Whether a Doctor can be held criminaly Liable ?
Section 304A 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.
In the Santra case( State of Haryana vs. Smt. Santra (2000) 5 SCC 182:: AIR 2000 SC 3335 ), the Supreme Court has pointed out that –
- In civil Law , liability is assessed/evaluated depending upon the amount of damages incurred;
- In criminal law, in determining liability, the amount and degree of negligence is taken into account.
However, in order to determine criminal liability , certain key factors have to be established in any particular case which are as follows-
- Mens Rea i.e Motive behind the offence,
- Magnitude of the offence,
- Traits of the offender.
In Poonam Verma vs Ashwin Patel (1996) 4 SCC 332 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 as a result of her/ his act. A reckless person knows the consequences but does not care whether or not they result from her/ his act. Any conduct falling short of recklessness and deliberate wrongdoing should not be the subject of criminal liability.
As such 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.(House of Lords decision in R vs Adomako (1994) 3 All ER 79)
Safeguards for protecting the interest of Doctors
As per section Section 80 of the Code
nothing is an offence that is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.
According to Section 88 of the Code-
a person 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 consentRecent Supreme Court rulings
Recent Supreme Court Rulings-
In Mohanan vs Prabha G Nair and another 2004) CPJ 21(SC), of 2004 Feb 4 , 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 Criminal Appeal [Appeal (crl.) 778 of 2004] in August 2004 the standard of negligence that had to be proved to fix a doctor’s or surgeon’s criminal liability was set at “gross negligence” or “recklessness.”
In Suresh Gupta’s case the Supreme Court distinguished between an error of judgement and culpable negligence. It held that
criminal prosecution of doctors without adequate medical opinion pointing to their guilt would do great disservice to the community. A doctor cannot be tried for culpable or criminal negligence in all cases of medical mishaps or misfortunes.A doctor may be liable in a civil case for negligence but mere carelessness or want of due attention and skill cannot be described as so reckless or grossly negligent as to make her/ him criminally liable. 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.
Note- Information collected from
The National Consumer Disputes Redressal Commission (NCDRC) on May 24, 2019, in the case of Mohan Dai Oswal Cancer Treatment & Research Foundation & Ors. v. Prashant Sareen & Ors., has held that a doctor is vicariously liable for the acts of his team which assists him in every sphere in rendering treatment to the patient.
Further, the Commission also said:
“Having regard to what the Hon’ble Supreme Court has laid down about ‘ Duty of Care’ to be followed by medical professional, viewed from any angle it cannot be construed that ‘ Duty of Care’ of the treating Doctor/ head of the department, who is in this case has written the ‘Protocol’, ‘ Ends’ with giving the Prescription. At the cost of repetition, we are of the considered view that the Doctor is vicariously liable for the acts of his team which assists him in every sphere in rendering treatment to the Patient.”
The Commission also held that the hospital is vicariously liable for the acts of the Doctors based on the decision of Supreme Court in Achutrao Haribhau Khodwa v. State of Maharashtra & Ors., 1996 (2) SCC 634.
Law & Order 