KK (suffering from cancer-terminal stage) was admitted to the hospital in Kanpur City. He felt difficulty in breathing. The duty nurse called some doctor to attend to the patient. No doctor turned up for 20 to 25 minutes

KK (suffering from cancer-terminal stage) was admitted to the hospital in Kanpur City. He felt difficulty in breathing. The duty nurse called some doctor to attend to the patient. No doctor turned up for 20 to 25 minutes. Then the appellant Doctor and another Doctor came to the patient's room. An oxygen cylinder was brought and connected to the mouth of the patient but the breathing problem increased further. The oxygen cylinder was found to be empty. There was no other gas cylinder available. Later, the patient was declared dead. An offence under Sections 304-A/34 Penal Code, 1860 was registered and charges filed against the doctors. Doctor's petition to High Court to quash the charges was dismissed. According to the appellant, the deceased KK was suffering from cancer in an advanced stage and as per the information available, he was, in fact, not being admitted by any hospital in the country because of his being a case of cancer at terminal stage. He was only required to be kept at home and given proper nursing, food, care and solace coupled with prayers. But his sons, who were very influential persons occupying important positions in Government, could prevail over the doctors and hospital management and got the deceased admitted as an inpatient on compassionate grounds for regulated medical treatment and proper management of diet. It was abundantly made clear to the informant and his other relations who had accompanied the deceased that the disease was of such a nature and had attained such gravity, that peace and solace could only be got at home. The patient was treated with utmost care and caution and given all the required medical assistance by the doctors and paramedical staff. The complainant and his relations, who were misguided or were under mistaken belief as to the facts, lodged police report against the accused persons which was wholly unwarranted and uncalled for. The Hon. Court in its judgment concluded that : A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men is found to be sufficient. So also, the standard of care, while assessing the practice as adopted, is judged in the light knowledge available at the time of the incident, and not at the date of trial. A professional may be held liable for negligence on one of the two findings: either he had not possessed the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds well in its applicability in India. The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of 'mens rea' must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, 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 to be read as qualified by the word 'grossly'. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. Can the accused appellant and the hospital be prosecuted u/s 304 A of the IPC? Discuss the liability of the insurance company in the given case.