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Saturday, November 23, 2013

Can doctors be prosecuted for medical negligence ???

From The question of liability of doctors for negligence came before the Supreme Court of India in the case of Jacob Mathew Vs State of Punjab (2005). On 15th February 1995, a patient was admitted in a private ward of the CMC hospital, Ludhiana. The patient felt serious difficulties in breathing at about 11pm on the night of 22nd February 1995. Patient’s son immediately contacted the nurse who in turn called the doctors. After about 20-25 minutes Dr. Jacob Mathew and Dr. Allen Joseph came to the patient’s room and connected an oxygen cylinder to patient’s mouth, but the cylinder was found empty. No other cylinder was available in the room at that time. However the patient’s son managed a cylinder from the adjoining room but no arrangement was made to make the cylinder functional. 5-7 minutes were wasted in this process and by that time the patient died. An F.I.R was lodged in this connection and the judicial magistrate Ist class Ludhiana framed charges under sections 304A and 34 IPC against the two doctors for negligence. A revision petition was filed by both the doctors in the court of sessions judge but the same was dismissed. The High Court also dismissed the petition filed by both the doctors for quashing the FIR and all subsequent proceedings. The aggrieved doctors then filed a petition before the Supreme Court of India by special leave. The main issue before the court in this case was to ascertain the liability of doctors for negligence under civil and criminal law. The hon’ble court observed that, there is a difference in the concept of negligence under civil and criminal laws. In criminal law, the amount and degree of negligence is determinative of liability. Mens rea or mental element cannot be excluded in case of criminal negligence. For the existence of criminal rashness or negligence it is to be found that the rashness was of such degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The professionals such as lawyers or doctors posses special skills for performing special tasks, but that does not mean that they can assure about the positive results in every dealing. What they can assure is that, they posses the requisite skill in their respective branch of profession and they will exercise their skill with reasonable competence while performing the task. It is not compulsory for every professional to posses the highest level of skill in his respective branch of profession. A mere accident or deviation from the normal professional practice is not necessarily an evidence of negligence. Sometimes there may be an error of judgment while making a choice between the available procedures. But as long as the adopted procedure is found to be acceptable by medical science as on that date, the medical practitioner cannot be held negligent merely because he choose to follow one procedure and not the other resulting in failure. The court further observed that if a doctor is kept under the fear of legal action then he cannot perform a successful treatment. A doctor under the fear of facing a criminal prosecution in the event of failure for whatever reasons, whether attributable to him or not, can never go for a successful treatment. Even the doctors may feel it better to leave a terminal patient untreated when the chances of success may be less than 10% or so. In case of serious patients who are in a state of ‘coma’ or in case of grave emergencies where the patients death is almost certain, the doctors may try for a last effort towards saving the life, but if there is a fear of criminal prosecution then the doctors may not go for taking a risk and facing a legal action. “Negligence” with reference to doctors necessarily calls for a different treatment. Our criminal law has invariably placed the medical professionals on a different pedestal from the ordinary mortals. The Indian Penal Code under the chapter of general exceptions provide exemptions for acts not intended to cause death , done by consent in good faith for person’s benefit. Section 92 provides exemptions for acts done in good faith for the persons benefit without his consent though the act causes harm to that person and the person has not consented to suffer such harm. However doctors can also be prosecuted for an offence containing rashness or negligence, but there is a need for protecting doctors from frivolous and unjust prosecutions. The hon’ble court formulated the following guidelines to be followed, which should govern the prosecution of doctors for offences of which criminal rashness is an ingredient: A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should , before proceeding against the doctor accused of rash or negligent act or omission , obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion. A doctor accused of rashness and negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld. The court finally held that, even if all the averments made in the complaint of the present case are proved, they do not make out a case of criminal rashness or negligence on the part of the accused appellant. The accused appellant cannot be prosecuted under section 304A IPC, however the hospital may be liable in civil law.

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