Law of Torts
Civil and Criminal Medical Negligence: The Same Treatment, Two Very Different Thresholds
A doctor may be liable in damages for a lapse that would never support a prosecution, and the gap between the two thresholds is deliberate. The civil standard is Bolam, as qualified by Bolitho, and takes any departure from the ordinary competence of the calling. The criminal standard, fixed in Jacob Mathew v. State of Punjab, requires negligence so gross that no practitioner of ordinary prudence would have acted as the accused did, and adds procedural safeguards before a prosecution may even begin. The reason is that a profession practised under the threat of prosecution becomes defensive, and defensive medicine harms the patients the rule exists to protect.
1. The Comparison
Civil medical negligence | Criminal medical negligence | |
The standard | Bolam, as qualified by Bolitho: the ordinary skill of an ordinary competent practitioner | Jacob Mathew: what no medical professional in his ordinary senses and prudence would have done or failed to do |
The degree | Any departure from that standard | Gross negligence, or such rashness as imports a disregard of consequences |
The risk taken | Not a separate enquiry | Must have been of such a degree that injury was most likely imminent |
Standard of proof | The balance of probabilities | Beyond reasonable doubt |
The forum | A civil court, or a consumer forum after V.P. Shantha | A criminal court, under section 106 of the Bharatiya Nyaya Sanhita, 2023 |
Who proceeds | The patient or his representatives | The State |
Expert evidence | Usually helpful; not required in every case after V. Kishan Rao | An independent and competent medical opinion is required before the proceeding begins |
The result | Damages | Imprisonment up to two years for a registered medical practitioner, and fine |
Insurance | Ordinarily answers the liability | Cannot answer a sentence |
Effect of the other | An acquittal is no bar | A decree is not proof of the offence |
2. The Criminal Threshold
📖 Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 Facts A patient admitted to a hospital had acute difficulty in breathing. A doctor attended and an oxygen cylinder was connected which was found to be empty; a replacement was not immediately available. The patient died. The complainant prosecuted the doctors for causing death by a rash or negligent act. Held The prosecution was quashed, and guidelines were laid down for the prosecution of medical professionals. Ratio Negligence which is not gross is not criminal. To fasten criminal liability on a medical professional it must be shown that he 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 must have been of such a degree that the injury was most likely imminent. The standard applied to determine civil liability is not the standard for criminal liability, and a mere error of judgment, an accident, or a want of the very highest skill is not culpable. A simple lack of care such as will constitute civil liability is not enough, following Andrews v. Director of Public Prosecutions. |
3. The Procedural Safeguards
- A private complaint should not be entertained unless the complainant produces prima facie evidence before the court in the form of a credible opinion given by another competent doctor supporting the charge of rashness or negligence.
- The investigating officer should, before proceeding against a doctor accused of rash or negligent act, obtain an independent and competent medical opinion, preferably from a doctor in government service qualified in that branch of medical practice, who can normally be expected to give an impartial and unbiased opinion.
- A doctor accused of rashness or negligence should not be arrested in a routine manner, simply because a charge has been levelled against him, unless his arrest is necessary for furthering the investigation or for collecting evidence, or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution.
- The safeguards are directions to courts and investigating agencies and are not defences available to a doctor on the merits; their breach goes to the propriety of the proceeding rather than to the guilt of the accused.
4. The Civil Position
- Bolam governs. A practitioner is not negligent if he acted in accordance with a practice accepted as proper by a responsible body of opinion in that art, subject to the Bolitho requirement that the opinion withstand logical analysis: TORT 129.
- Medical services are within the Consumer Protection Act. Indian Medical Association v. V.P. Shantha, (1995) 6 SCC 651, holds that medical service rendered for consideration falls within the definition of service, excepting only service rendered free of charge to everybody: TORT 098.
- Expert evidence is not required in every case. V. Kishan Rao v. Nikhil Super Speciality Hospital, decided 8 March 2010, holds that each case must be judged on its own facts, that a rule requiring expert evidence in all cases would render the consumer remedy illusory, and that the general direction to the contrary in Martin F. D'Souza v. Mohd. Ishfaq was per incuriam.
- Res ipsa loquitur is available, and is applied in the plain cases such as a foreign object left in the body: Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634; TORT 127.
- Kusum Sharma v. Batra Hospital, (2010) 3 SCC 1 collects the principles and stresses that a practitioner is not liable merely because a better alternative existed.
5. Section 106 of the Bharatiya Nyaya Sanhita, 2023
Section 106(1), Bharatiya Nyaya Sanhita, 2023 Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and if such act is done by a registered medical practitioner while performing a medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine. Explanation: for the purposes of this sub section, a registered medical practitioner means a medical practitioner who possesses any medical qualification recognised under the National Medical Commission Act, 2019 and whose name has been entered in the National Medical Register or a State Medical Register under that Act. |
- The reduced maximum for a registered medical practitioner is new, and is a legislative adoption of the concern expressed in Jacob Mathew that the ordinary penal provision bears too heavily on clinical practice.
- The reduction applies only while performing a medical procedure, and only to a practitioner registered under the National Medical Commission Act, 2019, so an unqualified practitioner and one acting outside a medical procedure remain within the five year maximum.
- The substantive threshold is unchanged, and Jacob Mathew continues to govern the degree of negligence required and the procedure to be followed.
6. The Parallel Disciplinary Jurisdiction
- Professional misconduct is a third and separate proceeding, before the State Medical Council and the National Medical Commission, and is neither civil nor criminal.
- Its standard is its own, being set by the professional conduct regulations, and its sanctions are censure, suspension and removal from the register.
- Its findings do not bind a civil or a criminal court, and the pendency of a disciplinary proceeding is no bar to either.
- The power to award compensation is separate from the disciplinary power. In Kousik Pal v. B.M. Birla Heart Research Centre, decided 20 December 2025, the Supreme Court proceeded on the footing that the jurisdiction to compensate a patient is distinct from the Medical Council's jurisdiction over professional conduct, and the two do not displace one another.
- A practitioner may therefore face three proceedings on one set of facts, and success in one is not a defence in the others.
⚠ Why the gap between the two thresholds is so wide in medicine in particular The general rule that criminal negligence requires more than civil negligence applies to every activity, but nowhere is the gap defended as vigorously as in medicine, and the reason is worth stating because it is often mistaken for professional protectionism. Every clinical decision is made under uncertainty, on incomplete information, frequently under pressure of time and almost always where some course must be taken. In that setting a bad outcome is not evidence of a bad decision, and a system which permitted a prosecution to be launched on the strength of a death would put practitioners in the position of having to justify, to a criminal standard, choices that could not have been made with certainty. The predictable response is not better medicine but avoidance: declining difficult cases, referring what could have been treated, ordering investigations to build a record rather than to inform a decision, and hesitating at moments when hesitation kills. The Court in Jacob Mathew said as much, and the safeguards it laid down, requiring an independent medical opinion before a complaint is entertained and before an investigation proceeds, are addressed to the same concern: not to make a doctor unaccountable, since the civil and disciplinary jurisdictions remain fully available, but to ensure that the criminal process is not itself the punishment. |
7. The Position Stated Shortly
1. The civil standard is Bolam as qualified by Bolitho, and takes any departure from the ordinary competence of the calling.
2. The criminal standard requires gross negligence: what no medical professional in his ordinary senses and prudence would have done or failed to do.
3. The hazard taken must have been of such a degree that injury was most likely imminent.
4. Jacob Mathew v. State of Punjab settles the threshold and holds that the civil standard is not the criminal one.
5. A private complaint requires a credible opinion from another competent doctor, and the investigating officer must obtain an independent medical opinion, preferably from a government doctor.
6. A doctor should not be arrested in a routine manner merely because a charge has been levelled.
7. Section 106(1) of the Bharatiya Nyaya Sanhita, 2023 reduces the maximum to two years for a registered medical practitioner performing a medical procedure.
8. Medical services fall within the Consumer Protection Act after V.P. Shantha, except where rendered free to everybody.
9. V. Kishan Rao holds that expert evidence is not required in every case, and that the contrary direction in Martin D'Souza was per incuriam.
10. A disciplinary proceeding before the Medical Council is a third and independent jurisdiction, and success in one proceeding is no defence in the others.