MEDICAL NEGLIGENCE- DIFFERENCE BETWEEN CRIMINAL NEGLIGENCE AND CIVIL NEGLIGENCE

Complaint could not have been registered by the District consumer forum without seeking an opinion of an expert in terms of the Supreme court report in Martin F.D’Souza V/S Mohd.Ishfaq 1[229]CPJ 32 SC –was the plea taken by the  defense  before the State commission of Hyderabad in revision  against the issuance of notice  by the District court in the matter of A Srimannarana V/S Dasari Santakumari&others civil appeal no 368 of 2013 decided on 9.1.13.The State commission rejected the revision petition with the direction to the appellant to file an application before the District forum for referring the matter to an expert. Appellant, instead of following the direction of the state commission, filed an SLP before National commission which was dismissed by the national commission relying upon the subsequent judgment of the apex court in Nikhil super specialty Hospital V. Krishan Rao & others [2010] SLT 349 WHEREIN THE court has declared that the judgment rendered in Martin F.D’Souza V/S Mohd.Ishfaq 1[229] CPJ 32 SC is per incuriam

Special leave petition before this court

‘That the Supreme court in  case of Nikhil super specialty Hospital V. Krishan Rao & others has erroneously declared the earlier judgment of Martin F.D’Souza V/S Mohd.Ishfaq on a misconception of the law laid down by three judge bench of this court in Jacob Mathew v state of Punjab &others 111[2005]CCR 9[SC].’

The court came to the conclusion that there was absolutely no misconception of law by the apex court while dealing with the case of Martin F.D’Souza V/S Mohd.Ishfaq and Jacob Mathew v state of Punjab &others and finally declaring Martin F.D’Souza V/S Mohd.Ishfaq 1[229]CPJ 32 SC is per incuriam.Both the cases were confined to the question of criminal negligence, leading to criminal prosecution either on the basis of a criminal complaint or on the basis of an FIR. A submission   was made in the Jacob case by the defense

‘That under civil law and criminal law, negligence is negligence and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law.’

The above argument was strongly rejected by the court in Jacob case and guidelines were issued in Para 48 of the judgment

Apart from the above differences ,Liability in law of torts is to be determined on the basis of the damage caused to the patient whereas in criminal law it is the degree of negligence which determines the of liability.

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