In Criminal Appeal No. 770 of 2009 titled Anjana Agnihotri , Vs. State of Haryana, directed against the Judgment dated 23.04.2008 of the Punjab & Haryana High Court, whereby, the High Court upheld the order of Additional Sessions Judge dated 24.09.2004 by which the order dated 30.11.2000 of the Learned Sub-Divisional Judicial Magistrate, Dabwali, discharging the appellants for having committed offences under Section 304-A Indian Penal Code, 1860 and Section 18-C/27-B of the Drugs and Cosmetics Act, 1940, was set aside, the Bench comprising of Justices Deepak Gupta & Hemant Gupta, referring to Judgment in Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1, observed that to prosecute the medical professionals for negligence under criminal law, something more than mere negligence had to be proved.

It said:
In Jacob Mathew’s Case this Court clearly held that in criminal law medical professionals are placed on a pedestal different from ordinary mortals. It was further held that 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.

That is why in Jacob Mathew’s case (supra) this Court held that in a case of criminal negligence against a medical professional it must be shown that the accused did something or failed to do something in the given facts and circumstances of the case which no medical professional in his ordinary senses and prudence would have done or failed to do.

It also observed that, in such cases an independent opinion of a medical professional should be obtained in this regard.

While allowing the appeal, the Bench observed:
In the present case the appellants failed to obtain any opinion of an independent doctor. The post-mortem 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 Jacob Mathew, the Supreme Court had laid down guidelines to govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. It had said:
A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.

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 Bolam's test to the facts collected in the investigation.

A doctor accused of rashness or negligence, may not arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.

The facts, as these stem out from the instant appeal, are that, one Santosh Rani (deceased) was admitted to the Agnihotri Hospital run by the appellants herein. On 15.11.1998 at about 5.00 a.m. Santosh Rani was expecting a child and she was advised caesarian operation. Such operation was conducted at about 8.00 a.m. and a male child was born. After the birth of the child the doctors felt that blood was required to be given to Santosh Rani.

Thereafter, her husband Nand Lal and brother Bhajan Lal offered to give blood and this blood was taken and transfused to Santosh Rani at about 2.30 p.m. At about 2.00 a.m. the next morning Santosh Rani expired.

Thereafter, Mulkh Raj, brother of the husband of the deceased filed an FIR with the police. It is important to note that in the FIR it is stated that in the hospital the blood of Nand Lal and Bhajan Lal was taken by the dispenser and Dr. Agnihotri of the hospital. It is further stated that these two persons tested the blood and transfused it to Santosh Rani and oxygen was also administered. The main allegation against the appellants in the case is that they did not attend to Santosh Rani from 2.30 p.m. to 2.00 a.m.

In the case of Jacob Mathew Vs State of Punjab & Anr., AIR 2005 Supreme Court 3180, the legal principles and the law laid down in Dr. Suresh Gupta's case have been re-affirmed. The relevant excerpts of the Judgment in the context of the issues raised herein in these petitions are detailed as under;

49. We sum up our conclusions as under:

1. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G. P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: duty, breach and resulting damage.
    
2. 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 a 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 trial. 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 that particular time (that is, the time of the incident) at which it is suggested it should have been used.
    
3. A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
    
4. The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.
    
5. The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. 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. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
    
6. The word 'gross' has not been used in Section 304-A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304-A of the IPC has to be read as qualified by the word grossly.
    
7. 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.
    
8. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.

50. In view of the principles laid down hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr. Suresh Gupta's case (2004) 6 SCC 422 and re-affirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh Gupta's case.

We may not be understood as having expressed any opinion on the question whether on the facts of that case the accused could or could not have been held guilty of criminal negligence as that question is not before us. We also approve of the passage from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Suresh Gupta's case (noted Vide Para 27 of the report).

Guidelines re: prosecuting medical professionals
51. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken.

The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment.

He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.

52. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions.

Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.

53. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient.

A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.

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 Bolam's test to the facts collected in the investigation.

A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.

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. So long as a doctor follows a practice acceptable to the medical profession of that day, he/she 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.

The classical statement of law in Bolam Vs. Friern Hospital Management Committee, (1957) 1 WLR 582: (1957) 2 AII ER 118 (QBD) popularly known as Bolam's test, has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular, and holds good in its applicability in India. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. It is not necessary for every professional to possess the highest level of expertise in that branch which he/she practices.

Three things are pertinent to be noted:

1. Firstly, the standard of care, when 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 trial.
2. Secondly, 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 that point of time (that is, the time of the incident) on which it is suggested as should have been used.
3. Thirdly, 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. The indiscriminate prosecution of medical professionals for criminal medical negligence is counter-productive and does no service or good to the society. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his/her suffering.

He/She does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason--whether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine.

Discretion being the better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to the society.

Written By: Dinesh Singh Chauhan, Advocate, High Court of Judicature, J and K, Jammu
Email: [email protected], [email protected]