Medical Negligence – under sec.304 A I.P.C.= quashed – The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability. After discussing the entire law on the subject, this Court concluded as follows: “48. 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 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 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 vs. Friern Hospital Management Committee (1957) 1 WLR 582 at p. 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 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 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.” Applying the law laid down in Jacob Mathew’s case (supra), we are of the view that this is not a case where the appellant should face trial especially when 20 years have already elapsed. The only allegation against the appellant is that she left the patient. We must remember that the appellant was a Surgeon on Call. She came to the hospital when she was called and examined the patient. As per her judgment, she could find no evidence of bleeding or injury and, therefore, she had noted that a Physician be called. Thereafter, she left the hospital at about 11.00 p.m. True it is that she did not wait for the Physician to come, but it can be assumed that she would have expected that the Physician would come soon. This may be an error in judgment but is definitely not a rash and negligent act contemplated under Section 304-A IPC. It is nobody’s case that she was called again by the Nursing staff on duty. If the condition of the patient had worsened between 11.00 p.m. and 5.00 a.m., the next morning, the Nursing staff could have again called for the appellant, but they did not do so. Next morning, the doctor on Emergency Duty, Dr. Mohod attended upon the patient but, unfortunately, he died.= In view of the above discussion, we are of the view that no case of committing a rash and negligent act contemplated under Section 304-A IPC is made out against the appellant. Her case is similar to that of Dr. Mohod who has been discharged. We, accordingly, allow the appeal, set aside the judgment dated 18.06.2014, passed by the learned Single Judge of the High Court of Bombay, Nagpur Bench in Criminal Application (APL) No.354 of 2012 and quash the criminal proceedings initiated against the appellant vide order dated 28.02.2001, passed by the Judicial Magistrate, First Class, Court No.6, Amravati in Regular Criminal Case No. 310 of 1999 in FIR Crime No.317 of 1997. Pending application(s), if any, stand(s) disposed of.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 636 OF 2017

[Arising out of SLP (Crl.) No. 7186 of 2014]

Dr. Sou Jayshree Ujwal Ingole                       . . . . Appellant(s)

Versus

State of Maharashtra & Anr.                  . . . Respondent(s)

J U D G M E N T

Deepak Gupta, J.

Leave granted.

2.    The appellant herein is a doctor and has challenged  the  Order  dated

18.06.2014 passed by the High Court of Judicature of  Bombay,  Nagpur  Bench

in Criminal Application (APL) No. 354 of 2012, whereby  the  petition  filed

by  the  appellant  under  Section  482  CrPC  for  quashing  the   criminal

proceedings initiated against her under Section 304-A IPC was dismissed.

3.    Briefly stated the facts of the case are that  one  Shrikrishna  Gawai

(hereinafter referred to as the  ‘deceased’)  was  admitted  on  account  of

injuries suffered in a road accident, in the  Irvin  Hospital,  Amravati  on

29.08.1997 for medical treatment.  It is the admitted case  of  the  parties

that the deceased was suffering from Haemophilia, a disease in  which  there

is impairment of blood clotting.  Therefore, special attention was  required

to be paid during the treatment of the patient.   It is  not  disputed  that

one Dr. Manohar Mohod was on duty as  an  Emergency  Medical  Officer.    On

29.08.1997 the patient was treated both by the appellant and Dr. Mohod.   On

30 & 31.08.1997, the deceased was  attended  upon  by  Dr.  Dhirendra  Wagh.

Thereafter also, the deceased remained in the Hospital under  the  treatment

of the appellant and Dr. Mohod.

4.    Dr. Mohod, the Emergency Medical Officer attended  upon  the  deceased

on 05.09.1997 at 9.00 p.m. and found that he was  suffering  from  abdominal

pain and, thereafter, a call was sent to the appellant, who was  Surgeon  on

Call.   It is not disputed that the appellant went to the Hospital on  being

called.  She attended upon the deceased and made a note that a Physician  be

called.    Thereafter,  she  left  the  Hospital.    In   the   morning   on

06.09.1997, the condition of the deceased worsened and he died.

5.    The main allegation against the appellant is that after having  called

for a Physician, she did not wait in the hospital and did  not  attend  upon

the patient, especially when the patient  was  suffering  from  Haemophilia.

The Physician, Dr. Avinash Choudhary, who is accused No. 1, did not turn  up

in the hospital.  Even next morning on  06.09.1997,  when  Dr.  Mohod  again

attended upon the deceased, the Physician  Dr.  Choudhary  was  not  present

and, unfortunately, the patient died.    Thereafter, a complaint was  lodged

in the police station,  wherein  it  was  alleged  by  the  brother  of  the

deceased that the deceased died as a  result  of  negligence  of  the  three

doctors.   The complaint was investigated as Crime No.  317  of  1997  which

was initially filed against Dr. Avinash Choudhary only but,  later  on,  the

names of the appellant Dr. Jayshree Ujwal Ingole and Dr. Manohar Mohod  were

also included.

6.    A separate Departmental Enquiry was also  carried  out  and,  in  that

enquiry, all the three doctors  were  held  negligent  in  performing  their

duties.  Dr. Mohod was debarred from an annual increment  as   penalty;  the

appellant Dr. Jayshree  Ingole  was  permanently  prohibited  from  entering

Irvin Hospital, Amravati, and Dr. Avinash  Choudhary  was  transferred.   It

would be pertinent to mention that Dr. Mohod was discharged in the  criminal

case on the ground that no case of negligence was made out against him.

7.    The appellant herein filed a petition for quashing the charge  against

her, but this petition was rejected by the learned Single Judge of the  High

Court of Bombay at Nagpur mainly on the ground  that  the  question  whether

inaction of the appellant in leaving the deceased at about  11.00  p.m.  and

not waiting for the Physician to turn up, amounted to a rash  and  negligent

act on her behalf, would be decided during trial.

8.    We have heard learned counsel for the parties.   Learned  counsel  for

the appellant has placed reliance on the judgment of  this  Court  in  Jacob

Mathew v. State of Punjab & Anr.[1], wherein this Court held that the  court

should be circumspect before  instituting  criminal  proceedings  against  a

medical professional.  This Court has held that negligence comprises of  (i)

a legal duty to exercise due care on the part of the  party  complained  of;

(ii) breach of the said duty ; and (iii) consequential damage.  It was  held

that in  cases  where  negligence  is  alleged  against  professionals  like

doctors  the  court  should   be   careful   before   instituting   criminal

proceedings.  It is not possible for any doctor to assure or guarantee  that

the result of treatment would invariably be positive.   The  only  assurance

which a professional can give is that he is  professionally  competent,  has

requisite  skill  and  has  undertaken  the  task  entrusted  to  him   with

reasonable care.  It would be pertinent  to  quote  the  following  relevant

observations made in Jacob Mathew’s  case (supra):

26. No sensible professional would intentionally commit an act  or  omission

which would result in loss or injury to  the  patient  as  the  professional

reputation of the person is at stake. A single failure may cost him dear  in

his career. Even in civil jurisdiction, the rule of  res  ipsa  loquitur  is

not of universal application and has to be applied  with  extreme  care  and

caution to the cases of professional negligence and in  particular  that  of

the doctors. Else it would be counter-productive. Simply because  a  patient

has not favourably responded to a  treatment  given  by  a  physician  or  a

surgery has failed, the doctor cannot be held liable per se by applying  the

doctrine of res ipsa loquitur.

xxx         xxx        xxx

28. A medical practitioner faced with  an  emergency  ordinarily  tries  his

best to redeem the patient out of his suffering. He 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.

29. 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 society.

30. The purpose of holding a professional liable for his  act  or  omission,

if negligent, is to make life safer and  to  eliminate  the  possibility  of

recurrence of negligence in future. The  human  body  and  medical  science,

both are too  complex  to  be  easily  understood.  To  hold  in  favour  of

existence of negligence,  associated  with  the  action  or  inaction  of  a

medical professional, requires an in-depth understanding of the  working  of

a professional as also the nature of the job  and  of  errors  committed  by

chance, which do not necessarily involve the element of culpability.

After discussing the entire law on the  subject,  this  Court  concluded  as

follows:

“48. 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 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 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  vs.

Friern Hospital Management Committee (1957) 1 WLR 582 at p. 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  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  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.”

9.    Applying the law laid down in Jacob Mathew’s case (supra), we  are  of

the view that this is not a case  where  the  appellant  should  face  trial

especially when  20  years  have  already  elapsed.    The  only  allegation

against the appellant is that she left the patient.  We must  remember  that

the appellant was a Surgeon on Call.  She came to the hospital when she  was

called and examined the patient.  As per her judgment,  she  could  find  no

evidence of bleeding  or  injury  and,  therefore,  she  had  noted  that  a

Physician be called.  Thereafter, she left the hospital at about 11.00  p.m.

  True it is that she did not wait for the Physician to come, but it can  be

assumed that she would have expected that the  Physician  would  come  soon.

This may be an error in judgment but is definitely not a rash and  negligent

act contemplated under Section 304-A IPC.  It is nobody’s case that she  was

called again by the Nursing  staff  on  duty.    If  the  condition  of  the

patient had worsened between 11.00 p.m. and 5.00  a.m.,  the  next  morning,

the Nursing staff could have again called for the appellant,  but  they  did

not do so.  Next morning, the doctor on Emergency Duty, Dr.  Mohod  attended

upon the patient but, unfortunately, he died.

10.   In the facts and circumstance of this case, it  cannot  be  said  that

the appellant is guilty of criminal negligence.  At best it is an  error  of

judgment.

11.   In view of the above discussion, we are of the view that  no  case  of

committing a rash and negligent act contemplated under Section 304-A IPC  is

made out against the appellant.  Her case is similar to that  of  Dr.  Mohod

who has been discharged.  We, accordingly, allow the appeal, set  aside  the

judgment dated 18.06.2014, passed by the learned Single Judge  of  the  High

Court of Bombay, Nagpur Bench in Criminal Application (APL) No.354  of  2012

and quash the criminal proceedings  initiated  against  the  appellant  vide

order dated 28.02.2001, passed by  the  Judicial  Magistrate,  First  Class,

Court No.6, Amravati in Regular Criminal Case No. 310 of 1999 in  FIR  Crime

No.317 of 1997.   Pending application(s), if any, stand(s) disposed of.

…………………………..J.

(MADAN. B. LOKUR)

…………………………..J.

(DEEPAK GUPTA)

New Delhi,

April 06, 2017.

ITEM NO.1A               COURT NO.5               SECTION IIA

(For judgment)

S U P R E M E  C O U R T  O F  I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.)  No(s).  7186/2014

(Arising out of impugned final judgment and order dated  18/06/2014  in  CRA

No. 354/2012 passed by the High Court of Bombay at Nagpur)

DR. Sou JAYSHREE UJWAL INGOLE                   Petitioner(s)

VERSUS

STATE OF MAHARASHTRA & ANR.                     Respondent(s)

Date   :   06/04/2017         This    petition    was    called    on    for

pronouncement of judgment today.

For Petitioner(s)      Mr. Shirish K. Deshpande, AOR

Mr. Mohit Gautam, Adv.

For Respondent(s)      Mr.Gagan Sanghi, Adv.

Mr. Rameshwar Prasad Goyal, AOR

Mr. Nishant Ramakantrao Katneshwarkar, AOR

Hon’ble Mr. Justice Deepak Gupta pronounced  the  reportable  judgment

of the  Bench  comprising  Hon’ble  Mr.  Justice  Madan  B.  Lokur  and  His

Lordship.

The appeal is allowed in terms of the signed reportable judgment.

(Meenakshi Kohli)                            (Sharda Kapoor)

Court Master (SH)                           Court Master (NS)

[Signed reportable judgment is placed on the file]

———————–

[1]

[2]    (2005) 6 SCC 1,