On Friday, 6th August 2004 the only discussion that took place in the bar room of most courts and offices of consumer organisations was the Hon’ble Supreme Court’s decision to let doctors ‘off the hook’ in criminal complaints filed against them. For many vested interests, a very important weapon in their arsenal suddenly was defunct and this for them was a major cause of concern. All concerned were aware that the pronouncement was not new and criminal law could not be routinely applied to the medical practitioner but the main grouse was the publicity that the press and the television gave to this pronouncement, which now made their threats of a criminal complaint and imprisonment a non- entity.
Police complaints and criminal litigations have time and again been used to ‘soften’ the medical practitioners to coax them to agree to a hefty out-of-court settlement. Medical practitioner’s ignorance of law was capitalised upon and fear was used as a key to illegal enrichment both by litigants and the competent authorities, but thanks to the wide spread publicity, things are soon going to change much to the dislike of many.
Legal liability in medical practice can be both civil and in rare cases criminal. Justice is administered both by the civil courts and the criminal courts. Offences against civil rights and liberties are redressed in the civil courts and criminal offences are punished by the criminal courts. The object of civil proceedings is to enforce a right - civil liability being wholly remedial.
Whereas the object of criminal proceedings is to punish wrongs - criminal liability being wholly penal. In a civil trial, the civil courts decide whether the civil rights of a person are violated and if so, what the compensation is due and payable to him whereas the criminal courts determine the guilt or the innocence of a person. In criminal wrongs, the wrong doer is punished either by imprisonment or by fine or by both. Whereas in a civil wrong the injured party is compensated for the damage caused, which is paid to him by the wrong doer.
Criminal wrongs are more harmful. They are supposed to be wrongs against the public at large whereas civil wrongs areless harmful and are wrongs against individuals and not against the society. Salmond distinguished criminal wrongs as ‘public wrongs’ and civil wrongs as ‘private wrongs’ and so in criminal wrongs, the State constitutes itself as a party to the proceedings, viz- the criminal proceedings are filed by the State. Private criminal proceedings can also be filed. In civil proceedings, the aggrieved individual moves to the civil court for compensation.
The duty to take the requisite care and caution while treating a patient is a duty cast both under the civil law as well as the criminal law. The courts in R Vs Prentice and Sullman [Court of Appeal (1993) 4 Med LR 304] and in R Vs Adomako [(1993) 4 All ER 935; 15 BMLR 13; CA affirmed by (1994) 3 All ER 79 HL] have settled the law as to how to determine criminal negligence in medical practice. The following is the test to bring home the charge of criminal negligence in medical negligence as settled in R Vs Adomako [(1993) 4 All ER 935 CA affirmed by (1994) 3 All ER 79 HL].
- Indifference to an obvious risk of injury to health
- Actual foresight of the risk coupled with the determination nevertheless to run it
- An appreciation of the risk coupled with an intention to avoid it, but the attempted avoidance involves a very high degree of negligence and
- Inattention to a serious risk which goes beyond ‘mere inadvertence’ in respect of an obvious and important matter which the doctor’s duty demanded, he should address.
In short, the settled law is that the prosecution must prove
- The existence of duty to take care;
- A breach of duty causing death; and
- the breach of duty must be characterised as gross negligence. Whether the doctor’s breach of duty amounted to gross negligence, depended on the seriousness of the breach of duty committed by him in all the circumstances in which he was placed when the breach occurred.
Furthermore what must also be considered is whether, having regard to the risk of death involved, the conduct of the doctor was so bad in all the circumstances as to amount to a criminal act or omission. The test for recklessness formulated by Lord Diplock in R Vs Lawrence (1981) l All ER 974;  AC 510;  2 WLR 524 HL, is that the doctor having recognised the risk had nevertheless gone on to take it.
This criterion of recklessness is based upon the premise that the doctor himself created the obvious and serious risk. Often the risk of danger to health is not created by the doctor, but pre-exists the doctor assuming a duty of care to the patient. It is thus, clear that the doctor must be proved to have been indifferent to an obvious risk of injury to health, or has actually so foreseen the risk but determined nevertheless to run it.
Death due to medical negligence is an offence, which can be agitated both in the criminal court, under the Indian Penal Code or in the consumer court under the relevant sections of the Consumer Protection Act or alternatively the same may also be agitated in the civil courts under the Law of Torts. Section 304A of the Indian Penal Code deals with death caused by a rash or negligent act. The main difference between murder (section 302 IPC) and death due to a rash and a negligent act (section 304A IPC) is that in the former the reason to bring about death is ’intentional’ whilst in the latter; death is caused by an act where proper care and caution is not taken. The punishment under section 304A is two years imprisonment and fine. In criminal law, death due to negligence is not as severely punished as murder (intentional act).
Whenever there is death due to negligence of a doctor, the State always books the doctor under s 304A of the Indian Penal Code and not under section 302. The law in this regard was laid down by the Supreme Court of India in Juggankhan Vs State of Madhya Pradesh [AIR 1965 SC 831: 1965(1) Cr U 763: (1965) 2 SCJ 119: (1965) 1 SCWR 796. Criminal Appeal No. 171 of 1962, decided on 10.08.1964].
Similarly in Dr Khusaldas Pammandas Vs State of MP [1960 Cr LJ 234; 1959 MP LJ 966], the Indore Bench of Madhya Pradesh High Court held a registered hakim guilty for committing an offence under s 304A of IPC. The court held that gross rashness and negligence could be inferred when a person undertakes a treatment or performs an operation, when he is totally ignorant of the science of medicine or practice of surgery. Since the hakim registered under section 46 of the Madhya Bharat Indian Medicines Act 1952, had no knowledge whatsoever of penicillin injection treatment, his act of giving procaine penicillin injection to the deceased would be clearly rash and negligent within the meaning of s 304A of IPC.