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Oct-Dec2004-12(4)
HEALTH AND LAW
Criminal liability for medical
negligence: a drastic change?
M R Hariharan
Nair
The Supreme Court declared on August 4, 2004, in Dr
Suresh Gupta's Criminal Appeal [Appeal (crl.) 778 of 2004] that to sustain a
prosecution for the offence under S. 304A of the Indian Penal Code (IPC), and to
fix criminal liability on a doctor or surgeon, the standard of negligence
required to be proved should be so high that it can be described as 'gross
negligence' or 'recklessness', not merely lack of necessary care. On those
premises it quashed the criminal proceedings against Dr Gupta before they
reached trial in the Magistrate's Court.
Until this judgment came out, a precedent was set
by the decision of the Supreme Court dated February 4, 2004, in Mohanan v.
Prabha G Nair and another (2004) CPJ 21(SC). In this case, a woman in the
seventh month of pregnancy underwent medical intervention and delivered a dead
child on the next day. She passed away three days later, while under medical
care. The husband alleged in his police complaint that though he repeatedly
asked for permission to remove his wife to a medical college hospital, the
doctor advised against the shift saying that the patient had no serious problem
and that everything would turn out all right. Subsequent events obviously proved
otherwise.
Based on the opinion of the radiologist and the
doctor who conducted the autopsy, the Criminal Court took cognisance of the
offence punishable under S.304A of the IPC. The doctor petitioned to quash the
proceedings invoking S. 482 of the Criminal Procedure Code, on the ground that
there was no prima facie case. The concerned High Court held that the mere fact
that a patient dies in a hospital does not lead to the presumption that the
death occurred due to the doctor's negligence. To hold a doctor criminally
responsible for a patient's death, it must be established that there was
negligence or incompetence on the doctor's part, which went beyond civil
liability. Criminal liability would arise only if the doctor did something in
disregard to the patient's life and safety.
The Supreme Court, however, set aside the said High
Court decision holding that the doctor's negligence could be ascertained only by
scanning all material and expert evidence that might be adduced during the
trial. The High Court was held not justified in quashing the complaint at the
threshold invoking the special power under S. 482 of the Criminal Procedure Code
as that would do away with a full-fledged criminal trial necessary for fixing
criminal liability.
Relevant legal provisions
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.
Relevant legal provisions
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.
According to S. 80 of the IPC, 'nothing is an
offence which is done by accident or misfortune, and without any criminal
intention or knowledge in the doing of a lawful act, in a lawful manner, by
lawful means and with proper care and caution.' In other words, if a person
commits an act by accident or misfortune without a criminal intention, using
lawful means and with proper care and caution, his action cannot be labelled a
criminal offence.
Again, S. 88 of the IPC provides that nothing which
is not intended to cause death, is an offence by reason of any harm which it may
cause, or be intended by the doer to cause, or be known by the doer to be likely
to cause, to any person for whose benefit it is done in good faith, and who has
given a consent, whether express or implied, to suffer that harm, or to take the
risk of that harm. In other words, an act, not intended to cause death, and done
in good faith and with the consent of the other party, cannot be labelled an
offence even if it leads to the other party's death or disability. It may also
be mentioned here that the word 'good faith' used here has a special meaning. It
means an act done wih due care and attention.
Let us analyse the recent Supreme Court decision in
the light of the legal positions stated above.
On April 18, 1994, Dr Suresh Gupta, a plastic
surgeon, operated on his patient for removing a nasal deformity. Allegedly, he
made an incorrect incision as a result of which blood seeped into the patient's
respiratory passage leading to his immediate collapse and death. A case was
filed against the doctor under S. 304A of the IPC. The anaesthetist who assisted
Dr Gupta in the operation was also made co-accused; but he died while the trial
was pending. The criminal proceedings therefore continued against Dr Gupta
alone.
Rejecting Dr Gupta's plea for discharge without
trial, the magistrate noted that according to the post-mortem report, the cause
of death was 'blockage of respiratory passage by aspirated blood consequent upon
surgically incised margin of nasal septum'; that the medical experts
constituting the Special Medical Board set up for the investigation had opined
that the blockage and aspiration of blood from the wound were not likely to
arise if a cuffed endotracheal tube of proper size had been introduced before
the operation and kept intact, and that the negligence in not taking this
precaution justified further trial proceedings.
The Supreme Court did not agree to this. It has now
held that to fix criminal liability on a doctor or surgeon, the standard of
negligence required to be proved should be so high that it can be described as
gross negligence or recklessness and not merely lack of necessary care,
attention and skill. Every careless act of a medical person cannot be termed
'criminal'. It can be termed 'criminal' only when doctors exhibit gross lack of
competence or inaction, and wanton indifference to their patients' safety, as a
result of gross ignorance or gross negligence. When a patient's death results
merely from an 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 not criminal liability. It was held
that but for this approach, the hazards in the medical profession which include
civil liability would also unreasonably extend to criminal liability, and
doctors would then be at the risk of landing up in prison, a result that would
shake the mutual confidence between doctor and patient.
Based on these facts, the Supreme Court held that
though the patient was a young man with no history of any heart ailment, the
operation to be performed for nasal deformity was not so complicated or serious;
and that the alleged lapse, i.e. the failure to introduce a cuffed endotracheal
tube of proper size to prevent aspiration of blood from the wound in the
respiratory passage, could not be described as a reckless or grossly negligent
act as to make him criminally liable. Holding that such evidence was wanting,
the doctor was acquitted without trial.
Were these findings not similar to those held by
the High Court concerned, though in different words in Mohanan's case, but found
unsustainable by the Supreme Court then? If the quashing of the charge with the
observation that the doctor's negligence could be ascertained only by scanning
the material and expert evidence that might be adduced during a prospective
trial was not in order in Mohanan's case, how could the reason given for
quashing charges in Dr Suresh Gupta's case be correct?
It appears that if the decision in Mohanan's case
had been followed by the later Bench that decided Dr Suresh Gupta's case, the
ultimate decision might have been different. Probably the earlier decision was
not cited before the new Bench.
The impact of the judgment, though significant, may
be short lived. The reason is that according to press reports, a Bench
consisting of Justice Arijit Pasayat and CK Thakker, on or about September 9,
2004, has referred the question of medical negligence for determination by a
larger Bench of the Supreme Court observing that the words 'gross, reckless,
competence, indifference' etc. did not occur anywhere in the definition of
'negligence' under S. 304A of the IPC, and hence, they could not agree with the
judgment delivered in the case of Dr Suresh Gupta. Thus the matter will come up
for review before a larger bench of the Supreme Court any time now.
M R Hariharan Nair,(Retired Kerala High Court Judge), Chairman, Institutional Review Committee, Sree Chitra Tirunal Institute for Medical Science and Technology, Thiruvananthapuram 695011, Kerala, India. email: justicemr@sancharnet.in
M R Hariharan Nair,(Retired Kerala High Court Judge), Chairman, Institutional Review Committee, Sree Chitra Tirunal Institute for Medical Science and Technology, Thiruvananthapuram 695011, Kerala, India. email: justicemr@sancharnet.in