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Friday, December 31, 2004

Eligibility clause for government doctors to join PG courses set aside

Eligibility clause for government doctors to join PG courses set aside

By Staff Reporter of 'The Hindu' on the daily on 30/12/2004
http://www.hindu.com/2004/12/30/stories/2004123006830500.htm

CHENNAI, DEC. 29.
A clause making three years of uninterrupted service mandatory for Government doctors to join postgraduate medical courses under the in-service candidate quota, as against original two years, was set aside by the Madras High Court.

The matter relates to a batch of more than 45 writ appeals against a single judge order upholding Clause 23 of the Prospectus for PG medical examination 2004-05, following an October 2002 Government Order to that effect.

Earlier, Government doctors were required to put in a minimum of two years of 'satisfactory, continuous and uninterrupted service' to be eligible to apply for postgraduate medical courses under the in-service candidate quota. They were required to serve in a primary health centre after the completion of the PG course as well.

However, the impugned order was pursuant to a policy decision to reduce the compulsory period of service to be rendered in rural areas from five years to three years, and simultaneously increase the minimum in-service eligibility criterion from two years to three years. When it was challenged, a single judge dismissed all the writ petitions and upheld the government decision.

Passing orders on the present batch of appeals, a Division Bench comprising Justice M. Karpagavinayagam and Justice S.R. Singharavelu said there was no nexus between the impugned decision and the object sought to be achieved by the Government.

The Bench referred to the Government's stand that as per the present decision the candidates need not go back to the primary health centres after completing the PG course and said, "if this argument is accepted rural people would be deprived of availing themselves of medical care by more qualified persons having expert knowledge in specialised subjects."

Stating that it was "not in public interest," the Judges said increasing the eligibility from two to three years would not achieve the object of rendering quality medical service to rural masses.

`Missing link'

They further said though the impugned decision was taken in October 2002 itself, instead of implementing it in the next year, it was given effect only for the academic year 2004-2005. "What is the reason for the introduction of this clause belatedly? There is no explanation." In view of this "missing link" the students' contention that the clause was introduced to deprive the present batch alone "has got to be countenanced. It cannot be said to be fair and equitable."

The judges also rejected the Medical Council of India's submission that the appellants that "no admission was permissible at this stage," and directed the authorities to admit the appellants in PG courses after informing them of their selection.

Note: Copyright: 1995 - 2004 The Hindu: Republication or redissemination of the contents of this screen are expressly prohibited without the consent of The Hindu

Sunday, August 08, 2004

Patients aggrieved over Supreme Court judgment

From http://www.hinduonnet.com/2004/08/08/stories/2004080804941000.htm

New Delhi, Aug. 7. While the medical profession has welcomed the Supreme Court ruling on Thursday that a doctor will not be criminally liable if a patient dies due to an error of judgment or carelessness or want of due caution, patients feel aggrieved over the judgment.

The court had quashed the criminal proceedings against a plastic surgeon who faced a charge under Section 304 A of the Indian Penal Code (causing death by negligence) for causing the death of a person during surgery for removing his nasal deformity in April 1994.

'We welcome it'

Speaking to The Hindu on behalf of the medical profession, Dr. T.N. Rao, a World Health Organisation fellowship awardee, said: "We welcome the judgment. We are trained in such a way that we take due care and caution to save a patient by all means. But despite our efforts we may not succeed in all cases. That does not mean we have not given our best to the patient."

"Nowadays we find that doctors are being threatened with filing of cases even if there is no fault on them and we have to face unnecessary inquiry and harassment from police," he said. This judgment would put an end to such unpleasant incidents. "We can perform our duties much better than before since the threat of Damocles Sword no longer hangs on our head".

"I don't say that all doctors are above board. Just like any other profession, there may be one or two black sheep in the medical profession also. But people will neglect them and they cannot continue in the profession for long," he said. He did not agree with the perception that this judgment will embolden doctors to throw caution to the winds while treating patients.

The former Attorney General and senior advocate, Ashok Desai, who defended the plastic surgeon in the Supreme Court, said that for fixing criminal liability on a doctor or a surgeon, the standard of negligence required to be proved should be so high, for example, a doctor amputating left leg instead of right leg and similar other acts of gross negligence. Otherwise for anything and everything a patient would rush to a police station. He said that even in the United States and the United Kingdom, doctors were very rarely hauled up with criminal charges, though there might be instances of payment of compensation for negligence. He cited the judgment of House of Lords in "R. Vs Adomako" in which it was held that a doctor could not be held criminally responsible for patient's death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State.

M.N. Krishnamani, senior advocate, said the Medical Council of India was to have non-medical members in its Council as well as in all the State Medical Councils to ensure that doctors were made more accountable than in the present set-up. Such an appellate authority would act as an Ombudsman for dealing with complaints of medical negligence.

The MCI, he said would also incorporate a provision in the MCI Act that any complaint against a delinquent doctor should be deposed of by the State Medical Council within six months not only to deal effectively with medical negligence but also to safeguard the interests of poor patients across the country.

'May not help the poor'

Human rights activists, however, feel let down by the judgment. Considering the level of illiteracy in the country and poor economic condition of patients, this judgment would embolden doctors to give scant regard and concern for the patients, particularly in government hospitals. The rich could sue doctors for compensation for proven negligence or carelessness and fight it out in courts but the poor could not afford this luxury. The judgment failed to address this aspect, they said.

Thursday, August 05, 2004

Doctors Not to be Arrested Supreme Court Appeal (crl.) 778 of 2004

CASE NO.:
Appeal (crl.) 778 of 2004

PETITIONER:
Dr. Suresh Gupta

RESPONDENT:
Govt. of N.C.T. of Delhi & Anr.

DATE OF JUDGMENT:
04/08/2004

BENCH:
Y. K. Sabharwal & D. M. Dharmadhikari

JUDGMENT:
J U D G M E N T

(Arising out of SLP(Crl.) No. 2931 of 2003)

Dharmadhikari J.


Leave to appeal is granted.

The appellant who is a Doctor (Plastic Surgeon) is in the dock as an
accused on the charge under Section 304 A of the Indian Penal Code [for
short the 'IPC'] for causing death of his patient on 18.4.1994. The patient
was operated by him for removing his nasal deformity. It may be mentioned
at the outset, that the Anesthetist who was assisting the surgeon in the
operation was also made co-accused but it is reported that he died pending
the trial. The proceedings, therefore, stand abated against him.

The appellant urged before the Magistrate that the medical evidence
produced by the prosecution, does not make out any case against him to
proceed with the trial. The learned magistrate in deciding to proceed with
the trial recorded following reasons in the impugned order dated
28.11.1998 passed by him :-
"Postmortem report is very categorical and very clear and it has been
clearly mentioned therein that death was due to the complication
arising out of the operation. That operation was conducted by both
the accused persons. It is also clear from the material on record that
deceased was young man of 38 years having no cardiac problem at all
and because of the negligence of the doctors while conducting
minor operation for removing nasal deformity, gave incision at
wrong part due to that blood seeped into the respiratory
passage and because of that patient immediately collapsed
and died and it was also attempted to show by the accused persons
that he was alive at that time and was taken to Ganga Ram Hospital
for further medical attention.
It is clear from the record that patient had actually died at the clinic of
the accused and therefore, I am of the opinion that there are sufficient
grounds on record to make out a prima facie case against both the
accused for commission of offence under Section 304A IPC. Let notice
be served accordingly."

[Emphasis supplied]

As the Magistrate decided to proceed with the trial, the doctor
approached the High Court by petition under Section 482 of the Code of
Criminal Procedure. The High Court refused to quash the criminal
proceedings and upheld the order of the Magistrate, although it records that
the Metropolitan Magistrate was obviously wrong, in the absence of any
medical opinion, in coming to a conclusion that the surgeon had given a cut
at wrong place of the body of the patient at the time of operation leading to
blood seeping into the respiratory passage and blocking it resulting in his
death. The High Court, however, declined to quash the proceedings against
the doctor for the alleged criminal liability. In the impugned order dated
1.4.2003, it recorded its reasons thus :-
"In the present case two doctors who conducted the post-mortem
examination have taken an emphatic stand which they have reiterated
even after the Special Medical Board opinion, that death in this case
was due to 'asphyxia resulting from blockage of respiratory
passage by aspirated blood consequent upon surgically incised
margin of nasal septum.' This indicates that adequate care was
not taken to prevent seepage of blood down the respiratory
passage which resulted in asphyxia. The opinion of the Special
Medical Board is not free from ambiguity for the reasons already given.
Such ambiguity can be explained by the concerned doctors when they
are examined during the trial."


Learned senior counsel Shri Ashok Desai appearing for the doctor,
has taken us through the contents of the medical opinions produced by the
prosecution with the complaint and some medical books and decided cases
to submit that accepting the entire case of the prosecution, as has been laid
before the trial magistrate, to be true, no case for convicting the doctor for
criminal negligence under section 304A IPC has been made out. He submits
that in the larger interest of medical profession, the criminal proceedings
instituted against his client deserve to be quashed.

Reliance is placed on the House of Lords decision in the case of
R. vs. Adomako [1994 (3) All E. R. 79]; Suleman Rehman Mulani vs.
State of Maharashtra [1968 (2) SCR 515] and Laxman Balkrishna
Joshi vs. Trimbak Bapu Godbole [1969 (1) SCR 206].

We have also heard learned senior counsel Shri Harish Chandra for
the prosecution, who supported the view taken by the Magistrate and the
High Court that the surgeon was guilty of gross negligence in giving an
incision at the wrong place and did not take necessary precautions in the
course of surgical operation to prevent seepage of blood down the
respiratory passage of the patient and the resultant death by asphyxia.

It is settled position in law that the inherent power of the High Court
under section 482 Criminal Procedure Code for quashing criminal
proceedings can be invoked only in cases where on the face of the
complaint or the papers accompanying the same no offence is made out for
proceeding with the trial. In other words, the test is that taking the
allegations and the complaint, as they are, without adding or subtracting
anything, if no offence is made out, the High Court will be justified in
quashing the proceedings [See Municipal Corporation of Delhi vs. Ram
Kishan Rohtagi (AIR 1983 SC 67); and Durgs Inspector vs. B.K.
Krishnaiah (AIR 1981 SC 1164)]

To decide whether on the basis of the complaint and the medical
opinion produced along with it, any offence is made out or not, it is
necessary to examine the papers produced with the complaint. The patient
died in the course of surgical operation on 18.4.1994, but the post-mortem
was conducted on 21.4.1994. By that time rigor mortis had almost passed
off. The post-mortem report gave opinion on the cause of death by
recording thus :-

"Asphyxia resulting from blockage of respiratory passage by aspirated
blood consequent upon surgically incised margin of nasal septum. The
cause of death to the best of my knowledge and answers to the
question put by IO."


A Special Medical Board of four eminent doctors was constituted by
the investigating agency out of which three recorded their unanimous
opinion as under :-

After the perusal of all the documents produced before the Committee,
we are of the view that the death of Mr. Siavash Karim Arbab,
occurred due to sudden cardiac arrest, the direct cause of which
(Cardiac Arrest) cannot be ascertained. However, possible cause
leading to cardiac arrest can be as follows :-

1. Hypotension due Head-up-Position
2. Adverse drug reaction
3. Hypoxia

Death due to Asphyxia resulting from blockage of air passage
secondary to ante-mortem aspiration of blood from the wound
is not likely in the presence of cuffed endo-tracheal tube of
proper size (8.5), which was introduced before the operation
and remained in position till the patient was declared dead in
Sir Ganga Ram Hospital, as per statements of members of the
operating team and available records. In the post-mortem report
there is presence of clotted fluid blood in respiratory passage, which
invariably occurs ante-mortem due to aspiration from operation site.
However, the presence of fluid and clotted blood in the
respiratory passage, as noted in the post-mortem report, due
to trickling of decomposition bloody fluid and some clot present
in the nostril from the site of incision in the nose, cannot be
ruled out after the tube is taken out. It is worth mentioning in the
present case that the death occurred on 18.4.1994 at 2.30 p.m. and
the post-mortem was conducted on 21.4.1994 at 12.20 p.m. when
sufficient degree of decomposition had started.

Sd/- Dr. Bharat Singh Sd/- Dr. Rizvi Sd/- P.L. Dhingra
Chairman Member Member
[Emphasis supplied]


One of the members of the doctors team Prof. Jagannatham gave a
separate report which reads as under :-
"After going through he relevant papers/documents and surgery and
anaesthesia notes, it was observed that, what medical care was
actually extended to the patient from 5 a.m. to 8.30 a.m. on
18.4.1994 at Delhi Plastic Surgery Clinic. It is surprising that the
patient's physical status belonged to ASA Grade-I. The actual cause of
cardiac arrest on the table noticed immediately after the start of
operation, was not clear and it still stands as enigmas whether the
surgeon had given any adrenaline infiltration to the patient or
originally planned to do the surgery under local anaesthesia could not
be decided. There is no mention about the use of inhalation
anaesthesia during the surgical procedure under the general
anaesthesia.

However, both anaesthetics and the surgeon immediately noticed the
cardiac arrest and started resuscitative measures well-in time to save
the patient's life. With all good intentions and team spirit, they
transported the patient under manual ventilation (supporting
respirations) and shifted the patient to Ganga Ram Hospital's ICU.

Sd/-
(Dr. Jagannatham)
15.11.1995"

It is on these medical papers produced by the prosecution, we have
to decide whether the High Court was right in holding that criminal liability
prima facie has arisen against the surgeon and he must face the trial. The
legal position is almost firmly established that where a patient dies due to
the negligent medical treatment of the doctor, the doctor can be made
liable in civil law for paying compensation and damages in tort and at the
same time, if the degree of negligence is so gross and his act was reckless
as to endanger the life of the patient, he would also be made criminally
liable for offence under section 304A of IPC.


Section 304A of IPC reads thus :-

"304A. Causing death by negligence.  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 extent to two years, or with fine, or
with both."


On behalf of the doctor learned counsel referred to section 80 and
section 88 of the IPC to contend that in various kinds of medical treatment
and surgical operation, likelihood of an accident or misfortune leading to
death cannot be ruled out. A patient willingly takes such a risk. This is part
of doctor patient relationship and mutual trust between them.

Section 80 and 88 read as under :-

"80. Accident in doing a lawful act. Nothing is an offence which is
done by accident or misfortune, and without any criminal intention or
knowledge in the doing of a lawful act in a lawful manner by lawful
means and with proper care and caution.

88. Act not intended to cause death, done by consent in good
faith for person's benefit. Nothing which is not intended to cause
death, is an offence by reason of any harm which it may cause, or be
intended by the doer to cause, or be known by the doer to cause, or
be known by the doer to be likely to cause, to any person for whose
benefit it is done in good faith, and who has given a consent, whether
express or implied, to suffer that harm, or to take the risk of that
harm."

Applying the laid down test for quashing or refusing to quash the
criminal proceedings under section 482 of the Criminal Procedure Code, we
have to find out whether from the complaint and the accompanying medical
papers and by accepting the entire case alleged by the prosecution to be
true, an order of conviction of the doctor for offence under section 304A of
IPC can be passed.

The operation was performed on 18.4.1994 and the patient is alleged
to have died on the same day. The post-mortem was performed after three
days i.e. on 21.4.1994. According to the post-mortem report, the cause of
death was : "blockage of respiratory passage by aspirated blood consequent
upon surgically incised margin of nasal septum."

The medical experts constituting the Special Medical Board set up by
the investigation have opined that "the blockage of air passage was due to
aspiration of blood from the wound and it was not likely in the presence of
cuffed endo-tracheal tube of proper size being introduced before the
operation and remained in position." The team of experts also opined that
'presence of fluid and clotted blood in respiratory passage is likely, as it
invariably occurs ante-mortem due to aspiration from operation site.' But
they also opined that 'presence of fluid and clotted blood in the respiratory
passage, as noted in the post-mortem report, due to trickling of
decomposition bloody fluid and some clot present in the nostril from the site
of incision in the nose, cannot be ruled out after the tube is taken out.'

Dr. Jagannatham, one of the members of the Special Medical Team
constituted during investigation has, however, given separate opinion, the
details of which we have quoted above. It seems to be to some extent in
favour of the accused surgeon. From the post-mortem report and the
opinion of the three medical experts of the medical team specially
constituted, the case of the prosecution laid against the surgeon is that
there was negligence in 'not putting a cuffed endo-tracheal tube of proper
size' and in a manner so as to prevent aspiration of blood blocking
respiratory passage.

For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as "gross negligence" or recklessness". It is not merely lack of necessary care,
attention and skill.
The decision of the House of Lords in R. Vs. Adomako
(Supra) relied upon on behalf of the doctor elucidates the said legal
position and contains following observations :-

"Thus a doctor cannot be held criminally responsible for patient's death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State."


Thus, when a patient agrees to go for medical treatment or surgical
operation, every careless act of the medical man cannot be termed as
'criminal'. It can be termed 'criminal' only when the medical man exhibits a
gross lack of competence or inaction and wanton indifference to his
patient's safety and which is found to have arisen from gross ignorance or
gross negligence. Where a patient's death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might
create civil liability but would not suffice to hold him criminally liable.

This approach of the courts in the matter of fixing criminal liability on the doctors, in the course of medical treatment given by them to their patients, is necessary so that the hazards of medical men in medical profession being exposed to civil liability, may not unreasonably extend to
criminal liability and expose them to risk of landing themselves in prison for alleged criminal negligence.

For every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment. Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large because if the courts were to impose criminal liability on hospitals and doctors for everything that goes
wrong, the doctors would be more worried about their own safety than giving all best treatment to their patients. This would lead to shaking the mutual confidence between the doctor and patient. Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an offence of culpable negligence.


No doubt in the present case, the patient was a young man with no history of any heart ailment. The operation to be performed for nasal deformity was not so complicated or serious. He was not accompanied even by his own wife during the operation. From the medical opinions produced by the prosecution, the cause of death is stated to be 'not introducing a cuffed endo-tracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage'. This act attributed to the doctor, even if accepted to be true, can be described as negligent act as there was lack of due care and precaution. For this act of negligence he may be liable in tort but his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable.

Between civil and criminal liability of a doctor causing death of his patient the court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrong doing i.e. a higher degree of morally blameworthy conduct.

To convict, therefore, a doctor, 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. The courts have, therefore, always insisted in the case of alleged criminal offence against doctor causing death of his patient during treatment, that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable.

See the following concluding observations of the learned authors in
their book on medical negligence under the title 'Errors, Medicine and the
Law' [by Alan Merry and Alexander McCall Smith at pg. 247-248]. The
observations are apt on the subject and a useful guide to the courts in
dealing with the doctors guilty of negligence leading to death of their
patients :-

"Criminal punishment carries substantial moral overtones. The doctrine
of strict liability allows for criminal conviction in the absence of moral
blameworthiness only in very limited circumstances. Conviction of any
substantial criminal offence requires that the accused person should
have acted with a morally blameworthy state of mind. Recklessness
and deliberate wrong doing, levels four and five are classification of
blame, are normally blameworthy but any conduct falling short of that
should not be the subject of criminal liability. Common-law systems
have traditionally only made negligence the subject of criminal
sanction when the level of negligence has been high a standard
traditionally described as gross negligence.


Blame is a powerful weapon. When used appropriately and according
to morally defensible criteria, it has an indispensable role in human
affairs. Its inappropriate use, however, distorts tolerant and
constructive relations between people. Some of life's misfortunes are
accidents for which nobody is morally responsible. Others are wrongs
for which responsibility is diffuse. Yet others are instances of culpable
conduct, and constitute grounds for compensation and at times, for
punishment. Distinguishing between these various categories requires
careful, morally sensitive and scientifically informed analysis."


After examining all the medical papers accompanying the complaint,
we find that no case of recklessness or gross negligence has been made out
against the doctor to compel him to face the trial for offence under section
304A of the IPC. As a result of the discussion aforesaid on the factual and
legal aspect, we allow this appeal and by setting aside the impugned orders
of the Magistrate and of the High Court, quash the criminal proceedings
pending against the present doctor who is accused and appellant before us.

Criminal liability for medical negligence: a drastic change?


Criminal liability for medical negligence: a drastic change?
by M R Hariharan Nair

Taken from http://www.issuesinmedicalethics.org/124hl126.html

The Supreme Court declared on August 4, 2004, in Dr Suresh Gupta's Criminal Appeal [Appeal (crl.) 778 of 2004] that to sustain a prosecution for the offence under S. 304A of the Indian Penal Code (IPC), and to fix criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high that it can be described as 'gross negligence' or 'recklessness', not merely lack of necessary care. On those premises it quashed the criminal proceedings against Dr Gupta before they reached trial in the Magistrate's Court.

Until this judgment came out, a precedent was set by the decision of the Supreme Court dated February 4, 2004, in Mohanan v. Prabha G Nair and another (2004) CPJ 21(SC). In this case, a woman in the seventh month of pregnancy underwent medical intervention and delivered a dead child on the next day. She passed away three days later, while under medical care. The husband alleged in his police complaint that though he repeatedly asked for permission to remove his wife to a medical college hospital, the doctor advised against the shift saying that the patient had no serious problem and that everything would turn out all right. Subsequent events obviously proved otherwise.

Based on the opinion of the radiologist and the doctor who conducted the autopsy, the Criminal Court took cognisance of the offence punishable under S.304A of the IPC. The doctor petitioned to quash the proceedings invoking S. 482 of the Criminal Procedure Code, on the ground that there was no prima facie case. The concerned High Court held that the mere fact that a patient dies in a hospital does not lead to the presumption that the death occurred due to the doctor's negligence. To hold a doctor criminally responsible for a patient's death, it must be established that there was negligence or incompetence on the doctor's part, which went beyond civil liability. Criminal liability would arise only if the doctor did something in disregard to the patient's life and safety.

The Supreme Court, however, set aside the said High Court decision holding that the doctor's negligence could be ascertained only by scanning all material and expert evidence that might be adduced during the trial. The High Court was held not justified in quashing the complaint at the threshold invoking the special power under S. 482 of the Criminal Procedure Code as that would do away with a full-fledged criminal trial necessary for fixing criminal liability.

Relevant legal provisions
According to S. 304A of the IPC
, whoever causes the death of any person by a rash or negligent act not amounting to culpable homicide shall be punished by imprisonment for up to two years, or by fine, or both.

According to S. 80 of the IPC, 'nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act, in a lawful manner, by lawful means and with proper care and caution.' In other words, if a person commits an act by accident or misfortune without a criminal intention, using lawful means and with proper care and caution, his action cannot be labelled a criminal offence.

Again, S. 88 of the IPC provides that nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm. In other words, an act, not intended to cause death, and done in good faith and with the consent of the other party, cannot be labelled an offence even if it leads to the other party's death or disability. It may also be mentioned here that the word 'good faith' used here has a special meaning. It means an act done wih due care and attention.

Let us analyse the recent Supreme Court decision in the light of the legal positions stated above.

On April 18, 1994, Dr Suresh Gupta, a plastic surgeon, operated on his patient for removing a nasal deformity. Allegedly, he made an incorrect incision as a result of which blood seeped into the patient's respiratory passage leading to his immediate collapse and death. A case was filed against the doctor under S. 304A of the IPC. The anaesthetist who assisted Dr Gupta in the operation was also made co-accused; but he died while the trial was pending. The criminal proceedings therefore continued against Dr Gupta alone.

Rejecting Dr Gupta's plea for discharge without trial, the magistrate noted that according to the post-mortem report, the cause of death was 'blockage of respiratory passage by aspirated blood consequent upon surgically incised margin of nasal septum'; that the medical experts constituting the Special Medical Board set up for the investigation had opined that the blockage and aspiration of blood from the wound were not likely to arise if a cuffed endotracheal tube of proper size had been introduced before the operation and kept intact, and that the negligence in not taking this precaution justified further trial proceedings.

The Supreme Court did not agree to this. It has now held that to fix criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high that it can be described as gross negligence or recklessness and not merely lack of necessary care, attention and skill. Every careless act of a medical person cannot be termed 'criminal'. It can be termed 'criminal' only when doctors exhibit gross lack of competence or inaction, and wanton indifference to their patients' safety, as a result of gross ignorance or gross negligence. When a patient's death results merely from an error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability; but not criminal liability. It was held that but for this approach, the hazards in the medical profession which include civil liability would also unreasonably extend to criminal liability, and doctors would then be at the risk of landing up in prison, a result that would shake the mutual confidence between doctor and patient.

Based on these facts, the Supreme Court held that though the patient was a young man with no history of any heart ailment, the operation to be performed for nasal deformity was not so complicated or serious; and that the alleged lapse, i.e. the failure to introduce a cuffed endotracheal tube of proper size to prevent aspiration of blood from the wound in the respiratory passage, could not be described as a reckless or grossly negligent act as to make him criminally liable. Holding that such evidence was wanting, the doctor was acquitted without trial.

Were these findings not similar to those held by the High Court concerned, though in different words in Mohanan's case, but found unsustainable by the Supreme Court then? If the quashing of the charge with the observation that the doctor's negligence could be ascertained only by scanning the material and expert evidence that might be adduced during a prospective trial was not in order in Mohanan's case, how could the reason given for quashing charges in Dr Suresh Gupta's case be correct?

It appears that if the decision in Mohanan's case had been followed by the later Bench that decided Dr Suresh Gupta's case, the ultimate decision might have been different. Probably the earlier decision was not cited before the new Bench.

The impact of the judgment, though significant, may be short lived. The reason is that according to press reports, a Bench consisting of Justice Arijit Pasayat and CK Thakker, on or about September 9, 2004, has referred the question of medical negligence for determination by a larger Bench of the Supreme Court observing that the words 'gross, reckless, competence, indifference' etc. did not occur anywhere in the definition of 'negligence' under S. 304A of the IPC, and hence, they could not agree with the judgment delivered in the case of Dr Suresh Gupta. Thus the matter will come up for review before a larger bench of the Supreme Court any time now.

--------------------------------------------------------------------------------
M R Hariharan Nair, (Retired Kerala High Court Judge), Chairman, Institutional Review Committee, Sree Chitra Tirunal Institute for Medical Science and Technology, Thiruvananthapuram 695011, Kerala, India. email: justicemr@sancharnet.in

Monday, June 07, 2004

G.O (Ms) No.197 Dated: 7.6.2004 Upgraded Primary Health Centres – Creation of 186 posts of Medical Officers


ABSTRACT

Health and Family Welfare – Upgraded Primary Health Centres – Creation of 186 posts of Medical Officers – Appointment on Contract Basis – Terms and Conditions – Orders – issued.


HEALTH AND FAMILY WELFARE (E2) DEPARTMENT

G.O (Ms) No.197
Dated: 7.6.2004

Read:

1. G.O.(Ms) No.1395, Health dt, 27.9.2001

2. G.O.(Ms) No.293, Health dt, 12.10.2001

3. G.O.(Ms) No.106, Health dt, 7.6.2002

4. G.O.(Ms) No.210, Health dt, 24.10.2002

5. G.O.(Ms) No.108, Health dt, 22.5.2003

6. G.O.(Ms) No.320, Health dt, 29.9.2003

ORDER:

In the Government Order read above, the Government have issued orders for the upgradation of 93 Primary Health Centres as detailed in Annexure 1. The upgraded Primary Health Centres (UPHCs) have been provided with modern equipments like Ultra Sonograms, Portable ECGs, X-Ray with improved laboratory facilities and ambulances.

2. In order to provide round the clock service to the people at the upgraded Primary Health Centres it has been decided to create 186 posts of Medical Officers at the rate of two (one male and one female) for each of the upgraded Primary Health Centres. The Government have accordingly decided to create 186 additional posts of Medical Officers. It has also been decided to fill up the above posts on contract basis.

3. Accordingly the Government direct that 186 posts of Medical Officers be created in the 93 Upgraded Primary Health Centres. The Government also direct that these posts shall be filled up on contract basis. The Medical Officers shall be paid a consolidated pay of Rs.8000 (Rupees eight thousand only) per month.

4. The details of the Upgraded Primary Health Centres are indicated in Annexure 1. The procedure for selection of Medical Officers and the terms and conditions of appointment are indicated in Annexure II and III of this order. The form of agreement to be executed by the Medical Officers is indicated in Annexure IV of this order.

5. The expenditure shall be debited to

“2210-Medical and Public Health II State Plan – 03.Rural Health Services – Allopathy – 103.Primary Health Centres – JM.Primary Health Centres – (DPC 2210 03 103 JM 0008)”.

6. This order issues with the concurrence of Finance Department vide its U.O.No.1672/FS/P/2004 dated 4.6.2004.

(BY ORDER OF THE GOVERNOR)

SHEELA RANI CHUNKATH
SECRETARY TO GOVERNMENT

To

The Director of Public Health and Preventive Medicine, Chennai-6.

The Director of Medical and Rural Health Services, Chennai-6.

The Director of Medical Education, Chennai-10.

All Collectors.

The Accountant General, Chennai-18/35

All Treasury Officers of the concerned Districts.

The Pay and Accounts Officer, Chennai / Madurai.

Copy to:

Personnel & Administrative Reforms/Finance Departments.

Under Secretary to Hon’ble Chief Minister, Chennai-9.

The Senior Personal Assistant to Minister for Health, Chennai-9.

SF/SCs

//Forwarded/By order//

Section Officer

ANNEXURE I

UPGRADED PRIMARY HEALTH CENTRES

UPGRADED PRIMARY HEALTH CENTRES FUNCTIONING IN TAMIL NADU

SI.No

Name of the HUD

Part II Scheme 2001-02 G.O.Ms.No.1395 H dated 27/09/2001

PMGY 2001-02 G.O.Ms.No. 293H Dated 12/01/2001

PMGY 2002-03 G.O.Ms.No. 106H Dated 7/06/2002

NABARD G.O.Ms.No. 210H Dated 24/01/2002

PMGY 2003-04 G.O.Ms.No. 108H Dated 22/05/2003

Upgraded During 2003-04 G.O.Ms.No. 320 H Dated 29/09/2003

Total

1.

Kancheepuram

Walajabad

Achirapakkam

Tiruppukuzhi

3

2.

Saidapet

Nandivaram

1

3.

Tiruvellore

R.K.Pet

1

4.

Poonamallee

0

5.

Vellore

Anaicut

Banavaram

Odugathur

3

6.

Tirupattur

Madanur

1

7.

Tiruvannamalai

Kadaladi

1

8.

Cheyyar

S.V.Nagaram

Peranamallur

3

Thatchur

9.

Cuddalore

Oraiyur

Puduchatram

2

10.

Villupuram

Siruvanthadu

Mallam

Valathy

3

11.

Kallakurichi

Kachirapalayam

Iruvelpattu

Mugaiyour

4

Thiyagadurgam

12.

Thanjavur

Thiruvonam

Budalur

Thondrampattu

3

13.

Tiruvarur

Vadavur

1

14.

Nagapattinam

Thalainayar

Tirupoondi

2

15.

Tiruchirapalli

Uppiliyapuram

Kulumani

Valyampatti

Thattaiyangarpet

4

16.

Perambalur

Meensurity

Andimadam

3

Karai

17.

Karur

Mylampatti

Thogaimalai

2

18.

Pudukkottai

Viralimalai

2

Andakulam

19.

Aranthangi

0

20.

Madurai

Chekkanurani

Karungalakudi

3

Elumalai

21.

Theni

Kadamalalkundu

Veerapandy

Devadanapatty

3

22.

Dindugal

Kosavapatty

Kannivadi

Senthural

3

23.

Palani

0

24.

Ramanathapuram

Uchipull

Devipattinam

2

25.

Paramakudi

0

26.

Sivaganaga

Muthuanendal

Kalaiyarkoil

2

27.

Virudhunagar

Narikudi

1

28.

Sivakasi

0

29.

Tirunelveli

Kadayam

Mukkudai

Ukkirankottai

Kallur

5

Thirukarangudi

30.

Sankarankoil

Kuruvikulam

Pavaoorchatram

3

Sendamaram

31.

Tuticorin

Eral

Alwarthirunagar

3

Karungulam

32.

Koipatti

Kazhugumalai

2

Nagalapuram

33.

Nagecoil

Agastheeswaram

Edaicode

2

34.

Salem

Kadayampatti

Valapadi

2

35.

Namakkal

Erayamangalam

Vinaitheerthapuram

Mohanur

6

Valavanthinadu

Kokkarayanpatti

Belukkurichi

36.

Dharmapuri

Marandhahalli

Morappur

Karimangalam

Thoppur

4

37.

Krishnagiri

Soolagiri

Anjetti

2

38.

Coimbatore

Karamadai

Kolarpatti

2

39.

Tiruppur

Pongalur

3

Kumaralingam

40.

Erode

Nambiyur

3

Thalavadi

Koogalur

41.

Dharapuram

Modakurichi

Kunnathur

2

42.

Nilgiris

Keradamattam

1

1

20

20

17

2

33

93

ANNEXURE – II

PROCEDURE FOR SELECTION

1) The selection of Doctors on Contract basis shall be made by the Selection Committee as detailed below:

1. District Collector - Chairman

2. JD / DD Medical and Rural Health Services and Family Welfare of the respective HUDs - Member

3. Deputy Director of Health Services of the respective HUDs - Member / Convenor

2) The candidates shall posses minimum qualification of MBBS Degree.

3) The District level Selection Committee shall obtain a list of qualified candidates from the Employment Exchange for interview and select the candidates by following the procedure prescribed. If suitable candidates are not available in the Employment Exchange the District Committee shall obtain NOC (No Objection Certificate) from the Employment Exchange and then issue advertisement in prominent local newspapers calling for application from suitable candidates for appointment as medical officers on contract basis.

4) The committee shall scrutinize the applications received, call for interview, screen the candidates and select them keeping in mind the following criteria, namely:-

a. Rule of reservation to be followed in the contract appointments.

b. Selection and appointment may be made for specific upgraded Primary Health Centre.

c. Preference will be given to the doctors resident near the Primary Health Centres to which they seek appointment.

5) The Deputy Director of Health Services shall issue the appointment order after the approval of the District committee.

6) The Deputy Director of Health Services are authorized to issue orders of termination in consultation with the District committee.

7) The Deputy Director of Health Services is the authority to draw and disburse the consolidated pay to the doctors appointed on contract basis. The Deputy Director of Health Services will intimate the vacancies to the committee as and when vacancies arise.

SECTION OFFICER

ANNEXURE – III

TERMS AND CONDITIONS FOR APPOINTMENT OF CONTRACT MEDICAL OFFICERS

1. The appointment is purely on contract basis. The period of contract shall initially be for one year from the date of joining. The contract may however be extended, further at the discretion of the District Level Committee depending upon the performance and need.

2. The candidate is liable to be terminated at any time during the period of contract, without any notice.

3. The selection of the medical officers will be specific to the upgraded Primary Health Centre. He / She will work in that Primary Health Centre during the period of Contract. He / She shall be paid a consolidated sum of Rs.8,000/- (Eight thousand only) per month and shall work for six days a week from 8.00 a.m. to 5.00 p.m. He / she shall be resident in Primary Health Centre Headquarters and will be on 24 hours call duty. He / She will also have to take up regular night duty as assigned.

4. Medical Officers working on contract basis shall abide by the duties and responsibilities assigned by the Deputy Director of Health Services.

5. The Medical Officers selected and posted for specific Primary Health Centres on contract basis shall not be transferred under any circumstances to any other Primary Health Centre or to any other Health Institution.

6. The Medical Officers working on contract are not eligible to apply for Post Graduate course as a Service candidate.

7. He / She will be eligible only for 10 days Casual Leave in a year. He / She will not be eligible for any other leave.

8. Any unauthorized absence will entail termination from service.

9. The Medical Officer will also carry out any instructions assigned from time to time in the course of his / her employment.

10. Any representation that the Medical Officers may have may be addressed to the Chairman of the District Committee who will give a quick hearing and fair disposal

SECTION OFFICER

ANNEXURE – IV

AGREEMENT

This agreement is made on the ………………..day of…………….Two thousand and four between Dr………………………(name) Daughter/Son/Wife of Thiru………………..residing at …………………and appointed as Medical Officers on contract basis (hereinafter referred to as the “Appointee”) the one part and the Government of Tamil Nadu which expression includes his successors in office and assignee (hereinafter referred to as the “Government”) of the other part.

Whereas the Appointee Dr…………………(Name) having been selected and appointed as Medical Officers to work on contract basis, in the Upgraded Primary Health Centre………………….

………………………………………………District for a period of one year ANDWHEREAS this contract appointment has to be governed by an agreement to be executed by the Appointee and the Government.

NOW THEREFORE it is hereby agreed as follows:-

1. The Appointee shall work in the Upgraded Primary Health Centre to which he/she is posted and undertake to discharge his/her duties and responsibilities to the best of his/her knowledge and ability.

2. The appointment is specific to the Upgraded Primary Health Centre for which the candidate is selected and the appointee should serve there for the entire period of contract.

3. The appointee shall not claim any rights as a full time member of services since it is only a contract appointment.

4. The Appointee shall not be entitled for any preferential claim whatsoever for regular appointment in Government service at a future date.

5. The Appointee shall not be entitled to any probationary or other rights.

6. The services of the Appointee are liable to be terminated at any time during the contract period without any notice.

7. The Appointee shall serve the Upgraded Primary Health Centre for the contract period and shall abide by all the rules in force.

8. This agreement shall remain in full force for the period of contract and all sums due by the Appointee to the Government of Tamil Nadu under this agreement shall be liable to be recovered from the Appointee under the Tamil Nadu “Revenue Recovery Act, 1864 (Tamil Nadu Act II of 1864)

This agreement is signed by the Appointee and Thiru………………………(name)…………………..(designation) acting for and on behalf of and by the order and direction of the Governor of Tamil Nadu on the day, month and the year first written above.

………………………….. ………………………

Signature of the Appointee Signature of Thiru……………(name)

…………………….(designation)

acting for and on behalf of and by the order and

direction of Governor of Tamil Nadu

Witnesses: Witnesses:

1. 1.

2. 2.

SECTION OFFICER