Medical Negligence – CRIMINAL LIABILITY ON DOCTORS
.
Section 304-A I.P.C. provides thus:
.
“Causing death of negligence — 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 reading of the above section would show that the following ingredients are required to be established to prove an offence under Section 304-A I.P.C.:
.
(i) death of the person in question;
(ii) accused caused such death; and
(iii) such act of the accused was rash or negligent, although it did not amount to culpable homicide.
.
This section, like other sections of the Indian Penal Code, requires a mens rea or guilty mind and the negligence must be such as can fairly be described criminal.
.
When a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as ‘criminal’. It can be termed ‘criminal’ only when the medical man exhibits 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 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 would not suffice to hold him criminally liable.
.
The decision of the House of Lords in R. v. Adomako (supra) relied upon on behalf of the doctor elucidates the said legal position and contains following observations:
“Thus a doctor cannot be held criminally responsible for patient’s death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State.
.
In the course of medical treatment given by them 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.
.
For every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment. Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large because if the Courts were to impose criminal liability on hospitals and doctors for everything that goes wrong, the doctors would be more worried about their own safety than giving all best treatment to their patients. This would lead to shaking the mutual confidence between the doctor and patient. Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an offence of culpable negligence.
.
For conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrong doing i.e. a higher degree of morally blameworthy conduct.
.
To convict, therefore, a doctor, THE PROSECUTION HAS TO COME OUT WITH A CASE OF HIGH DEGREE OF NEGLIGENCE ON THE PART OF THE DOCTOR. MERE LACK OF PROPER CARE, PRECAUTION AND ATTENTION OR INADVERTENCE MIGHT CREATE CIVIL LIABILITY BUT NOT A CRIMINAL
.
Section 304-A I.P.C. provides thus:
.
“Causing death of negligence — 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 reading of the above section would show that the following ingredients are required to be established to prove an offence under Section 304-A I.P.C.:
.
(i) death of the person in question;
(ii) accused caused such death; and
(iii) such act of the accused was rash or negligent, although it did not amount to culpable homicide.
.
This section, like other sections of the Indian Penal Code, requires a mens rea or guilty mind and the negligence must be such as can fairly be described criminal.
.
When a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as ‘criminal’. It can be termed ‘criminal’ only when the medical man exhibits 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 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 would not suffice to hold him criminally liable.
.
The decision of the House of Lords in R. v. Adomako (supra) relied upon on behalf of the doctor elucidates the said legal position and contains following observations:
“Thus a doctor cannot be held criminally responsible for patient’s death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State.
.
In the course of medical treatment given by them 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.
.
For every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment. Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large because if the Courts were to impose criminal liability on hospitals and doctors for everything that goes wrong, the doctors would be more worried about their own safety than giving all best treatment to their patients. This would lead to shaking the mutual confidence between the doctor and patient. Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an offence of culpable negligence.
.
For conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrong doing i.e. a higher degree of morally blameworthy conduct.
.
To convict, therefore, a doctor, THE PROSECUTION HAS TO COME OUT WITH A CASE OF HIGH DEGREE OF NEGLIGENCE ON THE PART OF THE DOCTOR. MERE LACK OF PROPER CARE, PRECAUTION AND ATTENTION OR INADVERTENCE MIGHT CREATE CIVIL LIABILITY BUT NOT A CRIMINAL
No comments:
Post a Comment