For quite a long time, framing charges against medical professionals and the subsequent arrest caused lots of anxiety. A physician can be charged with culpable homicide or negligence, if the death of a patient, which otherwise dies from the unwanted effects of treatment, can be proved as a result of gross negligence. In such cases, the physician should be able to prove that he used reasonable and ordinary care in the treatment of his patient to the best of his judgment.
The law does not expect a duly qualified health care practitioner to bring the highest possible degree of skill each time during the treatment or to be the one who guarantee cures. But it expects from such a physician to use that degree of skill & judgment which an average man of same qualification ought to have.
Judiciary’s Perspective –
Indian courts have been very careful not to hold qualified practitioners criminally responsible for patients’ deaths which are result of judgmental mistakes in application of remedies. The simple fact of loss of life or injury cannot lead to the speculations of negligent act. For establishing the criminality, such an act should be gross in nature of its degree.
Section 304-A of IPC is invoked to register a complaint for alleged criminal professional negligence where the failure of treatment resulting in death was attributable to medical negligence. If the patient survives and suffers post treatment from the alleged grievous injuries sustained during treatment, the medical practitioner can be charge sheeted for offence under Section 337 or Section 338 of IPC.
Simple lack of care gives rise to only civil liability. Therefore, facts which justify a finding of civil negligence may not be enough for holding a person criminally liable [Kusum Sharma vs. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480:AIR 2010 SC 1050: 2010 (2) SCR 685. ]. The distinction between criminal & civil negligence is so thin that a critical scrutiny is required in deciding the issues. For a person to be prosecuted for professional negligence, proving the presence of mens rea i.e., guilty mind, is required and the negligence must be described criminal. Mere carelessness and simple lack of care may constitute civil liability and it cannot be accountable to be enough to prove a charge of death of a patient by negligence.
In a doctor patient relationship, there cannot be any mens rea except in rarest of the rare cases. Under criminal law, it is considered as a ‘guilty intention’ and unless it is found that the accused was guilty of intention, he cannot be guilty of commiting the crime.[Director of Enforcement v. MCTM Corp Pvt. Ltd., AIR 1996 SC 1100,p 1103] In practice of medicine, it may include reckless dispensation of medications, outrageously negligent performance of diagnostic or therapeutic measures leading to death, reckless handling of life sustaining equipments, reckless administration of therapeutic drugs, performing surgery or other such procedures under the influence of alcohol or drugs[A Textbook of medical Jurisprudence & Toxicology, 25th Edition, p131]. Defining words like “reckless”, “gross”, “rashness” etc. to impute criminal liability is always debatable.
Maruthamuthu Committee –
Government of Tamil Nadu issues an order based on Maruthamuthu committee report [Government of Tamil Nadu, Health and family Welfare Department, GO(Ms) No. 407 dated 19/12/2000 and GO(Ms 2D) No. 23 dated 21/04/2002] constituted in 2001 to look into mishaps occurring during professional duties of doctors. It states:-
To follow the existing procedure of allowing the police registering the complaint under Section 304A of IPC.
To permit an officer of the rank of DSP or ACP to conduct the investigation.
To issue departmental instructions for not arresting doctors as a matter of routine and to effect arrest only when it is largely justified and with the consultation of senior police officers.
In year 2005, honorable Supreme Court of India, in Jacob Mathew v. State of Punjab held that 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.
Criminal negligence thus is the gross and culpable neglect or the failure to exercise that reasonable care and precaution for protection against injury generally either to the public or individual, which was the imperative duty of the actor to have adopted.