Negligence is breach of duty caused by omission to do something  which  a  reasonable  man  would  do  or  doing something which a prudent and reasonable man would not do. Negligence in the context of medical profession calls for a treatment with a difference. Error of judgment or an accident is not proof of negligence.  So long as doctor follows a practice acceptable to the medical profession of the day, he cannot be held liable for negligence merely because a better alternative course was available. A professional may be held liable for negligence if he does not possess the requisite skill which he claims or if he fails to exercise reasonable competence. Every professional may not have highest skill. The test of skill expected is not of the highest skilled person.  Concept of negligence differs in civil and criminal law.  What may be negligence in civil law may not be so in criminal.  In criminal law, element of mens rea may be required. Degree of negligence has to be much higher. Res ipsa loquitur operates in domain of civil law but has limited application on a charge of criminal negligence [1]. [Para 11]

These principles have been laid down by a Bench of three-Judges and continue to hold the field. This Court has also held that safeguards were necessary against initiation of criminal proceedings against medical professionals and till such safeguards are incorporated by the State, direction of this Court will operate to the effect that the private complaint will not be entertained unless credible opinion of another competent doctor in support of the charge of rashness was produced. The Investigating Officer must obtain independent and competent medical opinion preferably from a doctor in Government service, qualified in the concerned field in the light of judgment in Jacob Mathew (supra).  A medical professional may not be arrested in a routine manner[2]. [Para 12]

Conclusions of the SC:

In view of the legal position discussed above, we are of the view that the National Commission was justified in holding that decision to perform surgery may not by itself be held to be medical negligence. [Para 14]

SC on the Issue of ICU:

We however, find that neither the State Commission nor the National Commission have examined the plea of the appellant that the operation should not have been performed at a nursing home which did not have the ICU when it could be reasonably foreseen that without ICU there was post operative risk to the life of the patient.

Issue of Compensation Claim

There was no serious contest to this claim by the opposite parties. Having regard to the fact that the matter has been pending for the last 23 years, instead of remanding the matter for fresh adjudication on this issue, we consider it appropriate in the interests of justice to direct the opposite party No.1 to pay a sum of Rs.5 lakh to the heirs of the appellant without any interest. The amount be deposited with the State Commission within 3 months for being disbursed to the appellants. If deposit is beyond 3 months, the amount will carry interest @ 12% p.a. [Para 15]