doctors have been unnecessarily dragged in litigations as a result of frivolous complaints by patients or their relations.
Supreme Court of India
gave a landmark Judgement stating the interpretation of medical negligence in India. For years, doctors have been unnecessarily dragged in litigations as a result of frivolous complaints by patients or their relations. Doctors were arrested mere on filing of complaints of medical negligence against them. They use to loose their status and glory in the society as the news of their arrest use to come on newspapers next day now since this Judgement into force, doctors are really feeling relief. Now no doctor can be arrested simply on filling the complaint against him by any patient or relative of the patient. His arrest can only be there if needed for furthering the investigation or for collecting evidence or investigating officer think that doctor may run away to evade arrest.
The judgement has given direction for investigating officer how to proceed in such cases. Before proceeding against doctor, the investigating officer should obtain an independent and competent opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion The detailed judgement in given below.
SUPREME COURT JUDGEMENT
In the Supreme Court of India/criminal Appellate jurisdiction
Criminal Appeal Nos. 144-145 of 2004
Ashok Kumar Sharma, the respondent No. 2 herein filed an FIR with police station, Division No. 3, Ludhiana, whereupon an offence under Section 304A read with Section 34 of the Indian Penal Code (for short the "IPC") was registered.
The gist of the information is that on 15.2.1995, the informant's father, late Jiwan Lal Sharma was admitted as a patient in a private ward of CMC Hospital, Ludhiana. On 22.2.1995 at about 11 p.m., Jiwan Lal felt difficulty in breathing. The complainant's elder brother, Vijay Sharma who was present in the room contacted the duty nurse, who in her turn called some doctor to attend to the patient. No doctor turned up for about 20-25 minutes. Then, Dr. Jacob Mathew, the appellant before us and Dr Allen Joseph came to the room of the patient. An O2 cylinder was brought and connected to the mouth of the patient but the breathing problem increased further. The patient tried to get up but the medical staff asked him to remain in the bed. The oxygen cylinder was found to be empty. There was no other gas cylinder available in the room. Vijay Sharma went to the adjoining room and brought gas cylinder therefrom. However, there was no arrangement to make the gas cylinder functional and in-between, 5 to 7 minutes were wasted, By this time, another doctor came who declared that the patient was dead. The latter part of the FIR states (as per translation in English as filed by the complainant):
"... the death of my father occurred due to the carelessness of doctors and nurses and non availability of oxygen cylinder. An empty cylinder was fixed on the mouth of my father due to which his breathing totally stopped; hence my father died. I sent the dead body of my father to my village for cremation and for lodging a complaint I have come to you. Suitable action be done Sd/-As per statement the death of Jiwan Lal Sharma occurred due to carelessness of doctors and nurses concerned and due to use of empty gas cylinder."
On the above said report, an offence under Section 304A/34 IPC was registered and investigated. Challan was filed against the two doctors.
The Judicial Magistrate First Class, Ludhiana framed charges under Section 304A, IPC against the two accused persons, both doctors. Both of them filed a revision in the Court of Sessions judge submitting that there was no ground for framing charges against them. The revision was dismissed. The appellant filed a petition in the High Court under Section 482 of the Code of Criminal Procedure praying for quashing of the FIR and all the subsequent proceedings.
It was submitted before the High Court that there was no specific allegation of any act of omission or commission against the accused persons in the entire plethora of documents comprising the challan papers filed by the police against them. The learned single Judge who heard the petition formed an opinion that the plea raised by the appellant was available to be urged in defence at the trial and, therefore, a case for quashing the charge was not made out. Vide order dated 18.12.02, the High Court dismissed the petition. An application for recalling the above said order was moved which too was dismissed on 24.1.2003. Feeling aggrieved by these two orders, the appellant has filed these appeals by special leave.
According to the appellant, the deceased Jiwan Lal was suffering from cancer in an advanced stage and as per the information available, he was, in fact, not being admitted by any hospital in the country because of him being a case of cancer at terminal stage. He was only required to be kept at home and given proper nursing, food, care and solace coupled with prayers. But as is apparent from the records, his sons are very influential persons occupying important positions in Government. They requested the hospital authorities that come what may, even on compassionate grounds, their father be admitted in the hospital for regulated medical treatment and proper management of diet. It was abundantly made clear to the informant and his other relations who had accompanied the deceased that the disease was of such a nature and had attained such gravity, that peace and solace could only be had at home. But the complainant prevailed over the doctors and hospital management and got the deceased admitted as an in-patient. Nevertheless, the patient was treated with utmost care and caution and given all the required medical assistance by the doctors and para-medical staff. Every conceivable effort was made by all the attending staff comprising of doctors and nurses and other para-medicals to give appropriate medical treatment and the whole staff danced attendance on the patient but what was ordained to happen, did happen. The complainant and his relations, who were misguided or were under mistaken belief as to the facts, lodged police report against the accused persons-wholly unwarranted and uncalled for.
The matter came up for hearing before a Bench of two learned judges of this Court. Reliance was placed by the appellant on a recent two-judge bench decision of the Court in Dr Suresh Gupta vs Govt. of NCT of Delhi and Anr. (2004) 6 SCC 422. The Bench hearing this appeal doubted the correctness of the view taken in Dr Suresh Gupta's case and vide order dated 9.9.2004 expressed the opinion that the matter called for consideration by a Bench of three Judges. This is how the case has come up for hearing before the Bench.
In Dr Suresh Gupta's case, the patient, a young man with no history of any heart ailment, was subjected to an operation performed by Dr Suresh Gupta for nasal deformity. The operation was neither complicated nor serious. The patient died. On investigation, the cause of death was found to be "not introducing a cuffed endotracheal tube of proper size so as to prevent aspiration of blood from the wound in the respiratory passage." The Bench formed an opinion that this act attributed to the doctor, even if accepted to be true, could be described as an act of negligence as there was lack of due care and precaution. But, the Court categorically held "for this act of negligence he may be liable in trot, his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable."
The referring Bench in its order dated 9.9.2004 assigned two reasons for their disagreement with the view taken in Dr Suresh Gupta's case which are as under: (1) Negligence or recklessness being 'gross' is not a requirement of Section 304A IPC for fixing criminal liability on a doctor. Such an approach cannot be countenanced.
(2) Different standards cannot be applied to doctors and others. In all cases it has to be seen whether the impugned act was rash or negligent. By carrying out a separate treatment for doctors by introducing degree of rashness or negligence, violence is being done to the plain and unambiguous language of Section 304A. If by adducing evidence it is proved that there was no rashness or negligence involved, the trial court dealing with the matter, shall decide placed at a different pedestal for finding out whether rashness or negligence was involved.
We have heard the learned counsel for the appellant, the respondent-State and the respondent complainant. As the question of medical negligence arose for consideration, we thought it fit to issue notice to Medical Council of India to assist the Court at the time of hearing which it has done. In addition, a registered society-'People for Better Treatment", Kolkata, DMC, DELHI, MEDICAL ASSOCIATION and IMA sought for intervention at the hearing as the issue arising for decision is of vital significance for the medical profession. The too have been heard. Mainly, the submissions made by the learned counsel for the parties and the intervenors have centered around two issues: (1) Is there a difference in civil and criminal law on the concept of negligence? and (II) whether a different standard is applicable for recording a finding of negligence when a professional, in particular, a doctor, is to be held guilty of negligence?
With the awareness in the society and the people in general gathering consciousness about their rights, actions for damages in tort are on the increase. Not only civil suits are filed, the availability of a forum for grievance redressal under the consumer protection Act, 1986 having jurisdiction to hear complaints against professionals for 'deficiency in service', which expression is very widely defined in the Act, has given rise to a large number of complaints against professionals, in particular against doctors, being filed by the persons feeling aggrieved. Criminal complaints are being filed against doctors alleging commission of offences punishable under Section 304A or Sections 336/337/338 of the IPC alleging rashness or negligence on the part of the doctors resulting in loss of life or injury (of varying degree) to the patient. The present case is one such example. The order of reference has enabled us to examine the concept of 'negligence', in particular 'professional negligence', and as to when and how it does give rise to an action under the criminal law. We propose to deal with the issues in the interests of setting the law.
Supreme Court of India
gave a landmark Judgement stating the interpretation of medical negligence in India. For years, doctors have been unnecessarily dragged in litigations as a result of frivolous complaints by patients or their relations. Doctors were arrested mere on filing of complaints of medical negligence against them. They use to loose their status and glory in the society as the news of their arrest use to come on newspapers next day now since this Judgement into force, doctors are really feeling relief. Now no doctor can be arrested simply on filling the complaint against him by any patient or relative of the patient. His arrest can only be there if needed for furthering the investigation or for collecting evidence or investigating officer think that doctor may run away to evade arrest.
The judgement has given direction for investigating officer how to proceed in such cases. Before proceeding against doctor, the investigating officer should obtain an independent and competent opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion The detailed judgement in given below.
SUPREME COURT JUDGEMENT
In the Supreme Court of India/criminal Appellate jurisdiction
Criminal Appeal Nos. 144-145 of 2004
Ashok Kumar Sharma, the respondent No. 2 herein filed an FIR with police station, Division No. 3, Ludhiana, whereupon an offence under Section 304A read with Section 34 of the Indian Penal Code (for short the "IPC") was registered.
The gist of the information is that on 15.2.1995, the informant's father, late Jiwan Lal Sharma was admitted as a patient in a private ward of CMC Hospital, Ludhiana. On 22.2.1995 at about 11 p.m., Jiwan Lal felt difficulty in breathing. The complainant's elder brother, Vijay Sharma who was present in the room contacted the duty nurse, who in her turn called some doctor to attend to the patient. No doctor turned up for about 20-25 minutes. Then, Dr. Jacob Mathew, the appellant before us and Dr Allen Joseph came to the room of the patient. An O2 cylinder was brought and connected to the mouth of the patient but the breathing problem increased further. The patient tried to get up but the medical staff asked him to remain in the bed. The oxygen cylinder was found to be empty. There was no other gas cylinder available in the room. Vijay Sharma went to the adjoining room and brought gas cylinder therefrom. However, there was no arrangement to make the gas cylinder functional and in-between, 5 to 7 minutes were wasted, By this time, another doctor came who declared that the patient was dead. The latter part of the FIR states (as per translation in English as filed by the complainant):
"... the death of my father occurred due to the carelessness of doctors and nurses and non availability of oxygen cylinder. An empty cylinder was fixed on the mouth of my father due to which his breathing totally stopped; hence my father died. I sent the dead body of my father to my village for cremation and for lodging a complaint I have come to you. Suitable action be done Sd/-As per statement the death of Jiwan Lal Sharma occurred due to carelessness of doctors and nurses concerned and due to use of empty gas cylinder."
On the above said report, an offence under Section 304A/34 IPC was registered and investigated. Challan was filed against the two doctors.
The Judicial Magistrate First Class, Ludhiana framed charges under Section 304A, IPC against the two accused persons, both doctors. Both of them filed a revision in the Court of Sessions judge submitting that there was no ground for framing charges against them. The revision was dismissed. The appellant filed a petition in the High Court under Section 482 of the Code of Criminal Procedure praying for quashing of the FIR and all the subsequent proceedings.
It was submitted before the High Court that there was no specific allegation of any act of omission or commission against the accused persons in the entire plethora of documents comprising the challan papers filed by the police against them. The learned single Judge who heard the petition formed an opinion that the plea raised by the appellant was available to be urged in defence at the trial and, therefore, a case for quashing the charge was not made out. Vide order dated 18.12.02, the High Court dismissed the petition. An application for recalling the above said order was moved which too was dismissed on 24.1.2003. Feeling aggrieved by these two orders, the appellant has filed these appeals by special leave.
According to the appellant, the deceased Jiwan Lal was suffering from cancer in an advanced stage and as per the information available, he was, in fact, not being admitted by any hospital in the country because of him being a case of cancer at terminal stage. He was only required to be kept at home and given proper nursing, food, care and solace coupled with prayers. But as is apparent from the records, his sons are very influential persons occupying important positions in Government. They requested the hospital authorities that come what may, even on compassionate grounds, their father be admitted in the hospital for regulated medical treatment and proper management of diet. It was abundantly made clear to the informant and his other relations who had accompanied the deceased that the disease was of such a nature and had attained such gravity, that peace and solace could only be had at home. But the complainant prevailed over the doctors and hospital management and got the deceased admitted as an in-patient. Nevertheless, the patient was treated with utmost care and caution and given all the required medical assistance by the doctors and para-medical staff. Every conceivable effort was made by all the attending staff comprising of doctors and nurses and other para-medicals to give appropriate medical treatment and the whole staff danced attendance on the patient but what was ordained to happen, did happen. The complainant and his relations, who were misguided or were under mistaken belief as to the facts, lodged police report against the accused persons-wholly unwarranted and uncalled for.
The matter came up for hearing before a Bench of two learned judges of this Court. Reliance was placed by the appellant on a recent two-judge bench decision of the Court in Dr Suresh Gupta vs Govt. of NCT of Delhi and Anr. (2004) 6 SCC 422. The Bench hearing this appeal doubted the correctness of the view taken in Dr Suresh Gupta's case and vide order dated 9.9.2004 expressed the opinion that the matter called for consideration by a Bench of three Judges. This is how the case has come up for hearing before the Bench.
In Dr Suresh Gupta's case, the patient, a young man with no history of any heart ailment, was subjected to an operation performed by Dr Suresh Gupta for nasal deformity. The operation was neither complicated nor serious. The patient died. On investigation, the cause of death was found to be "not introducing a cuffed endotracheal tube of proper size so as to prevent aspiration of blood from the wound in the respiratory passage." The Bench formed an opinion that this act attributed to the doctor, even if accepted to be true, could be described as an act of negligence as there was lack of due care and precaution. But, the Court categorically held "for this act of negligence he may be liable in trot, his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable."
The referring Bench in its order dated 9.9.2004 assigned two reasons for their disagreement with the view taken in Dr Suresh Gupta's case which are as under: (1) Negligence or recklessness being 'gross' is not a requirement of Section 304A IPC for fixing criminal liability on a doctor. Such an approach cannot be countenanced.
(2) Different standards cannot be applied to doctors and others. In all cases it has to be seen whether the impugned act was rash or negligent. By carrying out a separate treatment for doctors by introducing degree of rashness or negligence, violence is being done to the plain and unambiguous language of Section 304A. If by adducing evidence it is proved that there was no rashness or negligence involved, the trial court dealing with the matter, shall decide placed at a different pedestal for finding out whether rashness or negligence was involved.
We have heard the learned counsel for the appellant, the respondent-State and the respondent complainant. As the question of medical negligence arose for consideration, we thought it fit to issue notice to Medical Council of India to assist the Court at the time of hearing which it has done. In addition, a registered society-'People for Better Treatment", Kolkata, DMC, DELHI, MEDICAL ASSOCIATION and IMA sought for intervention at the hearing as the issue arising for decision is of vital significance for the medical profession. The too have been heard. Mainly, the submissions made by the learned counsel for the parties and the intervenors have centered around two issues: (1) Is there a difference in civil and criminal law on the concept of negligence? and (II) whether a different standard is applicable for recording a finding of negligence when a professional, in particular, a doctor, is to be held guilty of negligence?
With the awareness in the society and the people in general gathering consciousness about their rights, actions for damages in tort are on the increase. Not only civil suits are filed, the availability of a forum for grievance redressal under the consumer protection Act, 1986 having jurisdiction to hear complaints against professionals for 'deficiency in service', which expression is very widely defined in the Act, has given rise to a large number of complaints against professionals, in particular against doctors, being filed by the persons feeling aggrieved. Criminal complaints are being filed against doctors alleging commission of offences punishable under Section 304A or Sections 336/337/338 of the IPC alleging rashness or negligence on the part of the doctors resulting in loss of life or injury (of varying degree) to the patient. The present case is one such example. The order of reference has enabled us to examine the concept of 'negligence', in particular 'professional negligence', and as to when and how it does give rise to an action under the criminal law. We propose to deal with the issues in the interests of setting the law.
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