Intention Of No Consequence In Cases of Medical Negligence

By Gajanan Khergamker

In a recent ruling by the Supreme Court of India, issues of medical negligence, mens rea and legal procedures laid down by the Apex Court came into focus, once again. The bench of Justices AM Khanwilkar and Sanjiv Khanna set aside a judgment of the Patna High Court as well as the summoning order issued by the Trial Court and ruled mens rea was not required in Medical Negligence cases.

Image is for representational purposes only

The Bench observed the High Court “was impressed by the fact that there was no evidence regarding mens rea, to show malicious or bad intent. This view taken by the High Court was erroneous. For, when it is a case of medical negligence, it need not be because of mens rea as intent.” This, for medical practitioners across the nation, by way of legal repercussions, is of pivotal importance: This, particularly in view of the pre-emptive processes followed to the hilt by members of the fraternity to dodge legal liability in an extension of defensive medicine.

Coming to the case in question, the appellant had first filed a complaint of Medical Negligence before the Additional Chief Judicial Magistrate's Court at Patna against private respondents for offence punishable by Section 304 of the Indian Penal Code (IPC) that deals with ‘causing death by negligence’, Section 316 of IPC that deals with ‘doing an act under such circumstances that causes death’ and Section 34 of IPC which relates to acts done by several persons in furtherance of common intention.

The Trial Court, after recording the evidence of three witnesses produced by the complainant and other materials on record, issued summons to the private respondents in connection with the stated offence.

The private respondents challenged the order (the summons) by Writ Petitions before the High Court which, on finding no evidence of mens rea to show malicious or bad intent, quashed the summons.

However, the Supreme Court when appealed to, ruled that both the trial court as well as the High Court had erred. The Apex Court bench said, “the High Court, in our opinion, completely glossed over the reasons which had weighed with the Trial Court … but was impressed by the fact that there was no evidence regarding mens rea, to show malicious or bad intent. This view taken by the High Court is erroneous. Be that as it may, as aforesaid, the High Court did not advert to the reasons which had weighed with the Trial Court for issuing summons to the private respondents.”

Concurrently, the bench also maintained, “At the same time, it is noticeable that the Trial Court had summoned the private respondents without insisting for medical evidence or examination of professional Doctor by the complainant in support of his case made out in the complaint, as required in terms of the exposition of this Court in Jacob Mathew Vs. State of Punjab & Anr."

In Jacob Mathew vs State of Punjab and Anr, the Supreme Court had held that “in case of criminal negligence against a medical professional it must be shown that the accused did something or failed to do something in the given facts and circumstances of the case which no medical professional in his ordinary senses and prudence would have done or failed to do."

So, the Supreme Court, set aside the impugned judgement and order of the Patna High Court as well as the Summoning Order issued by the Trial Court and relegated the parties before the Trial Court for reconsideration of the issue afresh.

The recent judgement calls for an overhaul of processes, either adopted from peer bodies or as guided by associations and concurrently undertaken by practitioners to insulate themselves from liability.

The operative part here is that to qualify as a case of medical negligence, mens rea as intent is not mandatory. Even without mens rea, there are grounds to constitute an offence of medical negligence. Medical practitioners, guided solely by internal industry groups and self-help associations, invest little in legal education. Social Media Riders, Disclosure Bonds and Consent Forms do not protect the practitioner fully.

To prove negligence, the variables are different. There is, as the Supreme Court laid down succinctly, no need for a guilty intention as mens rea connotes. For negligence, the Supreme Court has laid down: A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. 

The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from ‘a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion’ applying Bolam's test to the facts collected in the investigation. 

A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.

To defend oneself from the charge of medical negligence, the tools employed by the practitioner presently, vis-à-vis declarations on social media platforms like WhatsApp, Facebook, Twitter, Websites, Blogs and others...simply do not work. To rely upon warnings, disclosures, ‘consent’ forms and ‘release’ statements risk addressing the real scourge. In that, the practice of defensive medicine may do disservice to its practitioners who will have to keep abreast with the latest that affects them directly and adapt accordingly.

Follow The Draft: Facebook | Twitter | Instagram | YouTube