VOLUME 1 ISSUE 3. | Powered by. The Contempt of Courts Act, 1971; Right to Information; The Doctrine of Inequitable Conduct and Patent Unenforceability; Need for Witness Protection in Legal Spectrum Later on charges were amended and the Doctors were released on Bail. In order to … Kusum Sharma &OrsvsBatra Hospital &Medical Research (MANU/SC/0098/2010). An act to fall under this section, the death must be caused as a direct result or in consequence with act of the accused. Essentials of medical negligence are as follows: In the case of Jacob Mathew v. State of Punjab & Anr. Murder. So, section 304A cannot be used for dealing with cases of medical negligence. In the present scenario, there is a need of harsher punishment up to a minimum imprisonment of five years as suggested by Law Commission Report. Section 304A was added in the year 1870 by the Indian Penal Code … Section 304A is quite good addition by the policymakers in the Indian penal Code, 1860 as it separates the cases in which neither the intention nor the knowledge of the accused was there but the act causes death. But, for an offence to fall under the section (304 A), intention and knowledge of causing death[i] should not be there. [ii] Medical malpractice occurs when a health-care provider strays from the recognized “standard of care” in the treatment of a patient. Shankar Narayan Bhandolkar v. State of Maharashtra (AIR 2004 SC 1966). The wording of Section 304-A is ambiguous to the extent that ‘rash or negligent’ is qualified and understood very differently in the Medical Negligence … Then, the trial court was moved with the case which on the application of the accused discharged the doctor and gave relief to the doctor relying upon the judgment of the Supreme Court in Jacob Mathew vs. State of Punjab & Anr. Medical Negligence under Section 304A of IPC Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra – In this case, while dealing with Section 304A of IPC (death caused by negligence), the statement of law by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap,, was cited with approval: Medical negligence also known as medical malpractice is improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional. Under Criminal Negligence, Section 304A of the IPC, 1860 states that whoever causes the death of an individual by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine or with both. Although the Supreme Court has framed guidelines for a case of medical negligence to come until 304A[xviii], there needs to be a clear and concise provision for medical negligence; medical courts need to be established where the medical experts should be appointed to assist the judges. But the accused took him somewhere else and the person died. Here, the accused was held liable for ‘rash act’. The criminal process once initiated subjects the medical professional to serious embarrassment and … The Supreme Court, on several instances favoured a harder punishment[xvii] and at it has also asked the legislature to amend the provision. It was found that though his intention was not there, knowledge was there and he was not held liable under 304A (as prayed by his counsel, considering the act as rash act) but he was held liable under 304 (Part II). Section 304A Indian Penal Code titled Causing death by negligence. The Supreme Court held that although the driving was rash and negligent, the accused must have had knowledge that such kind of act of her could lead to death, only then she will be considered punishable under 304 Part II of IPC and not under Section 304A. Also, the cases of medical negligence are increasing in which a person is affected because of the negligent act of the doctor or the medical staff. A Doctor can be Criminally liable under Section 304A of the Indian Penal Code. Read Also: How Much Punishment?- MCI Formulates Sentencing Guidelines For Cases Of Medical Negligence, Garima joined Medical Dialogues in the year 2017 and is currently working as a Senior Editor. This offence is cognizable and warrant should ordinarily issue in the first instance. For an act to fall under this section there should be absence of both knowledge and intention. The principle of causa causans i.e, immediate cause or last link of the chain applies[vii]. When offence of medical negligence S 304A of IPC against doctor is not made out? It was his duty to take care of pedestrians while crossing pedestrian crossing. On one day, the accused placed naked wire carrying electricity at the entrance of washroom and the lady touched the wire and died. Criminal Medical Negligence Under Section 304(A) (By Bargavi Baradhwaj) Volume 1 Issue-3 (Bargavi Baradhwaj) Download. The present section talks of rash and negligent Act, and if the act does not fall within culpable homicide, it falls within the present provision. In the case of State of Rajasthan v. Hari Singh[xii], it was held that only driving at a faster rate do not make out the offence as under 304A. (2005) 6 SCC 1 case in which the bench had held that in criminal law medical professionals are placed on a pedestal different from ordinary mortals. Criminal negligence was defined in the case of Bala Chandra v. State of Maharastra[ii], where it was defined as complete or partial negligence or failure in exercising reasonable and proper care and precaution in protecting any particular person or public in general, which would have been essential duty of the accused keeping in mind the circumstances. Forensic Research & Criminology International Journal. There is a duty to take care of the other party; The other party suffered a legal injury due to breach of duty. Homicide i.e, killing of a human being by a human being is divided into two parts. Disciplinary action can be taken against him. She was advised caesarean by the doctor and underwent the same. New Delhi: Given the fact that doctors are rampantly accused of medical negligence and charged under IPC 304 A without proper scrutiny into the allegations made against them, the Supreme Court has made a landmark observation holding that the medical professionals should not be dragged into criminal proceedings unless negligence of a high order is shown. There must be absence of proper skill which the medical practitioner claimed to possess; or. In the case of State of Punjab v. Amrit Lal Jain[viii], Amrit Lal Jain, the principal of a school was held liable under 304A because of death of two teachers and sixteen students because of falling debris of adjacent Shyamlal’s building. After the birth of the newborn, the doctors felt that blood was required to be given to the patient. (2) Offences against Women and Children (17) Property Laws (4) Research Papers (1) Social Issues (69) Sports Law (2) Taxation Laws (12) Recent Posts. 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