MEDICAL NEGLIGENCE AND THE LAW- AN ANALYSIS: Day 2

27 January, 2018

LIABILITY OF MEDICAL PRACTITIONERS UNDER: 

A. INDIAN MEDICAL ASSOCIATION ACT, 1956 (IMA)
The IMA and the State Medical Councils established under State Acts are empowered to:
  • take disciplinary action for professional misconduct against registered medical practitioner and
  • suspend or revoke the license and remove their names from the Medical Register if they are found guilty of professional misconduct.

B. CRIMINAL LIABILITY 
A criminal liability arises when it is proved that the doctor has committed an act or omission which is the proximate, direct and substantive cause of death is grossly rash or negligent.
  • Section 304B IPC deals with causing death due to rash and negligent cat. The punishment is 2 years imprisonment or fine or both
  • Section 336 IPC provides that it is an offence to endanger the human life or personal safety of others through a rash or negligent act. The punishment is 3 years imprisonment or fine of Rs. 250 or both
  • Section 337 & 338 IPC makes it an offence to cause simple hurt or grievous hurt through rash or negligent act. The punishment is upto 6 months of imprisonment or fine upto Rs. 500 or both for simple hurt and punishment upto 2 years or fine upto Rs. 1000 or both for causing grievous hurt.

However, doctors are protected by the Law under Criminal law:
  • Section 88 IPC provides exemption for acts not intended to cause death, done by consent in good faith for persons' benefit
  • Section 92 IPC provides for exemption for acts done in good faith for the benefit of a person without his consent though the acts cause harm to a person and that person has not consented to suffer such harm.
  • Section 93 IPC saves from criminality certain communications made in good faith.

The courts for conviction of a doctor for alleged criminal offence requires that:
  • the standard should be proof of recklessness and deliberate wrong doing i.e. a higher degree of morally blameworthy conduct.
  • the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one.

IMPORTANT GUIDELINES LAID DOWN BY THE SUPREME COURT IN DR. SURESH GUPTA VS. GOVT. OF NCT OF DELHI, 2005
  1. Mandatory prima facie evidence: A private complaint would not be allowed unless complainant produces prima facie evidence before a court in form of an 'opinion by another doctor supporting his charge of 'recklessness' or 'gross negligence'. 
  2. Directions for Police: Before proceeding against doctor on the allegation of criminal negligence, the IO should obtain independent and competent medical opinion on the facts (like P.M. Report & Opinion of board of doctors working in the same specialty including forensic medicine expert preferably form medical teacher's community, involving NGOs or Social worker). 
  3. Directions in Matter of Arrest: Doctor may not be arrested as a matter of routine. But arrest of doctor should be delayed unless required for furthering probe or collecting evidence or if there is a chance of his not being available for probe or when try to obstruct probe or not cooperating law enforcing agencies. A doctor may be arrested, if his arrest is necessary for furthering the investigation or for collecting evidence or the doctor would not make himself available to face prosecution unless arrested.
C. CONSUMER DISPUTE REDRESSAL FORUM
In India, the Consumer Protection Act, 1986 envisages three-tier grievance Redressal mechanisms:
  1. At District level – District Consumer Dispute Redressal Forum - to be chaired by a District Judge and two other members. Compensation towards damages upto Rs.20 lakhs
  2. At State level – State Consumer Dispute Redressal Commission – chaired by a High court Judge and two other members. Compensation above Rs.20 lakhs to 1 Crore
  3. At National Level – National consumer Dispute Redressal Commission – chaired by a Judge of Supreme Court and four other members. Compensation more than Rs.1 Crore
Within 30 days from the date of decision, appeal can be filed in the higher commission. Appeal against the decision of the District Forum can be filed before the State Commission and any verdict given by the National Commission can be challenged before the Supreme Court of India.


Read Day 1 Here