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(4) The test for determining medical negligence as laid down in Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582, at p.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 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.

52. 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 [1957] 1 W.L.R. 582, 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."

The Supreme Court in the case of Martin F. D'Souza v.
Mohd. Ishfaq reported in (2009) 3 SCC 1 has held as under:-
31. As already stated above, the broad general principles of medical negligence have been laid down in the Supreme Court judgment in Jacob Mathew v.

State of Punjab [(1957) 1 WLR 582 : (1957) 2 All ER 118] . However, these principles can be indicated briefly here:

The basic principle relating to medical negligence is known as the Bolam Rule. This was laid down in the judgment of McNair, J. in Bolam v. Friern Hospital [(1957) 1 WLR 582 : (1957) 2 All ER 118] as follows : (WLR p. 586) "... where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."
21. So far as this Court is concerned, a three-Judge Bench in Jacob Mathew v. State of Punjab [Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 : 2005 SCC (Cri) 1369] examined this issue. R.C. Lahoti, C.J. (as he then was) speaking for the Bench extensively referred to the law laid down in Bolam case [Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582 :
(1957) 2 All ER 118 (QBD)] and in Eckersley case [Eckersley v. Binnie, (1988) 18 Con LR 1 (CA)] and placing reliance on these two decisions observed in his distinctive style of writing that the classical statement of law in Bolam case [Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] has been widely accepted as decisive of the standard of care required by both of professional men generally and medical practitioner in particular and it is invariably cited with approval before the courts in India and applied as a touchstone to test the pleas of medical negligence.