Medical Negligence and Criminal Law: An Indian Perspective

Abstract

The word “negligence” is always damaging to the reputation of doctors, related to some damage to the patient and a challenge before the judges. In recent years, sudden spurt in the cases of “Criminal negligence” and decision of the Supreme Court raises a fresh debate. This paper deals with current scenario of “Criminal Negligence”, applicability of Section 304 & 304-A IPC in cases of death of patient during treatment, remedial measures available to a doctor facing the charge of ‘Criminal Negligence’ and a brief discussion of important cases related to the issue, including recent case. Negligence is a term of art, but has distinct meanings in different jurisdictions. In ‘Tort’, damage is an essential ingredient but that element is not necessary in the law of master and servant. In criminal law, there are series of offences based on negligence in which loss or injury is not material; it is enough if the act is likely to cause injury or endanger life. Operation of patient without consent is an example of negligence (Statutory Damage) even without actual apparent damage. Dictionary meaning of term ‘Negligence’ is ‘Lack of Proper Care’. As defined by Baron Alderson negligence means: “Omission to do something which a reasonable man guided by those consideration which regulate conduct of human affairs would do, or doing something which a reasonable man would not do”. Same definition is quoted in many decisions of the court. ‘Criminal Negligence’ is an offence against the State while ‘Civil Negligence’ is an offence against the individual act, which leads to injury i.e. physical injury, hurt- Section 319, grievous hurt- Section 320 Indian Penal Code (IPC). Loss of property (financial loss) due to some negligent act is always a civil negligence. The decision of the Supreme Court delivered on last years raises a fresh debate on the issue of ‘Criminal Negligence by the Doctors’. In this case the Supreme Court relied on various decisions of the House of Lords.