Universal applicability suggests that medical profession is one of the most
noble professions known to mankind. When years on end you strive to master
professionality gradually rendering you with the power of making a change and
discovering new possibilities especially bearing in mind how the healthcare
system works, it is with no question a gratuitous job and immensely laudable.
However, there still exits an imperative need to scrutinize how medical
The mere existence of the word 'negligence 'is often falsely
interpreted, its ambit is wide with dynamic fallouts and is thus an area of
snarled misperception. However, with swift advancements in technology though it
an eminent component of sustainability, assistance of a doctor is often
overlooked. Simple 'lack of care 'does not establish medical negligence on the
part of the doctor.
A doctor only has professional liability associated with
their patients, and in no case does a doctor guarantee complete recovery of a
patient. Demise of a patient does not make a doctor liable for medical
negligence, supreme court said in Dr (Mrs) Chanda Rani Akhouri and ors versus
DR. M. A. Methusethupathi and ors
dated 20th April 2022. (1)
In grave cases of negligence there is imposition of criminal and civil
liabilities against the concerned doctor/ hospital administration or staff,
however after the surfacing of consumer protection act, 1986 and aftermath of
the amendment in 2019, the process of filing and seeking compensation from the
doctors/ hospital administration has been amplified in goodwill of the patients.
In addition to which, although there are improvised set of rules regulated by
the medical council of india, ensuring the code of conduct intended for doctors,
Those rules are dogmatic in nature and thus lack punitive provisions.
There has been perceptible increment in the number of cases enshrining the
prerequisites of medical negligence, most of these are not even near sincere.
This article emphasizes on the cogency of medical negligence.
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.
-An increasing tendency of resort to criminal actions against doctors take shape
through filing of private complainants and sometimes by police on an FIR being
lodged and cognisance 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.
- Negligence or recklessness being 'gross' is not a requirement of Section
304A of IPC and if the view taken in Dr. Suresh Gupta's case is to be followed
then the word 'gross' shall have to be read into Section 304A IPC for fixing
criminal liability on a doctor. Such an approach cannot be countenanced.
- 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 would be 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 appropriately. But a doctor cannot be placed at a
different pedestal for finding out whether rashness or negligence was
involved. Jacob Mathews v/s State Of Punjab
In furtherance of determining medical negligence holding its necessities in
section 304A of the Indian penal code, still calls for probed reading and
elucidation. One way of effective functioning of cases affected with medical
negligence could be establishment of fast track courts, in addition with
accentuated guidelines, SOPs' etc.
- Modi Textbook Of Medical Jurisprudence And Toxicology