Arrest of Doctors in Medical Negligence Cases and Rights of Doctors. : Adv. Rohit Erande. ©

Arrest of Doctors in Medical Negligence Cases and Rights of Doctors 

Adv. Rohit Erande. © 

            

There are umpteen  number of incidences wherein a patient dies, Doctors get arrested on the alleged ground of Medical Negligence  and charges under Section 304-II instead of Sec.304-A are imposed and have to run from this court to that court for bail.... It's the prerogative of Investigating authorities to put the charge or sections, it's legality will be decided by the Courts..

Lets' see in nutshell ;

Medicos are offended when they are charged with Sec.304 (II) of IPC.

304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death,

or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

If this section is imposed, then it becomes a non-Bailable offense and punishment is 10 years.!! The job of the Police Authorities is very important in such cases as to which sections are to be imposed.

Another section of IPC 304-A talks about causing death by Negligence and which is generally applied in case of death in MLC.

304A. Causing death by negligence.—Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

By mere perusing of both these sections, one can understand what must have jittered the Medicos.

The Hon’ble Supreme Court of India (3 Judges bench) , in the year 2005 in the case of Jacob Mathew v/s. State of Punjab (AIR 2005 SC 3180 = 2005(6) SCC 1), itself has given clear cut guidelines on arrest of Doctors in case of Medical Negligence Cases. Please see the following link.

http://judis.nic.in/supremecourt/imgs1.aspx?filename=27088

In this case also Sec304A was applied against the Doctors and after going through the law of Negligence on this Point and after considering various legal texts, their lordships observed :

48. ….(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.

(6) The word “gross” has not been used in Section 304-A IPC, yet 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 expression “rash or negligent act” as occurring in Section 304-A IPC has to be read as qualified by the word “grossly”.

Regarding Arrest of Doctors, it has been observed :

“52. …we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient.

i.) A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.

ii.) The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam test to the facts collected in the investigation.

iii.) A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him).

iv.) Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.”

This Celebrated judgment has been followed and referred to by all the Courts thereafter.

The hon. Supreme Court in its 5 judges constitutional Bench judgment, in the celebrated case of Lalita Kumari V/s. state of U.P. (2014 (2) SCC 1) - ( https://indiankanoon.org/doc/10239019/) has given solace to Doctors in the matters of arrest. The bench was dealing with mandatory lodging of FIR in cognizable offenses, 

it was observed, 

" Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offence, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint." 

Their Lordships had asked Central /State Govt. to frame guidelines in these regards in consultation with MCI, but till date no one has taken any steps. Their lordships further relied upon the famous judgment of Jacob Mathew as mentioned herein above. The Court gave guidelines as under :

The category of cases in which preliminary inquiry may be made are as under:

a) Matrimonial disputes/ family disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

Thus now in Medical Negligence cases, Preliminary enquiry is a must and before that No arrest can be made. 

Also See A.S.V. Narayanan Rao V/s. Ratnamala & ors.

You may see following the link :

http://judis.nic.in/supremecourt/imgs1.aspx?filename=40762

In another celebrated and much referred judgment of Apex Court Martin F. D’Souza Vs. Mohd. Ishfaq, AIR 2009 SC 2049, wherein the Apex Court held as under:

“A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct feel below that of the standards of a reasonably competent practitioner in his field"

               Remedy for action U/Sec.304-II

On the other hand, Sec.304-A itself is a Bailable offense. But technically, the above referred guidelines of Hon. Apex Court are in respect of Sec.304-A. Thus, in my opinion, the Doctors can move for anticipatory Bail or can approach Hon. High Court U/Sec.226 r/w Sec.482 of Cr.P.C. for quashing of FIR when charges U/Sec.304-II are imposed. In the States like Uttar Pradesh, there is no provision of anticipatory Bail, in such cases, approaching Hon’ble High Court is the only remedy.

It is also to be remembered there may be some cases, where Doctors might have done some Acts that may attract Sec.304-II. So also a lot depends upon the facts of each independent case. Further civil remedies for claiming compensation against the Doctors may be exercises independently. In any of such cases first approach the expert Lawyer for further steps.

It will be wrong to measure all the police authorities on single scale.   If the Doctors could prove  that there was malafide intention behind imposing such section, then a legal action may be initiated against such Police Authorities, subject to the protection available to Police authorities U/Sec.197 of Cr.P.C.

The High handed and illegal action can certainly affect the name and reputation of Doctors. Mental and physical agony is another aspect. Thus if later the case proves to be false, Drs should exercise their right to seek damages for malicious prosecution. Hardly any one does so.. merely venting On social media is of no help...

There is a famous adage which says, " Every murder is culpable homicide, but every culpable homicide is not a murder"

Well,  I may also request that please refrain yourself from making any defamatory or derogatory remarks against the investigation authorities, as it may hamper the interests of the Doctors involved in the case. You have every right to stand by your fellow colleagues, but without crossing boundaries.

Thanks and Regards

(Adv. Rohit Erande)

Pune. ©