Investigating Criminal Medical Negligence

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By: Dr Rajesh Kumar Mohan | Dr. Dasari Harish
Updated: 06 July, 2022 11:42 am IST


“DON’T HARASS INNOCENT DOCTORS.” These were the exact words written in bold by Dr. Archana Sharma of Rajasthan’s Dausa in her suicide note. The case of the Rajasthan gynecologist is a perfect example of what the police should not do in cases of medical negligence. In this case, a pregnant patient visited the private clinic run by Dr. Archana and her husband on March 28, 2022. After the delivery, the patient developed postpartum hemorrhage and died due to excessive loss of blood. The relatives staged a dharna with the body in front of the hospital. Police booked the doctor under Section 302 of the IPC (murder). The lady doctor, unable to bear the stress, committed suicide.

Let’s understand what went wrong in this case and how should the police handle cases of medical negligence.

Justice Baron Alderson has defined negligence as omitting to do something which a reasonable man of the same skill and knowledge would do (act of omission) or doing something which a prudent and reasonable man would not do in the given circumstances (act of commission), which results in damage to the patient. It can also be defined as: lack of reasonable degree of care and skill or willful negligence on part of medical practitioner in treating a patient – leading to injury or suffering or death of the patient.

There are many manifestations of a negligent act. The most common form of negligence is vehicular accidents. However, we cannot equate medical negligence to a vehicular accident. This is so because in the case of medical treatment, there are inherent risks involved. Further, every patient’s body may not react in the same way to a particular treatment regimen. Therefore, we must have clear standards of what constitutes a reasonable standard of care and skill/ knowledge. In doing so, we should know what a reasonable doctor will do in a particular circumstance, or, in other words, what standards of care are required from a medical practitioner.

A medical practitioner with the same qualifications may possess a varying degree of skill-sets. Some may be more skillful due to their experience while others may not be able to provide the same level of care. An MBBS doctor practicing in Delhi would demonstrate a different standard of care from an MBBS doctor practicing in a faraway tribal district because he would undoubtedly be having more investigative and infrastructural facilities to base his decisions on, which his counterpart in the tribal area may not have.

Then how do decide which standard of care should a medical practitioner demonstrate to save himself from a negligent act?

In deciding these standards, the famous ‘Bolam Test’ is applied. These standards were laid down by Justice Arnold McNair in the case of Bolam v Friern Hospital Management Committee, 1957. This test is applied to professionals, including medical practitioners, and states: “The standard of care of the ordinary skilled man exercising and professing to have that special skill. A man need not to possess the expert skill,… it is sufficient if he exercises the ordinary skills of an ordinary competent man exercising that particular act“.

The question now arises: how to decide the ordinary skills? As we have seen that it varies from place to place. Therefore it should be the opinion obtained from an independent medical practitioner with the same qualification in a nearby locality which should be the basis of deciding the ordinary skills in that circumstance.

What will happen when a patient dies during medical treatment? The relatives can go either for filing a civil case of medical negligence for damages or they can proceed with criminal negligence. The death of the patient is not to be treated as a case of murder. In India, Section 300 of the Indian Penal Code (IPC) defines murder while section 299 of the IPC defines culpable homicide not amounting to murder. The death during treatment is not even treated as culpable homicide not amounting to murder. Rather, it is dealt with under section 304-A of the IPC – causing death due to a rash and negligent act. This section 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 a fine, or with both. This punishment is lesser than the punishment given under section 302 of the IPC which gives punishment of death or imprisonment for life in cases of murder.

The Hon’ble Supreme Court, in the case of Dr. Suresh Gupta vs Govt. of NCT of Delhi in 2004 has stated that “if the degree of negligence is so gross and the act was reckless as to endanger the life of the patient, he should be made criminally liable for an offense under section 304A of the IPC”. Despite these clear directions, the police went on to file the case under Section 302 of the IPC in the case of Dr. Archana. The police should have rather filed the case under section 304A of the IPC (causing death by negligence).

In such cases, how should the police proceed after that?

For dealing with the cases of medical negligence, the Hon’ble SC has come out with guidelines for prosecuting doctors in the case of Jacob Mathew vs. State of Punjab, 2005. Based on the petition, an FIR is registered under section 304A of the IPC. The investigating officer should then obtain an independent medical opinion from a government doctor qualified in that branch, before proceeding against the doctor. The SC has even directed that the police will be penalized if they take action without a medical opinion. The accused doctor should not be arrested routinely unless his arrest is necessary for furthering investigation/collecting evidence or if the investigating officer feels that doctor will abscond.

In a court of law, the ingredients of criminal negligence are far more rigorous than in civil cases. According to the SC, for establishing criminal negligence, a three-step process should be followed. Firstly, prove that rashness was of such a degree as to amount to the injury being most likely imminent. Secondly, the negligence must be culpable/gross and not merely based upon an error of judgment. And thirdly, there should be gross and culpable neglect or failure to exercise reasonable and proper care and precaution to guard against injury. Only when these three pre-requisites are fulfilled, would the conviction be done under section 304A of the IPC.

In the case of Dr. Archana, the patient died because of postpartum hemorrhage. PPH is a common complication of deliveries. In this condition, the uterus gets exhausted due to labor which becomes atonic i.e. does not contract. The uterus of the pregnant females has spiral blood vessels supplying nutrition to the growing child. After delivery, the muscles around the blood vessels act as living ligatures, and when they contract, they compress the vessels to stop bleeding. But in the case of an atonic uterus, these vessels remain open resulting in excessive bleeding. This may result in shock and even death of the pregnant lady. In India, PPH is the most common cause of death in women during childbirth. Thirty eight per cent of maternal deaths are due to PPH.

Considering the statistics of PPH, prima facie it appears that the patient may not have died because of medical negligence. Even if the patient would have died due to it, all the stakeholders should have proceeded as per the due procedure laid by the law. In the case of Dr. Archana, the chief minister has removed the Dausa SP and suspended area SHO. An inquiry headed by divisional commissioner, Jaipur, is underway. Despite these actions, there is an urgent need to train our police force in following the due procedure while dealing with criminal medical negligence.


Dr. Rajesh Kumar Mohan is an IPS officer of Haryana cadre. He was an Assistant Medical Officer at IOFHS.
Dr. Dasari Harish is a Professor and Head of Dept. Forensic Medicine and Toxicology, Govt. Medical College and Hospital, Chandigarh

(Disclaimer: Views expressed above are the author’s own.)

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