MEDICAL NEGLIGENCE & FORENSIC SCIENCE

INTRODUCTION

The science which explains the application of medical and paramedical knowledge for the purpose of
administration of justice in law is forensic medicine. It is also called medical jurisprudence or legal medicine. It is
generally used by legal authorities to deal with various legal problems like applying relevant medical facts in
deciding cases related injury, suicides, sexual offences, murder etc. In such cases the medical practitioner is
required to provide evidence after examination and appear as a witness for the same. But this application of
medicine in law has its own limitations because it has to meet with the requirements of law and there is a whole
range of medicinal procedures available.

HISTORY OF LAW & MEDICINE

The relation between law and medicine has been there since time immemorial with there connection beginning
from religion and superstitions. In, about 7th Century, the Charaka Samhita was written which had rules with
respect to a physician on their training, duties, privileges and social status. They also gave information about
various poisons and their antidotes as well. Then there were documents such as Manusmriti and Arthashastra
written by king Manu and Kautilya respectively. Manusmriti had laws which provided punishment for sexual and
other offences and it also kept factors such as mental incapacity, state of intoxication, illness and age in mind. The
Arthashastra on the other hand in 3rd and 4th Century had given definition of penal laws and physicians were
punished for medical negligence. It gave provisions on examination of dead bodies whose dead is unnatural and
had laws written for abortion, kidnapping etc. The Vedas including Rigveda also have laws in relation abortion,
incest, adultery, murder, drunkenness and have provisions for punishments as well. The Atharva Veda also lays
down remedies for various problems.

Internationally as well, there are records on Egypt, Sumer, Babylon and China on the connection between law and
medicine. Imhotep of 27th century B.C who was Grand Vizir, Chief Justice and chief physician of the King Zoser
of Egypt had enacted rules and laws for medical practice. Apart from that, the King of Babylon who implemented
the Hammurabi Code is seen as the oldest medico-legal Code. The medical material from China also gives
information on various poisons.

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MODERN APPLICATION OF FORENSIC SCIENCE

Primarily the forensic science has always been used for autopsy where it is used for identification of the dead and
the cause of death. If the death has been caused by a weapon it also provides details the weapon used and other
detailed information. Another name for forensic science is forensic pathology. Forensic pathology is narrower
field under the forensic medicine wherein the pathologists collect samples and conduct medical examination
whose results are then used as an evidence in the trial. These forensic pathologists give in significant information
which support the decision of trials which relate to inheritance and insurance and have a role to play in cases
which arise from mental illness, injury or any death resulting from violence.

The importance of forensic medicine is also seen in cases which involve rape. There has been development of
modern techniques such as DNA Fingerprinting where specimen of the criminal’s semen, blood and hair samples
from the victim’s body and then they can be compared to the genetic composition of the defendant. Also, serious
mental illness can be established by a licensed psychologist which used when insanity is a defense to show that a
trial cannot be initiated against the person.

RELEVENT LEGISLATIONS

Indian Penal Code, 1860

The IPC, 1860 counts sanity as a rebuttable presumption and the burden of proof in the same lies on the party
who is denying this. The standard proof accepted in the same is balance of probabilities. If the party who has the
burden is able to present proofs successfully then they can succeed in the trial. One of the cases in U.K was Bratty
v. Attorney General of Northern Ireland where Lord Denning in his judgement said that practically an issue of
mental incapacity is only raised when the defendant wants to negate or minimize criminal liability and these are
limited number of cases even if prosecution gives evidence for insanity. There have been various such cases
where it was emphasized that Rules of the Code apply where defect of reason is substantial.

The IPC has various sections which provides definitions and rules which come under Forensic medicine. Some of
them are Section 44 which defines Injury and Section 319 which provides for the definition of Hurt. There are
different sections for voluntary hurt, grievous hurt and the punishment for the same. Section 351 is the provision
for Assault and the following sections give out the punishment for the same act when assault takes place on other
person including women and children. There are also provisions for acts done during intoxication, consent at
different ages and consent given out of fear in Sections from 84 to 90 of the IPC. All these provisions directly or
indirectly refer to how forensic medicine is utilized in law.

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Code of Criminal Procedure, 1973

Under the CrPC, 1973 there can be inquest by the Police and Magistrate under Section 174 and Section 20-23 of
the Code respectively.

In the police inquest the, when the officer-in-charge of a police station gets the intimation of a death of a person
because of any reason and his death raises reasonable suspicion of someone else involved in the crime he is
supposed to inform the nearest Executive Magistrate and proceed to the spot of death. He is also the Investigation
Officer and along with him two other persons or Panchas are present who make a report about the complete
situation and evidences which is called the inquest Panchanama. This report is signed by the Panchas and
Investigation officer. If any foul play is suspected then the body is sent for postmortem to an authorized
government doctor and later all the documents are presented to the magistrate.

An inquest is done by a magistrate in particular cases of otherwise instead or in addition to the police inquest. The
particular cases of Magistrate’s inquest are when there is death in police custody or investigation, death while
police firing, death in prison or psychiatric hospitals, dowry deaths, exhumation and a person disappears, dies or
is raped in the police custody.

Some of the Sections in the CrPC which mention about procedural provisions regarding forensic medicine are
Section 53 and 54. Section 53(i) says that accused can be examined by a medical practitioner on the order of
authorized police officer and Section 53(ii) says that examination of a female has to be done by or under
supervision of a female practitioner. Section 54 also states that arrested person can also be examined on his wish
by a medical practitioner for evidence.

Indian Evidence Act, 1872

The evidences are all the documents which are produced in the court or statements of all the witnesses which the
court has allowed to be made before itself pertaining matters present before it. It is important that court
understands what are proper evidences where the statement of a medical examiner is only considered as an
opinion which requires documents in support. There can be document and oral evidence presented before court or
even a dying declaration.

The document evidences include medical certificates which are issued by qualified medical practitioners and state
about death, illness, insanity etc. and it should have the relevant information for the same. Other documents are
medico-legal reports and exhibits. Medico-legal reports are prepared by medical practitioners on investigation
officer’s request for cases like assault, rape etc. They contain facts and the opinions examiner derives from those
facts. Exhibits on the other hand include the clothes or weapons for medical examination which have to be
returned back to the police after taking required details.
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The oral evidence are the statements that are made before the court by or for the witnesses as is mentioned in
Section 3 of the Act. Section 59 and 60 also state that all facts except content of document can proved by oral
evidence and these evidences should be direct respectively. One of the provisions of Indian Evidence Act which
involves medical examination in law is Section 114A where in a case of rape if the question of conflict is if there
was consent for intercourse and the women says there was no consent then court would take it as no consent even
after any examination.

MEDICAL NEGLIGENCE

The act of doing something which a reasonable person would not do or omitting to do an act which as reasonable
person would do in medical practice which could lead to bodily injury or loss of life would be considered as
medical negligence. Medical negligence is common and can take place due to the treating doctor or negligence of
their assisting staff but this is not counted as human error and different countries their set of laws to deal with
these problems.

This medical negligence can be civil or criminal in nature. Civil negligence is patient taking action for damages in
the civil court against the medical professional for the consequences of his negligence. But a case of criminal
negligence is formed when due to gross negligence of the doctor a severe bodily injury or death of the patient is
caused. Some of the factors which need to be satisfied for proving negligence is duty & dereliction where doctor
owes a duty and is a prudent physician according to the standards, then there is direct causation and damage is
caused which is foreseeable by the prudent physician. The Indian Penal Court also under Section 304-A has
provisions where a doctor’s professional negligence leading to a patient’s death is a punishable offence.

CASES

There have been a number of cases in India which deal with medical negligence and application of Section 304-A
of IPC. One of the cases was Dr. Suresh Gupta v. Govt. of NCT of Delhi & Anr. Where the Section 304-A
mentioned had been applied saying if the treatment of the doctor is negligent then a civil suit can be initiated and
compensation can be claimed but if the negligence is an act of recklessness which can endanger lives, criminal
liability arises which is punishable under the given section.

Also, in the case of Kishan Chand and Anr. V. State of Haryana it was stated that for criminal liability to be
imposed it is important to prove that the death was a direct cause of the accused negligent act and that to the most
proximate cause with no one else’s negligent acts involved.

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Then there was another landmark judgement on the medical negligence and judiciary’s take on it which was the
Jacob Mathew v. State of Punjab case. In this, the three judge bench the Supreme Court quashed the prosecution
against doctors under Section 304-A or 34 of IPC stating that there can be no criminal responsibility until a
prima-facie evidence is present before the court which is in the form of statement from another authorized doctor
who is preferable a government doctor that says that act done by the accused professional was rash and negligent.

CONCLUSION

The forensic science professionals have an important role in serving justice because they have techniques which
can help examining bodies of the dead and find out facts which help police present evidences. They examine
crime scenes and analyze all sorts of things from fibers to fingerprints to identify suspects and reach valid
conclusions. They have process such as image modification to find out people who have been missing for years
and also those who have tried to escape clutches of authorities and tried changing their looks. It can also be
concluded by looking at precedential cases that criminal liability on negligence has to applied after a lot of
deliberation because it is not productive for the society as doctors are important professionals of the society. Thus,
forensic science is a culmination of medicine and law and plays an important aspect in dispensing justice.

References

1. Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1973 (India)

2. Dr. Suresh Gupta v. Govt. of NCT of Delhi & Anr. (2003) S.L.P 2931 (India)
3. Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India)
4. Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India)
5. Jacob Mathew v. State of Punjab & Anr. (2005) 2 SCC 1 (India)
6. Kishan Chand v. State of Haryana & Anr. 2008 (3) RCR (CRIMINAL) 436 (India)
7. Raktim Pratim Tamuli, Medicolegal Investigation of Medical Negligence in India: A Report of Forensic Autopsy Case, 2 JFSM
167, 167-68 (2016)
8. Roshni Duhan, Forensic Medicine and Indian Criminal Laws- A study of Relevancy with Legal Provisions, 2 IJMS 1, 1-4
(2016)

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