Section 304-A: Analysing Medical Negligence

TOPIC

SECTION 304-A: ANALYSING MEDICAL NEGLIGENCE

PROJECT

SUBMITTED BY- SUBMITTED TO-

AMANDEEP YADAV MS. JULIAN SEAL PASARI
SEMESTER- III TEACHING ASSISTANT, LAW
ROLL NUM. - 1036, SEC - B NUSRL, RANCHI

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 Section 304-A: Analysing Medical Negligence

INTRODUCTION

Medical negligence is a combination of two words. The second word solely describes the
meaning, though the meaning of negligence has not been described during a correct way, but
it's an act recklessly done by an individual resulting in foreseeable damages to the other.
Negligence is an offense under tort, IPC, Indian Contracts Act, Consumer Protection Act and
lots of more. Medical Negligence basically is that the misconduct by a medical man or doctor
by not providing enough care leading to breach of their duties and harming the patients which
are their consumers. A professional is deemed to be an expert therein field a minimum of ; a
patient getting treated under any doctor surely expects to urge healed and at least expects the
doctor to take care while performing his duties. Medical negligence has caused many deaths
also as adverse results to the patient’s health.

Medical negligence or medical malpractice entails professional negligence thanks to an act

or omission by a health care provider during which the treatment provided by him/her falls
below the 3-accepted standard of practice within the medical profession and this treatment
leads to injury to the patient or in extreme cases, death of the patient.

For all the occasions the profession of drugs has been lauded for its expertise and much more
criticized for not living up to the expectations of the requirements of civil society, there has
been surprisingly inadequate engagement with any kind of codification that might aid Courts
in setting the quality of Care that medical practitioners got to follow. With the privatization
of health care and with the rise of general legal awareness, there has been an unprecedented
rise within the number of complaints levelled against the profession over the standards it
adheres to. Critics have argued also , that the Medical Council of India’s failure to enforce
and internalize such said (and demanded) standards has seen a backlash of sorts with society
reacting with law suits. This backlash has also been a product of the declining sanctity that
when existed between a patient and a doctor, that is, the expectation remains there (what
many refer to as the ‘Next to God Status of a Doctor’ but the chance to justify does not fall
within the ambit of consideration of a plaintiff who is dealing with a loss of life; in fact , with
the buyer Redressal Forums, the convenience to file these complaints are visible resulting in
often speculative complaints that draw on for a long time for reparations.

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 Section 304-A: Analysing Medical Negligence

The inquiry that may be replied by this change is whether clinical carelessness should go
under criminal obligation at all when society has developed in such how that it favors a money
related remuneration for the passing of a day to day existence. The change should work so
that it sets principles of clinical medical care while additionally guaranteeing that these norms
are disguised by clinical professionals. For instance, inside the noteworthy Anuradha Saha1
case, the Supreme Court granted a total remuneration of INR 5.96 crore, the assignment of
risk is to check if there's any remarkable advantage in adding criminal obligation which may
work prevention versus a money related pay.

METHODOLOGY:

1. LIMITATION: 304A IN RELATION TO OTHER ACTS

304A in relation to acts of rash or negligent driving may still hold water because there are
hardly any judicial pronouncements that have tackled the distinction between say for
instance, driving and a negligent act in general. The fact that we will extrapolate the
wording to possess improper meaning for medical liability is because the Courts have
made the excellence . The need of the hour is to be ready to formulate a change, either
as an evidence or as illustration, under this very Section. This, in turn, would give
Courts faster reference (which is codified) and provides doctors and patients the
prospect to internalize procedures so criminal complaints subsided which might restore
the doctor-patient sanctity that has lost a number of its value.
2. SOURCES
In scripting this paper, the author has used legal code principles and argumentation
which came from secondary sources like other journal articles which debate similar
concepts but not the precise research question that the author seeks to answer. In
addition to the present , there's an in depth comparative analysis of judgements which
affect medical negligence. The examples of medicine, have come from empirical data.
CHAPTERIZATION:
1. Introduction
2. Research problem
3. Research question
4. Methodology
5. Observations (Analysis)

1
(2014) 1 SCC 384

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 Section 304-A: Analysing Medical Negligence

6. Conclusion
7. References
RESEARCH PROBLEM
Before proceeding to ascertain the problem involved in the area of research this would
help to reach to an unequivocal conclusion for the issues involved. The most
important problem discussed in this paper is, the importance of Mens Rea in offences
related to medical negligence with relation to the sec 304A of the Indian Penal Code.

RESEARCH QUESTIONS:

1. WHAT IS THE DUTY THAT IS OWED?

In Laxman v. Trimback2, the Court held that a “reasonable degree of skill and
knowledge” is imperative for a doctor. As Professor Joga Rao correctly points out, this
is often only a spectrum where a doctor needn't be at an extreme to determine liability -
the test is merely to ascertain if an inexpensive degree of care and competence is afforded
to the patient.

Courts have drawn the excellence between standard of care and degree of care. for
instance , a specialist would have a better degree of look after his specialty and not for
cases associated with another specialty. All doctors are to stick to an equivalent standard
of care, whether one may be a GP or a specialist but the degree of care would vary
counting on what would amount to ‘reasonable’ at a given point of your time in light of
the circumstance. If we were to think about a hypothetical, a vascular surgeon would be
expected by law to exercise ordinary skill of handling veins and arteries while a Neuro-
surgeon would be expected by law to try to to an equivalent in reference to the nervous
system; both have an equivalent standard of care (or duty which has been established)
but what would be reasonable would be only be clear depending upon various other
circumstantial factors.

This distinction begs two questions:

1. what's this the degree of data required by the doctor?

2
AIR 1969 SC 128

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2. what's the inherent value of consent which is taken by the doctor before the patient
undergoes a medical procedure?

Both these questions have a standard premise: medicine is an inexact science. This adage
has been approved by courts also as by scholars. Medicine is an ever-evolving discipline
with new medicines and greater diagnostic techniques which begin a day . for instance ,
Endo- vascular laser ablation may be a technique that has recently been developed in
India for a physical anomaly that has plaguing humanity for quite a while i.e. the vein .

The corollary to the present evolution that went on in life science is that ‘reasonableness’
also will vary with time, which suggests that as a doctor, one can't be far away from the
developments, for instance, Sumo Tablets were scientifically proved to possess been with
incorrect doses to cure fever. If a doctor were to prescribe an equivalent after a year of
this incident, then that might constitute negligence though the author will answer at the
top of this paper why culpable negligence shouldn't be read into it.

Secondly, doctors are told to always take the consent of the patient before a surgery . In
obtaining the consent, there must even be a requirement of care. This duty of care is to
inform the patient all material facts and risks of the procedure that might enable him to
form the choice . The reasonableness (degree) doesn't reach disclosing all technical
information that a layman wouldn't be ready to decipher, nor does it involve re-iterating
risks that any general procedure would entail. Hence, once more, during this spectrum,
the reasonableness would vary and as long as there's a disparity between what's expected
and what happens, the courts will intervene. to point out an example, we could examine
Dr. Shyam Kumar v. Rameshbhai Harmanbhai Kachhiya 3 during which the bench held
that the eyesight was lost so as to work on glaucoma and cataract. There was no consent
taken and when inquired, not even medical records were produced, thus allowing
compensation.

ASCERTAINING LIABILITY: WHEN DOES IT START?

The liability arises when there's an injury to the patient due to the doctor’s failure to satisfy
his expected degree of care. Thus in 1956, within the case of R v Jordan 4 , a person was
stabbed and delivered to the hospital wherein he was given greater than the prescribed

3
(2006) CPJ 16 NC
4
(1956) 40 Cr App R 152

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 Section 304-A: Analysing Medical Negligence

amounts of intravenous fluids and died of pneumonia within the following week. The
Bench held that the explanation for death was from the conduct of the treatment received
and not from the initial stab. Of course, our concern isn't with the principle of novus actus
interveniens (intervening act), but the very fact that causation stems from the precise
breach of duty. To prove for the patient that there has been negligence then he must show
that the wrong has been caused by the breach of duty which the doctor owed him. Of
course, this standard is slightly lowered when it involves non-criminal negligence where
evidence must be shown. for instance , if the doctor’s act might be one among the probable
causes, then the burden is on the plaintiff to point out that it's the foremost evidence which
led to the injury. Another method to determine liability is by the principle of Res Ipsa
Loquitor (for example, when a hand isn't put into a cast and instead is amputated or when,
while delivering a baby, a swab is left behind). These instances don't need the plaintiff to
point out anything beyond the existence of duty of care. For these two things got to be
checked:

1. That whole control is with the doctor,

2. altogether other circumstances, this accident would never have happened without
negligence.

This principle too, however, may be a tortious principle and not a criminal one. In Calcutta
Medical Research Institute v. Bimalesh Chatterjee5 , it had been decided that the onus of
proof is on the plaintiff and there's a presumption of innocence that's afforded to the doctor
till such contrary is proved.

MAIN ELEMENTS FOR THE CASE OF MEDICAL NEGLIGENCE

There are four vital elements during a case of medical negligence. They are-

1. A requirement was owed: it's necessarily important to point out that the doctor or medical
man owed a requirement of care to the plaintiff where the latter opted for the medical
treatment.

2. The duty was breached: The plaintiff must prove that the health provider didn't comply to
the specified and standard care, thus breaching his/her duty.

5
I (1999) CPJ 13 (NC)

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3. The breach caused an injury: There was a breach of duty and this breach was an
instantaneous cause to the injury to the plaintiff.

4. Damage: Without damage, there's no basis for a claim, no matter whether the medical
provider was negligent. However, damage can also occur without any negligence. An
example for it's when someone dies thanks to a fatal disease.

OBSERVATION: ANALYSING CRIMINAL LIABILITY IN MEDICAL

NEGLIGENCE
Section 304A of the IPC of 1860 states that whoever causes the death of a private 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 delved tons on this section in specific regard to doctors. within the
Santra case, the difference in considerations for Civil and Criminal Liability was made. The
Supreme Court said that the consideration for the previous is amount of damages incurred
which could be the number to tend for compensation. In code , the degree of negligence is
not the definitive believe determining liability, but other considerations (which are made in
any criminal case), like motive, magnitude of offence and therefore the character of the
perpetrator.

In R v. Adomako6, the House of Lords settled on a principle of Criminal Liability for

doctors where it had been held that the burden is on the plaintiff to point out that the
doctor was incompetent to the extent that he had absolute disregard for the lifetime of his
patient which amounted to an offence against the State.

The former was in 1994 but in India, 1996, the principle against having Criminal Liability
in Medical Negligence was strongly affirmed in Poonam Verma v. Ashwin Patel7 where
the Apex Court drew out the distinctions for what exactly would constitute negligence,
recklessness and rashness.

1. A rash person knows consequences but is under a wrongful assumption that they
will not occur because of his actions.

6
(1994) 3 All ER 79
7
(1996) 4 SCC 332

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2. A reckless person knows the consequences of his act but does not care whether
they will occur because of his actions.

They held that any conduct in this regard which does not meet the standard of
recklessness and deliberate wrongs should not have criminal liability put on them. With
this as precedent, the discussion on Suresh Gupta8 would become easier in due course of
the paper.
CONCLUSION:
As my point of view the Medical negligence occurs when there is a breach of trust which the
people have on the doctors. Nowadays, doctors are not practicing with ‘due and reasonable
care’ which has further resulted in the damage and injury to the public. Medical negligence
may be a punishable offense under Section 304A of IPC. Medical profession requires certain
skills and professional knowledge. So, when the doctors do an act, there lies a requirement to
require the requisite care. Any negligent act amounts to medical negligence. But consistent
with this criterion alone, the doctors cannot put behind bars. For an offense under Section 304A
of IPC, it must be proved that the act was done carelessly and with none detailed knowledge
and skill. Therefore, no negligent act takes place if it had been through with proper care. Hence,
the doctors are sure to act during a careful manner and if not, it's going to end in the breach of
trust of their patients.
REFERENCE:
1. PSA Pillai’s, Criminal Law 11th Edition,
2. Ratanlal and Dhirajlal, Law of Crimes, 26th Edition,
3. www.manupatra.com

8
AIR 2004 SC 4091

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