'Medical treatment: gross negligence can be penalised'

SC rules criminal charges require clear proof of gross misconduct

ISLAMABAD:

The Supreme Court has held that a doctor cannot be held criminally liable merely because a patient suffers an injury or dies during treatment, unless the prosecution establishes gross negligence warranting penal consequences.

In a six-page judgment authored by Justice Ishtiaq Ibrahim, the court explained the distinction between ordinary professional negligence and criminally culpable conduct while dismissing an appeal against the acquittal of doctors accused of medical negligence.

It held that criminal liability requires proof of a duty of care, a breach of that duty resulting in death, and gross negligence on the part of the medical professional.

"We would like to elaborate on the concept of negligence and how such negligence is to be treated in case of medical professionals. Negligence is either the omission to do something which a reasonable and prudent person would ordinarily do in the circumstances, or the commission of an act which such a person would refrain from doing," the ruling stated.

The case arose from the death of the petitioner's wife, who was taken to Shifa International Hospital in Islamabad after experiencing labour pain and underwent a procedure in the labour room, where she delivered twin girls.

The petitioner alleged that the doctors had administered spinal anaesthesia instead of an epidural injection, contrary to his request.

He maintained that his wife subsequently developed back pain, which worsened over time and eventually led to her death. The complaint was dismissed, and the Islamabad High Court later upheld the doctors' acquittal.

Hearing an appeal against the IHC ruling, a Supreme Court division bench headed by Justice Muhammad Hashim Kakar observed that negligence could attract legal liability only if three essential elements were established: a duty of care, a breach of that duty and damage resulting from the breach.

"We are of the view that for prosecution to establish that a death occurred due to medical negligence under provisions of section 319 Qatl-i-Khata by rash and negligent act the prosecution must prove (i) the existence of duty; (ii) a breach of the duty causing death and (iii) the breach of the duty must be characterised as gross negligence by that medical professional. The mere fact that injury or death has occurred during medical treatment cannot, in itself, substitute for proof of this heightened degree of negligence," the judgment said.

The court observed that the existence of an error or an undesirable outcome, by itself, did not establish negligence, as the alleged commission or omission must be connected with the injury sustained.

The judgment noted that a mere error of judgment, an accident or a simple lapse in care did not, without more, establish professional negligence.

"A medical practitioner cannot be held liable merely because another course of treatment was available or a more experienced practitioner might have adopted a different approach."

The court said the relevant question was whether the practitioner had acted in accordance with a practice accepted as proper by the medical profession at the time and exercised the degree of care and competence reasonably expected under the circumstances.

"Nor can liability be founded merely upon the failure to adopt extraordinary precautions simply because, in hindsight, they might have prevented the eventual harm."

"A medical professional may be found negligent where the requisite professional skill is lacking or where the skill possessed is not exercised with reasonable competence in the particular case.

"The applicable standard is that of an ordinarily competent practitioner exercising ordinary professional skill in the relevant field, rather than that of the most highly skilled or exceptionally experienced specialist."

The judgment said the law did not demand perfection from a medical practitioner, but only required the exercise of reasonable professional competence in discharging the duty owed to a patient.

Justice Ishtiaq Ibrahim further observed that it was equally important to distinguish negligence actionable under civil law from negligence attracting criminal liability.

"Conduct sufficient to establish civil negligence does not necessarily constitute a criminal offence as in numerous situations a case for civil liability will be made but criminal liability will not be made out."

The judgment said criminal liability required a substantially higher degree of negligence, characterised by grossness or a degree of recklessness serious enough to warrant penal consequences.