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Thursday, April 6, 2017

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,


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