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Criminal liability of doctors in medical negligence: a study of case-laws

Medical negligence is a contentious issue that has garnered significant attention in the realm of healthcare and legal discourse in India. As a nation rapidly advancing in the field of medicine, the complexity and sophistication of healthcare services have increased manifold. However, alongside these advancements, the unfortunate reality of medical negligence has also become more pronounced. Medical negligence, often referred to as medical malpractice, occurs when a healthcare provider fails to meet the standard of care expected in their profession, resulting in harm, injury, or even death to a patient. This multifaceted issue not only poses a grave threat to patient well-being but also raises intricate questions surrounding accountability, ethics, and the legal framework within which healthcare operates in India. In this article, we will study the case- laws pertaining to the criminal liability of doctors in medical negligence.

The law in the matter of medical negligence has been crystallized by Hon’ble Supreme Court in the decision titled as “Jacob Mathew vs State of Punjab and Anothers” (Supra) (2005)6 SCC 1, where occupational negligence is stated to be different from the professional negligence. 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 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 trail. 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 the particular time (that is, the time of the incident) at which it is suggested it should have been used.

Recently, the Supreme Court in Malay Kumar Ganguly v. Sukumar Mukharjee exhaustively dealt with ‘medical negligence’ and the standard of care that is required to be exercised by a doctor. The court framed certain principles and observed that there cannot be any doubt or dispute that for establishing medical negligence or deficiency in services, the courts would determine the following rules:

• No guarantee is given by any doctor or surgeon that the patient would be cured.
• The doctor however must undertake a fair reasonable and competent degree of skill, which may not be the highest skill.
• Adoption of one of the modes of treatment, if there are many and treating the patient with due care and caution would not constitute any negligence.
• Failure to act in accordance with the standard, reasonable degree of case and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence.
• In a complicated case, the court would be slow in attributing negligence on the part of the doctor, if he is performing his duties to be best of his ability.

In “Kusum Sharma v. Batra Hospital”, {Manu/SC/0098/2010/ (2010)3 SCC 480}, it was held by the Hon’ble Supreme Court of India that a doctor often adopts a procedure which involves a higher element of risk, but in doing so he honestly believes that it will provide greater chances of success for the patient. If a doctor has taken a higher risk to redeem the patient out of his/her suffering and it did not yield the desired result, this may not amount to medical negligence. The Hon’ble Supreme Court held that it is the duty of every doctor to act with a reasonable degree of care. However, no human in this world is perfect and even specialists make mistakes, a doctor can be made liable only if he fails to act with such reasonable care that every doctor with ordinary skills would be able to do.

It was further held as under:-

• Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulated the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
• Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
• The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judge in the light of the particular circumstances of each case is what the law requires.
• A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
• In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
• The medical professional is often called upon to adopt a procedure which involves as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
• Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
• It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
• It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
• The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
• The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.”

In “Achutrao Haribhau khodwa and Ors v. the State of Maharashtra”, MANU/SC/0600/1996, The Supreme Court noticed that the medical profession is very wide and there are a number of admissible courses for the same. Therefore, we cannot hold a doctor liable as long as he is performing his duty with due care and caution. Merely because he chooses any other course of action over another, he is not liable.

In “Vinod Jain v. Santokba Durlabhji Memorial Hospital & Anr.” (MANU/SC/0267/2019A), the Supreme Court has mentioned the factors to be considered while establishing the liability in medical negligence cases. In this case, the appellant challenged the NCDRC in the apex court i.e. the Supreme Court of the country. The Supreme Court upheld NCDRC’s judgment and made the below-mentioned observations:

• A doctor cannot be said to be negligent if his acts are in accordance with the set guidelines, merely because a body is there which holds a contrary view.
  
• A doctor need not have special expertise in medicine and it is enough if he exercises ordinary skills that an ordinary man of that profession would be able to do.
• A doctor cannot give assurance for any recovery as it is not in his hands and he can only try his best. The only assurance he can give is that he holds requisite skills in the profession and while undertaking this he should perform his duties as a reasonable man of the profession and in accordance with the standard of care in the medical profession.

In “Martin F.D'Souza v. Mohd. Ishfaq”, {Manu/SC/0225/2009, (2009) 3 SCC 1}, paragraph 123 of the judgment submitted as follows: “It must be remembered that sometimes

despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best efforts of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is”.

In “Jayshree Ujwal Ingole vs. State of Maharashtra and Ors.’ (MANU/SC/0386/2017), paragraph 48 of this judgment, it is stated that” Negligence in the context of the 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”.

In “Ins. Malhotra vs. A. Kriplani and Ors.” (MANU/SC/0446/2009), the supreme court has mentioned that the 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 doctors follow a practice acceptable to the medical profession of that day.

In “Post Graduate Institute of Medical Education and Research, Chandigarh vs. Jaspal Singh and Ors.”(MANU/SC/0906/2009), It is well settled that the standard to be applied for judging, whether the person charged has been negligent or not; would be that of an ordinary person exercising skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.

A negligent act refers to an act done by a person without taking sufficient precaution or reasonable precautions to avoid its probable mischievous or illegal consequences. It implies an omission to do something, which a reasonable man, in the given circumstances, would not do. A doctor is not criminally liable for patient’s death, unless his negligence or incompetence passes beyond a mere matter of competence. It is the duty of every doctor to act with a reasonable degree of care. However, no human in this world is perfect and even specialists make mistakes, a doctor can be made liable only if he fails to act with such reasonable care that every doctor with ordinary skills would be able to do.

By Navin Kumar, Advocate

Law Offices of Navin Kumar