Negligence as a Crime

Negligence as a crime has a different yardstick. Negligence under tort is determined on the extent of
the loss caused whereas negligence under criminal law is dependent on the degree or amount of
negligence. Courts have repeatedly held that the burden of proving criminal negligence rests heavily
on the person claiming it. Criminal law requires a guilty mind. If there is a guilty mind, a practitioner
will be liable in any case.

But if, under the criminal law, rashness and recklessness amount to crime, then also a very high
degree of rashness would be required to prove charges of criminal negligence against a medical
practitioner. In other words, the element of criminality is introduced not only by a guilty mind, but
by the practitioner having run the risk of doing something with recklessness and indifference to the
consequences. It should be added that this negligence or rashness or must be ‘gross’ in nature.

The word “negligence” is always damaging to the reputation of doctors, related to some damage to
the patient and a challenge before the judges. In recent years, sudden spurt in the cases of “Criminal
negligence” and decision of the Supreme Court raises a fresh debate.

This paper deals with current scenario of “Criminal Negligence”, applicability of Section 304 & 304-A
IPC in cases of death of patient during treatment, remedial measures available to a doctor facing the
charge of ‘Criminal Negligence’ and a brief discussion of important cases related to the issue,
including recent case.

Negligence is a term of art, but has distinct meanings in different jurisdictions. In ‘Tort’, damage is an
essential ingredient but that element is not necessary in the law of master and servant. In criminal
law, there are series of offences based on negligence in which loss or injury is not material; it is
enough if the act is likely to cause injury or endanger life. Operation of patient without consent is an
example of negligence (Statutory Damage) even without actual apparent damage. Dictionary
meaning of term ‘Negligence’ is ‘Lack of Proper Care’. As defined by Baron Alderson negligence
means: “Omission to do something which a reasonable man guided by those consideration which
regulate conduct of human affairs would do, or doing something which a reasonable man would not
do”. Same definition is quoted in many decisions of the court. ‘Criminal Negligence’ is an offence
against the State while ‘Civil Negligence’ is an offence against the individual act, which leads to injury
i.e. physical injury, hurt- Section 319, grievous hurt- Section 320 Indian Penal Code (IPC). Loss of
property (financial loss) due to some negligent act is always a civil negligence. The decision of the
Supreme Court delivered on last years raises a fresh debate on the issue of ‘Criminal Negligence by
the Doctors’. In this case the Supreme Court relied on various decisions of the House of Lords.

CRIMINAL PROSECUTION OF DOCTORS

Doctors can be prosecuted for obvious criminal activity like violations of statutory provisions of Acts
like the Transplantation of Human Organs Act. The newspapers tell us that the first conviction for
fetal sex determination has sent shock waves throughout the country. According to these reports, a
sub divisional judicial magistrate in Haryana sentenced a doctor and his assistant to 2 years
imprisonment and fine of Rs. 5000/- each for violating the Pre-Natal Diagnostic Techniques
(Regulation and Prevention of Misuse) Act, 1994. It is expected that weeding out the black sheep in
the profession will go a great way in restoring the honor and prestige of a large number of doctors
and hospitals who are devoted to the profession and scrupulously follow the ethics and principles of
this noble profession.

However, it is common to implicate doctors in criminal cases alleging negligence in the death of a
patient under treatment. In the case of Dr. Suresh Gupta's case (Dr. Suresh Gupta vs. Govt of NCT
Delhi, AIR 2004, SC 4091: (2004)6 SCC 42), the Full bench of the Supreme Court of India consisting of
Chief Justice R.C. Lahoti, Justice G.P. Mathur, and Justice P.K. Balasubramanyam declared while
reviewing the previous order that extreme care and caution should be exercised while initiating
criminal proceedings against medical practitioners for alleged medical negligence. In a well
considered order, the apex court felt that bonafide medical practitioners should not be put through
unnecessary harassment. The court said that doctors would not be able to save lives if they were to
tremble with the fear of facing criminal prosecution. In such a case, a medical professional may leave
a terminally ill patient to his own fate in an emergency where the chance of success may be 10%
rather then taking the risk of making a last ditch effort towards saving the subject and facing criminal
prosecution if the effort fails. Such timidity forced upon a doctor would be a disservice to society.
The court held that simple lack of care, error of judgment, or an accident is not proof of negligence
on the part of a medical professional and that failure to use special or extraordinary precautions that
might have prevented a particular incidence can not be the standard for judging alleged medical
negligence.

The apex court laid down the following guidelines regarding prosecution of cases: cases of doctors
being subjected to criminal prosecution are on the increase. The criminal process once initiated
subjects in the medical professionals to serious embarrassment and sometimes harassment.
Statutory rules or executive instructions incorporating certain guidelines are to be framed and issued
by the Government or State Government in consultation with the Medical Council of India. A private
complaint may not be entertained unless the complainant produces prima facie evidence before the
court in the form of credible opinion given by another competent doctor to support the charge of
rashness or negligence on the part of the accused doctor.

In the case of Jacob Mathew (Dr.) vs. State of Punjab and Anr. III (2005) CPJ 9 (SC) (Criminal Appeal)
where a cancer patient in an advanced stage died due to non availability of an oxygen cylinder in the
room, the Supreme Court considered three weighty issues: first, negligence in the context of the
medical profession necessarily calls for treatment with difference; second, the difference between
occupational negligence and medical negligence has to be properly understood; and third the
standard to be applied to hold a medical professorial as negligent has to be carefully considered. The
apex court further held that there is no case that the accused doctor was not a qualified doctor to
treat the patient was made and therefore the accused appellant can not be prosecuted under
Section 304 A of IPC for the non availability of an oxygen cylinder though he may be liable under civil
law.
Criminal Liability- There may be an occasion when the patient has died after the treatment and
criminal case is filed under Section 304A of the Indian Penal Code for allegedly causing death by rash
or negligent act. According to S. 304A of the IPC, whoever causes the death of any person by a rash
or negligent act not amounting to culpable homicide shall be punished by imprisonment for up to
two years, or by fine, or both[xviii].

Hospitals can be charged with negligence for transmission of infection including HIV, HBsAg, etc. if
any patient develops such infection during the course of treatment in the hospital and it is proved
that the same has occurred on account of lapse on part of the hospital then the hospital can be held
liable for lack of reasonable duty to care. My very own grandmother passed away due to the
negligence of the doctors. Due to the carelessness of the doctor that he was in so hurry to rush for
his next operation that he forgot to sterilize the equipments and as a result there was this
transmission of some infection into her blood which infected her entire system and ultimately
resulted in her death.

Conclusion

It is not stated that doctors are negligent or irresponsible but while performing the duty which
requires a lot of patience and care, often many practitioners fail or breaches their responsibility
towards the patient. Medicine which is one of the noblest professions requires setting a realm which
can benefit the victims of various diseases. Many doctors even the specialist sometimes neglects
small things to be taken care of while practicing which may result in damages to the patients that
could have been avoided or sometimes even the death of the patients.

This type of professional negligence needs more focus than to include it in other laws or statutes. An
independent and unique legislature shall be set up to govern the malpractice. In our country recently
in a case Krishna Iyer v. State of Tamilnadu and Others[xxi] the Apex Court awarded a compensation
of 1.8 crores on July 1, 2015 as she lost her eyes in 1996. This is highest amount of compensation
awarded in the country. Many activists and the victims of medical negligence have been alleging to
get redressal against malafied acts of medical practitioners and doctors.

Not just for medicine, the law shall be made applicable to all the professionals practicing in different
areas which require a requisite amount of skill and duty of care. People in our country are already
victims of many diseases and are dying due to same, let’s make efforts to reduce these deaths and
focus on improvising the profession so that people do not die in the place where they come to get
healed.