Criminal Liability in Medical Negligence
Saving the
Scalpel: Re-affirming the Hippocratic Oath
1. INTRODUCTION
The paper has been painstakingly prepared and designed
under three broad heads. This is an upshot of the landmark judgment rendered by
the Hon’ble Supreme Court of India in Dr. Suresh Gupta v. Government
of N.C.T. New Delhi
and Anr in August 2004. The judgment briefly says that the doctors cannot
be held criminally liable for error of judgment but can only be liable for gross
negligence under section 304-A of the IPC. This judgment is a great sigh of
relief to the whole medical fraternity of India.
Under the first content, there is an elaborative
description on the negligence under the Indian Penal Code (Sec.304-A) with
special reference to the acts of medical practitioners.
Under the second content, there is a brief note on the
instant case with its facts, reasoning and the decision of the division bench.
Under the same debate of Supreme Court’s judgment, it is further discussed
about concept of mens rea under medical negligence by citing a series of
case law.
Finally, in the light of discussion on above aspects
regarding medical negligence and criminal liability, it is concluded that the
judgment of the Hon’ble Supreme Court has led to an implied amendment in the
wordings of Section 304-A of the IPC by incorporation of terms ‘error of
judgment’ and ‘gross negligence’.
2. NEGLIGENCE UNDER THE INDIAN PENAL CODE
Vis-Ã -vis MEDICAL PRACTITIONERS
“It is common knowledge that the
intention of a man will not be probed, for the devil does not know a man's
intention."
-Brian, C.J.
He who commits a wrong is said
to be liable or responsible for it. The wrong may be in the form of an act or
an omission. The essential distinction between crimes and civil wrongs is that
crimes are considered public wrongs, which are a breach and violation of public
rights, and duties, which affect the whole community and is distinguished by
the harsher term crime or misdemeanor whereas civil wrongs are considered
violations of rights that belong to the individual and are termed civil injuries.
Remedy for the wrong may thus be
civil or criminal. However, there are some wrongs for which the remedy may be
both civil and criminal (defamation, negligence and some other wrongs). Under
the criminal law, liability is always penal. In penal liability, the purpose of
the law, is, or includes punishment of the wrongdoer. Under civil liability,
the law leaves the victim to sue for compensation, by way of damages.
Negligence is one of the wrongs for which the law gives a remedy both under the
civil law and the criminal law.
It is important for a medical
practitioner to remember that there can be no civil action for negligence if
the negligent act or omission has not been attended by an injury to any person;
but bare negligence involving the risk of injury is punishable criminally,
though nobody is actually hurt by it. Example a patient is operated
upon in an operation theater without oxygen being available; the medical
practitioner would be liable under the criminal law even though the patient may
not have needed oxygen. The mere act of exposing the patient to the risk of
personal safety or life is enough to bring criminal negligence into play.
From a practical viewpoint, the
importance of distinguishing whether negligence is civil or criminal lies in
the fact that action for redress to a patient against a medical practitioner
would lie under different systems of justice. Civil justice is administered by
one set of courts (civil courts, and now, in consumer forums) whereas criminal
justice is administered in a somewhat different set of courts (Magistrate's of
the First Class). Civil proceedings, if successful, result in a judgment for
payment of compensation whereas criminal proceedings, if successful, result in
punishments, which include imprisonment, fine, or both. Thus the basic
objective of criminal proceedings is punishment and the usual goal of civil
proceedings is non-punitive (compensatory).
The general condition of penal
liability is indicated by the Latin maxim- Actus
non facit reum, nisi mens sit rea- the act alone does not amount to guilt;
it must be accompanied by a guilty mind (mens rea). Thus two conditions need to
be fulfilled before penal responsibility can be rightly imposed. The one is the
doing of some act (read act/omission) by the person held to be liable. The
other is the mens rea or guilty mind with which the act is done. Thus, before
the law can justly punish a criminal act, an inquiry must be made into the
mental attitude of the doer for although the act may have been objectively
wrongful, the mind of the doer may have been innocent. The mental attitude of
the medical practitioner would thus have to concur with the wrongful act before
he could be prosecuted successfully under the criminal law.
To attribute mens rea to a
wrongful act it is necessary that the act be done either willfully or
recklessly. Where the act is willful, mens rea is easy to attribute to the
wrongful act since the mind has acted in concert with the wrongful act. A
reckless act (read negligently or rashly) is one where the person is
responsible for consequences foreseen as the certain or highly probable outcome
of his act. However there are two qualifications- Firstly, criminal law may
include provisions penalizing negligence even though this may result from mere
inadvertence. Secondly, the law may create offenses of strict liability. We are
concerned with the first qualification since the Indian Penal Code creates this
liability.
This liability under the Indian
Penal Code is created on the assumption of foreseeability of consequences,
which could result from a wrongful act. Thus if a medical practitioner, does an
act which he did not intend or even foresee, but which a reasonable medical
practitioner would have foreseen under similar circumstances as likely to cause
death, he would be held guilty of the
wrongful act. Here foreseen and foreseeable consequences are put on the same
footing as consequences which are intended.
Section 304-A of the Indian
Penal Code and Sections 336, 337 and 338 are the only section under the
criminal law which deals with professional negligence-the short title of
Section 304-A reads 'Causing death by negligence'. The complete section is:
"Whoever causes the death of any person by doing any rash or negligent act
not amounting to culpable homicide, shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine, or
with both".
The provisions of the section
would come into play only when death occurs. No injury short of death would
make a medical practitioner liable under this section. Also, the provision
comes into effect when there in no intention to cause death, and no knowledge
that the act done in all probability would cause death (culpable homicide). When
the act is in its nature criminal, the section has no application. The section
does not apply when death has resulted from some supervening event which could
not have been anticipated, but will only apply when death is the result of the
rash or negligent act as its direct or proximate cause.
Criminal rashness means 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 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. Example a medical
practitioner performing termination of pregnancy in its sixth month. Here the
medical practitioner is aware (knowledge) or should be aware that termination of
pregnancy in its sixth month is dangerous but still performs termination though
he may not intend to cause death of the patient or have the requisite knowledge
that death would probably be caused.
Criminal negligence is the gross
or culpable neglect or failure to exercise that reasonable or proper care and
precaution to guard against injury, which, was the imperative duty of the
professional to adopt. Example a medical practitioner conducts termination of
an eight-week pregnancy but does so without adequate training or with
unspecialized instruments. Here the medical practitioner has not exercised the
caution incumbent upon him to undertake termination only after adequate
training in the procedure and only with sterilized instruments in an adequately
equipped set up.
3. DEBATE ON THE HON’BLE SUPREME COURT’S JUDGEMENT OF AUGUST 2004
(A Critique of Dr.Suresh Gupta
v. Govt. of N.C.T. of Delhi
and Anr.)
On Friday, 6th August 2004 the only discussion that
took place in the bar room of most courts and offices of consumer organisations
was the Hon’ble Supreme Court’s decision to let doctors ‘off the hook’ in
criminal complaints filed against them.
In the judgment
that would relieve the entire medical fraternity, the Supreme Court has ruled
that if a patient dies due to an error of judgment committed by the doctor,
then he is not criminally liable though could have to pay damages.
This judgment was given by a Bench comprising Justice
YK Sabharwal and Justice DM Dharmadhikari while quashing criminal
proceedings against a plastic surgeon who faced trial for criminal charges for
causing death of a person who had wanted to remove a minor deformity in his
nose.
The Bench said for fixing criminal liability on a
doctor or surgeon, the standard of negligence required to be proved should be
so high as could be described as "gross negligence" or
"reckless".
"It is not merely lack of necessary care,
attention and skill," the Bench said and added, "When a patient
agrees to go for medical treatment or surgical operation, every careless act of
the medical man cannot be termed as 'criminal'." Justice Dharmadhikari,
writing for the Bench, said it could be termed 'criminal' only when the medical
man exhibited 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 judgement or an accident, no criminal liability should be attached to
it," the apex Court said "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," it added.
Dr Suresh Gupta of Delhi was facing charges under Section 304A
of the Indian Penal Code for causing death of the patient. He had conducted an
operation to remove nasal deformity on April 18, 1994 but the patient died on the same day.
According to the post-mortem report conducted after
three days, the cause of the death was "blockage of respiratory passage by
aspirated blood consequent upon surgically incised margin of nasal
septum".
From the post-mortem report and the opinion of the
three medical experts of the medical team specially constituted, the case of
the prosecution laid against the surgeon was that there was negligence in
"not putting a cuffed endo-tracheal tube of proper size" and in a
manner so as to prevent aspiration of blood blocking respiratory passage.
The Bench said the approach of the trial courts in
such cases should be such that if a doctor did not give proper or adequate care
to the patient, he should be liable for damages.
"This approach of the courts in the matter
of fixing criminal liability on doctors, in the course of medical treatment
given 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," the apex Court
said.
A Series Of Case Law On Medical Negligence Under IPC
For many vested interests, a
very important weapon in their arsenal suddenly was defunct and this for them
was a major cause of concern. All concerned were aware that the
pronouncement was not new and criminal law could not be routinely applied to
the medical practitioner but the main grouse was the publicity that the press
and the television gave to this pronouncement, which now made their threats of
a criminal complaint and imprisonment a non- entity.
Police complaints and criminal
litigations have time and again been used to ‘soften’ the medical practitioners
to coax them to agree to a hefty out-of-court settlement. Medical
practitioner’s ignorance of law was capitalised upon and fear was used as a key
to illegal enrichment both by litigants and the competent authorities, but
thanks to the wide spread publicity, things are soon going to change much to
the dislike of many.
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. The courts in
R Vs
Prentice and Sullman
and in
R Vs
Adomako
have settled the law as to how to determine criminal negligence in medical
practice. The following is the test to bring home the charge of criminal
negligence in medical negligence as settled in
R Vs
Adomako
(a) Indifference to an obvious
risk of injury to health
(b) Actual foresight of the risk
coupled with the determination nevertheless to run it
(c) An appreciation of the risk
coupled with an intention to avoid it, but the attempted avoidance involves a
very high degree of negligence and
(d) 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
(i)
the existence of duty to take care;
(ii)
a breach of
duty causing death; and
(iii)
the breach
of duty must be characterised 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. The test for recklessness formulated by
Lord Diplock in
R Vs
Lawrence;,
is that the doctor having recognised the risk had nevertheless gone on to take
it.
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.
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. The law in this regard was laid
down by the Supreme Court of India in
Juggankhan
Vs
State of Madhya Pradesh.
Similarly in
Dr Khusaldas Pammandas Vs
State of MP,
the Indore Bench of Madhya Pradesh High Court held a registered hakim guilty
for committing an offence under s. 304A of IPC. The court held that gross
rashness and negligence could be inferred when a person undertakes a treatment
or performs an operation, when he is totally ignorant of the science of
medicine or practice of surgery. Since the hakim registered under section 46 of
the Madhya Bharat Indian Medicines Act 1952, had no knowledge whatsoever of
penicillin injection treatment, his act of giving procaine penicillin injection
to the deceased would be clearly rash and negligent within the meaning of s
304A of IPC.
In
Dr Ajit Kaur v
State of Punjab
the criminal proceeding against the medical practitioner for committing an
offence under
section 304A of IPC was quashed
by Punjab and Haryana High Court on the ground
that the action of the medical practitioner was not even proximately the cause
of death of the baby which was born as a result of induced delivery.
In
Ghanshyamdas Bhagwandas v
State
of MP
the deceased was on old patient of bronchial asthma. The doctor injected
coramine and thereafter patient expired. In the absence of any evidence to
establish direct nexus between the death of the patient and the rash act of
injecting coramine by the doctor, the criminal liability of the doctor was not
established.
In
State of Gujarat
Vs Dr
Maltiben Valjibhai Shah,
the deceased Ranjanbala went to the clinic of Dr M V Shah for treatment, for
sinusitis and hypertension. The doctor gave a test dose to Ranjanbala and then
she was given injection bistrepen half gram IM. After giving the injection the
patient immediately complained of giddiness, pain in chest, perspiration and
her pulse was rapid.
When reaction was noticed by the
doctor, she immediately gave a number of injections to counter the reaction.
The trial court held the doctor guilty of charge under section 304A, IPC and
awarded simple imprisonment for seven days and a fine of Rs 1000 and in default
simple imprisonment for seven days. The High Court of Gujarat acquitted the
doctor of the charge under section 304A, IPC on appeal, on the grounds that the
deceased did not react to test dose of procaine penicillin injection, and that
the doctor after noticing reaction of the regular dose of injection, gave
immediately a number of injections as anti-reaction treatment.
Criminal liability in medical
practice has been discussed in great detail in
Dr Krishna Prasad Vs
State of
Karnataka
by
Justice Kulkarni. In this case
the patient was admitted for a delivery in the nursing home. The doctor decided
caesarean operation under spinal anesthesia.
The blood pressure began to fall
soon after administering spinal anaesthesia and ultimately the patient died.
The criminal proceeding against the anesthetist was started on the allegation
that he was not an anaesthetic expert and that the test dose of spinal
xylocaine injection was not given to the patient.
The Karnataka High Court quashed the criminal proceeding on the
grounds that the doctor holding degrees like MBBS, FRCS, and DGO is qualified
to administer anaesthesia and that the omission to give test dose of spinal xylocaine
does not amount to rashness or negligence.
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.
The question whether the
accused’s conduct amounted to culpable rashness or negligence depends directly
on the question as to what is the amount of care and circumspection which a prudent
and reasonable man would consider it to be sufficient considering all the
circumstances of the case
.
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.
Medical Negligence And Mens Rea
In criminal cases, the amount
and degree of negligence are the determining factors. There must be presence of
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 imputability 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.
Following this, in the
well-known case of
Empress of India
Vs
Idu Beg,
Straight J observed:
“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.”
“Negligence is the failure to take reasonable
care and the degree of the reasonable care is not to be measured by any
abstract standard. Negligence does not mean absolute carelessness or
indifference, but want of such a degree of care as is required in particular
circumstances.”
”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.”
4. CONCLUSION
In the recent Dr Suresh Gupta Vs
Government of NCT of Delhi (Criminal Appeal Number 778/2004) case the Hon’ble
Supreme Court further reinforced the law settled by their predecessors.
Justices Y K Sabharwal and D M Dharmadhikari quashed criminal proceedings
against the plastic surgeon for allegedly causing death of a person whilst
correcting a minor nose deformity.
The Judges in the judgment said
that for fixing criminal liability on a doctor or a surgeon, the standard of
negligence required to be proved should be so high as could be described as
“gross negligence” or “recklessness”. But, in the instant case, the
anaesthetist had not put a cuffed endotracheal tube as the result of which
blood trickled into the lungs causing death. The anaesthetist expired during
the proceedings and a four member expert committee held the case against the
plastic surgeon by 3:1.
The Judges further said:” Where
a patient’s death results merely from an 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 will not
suffice to hold him criminally liable.” But the Hon’ble Supreme Court in its
judgment has neither categorically made the distinction between error of
judgement and gross negligence nor laid down the tests for determining the two.
The Hon’ble Supreme Court held
that the doctor was “careless” but not so “grossly negligent to make him
criminally liable.”
In this context, everyone shall
recite one statement. If the doctor had made criminally liable in this case,
then the doctors would be scared of taking the cases, which will finally result
in to death of the poor patients in India.
However, because of this
judgment, after a very long time, doctors all over the country can now sleep
peacefully without fear of the police knocking at their doors. This is a great
sigh of relief to the whole Indian medical fraternity. Besides this, henceforth
the doctors may easily claim every negligent act as an error of judgment under
the garb of this judgment.
Further, it is submitted that if
the treatment is successful, the doctor looks like a miracle man. When it
doesn't, it is hard for those affected to accept that it was possible to make a
mistake. And if that mistake - inadvertent as it may be - leads to death, it
becomes near impossible to ccome to terms to it.People want to be sure justice
is done if they believe the doctor has been negligent.
Compensation for the mistake is
addressed through civil action, while justice – the doctor going to jail for
what he has done – is served through criminal courts. However, criminal
liability for doctors is a gray area. Basically, any human can hurt another in
three ways - through accident, error of judgement or intentionally. When a
doctor has intentionally endangered the life of a patient, it becomes a case of
murder. If he did not have the intention, but knew he was endangering the life
of a patient, it becomes a case of culpable homicide not amounting to murder.
However, it is impossible to demarcate where a judgement error becomes gross
negligence.
It's difficult to hold a
professional criminally liable for a judgement made in good faith. Say a lawyer
does a bad job defending someone accused of murder and the client hangs. No
matter how bad his defence, as long as he acted in good faith, can you hold him
criminally liable? It's the same with doctors.
It can be finally concluded by
adding that this judgment however led to an amendment in section 304-A of the
IPC. The word used in the section is ‘negligence’, but not ‘gross negligence’.
REFERENCES
BOOKS
1. Nelson,
Indian Penal Code, 7th Edition (1983)
2. Dr
Sir Hari Singh Gour, Penal Law of India, 10th Ed (1997)
3. Ratanlal
and Dhirajlal, Law of Crimes, 22nd Edition (2002)
4. Pillai
P.S.A., Criminal Law, Butterworths, New
Delhi (2002)
JOURNALS
1. Criminal Law Journal, August 2004
2. Health Management Express, September
2004
3. Doctors’ Note, August 2004
ARTICLES
1. Prof.
Gopinath N. Shenoy, Criminal Liability in Medical practice, Health
Management Express (Aug 15-30, 2004).
2. A Relief to medical fraternity, Central
Chronicle (August 6, 2004)
3. Reactions to Criminal Liability
Reactions to Supreme Court’s Judgment, Health Management Express (15-30 August
2004)
4. Larger bench to reconsider on Supreme
Court’s ruling on medical negligence, The Hindu (August 8, 2004)
5. Abantika
Ghosh, Whose life is it? Times News Network (August 10, 2004)
6. Samiran
Chakraverthi, When does negligence becomes truly criminal? Times of India
(September 11, 2004)
WEB SITES
1. www.lexsite.com/articles/lexdoc.asp?docid=99818
2. www.healthlibrary.com/reading/ncure/law/part2.html
3. www.healthmanagementexpress.com
4. www.timesnewsnetwork.com
