NEW DELHI: The Supreme Court on Friday held that a doctor would be liable for criminal prosecution only for "gross negligence" or if he did not possess the requisite skill.

A three-judge Bench comprising Chief Justice R.C. Lahoti, Justice G.P. Mathur and Justice P.K. Balasubramanyan held that "a simple lack of care, an error of judgment or an accident is no proof of negligence."

Writing the judgment, the CJI said: "Negligence in the context of the medical profession necessarily called for a treatment with a difference. The negligence attributed to the doctor must be gross in nature to make him liable for criminal prosecution. To prosecute a medical professional for negligence under the criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do."

Initially, a Bench consisting of Justice Y.K. Sabharwal and Justice D.M. Dharmadhikari held that doctors could be liable for prosecution only for "gross negligence." Another Bench headed by Justice Arijit Pasayat differed with this view and hence the matter was referred to the three-Judge Bench.

The Bench said, "We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient."

The court laid down broad guidelines: "A private complaint against a doctor may not be entertained unless the complainant has produced prima facie evidence before court in the form of credible opinion given by another competent doctor to support the charge of rashness or negligence."

Independent opinion

The investigating officer, before proceeding against the doctor accused of rash or negligent act or omission, should obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of practice who could normally be expected to give an impartial and unbiased opinion.

A doctor accused of rashness or negligence might not be arrested routinely. "Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face prosecution unless arrested, the arrest may be withheld."

Printer friendly page  
Send this article to Friends by E-Mail