When docs go wrong

Legalpundits on how doctors can be charged for medical negligence - Part II

In the case of Jacob Mathew vs State of Punjab (August 2005), the Supreme Court held that a mere accident is not evidence of negligence. The judgement was given on an appeal filed by a doctor in Chandigarh, who was booked for the death of a terminally ill cancer patient.

According to the complaint made by the deceased's family, the hospital could not provide oxygen on time, as there was no gas in the cylinder. The court held that the doctor could not be prosecuted for this and "extreme care and caution" should be exercised while initiating criminal proceedings against doctors for alleged negligence. The court also drew up safeguards, including asking the police to avoid arresting a doctor unless it is unavoidable. Drawing elaborately from established provisions, the bench ruled that this was necessary as "the service which the profession renders is probably the noblest of all".

After Jacob Mathew's case, the criminal liability of doctors has been set aside in almost all circumstances but they have not been given complete freedom. The court has recognised the need to curb misuse of diagnostic procedures and brokering deals for sale of human organs.



According to the Supreme Court,

• Negligence proceeds upon the idea of a duty or an obligation on the part of the doctor to use required care and caution. The breach of this duty may result in injury to the patient.



• A case of occupational negligence is different from one of professional negligence. Lack of care, an error of judgment or an accident is not a proof of negligence on part of a medical professional. So long as a doctor follows a practice acceptable to the profession of that day, he cannot be held liable because a better alternative treatment is available, or because a more skilled doctor would not choose to resort to the same practice that he follows.



• A professional may be held liable for negligence if he is not possessed of the requisite skill that he claims or he does not exercise it with reasonable competence in the given case. 'Reasonable competence' is measured in terms of an average, competent person, exercising a basic level of skill. The standard to be applied for judging whether the person charged was negligent or not would be of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise.



• Negligence, which is neither gross nor of a higher degree, may provide a ground for action in civil law but cannot be the basis for prosecution. To prosecute a medical professional for negligence under criminal law, it must be shown that the accused did something or failed to do something that no medical professional in his ordinary senses and prudence would have done in the given circumstances.

In addition, the Supreme Court has decreed that until the Centre and/or the state governments, in consultation with the Medical Council of India, issue statutory rules, a complaint without police intervention may not be entertained unless the complainant has produced prima facie (authentic and obvious) evidence in the form of a credible opinion given by another competent doctor.

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Featured in Harmony Magazine
April 2006