LegalMD Newsletter - April 2018

08 April, 2018

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Medico-Legal Newsletter                                                                                                  April 2018, New Delhi 
 

MEDICAL PROFESSIONALS & CRIMINAL LAW

“No doctor on earth can ever think of hurting or causing any damage to his/her patient to the best of his ability and expertise”. However no doctor can guarantee and ensure complete safety of his/her patients”
 
The changing doctor-patient relationship and commercialization of modern medical practice has affected the practice of medicine. On the one hand, there can be unfavourable results of treatment and on the other hand, the patient suspects negligence as a cause of their suffering. There is an increasing trend of medical litigation by unsatisfied patients.
It is the need of the hour, to have a concrete definition of the word- ‘Medical Negligence’, before all hell breaks loose, due to false and fabricated litigations against the Medical professionals.
 
 
WHAT IS MEDICAL NEGLIGENCE
 
When a doctor attends to his patient, he owes him certain duties of care viz.
  • A duty of care in deciding whether to undertake the case
  • A duty of care in deciding what treatment to give
  • A duty of care in the administration of treatment
 “Negligence” is the failure to exercise a duty of care towards another person.
 In general, negligence has three ingredients:
  • Doctor owes a duty of care to his patient
  • He commits breach of his duty
  • Patient has suffered some form of injury due to this breach of duty by the doctor 
LIABILITY OF DOCTORS UNDER CRIMINAL LAW
 
Persons who offer medical advice and treatment are implied to have the necessary skill and knowledge to undertake the job of treating a patient, prescribing medication, administer the treatment etc.
This is an “implied undertaking” on the part of the doctor/medical professional.
  • A doctor/medical professional can be held liable for negligence only if it can be proved that she/ he did not perform his professional duties with diligence and reasonable care and precaution.
           [The keyword is ‘Reasonable’-which we will see in detail in the subsequent paragraphs.]
  • An error of judgment can be considered as medical negligence only if a reasonably competent medical professional with the standard skills would not have made the same error.
  • Doctors/medical professionals must exercise an ordinary degree of skill, when treating a patient.
  • They cannot give a 100% assurance that the patient will be cured. If the right course of treatment has been adopted, then she/he cannot be blamed for medical negligence if the patient cannot be totally cured
 
WHAT DOES THE LAW SAY?
 
Various sections of the Indian Penal Code (IPC), 1860 may be invoked in matters dealing with medical negligence cases, some directly while others in an indirect manner.
The knowledge of provisions under the IPC may come handy to medical professionals in a contingency.
Let us see the relevant provisions of criminal law, which covers the cases of medical negligence
 
1) Section 304A IPC- Causing death by negligence is the most important and relevant law.
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 two years, or with fine, or with both.
 
It is attracted only in such cases when, the doctor has a legal duty to take care of the patient and if he fails to perform so, thereby resulting in death of the patient after the treatment.
 
The doing of a rash or negligent act, which causes death, is the essence of Section 304A IPC.
 
For negligence to amount to an offence, the element of mens rea (guilty mind) must be shown to exist as ‘negligence’. In criminal law, it is not the amount of damages but the amount and degree of negligence that is determines the liability.
 
To allege and prove- negligence under criminal law, it must be shown that the Doctor 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.
 
Other sections of I.P.C. , which may be relevant are:
 
i) Section 52 – Good faith
The expression "good faith" means what is done with due care and attention and what a reasonable and prudent man with such skills would have done in such a situation.

ii) Section 80 – Accident in doing a lawful act
No act is an offence if a person doing an act with proper care and caution and in good faith without any criminal intent.

iii) Section 81 – Act likely to cause harm, but done without criminal intent, and to prevent other harm
When a person does something knowing that the same is likely to cause harm to another, it is not an offence if it is proved that he had done that without any criminal intention to cause harm and in good faith.

iv) Section 88 – Act not intended to cause death, done by consent in good faith for person’s benefit
When something is done by a person which, may cause any harm to another, the same does not amount to an offence if the act is done for the benefit of the other in good faith and he has given express or implied consent to suffer that harm.

v) Section 92 – Act done in good faith for benefit of a person without consent
If there is a situation where the person is not in a position to signify consent/ incapable of giving consent and there is no consent taken, even then the person acting for the benefit of such a person is protected under this section if the act is done by him in good faith.

vi)Section 337 – Causing hurt by act endangering life or personal safety of others
In other words, whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both. For example, a surgical procedure is done on eye, limbs, face etc., without adequate aseptic precautions resulting in local infections. This may lead to loss of eyes, limb or disfigurement, etc.

vii) Section 338 – Causing grievous hurt by act endangering life or personal safety of others
In other words, whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both. For example, an unqualified doctor performing surgical procedure which results in permanent damage to eyes, limbs, hearing, etc.
 
BURDEN OF PROVING NEGLIGENCE
 
“Medical negligence is easy to allege but extremely difficult to prove”
 
The general rule is that the burden of proving negligence as a cause of the accident is on the patient who alleges it and for establishing negligence or deficiency in service, there must be sufficient evidence that a doctor or hospital has not taken reasonable care while treating the patient
 
The basic legal standard of care in most general negligence cases is the "reasonable person" standard.
In essence, the law asks the question: what would a reasonable person have done if faced with the same set of circumstances, as did the defendant.
Reasonable care in discharge of duties by the hospital and doctors varies from case to case, and expertise expected on the subject, which a doctor or a hospital has undertaken.
 
 
Damages are likely to be limited to those reasonably foreseeable by the doctor. If the doctor could not reasonably have foreseen that someone might be hurt by their actions, they may not be held liable.
 
 
SUPREME COURT GUIDELINES REGARDING ARREST OF DOCTORS
 
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 Investigating Officer 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)
3. Directions in Matter of Arrest: Doctor may not be arrested as a matter of routine.
The 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.
 
 
PROPOSED GUIDELINES FOR ARREST
  • There must be allegation of criminal negligence on the part of doctor, supported with an opinion from another doctor to register a case u/s 304A IPC
  • Investigating Officer must confirm the death and ask for autopsy by a board of doctor (at least 3 comprising one from same specialty under which deceased was getting treatment, one forensic medicine expert)
  • SDM / Executive Magistrate should hold inquiry as in case of custodial death. Independent inquiry by IMA by board of doctors who are competent and respectable in the locality/
  • Arrest executed only if alleged accused doctor is non-cooperative and obstructing the inquiry or cause disappearance of evidences.
  • Consideration should be given to doctor's reputation, his experience, and previous allegations, number of prospective and admitted patients under his care. Adverse publicity should not be allowed.
  • Involving NGOs, Social Workers, or some respectable citizens.
  • Provision of bail as provided in Cr.P.C are applicable.

 
CONCLUSION:

In Dr. Suresh Gupta’s Case, Supreme Court of India (2004), the Court held that the legal position was quite clear and well settled that whenever a patient died due to medical negligence, the doctor was liable in civil law for paying the compensation. 
Only when the negligence was so gross and his act was as reckless as to endanger the life of the patient, criminal law for offence under section 304A of Indian Penal Code (IPC), 1860 will apply.
While on the one hand, it is the duty of the Redressal agencies to safeguard the interests of the patients against malpractices by medical professionals but at the same time, it should not become a vicious weapon in the hands of unscrupulous patient to harass the medical professionals without good and adequate cause.
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