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Doctors can’t be prosecuted for simple negligence: SC
S.S. Negi
Legal Correspondent

New Delhi, August 5
Placing medical profession entirely in different pedestal for the applicability of IPC provision that deals with causing death by negligence, the Supreme Court in a landmark verdict said today a doctor couldnot be prosecuted for simple lack of care and error of judgement or accident during treatment, while quashing prosecution against Ludhiana’s prestigious CMC Hospital senior doctor Jacob Mathew on the charges of negligence.

“A simple lack of care, an error of judgement or an accident, is not the proof of negligence on the part of a medical professional. So long a doctor follows a practice acceptable to the medical profession of that day…,” a Bench of Chief Justice R.C. Lahoti, Mr Justice G.P. Mathur and Mr Justice P.K. Balasubramanyan ruled, while dealing with an important question of law whether a doctor could be treated like any other common offender for the applicability of the provision of Section 304A of Indian Penal Code (IPC), which deals with the offence of causing death by negligence.

But the court at the same time said that for making a case for the prosecution of a doctor for “gross” negligence under the criminal law when treating his patient, it must be shown that he had acted in a manner which no medical professional in his ordinary senses and prudence would have done.

In this context, the court laid down four-point guidelines to be fulfilled by the prosecuting agencies before launching prosecution under Section 304A of the IPC against a doctor for any “gross” negligence, saying the world “gross” had not been used in the section. “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 court said. To save a doctor from unnecessary harassment and allow him to perform his professional duty without fear and undue pressure, the court directed the Centre to frame necessary guidelines with the help of the state governments and till then the four-point guidelines being laid down by it would prevail.

As per the guidelines laid down by the court, a private complaint against a doctor may not be entertained unless a “prima facie” evidence is produced before the court of law in the form of a credible opinion given by another competent doctor to support the charge or rashness or negligence, investigating officer should obtain an independent opinion, preferably from a government doctor, specialising in that particular branch of medical practice for the treatment of which a doctor is accused.

When accused of rashness and negligence, a doctor may not be arrested in a routine manner, simply because charges have been levelled against him. The arrest may be affected only if the investigating officer feels satisfied that the doctor would not be available for prosecution unless arrested.

Punjab Police had launched prosecution against Dr Jacob Mathew for allegedly using empty oxygen cylinder to apply it as breathing aid to a cancer patient, admitted to the CMC on February 22, 1995. His plea for quashing the charges, framed by a trial court under Section 304A, was dismissed by the Punjab and Haryana High Court, which he had challenged in an appeal in the Supreme Court. Allowing Dr Mathew’s appeal, the apex court Bench said, “We are satisfied that all the averments made in the complaint, even if held to be proved, do not make out a case of criminal rashness or negligence on the part of the appellant doctor. It was a case of non-availability of oxygen cylinder with the hospital and the one available with it was found to be empty of the gas. “Then, probably the hospital may be liable in civil law (or may not be — we express no opinion thereon), but the accused doctor cannot be proceeded against under Section 304A of IPC,” court held.

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