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Test for Medical Negligence

The Supreme Court in the case of Jacob Mathew v/s State of Punjab Criminal Appeal No 144-145 of 2004 in its judgment of 5th August 2005 has decided test and guidelines which would apply to cases involving criminal prosecution of the doctors for medical negligence. The court held that for any act of negligence to be viewed as criminal negligence and, hence, inviting criminal prosecution, the negligence would have to be of a gross nature. Two tests would have to be fulfilled.

1.	The doctor did not possess the necessary skill required or that he was possessed of the necessary skill but does not exercise it with reasonable competence.
2.	The act committed ought to be such that no medical professional in the ordinary sense would have committed and being such an act that would result in imminent injury.

It is necessary that Statutory Rules, Executive Instructions and guidelines be formulated by the Government of India and State Government in conjunction with the Medical Council of India

A private complaint ought not to be entertained until the complainant produce prima facie evidence before the Court in the form of a credible opinion from another competent doctor support his charge of rash and negligent behaviour on the part of the doctor. Before initiating investigation the Investigating Officer must seek the opinion of a Government Doctor preferably in the same field of medicine supporting the charge of a rash and negligent act.

VOICE comments

In number of cases it has been seen that the consumer is not able to muster evidence or seek the opinion of a senior doctor to give evidence against his professional colleague. Thus the consumers are not able to prove the charge of deficiency in services on account of rash and negligent behaviour of a doctor, nursing staff or hospital. It is high time that the Government initiate steps to formulate guidelines as suggested by the Supreme Court in consultation with the concerned authorities.