NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

CRIMINAL LAW-II
(6th TRIMESTER)
Project on
Medical Negligence and Criminal Liability under Indian Law: Analysis of
Judicial Decision

Submitted To: Submitted By:

Ms. Divya Salim Siddharth Vishwakarma
Assistant Professor 2018BALLB28
 Table of Contents
CERTIFICATE.................................................................................................................................3
ACKNOWLEDGMENT..................................................................................................................4
CHAPTER-1 INTRODUCTION.....................................................................................................5
STATEMENT OF PROBLEM.....................................................................................................6
OBJECTIVES OF STUDY...........................................................................................................6
HYPOTHESIS.............................................................................................................................6
RESEARCH QUESTION............................................................................................................6
METHOD OF STUDY................................................................................................................6
CHAPTER-2....................................................................................................................................6
MEDICAL NEGLIGENCE AND CRIMINAL LAW..................................................................6
SECTION 304-A OF IPC.............................................................................................................7
ESSENTIAL OF MEDICAL NEGLIGENCE..............................................................................7
BURDEN OF PROOF AND CHANCE OF ERROR...................................................................8
CHAPTER-3 ACCOUNTABILITY OF DOCTERS & JUDICIAL APPROACH.......................9
CASE ANALYSIS.....................................................................................................................10
ANALYSIS................................................................................................................................13
CHAPTER-3 Conclusion............................................................................................................14
 CERTIFICATE

This is to certify that the research paper titled “Medical Negligence and Criminal Liability
under Indian Law: Analysis of Judicial Decision” , has been prepared and submitted by
Siddharth Vishwakarma, who is currently pursuing his B.A. L.L.B. (Hons.) at National Law
Institute University, Bhopal in fulfilment of Criminal Law – II Course. It is also certified that
this is his original research report and this paper has not been submitted to any other
University, nor published in any journal.
Date: ………………..
Signature of the Student : ……………………….
Signature of the Research Spectator : ……………………….
 ACKNOWLEDGMENT

This paper has been made possible by the unconditional support of many people. I would like
to acknowledge and extend my heartfelt gratitude to Ms. Divya Salim for guiding me
throughout the development of this paper into a coherent whole by providing helpful insights
and sharing her brilliant expertise. I would also like to thank the officials of the National Law
Institute University, NLIU for helping me to find the appropriate research material for this
study. I am deeply indebted to my parents, seniors and friends for all the moral support and
encouragement.

Siddharth Vishwakarma
 CHAPTER-1 INTRODUCTION

Section 304A of the Indian Penal Code of 1860 states that whoever causes the death of a
person by a rash or negligent act not amounting to culpable homicide shall be punished with
imprisonment for a term of two years, or with a fine, or with both. The Supreme Court has
pointed out that liability in civil law is based upon the amount of damages incurred; in
criminal law, the amount and degree of negligence is a factor in determining liability.
However, certain elements must be established to determine criminal liability in any
particular case, the motive of the offence, the magnitude of the offence, and the character of
the offender.

In Poonam Verma vs Ashwin Patel 1, the Supreme Court distinguished between negligence,
rashness, and recklessness. A negligent person is one who inadvertently commits an act of
omission and violates a positive duty. A person who is rash knows the consequences but
foolishly thinks that they will not occur as a result of her/ his act. A reckless person knows
the consequences but does not care whether or not they result from her/ his act. Any conduct
falling short of recklessness and deliberate wrongdoing should not be the subject of criminal
liability.

Thus, a doctor cannot be held criminally responsible for a patient’s death unless it is shown
that she/ he was negligent or incompetent, with such disregard for the life and safety of his
patient that it amounted to a crime against the State.2

Sections 80 and 88 of the Indian Penal Code contain defences for doctors accused of criminal
liability. Under Section 80 (accident in doing a lawful act) nothing is an offence that 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. According
to Section 88, a person cannot be accused of an offence if she/ he performs an act in good
faith for the other’s benefit, does not intend to cause harm even if there is a risk, and the
patient has explicitly or implicitly given consent.

The researcher in this project work will try to work on the loopholes in the given project and
further will try to suggest on the measures with the help of relevant judicial pronouncement.

1
(1996) 4 SCC 332
2
R vs Adomako (1994) 3 All ER 79
 STATEMENT OF PROBLEM
A mere negligent act of a medical professional will not make him/her liable under criminal
law.

OBJECTIVES OF STUDY
 The researcher tends to find out the necessary ingredients required to make someone
liable under medical negligence.
 The researcher tends to find out whether every negligent act done by Medical
Professional attract the liabilities
 The researcher tends to find out that if the negligent act is not the direct cause of the
death of the deceased will it still attract the liabilities.

HYPOTHESIS
The researcher presumes that many intentional deaths can occur or can be done by the
Medical Professionals under the blanket of Medical Negligence.

RESEARCH QUESTION
 Does Non cure/Non-Success of an operation by Doctor amounts to Negligence?
 Does mere lack of necessary care or an error of judgment makes a person liable
under this law?
 If treatment is done informed consent, will it amount to Medical negligence?

METHOD OF STUDY
This project is largely based on the doctrinal method of study

CHAPTER-2
MEDICAL NEGLIGENCE AND CRIMINAL LAW

Under the criminal law, for a person to be prosecuted for professional negligence, proving the
presence of mens rea (guilty mind) is required and the negligence must be criminal. Mere
carelessness and simple lack of care may constitute civil liability and it cannot be treated to
be enough to prove a charge of death of a patient by negligence. Further, the standard of
negligence must be rated in terms of the circumstances such as would be accepted as criminal
negligence. In a civil suit, it is sufficient to prove neglect of duty by consideration of the
preponderance of probabilities of the case. However, in criminal law, it is necessary to prove
beyond reasonable doubt the negligent act of the accused. In a case of criminal medical
negligence, the following need to be considered. In a doctor-patient relationship, there cannot
be any mens rea except in the rarest of rare instances. Under the criminal law, mens rea is
considered as 'guilty intention' and unless it is found that the accused had a guilty intention to
commit the 'crime', he cannot be guilty of committing the crime. IS Further, negligence is the
antithesis of intention and intention is not an element of negligence. In general, Indian courts
have been very careful not to hold qualified medical practitioners criminally responsible for
the death of patients that result from a mere mistake of judgement in the selection and
application of remedies and when the death resulted merely from an inherent risk or error of
judgement, or an inadvertent death.

SECTION 304-A OF IPC

Section 304-A of IPC state that “Whoever causes the death of any person by doing any rash
or negligent act not amounting to culpable homicide, shall be punished with an imprisonment
of either description for a term, which may extend to two years, or with fine, or with both.”

This section mentions the punishment for rash and negligent handling of an instrument or
vehicle or craft and causing death to others, and the maximum punishment is imprisonment
for 2 years, fine, or both. It covers acts characterized as recklessness or wanton recklessness
sufficient to warrant a conviction under Section 304- A of the IPC In the practice of
medicine, it may include reckless dispensation of medications; outrageously negligent
performance of diagnostic or therapeutic measures which lead to death; reckless handling of
ventilators, dialysis machines and other life-sustaining equipment; reckless administration of
anaesthesia; performing surgery or any therapeutic procedures under the influence of alcohol
or drugs. The terms 'recklessness' and 'gross' used to describe the degree of 'rashness' are
difficult to define. Any attempt to define these words to impute criminal liability on a
qualified doctor whose treatment caused the death of a patient will be debatable. The standard
for determination of the degree of medical negligence could only be by persons with medical
knowledge and definitely not by a police officer at the first instance of receiving a complaint.
 ESSENTIAL OF MEDICAL NEGLIGENCE

The term ‘Medical negligence’ consists of two words – medical and negligence. Negligence
is solely the failure to exercise reasonable care. Medical negligence is no different. It is only
that, in case of medical negligence, the doctor is the defendant.

In an action for negligence, the following essentials are required:

 The defendant owed a duty of care to the plaintiff.

 The defendant made a breach of that duty.
 The plaintiff suffered damage as a consequence of that breach.

A doctor owes certain duties of care to his patients, they are as follows:

 It is his duty to decide whether he wants to undertake the case or not,

 It is his duty to decide what treatment to give and;
 It is his duty to decide the administration of treatment.

If a doctor fails to perform the aforesaid duties it results in breach of duty and gives a right of
action to the patient. A breach of duty is committed by a doctor when he does not perform the
degree of care like a reasonable doctor.

BURDEN OF PROOF AND CHANCE OF ERROR

The burden of proof of negligence generally lies with the complainant. The law requires a
higher standard of evidence to support an allegation of negligence against any doctor. In
cases of medical negligence, the patient must establish a claim against the doctor in order to
succeed. In cases of medical negligence, the patient must establish her/ his claim against the
doctor.

In Calcutta Medical Research Institute vs Bimalesh Chatterjee 3 it was held that the onus of
proving negligence and the resultant deficiency in service was clearly on the complainant. In
Kanhaiya Kumar Singh vs Park Medicare & Research Centre 4, it was held that negligence has
to be established and cannot be presumed 

3
(1999) CPJ 13 (NC)
4
(1999) CPJ 9 (NC)
Even after adopting all medical procedures as prescribed, a qualified doctor may commit an
error. The National Consumer Disputes Redressal Commission and the Supreme Court have
held, in several decisions, that a doctor is not liable for negligence or medical deficiency if
some wrong is caused in her/ his treatment or in her/ his diagnosis if she/ he has acted in
accordance with the practice accepted as proper by a reasonable body of medical
professionals skilled in that particular art, though the result may be wrong. In various kinds of
medical and surgical treatment, the likelihood of an accident leading to death cannot be ruled
out. It is implied that a patient willingly takes such a risk as part of the doctor-patient
relationship and the attendant mutual trust

CHAPTER-3 ACCOUNTABILITY OF DOCTERS & JUDICIAL

APPROACH

The principle that doctors, and indeed all professionals, should be accountable for their
failures is entirely acceptable. It does not, however, mean that criminal prosecutions should
be the instrument chosen to perform that task. This paradigm shift in the perceptions of
society in controlling the professional activities of doctors has brought in defensive medicine,
which in turn escalates the cost of health care. In fact, making doctors criminally liable for
the death of a patient means a step backwards towards the ancient feudal system.

No case of criminal negligence should be registered without a medical opinion from Expert
Committee of doctors and it should be given within a reasonable time. Indian Medical
Association (IMA) Punjab claimed “they had secured a directive from Director General of
Police (DGP) Punjab that no case of criminal negligence can be registered against a doctor
without a report from an Expert Committee. Similar situations exist in the case of State of
Delhi where Lieutenant Governor issued directions to the Delhi police regarding how to
arrest a doctor in medical negligence case, the Delhi High Court also decided to form
guidelines for lower judiciary as well as the police to deal with such cases.

Hon’ble Supreme Court endorsed the same view, as “criminal prosecution of doctors without
adequate medical opinion would be great disservice to the community – as it would shake the
very fabric of doctor- patient relationship with respect to mutual confidence and faith the
doctors would be more worried about their own safety instead of giving best treatment to
their patients”5.

5
Suresh Gupta v. Government of NCT, Delhi, (2004) 6 S.C.C. 422
 CASE ANALYSIS
1) Dr. S.K. Jhunjhunwala vs Mrs. Dhanwanti Kaur6

Material Facts:

 Respondent consulted Dr. S.K. Jhunjhunwala (Appellant) regarding her pain in the
abdomen and after that agreed for the laparoscopic surgery.
 Due to some unavoidable circumstances, the Appellant along with laparoscopic
surgery did an open surgery.
 The consent for the open surgery was not taken from the Respondent.
 There developed some swelling and inflammation on her Gall bladder due to which
laparoscopy could not be done, this fact was to her husband, from whom the consent
of open surgery was taken.
 She was admitted to hospital after more than one year, where a stone was removed
from her Gall Bladder, in lieu of this suffering she filled a case of medical negligence
against the Appellant

Argument from Defence Side:

 That she had only consented for a laparoscopic surgery not for a general surgery.
 That the appellant does not possess requisite skill required to do the required surgery
in lieu of which it was not successful and she suffered with various ailments.
 That she was required to undergo another surgery for removal of stone which has
slipped in CBD.

Argument form Appellant’s Side:

 That after examining respondent, advised her to go for surgery of Gall Bladder, which
may even include removal of Gall Bladder.

6
(2019)2 SCC 282
  That after starting laparoscopic surgery, he noticed swelling, inflammation and
adhesion on her Gall Bladder and, therefore, he came out of the Operation Theater
and disclosed these facts to respondent No.1's husband and told him that in such a
situation it would not be possible to perform laparoscopic surgery and only
conventional procedure of surgery is the option to remove the malady.
 That the respondent was then discharged from the hospital after post operation care,
and the fact that she again felt the pain in her abdomen after almost one year have no
connection with her surgery.
 That the respondent never raised the question of objection of consent issue, though
nothing prevented her or her husband from objecting soon after the surgery.

Issues:

 How should court decide the issue of negligence of a professional doctor and hold
them liable for his medical acts/advise given by him/her to their patient which caused
them some monetary loss, mental and physical harassment or suffering?

Decision:

There has to be a direct nexus with the factors on which the Respondent was suing the doctor
for his negligence. Suffering of ailment by the patient after surgery is one thing. It may be
due to myriad reasons known in medical jurisprudence. Whereas suffering of any such
ailment as a result of improper performance of the surgery and that too with the degree of
negligence on the part of Doctor is another thing. To prove the case of negligence of a doctor,
the medical evidence of experts in field to prove the latter is required. Simply proving the
former is not sufficient.

The Supreme court after listening to the counsel of both the side gave the decision in favour
of the Appellant, wherein set aside the orders of National Commission and restored the
decision of State Commission.

2) Dr. Suresh Gupta vs Govt. of NCT, Delhi7

Material Facts:

7
(2004)6 SCC 422
  The Deceased was operated by the Appellant for removal of his nasal deformity,
which in normal case is not so serious operation.
 The cause of death of deceased as per the post-mortem was found to be Cardiac arrest
due to Asphyxia resulting from blockage of respiratory passage by aspirated blood
consequent upon surgically incised margin of nasal septum.
 The patient died in the course of surgical operation on 18.4.1994, but the post-mortem
was conducted on 21.4.1994.
 The Appellant forgot to put a cuffed endo-tracheal tube of proper size which is used
in a manner so as to prevent aspiration of blood blocking respiratory passage.

Argument from the Respondent’s Side:

 That the doctor was negligent in performing the operation and gave incision at wrong
part due to that blood seeped into the respiratory passage and because of that
patient immediately collapsed and died.
 That it was also attempted to show that the patient was alive while they were
transferring him to the other hospital.
 That the doctor was negligent on his part as he forget to use a cuffed endo-tracheal
tube of proper size the use of which is to prevent the blood circulation to the
respiratory passage, which in the end was the cause of death.

Argument from the Appellant’s Side:

 That there was delay in the process of post-mortem as the patient died in the course
of surgical operation on 18.4.1994, but the post-mortem was conducted on
21.4.1994. By that time rigor mortis had almost passed off.
 That the appellant in good faith as soon as he knew that the patient has got cardiac
arrest immediately put him on ventilator and transferred to another hospital.
 In order to prove negligence on the part of doctor it should not be of that degree so as
to prosecute under civil law or tort, rather is should be gross and reckless enough as to
endanger the life of the patient.

Issue:

 What degree of negligence is required to prosecute a medical professional under

criminal law?
Decision:

The Supreme Court put the standard for fastening criminal liability on a high pedestal and
required the medical negligence to be “gross” or “reckless.” Mere lack of necessary care,
attention, or skill was observed to be insufficient to hold one criminally liable for negligence.

It was observed that mere inadvertence or simply a want of a certain degree of care might
create civil liability but will not be sufficient to attract criminal liability. The Supreme Court
set aside the order given by the High Court and quashed the criminal proceedings pending
against the Appellant.

ANALYSIS

In the light of the facts present here in Dr. S.K. Jhunjhunwala vs Mrs. Dhanwanti Kaur8
the Researcher came up with the analysis that there has to be a direct nexus with the factors
on which the Respondent was suing the doctor for his negligence. Suffering of ailment by the
patient after surgery is one thing. It may be due to myriad reasons known in medical
jurisprudence. Whereas suffering of any such ailment as a result of improper performance of
the surgery and that too with the degree of negligence on the part of Doctor is another thing.
To prove the case of negligence of a doctor, the medical evidence of experts in field to prove
the latter is required. Simply proving the former is not sufficient. This thing has to be made
clear that every act of doctor cannot be consider as negligent in Criminal law, although he/she
can be made liable under civil law and can also be made to pay damages under tort law, but
in order to prosecute a person in Criminal law under ‘Medical negligence’ the negligent act
should not be mere an act is should be enough to cause the death of any person.

The Researcher agrees with the decision of the court in this case.

Also, in the light of the facts present here in Dr. Suresh Gupta vs Govt. of NCT, Delhi9 the
researcher analysis the case as “when a patient agrees to go for medical treatment or surgical
operation, every careless act of the medical man cannot be termed as 'criminal'. It can be
termed 'criminal' only when the medical man exhibits a gross lack of competence or inaction
and wanton indifference to his patient's safety and which is found to have arisen from gross
ignorance or gross negligence. Where a patient's death results merely from error of judgment
or an accident, no criminal liability should be attached to it. Mere inadvertence or some
8
(2019)2 SCC 282
9
(2004)6 SCC 422
degree of want of adequate care and caution might create civil liability but would not suffice
to hold him criminally liable.” Although the special medical committee set up for the purpose
of enquiring the death of the deceased has suggested that the death has been caused by
asphyxia and which can be prevented had there been a proper size tube in order to prevent the
blood flowing into the respiratory panel. The court still find this not gross enough to cause
the death of any person.

CHAPTER-3 Conclusion
Few would disagree that delinquency, like in every other profession, needs to also be dealt
with sternly in the field of medicine. The reasons are not difficult to discern. The question
only is of defining the contours of “delinquency” which may give rise to adverse legal
consequences. The outcome of treatment is of minimal significance for the imponderables are
many in the practice of medicine. Two competing interests, and each being equally important
as the other, need to be balanced in the process of fixing the parameters of liability: One
relates to freedom of a professional in arriving at the judgment and the other of the victims in
which the existence of discretion of the medical professional is not sought to be foreclosed
but only its abuse and recklessness with which it may be made. Indian courts in the process of
arriving at a balance lean, perhaps not unjustifiably, heavily in favor of the doctors.

The law does not seek to make any unnecessary intrusion into the territory which rightfully
belongs only to medical professionals, and judges do not seek to impose their own wisdom on
to them. The legal system does not adopt complete hands off approach either and does
scrutinize the actions of medical professional and seeks to punish those who fall below the
minimum standard, and the test for judging the minimum standard is also heavily influenced
by the prevalent medical practices and opinions, and the body of knowledge available as on
the relevant date. The standards are not too high and by fastening the liability in certain cases
accountability is reinforced for no one can remain immune to scrutiny. In this regard, law
zealously safeguards the autonomy of medical professionals and fully realizes that
prescribing unreasonably high standards may have a kind of chilling effect which is not
desirable, however, the law also seeks to protect and safeguard the interests of a patient to
expect a minimum standard of care.