“Doctor can’t be held liable for error of judgment ”

http://www.hinduonnet.com/2009/02/19/stories/2009021959251400.htm

Indiscriminate proceedings and decisions are counter-productive: Supreme Court

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If punished, no doctor can practise his vocation with equanimity

It is true that medical profession has to an extent become commercialised

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New Delhi: A doctor cannot straightway be held liable for medical negligence simply because a patient has not favourably responded to treatment or surgery has failed, the Supreme Court has held.

A Bench consisting of Justices Markandey Katju and R.M. Lodha on Tuesday said: “A medical practitioner is not liable to be held negligent simply because things went wrong from a mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below the standards of a reasonably compe)tent practitioner in his field.”

The Bench set aside an order passed by the National Consumer Disputes Redress Commission, which held Dr. Martin F. D’Souza of the Nanavati Hospital, Mumbai, guilty of negligence on a complaint from Mohd Ishfaq, who was treated for renal and severe urinary tract infection.

Writing the judgment, Justice Katju said: “While doctors who cause death or agony due to medical negligence should certainly be penalised, it must also be remembered that like all professionals doctors too can make errors of judgment, but if they are punished for this no doctor can practise his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter-productive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation.”

Therefore, whenever complaints were received against a doctor or hospital, the consumer forum or criminal court, before issuing notice, should first refer the matter to a competent doctor or a committee of doctors, specialising in the field where negligence was attributed. Only after that doctor or committee “reports that there is a prima facie case of medical negligence should notice be issued to the doctor/hospital concerned.”

The Bench said: “This is necessary to avoid harassment to doctors who may not ultimately be found to be negligent. We further warn police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down by the apex court in Jacob Mathew’s case; otherwise, the policemen will themselves have to face legal action.”

The Bench said: “While this court has no sympathy for doctors who are negligent, it must also be said that frivolous complaints against doctors have increased by leaps and bounds particularly after the medical profession was placed within the purview of the Consumer Protection Act.”

The Bench said: “The courts and consumer fora are not experts in medical science and must not substitute their own views for that of specialists. It is true that the medical profession has to an extent become commercialised and there are many doctors who depart from the Hippocratic oath for their selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples.”

Sometimes despite the best effort, the treatment of a doctor failed, the Bench said. “For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held guilty of medical negligence, unless there is some strong evidence to suggest that he is. On the facts of this particular case, we are of the opinion that the appellant [Martin F. D’Souza] was not guilty of medical negligence. Appeal allowed.”