Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Professional Misconduct Medical Negligence |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Penal Code, 1860 - s. 338 rlw. s. 109 - Prosecutionunder - -Of medical practitioner (surgeon). - Conviction bycourts below - Held: The omission on the part of the accusedto take care of the patient, in the facts of the case, can comewithin the realm of professional misconduct and civil liability(actionable wrong in tort) but not criminal liability - Theomission on the part of the accused was not the cause forpatient's death - Hence he cannot be held liable u/s. 338 asthe ingredients of s. 338 have not been satisfied - Tort -Actionable wrong - Professional Misconduct - MedicalNegligence.s. 338 - Offence under - Scope of - Held: An offence u/s. 338 is capable of being committed by omission - Medicalprofession is included in it.Liability - Omission liability - 'Omission to act' whetheramounts to 'act' - Held: Liability for an omission, requires alegal duty to act arising from either civil or criminal law - Amoral duty to act is not sufficient for invoking omission liability- Penal Code and in particular s. 338 /PC does explicitlyinclude the liability due to omissions.Medical Negligence:Medical negligence - Liability of the offending doctor -Negligent act/omission by a doctor gives rise to civil as wellas criminal liability - Distinction is required to be drawnbetween the two. Medical negligence - Civil liability - If the patient suffersbecause of negligent act/omission of doctor, the doctor isliable to pay damages - Torts.Medical negligence - Criminal liability - Of the offendingdoctor - Held: Criminal liability is to be answered in terms ofmens rea - The only state of mind which deserves punishmentis that which demonstrates an intention to cause harm orwhere there is deliberate willingness to subject others to therisk of harm.Medical negligence - Ascertainment of - Doctor-patientrelationship - Establishment of - Held: Formation of a doctor-patient relationship is integral to formation of a legalrelationship and consequent rights and duties, forming thebasis of liability of a medical practitioner- A contract betweendoctor and patient is always implied, except when writteninformed consent is obtained - When contractual relationshipis established, it gives foundation to legal obligation betweenthe doctor and patient - Once it is found that there is 'duty totreat' there would be corresponding 'duty to take care' -Whenever the principle of 'duty to take care' is founded on acontractual relationship it acquires a Legal character.Negligence:'Negligence' - Connotation of'Negligence' and 'Recklessness' - Difference between. |
Judge | Hon'ble Mr. Justice Arjan Kumar Sikri |
Neutral Citation | 2013 INSC 621 |
Petitioner | Dr. P.b. Desai |
Respondent | State Of Maharashtra & Anr. |
SCR | [2013] 11 S.C.R. 863 |
Judgement Date | 2013-09-13 |
Case Number | 1432 |
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