Tuesday, 12 March 2013
Criminal Medical Negligence India
CRIMINAL MEDICAL NEGLIGENCE UNDER SECTION 304-A IPC
Criminal Medical Negligence is governed by Section 304A of the Indian Penal Code. Section 304-A of the Indian Penal Code reads as under:- "304-A. 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, or with fine, or with both." Essential ingredients of Section 304-A are as under:- (i) Death of a person
(ii) Death was caused by accused during any rash or negligence act. (iii) Act does not amount to culpable homicide. And to prove negligence under Criminal Law, the prosecution must prove:
(i) The existence of duty.
(ii)A breach of the duty causing death.
(iii) The breach of the duty must be characterized as gross negligence.
[See R. v. Prentice and R v. Adomako:  4 All ER 935] The question in the instant case would be whether the Respondents are guilty of criminal negligence. Criminal negligence is the failure to exercise duty with reasonable and proper care and employing precautions guarding against injury to the public generally or to any individual in particular. It is, however, well settled that so far as the negligence alleged to have been caused by medical practitioner is concerned, to constitute negligence, simple lack of care or an error of judgment is not sufficient. Negligence must be of a gross or a very high degree to amount to Criminal Negligence. Medical science is a complex science. Before an inference of medical negligence is drawn, the court must hold not only existence of negligence but also omission or commission on his part upon going into the depth of the working of the professional as also the nature of the job. The cause of death should be direct or proximate. A distinction must be borne in mind between civil action and the criminal action.