Essay: Medical negligence in India

INTRODUCTION
The past decade has seen an increased awareness among people regarding the fundamental rights guaranteed by the Constitution. This has put the medical services under sustained public scrutiny. The custodians of healthcare delivery live in fear of a legal suit.
However, this fear only contributes to hostility and rarely to constructive action. According to a cross-section of medical professionals, litigations (civil and criminal) place medicine in an adversarial position, which in turn leads to defensive medicine? More than civil litigations, criminal complaints that result in the arrest of a practicing doctor by the police at the first instance is demoralizing. Medical negligence is predominantly a civil matter, but the death of a patient may sometimes lead to criminal prosecution. Such prosecutions against qualified medical practitioners used to be rare in the past and an increase in such incidents points to a heightened interest in the external regulation of healthcare and to a diminution in the respect that the profession in India has enjoyed so far. Criminal responsibility carries substantial moral overtones. Some of life’s misfortunes are accidents for which no body is morally responsible, others are wrong for which responsibility is diffuse, yet others are instances of culpable conduct & constitutes grounds for compensation and at times for punishment.
CHAPTER-I
MEDICAL NEGLIGENCE AND CRIMINAL LAW
Under the criminal law, for a person to be prosecuted for professional negligence, proving the presence of mens rea (guilty mind) is required and the negligence must be criminal. Mere carelessness and simple lack of care may constitute civil liability and it cannot be treated to be enough to prove a charge of death of a patient by negligence.
Further, the standard of negligence must be rated in terms of the circumstances such as would be accepted as criminal negligence. In a civil suit, it is sufficient to prove neglect of duty by consideration of the preponderance of probabilities of the case. However, in criminal law, it is necessary to prove beyond reasonable doubt the negligent act of the accused. In a case of criminal medical negligence, the following need to be considered.
In a doctor-patient relationship, there cannot be any mens rea except in the rarest of rare instances. Under the criminal law, mens rea is considered as ‘guilty intention’ and unless it is found that the accused had a guilty intention to commit the ‘crime’, he cannot be guilty of committing the crime. Is Further, negligence is the antithesis of intention and intention is not an element of negligence.
In general, Indian courts have been very careful not to hold qualified medical practitioners criminally responsible for the death of patients that result from a mere mistake of judgement in the selection and application of remedies and when the death resulted merely from an inherent risk or error of judgement, or an inadvertent death. Under the criminal law, for a person to be prosecuted for professional.
SECTION 304-A OF THE IPC
This section mentions the punishment for rash and negligent handling of an instrument or vehicle or craft and causing death to others, and the maximum punishment isimprisonment for 2 years, fine, or both. It covers acts characterized asrecklessness or wanton recklessness sufficient to warrant a conviction under Section 304- A of the IPC.
In the practice of medicine, it may include reckless dispensation of medications; outrageously negligent performance of diagnostic or therapeutic measures which lead to death; reckless handling of ventilators, dialysis machines and other life-sustaining equipment; reckless administration of anaesthesia; performing surgery or any therapeutic procedures under the influence of alcohol or drugs.
The terms ‘recklessness’ and ‘gross’ used to describe the degree of ‘rashness’ are difficult to define. Any attempt to define these words to impute criminal liability on a qualified doctor whose treatment caused the death of a patient will be debatable. The standard for determination of the degree of medical negligence could only be by persons with medical knowledge and definitely not by a police officer at the first instance of receiving a complaint.
CHAPTER-II
PROFESSIONAL’S LIABILITY UNDER THE INDIAN PENAL CODE
Under criminal law, the injured person or legal representative of victim of medical malpractice does not get remedy in terms of money or compensation. The main object of the law is not to award damages but to ensure that the doctor is put behind bars for his negligent act. However, under the Criminal Procedure Code, the court may award compensation to the aggrieved party out of the fine amount collected from accused. In Mari Singh and State of Haryana vs. Sukhbir Singh the Supreme Court directed all criminal courts to exercise the power of awarding compensation to victims of offence in liberal way that the victims or their legal representatives may not have to rush to the civil courts for compensation. It may be argued that incidentally Indian Penal Code 1860 does not specify the crime of medical negligence, nonetheless, negligent act of the doctor causing hurt, grievous hurt or death has been brought within the ambit of the provisions of Indian Penal Code. A doctor may be punished for causing death by rash and negligent act , causing hurt by act endangering life or personal safety of others and causing grievous hurt by act endangering life or personal safety of others .
PROSECUTION OF DOCTORS
In the case of death of a patient due to the rash or negligent act of the medical man, the legal representatives of the deceased may lodge information with the SHO of the police station for registration of the First Information Report (FIR). The code does not prescribe a particular format for giving information to the police. The information may be given to the police either by word of mouth or in writing. If it is oral, it shall be the duty of the SHO to reduce the information into writing in the language known to the informant. There should not be any inordinate delay in lodging the information. If there is any delay the reasons for the delay should be explained. The informant is entitled to get a copy of the FIR at free of cost. If the SMO refuses do register the information, the aggrieved may send to the same information to the Superintendent of Police concerned, who on his satisfaction that such information discloses the commission of an offence, shall investigate the case himself or direct information to be made by any police of five subordinate to him . The person aggrieved may also lodge a private complaint under section 200 of the Cr. P.C before a Magistrate. However, a private complaint cannot 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. After taking/recording the statement of witnesses and hearing the prosecution and the accused, the court passes the order of conviction or acquittal of the case. A complaint may be lodged with the Executive Magistrate under sections 133 to 135 of the code against ‘quacks’ or persons practicing unauthorized in any area on the ground of threat to the lives of the public.
It is argued that rashness and negligence are not the same thing which can be used interchangeably. Negligence cannot be construed to mean rashness. There are different degrees of negligence and rashness.
CHAPTER-III
GUIDELINES FOR PROSECUTING A MEDICAL PRACTITIONER
In Jacob Mathew Vs State of Punjab , a case against the petitioners under section 304-A read with section 34 was registered based on the information that a patient who is the complainant’s father was admitted in a private ward of C.M.C. Hospital, Ludhiana. On the fateful day, the patient felt difficulty in breathing for which the doctor connected the oxygen cylinder to the mouth of patient but the breathing problem increased further due to the oxygen cylinder was found to be empty. There was no other gas cylinder available in the room and no arrangement had been made to make the gas cylinder functional. In bringing another cylinder from another room, 5 to 7 minutes were wasted. By this time, another doctor declared the patient was dead. The Judicial Magistrate framed charges under section 304-A IPC.
Against the two petitioners who are doctors by profession. Both of them filed a revision in the Court of Sessions Judge submitting that there was no ground for framing charges against them. The revision was dismissed; therefore, appellant filed a petition in the High Court under section 482 of the Code of Criminal Procedure praying for quashing of the F.I.R. and the subsequent proceedings. However, the High Court dismissed the petition, stating they could defend at the trial. Feeling aggrieved by this order, the appellant filed appeal by special leave. As the question of medical negligence arose for consideration, a registered society- ‘People for Better Treatment’, Kolkata; Delhi Medical Council, Delhi Medical Association and Indian Medical Association joined the case as interested parties.
The Supreme Court observed that for the negligence to constitute an offence, the element of mens rea must be present. For an act to amount to criminal negligence, the degree of negligence should be much higher, i.e. gross or a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action civil law but cannot form the basis for prosecution. The word ‘gross’ has not been used in section 304-A of I.P.C., yet it is settled that in criminal law negligence or recklessness must be understood to be ‘gross’. The expression ‘rash or negligent act’ as occurring in section 304-A of the I.P.C. has to be read as qualified by the word ‘grossly’.
In the Bolam’s case , John Hector Bolam suffered from depression and was treated at the Friern Hospital in 1954 by E.C.T. (electro-convulsive therapy). He was not given any relaxant drug, however, nurses were present on either side of the couch to prevent him from falling off. When he consented for the treatment, the hospital did not warm him of the risks, particularly that he would be given the treatment without relaxant drugs. He sustained fractures during the treatment and sued the hospital and claimed damages for negligence. Experts opined that there were two practices accepted by them: treatment with relaxant drugs and treatment without relaxant drugs. Regarding the warning also, there were two practices prevalent: to give the warning to the patients and also to give the warning only when the patients ask about the risks. The court concluded that the doctors and the hospital were not negligent.
In Suresh Gupta Vs Government of NCT of Delhi , the accused (plastic surgeon) charged for offences under section 80, 86 and 304-A of IPC for causing death of his patient who was operated by him for removing his nasal deformity. Medical experts opined that there was negligence on the part of accused in “not putting a cuffed endotracheal tube of proper size” as to prevent aspiration of blood from the wound in the respiratory passage.
The question to be decided was whether the act attributed to the doctor can be described to be so reckless or grossly negligent as to make him criminally liable? Quashing the criminal proceedings pending against the doctor, the Supreme Court laid down clearly that high degree of negligence is necessary to prove the charge of criminal negligence under section 304-A of IPC.
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. 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 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.
CIVIL OR CRIMINAL LIABILITY
The liability of the doctor shall be civil or criminal or both. One of the essential elements in criminal law is mens rea – the guilty mind or an evil intention. The question arises as to whether in cases of medical negligence – whether slight, ordinary or gross – is there any criminal liability? As mens rea is essential, it is difficult to argue that the doctor had a guilty mind and was negligent intentionally. This has been the main argument in most of the cases in which the decision was to decide about the criminal liability. For instance, in Jacob Mathew, neither the doctor nor any other hospital staff intentionally connected the empty cylinder. Similarly, in Bolam, the doctors or the hospital did not want to do something wrong intentionally. At no point of time, they had a guilty mind.
CONCLUSION
The foregoing discussion reflects that how a patient who intends to sue the doctor or hospital for medical negligence may resort to different mechanisms available under the Constitution and various statutes. In our country, there is no specific law which exclusively deals with the rights and obligations of the health care providers and patients. A patient cannot claim medical service as a matter of right except in emergency cases. Emergency medical service has been interpreted as a right within the scope of Article 21 of the Constitution of India. Where the public health institution refuses to treat a patient in emergency case, the patient may resort to constitutional remedy for deprivation of his right to life. There are two possibilities in cases of negligence – either it is negligence of the doctor or it is negligence of the staff. There may be a possibility of negligence, both of the doctor and the staff. In most of the cases, it will be a case of joint and several liability, and both the doctor and the hospital will be liable. The division of liability between the two of them will be decided according to the understanding between the two.