New Delhi: In a groundbreaking judgment, the Supreme Court has recently made it clear that the absence of mens rea i.e. malicious or bad intent is not that important factor in cases of medical negligence. The court at the same time has stressed that proper procedure as to be followed while trying medical negligence under criminal law.
The court in doing so once again referred to an earlier decision by the Apex Court in Jacob Mathew Vs. State of Punjab & Anr, where the supreme court of India laid down guidelines in cases of alleged negligence against medical practitioners in India. While doing so the court had clearly stated that there is a need for protecting doctors from frivolous or unjust prosecution.
The Supreme Court bench comprising of Justices AM Khanwilkar and Sanjiv Khanna referring to the same judgement also made it clear that before summoning the accused doctor in a case of medical negligence, the complainant needs to present medical evidence and examine the professional doctor in support of his case.
Such observations were made while the Court was hearing a case regarding a medical negligence complaint filed under Section 304, 316/34 of the Indian Penal Code. Acting on the complaint, the Additional Chief Judicial Magistrate's Court at Patna had recorded the evidence of the three witnesses produced by the complainant and other materials on record.
Also Read: Failure in Diagnosing Neck Femur Fracture: Top Consumer Court Directs St Stephens Hospital to Pay Rs 5 Lakh Compensation
However, when the trial court issued summons to the accused doctor in connection with the alleged offense via order dated 24.12.2016, the accused doctor challenged the order before the High Court. Overlooking the facts presented before the trial court, the High Court took note of the fact that there was no evidence of mens rea to show malicious or bad intent.
While considering the case, the Supreme Court bench opined such a view on the part of the High Court to be "erroneous" and observed, "When it is a case of medical negligence, it need not be because of mens rea as intent. Sans mens rea in the above sense also it would still constitute offence of medical negligence."
After perusing the details of the case, the Supreme Court also noted that the trial court did not follow the procedure that was required to prosecute a doctor for criminal medical negligence
Trial Court had summoned the accused without insisting for medical evidence or examination of professional Doctor by the complainant in support of his case made out in the complaint, as directed earlier by the top court in Jacob Mathew Vs. State of Punjab & Anr. Taking note of this fact, the Apex Court bench set aside orders of both the trial court and the High Court.
The court then furhter stated
"We make it clear that the Trial Court may have to call upon the complainant to first examine the professional Doctor as witness in support of the case made out in complaint and then proceed to consider the matter afresh on its own merits and in accordance with law,"
Disposing of the matter, the Supreme Court bench also clarified, "We also make it clear that the Trial Court shall proceed in the matter on its own merits without being influenced by any observation made in the two orders which have been set aside or for that matter in this order."
To read the order of the Supreme Court, click on the link below.
https://.in/pdf_upload/mens-rea-medical-negligence-158724.pdf
Also Read: Alleged Medical Negligence: Surgeon held at fault for practising in UP without State Medical Council Registration
What does Jacob Mathew Vs. State of Punjab & Anr (2005) say?
The supreme court in this landmark judgement had laid down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. The court had then noted
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.