Rights of Doctors against criminal action – Recent horrible incident against Doctors in Pune<\/p>\n
Trail of Doctors – IPC 304A (Doctor) \u201cor\u201d 304-II
\nRecent incidence in Pune stirred up the hornet\u2019s 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. Later on charges were amended and the Doctors were released on Bail.
\nLet\u2019s try to understand in Short, the Rights of Doctors in case of Medical Negligence cases and criminal Action. :
\nMedicos are offended when they are charged with Sec.304 (II) of IPC.
\n304. Punishment for culpable homicide not amounting to murder.\u2014Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death,
\nor with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
\nIf this section is imposed, then it becomes a non-Bailable offense and punishment is 10 years.!! The job of the Police Authorities is very important in such cases as to which sections are to be imposed.
\nAnother section of IPC 304-A talks about causing death by Negligence and which is generally applied in case of death in MLC.<\/p>\n
Rights of Doctors against criminal action – Recent horrible incident against Doctors in Pune
\n304A. Causing death by negligence.\u2014Whoever 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.
\nBy mere perusing of both these sections, one can understand what must have jittered the Medicos.
\nThe Hon\u2019ble Supreme Court of India (3 Judges bench) , in the year 2005 itself has given clear cut guidelines on arrest of Doctors in case of Medical Negligence Cases. Please see the following link.
\nhttp:\/\/judis.nic.in\/supremecourt\/imgs1.aspx?filename=27088<\/a>
\nIn this case also Sec304A was applied against the Doctors and after going through the law of Negligence on this Point and after considering various legal texts, their lordships observed :
\n48. \u2026.(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
\n(6) The word \u201cgross\u201d has not been used in Section 304-A 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 \u201cgross\u201d. The expression \u201crash or negligent act\u201d as occurring in Section 304-A IPC has to be read as qualified by the word \u201cgrossly\u201d.
\nRegarding Arrest of Doctors, it has been observed :
\n\u201c52. \u2026we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient.
\ni.) A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.
\nii.) The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam test to the facts collected in the investigation.
\niii.) A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him).
\niv.) Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.\u201d
\nThis Celebrated judgment has been followed and referred to by all the Courts thereafter.
\nAlso See A.S.V. Narayanan Rao V\/s. Ratnamala & ors.<\/p>\n