Must some plaintiff prove grossness in case of criminal negligence even when ''fact speaks for itself''?India

Question

Suppose some surgeon by mistake forgets to remove a SWAB during operation from some patient's abdomen.
Few days after operation that patient dies because of sepsis & complications.
In that type of cases----''doctrine of res ipsa loquitur''---- applies very clearly.
So EVEN after the thing speaks for itself ;
must some plaintiff prove GROSSNESS of negligence or
wrong intention (Mens Rea) of that doctor;
beyond all reasonable doubts to make him CRIMINALLY liable in India??
And if that plaintiff fails to do so will court set that doctor free from charges of criminal negligence in India?

Answer 1

As told you regarding the legal position in your last question regarding criminal negligence with reference to the landmark judgment of the Supreme court of India, the Principle of law as such in all criminal cases is very clear that the onus to prove the accused guilty is on the complainant or the prosecution only, although the doctrine of res ispa loquitur do plays an important part but unless there exist any evidence that will show & prove the criminality of the case i.e. mens rea & actus reus the accused cannot be held guilty & punished accordingly such an evidence has to be strong enough & show beyond any reasonable doubt that the offence prayed off has been committed. Now based on this general principle of criminal justice in the case of gross negligence committed by any doctor that can hold him guilty of it in a criminal complaint for negligence the court has to be satisfied that any act of this doctor which has been prayed to be such that it amounts to gross negligence or not ,its the prosecution case to prove so & not just depend on the doctrine of res ipsa loquitur, whether leaving the SWAB inside the abdomen of the patient during operation really amounts to such gross negligence that can cause sepsis & cause death of the patient in most probability or not. This being an issue that requires the medical expert opinion in such a case has to be brought on the records of this complaint, based on this expert opinion the court shall decide this issue of gross negligence amounting to death of the patient, now in such cases if the expert medical opinion goes clearly in favor of the prosecution complaint then the court will definitely hold the accused doctor guilty for this offence, but in case such an opinion is not clear about such an act that of this doctor in all cases or any case can only cause sepsis & death of any patient then there comes a degree of doubt in the mind of the court that shall go in favor of such an accused doctor, & he gets benefit of doubt for such a gross negligence. Although in such a case he no doubt will be liable for civil negligence for which he can be asked to pay compensation to the relatives of the victim, but for criminal negligence & for punishment for it his case will fall short of the required criteria of criminal jurisprudence.

Answer 2

You've gotten your legal concepts confused. The plaintiff always has to prove their case - always.

The case above is not an example of res ipsa - there are several elements of proof missing. Mens rea is not an issue in negligence. Leaving in a swab is more simple negligence than gross negligence, and is not sufficient to bring criminal charges.

I could go on and on with this, but I'd have to bill you.

Answer 3

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Answer 4

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Answer 5

Gross negligence is not a degree of negligence. For legal purposes, consider "Gross Negligence" to be a single word. The doctor is either guilty of gross negligence or not guilty of gross negligence.

Answer 6

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