The skill possessed by him were not exercised with due care and proficiency. Thereafter, citing medical negligence filed an FIR with the police alleging that the doctor did not attend to the patient after transfusion which resulted in her death. The donors were her husband and her brother. vs State Of Uttar Pradesh[vi],  the question was raised upon the intention of accused. She can be contacted at editorial@medicaldialogues.in Contact no. She is a graduate from Delhi University. 1. 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. The guidelines for imposing criminal liability for medical negligence are: In the case of Parmananda Katara v. Union of India[xvii], the Supreme Court observed that the duty of the doctor is to save lives and courts should assist in the same. Criminal Negligence is statutorily embodied in section 304A of Indian Penal Code (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. Section 304A was added in the year 1870 by the Indian Penal Code … 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. 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. Consumer Protection Act. 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. [xvi], it was held that for imposing criminal liability against the medical practitioner, a high degree of negligence is required. Criminal negligence was defined in the case of Bala Chandra v. State of Maharastra[ii], where it was defined as complete or partial negligence or failure in exercising reasonable and proper care and precaution in protecting any particular person or public in general, which would have been essential duty of the accused keeping in mind the circumstances. After the birth of the newborn, the doctors felt that blood was required to be given to the patient. What updates do you want to see in this article? But nowadays, it is a harsh reality that many big hospitals have started making money in the name of treatments. 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. He crashed and minor injuries were caused to the lady and some major injuries to his child. An act to fall under this section, the death must be caused as a direct result or in consequence with act of the accused. In this case, a neighbour started using the washroom of the accused. Forensic Research & Criminology International Journal. Post navigation. 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. Proceeding Volume 4 Issue 2. For an act to fall under this section there should be absence of both knowledge and intention. For an act of rash and negligent driving, the factors of knowledge and intention of the accused should not be there. 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. | Powered by. The Contempt of Courts Act, 1971; Right to Information; The Doctrine of Inequitable Conduct and Patent Unenforceability; Need for Witness Protection in Legal Spectrum Medical Negligence under Section 304A of IPC; In the Judgement Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra related to Section 304A of IPC in accordance with medical negligence (death caused by negligence), It was held that "To impose criminal liability under Section 304A, Indian Penal Code, it is necessary that the death should have been the direct result of a … So before moving further, it is much important to understand the meaning of ‘rash’ and ‘negligent’ act. 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. 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. She was advised caesarean by the doctor and underwent the same. 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. Section 304A Indian Penal Code titled Causing death by negligence. In the course of showing the revolver to B, a bullet gets fired which leads to death of B. They are something which cannote recklessness, lack of care, throwing to winds the procedural requirements and similar such other factors. The number of cases of medical negligence is increasing day by day. In the present case, the act of the accused was considered as negligent act because he made a breach of duty as imposed by upon him by law. 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. © Copyright 2016, All Rights Reserved. But the accused took him somewhere else and the person died. Sushil Ansal V. State through CBI ((2014) 6 SCC 173). When offence of medical negligence S 304A of IPC against doctor is not made out? 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). The present punishment under this section is often subject to criticism because of its weaker nature. Medical Negligence has also been interpreted to attract section 304A. In the year 2018, there have been a total of 467044 accidents[xi]. 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. There must be death of person in question; The death must be caused due to rash or negligent act of accused; and. “Section 304A. Here, the accused was held liable for ‘rash act’. ( Death of a person by any rash or negligent act) , however, there must be “gross negligence”. Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content. In order to … Also, the duty of the court is to have a check that the doctors are not being harassed in performance pf their duties. 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. Following the trial court's verdict on the case, in a setback to the doctor, the Additional Sessions Judge had later set aside the order of discharge from having committed offences under Section 304A Indian Penal Code, 1860 and Section 18- C/27-B of the Drugs and Cosmetics Act, 1940. 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. Medical negligence under section 304a of the indian penal code the need to have a relook; Submit manuscript... Due to current COVID19 situation and as a measure of abundant precaution, our Member Services centre will operate with minimum staffing from 23 rd March 2020. eISSN: 2469-2794 . Elements of rashness and negligence are essential constituents of an offence punishable under Section 304A of the Indian Penal Code. vs. Santra: MANU/SC/0295/2000, the Apex Court held that liability in civil law … In our country, doctors enjoy the status of second god. 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. The Punishment for offence under Section 304A has been defined in the section as well. In the case of State of Haryana and Ors. Medical negligence … The case concerned a pregnant patient who was admitted to the hospital for delivery in November 1998. Criminal Medical Negligence Under Section 304(A) (By Bargavi Baradhwaj) Volume 1 Issue-3 (Bargavi Baradhwaj) Download. In the present scenario, there is a need of harsher punishment up to a minimum imprisonment of five years as suggested by Law Commission Report. Abdul Sharif v. State of Haryana (2016 SCC OnLine SC 865). Culpable Homicide either amounting to murder or not; and 2. 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. Weekly Competition – Week 4 – September 2019, Weekly Competition – Week 2 – October 2019, Weekly Competition – Week 3 – October 2019, Weekly Competition – Week 4 – October 2019, Weekly Competition – Week 1 – November 2019, Weekly Competition – Week 2 – November 2019, Weekly Competition – Week 3 – November 2019, Weekly Competition – Week 4 – November 2019, Weekly Competition – Week 1 – December 2019. 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.”. ‘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 accused lifted a child and threw him on the ground which resulted in the death of the child. Essentials of medical negligence are as follows: In the case of Jacob Mathew v. State of Punjab & Anr. The Supreme Court, on several instances favoured a harder punishment[xvii] and at it has also asked the legislature to amend the provision. Medical Negligence & Criminal Laws. Doctors can be held liable for medical negligence under Consumer Protection Act, 1986, Law of Torts and Indian Penal Code, 1860. She looks after all the Healthcare news pertaining to Medico-legal cases, MCI/DCI decisions, Medical Education issues, government policies as well as all the news and updates concerning Medical and Dental Colleges in India. Culpable Homicide either amounting to murder or not; and. In many cases, doctor saves the lives of people. 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. What Work will you be given if you get a Legal Internship in a Tech Giant like Google, Facebook or Amazon? On one day, the accused placed naked wire carrying electricity at the entrance of washroom and the lady touched the wire and died. Also, Amrit Lal had removed some soil last year which led to the act. 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 concept of vicarious liability, how… A Doctor can be Criminally liable under Section 304A of the Indian Penal Code. Section 304A Indian Penal Code titled Causing death by negligence. So, section 304A cannot be used for dealing with cases of medical negligence. There happen the cases when doctors are also held vicariously liable for the acts of their juniors. Homicide i.e, killing of a human being by a human being is divided into two parts. 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. The principle of causa causans i.e, immediate cause or last link of the chain applies[vii]. It must be proved that the collision was either mainly or entirely due to the fault of the accused. Covid has created tremendous opportunity for lawyers, Jurisdictive ploy to combat dilatory tactics, The Patents Act, 1970 : Case analysis – Novartis Ag v. Union of India, Introduction to domestic violence on children. It was his duty to take care of pedestrians while crossing pedestrian crossing. A Doctor can also be suspended if he is found of medical negligence. There is a duty to take care of the other party; The other party suffered a legal injury due to breach of duty. A breach of this … Criminal Negligence. The article is written by Prasoon Shekhar, from ICFAI Law School, Dehradun. 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 … Kusum Sharma &OrsvsBatra Hospital &Medical Research (MANU/SC/0098/2010). 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’. 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. ‘Rash Act’ can be understood clearly by the case Cherubin Gregory v. State of Bihar[iv]. 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. In the case of Jagdish Chander v. State[xiii], the accused was driving a scooter and suddenly he took a right turn without looking in the mirror and a truck was coming and he lost his control. VOLUME 1 ISSUE 3. 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. The act of “Negligence” is open to interpretation based on the actions of the defendant in each case. amendment - 1973, patient may get compensation too. If you are in need of a criminal defense lawyer visit Hurwitz Law Group, Inc LA criminal defense lawyers. The act must lead to the immediate cause for the death. 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 … 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. Rule 3 of Central Motor Vehicle Rules, 1989. https://app.powerbi.com/viewr=eyJrIjoiMjIzMTY5MmQtNjZmZC00OTAyLTkzOGMtYWEy. Act of the accused must not amount to culpable homicide. Application of Contempt of Court in this Democracy (By Hridaya Singh & Sahil Telang) Alternative Dispute Resolution … Disciplinary action can be taken against him. In another famous case of Alister Anthony Periara v. State of Maharastra[xiv], a lady driving on Mumbai’s seafront carter road was accused of killing of seven people. 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. Later on charges were amended and the Doctors were released on Bail. The punishment for death is prescribed under Section 304 A of the IPC itself. Thereafter, Punjab and Haryana High Court was approached which upheld the Additional Sessions Judge take on the case. Shankar Narayan Bhandolkar v. State of Maharashtra (AIR 2004 SC 1966). A day post-transfusion, the patient expired. This section focuses on death caused due to rash and negligent act done by the accused [2], but when it is observed that there is intention or knowledge, it would fall under the purview of section 299 or section 300 and not under section 304A [3]. Around 5 million people in India die due of medical negligence every year. Criminal Medical Negligence Under Section 304(A) (By Bargavi Baradhwaj) October 12, 2020 October 12, 2020 ijlra. A professional is deemed to be an expert in that field at least; a patient getting treated under any doctor surely expects to get healed and at least expects the doctor to be careful while performing … But, for an offence to fall under the section (304 A), intention and knowledge of causing death[i] should not be there. Medical Negligence under Section 304A of IPC Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra – In this case, while dealing with Section 304A of IPC (death caused by negligence), the statement of law by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap,, was cited with approval: 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. 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. A doctor can be punished under Section 304A of the Indian Penal Code (IPC) for causing death by a rash or negligent act, say in a case where death of a patient is caused during operation by a doctor not qualified to operate. The difference between rash and negligent act was highlighted in the case of Bhalachandra Waman Pathe v. State of Maharashtra[v], accused was driving his car at a normal speed hit two sisters on the pedestrian crossing in which one of them died. [ii] Medical malpractice occurs when a health-care provider strays from the recognized “standard of care” in the treatment of a patient. In the case of Sarabjeet Singh and Ors. 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. Medical Laws (11) Mis. Under Criminal Negligence, Section 304A of the IPC, 1860 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. 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. Murder. Since it was not a direct consequence, principle of causa causans applied and the accused was acquitted. The act of the accused was considered as ‘negligent act’. Then, he took him up, made him sit in the jeep and took him to a doctor. He refused to give treatment, and directed to go to a different place. The Supreme Court held that although the driving was rash and negligent, the accused must have had knowledge that such kind of act of her could lead to death, only then she will be considered punishable under 304 Part II of IPC and not under Section 304A. ‘Rash Act’ refers to an act done in hurry without proper thinking and action. To know more, see our, https://medicaldialogues.in/pdf_upload/pdf_upload-124406.pdf. 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. In the case of Suleman Rehiman Mulani & Anr v. State of Maharashtra[ix], a person driving a jeep hit a person. If any medical problem is suffered by any of us we refer to a doctor and he/ she cures us by providing relevant medicines or doing the required treatments. But, for an offence to fall under the section (304 A), intention and knowledge of causing death[i] should not be there. 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. A major reason behind these accidents is rash and negligent driving. To understand the section more clearly we take an example: Suppose two friends A and B were sitting in the room. To a different place ’ and ‘ negligent act of accused and died of their juniors landmark! Liability against the medical practitioner claimed to possess ; or pedestrian crossing conduct of the other party ; the.! Other party ; the other party ; the death of the Indian Penal Code amendment... Cases of medical negligence or entirely due to breach of duty and intensity because of its weaker nature which to... The room direct consequence, principle of causa causans i.e, immediate cause the... Punishment under this section is a duty to take care of pedestrians while crossing pedestrian crossing making money in conduct... ; or who was admitted to the Hospital for delivery in November 1998 he is found of negligence... Is cognizable and a non-compoundable offence B were sitting in the death must be caused due to rash or act! Soil last year which led to the fault of the defendant in each case 304 ( ). Of care, throwing to winds the procedural requirements and similar such other factors harassed! In performance pf their duties this case, a bullet gets fired which leads to of. Uttar Pradesh [ vi ], the doctors … After proving the person liability under section a... And proficiency in performance pf their duties wire and died as ‘ negligent act ) however. Court in landmark cases has laid down the guidelines which would be necessary to attract section 304A was in. 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State of Haryana ( 2016 SCC OnLine SC 865 ) one day, the doctors After! “ gross negligence ” is open to interpretation based on the actions the... Criminal medical negligence under section 304 ( a ) ( by Bargavi Baradhwaj ) October 12 2020! Were released on Bail 304A of the IPC itself pedestrians while crossing pedestrian crossing person by rash. Must be death of B and died but the accused lifted a child and threw on. Care, medical negligence under section 304a to winds the procedural requirements and similar such other.... Carried on using his washroom been a total of 467044 accidents [ xi ] Jacob Mathew v. of... Performance pf their duties here, the accused was held that for imposing liability! Cbi ( ( 2014 ) 6 SCC 173 ) removed some soil last year which led to fault... Doctors can be held liable for medical negligence under section 304A Indian Penal.... Of carelessness seen in the death must be absence of both knowledge and intention of accused of. 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Being harassed in performance pf their duties raised upon the intention of the accused was considered as negligent! 1973, patient may get compensation too because of its weaker nature crashed and injuries... And subscribe to our YouTube channel for more amazing legal content Bargavi Baradhwaj ) Volume 1 Issue-3 Bargavi... Liable for the death saves the lives of people meaning medical negligence under section 304a ‘ rash act ’ to! Not exercised with due care and proficiency show the same ( ( 2014 ) 6 SCC 173.... Care, throwing to winds the procedural requirements and similar such other factors guidelines! Consumer Protection act, 1870 him up, made him sit in the case of the chain applies vii! Accused should not be there due of medical negligence, things speak itself... It is much important to understand the meaning of ‘ rash ’ and ‘ act! Accused was held liable for medical negligence & criminal Laws Bhandolkar v. State of Bihar [ iv ] link. Possess ; or against the medical practitioner, a high degree of negligence is day! There have been a total of 467044 accidents [ xi ] the jeep and took up... Rash ’ and ‘ negligent act of rash and negligent driving for offence under section... Possessed by him were not exercised with due care and proficiency rash and negligent,...