Bombay High Court
Dr. Prasanna S/O Sudhakarrao Deshmukh vs State Of Maharashtra on 25 June, 2009
Author: R. M. Borde
Bench: R. M. Borde
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 21 OF 2009
1 Dr. Prasanna s/o Sudhakarrao Deshmukh..
age 34 years, occ. Medical Practice
r/o BD-6, Kasliwal Angan, Ulka Nagari
Aurangabad
Dist. Aurangabad.
2 Sunita d/o Bansi Bhalerao
age 23 years, occ. Service
r/o Gautam nagar, Opp. Govt. Milk Dairy
Aurangabad.
3 Madhav s/o Trimbak Chavan
age 27 years, occ. Service
r/o Aurangabad. .. PETITIONERS
VERSUS
1 State of Maharashtra
2 Amar s/o Wamanrao Deshmukh
age 19 years, occ. Education
r/o c/o Dr. P.A. Deshmukh,
Khokadpura, Aurangabad. .. RESPONDENTS
Shri V.J. Dixit, Senior Counsel holding for Shri S.Y. Mahajan, Advocate for the
petitionres.
Shri V.H. Dighe, APP for the State.
Shri S.J. Salunke, Advocate holding for Shri V.D. Salunke, Advocate for
respondent no. 2.
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2
CORAM : R. M. BORDE, J.
DATE : 25 June, 2009.
th
ORAL JUDGMENT :
1 Heard Shri V.J. Dixit, learned Senior Counsel holding for Shri S.Y. Mahajan, learned counsel for the appellants, Shri V.H. Dighe, learned APP for the State and Shri S.J. Salunke, learned counsel holding for Shri V.D. Salunke, learned counsel for respondent no. 2.
2 Petition was taken up for admission on 28-4-2009. After hearing the arguments for some time, it was agreed by the parties that the petition can be disposed of at admission stage. As such, the matter came to be posted to 15-6-2009. Today the petition is taken up for final hearing. Rule. Rule made returnable forthwith. With the consent of the parties, the matter is taken up for final disposal at admission stage.
3 Petitioner no. 1 is a Medical Practitioner and is a director of Sai Hospital and Critical Care Unit situate in Samarth Nagar, Aurangabad. He holds post graduate degree in medicine and is also an intensivist. Other petitioners are the employees of the Sai Hospital. Petition is presented seeking relief in respect of quashment of the criminal proceeding initiated against the petitioner on registration of Crime No. 555/2008 at Kranti Chowk police station, Aurangabad for offences punishable under section 304-A, 201 r/w section 34 of the Indian Penal Code. It is alleged in the First Information Report that patient by name Shweta Wamanrao Deshmukh was referred to the hospital for treatment by one Dr. Shahpurkar who had diagnosed her as suffering from falciparum malaria. Dr. Shahpurkar is also a post graduate ::: Downloaded on - 09/06/2013 14:43:11 ::: 3 degree holder in medicine. On pathological examination, he has reached the diagnosis that the patient is suffering from falciparum malaria. On admission of the patient, it is contended that she was prescribed medicine quinine tablet. However, she refused to take the drug. As such, it was noted on the case paper accordingly. It transpires that during the night time, quinine was injected to her. However, she developed symptom of Cardiac Toxicity. She was moved to Intensive Care Unit. However, she expired at 1.45 hours.
4 Complainant is the brother of the deceased who has alleged that deceased was sensitive to anti-malarial drug i.e. quinine and had refused to take the tablet. Doctors have exhibited callousness and negligence in administering quinine through intra venous mode. According to the informant, the drug quinine was administered to the patient by the nurse through intra venous mode. Doctor was not present when the drug was administered. After the death of patient, the doctors advised against conducting post mortem examination. As such, no post mortem examination was conducted. It is alleged that death of the patient is as a result of negligence on the part of the doctors. Death of the patient occurred on 14-9-2008 whereas the First Information Report is lodged by brother of the deceased on 5-12-2008. It is stated that police have completed the investigation and the charge sheet is also presented to the court.
5 Copy of the report submitted by the Expert Committee conducting enquiry in respect of the circumstances leading to the death of deceased ::: Downloaded on - 09/06/2013 14:43:11 ::: 4 Shweta is placed on record. The Committee consists of three medical professionals. On perusal of the papers, the Expert Committee has concluded that the patient was suffering from Falciparum malaria and at the time of admission of the patient her vital parameters were normal. The Committee reached conclusion that the patient was not suffering from cerebral Malaria and the death certificate issued in that behalf does not appear to be correct. It is noted in the report that the case papers reveal that at 1.40 pm doctor issued instructions for administering quinine injection 600 mg in 1. slowly over 6 hours. However, after administration of drug, the patient became serious and died at 1.45 am. At the stage of hearing of the petition, final report of Enquiry Committee is also placed on record on which reliance is placed by the respondent. In the final report also the Committee of doctors have confirmed the initial diagnosis that the patient was suffering from falciparum malaria and was not having cerebral malaria. Death of the patient can be attributed to administration of drug quinine. The Committee has opined that there occurs reaction to the drug quinine in rare circumstances, but such possibilities cannot be overlooked totally. The Committee could not conclude as to whether the drug was administered through drip or was pushed by intra venous mode as contended by the relatives of the petitioner. However, if the drug is pushed by intra venous mode, it may result in death of the patient.
6 Shri Dixit, learned senior counsel appearing for the petitioner has vehemently contended that the petitioner no. 1, physician administering the treatment, was qualified and was competent to administer the treatment.
Diagnosis of the patient was also correct and the available mode of ::: Downloaded on - 09/06/2013 14:43:11 ::: 5 treatment for treating malaria is administration of drug quinine. It is contended that even if it is assumed that the patient was not suffering from cerebral malaria, however, the mode of treatment does not change. The prescribed drug for treating falciparum malaria as well as cerebral malaria is quinine. The drug quinine may also cause Cardiac Toxicity which has also been noted by the Expert Committee. However, the patient is likely to react to a drug in different manner and if the death of the patient in the instant matter even if assuming is attributable to administration of anti malaria drug i.e. quinine by intra venous mode, no gross negligence can be attributed to the physician. He further contends that there is difference between 'civil liability' and 'criminal negligence'. It is contended that in order to attract culpability under section 304-A of the Indian Penal Code, it is to be demonstrated that negligence and recklessness is of such a high degree so as to term as 'gross'. The expression 'rash and negligent act' as occurring in section 304-A of the Indian Penal Code is to be read as qualified by word 'grossly'. He contends that a medical professional can be held liable for negligence on one of the two findings; either he does not possess all the requisite skill which he professed to have possessed or, he does not exercise with reasonable competence in the given case the skill which he possesses.
In the instant matter, the petitioner is a qualified medical practitioner possessing post graduate degree in medicine. Diagnosis of the patient was correct so also the line of treatment adopted also cannot be termed erroneous. In such circumstances, it is contended that no negligence is attributable to the petitioner. He further contends that even if liability is required to be fasten, it may be under civil law. A professional may be liable under civil law (or may not be) but the accused / petitioner cannot be ::: Downloaded on - 09/06/2013 14:43:11 ::: 6 prosecuted under section 304-A of the Indian Penal Code on the parameters of Bolam's case.
7 Per contra, it has been urged by learned counsel appearing for the complainant that the petitioner has not exhibited the degree of professional skill as is expected from a medical professional. According to him, deceased was a student of first year BAMS course and she had informed the doctor that she is sensitive to drug quinine. However, inspite of this fact, administration of drug quinine to the patient, amounts to culpable negligence. It is contended that the drug was pushed through vein and, the petitioner no. 1, treating physician was not present when the drug was administered. This, according to the learned counsel for the complainant, amounts to gross negligence, and, as such, the petitioners are liable to be prosecuted.
8 In order to appreciate the arguments advanced by the learned counsel, it would be appropriate to refer to the judgments laying down the principles in respect of medical negligence requiring prosecution of the medical professional.
. In the mater of Dr. Suresh Gupta vs. Govt. of N.C.T. Of Delhi and another reported in 2004 AIR sCW 4442, initiation of criminal proceeding against the medical professional was questioned and quashment of the proceeding was sought taking recourse to provisions of section 482 of the Code of Criminal Procedure. In the reported matter the patient, a young man not having history of heart ailment was subjected to operation ::: Downloaded on - 09/06/2013 14:43:11 ::: 7 performed by Dr. Suresh Gupta for nasal deformity. The operation was neither complicated nor serious. The patient died. On investigation, the cause of death was found to be "not introducing a cuffed endotracheal tube of proper size" so as to prevent aspiration of blood blocking respiratory passage. The court found that the act attributable to the doctor even if accepted to be true, can be described as an act of negligence as there was lack of due care and precaution. For this act of negligence, he may be liable in tort, as carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent so as to make him criminally liable. Taking parallel from Gupta's case (cited supra) it is canvassed that in the given set of facts, a medical professional may be liable in tort but cannot be made criminally liable. Reliance is placed on the observations of the Apex court in paragraph nos. 20 to 26 of the judgment :
20 For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as "gross negligence" or recklessness." It is not merely lack of necessary care, attention and skill. The decision of the House of Lords in R. v. Adomako (supra) relied upon on behalf of the doctor elucidates the said legal position and contains following observations :-
. "Thus a doctor cannot be held criminally responsible for patient's death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State."
21 Thus, when a patient agrees to go for medical treatment or surgical operation, every careless act of ::: Downloaded on - 09/06/2013 14:43:11 ::: 8 the medical man cannot be termed as 'criminal.' It can be termed 'criminal' only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patient's safety and which is found to have arisen from gross ignorance or gross negligence. Where a patient's death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable.
22 This approach of the Courts in the matter of fixing criminal liability on the doctors, in the course of medical treatment given by them to their patients, is necessary so that the hazards of medical men in medical profession being exposed to civil liability, may not unreasonably extend to criminal liability and expose them to risk of landing themselves in prison for alleged criminal negligence.
23 For every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment. Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large because if the Courts were to impose criminal liability on hospitals and doctors for everything that goes wrong, the doctors would be more worried about their own safety than giving all best treatment to their patients. This would lead to shaking the mutual confidence between the doctor and patient. Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an offence of culpable negligence.
24 No doubt in the present case, the patient was a young man with no history of any heart ailment. The ::: Downloaded on - 09/06/2013 14:43:11 ::: 9 operation to be performed for nasal deformity was not so complicated or serious. He was not accompanied even by his own wife during the operation. From the medical opinions produced by the prosecution, the cause of death is stated to be 'not introducing a cuffed endo-tracheal tube of proper size as to prevent aspiration of blood from the would in the respiratory passage.' This act attributed to the doctor, even if accepted to be true, can be described as negligent act as there was lack of due care and precaution. For this act of negligence he may be liable in tort but 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.
25 Between civil and criminal liability of a doctor causing death of his patient the Court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offfence, the standard should be proof of recklessness and deliberate wrong doing i.e. A higher degree of morally blameworthy conduct.
26 To convict, therefore, a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The Courts have, therefore, always insisted in the case of alleged criminal offence against doctor causing death of his patient during treatment, that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable.::: Downloaded on - 09/06/2013 14:43:11 ::: 10
. In this context, reference can be made to a leading judgment of the Apex court concerning the subject in the matter of Jacob Mathew vs. State of Punjab and another reported in AIR 2005 Supreme Court 3180. In the reported matter also criminal proceedings for commission of offence punishable under section 304-A of the Indian Penal Code were initiated against the medical professional on the allegations that the informant's father was admitted as patient in a private ward of CMC Hospital, Ludhiana.
On 22-2-1999 at 11.00 pm he felt difficulty in breathing. Complainant's elder brother contacted the duty nurse who in turn called the doctor to attend the patient. However, the doctor did not turn up for 20 to 25 minutes. Then Dr. Jacob Mathew and other doctor came to the room of the patient.
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. Oxygen cylinder was found to be empty. There was no other gas cylinder available in the room.
One Vijay went to the adjoining room and brought gas cylinder. Thus, there was no arrangement to make the gas cylinder functional and in between 5 to 6 minutes time was wasted. By the time, another doctor came who declared the patient as dead. According to the complainant, the treating doctors were negligent and as such were liable to be prosecuted under section 304-A r/w section 34 of the Indian Penal Code. While dealing with the matter, the Apex court has drawn distinction between 'negligence as tort' and 'negligence as crime'. The Apex court has extensively dealt with all the aspects of negligence by the professionals and has laid down that every type of negligence is not actionable in criminal law. In order to prosecute a ::: Downloaded on - 09/06/2013 14:43:11 ::: 11 medical professional even if section 304-A of the Indian Penal Code does not refer to the word 'gross' the same is to be read into section and the expression rash or negligent act occurring in section 304-A of the Indian Penal Code is to be read as qualified by word 'grossly'. The Apex court has also ruled that the principle of res ipsa loquitur cannot be pressed in service for determining per se liability for negligence within the domain of criminal law. The points those arose for consideration before the Apex court were i) is there difference in civil and criminal law on the concept of negligence and;
ii) whether a different stand is applicable for recording a finding of negligence when a professional, in particular a doctor is to be held guilty of negligence. Negligence is defined in Law of Torts, Ratanlal & Dhirajlal (Twenty fourth Edition 2002) as :
. "Negligence is the breach of a duty caused by the 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. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.-----
. The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the pat of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort."
::: Downloaded on - 09/06/2013 14:43:11 ::: 1212 According to Charlesworth & percy on Negligence (Tenth Edition, 2001), in current forensic speech, negligence has three meanings. They are : (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings. (Para 1.01) The essential components of negligence, as recognized, are three: "duty", "breach" and "resulting damage", that is to say :-
1 the existence of a duty to take care, which is owed by the defendant to the complainant;
2 the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and 3 damage, which is both causally connected with such reach and recognized by the law, has been suffered by the complainant.
. The Apex court has observed in paragraph no. 15 of the judgment thus :
15. 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. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his ::: Downloaded on - 09/06/2013 14:43:11 ::: 13 speech in Andrews v. Director of Public Prosecutions, [1937] AC 576, stated, "Simple lack of care - such as will constitute civil liability is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established." Thus, a clear distinction exists between "simple lack of care" incurring civil liability and "very high degree of negligence" which is required in criminal cases. Lord Porter said in his speech in the same case -- "A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability. (Charlesworth & Percy, idbi, Para 1.13) .
While dealing with the concept of negligence by a medical professional, the Apex court has observed in the judgment thus :
26 A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, ore are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case.
The usual practice prevalent now-a-days is to obtain the consent of the patient or of the person incharge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be ::: Downloaded on - 09/06/2013 14:43:11 ::: 14 found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.
27 No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter productive. Simply because a patient has not 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.
28 Res ipsa loquitur is a rule of evidence which in reality belongs to the law of torts. Inference as to negligence may be drawn from proved circumstances by applying he rule if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. In criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies on the prosecution. Such ingredient cannot be said to have been proved or made out by resorting to the said rule (See Syad Akbar v. State of Karnataka (1980) 1 SCC 30). Incidentally, it may be noted that in Krishnan and Anr. v. State of Kerala (1996) 10 SCC 508 the Court has observed that there may be a case where the proved facts would themselves speak of sharing of common intention and while making such observation one of the learned judges constituting the Bench has in his concurring opinion merely stated "res ipsa loquitur". Nowhere it has been stated that the rule has applicability in a criminal case and an inference as to an essential ingredient of an offence can be found proved ::: Downloaded on - 09/06/2013 14:43:11 ::: 15 by resorting to the said rule. In our opinion, a case under Section 304A IPC cannot be decided solely by applying the rule of res ipsa loquitur.
29 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.
Obviously,therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the enddose of medicine to his patient.
30 If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason - whether attributable to himself or not, neither a surgeon can successfully wield his life-saving scalper to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to the society.
31 The purpose of holding a professional liable for his act or omission, if negligent, is to make the life safer and to eliminate the possibility of recurrence of negligence in future. Human body and medical science both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the ::: Downloaded on - 09/06/2013 14:43:11 ::: 16 nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.
32 The subject of negligence in the context of medical profession necessarily calls for treatment with a difference. Several relevant considerations in this regard are found mentioned by Alan merry and Alexander McCall Smith in their work "Errors, Medicine and the Law" (Cambridge University Press, 2001). There is a marked tendency to look for a human actor to blame for an untoward event a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. To draw a distinction between the blameworthy and the blameless, the notion of mens rea has to be elaborately understood. An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner and equally it may not. The inadequancies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor's contribution is either relatively or completely blameless. Human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the operator i.e. The doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how in real life the doctor functions. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine.
::: Downloaded on - 09/06/2013 14:43:11 ::: 17. Conclusions are drawn in paragraph no. 49 of the judgment. Those are :-
49 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 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 ::: Downloaded on - 09/06/2013 14:43:11 ::: 18 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.
3A 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 WLR 582, 586 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 ::: Downloaded on - 09/06/2013 14:43:11 ::: 19 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 at' as occurring in Section304A of the IPC has to be read as qualified by the word 'grossly'.
7To 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.
. While dealing with the case in hand, the Apex court has recorded that the averments made in the complaint ( in reported judgment) even if held to be proved do not make out case of criminal rashness or negligence on the part of accused / appellant. It is not the case of the complainant ::: Downloaded on - 09/06/2013 14:43:11 ::: 20 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 hospital having failed to keep available the gas cylinder or because of gas cylinder being found empty. Then, probably the hospital may be liable in civil law (or may not be) but the accused appellant cannot be proceeded against under Section304A IPC on the parameters of Bolam's test.
9 In the instant case also, petitioner no. 1, treating physician, is qualified to administer treatment. He possesses adequate degree of knowledge as well as skill to treat the patients. Diagnosis of the physician that the patient was suffering from malaria cannot be said to be incorrect. It is also not disputed that quinine is the drug prescribed for treating the ailment. Even if, assuming that the patient was not suffering from cerebral malaria, there is no duel opinion that for treating patient for falciparum malaria or cerebral malaria, the drug which is generally administered is quinine. The Committee has also observed in the report that the doctor had directed to administer the drug slowly over a period of six hours. It is also not unknown that the drug has a side effect of (Cardiac Toxicity). In such circumstances, merely because the doctor was not present when the injection was administered, could not be the reason for holding him liable under criminal law. It is also reported by the Committee citing reference to the authority on the subject "Goodman and Gilman's The Pharmacological Basis of Therapeutics, 11 th Edn., page no. 1038-1039" that quinine is the choice of treatment for resistance of falciparum malaria despite its antiquity and considerable toxicity. It is also noted in the text that the drug may cause Cardio Vascular ::: Downloaded on - 09/06/2013 14:43:11 ::: 21 complications. It is thus clear that the line of treatment adopted by the doctor was correct and the drug usually administered has side effect in respect of Cardiac Toxicity. In this situation therefore, merely because the patient reacted adversely on administration of drug cannot be attributed to the treating physician and in any case he cannot be held liable for criminal negligence.
10 Learned counsel for the complainant has placed reliance on a judgment in the matter of Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole and another reported in AIR 1969 Supreme Court 128. Reported matter is in respect of tortuous liability and is not relevant for the purpose of determination of criminal liability of the medical professional. Learned counsel for the complainant has also placed reliance on a judgment in the matter of Dr. Jacob Mathew to which reference has been made in the instant judgment quite extensively. It is contended that the negligence exhibited by the doctor is gross negligence and as such, proceeding cannot be quashed. However, considering the facts and circumstances of this case, I am of the opinion that the petitioners cannot be held criminally liable for the act alleged against them. On careful consideration of the parameters laid down by the Apex court while dealing with the aspect of fastening criminal liability against the medical professionals, I am of the opinion that the petitioner herein cannot be held responsible for commission of offence under section 304-A of the Indian Penal Code. Criminal proceedings initiated at the instance of the complainant / respondent no. 2 herein therefore are required to be quashed. In the result the petition deserves to be allowed and the same is accordingly allowed. Criminal ::: Downloaded on - 09/06/2013 14:43:11 ::: 22 proceeding initiated against the accused pursuant to registration of Crime No. 555/08 registered at Kranti Chowk police station, Aurangabad and the proceedings taken up before the court in pursuance to presentation of the charge-sheet in the matter are quashed and set aside. Rule is accordingly made absolute.
( R. M. BORDE, J.) dyb/office/cwp21.09.odt ::: Downloaded on - 09/06/2013 14:43:11 :::