Archive Articles

Doctor’s Criminal Liability

Doctor’s Criminal Liability

In last few years as the doctor-patient relationship has deteriorated, and the complaints against doctors have increased. Persons who offer medical advice and treatment implicitly state that they have the skill and knowledge to do so, that they have the skill to decide whether to take a case, to decide the treatment, and to administer that treatment. This is known as an “implied undertaking” on the part of a medical professional.  Doctors are not liable for their services individually or vicariously if they do not charge fees. Thus free treatment at a hospital, health centre, dispensary or nursing home would not be considered a “service” as defined in Section 2 (1) of the Consumer Protection Act, 1986.

According to the provisions of Indian Penal Code 1860, any act of commission or omission is not a crime unless it is accompanied by a guilty mind. The actions are not punishable only because it led to adverse results unless associated with the intention or mental attitude of the person. Most of the times doctors treat in good faith, with the consent of the patient and hence most of the provisions of IPC are not applicable to the doctors unless or until there is rashness or gross negligence. An error of judgment constitutes negligence only if a reasonably competent professional with the standard skills that the defendant professes to have, and acting with ordinary care, would not have made the same error. Doctors must exercise an ordinary degree of skill.


The basic difference is that in Sec. 304 there is an intentional act of negligence while in 304-A the act is never done with the intention to cause death.  Section 304A 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. In Poonam Verma vs Ashwin Patel the Supreme Court distinguished between negligence, rashness, and recklessness. A negligent person is one who inadvertently commits an act of omission and violates a positive duty. A person who is rash knows the consequences but foolishly thinks that they will not occur. A reckless person knows the consequences but does not care whether or not they result. Thus a doctor cannot be held criminally responsible for a patient’s death unless it is shown that she/ he was negligent or incompetent, with such disregard for the life and safety of his patient that it amounted to a crime against the State. According to Section 88, a doctor cannot be accused of an offence if she/ he performs an act in good faith for the other’s benefit, does not intend to cause harm even if there is a risk, and the patient has explicitly or implicitly given consent. The burden of proof of negligence lies with the complainant. Even after adopting all medical procedures as prescribed, a qualified doctor may commit an error. The National Consumer Disputes Redressal Commission and the Supreme Court have held, in several decisions, that a doctor is not liable for negligence or medical deficiency if some wrong is caused in her/ his treatment or in her/ his diagnosis if she/ he has acted in accordance with the practice accepted as proper by a reasonable body of medical professionals skilled in that particular art, though the result may be wrong.


In Mohanan vs Prabha G Nair and another, it ruled that a doctor’s negligence could be ascertained only by scanning the material and expert evidence that might be presented during a trial. In Suresh Gupta’s case the standard of negligence that had to be proved to fix a doctor’s criminal liability was set at “gross negligence” or “recklessness.” It held that criminal prosecution of doctors without adequate medical opinion pointing to their guilt would do great disservice to the community. Hence the complaint against the doctor must show negligence or rashness of such a degree as to indicate a mental state that can be described as totally apathetic towards the patient. Such gross negligence alone is punishable. Supreme Court in the case of Jacob Mathew vs State of Punjab directed the central government to frame guidelines to save doctors from unnecessary harassment and undue pressure in performing their duties.

A private complaint of rashness or negligence against a doctor may not be entertained without prima facie evidence in the form of a credible opinion of another competent doctor supporting the charge. In addition, the investigating officer should give an independent opinion, preferably of a government doctor. Finally, a doctor may be arrested only if the investigating officer believes that she/ he would not be available for prosecution unless arrested.


What is a negligent act?

When a doctor fails to take proper care, precaution and is just indifferent to the consequences of his act. Lack of skill proportional to risk undertaken also amounts to negligence. Common examples of gross medical negligence include giving the blood transfusion to the wrong patient or operating on the wrong side of the body or wrong patient.  Unfortunately, in many cases, a doctor treating with “good faith” also becomes a victim of medical negligence complaint just due to mere documentation error.

Ayurveda and Homoeopathic doctors are not allowed to practice modern medicine, if they do so it will be illegal and p[unishable. The Delhi Medical Council has notified that only persons who possess any of the recognized medical qualification as per First, Second or Third Schedule to the Indian Medical Council Act, 1956 and registered with the Delhi Medical Council is authorized to practice in modern scientific system of medicine (allopath).


Enquiry Feedback Top