Legal aspects of medical practices have always constituted an important component in the growing civilization of our society. This necessity arose because of the existing laws of the land which provide for action in cases of medical negligence under the Indian Penal Code, Laws of Tort and Consumer Protection Act, 1986 etc. In the recent judgement of the Apex Court reported in (2005) 6 SCC 1, the Supreme Court discussed various legal aspects in the medical professions :-

MEDICAL NEGLIGENCE:
The subject of negligence in the context of Medical Profession necessary calls for treatment with a difference, There is a marked tendency to look for a human actor to blame for untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. An empirical study would reveal that the background to a mishap is frequently far more complex than may generally’ be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor’s contribution is either relatively or completely blameless.
The human body and its working is nothing less than a highly complex machine. Compounded with the complexities of medical science, the scope for misimpression, misgivings and misplaced allegations against the operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how the doctor functions in real life. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. 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 two 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 professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.
Negligence in the context of medical professional necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of professional, in a particular doctor, additional considerations apply. A case of occupational negligence is different from one of the professional negligence. A simple lack of care, an error of judgement or an accident, is not proof of negligence on the part of 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 fellow would not have chosen to follow. It has been widelyaccepted 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 practices. Three things are pertinent to be noted. 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. 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. 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.
A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose. Such a person when consulted by a patient owes him certain duties viz. a duty of care in deciding whether to undertake the case, a duty to care in deciding what treatment to be given or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires. The doctor no doubt has a discretion in choosing the treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of an emergency.
Let it also be noted that a mere accident is not evidence of negligence. “”Accident”” during the course of medical or surgical treatment has a wider meaning. Care has to be taken to see that the result of an accident which is exculpatory may not persuade the human mind to confuse it with the consequence of negligence. So also an error of judgement on the part of a professional is not negligence. An error of
judgement may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligent. If, on the other hand, it is an error that a man, acting with ordinary care, might have made, then it is not negligence. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgement, At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.
The jurisprudential concept of negligence defies any precise definition.
In current forensic speech, negligence has three meanings. They are : (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of a duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but anyone of them does not necessarily exclude the other meanings.
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. 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, as recognized, are three: “”duty””, “”breach”” and “”resulting damage””, that is to say:
(1) the existence of a duty to take care, which is owed by the defendant to the complainant;
 (2) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and
(3) damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant. If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence.

NEGLIGENCE AS A TORT:
The jurisprudential concept of negligence defies any precise definition.
Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well stated in the Law of Torts, Ratanlal & Dhirajlal (24th Edn., 2002, edited by Justice G.P. Singh). It is stated;
“”Negligence is the breach of a duty caused by the 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. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of
observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property …. the definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damages. Cause of action for negligence arises only when damages occurs; for, damage is a necessary ingredient of this tort.””
According to Charlesworth & Percy on Negligence in current forensic speech, negligence has three meanings. They are (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of a duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but anyone of them does not necessarily exclude the other meanings. The essential components of negligence, as recognized, are three : “”duty””, “”breach”” and”” resulting damage””, that is to say:
(1) the existence of a duty to take care, which is owed by the defendant to the complainant;
(2) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and
(3) damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant. If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence.
NEGLIGENCE – AS A TORT AND AS A CRIME:
The term “”negligence”” is used for the purpose of fastening the defendant with liability under the civil law and, at times, under the criminal law. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of though running ever since the beginning of the emergence of the concept of negligence up to the modem times. Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. The essential ingredient of means rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him He reiterated his opinion and dealt with the concept of recklessness as constituting in criminal law. His Lordship warned against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being “”subjective”” or “”objective””, and said:
In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions sated : “”Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established.””
Thus, a clear distinction exists between”” simple lack of care”” incurring civil liability and II very high degree of negligence”” which is required in criminal cases. In Riddell V. Reid Lord Porter said in his speech-
“”A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability.””
The fore-quoted statement of law in Andrews has been noted with approval by Supreme Court in Syad Akbar V. State of Karnataka. The Supreme Court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. Their Lordships have opined that there is a marked difference as to the effect of evidence viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be
established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
Law laid down by Straight, J. in the case of Empress of India V. Idu Beg has been held good in cases and noticed in Bhalchandra Waman Pathe V. State of Maharashtra a three-Judge Bench decision of Supreme Court. It has been held that while negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or
doing something which a prudent and reasonable man would not do; criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.
The factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree.
MEDICAL PROFESSIONALS IN CRIMINAL LAW:
The criminal law has invariably placed medical professionals on a pedestal different from ordinary mortals. The Indian Penal Code enacted as far back as in the year 1860 sets out a few vocal examples. Section 88 in the Chapter on General Exceptions provides exemption for acts not intended to cause death, done by consent in good faith for person’s benefit of a person without his consent though the acts cause
harm to the person and that person has not consented to suffer such harm. There are four exceptions listed in the section which are not necessary in this context to deal with. Section 93 saves from criminality certain communications made in good faith. To these provisions are appended the following illustrations :
“” ‘A’, a surgeon, knowing that a particular operation is likely to cause the death of ‘Z’, who suffers under a painful complaint, but not intending to cause ‘Z’s’ death, and intending, in good faith, ‘Z’s’ benefit, performs that operation on ‘Z’, with ‘Z’s’ consent. A has committed no offence.””
“”(a) ‘Z’ is thrown from his horse, and is insensible. A, a surgeon, finds that ‘Z’ requires to be trepanned. ‘A’, not intending ‘Z’s’ death, but in good faith, for ‘Z’s’ benefit, performs the trepan before ‘Z’ recovers his power of judging for himself. ‘A’ has committed no offence.
(c) ‘A’, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child’s guardian. ‘A’ performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has committed no offence.””
“” ‘A’, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient does in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient’s death.””
“”To punish as a murderer every man who, while committing a heinous offence, causes death by pure misadventure, is a course which evidently adds . nothing to the security of human life. No man can so conduct himself as to make it absolutely certain that he shall not be so unfortunate as to cause the death of a fellow creature. The utmost that he can do is to abstain from every thing which is at all likely to cause death. No fear of punishment can make him do more than this; and therefore, to punish a man who has done this can add nothing to the security of human life. The only good effect which such punishment can produce will be to deter people from committing any of those offences which turn into murders what are in themselves mere accidents. It is in fact an addition to the punishment of those offences, and it is an addition made in the very worst way.””
“”When a person engaged in the commission of an offence causes death by rashness or negligence, but without either intending to cause death, or thinking it likely that he shall cause death, it is to be proposed that he shall be liable to the punishment of the offence which he was engaged in committing, superadded to the ordinary punishment of involuntary culpable homicide.
The arguments and illustrations which employed for the purpose of showing that the involuntary causing of death, without either rashness or negligence, ought, under no circumstances, to be punished at all, will, with some modifications, which will readily suggest themselves, serve to show that the involuntary causing of death by rashness or negligence, though always punishable, ought, under no circumstances to be punished as murder.””
The following statement of law on criminal negligence by reference to surgeons, doctors, etc. and unskillful treatment contained in Roscoe’s Law of Evidence (15th edn.) is classic :
“”Where a person, acting as a medical man & c., whether licensed or 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 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 means 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 I PC, 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 II gross””. The expression II rash or negligent act”” as occurring in Section 304-A IPC has to be read as qualified by the word II 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.
GUIDELINES – RE : PROSECUTING MEDICAL PROFESSIONALS:
As 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 the 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 a rash or negligent act within the domain of criminal law under Section 304-A 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 mayor may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered to his reputation cannot be compensated by any standards.
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 emphasise 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 prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
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, it is propose to lay down certain guidelines (or 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 the Bolam 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 investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.

– Shri I. Lalitkumar Singh


President,
Manipur Legal Aid Organisation


*This article is reproduced from the edition of “Souvenir” IV CUTICON Manipur 2007.