M .M.S.BEDI,J. - (1.) Petitioners No.1 and 2 are running their respective Nursing Homes, namely Paul Nursing Home, at Main Bus Stand, Rajpura and Guru Nanak Hospital, (near LIC Building) Rajpura, District Patiala. They have been summoned as accused in a private complaint filed by respondent. The son of the complainant aged 18 yeas, on account to his illness was taken to petitioner No.1 in Paul Nursing Home for medication when the son of the complainant without any investigation was administered Glucose and some injections resulting in deterioration of the condition. Petitioner No.1 doctor without the consent of the complainant had taken the son of the complainant to the hospital of petitioner No.2 at Guru Nanak Hospital, Rajpura where the treatment of the son of the complainant was started without any investigation. The patient was administered Glucose besides some injections and he was kept for 7/8 hours in the hospital. Instead of referring the patient to better hospital in Chandigarh, they kept the complainant's son for around 7/8 hours and gave some medicines which, as per complainant was wrong treatment. Health condition of the son of the complainant deteriorated as such he was referred to INSCOL Hospital, Sector 34, Chandigarh in Ambulance, where also he was treated for some time but on account of no improvement having been seen, the son of the complainant was taken to PGI at about 5.45 p.m. The condition of the boy deteriorated on account of wrong medicines. The Doctors of Chandigarh Hospital watching the critical condition of the patient referred to PGI at about 5.45 p.m. in the evening. The complainant's claim that the petitioners had not given proper medicines and treatment and did not inform the complainant intentionally in time that he deserved to be treated in a better hospital and required better treatment in an institution.
(2.) THE petitioners have been summoned as accused. Through instant petition they have challenged the summoning order and launching of prosecution against them, inter -alia on the ground that in cases of medical negligence detailed guidelines have been laid down to protect the interest of doctors to save them from unwarranted malicious proceedings. In the case of Jacob Mathew Vs. State of Punjab and another, (2005) 6 SCC 1 and Martin F. D'souza Vs. Modh. Ishfaq, AIR 2009 SC 2049, it has been contended that without opinion of an expert, the prosecution of a Doctor on the ground of medical negligence is not warranted. I have heard learned counsel for the petitioners as well as counsel for the respondent and considered the ratio of the ruling in Jacob Mathew's case (supra). The ration of the judgment is reproduced hereunder for ready reference: - "48. We sum up our conclusions as under: - (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal and Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'. (2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. (3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India. (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. (6) The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304A of the IPC has to be read as qualified by the word 'grossly'. (7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. (8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence."
(3.) THERE is no dispute regarding the parameters laid down for trial of a professional for medical negligence. In the present case, the complainant has levelled two allegations i.e. without properly diagnosing the ailment, the son of the complainant had been, in routine administered glucose through drip and was administered injections and that inordinate delay was caused in referring the patient to PGI. No doubt, the simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When there are allegations of failure of having taken precautions what is required to be seen is whether these precautions are taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. The case of the complainant is not that the deceased was suffering from a diagnosed ailment for which a treatment which is not prescribed was adopted but it is a case where without any diagnosis a period of 8 to 10 hours was wasted in administering glucose or injections. The launching of prosecution by the complainant in the present case does not appear to be an abuse of the process of the Court but it is a case where the petitioners would be required to establish by producing their defence evidence if the ailment had been diagnosed and a treatment which could have been given by any other professional had been provided. It is not a case where the petitioners have been unnecessarily harassed by arresting them. In Bolam Vs. Friern Hospital Management Committee, (1957) 1 WLR 582, it was laid down that in case of medical negligence, the investigating officer should, before proceeding against the Doctor accused of rash or negligent act of 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 the Bolam test. In para 51 of the judgment in Jacob Mathew's case (supra), the Court had observed as follows: - "51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against." ;