Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
Jacob Mathew vs. State of Punjab and Anr.
AIR2005SC3180; (2005)6SCC1; 2005CriLJ3710
Hon’ble Judges/Coram: R.C. Lahoti, C.J., G.P. Mathur and P.K. Balasubramanyan, JJ.
Date of Decision: 05.08.2005
FACTS:-
Ashok Kumar Sharma, the respondent No. 2 herein filed a First Information Report with police station whereupon an offence under Section 304A read with section 34 of the Indian Penal Code (for short “the IPC”) was registered. The gist of the information is that on 15.2.1995, the informant’s father, late Jiwan Lal Sharma was admitted as a patient in a private ward of CMC Hospital, Ludhiana. On 22.2.1995 at about 11 p.m., Jiwan Lal felt difficulty in breathing. The complainant’s elder brother, Vijay Sharma who was present in the room contacted the duty nurse, who in her turn called some doctor to attend to the patient. No doctor turned up for about 20 to 25 minutes. Then, Dr. Jacob Mathew, the appellant in the case and Dr. Allen Joseph came to the room of the patient. An 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. The oxygen cylinder was found to be empty. There was no other gas cylinder available in the room. Vijay Sharma went to the adjoining room and brought a gas cylinder therefrom. However, there was no arrangement to make the gas cylinder functional and in-between 5 to 7 minutes were wasted. By this time, another doctor came who declared that the patient was dead. Thereafter, Judicial Magistrate First Class, Ludhiana framed charges under Section 304A, IPC against the two accused persons, both doctors. The appellant filed a petition in the High Court under section 482 of the Code of Criminal Procedure praying for quashing of the FIR and all the subsequent proceedings. The learned single Judge who heard the petition formed an opinion that a case for quashing the charge was not made out. Feeling aggrieved by the orders of High Court, the appellant approached the Supreme Court by Special Leave.
ISSUES:-
1. Is there a difference in civil and criminal law on the concept of negligence; and
2. Whether a different standard is applicable for recording a finding of negligence when a professional, in particular, a doctor is to be held guilty of negligence?
JUDGMENT:-
The Court at the very outset, in the light of present case, made a general observation that with the awareness in the society and the people in general gathering consciousness about their rights, actions for damages in tort are on the increase. Not only civil suits are filed, the availability of a forum for grievance redressal under the Consumer Protection Act, 1986 having jurisdiction to hear complaints against professionals for ‘deficiency in service’, which expression is very widely defined in the Act, has given rise to a large number of complaints against professionals, in particular against doctors, being filed by the persons feeling aggrieved. Criminal complaints are being filed against doctors alleging commission of offences punishable under Section 304A or Sections 336/337/338 of the IPC alleging rashness or negligence on the part of the doctors resulting in loss of life or injury (of varying degree) to the patient. If you are in need of a criminal defense lawyer visit Hurwitz Law Group, Inc LA criminal defense lawyers.
In order to decide the abovementioned issues, Court referred to wide academic literature and various Indian & foreign cases. To arrive at logical conclusion on various aspects relating to the issues raised, the court dealt with broad issues like ‘negligence as a tort and as a crime’, ‘negligence by professionals’, ‘Medical Professionals in Criminal Law’ and it further reviewed various Indian decisions on criminal negligence, and thus, finally laid the following law:
- 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 (Twenty-fourth Edition 2002, edited by Justice G.P. Singh), referred in the case, holds good. According to the team at www.bellevuetrialattorney.com/traffic-violations-attorneys-bellevue-wa/, negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued, like the cases of personal injury law in which the person suffered an accident or any other unfortunate event, being similar in some cases to negligente, a good explanation of these cases was given by a prominent Jersey City Lawyer with lots of experience in personal injury law. However, the essential components of negligence are three: ‘duty’, ‘breach’ and ‘resulting damage’.
- 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 a 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 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.
- A 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.
- The test for determining medical negligence as laid down in Bolam’s case [1957] 1 W.L.R. 582 holds good in its applicability in India.
- 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.
- 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 act’ as occurring in Section 304A of the IPC has to be read as qualified by the word ‘grossly’.
- To 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.
- Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law especially 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.
HELD:-
The Court in light of the above principles laid down certain guidelines that would 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’s test to the facts collected in the investigation. If you are in need of an investigative expert, then visit investigationhotline.
- 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.
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