Negligence-Torts–Medical Practitioner– Liability to pay damages-It does not Transcend into criminal liability as to make him liable – Section 338 of the Indian Penal Code, (1860).

In the instant case, a patient suffering from cancer was examined by the appellant, a renowned surgeon who advised an ‘Exploratory Laparotomy (Surgery)’, in order to ascertain whether the patient’s uterus could be removed in order to stop vaginal bleeding. The main allegation against the appellant was that he did not take personal care and attention by performing the operation himself. On the contrary, he did not ever bother to even remain present when another doctor started the surgical procedure and opened the abdomen. Moreover, when the other doctor, on opening of the abdomen, found that cancer was at a very advanced stage and it would not be possible to proceed because there was fluid and intestines were plastered, he called the appellant for advice. Even then the appellant did not examine the patient minutely. Instead, after seeing her from the entrance of the operating room, he advised him to close the abdomen. So such so, even after the formation of the fistula and the pathetic condition of the patient, the appellant never bothered to examine or look after her. It was thus alleged that the aforesaid acts of omission and commission amounted to professional misconduct as well as an offence punishable u/s. 338 of the I.P.C. Since there was no overt act on the part of the appellant, as the surgical procedure was performed by another doctor, the charge of abetment u/s. 109 of I.P.C. was also leveled against the appellant. Held, the decision of the appellant advising Exploratory Laparotomy was not an act of negligence, much less wanton negligence, and under the circumstances it was a plausible view which an expert like the appellant could have taken, keeping in view the deteriorating and worsening health of the patient. As a consequence, opening of the abdomen and performing the surgery cannot be treated as causing grievous hurt. It could have been only if the doctors would have faltered and acted in a rash and gross negligent manner in performing that procedure. At the same time, his act of omission, in not doing the surgery himself and remaining absent from the scene and neglecting the patient, even thereafter, when she was suffering the consequences of fistula, is an act of negligence and is definitely worthy of blame (though that is not the part of criminal charge). However, the omission is not of a kind which will give rise to criminal liability. No doubt, he did not do it himself, but it is not the case of the prosecution that another doctor did not do it deftly either. It is because of the condition of the patient, the surgery could not be completed, as on the opening of the abdomen, other complications were revealed. This would have happened in any case, irrespective of whether the abdomen was opened by another doctor or by the appellant himself. The appellant’s omission in not rendering complete and undivided legally owed duty to the patient and not performing the procedure himself has not made any difference. It was not the cause of the patient’s death which was undoubtedly because of the acute chronic cancer condition. The negligent conduct in the nature of omission of the appellant is not so gross as to entail criminal liability on the appellant u/s. 338 of the I.P.C. Thus, though the conduct of the appellant constituted not only professional misconduct for which adequate penalty has been meted out to him by the Medical Council, and the negligence on his part also amounts to actionable wrong in tort, it does not transcend into a criminal liability, and in no case makes him liable for offence u/s. 338, I.P.C. as the ingredients of that provision have not been satisfied.

If the patient has suffered because of negligent act/omission of the doctor, it undoubtedly gives the right to the patient to sue the doctor for damages. This would be a civil liability of the doctor under the law of tort/contract.