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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. In the course of showing the revolver to B, a bullet gets fired which leads to death of B. 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. Medical Negligence under Section 304A of IPC; In the Judgement Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra related to Section 304A of IPC in accordance with medical negligence (death caused by negligence), It was held that "To impose criminal liability under Section 304A, Indian Penal Code, it is necessary that the death should have been the direct result of a … Medical negligence law in India is covered under the criminal act of death by negligence . Criminal Medical Negligence Under Section 304(A) (By Bargavi Baradhwaj) October 12, 2020 October 12, 2020 ijlra. Friend A tells B that he has bought a new revolver and B requests to show the same. The principle of causa causans i.e, immediate cause or last link of the chain applies[vii]. 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. Read Also: How Much Punishment?- MCI Formulates Sentencing Guidelines For Cases Of Medical Negligence, Garima joined Medical Dialogues in the year 2017 and is currently working as a Senior Editor. Thereafter, Punjab and Haryana High Court was approached which upheld the Additional Sessions Judge take on the case. Section 304A i.e, causing death by negligence reads as follows: “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.”. Later on charges were amended and the Doctors were released on Bail. On one day, the accused placed naked wire carrying electricity at the entrance of washroom and the lady touched the wire and died. He crashed and minor injuries were caused to the lady and some major injuries to his child. In the case of the Indian Medical Association vs. V.P. The accused lifted a child and threw him on the ground which resulted in the death of the child. What Work will you be given if you get a Legal Internship in a Tech Giant like Google, Facebook or Amazon? 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. In the case of Suleman Rehiman Mulani & Anr v. State of Maharashtra[ix], a person driving a jeep hit a person. The wording of Section 304-A is ambiguous to the extent that ‘rash or negligent’ is qualified and understood very differently in the Medical Negligence … What updates do you want to see in this article? 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. Homicide i.e, killing of a human being by a human being is divided into two parts. vs. Santra: MANU/SC/0295/2000, the Apex Court held that liability in civil law … After proving the person liability under Section 304A. In these, either there is knowledge or intention, the only difference lies in gravity and intensity. [xvi], it was held that for imposing criminal liability against the medical practitioner, a high degree of negligence is required. But, for an offence to fall under the section (304 A), intention and knowledge of causing death[i] should not be there. An act to fall under this section, the death must be caused as a direct result or in consequence with act of the accused. Since it was not a direct consequence, principle of causa causans applied and the accused was acquitted. The criminal process once initiated subjects the medical professional to serious embarrassment and … The guidelines for imposing criminal liability for medical negligence are: In the case of Parmananda Katara v. Union of India[xvii], the Supreme Court observed that the duty of the doctor is to save lives and courts should assist in the same. Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content. The punishment for death is prescribed under Section 304 A of the IPC itself. Thereafter, citing medical negligence filed an FIR with the police alleging that the doctor did not attend to the patient after transfusion which resulted in her death. 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’. Medical negligence under section 304a of the indian penal code the need to have a relook; Submit manuscript... Due to current COVID19 situation and as a measure of abundant precaution, our Member Services centre will operate with minimum staffing from 23 rd March 2020. eISSN: 2469-2794 . 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. The punishment for causing death by negligence under Section 304-A is imprisonment of either description for a term, which may extend to two years, or with fine, or with both. Elements of rashness and negligence are essential constituents of an offence punishable under Section 304A of the Indian Penal Code. You agree to our use of cookies by continuing to use our site. vs State Of Uttar Pradesh[vi],  the question was raised upon the intention of accused. A major reason behind these accidents is rash and negligent driving. 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. 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. Essentials of medical negligence are as follows: In the case of Jacob Mathew v. State of Punjab & Anr. Medical Negligence has also been interpreted to attract section 304A. In our country, doctors enjoy the status of second god. In another famous case of Alister Anthony Periara v. State of Maharastra[xiv], a lady driving on Mumbai’s seafront carter road was accused of killing of seven people. In these, either there is knowledge or intention, the only difference lies in gravity and intensity. She was advised caesarean by the doctor and underwent the same. Proceeding Volume 4 Issue 2. The number of cases of medical negligence is increasing day by day. In the case of Sarabjeet Singh and Ors. Culpable Homicide either amounting to murder or not; and. ‘Rash Act’ can be understood clearly by the case Cherubin Gregory v. State of Bihar[iv]. Here, the accused was held liable for ‘rash act’. Section 304A of the Indian Penal Code, 1860, states that whoever causes the death of a person, by any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment for two years, or with a fine or both. The skill possessed by him were not exercised with due care and proficiency. 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. The wrongful act is punishable under Section 304A of Indian Penal Code,1860, which states that whosoever causes the death of any person by doing any rash and 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. 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. Homicide i.e, killing of a human being by a human being is divided into two parts. “Section 304A. A day post-transfusion, the patient expired. amendment - 1973, patient may get compensation too. Doctors can be held liable for medical negligence under Consumer Protection Act, 1986, Law of Torts and Indian Penal Code, 1860. For an act of rash and negligent driving, the factors of knowledge and intention of the accused should not be there. Then, the trial court was moved with the case which on the application of the accused discharged the doctor and gave relief to the doctor relying upon the judgment of the Supreme Court in Jacob Mathew vs. State of Punjab & Anr. The offence under present section is a Bailable, cognizable and a non-compoundable offence. 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. But nowadays, it is a harsh reality that many big hospitals have started making money in the name of treatments. Consumer Protection Act. After the birth of the newborn, the doctors felt that blood was required to be given to the patient. There happen the cases when doctors are also held vicariously liable for the acts of their juniors. Kusum Sharma &OrsvsBatra Hospital &Medical Research (MANU/SC/0098/2010). Section 304A was added in the year 1870 by the Indian Penal Code (Amendment) Act, 1870. Shankar Narayan Bhandolkar v. State of Maharashtra (AIR 2004 SC 1966). They are something which cannote recklessness, lack of care, throwing to winds the procedural requirements and similar such other factors. 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. 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. Medical negligence also known as medical malpractice is improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional. There must be death of person in question; The death must be caused due to rash or negligent act of accused; and. So, section 304A cannot be used for dealing with cases of medical negligence. 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. Also, the duty of the court is to have a check that the doctors are not being harassed in performance pf their duties. 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. 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. Criminal Medical Negligence Under Section 304(A) (By Bargavi Baradhwaj) Volume 1 Issue-3 (Bargavi Baradhwaj) Download. In the case of State of Haryana and Ors. In the year 2018, there have been a total of 467044 accidents[xi]. To know more, see our, https://medicaldialogues.in/pdf_upload/pdf_upload-124406.pdf. 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. 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. The act must lead to the immediate cause for the death. So before moving further, it is much important to understand the meaning of ‘rash’ and ‘negligent’ act. VOLUME 1 ISSUE 3. Principle of Res Ipsa Loquitur i.e, things speak for itself. The Supreme Court in landmark cases has laid down the guidelines which would be necessary to attract section 304A if there is medical negligence. 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. But, for an offence to fall under the section (304 A), intention and knowledge of causing death[i] should not be there. Then, he took him up, made him sit in the jeep and took him to a doctor. 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. Section 304A Indian Penal Code titled Causing death by negligence. 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. Section 304A 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 provision includes some cases of medical negligence in India. In this case, a neighbour started using the washroom of the accused. Medical Negligence under Section 304A of IPC Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra – In this case, while dealing with Section 304A of IPC (death caused by negligence), the statement of law by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap,, was cited with approval: But the accused took him somewhere else and the person died. 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. When offence of medical negligence S 304A of IPC against doctor is not made out? 1. The donors were her husband and her brother. (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. This section focuses on death caused due to rash and negligent act done by the accused [2], but when it is observed that there is intention or knowledge, it would fall under the purview of section 299 or section 300 and not under section 304A [3]. 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. It was his duty to take care of pedestrians while crossing pedestrian crossing. ‘Negligent Act’ refers to a breach of duty imposed by law or omission of anything which a man of ordinary prudence should have done. The present punishment under this section is often subject to criticism because of its weaker nature. Sushil Ansal V. State through CBI ((2014) 6 SCC 173). She can be contacted at editorial@medicaldialogues.in Contact no. Section 304A Indian Penal Code titled Causing death by negligence. 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. Medical Negligence & Criminal Laws. 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. She looks after all the Healthcare news pertaining to Medico-legal cases, MCI/DCI decisions, Medical Education issues, government policies as well as all the news and updates concerning Medical and Dental Colleges in India. A Doctor can also be suspended if he is found of medical negligence. [ii] Medical malpractice occurs when a health-care provider strays from the recognized “standard of care” in the treatment of a patient. Medical Negligence In Criminal Law: Under Criminal law when it is proved that the negligent act is performed with Mens Rea (guilty mind) he shall be punished under the criminal law now because of Code of Criminal Procedure (C.C.P.) In the case of State of Rajasthan v. Hari Singh[xii], it was held that only driving at a faster rate do not make out the offence as under 304A. (2) Offences against Women and Children (17) Property Laws (4) Research Papers (1) Social Issues (69) Sports Law (2) Taxation Laws (12) Recent Posts. Covid has created tremendous opportunity for lawyers, Jurisdictive ploy to combat dilatory tactics, The Patents Act, 1970 : Case analysis – Novartis Ag v. Union of India, Introduction to domestic violence on children. In criminal law, medical practitioners get the immunities of Sections 87, 88, 89 and 92 of the IPC, 1860, who act for patients benefit in good faith. A Doctor can be Criminally liable under Section 304A of the Indian Penal Code. 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 … 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. Medical Laws (11) Mis. Criminal 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 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. 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. In many cases, doctor saves the lives of people. Application of Contempt of Court in this Democracy (By Hridaya Singh & Sahil Telang) Alternative Dispute Resolution … For an act to fall under this section there should be absence of both knowledge and intention. You can click on this link and join: https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA. 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. Around 5 million people in India die due of medical negligence every year. There is a duty to take care of the other party; The other party suffered a legal injury due to breach of duty. 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. 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. 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. Murder. If you are in need of a criminal defense lawyer visit Hurwitz Law Group, Inc LA criminal defense lawyers. In order to … He refused to give treatment, and directed to go to a different place. ( Death of a person by any rash or negligent act) , however, there must be “gross negligence”. 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. This offence is cognizable and warrant should ordinarily issue in the first instance. In the instant case, the doctors … 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. 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. The act of “Negligence” is open to interpretation based on the actions of the defendant in each case. Section 304A of the Indian Penal Code talks about causing death by negligence or rash act. LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. It must be proved that the collision was either mainly or entirely due to the fault of the accused. Rule 3 of Central Motor Vehicle Rules, 1989. https://app.powerbi.com/viewr=eyJrIjoiMjIzMTY5MmQtNjZmZC00OTAyLTkzOGMtYWEy. Under section 340A of IPC. Disciplinary action can be taken against him. 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 … Abdul Sharif v. State of Haryana (2016 SCC OnLine SC 865). ‘Rash Act’ refers to an act done in hurry without proper thinking and action. She is a graduate from Delhi University. 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. A professional is deemed to be an expert in that field at least; a patient getting treated under any doctor surely expects to get healed and at least expects the doctor to be careful while performing … 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. The case concerned a pregnant patient who was admitted to the hospital for delivery in November 1998. 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. A breach of this … The concept of vicarious liability, how… Culpable Homicide either amounting to murder or not; and 2. The Punishment for offence under Section 304A has been defined in the section as well. The Contempt of Courts Act, 1971; Right to Information; The Doctrine of Inequitable Conduct and Patent Unenforceability; Need for Witness Protection in Legal Spectrum Medical negligence … The accused objected, but despite she carried on using his washroom. 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. 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. Sentence depends on the degree of carelessness seen in the conduct of the accused. 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. The Supreme Court, on several instances favoured a harder punishment[xvii] and at it has also asked the legislature to amend the provision. Post navigation. 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. Forensic Research & Criminology International Journal. 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. Was considered as ‘ negligent ’ medical negligence under section 304a the factors of knowledge and intention the meaning ‘... Jeep and took him to a doctor B, a neighbour started the! Gets fired which leads to death of B washroom of the defendant in medical negligence under section 304a.... A and B requests to show the same important to understand the section as well 304A been... Intention, the factors of knowledge and intention of the accused lifted a child and threw him on the of! Was either mainly or entirely due to the fault of the accused not! 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