LexJACOB MATHEW versus STATE OF PUNJAB AND ANR.
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JACOB MA THEW V. ST A TE OF PUNJAB AND ANR. AUGUST 5, 2005 [R.C. LAHOTI CJ., G.P. MATHUR AND P.K. BALASUBRAMANY AN, JJ.] Penal Code 1860, A B Sections 304-A, 88, 92, 93~riminal liability for Medical Negligence- Death due to medical negligence-Criminal liability of doctor-Held, to C prosecute a medical professional for criminal negligence it must be shown that the accused doctor did something or failed to do something which in the given/acts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to .do-Hazard taken by the accused doctor should be of such a narure that the resultant i'?iury was most likely D imn1inent-Onfacts, held, doctor can not be p1oceeded against under S. 304- A as it is a case of non-availability of oxygen cylinder-Rationale for special treatment of doctors discussed in detail and guidelines laid down to protect interest of doctors, and to save the1n from unwarranted and malicious proceedings. Sections 304-A, 88, 92, 93-Mens rea in criminal negligence-Held, for negligence to amounl to a crinzinal offence, the element o/mens rea must be shown to exist-Recklessness, i. e. disregard/or the possible consequences, constitutes the mens rea in criminal negligence. Section 304-A-Negligence-As a tort and criminal negligence-Nature of Negligence required-Held, to fasten liability in criminal law, degree of negligence has to be higher than negligence enough to fasten liability for damages in civil law-For criminal libility, the negligence has to be gross or of a very high degree-Expression "rash and negligent act" to be reads 9ualified by "grossly". 304-A-liabi/ity under-When attracted-Held, death must be direct result of act of accused-Such act must be causa causans-Not enough if it is cause sine qua non-Criminal Law-Negligence-Causation. E F G Section 304-A-Res ipsa loquitor-Applicabi/ity in criminal law- H 307 A B 308 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R. Held, this rule cannot be applied for determining per se the liability for negligence in criminal law and case under section 304-A cannot be decided solely by applying this rule. Tort-Professional neg!igence-Scope of-Held, a professional may be held liable for negligence if he was not possessed of the requisite skill which he professed to have possessed, or he did not exercise the skill which he possessed with reasonable competence in the given case-Standard of care required is of the ordinary competent person exercising ordinary skill in that profession-Test laid down in Bolam's case held, applicable in India. C Professional negligence distinguished from occupational negligence. D E Tort-Negligence-Medical Neglicence-Detailed explanation of when devation from normal medical practice would amount to evidence of medical negligence. Tort-Negligence-Res ipsa loquitor-Application to Medical · Practioners-Held, has to be applied with extreme care and caution to the cases of medical negilgence. Complainant's father was admitted to the hospital. He felt difficulty in breathing. Duty nurse called some doctor to attend to the patient. No doctor turned up for 20-25 minutes. Then the appellant and another doctor came to the patients room. An oxygen cylinder was brought and connected to the mouth of the patient but the breathing problem increased further. The oxygen cylinder was found to be empty. There was no other gas cylinder available. Later, the patient was declared dead. An offence F under sections 304-A/34 Penal Code, 1860 was registered and charges G . filed against the doctors. Doctor's petition to High Court to quash the - charges was dismissed. Hence the appeal. Allowing the appeal, the Court HELD : 1.1. Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part ofa professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment H or an accident, is not proof of negligence on the part of a medical JACOB MATHEW v. STATE 309 professional. So long as a doctor follows a practice acceptable to the A medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not h
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