Author: Naman Sharma


ISSUE: When can a doctor be held criminally liable for acts done by him/her as a medical practitioner?

Introduction: –Meaning & Scope

It is very difficult to define negligence categorically since there is no consensus upon this; however, it is a highly debatable topic in the jurisprudence of Tort. As per Moni v. State of Kerala, “In the case of medical man, negligence means failure to act by the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms to one of these proper standards, then he is not negligent.”   

Therefore, it involves three constituents of negligence:

  1. A legal duty of the party complained of to exercise due care towards the party complaining the former’s conduct within the scope of his duty;
  2. Breach of the said duty; and
  3. Consequential damage that follows

The professional fields such as lawyers, doctors and many others are also bound to conduct some of the negligence on their part. This is certainly covered under the tort law and there are remedies provided for any of the wrong committed by such professionals and there has to be compensation for such negligence which usually is monetary in nature. The civil liability in medical negligence usually arises when the expected care that the professionals such as doctors who deal with lives of person fail to take such necessary cautions. Further as far as the tortuous liability in the case of medical negligence is concerned the same only renders a person financial support but certainly if there is a loss caused to life or limbs of a person due to such negligence the same cannot be compensated through any of the amounts or huge sums of money that the court provides in such cases. This seems to be the reason why various high courts have started to treat some of the matters relating to such medical negligence where the act done negligently is gross and could have been avoided by the very preciseness required on doctors part but was not avoided due to sheer laziness of the person would be awarded criminal decree instead of it being treated as a tortuous liability over the doctor.

What does the law say?

Section 304A, Indian Penal Code Act, 1860

Indian criminal Law has placed the medical professional on a different footing as compared to an ordinary human. Section 304A[1] of the Indian Penal Code of 1860 states-

“whoever causes the death of a person 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.”

Thus, when a person engaged in the commission of an offence within the meaning of IPC and causes death by rashness or negligence, but without either intending to cause death, or thinking it likely that he shall cause that, he should be liable for the punishment of the offence which he was engaged in committing added to the ordinary punishment of involuntary culpable homicide.[2]

There have been certain instances and steps under which negligence has been directly been turned and treated as one being criminal in nature. One such instance is when there is a mishap that happens while administering anesthesia to the patient and due to overdose or any other wrongful and negligent act death of the person is caused. Sometimes the courts consider the malicious intention of the accused even in the cases of section 304 A however when the cases pertaining to  medical negligence are concerned the negligence that has been occurred has to be a gross one and the one which could have been easily avoided if proper care would have been taken. Thus, as soon as it is established that the act done and the negligence thereby committed is a very gross and heinous one, the case is turned under Section 304 A IPC.[3]

Vicarious Liability

There happen the cases when doctors are also held vicariously liable for the acts of their juniors. It is to say that if the employee/servant of the doctor rashly or negligently causes death of such person the doctor may be held liable as per the principle of vicarious liability. The concept of vicarious liability, however, lies under the tort law only and when the cases as to gross medical negligence come which certainly are evident to be on the doctor’s part, the HCs try to cover them under criminal charge so as to avoid such risky acts by such essential part of the society.

Recent Judgments/ Law of the Land

The recent judgment which can be analysed along this line is Dr. Suresh Gupta v. Govt of NCT Of Delhi[4] case which is as follows –

the Supreme Court declared on August 4, 2004, that to sustain a prosecution for the offence under S. 304A of the Indian Penal Code (IPC), and to fix criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high that it can be described as ‘gross negligence’ or ‘recklessness’, not merely lack of necessary care. On those premises it quashed the criminal proceedings against Dr Gupta before they reached trial in the Magistrate’s Court.

Until this judgment came out, a precedent was set by the decision of the Supreme Court dated February 4, 2004, in Mohanan v. Prabha G Nair and Anr[5]. In this case, a woman in the seventh month of pregnancy underwent medical intervention and delivered a dead child on the next day. She passed away three days later, while under medical care. The husband alleged in his police complaint that though he repeatedly asked for permission to remove his wife to a medical college hospital, the doctor advised against the shift saying that the patient had no serious problem and that everything would turn out all right. Subsequent events obviously proved otherwise.

Based on the opinion of the radiologist and the doctor who conducted the autopsy, the Criminal Court took cognizance of the offence punishable under S.304A of the IPC. The doctor petitioned to quash the proceedings invoking S. 482 of the Criminal Procedure Code, on the ground that there was no prima facie case. The concerned High Court held that the mere fact that a patient dies in a hospital does not lead to the presumption that the death occurred due to the doctor’s negligence. To hold a doctor criminally responsible for a patient’s death, it must be established that there was negligence or incompetence on the doctor’s part, which went beyond civil liability. Criminal liability would arise only if the doctor did something in disregard to the patient’s life and safety.

The Supreme Court, however, set aside the said High Court decision holding that the doctor’s negligence could be ascertained only by scanning all material and expert evidence that might be adduced during the trial. The High Court was held not justified in quashing the complaint at the threshold invoking the special power under S. 482 of the Criminal Procedure Code as that would do away with a full-fledged criminal trial necessary for fixing criminal liability.

[1] Section 304-A, Indian Penal Code, 1860.

[2] Shiva Ram v. The State, AIR 1965 ALL 196

[3] http://lawcommissionofindia.nic.in/reports/rep196.pdf.

[4] Appeal (crl.) 778 of 2004]

[5] (2004) CPJ 21(SC).


About the Author: Naman is a 2017-22 student at the Institute of Law, Nirma University, Ahmedabad.


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