CRIMINAL NEGLIGENCE.
See also COMPLAINT.

13-16.1 Criminal negligence-Offence under section 304A, IPC-Degree of proof required-Nurse administered carbolic acid to a patient instead of carbonative mixture-Not guilty of criminal negligence-Simple lack of care not punish- able under section 304-A-[State v. DevakiAmma, 1971 ACJ 45 (Ker.-HC).]

13-16.2 Criminal negligence-Old patient of bronchial asthma-Physician gave coramine injection-Death of patient-Post mortem report showed that injection not the proximate cause of death-No negligence- There was no negligence on the part of the physician and there was no direct nexus between the death of the person and negligent act of the accused-Penal Code, 1860, section 304- A. [ Ghanshyamdas Bhagwanda.\: v. State of Madhya Pradesh, 1977 ACJ 182 (MP-HC)].

13-16.3 Criminal negligence-Surgery-Cardiac arrest-N o negligence- Death of a patient on the operation table due to cardiac arrest-Case against medical practitioner for causing death due to negligence-Post-mortem report stating cause of death being cardiac arrest as a result of surgical interference-No opinion expressed in Postmortem report as to whether surgical interference was the result of any negligence on the part of the doctor-No evidence that cardiac arrest had occurred due to the negligence of the doctor-Held: nothing had been shown that the doctor did not take sufficient care while performing preliminaries to the operation; in order to perform an operation surgical interference was necessary and if it had caused cardiac arrest, it cannot be attributed, in any manner, to the negligence of the doctor, mere carelessness is not sufficient for a conviction under section 304-A of Indian Penal Code; this section requires a mensrea or guilty mind and the rashness or negligence must be such as can fairly be described criminal. Criminal proceedings pending against the doctor quashed. [Dr. Ved Khuller v. State, 1988 ACJ 328 (J&K-HC).]

13-16.4 Criminal negligence-Drug reaction-Injection given after test dose- Patient died-Held no negligence-On 25.9.1979 the doctor in order to treat a patient gave her an injection S.P. which reacted and despite anti-reaction treatment, the patient died-Doctor had given a test dose before giving injection to the patient and there was no reaction-The post-mortem report stated that the cause of death as cardiac arrest due to shock but it could not positively be stated that death was caused due to reaction caused by injection when reaction was noted by the doctor she immediately gave a number of injections for anti-reaction treatment and also called her husband to join her in giving the treatment-Another doctor had admitted that the injections which were given for anti-reaction were proper injections for the purpose. Trial court held the doctor guilty of an offence punishable under section 304-A and awarded simple imprisonment for 7 days and fine of Rs. 1,000 as against it High Court held that the doctor was not rash or negligent-Section 304A IPC held not applicable. When test dose given before administering an injection and the deceased did not react to it, it cannot be said that the act of the doctor was rash and after giving a regular dose when reaction was noted and immediate treatment for anti-reaction had been seriously taken suggests that the doctor was not negligent-Whether no evidence by doctor as to the care she took can lead to the inference that the doctor was rash and negligent-Held: no. It is for the prosecution to establish the facts to constitute an offence. [State of Gujarat v. Dr. Maltiben Valjibhai Shah, 1994 ACJ 375 (Guj.-HC)]

13-16.5 Criminal negligence-Causing death by negligence-Prosecution under section 304, IPC-Maintainability-Delay in attending patient-After some altercation between wife of patient and doctor, doctor administering an injection and patient dies in another hospital-Chemical examination of viscera showing consumption of poison by deceased-No case that the doctor administered poison to patient-Criminal proceedings against him not maintainable and charge sheet under section 304A, IPC to be quashed as there is nothing to show that death caused by any act of the doctor- The allegations of the respondent No.2 are that when her husband was in a serious condition, he was taken to the hospital wherein the appellant- the doctor, was working as a medical practitioner and that the appellant did not attend to the patient immediately. On being insisted by her, the appellant became angry and there was exchange of words between them. The gravamen of the case is that the appellant administered an injection to the patient and the patient was taken to another hospital where he was pronounced dead.

The above allegations do not disclose, prima facie, a case of rash or negligent act on the part of the appellant so as to attract the penal provision under section 304A, Indian Penal Code. If there was delay on the part of the doctor to attend on the patient, that may at the worst be a case of civil negligence and not one of culpable negligence falling under the above section. That apart, the cause of death has now been disclosed from the report of the chemical examiner, as one of consuming poison. The viscera examined in the chemical laboratory showed that result. It is nobody's case that the appellant has administered poison to the patient. It is now apparently clear that death was not on account of anything, which the appellant did to the patient. It was primarily due to the poison being consumed by the deceased. Therefore, it cannot be said that death of the deceased was caused by any act done by the appellant. Charge sheet is liable to be quashed or else the appellant is likely to be subjected to unnecessary harassment for facing criminal prosecution. It is quashed without prejudice to the right of the legal representatives of the deceased to resort to any other action permissible under law. [Rakesh Ranjan Gupta v. State ofU.P. & another, 1999 ACJ 807 (SC)]

13-16.6 Criminal negligence-Anesthetist-Surgery-Accident case-Causing death by negligence-Prosecution for offence under s. 304-A, I.P .C.-Civil as well as criminal liability-Patient died of acute respiratory failure, a sequela to spinal anaesthesia administration-Anesthetist failing to check-up during pre- operative anaesthesia steps as to whether patient would withstand 3 ml. heavy local anesthesia drug sensorcaine given through spinal cord to patient suffering from multiple injuries, being an accident victim who had also sustained head injury- Only the anesthetist may be held criminally liable, not the doctors who performed operation as there was no proximate nexus between death and negligent act of the surgeons-However, all of them may be proceeded against for damages by invoking civil law on the basis of negligence attributed to them in handling the patient who died at the operation theatre-The reading of s. 304-A, I.P.C. would show that the following ingredients are required to be established to prove an offence under the said section:

(i) death of the person in question; (ii) accused caused such death; and (iii) such act of the accused was rash or negligent, although it did riot amount to culpable homicide. In criminal law, a very high degree of negligence is required to be proved. In civil suit, it is sufficient to prove neglect of duty by consideration of the probabilities of the case. But, in criminal law, it is necessary to prove beyond reasonable doubt the negligent act of the accused.

To impose criminal liability under section 304A, Indian Penal Code, it is necessary that the death would be direct result of a negligent act of the accused, and that act must be proximate and efficient cause without the intervention of another's negligence. It must be the causa causans and it is not enough that it may have the causa sine qua non. There must be direct nexus between the death of a person and negligent act of the accused.

The death of the person on the operation table by itself is not sufficient to prove negligence against the doctor. The criminality lies in running the risk of doing such an act with recklessness and indifference to the consequences. In other words, a doctor is not criminally responsible for the patient's death, unless his negligence or incompetence showed such disregard for life and safety as to amount to a crime against the State.

The opinion given by the doctors is that the death was due to lung shock and acute respiratory failure-a sequela to spinal anaesthesia administration. So, the cause of death is directly attributed to the act ofA-1-anaesthetist.

The part played by A-l, Dr. Parthasarathy, anesthetist by having failed to check-up during the pre-operative anaesthesia test as to whether the patient would withstand 3 mI. Local anesthesia drug which was administered through spinal cord to the patient, especially when he had sustained injuries both on the head and leg, may amount to criminal negligence which would warrant A-l facing the proceedings under section 304A, Indian Penal Code. But, such a criminal negligence cannot be attributed to the petitioner A-2 as well as A-3, though it is stated by the prosecution that both the doctors A-2 and A-3, who were responsible for the medical treatment of the patient, have not checked whether all the medical check-up formalities including anaesthesia test were properly performed by A-l before the operation.

The responsibility of those doctors A-2 and A-3, who were in-charge of operation and their failure to check-up the performance of the medical formalities through anaesthetist before commencing operation, might reflect negligence, which may attract civil law and certainly not criminal law. The allowing of this petition and quashing of the proceedings as against A-2 and A-3 would not preclude the first informant, father of the deceased, from approaching proper forum to claim damages from all the doctors (A-l to A-3) by invoking civil law on the basis of negligence attributed to these doctors in handling the patient who died at the operation theatre. [Dr. Lakshmanan Prakash v. State, 2001 ACJ 1204 (Mad.-HC)]

Foreign Case

13-16.7 Criminal negligence-Medical negligence-Accused gave an injection of a poisonous drug instead of a vaccine-Colour of the drug was quite different from that of the vaccine. Disregarded the giddiness complained by the children- Four of them died-Held: he was guilty of palpable negligence. [Public Prosecutor v. E. 0. Christian, 1971 ACJ 20 (AP-HC).]