DR. P.B. DESAI versus STATE OF MAHARASHTRA & ANR.

Citation: [2013] 11 S.C.R. 863 · Decided: 13-09-2013 · Supreme Court of India · Bench: A.K. PATNAIK · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2013] 11 S.C.R. 863 
DR. P.B. DESAI 
v. 
STATE OF MAHARASHTRA & ANR. 
(Criminal Appeal No. 1432 of 2013) 
SEPTEMBER 13, 2013 
[A.K.PATNAIK AND A.K. SIKRI, JJ.] 
A 
B 
Penal Code, 1860 - s. 338 rlw. s. 109 - Prosecution 
under - -Of medical practitioner (surgeon). - Conviction by 
courts below - Held: The omission on the part of the accused C 
to take care of the patient, in the facts of the case, can come 
within the realm of professional misconduct and civil liability 
(actionable wrong in tort) but not criminal liability - The 
omission on the part of the accused was not the cause for 
patient's death - Hence he cannot be held liable u/s. 338 as 
D 
the ingredients of s. 338 have not been satisfied - Tort -
Actionable wrong - Professional Misconduct - Medical 
Negligence. 
s. 338 - Offence under - Scope of - Held: An offence u/ 
s. 338 is capable of being committed by omission - Medical 
E 
profession is included in it. 
Liability - Omission liability - 'Omission to act' whether 
amounts to 'act' - Held: Liability for an omission, requires a 
legal duty to act arising from either civil or criminal law - A 
moral duty to act is not sufficient for invoking omission liability 
- Penal Code and in particular s. 338 /PC does explicitly 
include the liability due to omissions. 
Medical Negligence: 
Medical negligence - Liability of the offending doctor -
Negligent act/omission by a doctor gives rise to civil as well 
as criminal liability - Distinction is required to be drawn 
between the two. 
863 
F 
G 
H 
864 
SUPREME COURT REPORTS 
[2013] 11 S.C.R. 
A 
Medical negligence - Civil liability - If the patient suffers 
because of negligent act/omission of doctor, the doctor is 
liable to pay damages - Torts. 
Medical negligence - Criminal liability - Of the offending 
8 
doctor - Held: Criminal liability is to be answered in terms of 
mens rea - The only state of mind which deserves punishment 
is that which demonstrates an intention to cause harm or 
where there is deliberate willingness to subject others to the 
risk of harm. 
c 
Medical negligence - Ascertainment of - Doctor-patient 
relationship - Establishment of - Held: Formation of a doctor-
pa tient relationship is integral to formation of a legal 
relationship and consequent rights and duties, forming the 
basis of liability of a medical practitioner- A contract between 
D 
doctor and patient is always implied, except when written 
informed consent is obtained - When contractual relationship 
is established, it gives foundation to legal obligation between 
the doctor and patient - Once it is found that there is 'duty to 
treat' there would be corresponding 'duty to take care' -
E 
Whenever the principle of 'duty to take care' is founded on a 
contractual relationship it acquires a Legal character. 
F 
Negligence: 
'Negligence' - Connotation of. 
'Negligence' and 'Recklessness' - Difference between. 
The appellant, a renowned surgeon was prosecuted 
u/s. 338 r/w. s. 109 of IPC. The prosecution case was that 
G the wife of the complainant was a patient of cancer since 
1977. She had also undergone treatment in U.S.A. for the 
same, where the hospital declared her beyond surgical 
treatment and was sent back to India. Thereafter, she was 
on medication under medical supervision of Dr. 'M'. She 
was admitted in the hospital with a complaint of 'vaginal 
H 
DR. P.B. DESAI v. STATE OF MAHARASHTRA 
865 
bleeding', where the appellant-accused examined her and 
A 
advised 'Exploratory Laporotomy' (surgery), in order to 
ascertain whether patient's uterus could or could not be 
removed to stop the bleeding. Dr. 'M' began the surgery. 
On seeing the condition after opening the abdomen, Dr. 
'M' called the appellant-doctor who was performing other B 
surgery. Appellant after seeing the condition of the patient 
from a distance, advise Dr. 'M' to close the abdomen as 
it was not possible to proceed with the operation. 
Thereafter, the condition of the patient deteriorated and 
she developed other problems and never recovered and c 
after about one year died. 
The complainant filed a complaint against the 
appellant with Maharashtra Medical Council, who took 
disciplinary action against the appellant and found him 
guilty of professional misconduct and issued warning u/ D 
s. 22(1) of Maharashtra Medical Council Act, 1965. 
The complainant also lodged a criminal case against 
'the appellant u/s. 338 r/w. s. 109 IPC. The trial court 
convicted him and sentenced him to simple E

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