Facts
- A patient named Jiwan Lal was admitted to a private ward in CMC Hospital, Ludhiana. At 11 pm of the date 22−02−1995, the patient suddenly had difficulty in breathing.
- His elder son, Vijay Sharma called the nurse and doctor after seeing his father’s condition. No doctor turned up for about 20−25 minutes.
- After that, Dr. Jacob Mathew and Dr. Allen Joseph came to the room for the patient.
- The patient was immediately connected with an oxygen cylinder to his mouth but the problem increased nevertheless. Apparently, the oxygen cylinder was found to be empty and no other oxygen cylinder was available.
- Vijay Sharma went to the adjoining room and brought another gas cylinder.
- In the midst of this, around 5−7 minutes were wasted. During this, the doctor confirmed that the patient is dead.
Procedural History:
- According to Dr. Jacob Mathew, the patient was already suffering from the advanced staged of cancer.
- The family was consulted to keep the patient at their home and given proper nursing and solace.
- But the sons, being some influential persons having occupied position in Government, requested the hospital to keep the patient under their care. Although the given advice, the patient was admitted to the hospital.
Issues :
- Is there a difference between civil and criminal law in the concept of Negligence?
- Is there a test to determine the negligence level through which it will be decided whether the doctor is held liable for the negligence or not?
- nger son, Ashok Kumar Sharma filed a First Information Report
- (FIR) under Section 304A read with Section 34 of the IPC.
- Section 304A of IPC – 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.
Oxygen cylinder was empty −
Principles
- Dr Suresh Gupta case
- For the act of negligence he may be liable in tort but his carelessness or want of due attention & skill can not be so reckless or grossly negligent as to make him criminally liable .
- Negligence as a tort
- Ratanlal & Dhirajlal –a legal duty – breach of duty – consequential damage
- Charlesworth & Percy − state of mind, opposite to intention − careless conduct − breach of duty
| Negligence as a tort | Negligence as a crime |
| Amount of damages incurred which is determinative of the extent of liability in tortSimple lack of care | It is not amount of damages but the amount & degree of negligence that is determinative of liability−Mens rea can not be excluded −High degree of negligence ( Riddell V. Reid) — Mens rea must be shown to exist |
- Negligence by professionals
- An acceptable standard of conduct − the competence of the defendant is to be judged by the lowest standard − ( Michael Hyde & Associates V. J.D. Williams & CO ltd)
Judgement
- Do not make out a case of criminal rashness or negligence on the part of accused−appellant.
- Then, probably the hospital may be liable in civil law (or may not be − we express no opinion thereon) but the accused− appellant cannot be proceeded against under Section 304−A of IPC on the parameters of Bolam’s test.
Ratio
- (i) Mere deviation from normal professional practice is not necessarily evidence of negligence.
- (ii) Mere accident is not evidence of negligence
- (iii) An error of judgment on the part of a professional is not negligence per se.
- (iv) Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitor.
