Medical negligence is also termed as medical malpractice that is an improper, unskilled, improper or negligent treatment of the patients by their physician, dentist, nurse or other health care professionals English law has not made any special provisions for negligence made by doctors, they are simply treated as one professional among others. [ii] Medical malpractice occurs when a health-care provider strays from the recognized “standard of care” in the treatment of a patient. Medical Negligence Medical negligence is a breach of duty on the part of the defendant who has a legal as well as a moral duty to look after his/her patient. The punishment for causing death by negligence under Section 304-A is imprisonment of either description for a term, which may extend to two years, or with fine, or with both. ‘Rash Act’ can be understood clearly by the case Cherubin Gregory v. State of Bihar[iv]. Section 304A was added in the year 1870 by the Indian Penal Code (Amendment) Act, 1870. Sentence depends on the degree of carelessness seen in the conduct of the accused. Kusum Sharma &OrsvsBatra Hospital &Medical Research (MANU/SC/0098/2010). In the instant case, the doctors … Sushil Ansal V. State through CBI ((2014) 6 SCC 173). Abdul Sharif v. State of Haryana (2016 SCC OnLine SC 865). Murder. Doctors can be held liable for medical negligence under Consumer Protection Act, 1986, Law of Torts and Indian Penal Code, 1860. In the case of State of Punjab v. Amrit Lal Jain[viii], Amrit Lal Jain, the principal of a school was held liable under 304A because of death of two teachers and sixteen students because of falling debris of adjacent Shyamlal’s building. The essential ingredients of the section are as follows: The section applies when there is a direct connection of the rash or negligent act of accused to the death of the person in question. Aggrieved, the doctor moved the Supreme Court which while restoring the trial court's order , allowed the doctor's appeal and stated: The MCI is likely to soon release a sentencing policy guideline for the medical profession that is going to lay down certain standards to determine the guilt and punishment to be accorded to a delinquent doctor in cases of medical negligence. Read Also: How Much Punishment?- MCI Formulates Sentencing Guidelines For Cases Of Medical Negligence, Garima joined Medical Dialogues in the year 2017 and is currently working as a Senior Editor. | Powered by. The Supreme Court, on several instances favoured a harder punishment[xvii] and at it has also asked the legislature to amend the provision. There happen the cases when doctors are also held vicariously liable for the acts of their juniors. ( Death of a person by any rash or negligent act) , however, there must be “gross negligence”. Criminal Negligence. Culpable Homicide either amounting to murder or not; and. The wording of Section 304-A is ambiguous to the extent that ‘rash or negligent’ is qualified and understood very differently in the Medical Negligence … In the case of Sarabjeet Singh and Ors. amendment - 1973, patient may get compensation too. So, section 304A cannot be used for dealing with cases of medical negligence. Criminal complaints are being filed against doctors alleging commission of offences punishable under Section 304A or Sections 336/337/338 of the IPC alleging rashness or negligence on the part of the doctors resulting in loss of life or injury (of varying degree) to the patient. Later on charges were amended and the Doctors were released on Bail. Also, the duty of the court is to have a check that the doctors are not being harassed in performance pf their duties. Medical negligence … Shankar Narayan Bhandolkar v. State of Maharashtra (AIR 2004 SC 1966). A breach of this … In these, either there is knowledge or intention, the only difference lies in gravity and intensity. There must be absence of proper skill which the medical practitioner claimed to possess; or. He refused to give treatment, and directed to go to a different place. It was found that though the accused was negligent as he had learning license and was driving without a person having license[x], but it was held that hitting by vehicle of the accused was not the direct consequence of the death of the person in question and hence, accused cannot he held liable under 304A. The number of cases of medical negligence is increasing day by day. The act of the accused was considered as ‘negligent act’. Elements of rashness and negligence are essential constituents of an offence punishable under Section 304A of the Indian Penal Code. The Contempt of Courts Act, 1971; Right to Information; The Doctrine of Inequitable Conduct and Patent Unenforceability; Need for Witness Protection in Legal Spectrum New Delhi: Given the fact that doctors are rampantly accused of medical negligence and charged under IPC 304 A without proper scrutiny into the allegations made against them, the Supreme Court has made a landmark observation holding that the medical professionals should not be dragged into criminal proceedings unless negligence of a high order is shown. He crashed and minor injuries were caused to the lady and some major injuries to his child. Furthermore, doctors are being prosecuted under Section 304A of the IPC (causing death of any person by doing any rash or negligent act which does not amount to culpable homicide) which is punishable with imprisonment for a term which may extend to two years. A case was registered against him under Section 304A of IPC, and the medical experts of the Special Medical Board doing the investigation, in this case, concluded that the doctor did not perform the surgery according to the accepted procedure and that the negligence in not taking this precaution justified further trial proceedings. The investigating officer and the private complainants cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304A of IPC. If you are in need of a criminal defense lawyer visit Hurwitz Law Group, Inc LA criminal defense lawyers. Although the Supreme Court has framed guidelines for a case of medical negligence to come until 304A[xviii], there needs to be a clear and concise provision for medical negligence; medical courts need to be established where the medical experts should be appointed to assist the judges. To understand the section more clearly we take an example: Suppose two friends A and B were sitting in the room. Here, the accused was held liable for ‘rash act’. In the case of Indian Medical Association v. VP Shantha[xv], the Supreme added medical profession in the term ‘service’ as under CP Act, 1986. The court considered the act as rash and negligent took a turn without paying attention and his conviction was also upheld by the Supreme Court. You agree to our use of cookies by continuing to use our site. Post navigation. The Supreme Court in landmark cases has laid down the guidelines which would be necessary to attract section 304A if there is medical negligence. Rule 3 of Central Motor Vehicle Rules, 1989. https://app.powerbi.com/viewr=eyJrIjoiMjIzMTY5MmQtNjZmZC00OTAyLTkzOGMtYWEy. It was found that though his intention was not there, knowledge was there and he was not held liable under 304A (as prayed by his counsel, considering the act as rash act) but he was held liable under 304 (Part II). Although there is no specific provision under IPC that deals with medical negligence, but an action can brought against the offender under Section 304A of Indian Penal Code, which deals with ‘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. Yet another problem caused by treating medical negligence cases under this section is that the courts are compelled to come with the proposition that “The word ‘gross’ has not been used in section 304A of 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 … Then, he took him up, made him sit in the jeep and took him to a doctor. It must be proved that the collision was either mainly or entirely due to the fault of the accused. An act to fall under this section, the death must be caused as a direct result or in consequence with act of the accused. His act was not considered as a ‘rash act’ because the speed of the car was normal and it was morning time and extra care need not have to be taken. The concept of vicarious liability, how… In the course of showing the revolver to B, a bullet gets fired which leads to death of B. Thereafter, Punjab and Haryana High Court was approached which upheld the Additional Sessions Judge take on the case. Criminal Medical Negligence Under Section 304(A) (By Bargavi Baradhwaj) October 12, 2020 October 12, 2020 ijlra. Recent incidence in Pune stirred up the hornet’s nest among medical fraternity when Doctors were arrested on the alleged ground of Medical Negligence after the death of a patient and raised its voice against the unjust application of IPC Section 304-II instead of Sec.304-A. Section 304A [10] of the Indian Penal Code of 1860 states that “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.” Definition: It means carelessness in a matter in which the law mandates carefulness. 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