No 304A against Doctor unless high order of Medical Negligence is established: Supreme Court
Section 304A Indian Penal Code titled Causing death by negligence. states that Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
New Delhi: Given the fact that doctors are rampantly accused of medical negligence and charged under IPC 304 A without proper scrutiny into the allegations made against them, the Supreme Court has made a landmark observation holding that the medical professionals should not be dragged into criminal proceedings unless negligence of a high order is shown.
The bench made this observation based on the petition filed by a doctor of Haryana based hospital who was accused of medical negligence after the death of the patient following a C Section.
The case concerned a pregnant patient who was admitted to the hospital for delivery in November 1998. She was advised caesarean by the doctor and underwent the same. After the birth of the newborn, the doctors felt that blood was required to be given to the patient. The donors were her husband and her brother. A day post-transfusion, the patient expired.
Thereafter, citing medical negligence filed an FIR with the police alleging that the doctor did not attend to the patient after transfusion which resulted in her death.
Then, the trial court was moved with the case which on the application of the accused discharged the doctor and gave relief to the doctor relying upon the judgment of the Supreme Court in Jacob Mathew vs. State of Punjab & Anr. (2005) 6 SCC 1 case in which the bench had held that in criminal law medical professionals are placed on a pedestal different from ordinary mortals.
"... to prosecute the medical professionals for negligence under criminal law, something more than mere negligence had to be proved. Medical professionals deal with patients and they are expected to take the best decisions in the circumstances of the case. Sometimes, the decision may not be correct, and that would not mean that the medical professional is guilty of criminal negligence. Such a medical profession may be liable to pay damages but unless negligence of a high order is shown the medical professionals should not be dragged into criminal proceedings.
"... To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent."
"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 in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam test to the facts collected in the investigation."
Following the trial court's verdict on the case, in a setback to the doctor, the Additional Sessions Judge had later set aside the order of discharge from having committed offences under Section 304A Indian Penal Code, 1860 and Section 18- C/27-B of the Drugs and Cosmetics Act, 1940. Thereafter, Punjab and Haryana High Court was approached which upheld the Additional Sessions Judge take on the case.
Aggrieved, the doctor moved the Supreme Court which while restoring the trial court's order , allowed the doctor's appeal and stated:
In the present case the appellants failed to obtain any opinion of an independent doctor. The postmortem report does not show that the death of Santosh Rani had occurred due to the transfusion of blood. The only negligence that could be attributed to the accused is that they carried out the blood transfusion in violation of some instructions issued by the Chief Medical Officer that blood should be obtained from a licensed blood bank and that no direct blood transfusion from the donor to the patient should be done. In our opinion even if this is true the negligence is not such as to fall within the ambit of Jacob Mathew's case (supra). In view of the above, we set aside the judgment of the High Court and restore the order of the trial court and discharge the appellants. The Appeal is accordingly allowed.
The MCI is likely to soon release a sentencing policy guideline for the medical profession that is going to lay down certain standards to determine the guilt and punishment to be accorded to a delinquent doctor in cases of medical negligence.