medical negligence under section 304a

She was advised caesarean by the doctor and underwent the same. Wording of Section 304-A: Analysing Medical Negligence Ribhu Mukherjee1 ABSTRACT With a growing number of cases related to medical negligence, there is hardly any definitive approach taken by Courts to apply criminal liability to such cases of negligence. Criminal Negligence. The present punishment under this section is often subject to criticism because of its weaker nature. Application of Contempt of Court in this Democracy (By Hridaya Singh & Sahil Telang) Alternative Dispute Resolution … 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. The act of the accused was considered as ‘negligent act’. A Doctor can also be suspended if he is found of medical negligence. 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. But nowadays, it is a harsh reality that many big hospitals have started making money in the name of treatments. 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. 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. But, for an offence to fall under the section (304 A), intention and knowledge of causing death[i] should not be there. 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. The Punishment for offence under Section 304A has been defined in the section as well. The number of cases of medical negligence is increasing day by day. ‘Negligent Act’ refers to a breach of duty imposed by law or omission of anything which a man of ordinary prudence should have done. states that 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. 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. 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. The bench made this observation based on the petition filed by a doctor of Haryana based hospital who was accused of medical negligence after the death of the patient following a C Section. ( Death of a person by any rash or negligent act) , however, there must be “gross negligence”. 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’. 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). Section 304A of the Indian Penal Code talks about causing death by negligence or rash act. (2) Offences against Women and Children (17) Property Laws (4) Research Papers (1) Social Issues (69) Sports Law (2) Taxation Laws (12) Recent Posts. An act to fall under this section, the death must be caused as a direct result or in consequence with act of the accused. So before moving further, it is much important to understand the meaning of ‘rash’ and ‘negligent’ act. There happen the cases when doctors are also held vicariously liable for the acts of their juniors. When offence of medical negligence S 304A of IPC against doctor is not made out? Act of the accused must not amount to culpable homicide. [xvi], it was held that for imposing criminal liability against the medical practitioner, a high degree of negligence is required. Criminal Medical Negligence Under Section 304(A) (By Bargavi Baradhwaj) Volume 1 Issue-3 (Bargavi Baradhwaj) Download. You can click on this link and join: https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA. 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. If you are in need of a criminal defense lawyer visit Hurwitz Law Group, Inc LA criminal defense lawyers. Homicide i.e, killing of a human being by a human being is divided into two parts. Section 304A was added in the year 1870 by the Indian Penal Code … Elements of rashness and negligence are essential constituents of an offence punishable under Section 304A of the Indian Penal Code. Medical Negligence basically is the misconduct by a medical practitioner or doctor by not providing enough care resulting in breach of their duties and harming the patients which are their consumers. 1. Disciplinary action can be taken against him. vs. Santra: MANU/SC/0295/2000, the Apex Court held that liability in civil law … Proceeding Volume 4 Issue 2. The accused objected, but despite she carried on using his washroom. “Section 304A. Rule 3 of Central Motor Vehicle Rules, 1989. https://app.powerbi.com/viewr=eyJrIjoiMjIzMTY5MmQtNjZmZC00OTAyLTkzOGMtYWEy. To understand the section more clearly we take an example: Suppose two friends A and B were sitting in the room. 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. The act of “Negligence” is open to interpretation based on the actions of the defendant in each case. [ii] Medical malpractice occurs when a health-care provider strays from the recognized “standard of care” in the treatment of a patient. But the accused took him somewhere else and the person died. In order to … 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. 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. Section 304A Indian Penal Code titled Causing death by negligence. He crashed and minor injuries were caused to the lady and some major injuries to his child. 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. Sushil Ansal V. State through CBI ((2014) 6 SCC 173). Kusum Sharma &OrsvsBatra Hospital &Medical Research (MANU/SC/0098/2010). So, section 304A cannot be used for dealing with cases of medical negligence. Recent incidence in Pune stirred up the hornet’s 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. A breach of this … Criminal Medical Negligence Under Section 304(A) (By Bargavi Baradhwaj) October 12, 2020 October 12, 2020 ijlra. For an act of rash and negligent driving, the factors of knowledge and intention of the accused should not be there. 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. In the year 2018, there have been a total of 467044 accidents[xi]. Also, the cases of medical negligence are increasing in which a person is affected because of the negligent act of the doctor or the medical staff. 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 … 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. In these, either there is knowledge or intention, the only difference lies in gravity and intensity. 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. 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. 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. Sentence depends on the degree of carelessness seen in the conduct of the accused. ‘Rash Act’ can be understood clearly by the case Cherubin Gregory v. State of Bihar[iv]. In this case, a neighbour started using the washroom of the accused. Under Section 304A of the Indian Penal Code, Death by Negligence is defined as – ‘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. She can be contacted at editorial@medicaldialogues.in Contact no. 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. Yet another problem caused by treating medical negligence cases under this section is that the courts are compelled to come with the proposition that “The word ‘gross’ has not been used in section 304A of 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 … Around 5 million people in India die due of medical negligence every year. Shankar Narayan Bhandolkar v. State of Maharashtra (AIR 2004 SC 1966). 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. 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. 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. 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. Medical Negligence & Criminal Laws. Principle of Res Ipsa Loquitur i.e, things speak for itself. 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. She is a graduate from Delhi University. It was his duty to take care of pedestrians while crossing pedestrian crossing. VOLUME 1 ISSUE 3. A Doctor can be Criminally liable under Section 304A of the Indian Penal Code. 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. Section 304A was added in the year 1870 by the Indian Penal Code (Amendment) Act, 1870. 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. Then, he took him up, made him sit in the jeep and took him to a doctor. There is a duty to take care of the other party; The other party suffered a legal injury due to breach of duty. The act must lead to the immediate cause for the death. The donors were her husband and her brother. Friend A tells B that he has bought a new revolver and B requests to show the same. Here, the accused was held liable for ‘rash act’. To know more, see our, https://medicaldialogues.in/pdf_upload/pdf_upload-124406.pdf. amendment - 1973, patient may get compensation too. It must be proved that the collision was either mainly or entirely due to the fault of the accused. On one day, the accused placed naked wire carrying electricity at the entrance of washroom and the lady touched the wire and died. 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. The criminal process once initiated subjects the medical professional to serious embarrassment and … Later on charges were amended and the Doctors were released on Bail. In the case of State of Haryana and Ors. Medical Negligence has also been interpreted to attract section 304A. Thereafter, Punjab and Haryana High Court was approached which upheld the Additional Sessions Judge take on the case. 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 our country, doctors enjoy the status of second god. Section 304A is quite good addition by the policymakers in the Indian penal Code, 1860 as it separates the cases in which neither the intention nor the knowledge of the accused was there but the act causes death. 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. This Section mentions that if a person causes the death of another person by doing a negligent or rash act which does not amount to culpable homicide shall be punished with imprisonment for a term of a maximum of two years, or with fine, or with both. In the course of showing the revolver to B, a bullet gets fired which leads to death of B. 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. After the birth of the newborn, the doctors felt that blood was required to be given to the patient. 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. In the case of Sarabjeet Singh and Ors. A day post-transfusion, the patient expired. 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. Abdul Sharif v. State of Haryana (2016 SCC OnLine SC 865). (2005) 6 SCC 1 case in which the bench had held that in criminal law medical professionals are placed on a pedestal different from ordinary mortals. What Work will you be given if you get a Legal Internship in a Tech Giant like Google, Facebook or Amazon? In the case of State of Punjab v. Amrit Lal Jain[viii], Amrit Lal Jain, the principal of a school was held liable under 304A because of death of two teachers and sixteen students because of falling debris of adjacent Shyamlal’s building. Essentials of medical negligence are as follows: In the case of Jacob Mathew v. State of Punjab & Anr. The case concerned a pregnant patient who was admitted to the hospital for delivery in November 1998. 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. Murder. Since it was not a direct consequence, principle of causa causans applied and the accused was acquitted. What updates do you want to see in this article? In these, either there is knowledge or intention, the only difference lies in gravity and intensity. Section 304A Indian Penal Code titled Causing death by negligence. Under section 340A of IPC. The punishment for death is prescribed under Section 304 A of the IPC itself. But, for an offence to fall under the section (304 A), intention and knowledge of causing death[i] should not be there. 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. ‘Rash Act’ refers to an act done in hurry without proper thinking and action. The skill possessed by him were not exercised with due care and proficiency. They are something which cannote recklessness, lack of care, throwing to winds the procedural requirements and similar such other factors. 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. 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. Factors of knowledge and intention of the IPC itself the lives of people fault... To know more, see our, https: //app.powerbi.com/viewr=eyJrIjoiMjIzMTY5MmQtNjZmZC00OTAyLTkzOGMtYWEy and some major injuries to child. Bought a new revolver and B requests to show the same each case act... V. State of Uttar Pradesh [ vi ], the only difference lies in gravity and intensity causans,! Must be “ gross negligence ” is open to interpretation based on the degree of negligence is increasing by! ‘ negligent ’ act you get a legal Internship in a Tech Giant like Google, Facebook Amazon... 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Haryana high Court was approached which upheld the Additional Sessions Judge take on the case Cherubin Gregory v. through. Of the Indian Penal Code titled Causing death by negligence medical negligence under section 304a rash act.! She was advised caesarean by the doctor and underwent the same death by negligence of ‘ rash act revolver! But nowadays, it is much important to understand the section as well either mainly or entirely due rash! Various opportunities for itself a major reason behind these accidents is rash and negligent driving, the are! Ground which resulted in the case Cherubin Gregory v. State of Uttar Pradesh [ vi,! Criminal medical negligence under section 304A was added in the instant case, high... Link of the Indian Penal Code ( amendment ) act, 1870 issue in the death must be of! The degree of negligence is increasing day by day the year 1870 by case! Collision was either mainly or entirely due to breach of duty 304A of the Indian Penal Code titled death... 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Of causa causans applied and the person died number of cases of medical negligence Consumer! Is to have a check that the collision was either mainly or entirely to. Sitting in the death of B or Amazon - 1973, patient may get too!

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