Supreme Court and Medical Negligence Necessary Protection

The service which medical professionals render to us is the noblest. Aryans embodied the rule that, Vidyo narayano harihi (which means doctors are equivalent to Lord Vishnu).

Professionals like doctors, lawyers, etc. are in the category of persons professing special skills. Any man practicing a profession requires particular level of learning, which impliedly assures a person dealing with him, that he possesses such requisite knowledge, expertise and will profess his skill with reasonable degree of care and caution. It should be taken in to consideration that the professional should command the corpus of knowledge of his profession. Since long the medical profession is highly respected, but today a decline in the standard of the medical profession can be attributed to increasing number of litigations against doctors for being negligent narrowing down to medical negligence.

The health service has been under the purview of the Consumer Protection Act, 1986 and subsequently the commercialization of the health sector has had adverse effects on doctor and patient relationship. The landmark case Indian Medical Association Vs. V.P.Shantha brought the medical professionals within the ambit of service as defined in the Consumer Protection Act, 1986. It's a common observation that medical practitioners, hospitals are being attacked by family members of patient for alleged medical negligence. The doctor- patient relationship is one of the most unique and privileged based on mutual trust and faith. But presently there is a great decline in the doctor-patient relationship. The reason may be communication gap between them, commercialization of health services, raising expectations from doctors or increased consumer awareness.

Medical profession is governed by code of medical ethics and etiquettes laid down by Medical Council of India. Although they are for internal self regulations of the profession, it is an obligation on the part of the professionals to fulfil certain rights, expectations of the patients. But there has been fast spreading misconduct amongst the medical professionals .The unethical practice has gone to a level where the basic purpose of medical profession that is service to humanity fails. Few unethical practices like fee sharing, or cut practice, particularly prescribing a company's medicine, selling of body parts etc for personal monitory gains are openly discussed among them but they never come up to the surface due to lack of concrete proof. To err is human nature but mistakes of medical professional which may result in death of a person or permanent impairment can be particularly costly but the law does not aim to punish doctors for all their mistakes, but only to those which are committed out of negligence. Mistakes occur but which occurs from carelessness and negligence cannot be let off.
Negligence is a breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the contract of human affairs would do which a prudent and reasonable man would not do. The components of negligence are duty, breach and resulting damage.

Definition above is mainly in purview of negligence as tort. But in relation to tort and crime, in tort it is an amount of damage which is an issue but in criminal law it is the amount of degree of negligence that determines the liability. The ingredient of mens rea exist where there is a charge of criminal negligence. Criminal negligence is gross and culpable neglect or failure to exercise reasonable and proper care to guard against injury when it was the imperative duty of the accused person to adopt.

A negligence carried by a professional is highly criticized. A professional should not lag behind other members of his profession in knowledge of new advances. He should be alert to the hazard and risk in any professional task he undertakes. He need not posses highest nor a very low degree of care and competence. A person is not liable because someone of greater skill, knowledge would have done something different or in terms of doctors, would have prescribed different treatment or operated in a different way. Negligence in the context of medical negligence necessarily calls for a treatment with a difference. Medical negligence is clearly defined as want of reasonable degree of care and skill or wilful negligence on the part of medical practitioner in the treatment of patient with whom a relationship of professional attendance is established so as to lead to bodily injuries or as to loss of life. The ingredient of medical negligence is the duty of care. Person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed with skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties.

Stringently, the duties of care for medical professionals are:

• deciding whether to undertake the case,
• what treatment to give, and
• Duty of care in administration of that treatment.

Nevertheless, a simple lack of care, an error of judgment or an accident is not a proof of negligence on the part of medical professional.

So long as he follows a practice acceptable to the profession on that day he can't be held liable for negligence merely because a better alternative course of treatment was available or a more skilled doctor would not have chosen to follow or resort to that practice which the accused followed. He should not be held liable for taking one choice out of the different schools of treatment [Medical Council Act (102 of 1956), S.20A]. The standard of this reasonable care is definitely a flexible criterion, capable of setting the boundaries of legal liability of the professionals depending on the duties founded on principles of torts or contracts. The term negligence is not an absolute but relative and comparative one. No absolute standard can be laid by which negligence can be infallibly measured in a case. All the facts have to be taken in to account to determine whether negligence occurred or not.

In case of Bolam Vs. Friern hospital management committee 1957, the test for establishing medical negligence was set. The doctor is required to exercise the ordinary skill of a competent doctor in his field. He must exercise this skill in accordance with a reasonable body of medical opinion skilled in the area of medicine. Now to go with the latest trend of prosecution to the doctors the term criminal negligence has come in to light, which means recklessly acting without reasonable caution, hurting another person at risk of injury or death by negligence. This applies to medical practitioner when he shows gross negligence in his treatment, boding to severe injury or even death. He should not be held liable criminally for the patient's death unless his negligence shows such regard for the life and safety of the patient as to amount to a crime.

The most important criterion is the degree of negligence required to prosecute them under the charge of criminal negligence, which should be gross or even high degree. The jurisprudential concept of negligence differs in civil and criminal law. Negligence which is neither gross nor of a high degree may provide a ground for action in civil law but cannot form the basis for prosecution in criminal law.

We have noticed that in the case of doctors being subjected to criminal prosecution are on the rise; such prosecutions are filed by private complainants or by the police on an FIR lodged and cognizance taken. The criminal process once initiated, subjects to the medical professional to serious embarrassment and harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge, but the loss he has suffered in his reputation cannot be compensated by any standard.

The judgment given by the Honourable Supreme Court of India, consisting three judges bench, in October 2005, ruled that doctors should not be held criminally responsible unless there is prima facie evidence before the court in the form of a credible opinion from another competent doctor, preferably a Government doctor in the same field of medicine, supporting the charges of rash and negligent act. It's a laudable judgment in the light of criminal procedures filed against them in trivial cases under Sections 304 and 304-A of IPC where the prima-facie, there seems to be no neglect in these medical treatments.

Section 304-A of IPC reads as Causing death by negligence-whoever causes the death of any person by doing any rash or negligent act not accounting to culpable homicide shall be imprisoned with imprisonment of either description for a term which may extend to two years or with fine or both.

In a particular situation a particular act, which is short of being described as a reasonable act, in this circumstance, it may be called as a negligent act. According to the Bolman test, negligence is the genus of which rashness is the species. The liability of doctors will always depend on the circumstances of the particular case. The injury to the reputation of a professional resulting from the finding of the negligence can be very serious indeed and this is appreciated by the courts. In a land mark case Roe and Wooby Vs. Ministry of health, Lord Justice Danning was of the opinion that it is easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought always to be on our guard against it especially in cases against hospitals and medical profession. Medical science has conferred great benefits but these benefits are attended by unavoidable risks. In the case of Hunter Vs Hanley, Lord President Clyde observed the true test for establishing negligence in diagnosis or treatment on the part of the doctors is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would have been guilty of, if acting with reasonable care and this is concise and succinct definition of medical negligence.

The distinction between civil and criminal negligence was clearly laid down by Lord Hewart in the case of R. Vs. Bateman. Throughout the civilized world the public has become more compensation minded. The burden of proof in action for negligence rests with the plaintiff, it follows thereafter that in medical practice it is for the patient party to establish his claim and not for the medical practitioner to prove that he acted with due skill and care. In few cases the court will accept that the nature of the occurrence complained of is that as to relief the plaintiff from establishing that there was negligence and to place on the defendant the burden of proving the absence of negligence. In such cases the legal maxim res ipsa loquitor applies. The British courts are however somewhat reluctant to apply this in cases of alleged negligence in medical cases.

The High Court decision in Dr.Suresh Gupta Vs. Government of NCT of Delhi adjudicated that legal decision is almost firmly established that where a patient dies due to negligent medical treatment by doctors, they can be made liable in civil law by praying compensation and damages in law of torts and 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 to offence under section 304-A of IPC. Thus he cannot be held criminally responsible for a 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.

In another case Doctor Jacob Matthew Vs. State of Punjab the Honourable court opined against the judgment of Gupta's case. They questioned the adjective gross and opined that all negligent acts causing death should be treated at par. Section 304-A of IPC was a sword hanging above the doctor, working both in government hospitals and in the private sectors. Since long, this has been made a malady and they were practicing defensive medicine so much that even proper treatment/surgical procedures were being held back with the fear of untoward results because of which doctors continued to be sued for no fault of theirs. Supreme Court, in the case of Dr.Gupta, honourable judges had clarified that for ordinary negligence they could not be held criminally responsible, it was only gross negligence and precisely recklessness where they could be criminally held responsible.

The term gross is not a reference to Sec 304-A of IPC and also not in connection to negligence. So in the case of Doctor Jacob Mathew, the Punjab High Court argued that doctors could not be considered on a different pedestal as far as section 304-A is concerned. The land mark judgment of the three judges bench of Supreme Court in Jacob Mathew v. State of Punjab, practically absolves the medical professionals of the liability of section 304-A. This is amply clear that Section 304 ,304-A of IPC, can be made applicable to the doctors theoretically but they can feel secured in doing usual practices without any fear, apprehension of being victimized on trivial grounds. The honourable court had gone through the details of the problems faced by medical professionals and this land mark judgment will no longer distort the doctor-patient relationship and benefit the patients in the long run.

This will also free the doctors from undue anxiety in the conduct of their professions. The bottom line of this land mark judgment is, while expectations from the professionals must be realistic and the expected standards attainable, this implies recognition of the nature of ordinary human error and human limitations in the performance of complex tasks. The level of competence of the doctors should be maintained by continuous medical education. Incompetence due to lack of knowledge or due to quackery should be actively discouraged by the regulating bodies and associations. The decisions will not only provide relief to the doctors, who had been considered as soft targets by the law enforcing agencies and stop their harassment by unsatisfied patients but would also increase the quality of service.

The present judgment give room for criticism that the court, vested with the power to interpret the written law has instead, ventured to change the law by interpreting it in the way it thought would be better for society. Since Section 304 A of IPC refers only to rash or negligent acts, it's a doubtful proposition that mens rea must be shown for establishing a case of criminal negligence. The interpretation reading in the prefix gross before negligence also attracts the same criticism. The Supreme Court has not stated that doctors cannot be prosecuted for medical negligence. It has emphasized the need for care and caution in prosecuting doctors in the interest of the society. An extra insulation is now allowed to them considering the noble service this fraternity renders to the society. Moreover in the view of the reports that complainants often use criminal cases to pressurize medical professionals and to extract unjust compensation has also been highlighted. This immunity is available only in criminal courts and nowhere else.

Many human rights activists however, feel let down with such judgment, considering the level of illiteracy, poverty and unaware of legal set up of the country, poor economic conditions of patients in large number 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 section could not afford this .The major criticism is that it's difficult to find a person of same profession to come and attest the carelessness and negligence of a fellow doctor.

The present judgment has definitely provided a breathing space for medical professionals; it should be used to reduce the unethical practice and to improve the doctor patient relationship. A renowned medical professional has welcomed the judgment with open arms stated that they are trained in such a manner that they take due care and caution to save a patient by all means. But sometimes despite their efforts they may not succeed. This doesn't prove that they have not given their best. He believes that this judgment would put an end to such unpleasant prosecutions and incidents. Now these professional can perform much better and can carry out their duties more professionally than before since the threat of Damocles sword is no longer hanging over them. There are many black sheep in this profession like other. But people will neglect them and they cannot continue for long. Former attorney general Ashok Desai who defended Dr. Suresh Gupta, said that for fixing criminal liability on a medical professional, the standard of negligence required to be proved should be very high. Senior Advocate M.N.Krishnamani said that the Medical Council of India is to have non medical members also in their board as well as in the State Council's to ensure that doctors must be made more accountable than in the present set up. Such an appellate authority would act as an ombudsman for dealing with complainants of medical negligence.

The Medical Council of India should also incorporate a provision in the Medical Council of India Act that any complaint against a delinquent doctor should be disposed off by the State Council within six months not only to deal effectively with medical negligence but also to safe guard the interest of poor patients.
In the light of Judgment pronounced by the honourable Supreme Court and from the discussions held in various decided cases it can be concluded that the Supreme Court provides necessary protection, not the license to kill. The present case very clearly deals with the pros and cons of the concept of Medical Negligence, in both civil and criminal aspects. Definitely this judgment will bring harmonious relationship between doctor and patients and false frivolous cases would be lessened as a consequence there off.

References
Books
1. Rajendra Kumar Nayak, Consumer Protection Law in India, the Indian Law Institute, 1991. N. M. Tripathi Pvt. Ltd.
2. Dr. S. S. Srivastava, Consumer Protection Act, Central Law Agency

Articles
1. ICFAI journal on Health Care Law
2Indian journal of Medical ethics by Mr. K. K. S. R Murthy,faculty ICFAI LAW SCHOOL on Medical Negligence
3. Times of India, August 7, 2005
Legislations
1. Medical Council Act (102 of 1956)
2. Consumer Protection Act, 1986
3. Indian Penal Code,
Law Reporters
1. All India Reporters
2. Consumer Protection Reporter

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