A code required for rash, negligent doctoring

Obviously, any death resulting from "rash" or "negligent" action may fall under the purview of the Section 304A of the Penal Code.

The direction on September 9, 2004 by a Division bench of Justices A. Pasayat and C.K. Thakker at the Supreme Court of India referring a case of medical 'malpractice' by a Punjab physician to a bigger Constitutional bench for clarification of the law in regards to the "criminal" liability for the Indian doctors is likely to have significant implications for the entire country.

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This case of "medical negligence" was referred to the bigger bench in view of a recent judgment passed only weeks ago by another bench of the Apex Court (Justices Y.K. Sabharwal and D.M. Dharmadhikari) that opined that in the event of death of a patient from medical neglects, the level of 'negligence' in the therapy should be so high as could be described as "gross negligence" or "reckless" for a doctor to be held criminally liable under Section 304A of the Indian Penal Code (IPC).

The unusual development of a two-Judge Division bench of the Apex Court openly disagreeing with the views expressed by another two-Judge bench (Justices Sabharwal and Dharmadhikari) underscores the grave consequence of this matter that relates to every citizen of the country.

The Indian Medical Association (IMA) and other influential medical lobbies across the country erupted in ecstatic jubilation last month when the Division bench of Justices Sabharwal and Dharmadhikari declared that doctors cannot be put to the dock for "criminal" offense (under Section 304A IPC) even when a patient dies because of the doctor's "mere negligence" or an "error in judgment".

The new bench of Justices Pasayat and Thakker contradicts this view as these Judges observed that there is no room for considering virtual adjectives like "gross", "mere" or "reckless" negligence in the context of the Section 304A IPC. The Section 304A of the Indian Penal Code is simple and brief as it reads, "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".

Obviously, any death resulting from "rash" or "negligent" action may fall under the purview of the Section 304A of the Penal Code. The lawmakers never characterized the degree of the culpable "rash" or "negligent" act that may or may not result in an unintentional death. Indeed, the 304A Section of the Indian Penal Code does not cover the unintentional deaths from "medical negligence" alone. The Section 304A IPC is equally applicable for "negligent" deaths through any other mode of "rash" and "negligent" acts. Thus, a drunken driver running over and killing a pedestrian may also be charged under the same Section for causing death through his "rash" and "negligent" action.