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! 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