Published by World Information Syndicate

69

MEDICO-LEGAL UPDATEPublished by World Information Syndicate

Editor-in-Chief : Dr. R.K. Sharma

Department of Forensic Medicine & Toxicology

All India Institute of Medical Sciences, New Delhi

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MEDICO-LEGAL UPDATE

www.medicolegalupdate.org

July - September 2005; Volume 5: Number 3

Contents

Page

Current Status of Medical Negligence in

India in view of supreme court Judgement

R.K. Sharma 71

Notes and News 87

Book Review 88

Suicide- An Overview

Arun M., Yoganarasimha K., Kar Nilamadhab,

Mohanty Manoj Kumar & Vikram Palimar, 89

Study of Lip-Prints as Aid for sex Determination

Vahanwala Sonal, Nayak C.D., & Pagare S.S. 93

Osteons as an Age determinant

Rai Balwant, Anand S.C & Dhattarwal S.K. 99

Instruction to Authors 101

Library Recommendation Form 102

Conference Calender 103

71

On August 2005, Supreme Court of India gavea landmark Judgement stating the interpretationof medical negligence in India. For years, doctorshave been unnecessarily dragged in litigationsas a result of frivolous complaints by patients ortheir relations. Doctors were arrested mere onfiling of complaints of medical negligence againstthem. They use to loose their status and glory inthe society as the news of their arrest use to comeon newspapers next day now since thisJudgement into force, doctors are really feelingrelief. Now no doctor can be arrested simply onfilling the complaint against him by any patientor relative of the patient. His arrest can only bethere if needed for furthering the investigationor for collecting evidence or investigating officerthink that doctor may run away to evade arrest.

The judgement has given direction forinvestigating officer how to proceed in suchcases. Before proceeding against doctor, theinvestigating officer should obtain anindependent and competent opinion preferablyfrom a doctor in government service qualifiedin that branch of medical practice who cannormally be expected to give an impartial andunbiased opinion The detailed judgement ingiven below.

SUPREME COURT JUDGEMENTIn the Supreme Court of India/criminal

Appellate jurisdictionCriminal Appeal Nos. 144-145 of 2004 Jacob Mathe appellant Versus State of Punjab and

Others............................... RespondentsJudgment: R C Lahoti, CJIAshok Kumar Sharma, the respondent No. 2

herein filed an FIR with police station, DivisionNo. 3, Ludhiana, whereupon an offence underSection 304A read with Section 34 of the IndianPenal Code (for short the “IPC”) was registered.

The gist of the information is that on 15.2.1995,the informant’s father, late Jiwan Lal Sharmawas admitted as a patient in a private ward ofCMC Hospital, Ludhiana. On 22.2.1995 at about11 p.m., Jiwan Lal felt difficulty in breathing.The complainant’s elder brother, Vijay Sharmawho was present in the room contacted the dutynurse, who in her turn called some doctor toattend to the patient. No doctor turned up forabout 20-25 minutes. Then, Dr. Jacob Mathew,the appellant before us and Dr Allen Joseph cameto the room of the patient. An O2 cylinder wasbrought and connected to the mouth of thepatient but the breathing problem increasedfurther. The patient tried to get up but themedical staff asked him to remain in the bed.The oxygen cylinder was found to be empty.There was no other gas cylinder available in theroom. Vijay Sharma went to the adjoining roomand brought gas cylinder therefrom. However,there was no arrangement to make the gascylinder functional and in-between, 5 to 7minutes were wasted, By this time, anotherdoctor came who declared that the patient wasdead. The latter part of the FIR states (as pertranslation in English as filed by thecomplainant):-

“... the death of my father occurred due tothe carelessness of doctors and nurses and nonavailability of oxygen cylinder. An emptycylinder was fixed on the mouth of my fatherdue to which his breathing totally stopped; hencemy father died. I sent the dead body of my fatherto my village for cremation and for lodging acomplaint I have come to you. Suitable actionbe done Sd/-As per statement the death of JiwanLal Sharma occurred due to carelessness ofdoctors and nurses concerned and due to use ofempty gas cylinder.”

On the above said report, an offence underSection 304A/34 IPC was registered andinvestigated. Challan was filed against the twodoctors.

Current Status of Medical Negligence inIndia in view of Supreme Court Judgement

R.K. SharmaAdditional Professor, Department of Forensic Medicine

All India Institute of Medical Sciences, New Delhi

R.K. Sharma/ Medico-Legal Update. July-September 2005, Vol.5, No.3

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The Judicial Magistrate First Class,Ludhiana framed charges under Section 304A,IPC against the two accused persons, bothdoctors. Both of them filed a revision in the Courtof Sessions judge submitting that there was noground for framing charges against them. Therevision was dismissed. The appellant filed apetition in the High Court under Section 482 ofthe Code of Criminal Procedure praying forquashing of the FIR and all the subsequentproceedings.

It was submitted before the High Court thatthere was no specific allegation of any act ofomission or commission against the accusedpersons in the entire plethora of documentscomprising the challan papers filed by the policeagainst them. The learned single Judge whoheard the petition formed an opinion that theplea raised by the appellant was available to beurged in defence at the trial and, therefore, acase for quashing the charge was not made out.Vide order dated 18.12.02, the High Courtdismissed the petition. An application forrecalling the above said order was moved whichtoo was dismissed on 24.1.2003. Feelingaggrieved by these two orders, the appellant hasfiled these appeals by special leave.

According to the appellant, the deceasedJiwan Lal was suffering from cancer in anadvanced stage and as per the informationavailable, he was, in fact, not being admitted byany hospital in the country because of him beinga case of cancer at terminal stage. He was onlyrequired to be kept at home and given propernursing, food, care and solace coupled withprayers. But as is apparent from the records, hissons are very influential persons occupyingimportant positions in Government. Theyrequested the hospital authorities that comewhat may, even on compassionate grounds,their father be admitted in the hospital forregulated medical treatment and propermanagement of diet. It was abundantly madeclear to the informant and his other relationswho had accompanied the deceased that thedisease was of such a nature and had attainedsuch gravity, that peace and solace could onlybe had at home. But the complainant prevailedover the doctors and hospital management andgot the deceased admitted as an in-patient.Nevertheless, the patient was treated withutmost care and caution and given all therequired medical assistance by the doctors andpara-medical staff. Every conceivable effort wasmade by all the attending staff comprising ofdoctors and nurses and other para-medicals togive appropriate medical treatment and the

whole staff danced attendance on the patientbut what was ordained to happen, did happen.The complainant and his relations, who weremisguided or were under mistaken belief as tothe facts, lodged police report against theaccused persons-wholly unwarranted anduncalled for.

The matter came up for hearing before aBench of two learned judges of this Court.Reliance was placed by the appellant on a recenttwo-judge bench decision of the Court in DrSuresh Gupta vs Govt. of NCT of Delhi and Anr.(2004) 6 SCC 422. The Bench hearing thisappeal doubted the correctness of the view takenin Dr Suresh Gupta’s case and vide order dated9.9.2004 expressed the opinion that the mattercalled for consideration by a Bench of threeJudges. This is how the case has come up forhearing before the Bench.

In Dr Suresh Gupta’s case, the patient, ayoung man with no history of any heart ailment,was subjected to an operation performed by DrSuresh Gupta for nasal deformity. The operationwas neither complicated nor serious. The patientdied. On investigation, the cause of death wasfound to be “not introducing a cuffedendotracheal tube of proper size so as to preventaspiration of blood from the wound in therespiratory passage.” The Bench formed anopinion that this act attributed to the doctor,even if accepted to be true, could be describedas an act of negligence as there was lack of duecare and precaution. But, the Court categoricallyheld “for this act of negligence he may beliable in trot, his carelessness or want of dueattention and skill cannot be described to beso reckless or grossly negligent as to make himcriminally liable.”

The referring Bench in its order dated 9.9.2004assigned two reasons for their disagreementwith the view taken in Dr Suresh Gupta’s casewhich are as under:- (1) Negligence orrecklessness being ‘gross’ is not a requirementof Section 304A IPC for fixing criminal liabilityon a doctor. Such an approach cannot becountenanced.

(2) Different standards cannot be applied todoctors and others. In all cases it has to be seenwhether the impugned act was rash ornegligent. By carrying out a separate treatmentfor doctors by introducing degree of rashnessor negligence, violence is being done to the plainand unambiguous language of Section 304A. Ifby adducing evidence it is proved that there wasno rashness or negligence involved, the trialcourt dealing with the matter, shall decide


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placed at a different pedestal for finding outwhether rashness or negligence was involved.

We have heard the learned counsel for theappellant, the respondent-State and therespondent complainant. As the question ofmedical negligence arose for consideration, wethought it fit to issue notice to Medical Councilof India to assist the Court at the time of hearingwhich it has done. In addition, a registeredsociety-’People for Better Treatment”, Kolkata,DMC, DELHI, MEDICAL ASSOCIATION andIMA sought for intervention at the hearing asthe issue arising for decision is of vitalsignificance for the medical profession. The toohave been heard. Mainly, the submissions madeby the learned counsel for the parties and theintervenors have centered around two issues: (1)Is there a difference in civil and criminal lawon the concept of negligence? and (II) whethera different standard is applicable for recordinga finding of negligence when a professional,in particular, a doctor, is to be held guilty ofnegligence?

With the awareness in the society and thepeople in general gathering consciousness abouttheir rights, actions for damages in tort are onthe increase. Not only civil suits are filed, theavailability of a forum for grievance redressalunder the consumer protection Act, 1986 havingjurisdiction to hear complaints againstprofessionals for ‘deficiency in service’, whichexpression is very widely defined in the Act, hasgiven rise to a large number of complaints againstprofessionals, in particular against doctors, beingfiled by the persons feeling aggrieved. Criminalcomplaints are being filed against doctorsalleging commission of offences punishableunder Section 304A or Sections 336/337/338 ofthe IPC alleging rashness or negligence on thepart of the doctors resulting in loss of life orinjury (of varying degree) to the patient. Thepresent case is one such example. The order ofreference has enabled us to examine the conceptof ‘negligence’, in particular ‘professionalnegligence’, and as to when and how it does giverise to an action under the criminal law. Wepropose to deal with the issues in the interests ofsetting the law.

NEGLIGENCE AS A TORTThe jurisprudential concept of negligence

defies any precise definition. Eminent jurists andleading judgments have assigned variousdefinitions to negligence. The concept as has beenacceptable to Indian jurisprudential thought iswell-stated in the Law of Torts, Ratanlal &Dhirajlal (Twenty-fourth Edition 21002, editedby Justice G.P. Singh). It is stated (at P. 441-442)-“Negligence is the breach of a duty caused bythe omission to do something which areasonable man, guided by thoseconsiderations which ordinarily regulate theconduct of human affairs would do, or doingsomething which a prudent and reasonableman would not do. Actionable negligenceconsists in the neglect of the use of ordinary careor skill towards a person to whom the defendantowes the duty of observing ordinary care andskill, by which neglect the plaintiff has sufferedinjury to his person or property. ............ Thedefinition involves three constituents ofnegligence; (1) A legal duty to exercise due careon the part of the party complained of towardsthe party complaining the former’s conductwithin the scope of the duty; (2) Breach of thesaid duty; and (3) consequential damage. Causeof action for negligence arises only when damageoccurs; for, damage is a necessary ingredientof this tort.”

According to Charlesworth & percy onNegligence (Tenth Edition, 2001), in currentforensic speech, negligence has three meanings.They are: (i) a state of mind, in which it isopposed to intention; (II) careless conduct’ and(iii) the breach of duty to take care that isimposed by either common or statute law. Allthree meanings are applicable in differentcircumstances but any one of them does notnecessarily exclude the other meanings (Para1.01). The essential components of negligence,as recognized, are three: “duty”, “breach” and“resulting damage”, that is to say:-1. The existence of a duty to take care, which isowed by the defendant to the complainant; 2.The failure to attain that standard of care,prescribed by the law, thereby committing abreach of such duty; and


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3. Damage, which is both causally connectedwith such breach and recognized by the law,has been suffered by the complainant (Para1.23).

If the claimant satisfies the court on theevidence that these there ingredients are madeout, the defendant should be held liable innegligence (Para 1.24).

NEGLIGENCE -AS A TORT AND AS ACRIME

The term ‘negligence’ is used for the purposeof fastening the defendant with liability underthe civil law and, at times, under the criminallaw, It is contended on behalf of the respondentsthat in both the jurisdictions, negligence isnegligence, and jurisprudentially no distinctioncan be drawn between negligence under civillaw and negligence under criminal law. Thesubmission so made cannot be countenanced inas much as it is based upon a total departurefrom the established terrain of thought runningever since the beginning of the emergence of theconcept of negligence up to the modern times.Generally speaking, it is the amount ofdamages incurred which is determinative ofthe extent of liability in tort; but in criminallaw it is not the amount of damages but theamount and degree of negligence that isdeterminative of liability. To fasten liability incriminal law, the degree of negligence has to behigher than that of negligence enough to fastenliability for damages in civil laws. The essentialingredient of mens rea cannot be excludedfrom consideration when the charge in acriminal court consists of criminal negligence.In R. Vs Lawrence, [1981] 1 AllER 974 (HL),Lord Diplock spoke in a Bench of five and theother Law Lords agreed with him. He retreatedhis opinion in R. Vs Caldwell 1981(1) AllER 961(HL) and dealt with the concept of recklessnessas constitution mens rea in criminal law. HisLordship warned against adopting the simplisticapproach to treating all problems of criminalliability as soluble by classifying the test ofliability as being “subjective” or “objective”, andsaid “Recklessness on the part of the doer of anact doses presuppose that there is something inthe circumstances that would have drawn theattention of an ordinary prudent individual tothe possibility that his act was capable of causing

the kind of serious harmful consequences thatthe section which creates the offence wasintended to prevent, and that the risk of thoseharmful consequences occurring was not soslight that an ordinary prudent individual wouldfeel justified in treating them as negligible. It isonly when this is so that the doer of the act isacting ‘recklessly’ if, before doing the act, heeither fails to give any thought to the possibilityof there being any such risk or, havingrecognized that there was such risk, henevertheless goes on to do it.”

The moral capability of recklessness is notlocated in a desire to cause harm. It resides inthe proximity of the reckless state of mind to thestate of mind present when there is an intentionto cause harm. There is, in other words, adisregard for the possible consequences. Theconsequences entailed in the risk may not bewanted, and indeed the actor may hope thatthey do not occur, but this hope nevertheless failto inhibit the taking of the risk. Certain types ofviolation, called optimizing violations, may bemotivated by thrill-seeking. These are clearlyreckless.

In order to hold the existence of criminalrashness or criminal negligence it shall have tobe found out that the rashness was of such adegree that injury was most likely imminent. Theelement of criminality is introduced by theaccused having run the risk of doing such anact with recklessness and indifferent to theconsequences. Lord Atkin in his speech inAndrews vs Director of public Prosecutions,[1937] A.C.576, stated, “simple lack of care-toconstitute civil liability is not enough; forpurposes of the criminal law there are degreesof negligence, and a very high degree ofnegligence is required to be proved before thefelony is established.” Thus, a clear distinctionexists between “simple lack of care” incurringcivil liability and “very high degree ofnegligence” which is required in criminalcases. Lord Porter said in his speech in the samecase- A higher degree of negligence has alwaysbeen demanded in order to establish a criminaloffence than is sufficient to create civil liability(Charlesworth & Percy, Ibid, para 1.13).


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The fore-quoted statement of law in Andrewshas been noted with approval by this Court inSyad Akbar vs State of karnataka (1980) 1 SEC30. The Supreme Court has dealt with andpointed out with reasons the distinction betweennegligence in civil law and in criminal law. TheirLordships have opined that there is a markeddifference as to the effect of evidence, viz. theproof, in civil and criminal proceedings. In civilproceedings, a mere preponderance ofprobability is sufficient, and the defendant is notnecessarily entitled to the benefits of everyreasonable about’ but in criminal proceedings,the persuasion of guilt must amount to such amoral certainty as convinces the mind of theCourt, as a reasonable man, beyond allreasonable doubt. Where negligence is anessential ingredient of the offence, thenegligence to be established by the prosecutionmust be culpable or gross and not thenegligence merely based upon an error ofjudgment.

Law laid down by Straight, J. In the case Regvs Idu Beg (1881) 3All. 776, has been good incases noticed in Bhalchandra Waman Pathe vsState of Maharashtra 1968 Mh. L. J. 432-a three-Judge bench decision of this Court. It has beenheld that while negligence is an omission todo something which a reasonable man, guidedupon those considerations which ordinarilyregulate the conduct of human affairs, woulddo, or doing something which a prudent andreasonable man would not do; criminalnegligence is the gross and culpable neglect offailure to exercise that reasonable and propercare and precaution to guard against injuryeither to the public generally or to an individualin particular, which having regard to all thecircumstances out of which the charge hasarisen, it was the imperative duty of the accusedperson to have adopted.

In our opinion, the factor of grossness ordegree dose assume significance while drawingdistinction in negligence actionable in tort andnegligence punishable as a crime. To be latter,the negligence has to be gross or of a very highdegree.

NEGLIGENCE BY PROFESSIONALSIn the law of negligence, professionals such

as lawyers, doctors, architects and others areincluded in the category of persons professingsome special skill or skilled persons generally.Any task which is required to be performed witha special skill would generally be admitted orundertaken to be performed only if the personpossesses the requisite skill for performing thattask. Any reasonable man entering into aprofession which requires a particular level oflearning to be called a professional of thatbranch, impliedly assures the person dealingwith him that the skill which he professes topossess shall be exercise and exercised withreasonable degree of care and caution. He dosenot assure his client of the result. A lawyer doesnot tell his client that the client shall win thecase in all circumstances. A physician would notassure the patient of full recovery in every case.A surgeon cannot and dose not guarantee thatthe result of surgery would invariably bebeneficial, much less to the extent of 100% forthe person operated on. The only assurancewhich such a professional can give byimplication is that he is possessed of the requisiteskill in that branch of profession which he ispracticing and while undertaking theperformance of the task entrusted to him hewould be exercising his-skill with reasonablecompetence. This is all what the personapproaching the professional can expect. Judgedby his standard, a professional may be held liablefor negligence on one of two findings: either hewas not possessed of the requisite skill which heprofessed to have possessed, or, he did notexercise, with reasonable competence in thegiven case, the skill which he did possess. Thestandard to be applied for judging, whether theperson charged has been negligent or not, wouldbe that of an ordinary competent personexercising ordinary skill in that profession. It isnot necessary for every professional to possessthe highest level of expertise in that branch whichhe practices. Practices. In Michael Hyde andAssociates vs J.D. Williams & Co. Ltd., [2001]P.N.L.R. 233, CA, Sedley L.J. said that where aprofession embraces a range of views as to whatis an acceptable standard of conduct, thecompetence of the defendant is to be judged bythe lowest standard that would be regarded asacceptable (Charlesworth & Percy, ibid, Para8.03).


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Oft quoted passage defining negligence byprofessionals, generally and not necessarilyconfined to doctors, is to be found in the opinionof Mc Nair J. in Bolam vs Friern HospitalManagement Committee, [1957] 1 W.L.R. 582,586 in the following words:

“Where you get a situation which involves theuse of some special skill or competence, then thetest as to whether there has been negligence ornot is not the test of the man on the top of aClapham omnibus, because he has not got thisspecial skill. The test is the standard of theordinary skilled man exercising and professingto have that special skill. A man need notpossess the highest expert skill; it is wellestablished law that it is sufficient if heexercises the ordinary skill of an ordinarycompetent man exercising that particular art”(Charlesworth & Percy, Ibid, Para 8.02).

The water of Bolam test has ever since flownand passed under several bridges, having beencited and dealt with in several Judicialpronouncements, one after the other and hascontinued to be well received by every shore ithas touched as neat, clean and well-condensedone. After a review of various authoritiesbringham L.J.in his speech in Eckerslev vsBinnle, [1988] 18 Con. L.R.1, 79 summarised theBolam test in the following words:

“From this general statement it follows that aprofessional man should command the corpusof knowledge which forms part of theprofessional equipment of the ordinary memberof his profession. He should not lag being otherordinary assiduous and intelligent members ofhis profession in knowledge of new advances,discoveries and development in his field. Heshould have such an awareness as an ordinarilycompetent practitioner would have of thedeficiencies in his knowledge and the limitationsof his skill. He should be alert to the hazardsand risks in any professional task he undertakesto the extent that other ordinarily competentmembers of there profession would be alert Hemust bring to any professional task heundertakes no less expertise, skill and care thanother ordinarily competent members of hisprofession would bring, but need bring no more.The standard is that of the reasonable average.The law does not require of a professional

man that he be a paragon combining thequalities of poly math and prophet”(Charlesworh &Percy, Ibid, Para 8.04). Thedegree of skill and care required by a medicalpractitioner is so stated in Halsbury’s Laws ofEngland (Fourth edition, Vol. 30, Para 35):-

“The practitioner must bring to his task areasonable degree of skill and knowledge, andmust exercise a reasonable degree of care.Neither the very highest nor a very low degreeof care and competence, judged in the light ofthe particular circumstances of each case, is whatthe law requires, and a person is not liable innegligence because someone else of greaterskill and knowledge would have prescribeddifferent treatment or operated in a differentway; nor is he guilty of negligence if he has actedin accordance with a practice accepted as properby a responsible body of medical men skilled inthat particular art, even thought a body ofadverse opinion also existed among medicalmen.

Deviation from normal practice is notnecessarily evidence of negligence. To establishliability on that basis it must be shown (1) thatthere is a usual and normal practice; (2) that thedefendant has not adopted it; and (3) that thecourse in fact adopted is one no professionalman of ordinary skill would have taken had hebeen acting with ordinary care.”

Above said three tests have also been statedas determinative of negligence in professionalpractice by Charlesworth & Percy in theircelebrated work on Negligence (Ibid, para 8.110).

In the opinion of Lord Denning, as expressedin Hucks vs Cole, [1968] 118 New LJ 469, amedical practitioner was not to be held liablesimply because things went wrong frommischance or misadventure or through an errorof judgment in choosing one reasonable courseof treatment in preference of another. Amedical practitioner would be liable only wherehis conduct fell below that of the standards of areasonably competent practitioner in his field.

The decision of House of Lords in Maynard vsWest Midlands Regional Health authority,[1985] 1 AllER 635 (HL) by a Bench consistingof five Law Lords was accepted as having settledthe law on the point by holding that it is not


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enough to show that there is a body of competentprofessional opinion which considers thatdecision of the defendant professional was awrong decision, if there also exists a body ofprofessional opinion, equally competent, whichsupport the decision as reasonable in thecircumstances. It is not enough to show thatsubsequent events show that the operation neednever have been performed, if at the time thedecision to operate was taken, it was reasonable,in the sense that a responsible body of medicalopinion would have accepted it as proper. LordScarman who recorded the leading speech withwhich other four Lords agreed quoted thefollowing words of Lord President (Clyde) inHunter vs Hanley 1955 SLT 213 at 217, observingthat the words cannot be bettered - “In the realmof diagnosis and treatment there is ample scopefor genuine difference of opinion and one manclearly is not negligent merely because hisconclusion differs form that of otherprofessional men. The true test for establishingnegligence in diagnosis or treatment on the partof a doctor is whether he has been proved to beguilty of such failure as no doctor of ordinaryskill would be guilty of if acting with ordinarycare ...”.Lard Scarman added- “a doctor whoprofesses to exercise a special skill must exercisethe ordinary skill of his specialty. Differences ofopinion and practice exist, and will always exist,in the medical as in other professions. There isseldom any one answer exclusive of all others toproblems of professional judgment. A court mayprefer one body of opinion to the other, but thatis no basis for a conclusion of negligence,” HisLordship further added “that a judge’s‘preference’ for one body of distinguishedprofessional opinion to another alsoprofessionally distinguished is not sufficient toestablish negligence in a practitioner whoseactions have received the seal of approval ofthose whose opinions, truthfully expressed,honestly held, were not preferred.”

The classical statement of law is Bolam’s caseshas been widely accepted as decisive of thestandard of care required both of professionalmen generally and medical practitioners inparticular, It has been invariably cited withapproval before Courts in India and applied toas touchstone to test the pleas of medicalnegligence. In tort, it is enough for the defendant

to show that the standard of care and the skillattained was that of the ordinary competentmedical practitioner exercising an ordinarydegree of professional skill. The fact that adefendant charged with negligence acted inaccord with the general and approved practiceis enough to clear him of the charge. Two thingsare pertinent to be noted. Firstly, the standardof care, when assessing the practice as adopted,is judged in the light of knowledge available atthe time (of the incident), and not at the date oftrial. Secondly, when the charge of negligencearises out of failure to use some particularequipment, the charge would fail if theequipment was not generally available at thatpoint of time on which it is suggested as shouldhave been used.

A mere deviation from normal professionalpractice is not necessarily evidence ofnegligence. Let it also be noted that a mereaccident is not evidence of negligence. So alsoan error of judgment of the part of a professionalis not negligence per se. Higher the acuteness inemergency and higher the complication, moreare the chances of error of judgement. At times,the professional is confronted with making achoice between the devil and the deep sea andhas to choose the lesser evil. The medicalprofessional is often called upon to adopt aprocedure which involves higher element of risk,but which he honestly believes as providinggreater chances of success for the patient ratherthan a procedure involving lesser risk but higherchances of failure. Which course is moreappropriate to follow, would depend on the factsand circumstances of a given case. The usualpractice prevalent nowadays is to obtain theconsent of the patient or of the person inchargeof the patient if the patient is not be in a positionto give consent before adopting a givenprocedure. So long as it can be found that theprocedure which was in fact adopted was onewhich was acceptable to medical science ason that date, the medical practitioner cannotbe held negligent merely because he chose tofollow one procedure & not another and theresult was a failure.

No sensible professional would intentionallycommit an act of omission may cost him dear inhis career. Even in civil jurisdiction, the ruleof res ipsa loquitur is not of universal


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application and has to be applied with extremecare and caution to the cases of professionalnegligence and in particular that of the doctors.Else it would be counter productive. Simplybecause a patient has not favorably respondedto a treatment given by a physician or a surgeryhas failed, the doctor cannot be held liable perse by applying the doctrine of res ipse loquitur.

Res ipsa loquitur is a rule of evidence which inreality belongs to the law of torts. Inference asto negligence may be drawn from provedcircumstances by applying the rule if the causeof the accident is unknown and no reasonableexplanation as to the cause is coming forth fromthe defendant. In criminal proceedings, theburden of proving negligence as an essentialingredient of the offence lies on theprosecution. Such ingredient cannot be said tohave been proved or made out by resorting tothe said rule (See Syad kabar vs State ofKarnataka (1980) 1 SCC30). Incidentally, it maybe noted that in Krishnan and Anr. Vs State ofKerala (1996) 10 SCC 508 the Court hasobserved that there may be a case where theproved facts would thems elves speak of sharingof common intention and while making suchobservation one of the learned judgesconstituting the Bench has in his concurringopinion merely stated “resipsa loquitur” .Nowhere it has been stated that the rule hasapplicability in a criminal case and an inferenceas to an essential ingredient of an offence can befound proved by resorting to the said rule. Inour opinion, a case under Section 304AIPCcannot be decided solely by applying the rule orres ipsa loquitur.

A medical practitioner faced with anemergency ordinarily tries his best to redeem thepatient out of his suffering. He dose not gainanything by acting with negligence or byomitting to do an act. Obviously, therefore, itwill be for the complainant to clearly maker outa case of negligence before a medical practitioneris charge with or proceeded against criminally.A surgeon with shaky hands under fear of legalaction cannot perform a successful operation anda quivering physician cannot administer the end-dose of medicine to his patient.

If the hands be trembling with the danglingfear of facing a criminal prosecution in the event

of failure for whatever reason-whetherattributable to himself or not, neither a surgeoncan successfully wield his life-saving scalper toperform a essential surgery, nor can a physiciansuccessfully administer the life-saving dose ofmedicine.. Discretion being better part of valour,a medical professional would feel better advisedto leave a terminal patient to his own fate in thecase of emergency where the chance of successmay be 10% (or so), rather than taking the riskof making a last ditch effort towards saving thesubject and facing a criminal prosecution if hiseffort fails. Such timidity forced upon a doctorwould be a disservice to the society.

The purpose of holding a professional liablefor his act or omission, if negligent, is to makethe life safer and to eliminate the possibility ofrecurrence of negligence in future. Human bodyand medical science-both are too complex to beeasily understood. To hold in favour of existenceof negligence, associate with the action orinaction of a medical professional, requires anin-depth understanding of the working of aprofessional as also the nature of the job and oferrors committed by chance, which do notnecessarily involve the element of culpability.

The subject of negligence in the context ofmedical profession necessarily calls for treatmentwith a difference. Several relevant considerationsin this regard are found mentioned by AlanMerry and Alexander McCall Smith in theirwork “Errors, Medicine and the Law”(Cambridge University press, 2001). There is amarked tendency to look for a human actor toblame for an untoward event a tendency whichis closely liked with the desire to punish. Thingshave gone wrong and, therefore, somebody mustbe found to answer for it. To draw a distinctionbetween the blameworthy and the blameless, thenotion of mensrea has to be elaboratelyunderstood. An empirical study would revealthat the background to a mishap is frequentlyfar more complex than may generally beassumed. It can be demonstrated that actualblame for the outcome has to be attributed withtreat caution. For a medical accident or failure,the responsibility may lie with the medicalpractitioner and equally it may not. Theinadequacies of the system, the specificcircumstances of the case, the nature of human


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psychology itself and sheer chance may havecombined to produce a result in which thedoctor’s contribution is either relatively orcompletely blameless. Human body and itsworking is nothing less than a highly complexmachine. Coupled with the complexities ofmedical science, the scope for misimpressions,misgivings and misplaced all nations against theoperator i.e. the doctor, cannot be ruled out. Onemay have notions of best or ideal practice whichare different from the reality of how medicalpractice is carried on or how in real life thedoctor functions. The factors of pressing needand limited resources cannot be ruled out fromconsideration. Dealing with a case of medicalnegligence needs a deeper understanding of thepractical side of medicine.

At least three weighty considerations can bepointed out which any from trying the issue ofmedical negligence in any jurisdiction must keepin mind. These are: (i) that legal and disciplinaryprocedures should be properly founded on firm,moral and scientific grounds; (ii) that patientswill be better served if the real causes of harmare properly identified and appropriately actedupon; and (iii) that many incidents involve acontribution from more than one person, andthe tendency is to blame the last identifiableelement in the chain of causation-the personholding the ‘smoking gun’.

Accident during the course of medical orsurgical treatment has wider meaning.Ordinarily, an accident means an unintendedand unforeseen injurious occurrence;something that does not occur in the usualcourse of events or that could not bereasonably anticipated ( See, Black’s LawDictionary, 7th Editions). Care has to be takento see that the result of an accident which isexculpatory may not persuade the human mindto confuse it with the consequence of negligence.

MEDICAL PROFESSIONALS INCRIMINAL LAW

The criminal law has invariably placed themedical professionals on a pedestal differentfrom ordinary mortals. The Indian Penal Codeenacted as far back as in the Year 1860 sets outa few vocal examples. Section 88 in the Chapteron general Exceptions provides exemption for

acts not intended to cause death, done byconsent in good faith for person’s benefit.Section 92 provides for exemption forexemption for acts done in good faith for thebenefit of a person without his consent thoughthe acts cause harm to a person and that personhas not consented to suffer such harm. Thereare four exceptions listed in the Section which isnot necessary in this context to deal with. Section93 saves from criminality certaincommunications made in good faith. To theseprovisions are appended the followingillustrations:-

Section 88: A, surgeon, knowing that aparticular operation is likely to cause the deathof Z, who suffers under a painful complaint, butnot intending to cause Z’s death and intendingin good faith, Z’s benefit, performs thatoperation on Z, with Z’s consent. A hascommitted no offence.

Section 92: Z is thrown from his horse, and isinsensible. A a surgeon, finds that Z requires tobe trepanned. A, not intending Z’s death, but ingood faith, for Z’s benefit, performs the trepanbefore Z recovers his power of judging forhimself. A has committed no offence.

A, a surgeon, sees a child suffer an accidentwhich is likely to prove fatal unless an operationbe immediately performed. There is no time toapply to the child’s guardian. A performs theoperation in spite of the entreaties of the child,intending, in food faith, the child’s benefit. Acommitted no offence.

Sections 93: A, a surgeon, in good faith,communicates to a patient his opinion that hecannot live. The patient dies in consequence ofthe shock. A has committed no offence, thoughhe knew it to be likely that the communicationmight cause the patient’s death.

It is interesting to note what Lord Macaulayhad himself to say about Indian Penal code. Weare inclined to quote a few excerpts from hisspeech to the extent relevant for our purposefrom “Speeches and Poems with the Report andNotes on the Indian Penal Code” by LordMacaulay (Houghton, Mifflin and Company,Published in 1874).

Under the provisions of our Code, this casewould be very differently dealt with according


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to circumstances, If A, kills Z, by administeringabortives to her, with the knowledge that thoseabortives are likely to cause her death, he is guiltyof voluntary culpable homicide, which will bevoluntary culpable homicide by consent, if Z,agreed to run the risk, and murder if Z did notso agree. If A causes miscarriage to Z. notintending to cause Z’s death, nor thinking itlikely that he shall cause Z’s death, but so rashlyor negligently as to cause her death, A. is guiltyof culpable homicide not voluntary, and will beliable to the punishment provided for the causingof miscarriage, increased by imprisonment for aterm not exceeding two years. Lastly, if A. tooksuch precautions that there was no reasonableprobability that Z’s death would be caused, andif the medicine were rendered deadly by someaccident which no human sagacity could haveforeseen, or by some peculiarity in Z.’sconstitution such as here was no groundwhatever to expect, A. Will be liable to nopunishment whatever on account of her death,but will of course be liable to the punishmentprovided for causing miscarriage. It May beproper for ;us to offer some arguments in defenceof this part of the Code.

“It will be admitted that when an act is onitself innocent, to punish the person who does itbecause of bad consequences, which no humanwisdom could have foreseen, have followedfrom it, would be in the highest degree barbarousand absurd” (P. 419).

“To punish as a murderer every man who,while committing a heinous offence, causesdeath by pure misadventure, is a cause whichevidently adds nothing to the security of humanlife. No man can so conduct himself as to makeit absolutely certain that he shall not be sounfortunate as to cause the death of a fellow -creature. The utmost that he can do is to abstainfrom every thing which is at all likely to causedeath. No fear of punishment can make him domore than this; and therefore, to punish a manwho has done this can add nothing to thesecurity of human life. The only good effectwhich such punishment can produce will be todeter people from committing any of thoseoffences which turn into murder what are inthemselves mere accidents. It is in fact anaddition to the punishment of those offences,and it is an addition made in the very worst way”(P.421).

“When a person engaged in the commissionof an offence causes death by rashness ornegligence, but without either intending to causedeath, or thinking it likely that he shall causedeath, we propose that he shall be liable to thepunishment of the offence which he wasengaged in committing, additionally added tothe ordinary punishment of involuntary culpablehomicide.

“The arguments and illustrations which wehave employed for the purpose of showing thatthe involuntary causing of death, without eitherrashness or negligence, ought, under nocircumstances, to be punished at all, will, withsome modifications, which will readily suggestthemselves, serve to show that the involuntarycausing of death by rashness or negligence,though always punishable, ought, under nocircumstances to be punished as murder” (P.422).

The following statement of law on criminalnegligence by reference to surgeons, doctors,etc. and unskillful treatment contained inRoscoe’s Low of Evidence (Fifteenth Edition) isclassic:

“Where a person, acting as a medical man, &c., whether licensed or unlicensed, is so negligentin his treatment of a patient that death results,it is manslaughter if the negligence was so greatas to amount to a crime, and whether or notthere was such a degree of negligence is aquestion in each case for the jury. “In explainingto juries the test which they should apply todetermine whether the negligence in theparticular case amounted or did not amount toa crime, judges have used many patients, suchas culpable’, ‘gross’, ‘wicked’, ‘clear’,‘complete’. But whatever epithet be used andwhether an epithet be used or not, in order toestablish criminal liability the facts must be suchthat, in the opinion of the jury, the negligence ofthe accused went beyond a mere matter ofcompensation between subjects and showedsuch disregard for the life and safety of other asto amount to a crime against the state andconduct deserving punishment” (P. 848-849).

“Whether he be licensed or unlicensed, if hedisplays gross ignorance, or gross inattention,or gross rashness, in his treatment, he iscriminally responsible. Where a person who,


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though not educated and an accoucheur, hadbeen in the habit of acting as a man-midwife,and had unskillfully treated a woman who diedin childbirth, was indicted for the murder, L.Ellenborough said that there was no evidenceof murder, but the jury might convict of man-slaughter. “To substantiate that charge, theprisoner must have been guilty of criminalmisconduct, arising either from the grossestignorance or the [most?] criminal inattention.One or other of these is necessary to make himguilty of that criminal negligence and misconductwhich is essential to make out a case ofmanslaughter” (P. 849).

A review of Indian decisions on criminalnegligence

We are inclined to, and we mist - as dutybound, take note of some of the relevantdecisions of the Privy council and of this Court.We would like to preface this discussion withthe low laid down by the Privy Council in JohnOni Akerele vs The King AIR 1943 PC 72. Aduly qualified medical practitioner gave to hispatient the injection of Sobita which consistedof sodium bismuth tartrate as given in the BritishPharmacopoea. However, what wasadministered was an overdose of Sobita. Thepatient died. The doctor was accused ofmanslaughter, reckless and negligent act. He wasconvicted. The matter reached in appeal beforethe House of Lords. Their Lordships quashed theconviction. On a review of judicial opinion andan illuminating discussion on the points whichare also relevant before us, what their Lordshipshave held can be summed up as under:

1. That a doctor is not criminally responsiblefor a patient’s death unless his negligence orincompetence went beyond a mere matter ofcompensation between subjects and showedsuch disregard for life and safety of others asto amount to a crime against the state.

2. That the degree of negligence required isthat it should be gross, and that neither a jurynor a court can transform negligence of a lesserdegree into gross negligence merely by giving itthat appellation.... There is a difference in kindbetween the negligence which gives a right tocompensation and the negligence which is acrime.

3. It is impossible to define culpable orcriminal negligence, and it is not possible tomake the distinction between actionablenegligence and criminal negligence intelligible,except by means of illustrations drawn fromactual judicial opinion...........

The most favorable view of the conduct of anaccused medical man had to be taken, “for itwould be most fatal to the efficiency of themedical profession if no one could administermedicine without a halter round his neck.”

Their Lordships refused to accept the viewthat criminal negligence was proved merelybecause a number of persons were made gravelyill after receiving an injection of Sobita from theappellant coupled with a finding that a highdegree of care was not exercised. Their lordshipsalso refused to agree with the thought thatmerely because too strong a mixture wasdispensed once and a number of persons weremade gravely ill, a criminal degree of negligencewas proved.

The question of degree has always beenconsidered as relevant to a distinction betweennegligence in civil law and negligence in criminallaw. In Kurban Hussein MohamedalliRangawalla vs State of Maharashtra (1965) 2SCR 622, while dealing with Section 304 A ofIPC, the following statement of law by Sirlawrence Jenkins in Emperor vs OmkarRampratap 4 Bom LR 679, was cited withapproval:-

“To impose criminal liability under Section304 A, Indian Penal Code, it is necessary thatthe death should have been the direct resultof a rash and negligent act of the accused, andthat act must be the proximate and efficient causewithout the intervention of another’s negligence.It mist be the causa causans; it is not enough thatit may have been the causa sina qua non.”

K.N.Wanchool, J. (as he then was), speakingfor the Court, observed that the above said viewof the law has been generally followed by HighCourts in India and was the correct view to takeof the meaning of Section 304A. The same viewhas been reiterated in Kishan Chand & Anr. vsthe State of Haryana (1970) 3 SCC 904.

In Juggankhan vs The State of Madhyapradesh (1965) 1 SCR 14, the accused, a


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registered Homeopath, administered 24 dropsof stramonium and a leaf of dhatura to thepatient suffering from guinea worm. Theaccused had not studied the effect of suchsubstances being administered to a humanbeing. The poisonous contents of the leaf ofdhatura, were not satisfactorily established bythe prosecution. The Court exonerated theaccused of the charge under Section 302 IPC.However, on a finding that stramonium anddhatura leaves are poisonous and in no systemof medicine, except perhaps Ayurvedic system,the dhatura leaf is given as cure for guinea worm,the act of the accused who prescribed poisonousmaterial without studying their probable effectwas held to be a rash and negligent act. It wouldbe seen that the profession of a Homeopathwhich the accused claimed to profess did notpermit use of the substance administered to thepatient.

The accused had no knowledge of the effectof such substance being administered and yethe did so. In this background, the inference ofthe accused being guilty of rash and negligentact was drawn against him. In our opinion, theprinciple which emerges in that a doctor whoadministers a medicine known to or used in aparticular branch of medical professionimpliedly declares that the has knowledge ofthat branch of science and if he does not, infact, possess that knowledge, he is prima facieacting with rashness or negligence.

Dr Laxman balkrishna Joshi vs. Dr TrimbakBapu Godbole and Anr. (1969)1 SCR 206 was acase under Fatal Accidents Act, 1855. It dosenot make a reference to any other decided case.The duties which a doctor owes to his patientscame up for consideration. The Court held thata person who holds himself out ready to givemedical advice and treatment impliedlyundertakes that he is possessed of skill andknowledge for that purpose. Such a personwhen consulted by a patient owes him certainduties, viz., a duty of care in deciding whetherto undertake the case, a duty of care in decidingwhat treatment to be given or a duty of care inthe administration of that treatment. A breachof any of those duties gives a right of action fornegligence to the patient. The practitioner mistbring to his task a reasonable degree of skill and

knowledge and must exercise a reasonabledegree of care. Neither the very highest nor avery low degree of care and competence judgein the light of the particular circumstances ofeach case is what the law requires. The doctorno doubt has a discretion in choosing treatmentwhich he proposes to give to the patient andsuch discretion is relatively ampler in cases ofemergency. In this case, the death of patient wascaused due to shock resulting from reduction ofthe fracture attempted by doctor without takingthe elementary caution of giving anesthetic tothe patient. The doctor was held guilty ofnegligence and liability for damages in civil law.We hasten to add that criminal negligence orliability under criminal law was not an issuebefore the Court- as it did not arise and hencewas not considered.

In the year 1996, there are 3 reported decisionsavailable. Indian Medical Association vs V.P.Shantha and Ors. (1995) 6 SCC 651 is a three-Judge Bench decision. The principal issue whicharose for decision by the Court was whether amedical practitioner renders ‘service’ and canbe proceeded against for ‘deficiency in service’before a forum under the Consumer protectionAct, 1986. The Court dealt with wow a‘profession’ differs from an ‘occupation’especially in the context of performance of dutiesand hence the occurrence of negligence. TheCourt noticed that medical professionals do notenjoy any immunity from being sued in contractor tort (i.e., in civil jurisdiction) on the groundof negligence. However, in the observation madein the context of determining professionalliability as distinguished from occupationalliability, the Court has referred to authorities, inparticular, Jackson & Powell and have so statedthe principles, partly quoted from theauthorities:-

“In the matter of professional liabilityprofessions differ from occupations for the reasonthat professions operate in spheres wheresuccess cannot be achieved in every case andvery often success or failure depends uponfactors beyond the professional man’s control.In devising a rational approach to professionalliability which mist provide proper protectionto the consumer while allowing for the factorsmentioned above, the approach of the Courts into require that professional men should possess


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a certain minimum degree of competence andthat they should exercise reasonable care in thedischarge of their duty in tort as well as incontract to exercise reasonable care in givingadvice or performing services. (see: Jackson &Powell on Professional Negligence, 3rd End.,paras 1-04,1-05 and 1-56).”

In Poonam Verma vs Ashwin Patel and Ors.,(1996) 4 SCC 332 a doctor registered as medicalpractitioner and entitled to practice inHomeopathy only, prescribed an allopathicmedicine to the patient. The patient died. Thedoctor was held to be negligent and liable tocompensate the wife of the deceased for thedeath of her husband on the ground that thedoctor who was entitled to practice inhemopathy only, was under a statutory duty notto enter the field of any other system of medicineand since she trespassed into a prohibited fieldand prescribed the allopathic medicine to thepatient causing the death, his conductamounted to negligence per se actionable incivil law, Dr Laxman Balkrishna Joshi’s case(supra) was followed. Vide para 16, the test fordetermining whether there was negligence onthe part of a medical practitioner as laid downin Bolam’s case (supra) was cited andapproved.

In Achutrao haribhau Khodwa and Ors. vsState of Maharashtra and Ors. (1996) 2 SCC 634the Court noticed that in the very nature ofmedical profession, skills differs from doctorto doctor and more than one alternative courseof treatment are available, all admissible.Negligence cannot be attributed to a doctor solong as he is performing his duties to the best ofhis ability and with due care and caution. Merelybecause the doctor chooses one course of actionin preference to the other one available, he wouldnot be liable if the course of action chosen byhim was acceptable to the medical profession. Itwas a case where a mop was left inside theprofession. It was a case where a mop was leftinside the lady patient’s abdomen during anoperation. Peritonitis developed which led to asecond surgery being performed on her, but shecould not survive. Liability for negligence wasfastened on the surgeon because no validexplanation was forthcoming for the mophaving been left inside the abdomen of the lady.The doctrine of res ipsa loquitur was heldapplicable ‘in a case like this’.

M/s Spring Meadows Hospital and Anr. vsHarjol Ahluwalia through K. S. Ahluwalia andAner. (1998) 4 SCC 39 is again a case of liabilityfor negligence by a medical professional in civillaw. It was held that an error of judgement isnot necessarily negligence. The Court referredto the decision in Whitehouse & Jorden, [1981]1 ALLER 267, and cited with approval thefollowing statement of law contained in theopinion of Lord Fraser determining when anerror of judgement can be termed as negligence:-

“The true position is that an error of judgementmay, or may not, be negligent, it depends on thenature of the error. It is one that would not havebeen made by a reasonably competentprofessional man professing to have thestandard and type of skill that the defendantholds himself out as having, and acting withordinary care, then it is negligence. If, on theother hand, it is an error that such a man, actingwith ordinary care, might have made, then it isnot negligence.”

In State of Haryana and Ors. vs Smt. Santra,(2000) 5SCC 182 also Bolam’s test has beenapproved. This case too refers to liability forcompensation under civil law for failure ofsterilization operation performed by a surgeon.We are not dealing with that situation in thecase before us and, therefore, leave it to be dealtwithin an appropriate case.

Before we embark upon summing up ourconclusions on the several issues of law whichwe have dealt with herein, we are inclined toquote some of the conclusions arrived at, by thelearned authors of “Errors, Medicine and theLaw” (pp.241-248), (recorded at the end of thebook in the chapter titled- ‘Conclusion’)highlighting the link between moral fault, blameand justice in reference to medical profession andnegligence. These are of significance andrelevant to the issues before us. Hence we quote:-

a). The social efficacy of blame and relatedsanctions in particular cases of deliberatewrongdoings may be a matter of dispute, buttheir necessity - in principle - from a moral pointof view, has been accepted. Distasteful aspunishment may be, the social, and possiblymoral, need to punish people for wrongdoing,occasionally in a severe fashion, cannot beescaped. A society in which blame is


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overemphasized may become paralysed. This innot only because such a society will inevitablebe backward- looking, but also become fear ofblame inhibits the uncluttered exercise ofjudgment in relations between persons. If we areconstantly concerned about whether our actionswill be the subject of complaint, and that suchcomplaint is likely to lead to legal action ordisciplinary proceedings, a relationship ofsuspicious formality between proceedings, arelationship of suspicious formality betweenparsons is inevitable (Ibid, pp. 242-243).

b). Culpability may attach to the consequenceof an error in circumstances where substandardantecedent conduct has been deliberate, and hascontributed to the generation of the error or toits outcome. In case of errors, the only failureis a failure defined in terms of the normativestandard of what should have been done. Thereis tendency to confuse the reasonable personwith the error-free person. While nobody canavid errors on the basis of simply choosing notthe make them, people can choose not to commitviolations. A violation is culpable (Ibid, p. 245).

c). Before the court faced with deciding thecases of professional negligence there are twosets of interests which are at stake: The interestsof the plaintiff and the interests of the defendant.A correct balance of these two sets of interestsshould ensure that tort liability is restricted tothose cases where there is a real failure to behaveas a reasonably competent practitioner wouldhave behaved. An inappropriate raising to thestandard of care threatens this balance. (Ibid, p.246). A consequence of encouraging litigationfor loss is to persuade the public that all lossencountered in a medical context is the result ofthe failure of somebody in the system to providethe level of care to which the patient is entitled.The effect of this on the doctor-patientrelationship is distorting and will not be to thebenefit of the patient in the long rum. It is alsounjustified to impose on those engaged inmedical treatment an undue degree of additionalstress and anxiety in the conduct of theirprofession. Equally, it would be wrong to imposesuch stress and anxiety on any other personperforming a demanding function in society(lbid, p. 247). While expectations from theprofessionals must be realistic and the Expectedstandard attainable, this implies recognition ofthe nature of ordinary human error and human

limitations in the performance of complex tasks(lbid, p. 247).

d). Conviction for any substantial criminaloffence requires that the accused person shouldhave acted with a morally blameworthy, stateof mind. Recklessness and deliberatewrongdoing, are morally blameworthy, but anyconduct falling short of that should bot be thesubject of criminal liability. Common-lawsystems have traditionally only made negligencethe subject of criminal sanction when the levelof negligence has been high - a standardtraditionally described as gross negligence. Infact, negligence at that level is likely to beindistinguishable from recklessness (lbid, p. 248).

e). Blame is a powerful weapon. Itsinappropriate use distorts tolerant andconstructive relations between people.Distinguishing between (a) accidents which arelife’s misfortune for which nobody is morallyresponsible, (b) wrongs amounting to culpableconduct and constituting grounds forcompensation, and (c) those (i.e., wrongs) callingfor punishment on account of being gross or ofa very high degree requires and call for careful,morally sensitive and scientifically informedanalysis; else there would be injustice to thelarger interest of the society (lbid, p. 248).

Indiscriminate prosecution of medicalprofessionals for criminal negligence is counter-productive and does no service or good to thesociety.

CONCLUSIONS SUMMED UPWe sum up our conclusions as under:-1. Negligence is the breach of a duty caused

by omission to do something which a reasonableman guided by those considerations which areasonable man guided by those considerationswhich ordinarily regulate the conduct of humanaffairs would do, or doing something which aprudent and ;reasonable man would not do. Thedefinition of negligence as given in law of Torts,Ratanlal & Dhirajlal (edited by Justice G. P.Singh), referred to here in above, holds good.Negligence becomes actionable on account ofinjury resulting from the act or omissionamounting to negligence attributable to theperson sued. The essential components ofnegligence are three: ‘duty’, ‘breach’ and‘resulting damage’.


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2. Negligence in the context of medicalprofession necessarily calls for a treatment witha difference. To infer rashness or negligence onthe part of a professional, in particular a doctor,additional considerations apply. A case ofoccupational negligence is different from one ofprofessional negligence. A simple lack of care,and error of judgment or an accident, is notproof of negligence on the part of a medicalprofessional. So long as a doctor follows apractice acceptable to the medical professionof that day, he cannot be held liable fornegligence merely because a better alternativecourse or method of treatment was alsoavailable or simply because a more skilleddoctor would not have chosen to follow orresort to that practice or procedure which theaccused followed. When it comes to the failureto taking precautions what has to be seen iswhether those precautions were taken which theordinary experience of men has found to besufficient; a failure to use special or extraordinaryprecautions which might have prevented theparticular happening cannot be the standard forjudging the alleged negligence. So also, thestandard of care, while assessing the practiceas adopted, is judged in the light of knowledgeavailable at the time of the incident, and not atthe date of trial. Similarity, when the charge ofnegligence arises out of failure to use someparticular equipment, the charge would fail ifthe equipment was not generally available at thatparticular time (that is, the time of the incident)at which it is suggested it should have been used.

(3) A professional may be held liable fornegligence on one of the two findings: Eitherhe was not possessed of the requisite skillwhich he professed to have possessed, or, hedid not exercise, with reasonable competencein the given case, the skill which he didpossess. The standard to be applied for judging,whether the person changed has been negligentor not, would be that of an ordinary competentperson exercising ordinary skill in thatprofession. It is not possible for every professionalto p ossess the highest level of expertise or skillsis that branch which he practices. A highlyskilled professional may be possessed of betterqualities, but that cannot be made the basis orthe yardstick for judging the performance of theprofessional proceeded against on indictmentof negligence.

(4) The test for determining medical negligence

as laid down in Bolam’s case [1957] 1 W.L.R.582, 586 holds good in its applicability in India.

(5) the jurisprudential concept of negligencediffers in civil and criminal law. What may benegligence in civil law may not necessarily benegligence in criminal law. For negligence toamount to an offence, the element of mens reamust be shown to exist. For an act to amountto criminal negligence, the degree ofnegligence should be much higher i.e., grossor of a very high degree. Negligence which isneither gross nor of a higher degree may providea ground for action in civil law but cannot formthe basis for prosecution.

(6) The word ‘gross’ has not been used inSection 304 A of IPC, yet it is settled that incriminal law negligence or recklessness, to be soheld, must be of such a high degree as to be‘gross’. The expression ‘rash or negligent act’as occurring in Section 304 A of the IPC has tobe read as qualified by the word ‘grossly.’

(7) To prosecute a medical professional fornegligence under criminal law it must be shownthat the accused did something or failed to dosomething which in the given facts andcircumstances no medical professional in hisordinary senses and prudence would havedone or failed to do. The hazard taken by theaccused doctor should be of such a nature thatthe injury which resulted was most likelyimminent.

(8).Res ipsa loquitur is only a rule of evidenceand operates in the domain of civil law speciallyin cases of torts and helps in determining theonus of proof in actions relating to negligence.It cannot be pressed in service for determiningper se the liability for negligence within thedomain of criminal law. Res ipsa loquitur has, ifat all, a limited application in trial on a chargeof criminal negligence. In view of the principleslaid down here in above and the precedingdiscussion, we agree with the principles of lawlaid down in Dr Suresh Gupta’s case (2004) 6SCC 422 and re-affirm the same. EX abundanticautela, we clarify that what we are affirmingare the legal principles laid down and the lawas stated in Dr. Suresh Gupta’s case. We maynot be understood as having expressed anyopinion on the question whether on the facts ofthe case the accused could or could not havebeen held guilty of criminal negligence as thatquestion is not before us. We also approve of the


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passage from Errors, Medicine and the Law byAlan Mery and Alexander McCall Smith whichhas been cited with approval in Dr SureshGupta’s case (noted vide para 27 of the report)

GUIDELINES: RE-PROSECUTINGMEDICAL PROFESSIONALS

As we have noticed here in above ‘that thecases of doctors (surgeons and physicians) beingsubjected to criminal prosecution are on anincrease. Sometimes such prosecutions are filedby private complainants and sometimes bypolice on an FIR being lodged and cognizancetaken. The investigating officer and the privatecomplainant cannot always be supposed tohave knowledge of medical science so as todetermine whether the act of the accusedmedical professional amounts to rash ornegligent act within the domain of criminallaw under Section 304-A of IPC. The criminalprocess once initiated subjects the medicalprofessional to serious embarrassment andsometimes harassment. He has to seek bail toescape arrest, which may or may not be gratedto him. At the end he may be exonerated byacquittal or discharge but the loss which he hassuffered in his reputation cannot be compensateby any standards.

We may not be understood as holding thatdoctors can never be prosecuted for an offenceof which rashness or negligence is an essentialingredient. All that we are doing is to emphasizethe need for care and caution in the interest ofsociety; for, the service which the medicalprofession renders to human beings is probablythe noblest of all, and hence there is a need forprotecting doctors from frivolous or unjustprosecution. Many a complainant prefersrecourse to criminal process a tool forpressurizing the medical professional forextracting uncalled for or unjust compensation.Such malicious proceeding have to be guardedagainst.

Statutory Rules or Executive Instructionsincorporating certain guidelines need to beframed and issued by the government of Indiaand/or the State Government in consultationwith the Medical Council of India. So long as itis not done, we propose to lay down certainguidelines for the future which should governthe prosecutions of doctors for offences of whichcriminal rashness or criminal negligence is aningredient. A private complaint may not be

entertained unless the complainant hasproduced prima facie evidence before theCourt in the form of a credible opinion givenby another competent doctor to support thecharge of rashness or negligence on the part ofthe accused doctor. The investigating officershould, before proceeding against the doctoraccused of rash or negligent act or omission,obtain an independent and competent medicalopinion preferably f rom a doctor ingovernment service qualified in that branchof medical practice who can normally beexpected to give an impartial and unbiasedopinion applying Bolam’s test to the factscollected in the investigation. A doctor accusedof rashness or negligence, may not be arrestedin a routine manner (Simply because a chargehas been leveled against him). Unless his arrestis necessary for furthering the investigationor for collecting evidence or unless theinvestigation officer feels satisfied that thedoctor proceeded against would not makehimself available to face the prosecutionunless arrested, the arrest may be withheld.

Case at hand Reverting back to the facts ofthe case before us, we are satisfied that all theaverments made in the complaint, even if heldto be proved, do not make out a case of criminalrashness or negligence on the part of the accusedappellant. It is not the case of the complainantthat the accused-appellant was not a doctorqualified to treat the patient whom he agreed totreat. It is a case of non-availability of oxygencylinder either because of the hospital havingfailed to keep available a gas cylinder orbecause of the gas cylinder being found empty.Then, probably the hospital may be liable incivil law (ro may not be-we express no opinionthereon) but the accused appellant cannot beproceeded against under Section 304A IPC onthe parameters of Bolam’s test.

RESULTThe appeals are allowed. The Prosecution of

the accused appellant under Section 304A/34IPC is quashed. All the interlocutory applicationsbe treated as disposed of:

(R.C. Lahoti) .................................... CJI(G.P. Mathur) .................................. J.(P. K. Balasubramanyan) .............. J.New Delhi; August 5, 2005


87

Painless Executions Become PainfulBhardwaj D N, Additional Professor, Forensic Medicine, AIIMS, New Delhi-29

ABSTRACT

In a rare compassionate move doctors in USinjected heavy doses of morphing to relieve theagony of horrible hurricane Katrina victims. Thishas raised many ethical & legal issue on this actof doctors.Key word : Hurricane, lethal, un-natural

INTRODUCTION

Doctors are meant for saving life of patient.However, active or passive euthanasia has beena debatable issue as far as the mercy killing isconcerned. It is illegal in New Orleans in USA.However the doctors were forced by their soulto resort to active euthanasia to victims ofKatrina.

DISCUSSION

Desperate doctors killed their patients ratherthan let them die in agony in the face of

Doctors do the un-natural to Katrina victims

ABSTRACT

Various methods have been used for executionof convicts in various countries. Lethal doses ofanesthetics are used in certain states of U.S.A.for execution. However, study revealed that thedrugs used were found in low doses thusindicating convicts might have felt pain duringexecution.Key words: Execution, lethal, cruel.

INTRODUCTION

It has been matter of debate, how to executethe convicts without causing pain. Cruelmethods of execution are banned in U.S.A.Certain states in U.S.A. use pentothal sodiumfor this purpose, In India, however hanging isthe mode of legal execution. The drug should beused in fatal doses so that there is no pain.Condemned person is seated on chair or trollyand drug is given by IV route. The executionshould be done by trained person preferablytraining should be in anaesthesia. A recent reportpublished (Times News dt. 15/04/05) showsdeficiencies in adopted procedure.

DISCUSSION

Researchers analyzed the records of doses ofdrugs used and also toxicological analysis ofblood after autopsy. It was found thatexecutioners are not trained to deal such casesand sodium pentothal concentration was lowerin 43 of 49 cases. It was even less to asrecommended to surgery. In 21 out of 43 of 49cases, concentration of drug was consistent toconscious patients. The study was done onexecutions in Arizona, Georgia, North and SouthCarolina. A total of 788 cases have been executedby lethal injections since 1976. There was noreview carried out to ensure the inmates hadbeen humanely killed.

CONCLUSION

The report suggests that executions have beencarried out supposedly producing painlessdeaths but actually prisoners must have felt pain.There is further need to regulate the doses toproduce painless executions.

hurricane katrina. Doctors chose between whocould survive and who could not make it outalive. The patients were segregated in threecategories i.e. those who were medically fit, thosewho needed urgent care & those were dying.Dying patients were injected heavy doses ofmorphine and doctors prayed to God to havemercy on their soul. One doctor said, she tookthe step to kill their patients with basic humanright. The doctors left the hospital in fear of rape& looting. Many innocent lives were lost inaftermath of hurricane also in New Orleans

CONCLUSION

The natural calamity had forced the USdoctors so do the un-natural. However it hasbrought to the fore the issue of Euthanasia.

REFERENCE

Time News Network dt. 13-9-2005.

Notes and NewsNotes and NewsNotes and NewsNotes and NewsNotes and News

Medico-Legal Update. July-September 2005, Vol.5, No.3

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Book- ReviewBy Dr. R.K. Sharma

Editor In Chief: Medico-legal Update

2. Colour Atlas of Forensic Medicine by D.Govindiah, First Edition 1999, published byJaypee Brothers Medical Publishers(P)Ltd.,New Delhi. ISBN 81-7179-617-6 pp.203 PriceRs.269.

This colour atlas is quite useful for doctorsconducting medico-legal work especially generalduty medical officers. It is also helpful for lawyersand judges to understand complicated cases theyencounter in discharge of their duties. Thephotographs are quite good. The text is lucid andeasy to follow. Some line diagrams have beenadded. There is enough scope to add morephotographs. In short it is good book and wouldbe useful for student, doctors, lawyers andjudges.


1. Lyon’s Medical Jurisprudence andToxicology Revised by T.D. Dogra and ARudra 11th Edition 2005, Published by Delhilaw House, Delhi ISBN 18-86976-46-9 pp 1550Price Rs 1295

Lyon’s Medical Jurisprudence and Toxicologydates book to 1856 when first manual editioncome since then, the book has travelled toeleventh edition in 2005. This is quite exhaustivebook where most of the contributors have beenpostgraduate students or who have justcompleted their post-graduate training. Inspiteof their inexperience, they have done splendidjob under the guidance of main editor. The bookis quite useful for under-graduate and post-graduate students. The latest case laws have beenincorporated. The new concepts have beendescribed in detail. The text of the book is simpleand easy to follow. The book would also be quiteuseful for lawyers and Judges to understandmedical jurisprudence. In short, a good bookand good effort.

89

Suicide- An Overview

*M Arun, **Yoganarasimha K, ***Kar Nilamadhab,****Mohanty Manoj Kumar,*****Palimar Vikram

*Assistant Professor, **Professor and Head, *****Assistant ProfessorKasturba Medical College, Manipal – 576104 India

Wolverhampton City Primary Care Trust, Wolverhampton, United Kingdom ****Assistant Professor, Dept. of Forensic Medicine

Dr Pinnamaneni Siddhartha Institute of Medical Sciences and Research Foundation,Chinoutpalli, Gannavaram Mandal ,Krishna Dist - 521286, Andhra Pradesh

ABSTRACT:

The tragedy of self-inflicted death has alwaysattracted the attention of not only the medicalfraternity but also of the philosophers andtheologians. Suicide and parasuicide are theproblems of major concern in today’s society.Inspite of the magnitude of the problem, suicidecontinues to carry the stigma of shame and iscreating barriers to the promotion of knowledgeregarding the problem. This paper intends toprovide a synthesized data regarding suicide interms of various definitions associated withsuicide and parasuicide along with a bird’s eye-view about historical and religious aspects ofsuicide.

Keywords: Historical aspects, Para suicide,Religious aspects, Suicide.

INTRODUCTION:

Suicide is by no means a simple issue, for ithinges on a spectrum of ethical, legal,sociological and psychological problems and itis yet to be offered an unequivocal andsatisfactory answer to all the questions raisedby this perplexing phenomenon.

Suicide and parasuicide are the problems ofmajor concern in today’s society, whichsometime or the other affects the lives of asignificant proportion of the population. Inspiteof the magnitude of the problem, suicide

continues to carry the stigma of shame,creating barriers to the promotion of knowledgeand understanding about why people attemptsuicide and how it can be prevented.

Discussion:

Nils Ritterstol views suicide as the mostpersonal act that anyone can perform whichaffects not only the single individual who takeshis life but also the person’s immediate circle andthe local community.1 Erwin Stengel, inhis ‘suicide and attempted suicide’, suggests thatpersons who ‘attempt’ suicide and those who‘commit’ suicide, even though represents twodifferent categories, there do exists some‘overflow’ from the former to the later.2

The ratio between suicide ‘attempt’ and‘commits’ varies widely as quoted in theliterature. 1 committed suicide for every 8attempts (1:8) Figures varies from 1:3 to 1:10.3

World Health Report of 1998 puts that, theyearly global prevalence of parasuicidal actsvaried between 2% and 20%. The prevalence ofparasuicidal acts is estimated to be 10-20 timeshigher than that of completed suicides.

Every year throughout the world an estimatedthree-quarters of a million people take there ownlife and in many countries this is the leadingcause of death in the most productive age group,that is, in the 25 to 34 years. 1 Around the world,about 2000 people end their lives through suicideeveryday, taking a toll of 80 to 100 deaths perhour. Around 10 to 15 times as many peoplemake non-fatal suicidal attempts or performparasuicidal acts.

Reprint request: Arun M.Assistant Professor, Kasturba Medical CollegeManipal – 576104 India

Arun M. et al/Medico-Legal Update. July-September 2005, Vol.5, No.3

90

In the young the ratio may be 20 to 40attempts to one suicide and in the elderly thiscan be 3:1, which implies that about 10 to 20million people deliberately harm themselves inthis way every year.1

DEFINITIONS:

Suicide: An act with a fatal outcome, that isdeliberately initiated and performed by thedeceased himself in the knowledge or expectationof its fatal outcome, the outcome beingconsidered by the actor as instrumental inbringing about the desired changes inconsciousness and /or social conditions.1

Attempted Suicide: A conscious and voluntaryact which the individual has undertaken in orderto injure himself, and which the individual couldnot have entirely be certain of surviving, butwhere the injury has not led to death.

An activity that involves acts of intentionalself-injury and with the object of death, wherethe result is not death (Hammerlin andEnersvedt, 1988).1

The term ‘parasuicide’ is used synonymouslywith ‘attempted suicide’ to express the fact thatit is a phenomenon which is close to or similarto suicide but nevertheless different.1

Parasuicide: A non habitual act with non fataloutcome, that is deliberately initiated andperformed by the individual involved inexpectation of such an outcome, that causes selfharm, or without intervention from others willdo so, or consists of ingesting a substance inexcess of its generally recognised therapeuticdosage, the outcome being considered by theactor as instrumental in bringing about thedesired changes in expectancies and/or socialconditions.1

Suicidal Process: The spectrum of acts fromsuicidal thoughts and attempted suicide throughto accomplished suicide.4

Suicidal Rate: The number of suicidesregistered per 100,000 people in a populationover the course of one-year.4

Double Suicide: When two people, both ofwhom are set on committing suicide together.4

Extended Suicide or Complex Suicide orSuicide Pact: When one or more persons against

their will are involved in the death. The victim’sthoughts are based on dreadful impendingcatastrophes, which he wishes to prevent himselfand his nearest ones from experiencing. 4

Focal Suicide: Refers to certain forms of selfdestruction, as seen in mentally disturbedpatients destroying the parts of their bodies orsubjecting themselves to new operations to haveorgans removed because of symptoms theybelieve to be originating from them. 4

Organic Suicide: Self punishing or selfdestructive tendencies where one neglects tohave oneself treated for a physical disorder(organic disease). 4

Chronic Suicide: The direct self-destructive actis committed ‘inch by inch’ over a prolongedperiod. For example, chronic smoking,alcoholism, drug abuse. 4

Victim Precipitated Homicide: Refers tohomicides where the victim himself is the onewho directly challenges the opponent to useviolence and positively induced the criminal act.4

Euthanasia: A form of suicidal act carried outby someone else on the wishes of a person whois suffering from a fatal or assumed fatal illness,and to save the patient from suffering.1

Consummated Suicide: Results when oneindividual reaches the point of ‘no return’, eitherbecause of not receiving rapid and effectiveassistance or because, inspite of medicalattention, the damage was irreversible. 4

Suicide Counters: Factors that inhibit thesuicidogenic tendencies, which could beeconomic, ethical, moral, social and religious. 4

Suicide Bomb: Hired professional killers, whoalong with killing the targeted persons killthemselves, too.

Legal Definition of Suicide: For the purposeof establishing the cause of death, suicide islegally defined as the intentional act of selfdestruction committed by someone knowingwhat he is doing and knowing the probableconsequences of his action. The verdict of suicideshould always be supported with the evidence.It can never be presumed. 4


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Different views about the word ‘Suicide’:

Medard Boss has said ‘Flight from death ismere survival’ and ‘flight into death is suicide’.5

Edward Phillip in the 1662 edition of hisdictionary, ‘A new world in words’ claimed theinvention of the word suicide. Interestinglyenough, he does not derive it from the death ofoneself but says it should be derived from a ‘sow’since it is a swinish part for a man to kill himself.2

The British poetry critic Alfred Alvarez in 1971claimed that he found that the word ‘suicide’was used even earlier, in Sir Thomas Browne’s‘Religio Medici’ written in 1635 and publishedin 1642.2

Before the invention of the word suicide otherterms mostly circumlocutions and euphemismsrelating to self-murder were used.2,6 They are,self-destruction, self-killing, self-slaughter, sibi-mortem consciencere (to procure one’s owndeath, vim sibi infere (to cause violence tooneself), sui mann cadere (to fall by one’s ownhands).6

Suicidology:

In 1960s the word ‘Suicidology’ was used byEdwin S Shneidman in a book review (1964)and then in the ‘Bulletin of Suicidology’ (1967)and at the first convention of the ‘AmericanAssociation of Suicidology’ which met in 1968where the word suicidology was defined as ‘thescientific study of suicidal phenomenon’.6

Emile Durkheim (1858 to 1917) and SigmundFreud (1856 to 1939) around the turn of the 20th

century, contributed to the field of suicidologywith two main threads of investigations – thesociological and the psychological respectively.6

Historical and Religious Overview:

The history of suicide reflects the history ofmankind. Suicide, although is of relatively recentorigin, has existed as a form of behaviour sincethe dawn of civilization.7

Hinduism1:

Suicide has been mentioned in the great epicsof Ramayana and Mahabharata. When LordSrirama died, there happened to be an epidemicof suicide in Ayodhya. Bhagavadgeetha hadcondemned suicide. Brahmanical view had heldthat those who attempt suicide should fast for a

stipulated period. Upanishads, the HolyScriptures had condemned suicide and statedthat ‘he who takes his own life will enter thesunless areas covered by impenetrable darknessafter death’. But the Vedas permitted suicide forreligious reasons. It viewed that the best sacrificethat could be made was one’s own life.

The infamous Sati system where the widowwas made to jump into the burning pyre of herdead husband, was recognised, institutionalizedand glorified until recent times. Mr. RajaramMohan Roy fought against this social evil andthis tradition was prohibited and declared acrime in 1892 in India. Suicide by starvation isallowed in Hinduism, which is also known as‘sallekhana’.

Japanese Culture1:

Suicide has been more involved in nationaltradition of Japan in the form of ‘seppuku’ and‘hara-kiri’. Usually the higher strata of thesociety, the nobility and the military (thesamurai) practiced these forms of suicide.

Hara-kiri originated a thousand years ago, inthe early stages of feudalism in Japan. It wasconsidered as an honorable form of suicide toavoid being captured. The person concernedwould first thrust a short sword into the left sideof his abdomen, moves it across to the right andpulls it out. He would then thrust it into hismidriff and cut vertically upwards and finallyhe would slit his throat. The whole act wasviewed as a form of bravery. Law forbade thisbrutal practice in 1868.

Suicide performed after the death of one’ssuperior is known as ‘Junshi’. Japanese culturehas always been favorable towards suicide.During the Second World War the Japaneserecruited suicide service men for one-manaircraft, the Kamikaze pilots, who crashedthemselves and their machines packed withexplosives into the enemy target. Thecharacteristic aspect is the suicide ratio betweenmen and women in Japan is 1:1, whereas theratio in most western countries is 3:1 or 2:1 witha clear preponderance of male suicide.

Buddhism1:

Buddhism views suicide in two ways. It hasconsidered suicide as correct in certain


92

circumstances and has viewed it negativelyin some other. It held that the best self-sacrificemight be to free oneself of one’s own existence.However the Buddhist teaching says that humanlife is primarily misery, suffering and stress andit is one of man’s duties to withstand this.

Islam 1:

Suicide is considered as a very seriouscrime in Islam, worse than murder. One of themain doctrines of Islam is that Allah’s will isexpressed in various ways and that one has tosubjugate oneself to his will at all times andcommitting suicide is like disregarding his will.

Ancient Greece1:

In Ancient Greece, suicide was regarded as ashameful act. Plato says in one his writings thata person who has committed suicide be buriedwithout any mark of respect at a lonely placewhere no monument could be erected at theplace of burial.

Aristotle denounced suicide as a cowardlyand wretched act unworthy of a man. Therewere nevertheless examples of suicide whichwere regarded as a heroic act in Ancient Greece.Kodios sacrificed his life to save Athens fromthe Lacedaemonians. Themistocles preferred topoison himself rather than lead the Persiansagainst his compatriots.

The Jewish-Christian culture1:

Suicide was regarded in Jewish law as awrongful and unworthy act. A suicidal act waspunished by the victim and the victim’s familybeing denied the usual burial and mourningritual.

No culture in the world is free from suicideand each culture has its own views on the prosand cons of this phenomenon.

The Scottish writer David Hume, in his work‘The essay on suicide’ (1783) argues that it mustbe man’s right to decide on his own death if pain,illness, shame, poverty make life unbearable. Manis fully entitled to avoid evil, including the lifeitself. Kant on the other hand proclaimed thesanctity of life and believed that life must bepreserved whatever the cost might be.4

Thus the arguments continue till to datethroughout the world. It is undeniable that theetiology of suicide still remains unknown.Research to date has neither unearthed norrevealed what possesses some individuals toeffectuate their own demise and why such adesperate course of action is dictated. As a formof human behavior, suicide is probably as ancientas man himself.

Acknowledgement:

The authors would like to place their token ofappreciation to Mrs. Bharathi Arun for theassistance provided in the preparation of themanuscript.

REFERENCES:1. Nils Retterstol; Introduction and definitions, in :Suicide

- A European Perspective; 4th Edition; Cambridge UniversityPress; Cambridge. 1993; 9-20.

2. Edwin S. Shneidman; Basic words & approaches, in :Definition of suicide; John Wiley & sons, Canada; 1985; 3-23.

3. Vimala Veeraraghavan; Suicides & attempted suicidesin Delhi over a period of sixty-six years, in :Suicides &attempted suicides in the Union territory of Delhi; Conceptpublishing company, New Delhi; 1985; 23-30.

4. R. Chandrashekharan; Epidemiology of mentaldisorders, in: Text Book of postrgraduate psychiatry; Editedby J.N. Vyas & Niraj Ahuja; II Edition; Volume 1; JaypeeBrothers Medical Publishers, New Delhi; 1999; 29-32.

5. Medard Boss; Flight from death - mere survival & Flightinto death - suicide, in :Between survival & suicide; Editedby Benjamin B. Wolman; Gardner Press, New York; 1976; 1-10.

6. Edwin S. Sheneidman; Current overview of suicide, in:Suicidology; Contemporary developments; Grune & Stratton,New York; 1976; 2-12.

7. A.P. Martinez, J.M. Cameron; Trends in suicide (1983-1987); Medicine Science & Law; 1992; 32 (4); 289.


93

Study of Lip-Prints as Aid for sex Determination*Vahanwala Sonal, **Nayak C.D., ***Pagare S.S.

*Lecturer, **Prof. & Head, ***ProfessorDepartment of Oral Medicine & Radiology

Padmashree Dr.D.Y.Patil Dental College & Hospital, Nerul, Navi Mumbai

Historically, human identification is one of themost challenging subjects that man hasconfronted. The concept of “identity”, is a set ofphysical characteristics, functional or psychic,normal or pathological - that define anindividual.

Nowadays, human identification is a universalprocess based on scientific principles, mainlyinvolving fingerprinting, the objective of whichis to identify and register individuals for bothcivil and criminal identification purposes.

Cheiloscopy has been a subject of great interestto most researchers, it being the least invasiveand easily available mode for study purpose.

Theory of uniqueness is a strong point used inthe analysis of fingerprints and bitemarks, toconvince the court of law. Likewise, even thelip-prints or the vermillion border is unique ofan individual and hence behold the potential foridentification purpose.

Study of lip-prints has been the subject ofFrench doctoral dissertation, according to whichthe lip-print patterns appear to be genotypicallydetermined and unchanged from birth(1)

The forensic application of lip prints has beenstudied mostly by the Japanese(2,3,4). The mostcharacteristic groove patterns of human lipscould be recorded in a cross line diagram(similarto traditional dental charting of the quadrants)the lip print diagram.

Right upper lip Left upper lip

I quadrant II quadrant

Right lower lip Left lower lip

IV quadrant III quadrant

In one forensic case, the colourful lipstickimprints on some female underwear resulted inthe elimination of one suspect and theidentification of another, who turned out to bea near relative(4)

Suzuki(5), in 1970 tried to presentcategorically,the lip mark as a tool foridentification. He classified the natural lipmarks/fissures in four types; refer photograph.

Type I : Vertical, comprising of complete [end- to end] longitudinal fissures/patterns

Type I : Incomplete longitudinal fissures

Type II : Branching Y shaped pattern

Type III : Criss-cross pattern

Type IV: Reticular, typical chequered pattern, fence like.

Studies(1,5) done previously showed thatpatterns remain unchanged over a person’slifetime. Yet another study revealed that thetwins possessed a very similar lip pattern. Also,a 3 year old study was done to confirm that thelip marks do not change.

In a study conducted by Vahanwala-Parekh(6),it was suggested that certain pattern trends wereprevalent in either sex.

Reprint request: Vahanwala SonalLecturer, Department of Oral Medicine & Radiology,Padmashree Dr.D.Y.Patil Dental College & Hospital,Nerul, Navi Mumbai

Vahanwala Sonal et al/Medico-Legal Update. July-September 2005, Vol.5, No.3

94

Lip-pattern region of occurrence Predominantly seen in

a. Type I & Type I 1st quadrant[right upper lip] Female

c. Type II 2nd quadrant[left upper lip] Male

d. Type III Never occurs in lower lip. If so then only in male

e. Varied patterns in all quadrants Male

f. Same[alike] patterns in all quadrants Female

The prime objective of the present study wasto ascertain whether the lip-prints behold thepotential for determination of sex of theindividual from the configuration

MATERIALS & METHODMaterials: A dark coloured frosted lipstickThin bond paperMagnifying lensPen/ pencil for labelling the individual detailsMethod: In present study, 20 subjects were

males and 30 were females, in the age group of19-29 years. Care was taken to select individualshaving no lesion, whether active or passive onthe lips. Individuals with known hypersensitivityto lipsticks were not included in the study. Thelipstick was applied by the research personellwith a single stroke, evenly on the vermillionborder. The subject was asked to rub both thelips to spread the applied lipstick.

Researcher 1 was trained to get lip-prints onpaper such that each of them could show thefissures and grooves properly. The set of lip-prints were obtained on

simple bond paper in the traditional methodas suggested in the study(6).And it

was coded, keeping in account the name &sex of respective individuals.

Thus he presented following type of paper:

Name Lip-print sex code

Example1 Female 1

[table A]

Following paper deviced by Researcher 1, wasthen passed on to Researcher 2

Code Lip-print

[table A2]

Researcher 2 with sound knowledge ofSuzuki’s classification(5) was given the abovecoded paper with lip-prints and systematicallyeach lip-print obtained was designatedquadrantwise from the corner of right side tocorner of left side both on upper as well as lowerlip. He now tabularised the configuration asgiven below:

Code Lip-print configuration

[table B]

Now Researcher 3 who had knowledge aboutprevalence of certain trends of Suzuki’sclassification in different sex, ascertained the sexof the individual from the configuration laiddown by Researcher 2, which appeared as

Code Configuration Determination of sex

[table C]

SUZUKI CLASSIFICATION

SUZUKI CLASSIFICATIONVahanwala Sonal et al/Medico-Legal Update. July-September 2005, Vol.5, No.3

95

Discussion of a lip print

examples

Configuration of the lips Estimation & Justification

|

I’ I’ I I’ I’ | I’ I’ II I’ I’ Female.

——————|——————-- Since the configuration is monotonous,

| Type I, I’ is dominant

II I’ I’ I’ I’ |I’ I’ I’ I’ II

|

I’ I’ I I’ |I I I’ I’ I’ Female

——————|———————————- I & II are dominant

| Uniform configuration

II II II I’ I |I I I’ I’ I’ II II

|

I’ III III | III III Male

———————|———————————- Type III present

| Varied patterns

I IV IV IV | IV IV IV I

Eventually table A and table C were utilized to coincide the findings.

RESULTS:

Actual study sample comprised of 30 femalesand 20 males.

Researcher no.3, who was given the labelledpaper analysed and allotted the configurationof the lip-prints could manage recognizing them.

According to him, all the 30 females werecorrectly recognized as females on the basis oftheir lip-prints. Of the actual 20 lip-prints of themales, 16 of them were correctly identified asmales, 1 as a female and 3 such lip-prints couldnot be classified whether male of female!!!

Thus the result obtained in this study couldbe expressed in the following tabular form as:

Female Male Undecided Total

Actual 30 20 - 50

Researcher 31 16 3 50

Step 3 in the study, i.e. gauging the sex of theindividual from the configuration of the lip-prints was repeated for six set of observations


96

TABLE OF ACCURACY

Actual Females=30

Set no. Diagnosed correct Diagnosed wrong Undecided

1 30 - -

2 30 - -

3 30 - -

4 30 - -

5 30 - -

6 30 - -

Conclusion -100%

For all six observations, the female subjects were correctly diagnosed!

Actual Males=20

Set no. Diagnosed correct Diagnosed wrong Undecided

1 16 1 3

2 15 1 4

3 18 - 2

4 16 1 3

5 17 1 2

6 17 2 1

x2 Test was carried out due to discrepancy in the result

Simplified version of this observations could be tabulated as

Sample 1 2 3 4 5 6

Observed value 16 15 18 16 17 17


97

Applying formula, x2

x2= ?[observed value- expected value]2

————————————————————-

expected value

= 42+ 32+ 22+ 42+ 32+ 32

——————————————

20

= 16 + 9 + 4 +16 + 9 + 9

——————————————

20

= 63

—————-

20

= 3.15

The table value of x2 at 5% level of significancefor 5 degree of freedom is 11.07

Calculated value of x2 is less than that of x2 at5% level of significance.

[3.15 < 11.07]

We accept the hypothesis and the study isreliable.

DISCUSSION:

Determination of the sex of the individual byforensic methodology is warranted in cases of

a.heirship

b.marriage

c.divorce

d.legitimacy

e.rape

Some methods of determination include:

1.Detection of sex-chromatin

e.g. Barr bodies seen in females

2.Various physical(7) sex traits

e.g.a]Females show a more vertical ilium. Thedistance between the iliac crests is less, withshallow fossae and more marked curves of crestand rounded margins wall.

b] The pelvic cavity is conical & funnel shapedin males as contrast to females, which is broadand round

3.From the standard values of measurementof bones

e.g.a]neck makes obtuse angle with the shaft,about 125 degrees in males.

Whereas in females it is less obtuse

b]orbits in females are rounded, higher,relatively larger, sharper margins.

Whereas in males it is square, set lower on theface, relatively smaller

c]Mastoid process in males is medium to large,round and blunt

Whereas in females it is small to medium,smooth and pointed

4. Characteristic mandible

e.g.a]In males the body height is greater atsymphysis,

as compares to females

b]The angle of the body and ramus is lessobtuse[under 125 degrees]; prominent andeverted in males as compared to more obtuse,not prominent and inverted in females.

5. In advanced putrefaction, sex can bedetermined by identifying uterus or prostatewhich resist putrefaction for a long time.

Criminals may conceal their sex to avoiddetection by changing dress or by other methods.This can be detected by physical examination.Determination of the same can be accomplishedwith the help of skeleton and the medullary


98

index[from tibia, humerus, ulna and radius].According to Krogman, the degree of theaccuracy in sexing adult skeletal remains is asfollows;

Entire skeleton=100%, pelvis alone=95%, Skullalone=90%, pelvis plus skull=98%, long bonesalone=80%

All the methods of determination of sex of theindividual can be predicted only by obtainingtheir body parts- in short when the culprit andthe criminal both are dead!!

With the advent of science and complicatedtechnologies, man is been quite successful indeceiving “The Law”. Mastering the loopholesand masking sheer facts is very easy now. Hencethe criminal can be scot-free by deceiving thelaw and misguiding the police as well as theinvestigators. But, “Truth should prevail astruth”

The Lip-prints can therefore be used, as theyget registered easily even on a steel or glasstumbler. Presence of lip-prints is conclusive ofthe fact whether the beholder was a visitor or isrelated to the site of crime or not.

If the sex of the individual is known, it is easyto short-list the array of suspects with motive ofthe crime.

The present study is able to convey that lip-prints behold the potential of determination ofthe sex. As the table of accuracy reveals…thefemale subjects were identified without anymistakes or doubts i.e. 100% results wereobtained.

The accuracy percentage fell in identificationof the males. An error was encountered & quitea bit was of questionable status i.e. the lip-printconfigurations were correctly noted but theresearcher was unable to decide whether it wasa male or a female print. This we reasoned outas

1] Trends of both the sexes were prevalent atthe same time

2] Variant Types in all quadrants madedecision making for the researcher little difficult.

Statistical values obtained conclude that sincecalculated value of x2 is less than that of x2 at5% level of significance, we can accept the saidstudy/hypothesis to recognize the sex of anindividual.

Still some more studies need to be carried outand various trials to be studied so that one fineday we can lend our lip for the purpose ofpersonal identification.

Lip-prints just like the fingerprints if getregistered at the vicinity of crime, can often beretained on the object. Then can be exposed withthe help of zinc oxide powder which further canaid to recognition of the sex of the individualand later in turn matched with the prints ofprime suspects. Though the results obtained byour study, does not prove to be a full-proof onenevertheless it does seem to promise to go onestep closer to the “Truth”…..locating justice.Lip-prints thus hold potential promise as asupplementary tool alongwith other modes torecognize the sex of an individual

REFERENCES:1. Renaud M.: Lip print identification in legal medicine, review

of French doctoral dissertation, NOUV presse Med 2: 2617-2620,1973.{cited from Textbook on oral Biology by Shaw, chapter34}

2. Suzuki K., Tsuchihashi Y.: personal identification by meansof lip prints. J.Forensic Med. 17:52-57, 1970

3. Tsuchihashi Y.: Studies on personal identification by meansof lip prints.Forensic Sci.3:233-2248, 1974

4. Suzuki H., Tsuchihashi Y: Two criminal cases of lip print.Acta Crim.Japonica 36(3): 88-102, 1970

5. K.Suzuki, from Forensic Odontology and criminalinvestigation.Acta crim.Japonica 36(3): 88-102

6. Vahanwala-Parekh, Journal of forensic Medicine & ToxicologyVol 17.No 1,Jan-June,2000:12-17

7.K.S.Narayan Reddy: The Essentials of Forensic Medicine &Toxicology 21 edition 2002, chapter4


99

Osteons as an Age determinantRai Balwant, *Anand S C, **Dhattarwal S K

Deptt. of Oral & Maxillofacial Surgery *Principal, **Associate Professor, Dept. of Forensic Medicine & Toxicology

Pt. B.D. Sharma PGIMS, Rohtak, Haryana

ABSTRACT

Histological study was conducted on 107subjects of both sexes (Male 55 Female 52) fromthe compact portion of mandible to observechanges in the number of osteons with age. Inmajority of the cases it was observed that numberof osteons increased with age. (12 years to 57years).

KEY WORDS : Osteons, mandible, age,compact bone

INTRODUCTION

Identification and determination of unknownhuman skeletal remains has been one of the mostchallenging tasks for forensic medico-legal. Ageis an extremely vital parameter in personalidentity of living subjects as well as skeletoniseddead bodies. Determination of age from skeletalremains has been studied and analysed by manyworkers like Kerley (1965)1, Chatterji and Jaffrey(1948)2, Ahlquist et al (1969)3, Iwamoto, Oomukiand Konschi (1978)4 and Dr. S. Lal et al (2004)5.The determination of age at time of death fromhistology of compact bone was has been studiedby researchers. It is not only possible todifferentiate between human and non-humanbone fragments. (Schranz, 1954) but also the ageof the individual bone.6 The most effective studyof several other studies on bone histology andage related charges was carried out by Kerely(1965 and 1969),1,7,10 who developed a methodof age determination based on microscopicanalysis of the cortex of the long bones.

Singh and Gung (1970) studied bone sectionfor various parameters including osteons.8 It wasobserved that the number of osteons increasedwith age. Present study was done for

determination of age of the individual at deathof both sexes from the compact portion ofmandible on histological observation bystatistically derived equation.

MATERIAL AND METHOD

This study was done on the compact portionof mandible, collected from 55 males and 52females of know age, brought for postmortemexamination at Post Graduate Institute ofMedical Sciences, Rohtak. Bone samples fromadult persons devoid of any bone anomalies,between the ages of 12 to 57 years were studied.

In the present study slides from bone sampleswere prepared by under calcified method.Initially the bone samples were boiled in soapsolution (Nirma Soap) for five hours to removeorganic material. After washing, they weresuspended over cholorform for 50 hours toremove fats. Each section was cut with Jeweller’ssaw into several sections. These sections werehand grinded untill they become transparent.Transparent sections were fixed on slides withthe help of D.P.X. monutant.

In each section the number of osteons,consisting of complete haverian system werecounted in four fields, taking the average osteonsthat were obliquely cut were included only ifthe complete haverian canal was seen.

OBSERVATIONSIt was observed that size and shape of osteons

was various with age, It was observed that 12osteons at 20 years ; 15 osteons at 23 years; 30osteons at 38 years; 40 osteons at 48 years; 50osteons at age of 58 years respectively werepresent. Thus number of osteons increased withage. Following regression equation was derivedafter statistical analysis of data.

Age = No. of osteons + 8.3Reprint request: Balwant RaiDept. of Oral and maxillofacial SurgeryPt. B.D. Sharma PGIMS, Rohtak, Haryana

Balwant Rai et al/Medico-Legal Update. July-September 2005, Vol.5, No.3

100

REFERENCES

1. Karley ER. The microscopic determination ofage in human bone. Am J Phy Anthrop. 1965; 23 :149-163.

2. Chatterji S and Jaffrey JW. Changes in structureof human bone with age. Nature, 1968; 290 : 482.

3. Ahlquist J and Damsten O. “A modification ofKerlay’s method for the microscopic determinationof age in human bones” Forensic Sci. 1969; 14 :205-217.

4. Iwamoto S, Oomuki E and Kanchi M. A studyon age related changes of compact bone and ageestimation as the femur bone. Med J Kinki Univ(Japan) 1978; 3 : 223-232.

5. Lal S. et al. Histological estimation of age fromosteons. Medico legal update. April-June 2004 Vol4 No. 2, 67-68.

6. Schranz D. Age determination from the internalstructure of humerus. Am J Phy Anthrop, 1954; 17: 273-277.

7. Karley ER and Vbelakar DH. Revision in themicroscopic method of estimation age at death inhuman cortical bone, Am J Phy Anthrop. 1978 48 :545-546.

8. Singh IJ and Gunberg DL. Estimation of age atdeath in human males from quantitative histologyof bone fragments. Am J Phy Anthrop, 1970; 33 :373-382.

9. William et al. Bone as tissue in Grey’sAnatomy, 38th Edition, ELBS with ChurchillLivingstone, pp. 452-468.

10. Karley ER. Age determination of bonefragments, J For Sci 1969; 14:59-67.

DISCUSSIONTraditional method of estimation of age

depends upon gross morphologic criteria whichhas been useful, but age limited in application.5

Quantitative histology on the other hand permitsobjectivity and resulting data are amendable tostatistical analysis. The value of histologicalmethod are further significant because of theirlimited demand of amount of material resultedfor estimation.

In present study that number of osteons andaverage number of lamellae per osteon increasedwith age but heversian canal diameter decreasedwith age and studied by Singh and Gunberg(1970).8 In present study notical, variable anddiameter of secondary osteons as by William etal (1995)9 in adult compact bone.

Dr. S.Lal et al (2004)5 had noticed differentsize and shape of secondary osteons at 18 to 55years of age, where as after 55 years of age thesecondary osteons appeared more or lessuniform while in present study size and shapeof secondary osteon is variable and not uniformat age groups. Also there was a gradual increasein number of osteons with age. It was 12 osteonsper field at about 20 years, 15 obsteons at 23years, 30 osteons at 35 years and 50 osteons at58 years of age. While in tibia (S.Lal et al, 2004)osteons was approximately 15 osteons per fieldat about 15 years, 35 osteons at 40 years and 47osteons at 65 years of age.

The derive equation arrived at shows thedifference approximately of 2 to 6 years betweenthe actual and estimated age.

CONCLUSION

Age can be determined by equation

Age = No. of osteons + 8.3

No variation in osteons with sex.

Secondary osteons is not uniform i.e. variablesize but nothing is increase gradually.

The drive equation arrived at shows thedifference of approximately 2 years to 6yearsbetween the actual and estimated age.

Balwant Rai et al/Medico-Legal Update. July-September 2005, Vol.5, No.3

101

INSTRUCTION TO AUTHORS

Medico-Legal Update invites articles, case reports, newspaper clippings, report of medico-legalactivities to update the knowledge of readers in scientific disciplines such as Forensic Medicine,Forensic Sciences, Environmental Hazards, Toxicology, etc.

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Erratum

Article entitled ‘Spectrum of Organophosphorous in Manipal’ published in theMedico-Legal Update, April-June 2005, Vol.5, No.2, Pg: 55-57.

In page no. 55, the addresses of authors should be read as follows:Palimar Vikram, Arun M. and Singh Bhoopendra as Assistant Professors

Department of Forensic Medicine, Kasturba Medical College, Manipal andSaralaya K.M. as Professor and Head, Deparment of Forensic Medicine,

Kasturba Medical College, Mangalore.

Editor-in-Chief


Concise Textbook of Forensic Medicine & ToxicologyAbout the AuthorDr. R.K. Sharma joined AIIMS, New Delhi

in 1977 as an undergraduate student. He isnow working there as Additional Professor inDepartment of Forensic Medicine. He has ateaching experience of over 22 Years. He haspublished more than 50 national andinternational Scientific papers. He hassupervised many scientific projects of nationaland international importance. He is currentlyeditor of an international journal “ Medico-Legal Update”.

About The Book : Specially designed forundergraduate students in Forensic Medicine,this concise textbook would help them incovering their syllabus at a quicker pace duringexaminations. The book covers the wholecurriculum as prescribed by Medical Councilof India. It would also be useful for students ofAyurvedic, Homeopathic, Unani and Sidhasystmes of medicine.

Key Features : Includes contemporarydevelopments like cloning, euthanasia, daterape and drug facillitated sexual assaults.

ISBN: 8181478568, Price: Rs. 275.00,Year: 2005, Published By: ElsevierTo Procure this world class book, Please contactyour nearest medical bookshops or authorizedvendor orElsevierThe Marketing Department17A/1 Lajpat Nagar-IV, New Delhi - 110024, IndiaTel: + 91-11-26447160-4, 528902000Fax: + 91-11-26447165Email: [email protected]

Toxicology has been discussed as perstandard clinical practice.

Also discusses aluminium phosphidepoisoning and heroin abuse.

Chapters on medical negligence include newconcepts like comparative negligence and post-CPA scenario in medical practice.

The chapter sequence has been designed asper teaching schedule in medical colleges.

It is an ideal textbook for undergraduats allthe time and specially at the time ofexaminations.

65

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