Doctors undertake the risk of dealing with the most intricate, delicate and complex machine on earth—the human body. Any surgical procedure or medical intervention on this highly complicated machine carries some inherent risks. There is always the chance that the treatment does not go as planned. When things go wrong, it is not always the fault of the doctor. A complication by itself does not constitute negligence. There is a big difference between an adverse or untoward event, and negligence. However, there is a growing tendency to accuse the doctor in case of an adverse or untoward event. Nothing can be more professionally damaging and emotionally draining than being arrayed as an accused in any such action.
The Kerala High Court made the above observation while hearing criminal appeals by three doctors and three nurses convicted by a lower court under Sections 304A (causing death by negligence) and 201 (causing disappearance of evidence of offence, or giving false information to screen offender) read with Section 34 (acts done by several persons in furtherance of common intention) of the India Penal Code (IPC), 1860, for medical negligence.
A single judge bench of Justice Kauser Edappagath held that a surgeon under fear of facing criminal prosecution in the event of failure for whatever reason—whether due to his fault or not—cannot perform at his best. The judicial forums, in the process of fixing parameters of liability in cases of medical negligence, must aim at striking a careful balance between the autonomy of a doctor to make judgments and the rights of a patient to be dealt with fairly, recognizing the complexity of the human body, inexactness of medical science, the inherent subjectivity of the process, and genuine scope for error of judgment. However, while dealing with criminal prosecution for medical negligence, the trial courts often ignore these principles.
The case involves a woman, 37, who was in the operation theatre in a hospital at Punalur, in September 2006, to undergo sterilization by laparoscopy, a procedure for permanent birth control, with the hope that she could safely return home after a few hours. Hours after the surgery, she developed respiratory complications and was put under oxygen support. Finally, her life could not be saved.
The Vanchiyoor police registered a crime under Section 174 of the CrPC based on a statement given by the uncle of the deceased alleging medical negligence on the part of the doctors, who conducted the surgery and administered anesthesia, as well as the nurses who assisted them. Later, the Punalur police registered a case and conducted the investigation.
After investigation, a final report was filed at the Judicial First-Class Magistrate Court III, Punalur, against the six accused who are doctors and nurses at the hospital. The magistrate, after complying with the statutory formalities, committed the case to the Additional Sessions Court V, Kollam, for trial and disposal.
After a full-fledged trial, the lower court found that the offence under Section 304 of IPC was not viable. However, it found that there is evidence to show that the accused had committed offences punishable under Sections 304A and 201 r/w 34 of IPC, and they were duly convicted. All of them were sentenced to undergo simple imprisonment for one year for the offence under Section 304A of IPC and simple imprisonment for three months for the offence under Section 201.
Negligence, simply put, is a breach of duty of care resulting in injury or damage. Per se, carelessness is not culpable or a ground of legal liability, except in those cases where the law has imposed a duty of carefulness. The duty of care implies the responsibilities of individuals towards others within society. The duty of care may be understood as a legal obligation imposed on an individual requiring adherence to a standard of reasonable care while doing any act, particularly when lack of care could cause harm to someone else. When there is a legal duty not to do a thing on purpose, there is commonly a legal duty to take care not to do it accidentally, the High Court observed.
Further, the Court noted that in civil law, a duty of care is a legal obligation imposed on an individual requiring that he/she exercises a reasonable standard of care while performing any act that could foreseeably harm others. In medical practice, the law has imposed a duty of care on doctors for treating patients. The duties that a doctor owes to his patient are clear. They include a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, and a duty of care in the administration of that treatment. A breach of any of these duties gives the patient a right of action for negligence.
“The jurisprudential concept of negligence differs in civil law and criminal law. Ordinary negligence is such failure to use care as would render a person civilly, but not criminally liable. Criminal negligence is a greater failure and a greater falling below the standard of care and renders a man guilty criminally. The degree of negligence should be much higher for an act to amount to criminal negligence. Negligence not of such a high degree may provide a ground for action in civil law, but cannot form the basis of criminal prosecution. The factor of grossness or degree does assume significance while drawing a distinction between negligence actionable in tort and negligence punishable as a crime,” the Court said.
The Court observed that every death of a patient cannot, on the face of it, be medical negligence. There must be sufficient evidence to prove that the death is due to the alleged medical negligence. The death should be the direct or proximate result of the negligent act alleged. A medical professional cannot be held liable simply because things went wrong from mischance or misfortune. A mere deviation from normal professional practice is not necessarily negligence. Nor could mere accident or untoward incident be termed negligence, also an error of judgment is not negligence per se. To convict a medical professional for criminal negligence, the prosecution must prove culpable and gross negligence beyond a reasonable doubt. It must also be shown that the medical professional did or failed to do something which, in the given facts and circumstances of the case, no ordinary skilled medical professional would have done or failed to do.
“To impose criminal liability under Section 304A of IPC, it is necessary that the death should have been the direct result of a rash or negligent act of the accused. That act must be the proximate and efficient cause without the intervention of another’s negligence. The liability under this Section is created on the assumption of foreseeability of consequences that could result from a wrongful act. Thus, for fastening the liability of criminal negligence on the accused, the administration of anesthesia, be it general or spinal, must be the direct or proximate cause of death,” the Court observed.
This is, no doubt, an unfortunate case. But simply because a patient has not responded favourably to a treatment or a surgery has failed, the doctor cannot be held negligent per se for the offence under Section 304A of IPC unless the prosecution establishes beyond reasonable doubt the culpable and gross negligent act on his part. That act must be the proximate or direct cause of death of the patient. Such evidence is lacking in this case, the Court remarked. It found the accused persons not guilty of the offences charged against them and accordingly acquitted them.
The medical negligence jurisprudence in India is characterised by a reliance on the “Bolam test”. Bolam vs Friern Hospital Management Committee (1957) is a landmark English case on medical negligence, which laid down the principle that “a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art…” This principle has been widely accepted as decisive of the standard of care expected from medical practitioners.
The courts in India, including the apex court, invariably applied the Bolam Rule as a touchstone to test the pleas of medical negligence. In Jacob Mathew (supra), a three-judge bench of the apex court upheld the standard of the ordinary competent medical practitioner exercising an ordinary degree of professional skill, as enunciated in Bolam (supra). It was held that the standard of care must be in accordance with “general and approved practice”.
The question of degree has always been considered relevant to fasten criminal liability on medical negligence. The Privy Council in John Oni Akerele vs The King (1943) put the standard for fastening criminal liability on a high pedestal and required the medical negligence to be “gross”. It was held that a doctor is not criminally responsible for a patient’s death unless his negligence or incompetence went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State.
The apex court in Syad Akbar vs State of Karnataka (1980) opined that where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
In Dr. Suresh Gupta vs Govt. of NCT of Delhi (2004), the apex court held that the degree of negligence required should be gross or reckless. A mere lack of necessary care, attention or skill was considered insufficient to hold one criminally liable for negligence. It was observed that mere inadvertence or want of a certain degree of care might create civil liability, but will not be sufficient to attract criminal liability.
—By Shivam Sharma and India Legal Bureau