SECTION 304 A AND DOCTOR'S NEGLIGENCE ?

JACOB MATHEW vs. STATE OF PUNJAB & ANR
SUPREME COURT OF INDIA
B.C. Lahoti, C.J.I.; G.P. Mathur and P.K. Balasubramanyam, II
JACOB MATHEW (Dr.) – Applicant
versus
STATE OF PUNJAB & ANR – Respondents
Criminal Appeal No. 144-145 of 2004 from judgment and Order dated 18.12.2002 and 24.01.2003 of Punjab and Haryana High Court in Crl. Misc. No. 21940-M of 1999 and
Crl. Misc. No. 1984 of 2003 – Decided on 5.8.2005.

Difference between occupational negligence and professional negligence : Standard to be applied to hold professional negligent: Simple lack of care, error of Judgment or accident is not proof of negligence on part of medical professional: Failure to use special or extraordinary precautions which might have prevented particular happening cannot be standard for judging alleged negligence : Res ipsa loquitur is only rule of evidence and operates in domain of civil law specially in cases of Torts and helps in determining onus of proof in actions relating to negligence: Averments in complaint, even if proved, do not make out case of criminal rashness or negligence on part of accused-appellant - No case that accused-appellant was not doctor qualified to treat patient, agreed to treat — For non-­availability of oxygen cylinder, hospital may be liable in civil law but accused-appellant cannot be prosecuted against under Section 304A/34, IPC quashed – Indian Indian Penal Code, 1860 — Section 304A read with Section 34.
[Paras 11, 19, 26, 27, 29 to 31, 33, 34,48,49, 53, 54, 55]

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 u 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.
Guidelines — re: prosecuting medical professionals :
51. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.
We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
53 Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government' of .India and/or the State Governments in consultation with the Medical Council of India, So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence 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 charge of rashness 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 m that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's53 Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government' of .India and/or the State Governments in consultation with the Medical Council of India, So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence 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 charge of rashness 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 m that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's TEST.

A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been leveled 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.