intention to cause injury or without knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally, or to an individual in particular, which, having regard to all the circumstances, out of which the charge has arisen, it was the imperative duty of the accused person to have adopted’,” Nelson has further on the same page mentioned: “When one does an act with utter indifference to the consequences of which the doer may be conscious and which, he knows, may not take place, one is said to be rash while criminal negligence is neglect to take that precaution which a reasonable and prudent person is expected to take under the circumstances obtaining in a given case.” This section, then, does not apply to cases in which there has been a voluntary commission of an offence against the person. If a man intentionally commits such an offence and consequences beyond his immediate purpose result, it is for the court to determine how far he can be held to have the knowledge that he was likely, by such act, to cause the actual result. If such knowledge can be imputed, the result cannot be attributed to mere rashness: if it cannot be imputed, still the willful offence does not take the character of rashness, because its consequences have been unforeseen.” “It is not merely a lack of necessary care, attention and skill. When a person agrees to go for medical treatment or surgery, every careless act of the medical man cannot be termed ’criminal’. It could be termed ’criminal’ only when the medical man exhibits gross loss of competence or inaction and wanton indifference to the patient’s safety and which is found to have arisen from ignorance or gross negligence.” Rejecting the doctor’s gross negligence in his act, the Supreme Court has now termed Gupta’s negligence liable in court but said “his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable.” Medical Negligence – How far should doctors be held liable? Supreme Court settled the position and ruled that Medical Services falls within the purview of Consumer Protection Act Compelled by circumstances, different judgments of various courts including National Commission’s ruling out IMA stand on the issue of inclusion of medical services within the purview of medical services and various appeals by other parties before the Supreme Court, the Indian Medical Association approached Supreme Court vide and extends to any or all-actual or potential users. Further in discussion the Supreme Court dealt with the distinction between profession and occupation. It was noted that though medical practitioners belong to the medical profession, but are not different from any other professional providing his services based on knowledge, skill and experience but the deficiency or negligence while providing these services couldn’t be exempted from damages. The fact that they are governed by IMC and subject to some disciplinary clauses of MCI/State Councils is of no solace to the person who has suffered due to their negligence and the right of such person to seek redress is not effected. Regarding ‘contract of personal service’ the learned judges did not agree and brushed aside the contention saying that ‘Doctor-Patient Relationship’ cannot be called contract of personal service and be equated to ‘Master-Servant relationship’ i.e. who pays the piper calls the tune. To some extent he may be servant of society but with society having distrust in paternalistic attitude of doctors – doctor also has little wish to be paternalistic – with commercialization as well as consumerism having entered in medical services, these can at best be regarded as services of personal nature but can’t be treated as contract of personal service. The Supreme Court similarly disposed off argument that forums having non-judicial members are not capable of handling and analyzing complex medical cases of alleged negligence. It agreed with the opinion of Prof. White that such Tribunals (such as CPA) present an opportunity to develop a model of adjudication that combines the merit of lay decision (application of common sense, general standards, reasonableness, fairness and good faith without being too technical) with legal competence (aided by judicially capable legal man) and this would generate public confidence. The Supreme Court while delivering judgment on the appeal of IMA and other SLPs and Writ petitions regarding application of Consumer Protection Act to medical professionals on 13th November 1995 arrived at the following conclusions: the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act. A ‘contract of personal service’ has to be distinguished from a ‘contract for personal services’. In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a ‘contract of personal service’. Such service is service rendered under a ‘contract for personal services’ and is not cover Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of ‘services’ as defined in Section 2(1)(o) of the Act. The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under ed by exclusionary clause of the definition of ‘service’ contained in Section 2(1)(o) of the Act. The expression ‘contract of personal service’ in Section 2(1)(o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of ‘service’ as defined in Section 2(1)(o) of the Act. Service rendered free of charge by a medical practitioner attached to a hospital/Nursing Home or a medical officer employed in a hospital/Nursing Home where such services are rendered free of charge to every body, would not be ‘service’ as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/Nursing Home would not alter the position. Service rendered at a non-Government hospital/Nursing Home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service is outside the purview of the expression ‘service’ as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/Nursing Home would not alter the position. Service rendered at a Non-Government Hospital/Nursing Home where charges are required to be paid by the persons availing such services falls within the purview of the expression ‘service’ as defined in Section 2(1)(o) of the Act. Service rendered at a Non-Government Hospital/Nursing Home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression ‘service’ as defined in Section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay such services. Free service would also be “service” and the recipient a ‘consumer’ under the Act. Service rendered at a Government Hospital/Health Center/Dispensary where no charge whatsoever is made from any person availing the service and all patients (rich or poor) are given free service is outside the purview of the expression ‘service’ as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position. Service rendered at a Government Hospital/Health Center/Dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression ‘service’ as defined in Section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be ‘service’ and the recipient a ‘consumer’ under the Act. Service rendered by a medical practitioner or a hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care where under the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of ‘service’ as defined in Section 2(1)(o) of the Act. Similarly, where, as a part of the condition of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute ‘service’ under Section 2(1)(o) of the Act. In view of the above conclusions, the Supreme Court dismissed IMA’s appeal as well as all other SLPs and Writ Petitions related to these issues and before it. Negligence by Medical Practitioners The cases come to court where the patients or their family members claim damages and compensation from the medical practitioners on the ground that the medical practitioner/doctor was negligent in treating operating the patient. Before the enforcement of the Consumer Protection Act, 1986 such cases were tried by the ordinary civil courts and the cases were quite few, but after the enforcement of the said Act, there has been a tremendous increase in such type of cases and the cases are now being tried and disposed of by the Redressal Agencies, like the District Forum, State Commission and the National Commission, constituted under the Consumer Protection Act. This increase in the number of cases could be attributed to various reasons, one being that the complainant had to pay no amount as fee for seeking the redress (though now, by the Amendment Act of 2002, a nominal amount has been made payable before filing the complaint). The other reason seems to be the early disposal of the cases under the Consumer Protection Act. Such cases in Civil Courts use to take several years for decision but the time limit fixed under the Act is three months. One reason also could be the awareness in the public regarding their rights but the fact remains that generally the public is not aware of the true import of the word ‘Medical Negligence’. MEDICAL OR PROFESSIONAL NEGLIGENCE Thus, the question naturally arises as to what is the ‘medical negligence’ or ‘professional negligence’. It is necessary because negligence is the pre-condition for filing a case, or fastening any liability, on medical practitioner for damages and compensation. If there is no negligence, no damages would be awarded. Commonly, negligence is omission to do something, which a reasonable man, guided upon the considerations, which ordinarily regulate the conduct of human affairs, would do, or doing something, which a prudent and reasonable man would not do. Winfield has defined this term as ‘the breach of legal duty to take care which results in damage undesired by the defendant to the plaintiff. It is defined as want of reasonable degree of care and skill or willful negligence on the part of the medical practitioner in the treatment of a patient with whom a relationship of professional attendant is established so as to lead to his bodily injury or permanent disability or loss of life1. The law on the subject is very considerate to medical profession2. The Courts and textbook writers have defined this term in various ways, such as, carelessness, want or absence of care, failure to exercise such care and skill as LEGAL STUDY OF NEGLIGENCE After referring to a number of judicial decisions, also repeated the observation that ‘professional negligence or medical negligence may be defined as want of reasonable degree of care and skill or willful negligence on the part of a medical practitioner in the treatment of a patient with whom the relationship of professional attendant is established so as to lead to his bodily injury or to the loss of his life. In a recent judgment13 the Supreme Court elaborately discussed this point. Though that was a case against a doctor under Section 304-A, read with Section 34, of the Indian Penal Code, yet the Supreme Court discussed the professional or medical negligence in quite a detail and summarized practically the entire law existing on the subject. Since the question of medical negligence arose in that case, notice to the Medical Council of India was also sent and it was also heard. The Supreme Court had discussed ‘Negligence as a Tort’, ‘Negligence – as a Tort and as a Crime’, Negligence by Professionals’ and ‘Medical Professionals in Criminal Law’. The observations made by the Court provide guideline for all the subordinate courts and have far reaching effect and, therefore, it would be appropriate to see the observations in detail. The Court observed: “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 assumes the person dealing with him that the skill, which he professes to possess, shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one or 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 necessary for every professional to possess the highest level of expertise in that branch which he practices and Percy on Negligence Para 8.03).” The Court continued to observe: “An off quoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such awareness as an ordinary competent practitioner would have of the deficiencies in his knowledge and the limitations of his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other Ordinary competent members of the profession would be alert. 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