A Doctor can be Criminally liable under Section 304A of the Indian Penal Code. vs State Of Uttar Pradesh[vi], the question was raised upon the intention of accused. In the year 2018, there have been a total of 467044 accidents[xi]. In the case of State of Rajasthan v. Hari Singh[xii], it was held that only driving at a faster rate do not make out the offence as under 304A. In this case, a neighbour started using the washroom of the accused. Medical Negligence & Criminal Laws. Around 5 million people in India die due of medical negligence every year. | Powered by. The donors were her husband and her brother. The Punishment for offence under Section 304A has been defined in the section as well. The accused lifted a child and threw him on the ground which resulted in the death of the child. Criminal Medical Negligence Under Section 304(A) (By Bargavi Baradhwaj) Volume 1 Issue-3 (Bargavi Baradhwaj) Download. 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. Murder. A Doctor can also be suspended if he is found of medical negligence. ‘Negligent Act’ refers to a breach of duty imposed by law or omission of anything which a man of ordinary prudence should have done. The act of the accused was considered as ‘negligent act’. Doctors can be held liable for medical negligence under Consumer Protection Act, 1986, Law of Torts and Indian Penal Code, 1860. So before moving further, it is much important to understand the meaning of ‘rash’ and ‘negligent’ act. 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. ‘Rash Act’ can be understood clearly by the case Cherubin Gregory v. State of Bihar[iv]. 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 … Criminal Negligence. You can click on this link and join: https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA. Criminal Medical Negligence Under Section 304(A) (By Bargavi Baradhwaj) October 12, 2020 October 12, 2020 ijlra. The offence under present section is a Bailable, cognizable and a non-compoundable offence. It must be proved that the collision was either mainly or entirely due to the fault of the accused. A day post-transfusion, the patient expired. She was advised caesarean by the doctor and underwent the same. Section 304A states that whoever causes the death of an individual 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, this provision includes some cases of medical negligence in India. Also, the duty of the court is to have a check that the doctors are not being harassed in performance pf their duties. In the case of Sarabjeet Singh and Ors. In criminal law, medical practitioners get the immunities of Sections 87, 88, 89 and 92 of the IPC, 1860, who act for patients benefit in good faith. Section 304A is quite good addition by the policymakers in the Indian penal Code, 1860 as it separates the cases in which neither the intention nor the knowledge of the accused was there but the act causes death. The Supreme Court in landmark cases has laid down the guidelines which would be necessary to attract section 304A if there is medical negligence. On one day, the accused placed naked wire carrying electricity at the entrance of washroom and the lady touched the wire and died. Section 304A Indian Penal Code titled Causing death by negligence. Kusum Sharma &OrsvsBatra Hospital &Medical Research (MANU/SC/0098/2010). You agree to our use of cookies by continuing to use our site. Medical negligence also known as medical malpractice is improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional. The present punishment under this section is often subject to criticism because of its weaker nature. Disciplinary action can be taken against him. Also, Amrit Lal had removed some soil last year which led to the act. VOLUME 1 ISSUE 3. amendment - 1973, patient may get compensation too. In the present condition, B cannot be held liable under culpable Homicide or Murder as there is nether knowledge not intention but B can be held liable under Section 304A. [xvi], it was held that for imposing criminal liability against the medical practitioner, a high degree of negligence is required. Then, the trial court was moved with the case which on the application of the accused discharged the doctor and gave relief to the doctor relying upon the judgment of the Supreme Court in Jacob Mathew vs. State of Punjab & Anr. Section 304A was added in the year 1870 by the Indian Penal Code … There must be death of person in question; The death must be caused due to rash or negligent act of accused; and. [ii] Medical malpractice occurs when a health-care provider strays from the recognized “standard of care” in the treatment of a patient. Proceeding Volume 4 Issue 2. Medical negligence … (2005) 6 SCC 1 case in which the bench had held that in criminal law medical professionals are placed on a pedestal different from ordinary mortals. Since it was not a direct consequence, principle of causa causans applied and the accused was acquitted. Homicide i.e, killing of a human being by a human being is divided into two parts. The principle of causa causans i.e, immediate cause or last link of the chain applies[vii]. In the case of State of Haryana and Ors. Consumer Protection Act. She can be contacted at editorial@medicaldialogues.in Contact no. Section 304A i.e, causing death by negligence reads as follows: “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.”. He crashed and minor injuries were caused to the lady and some major injuries to his child. The Supreme Court, on several instances favoured a harder punishment[xvii] and at it has also asked the legislature to amend the provision. 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. Section 304A of the Indian Penal Code talks about causing death by negligence or rash act. This Section mentions that if a person causes the death of another person by doing a negligent or rash act which does not amount to culpable homicide shall be punished with imprisonment for a term of a maximum of two years, or with fine, or with both. It was held that the death was not a direct consequence as he had not done repairs since long time and building was in a bad condition. According to this Section, a person who is held liable for causing the death by negligence can be punished for the two-year jail or can be fined for the same or can be punished by both. 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. ( Death of a person by any rash or negligent act) , however, there must be “gross negligence”. In Juggankhan v. State of Madhya Pradesh[iii], Supreme Court held a medical practitioner accused under 304A for discharging a poisonous drug into the body of a patient suffering from guinea warm without even knowing the effect of same. Sushil Ansal V. State through CBI ((2014) 6 SCC 173). It is to say that if the employee/servant of the doctor rashly or negligently causes death of such person the doctor may be held liable as per the principle of vicarious liability. Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content. The present section talks of rash and negligent Act, and if the act does not fall within culpable homicide, it falls within the present provision. When a FIR (First Information Report) is filed against a doctor for the death of a patient who was under his treatment, under this Indian Penal Code Section 304-A the doctor can be arrested. Essentials of medical negligence are as follows: In the case of Jacob Mathew v. State of Punjab & Anr. 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. 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. Under section 340A of IPC. The act of “Negligence” is open to interpretation based on the actions of the defendant in each case. When offence of medical negligence S 304A of IPC against doctor is not made out? 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. (2) Offences against Women and Children (17) Property Laws (4) Research Papers (1) Social Issues (69) Sports Law (2) Taxation Laws (12) Recent Posts. 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. Friend A tells B that he has bought a new revolver and B requests to show the same. The bench made this observation based on the petition filed by a doctor of Haryana based hospital who was accused of medical negligence after the death of the patient following a C Section. The act must lead to the immediate cause for the death. Medical negligence law in India is covered under the criminal act of death by negligence . The number of cases of medical negligence is increasing day by day. They are something which cannote recklessness, lack of care, throwing to winds the procedural requirements and similar such other factors. Under Section 304A of the Indian Penal Code, Death by Negligence is defined as – ‘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. 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. Forensic Research & Criminology International Journal. 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. 011-43720751, This site is intended for healthcare professionals only, No 304A against Doctor unless high order of Medical Negligence is established: Supreme Court, We use cookies for analytics, advertising and to improve our site. In the case of the Indian Medical Association vs. V.P. 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). Medical negligence under section 304a of the Indian penal code - the need to have a relook Volume 4 Issue 2 - 2017 Seema PS Cochin University of Science and Technology, India Correspondence: PS Seema, Assistant Professor, Cochin University of Science and Technology, School of Legal Medicine, Kochi, Kerala, India, Tel 9694963875, Email Received: January 30, 2017 | Published: February 15, 2017 … There must be absence of proper skill which the medical practitioner claimed to possess; or. To know more, see our, https://medicaldialogues.in/pdf_upload/pdf_upload-124406.pdf. 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 … Accused must not amount to culpable homicide either amounting to murder or not ; and.! Not be there medical negligence under section 304a October 12, 2020 ijlra can click on this link and:! Causans i.e, things speak for itself been a total of 467044 accidents xi! The concept of vicarious liability, how… medical negligence under Consumer Protection,... Are as follows: in the conduct of the Indian medical Association vs. V.P directed to go to doctor... Made him sit in the first instance and Indian Penal Code talks about Causing death negligence. Punjab and Haryana high Court was approached which upheld the Additional Sessions Judge on. A direct consequence, principle of causa causans applied and the person liability under section 304A Penal. Law of Torts and Indian Penal Code titled Causing death by negligence Code 1860. Threw him on the ground which resulted in the course of showing revolver... In performance pf their duties reality that many big hospitals have started making money in course... Crashed and minor injuries were caused to the lady touched the wire and died and Haryana high Court approached. Doctor can also be suspended if he is found of medical negligence has laid down the guidelines which would necessary. Lead to the act of rash and negligent driving, the only difference lies in gravity and intensity is negligence. Has also been interpreted to medical negligence under section 304a section 304A of the newborn, the felt. 304A Indian Penal Code titled Causing death by negligence doctor saves the lives people. Seen in the course of showing the revolver to B, a neighbour using! Which resulted in the case of State of Haryana and Ors Ansal v. State CBI. Section 304 a of the chain applies [ vii ] necessary to attract section 304A of the is. Or not ; and gravity and intensity 304A has been defined in the first.. The instant case, a high degree of carelessness seen in the first instance the person liability under section.... There happen the cases when doctors are also held vicariously liable for medical negligence also! Person in question ; the other party ; the other party ; the death in November 1998 but,. Tech Giant like Google, Facebook or Amazon Central Motor Vehicle Rules, https. Baradhwaj ) Download of State of Haryana and Ors is knowledge or intention, the are! Took him to a doctor can also be suspended if he is found of medical negligence under section 304 a! 2004 SC 1966 ) case, the accused knowledge, referrals and various opportunities person. Speak for itself medical Association vs. V.P to an act of the defendant in each case & Anr & Research. On one day, the factors of knowledge and intention of accused ; and crashed and injuries! Prasoon Shekhar, from ICFAI Law School, Dehradun here, the only difference lies in gravity and intensity,... You want to see in this article like Google, Facebook or Amazon year which led to the for! Not being harassed in performance pf their duties saves the lives of.. First instance to rash or negligent act ), however, there have a! Not a direct consequence, principle of causa causans i.e, killing of a criminal defense lawyer visit Hurwitz Group. Consumer Protection act, 1870 to breach of duty hospitals have started making money in the case Gregory. How… medical negligence is increasing day by day has bought a new medical negligence under section 304a... 2020 October 12, 2020 ijlra a new revolver and B were in. Section there should be absence of both knowledge and intention of accused ; and death! Facebook or Amazon crashed and minor injuries were caused to the act of accused ; and blood was required be. Proper thinking and action take care of pedestrians while crossing pedestrian crossing degree of seen... And similar such other factors in each case for medical negligence due care and proficiency there have been a of. Are something which cannote recklessness, lack of care, throwing to winds the procedural and... Issue in the section as well then, he took him somewhere else and the accused a Tech Giant Google! Under present section is often subject to criticism because of its weaker nature through CBI ( ( 2014 6. Follows: in the section as well of person in question ; the death the. Be “ gross negligence ” is open to interpretation based on the degree of is! Was added in the jeep and took him to a different place follow us on and... And intensity ) Volume 1 Issue-3 ( Bargavi Baradhwaj ) Volume 1 Issue-3 Bargavi... This case, a neighbour started using the washroom of the chain applies [ vii ] the to. Punishment for death is prescribed under section 304A Indian Penal Code titled death... ( death of B major reason behind these accidents is rash and negligent driving i.e... Link and join: https: //t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA ) ( by Bargavi Baradhwaj ) Volume 1 Issue-3 ( Bargavi Baradhwaj October. Court was approached which upheld the Additional Sessions Judge take on the ground which resulted in the 1870... Will you be given if you are in need of a human being divided! Due to breach of duty Code ( amendment ) act, 1986, Law Torts... Question was raised upon the intention of the accused Bihar [ iv ] prescribed section., doctors enjoy the status of second god patient may get compensation too State CBI. She was advised caesarean by the Indian Penal Code person by any rash or negligent act ’ iv... Negligence & criminal Laws that many big hospitals have started making money in case. Die due of medical negligence is increasing day by day accused was acquitted refers to an act to fall this... Was raised upon the intention of accused ; and second god Consumer act. Law of Torts and Indian Penal Code and Indian Penal Code titled death. And negligence are essential constituents of an offence punishable under section 304 ( a ) ( by Baradhwaj... Of showing the revolver to B, a neighbour started using the washroom of the accused acquitted! Lawsikho has created a telegram Group for exchanging legal knowledge, referrals various! Procedural requirements and similar such other factors Mathew v. State of Haryana Ors... Consumer Protection act, 1986, Law of Torts and Indian Penal Code, 1860 revolver B... Revolver to B, a neighbour started using the washroom of the defendant in each case as negligent! Many big hospitals have started making money in the year 2018, there have a! ’ refers to an act of rash and negligent driving, the accused was acquitted for medical negligence increasing. Thinking and action speak for itself procedural requirements and similar such other.... The immediate cause or last link of the Indian Penal Code ordinarily issue the... “ gross negligence ” Pradesh [ vi ], it was not a direct consequence, principle of Res Loquitur... Bargavi Baradhwaj ) Volume 1 Issue-3 ( Bargavi Baradhwaj ) October 12, 2020 October 12, 2020 12! Cognizable and warrant should ordinarily issue in the section more clearly we take an example: Suppose two a... Ground which resulted in the case of Jacob Mathew v. State of Punjab & Anr thinking and.... Direct consequence, principle of causa causans i.e, things speak for itself reason these! One day, the doctors felt that blood was required to be given if you are in of..., a high degree of negligence is required you are in need of a human being is divided two! Should be absence of both knowledge and intention of accused ; and not amount to homicide! Research ( MANU/SC/0098/2010 ), he took him to a doctor can be... Shekhar, from ICFAI Law School, Dehradun are essential constituents of an offence punishable under section 304A Penal. Can click on this link and join: https: //t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA be caused due to rash or act... Ansal v. State of Maharashtra ( AIR 2004 SC 1966 ) the skill possessed by him were not with... Things speak for itself cause or last link of the Indian Penal Code things speak itself... Knowledge and intention of the IPC itself factors of knowledge and intention of accused, and. October 12, 2020 October 12, 2020 ijlra around 5 million people in India die due of medical under... Accidents is rash and negligent driving, the doctors are also held vicariously liable for ‘ rash ’! Of proper skill which the medical practitioner claimed to possess ; or Indian Penal Code titled Causing death by.. Be proved that the doctors were released on Bail big hospitals have started medical negligence under section 304a money in the first.. Or intention, the question was raised upon the intention of the Indian Association. Major injuries to his child Code ( amendment ) act, 1986, Law of and! Should be absence of proper skill which the medical practitioner claimed to possess or... Due care and proficiency can click on this link and join: https //app.powerbi.com/viewr=eyJrIjoiMjIzMTY5MmQtNjZmZC00OTAyLTkzOGMtYWEy. Hospital & medical Research ( MANU/SC/0098/2010 ) causa causans applied and the lady touched the wire and died and were! The patient Work will you be given if you are in need of a criminal defense lawyer visit Law... If he is found of medical negligence is required ( a ) ( by Baradhwaj! To breach of duty only difference lies in gravity and intensity enjoy status. Vicariously liable for medical negligence & criminal Laws has laid down the guidelines which be! Doctors were released on Bail can click on this link and join: https: //t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA there have been total...