Mutual good faith is a basic ingredient of the patient-doctor relationship
Frivolous negligence claims and perverse medical negligence judgments based on
ill-applied legal fiction without cogent medical findings has greatly eroded
public trust in the medical profession. It is high time that the doctrine of
good faith is given credence to restore public trust. The doctrine of good faith
is based on robust medico-judicial processes.
A patient approaches a doctor in good faith and trusts him to alleviate his
suffering. The doctor is under obligation, in equally good faith and to the best
of his abilities to take care of his patient and live up to the trust the
patient has reposed in him.
There is nothing more unnerving and disturbing for a doctor than for him to be a
subject of a medical negligence suit. The fear that virtually any case may lead
to a negligence complaint is constant and stressful to the physician.
Apprehension leading to mistrust is mutual. On the one hand, a physician worries
about a lawsuit while, on the other, the patient, who has no alternative but to
trust himself or his loved one to the physician, is constantly apprehensive that
such treatment might result in complications including death.
What can be done to restore the patient's faith?
While the practitioner of
modern medicine should be prepared to submit to rigorous medico-legal
accountability according to the law of the land, the patient and the judiciary
have to be aware of the serious limitations that stand in the way of laypersons
adjudicating in medical matters as well as the lack of effective regulatory
mechanisms that govern medical practice in the country.
Frivolous complaints of medical negligence should not be entertained by
implementing laws laid down by the Supreme Court as in the cases of Jacob Mathew
and Martin D'Souza.  The legislature may enact law on the directions of the
The Supreme Court has already stated:
"Statutory rules or executive
instructions incorporating certain guidelines need to be framed and issued by
the Government of India and/or the State Governments in consultation with the
Medical Council of India". An enactment could be similar to that in the State of
Connecticut in the USA which requires due certification of good faith by the
complainant, based on the opinion of a medical expert as prerequisite to the
court taking cognizance of the case.
The statutory provisions that govern patient-doctor relationship, patient's
rights and a doctor's obligations are set out in Section 88 of the Indian Penal
Code which states as follows:
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 simple terms, this means that if an act is done in good faith and is not
intended to cause harm (including death); and the person for whom it is done
gives express or implied consent to risk or suffer this harm, then the act is
not considered an offence.
Every medical intervention technically injures the patient to a certain degree,
and section 88 of the Indian Penal Code also recognizes that such harm,
including death, is possible following medical intervention. The law permits
such injury because the intervention was carried out for the benefit of the
patient. The binding stipulations are consent and good faith.
An adverse event (AE) is a harmful and negative outcome that occurs when a
patient undergoes medical care. It occurs frequently (one in ten patients
suffers an AE) and in a variety of medical interventions - surgical and
non-surgical - and across most specialties. Theoretically, therefore, any
patient may experience a negative outcome as a result of treatment. These
adverse events include the side effects of medication, injury, psychological
harm and death. Adverse events may not necessarily be preventable.
There are already several prescribed protocols to prevent or minimize adverse
The following are such examples of event-specific protocols:
- Identity band, check list (to prevent operating on a wrong patient)
- Body side and part marking (to prevent operating on the wrong side or site)
- Swab and instrument count (to prevent swabs or instruments being left behind in the body)
- Prescription audit and regular monitoring and reporting (to prevent medication errors)
- Identification and reporting (to minimize drug reactions)
- Infection control protocols (to minimize hospital-acquired infections)
- Bed railings (to prevent a fall from bed)
- Calibration and maintenance (to minimize equipment malfunctioning or failure)
- Screening for transmittable diseases, grouping and cross-matching, and monitoring of reactions (to minimize transfusion-related reactions and infections)
Event-specific safety protocols to monitor and detect AEs are developed and
available but many are not officially prescribed or mandatory.
Non-implementation of even mandatory safety protocols is widespread
especially since there is no effective mechanism to enforce and monitor them.
Accreditation of hospitals by national accreditation boards that enforce these
standards is not yet mandatory.
Whenever an adverse event is under judicial scrutiny, the hospital must be asked
if specific, prescribed safety mechanisms were in place or not. In case they
were not in place, the hospital should be penalized for deficiency and should
give an undertaking to introduce such mechanisms.
It is manifestly unfair for the judiciary to simply state that an adverse
incidence was a result of "medical negligence" and then proceed to penalise the
concerned physician. If the evidence shows that the treating physician willfully
and intentionally caused injury or death, he may be held criminally liable under
general laws. The latter instance is, happily, rare since few physicians would
want to willfully harm a patient.
Harm resulting from error of judgment or accident or surgical misadventure
cannot be attributed to negligence. The patient nevertheless is certainly
entitled to be compensated for the harm suffered even though there is no fault
on the part of the hospital or the treating physician. There should therefore be
a mechanism in place to suitably, even liberally, compensate patients for all
such harms caused and this may be termed a "no-fault compensation". Hospitals
must provide for it and proper guidelines for no-fault compensation should be
framed. The hospitals may set apart percentage of its revenue or take a suitable
indemnity insurance to cover for such exigencies.
Clearly, for genuine mistakes in a honestly administered treatment, a physician
is entitled to be exempt from the liability of negligence under the good faith
doctrine of statutory provisions of Section 88 of the Indian Penal Code. It must
be reiterated that, under this section, such exemption will be available only if
the treatment is demonstrated to have been done with due competence, care and
caution and after taking proper consent. A court must verify these
prerequisites. Unfortunately, this is not done objectively in consumer forums as
there are no judicial guidelines issued.
For verifying a physician's competence the court should verify the physician's
qualifications, license and experience in the field. The respondent physician
must submit a satisfactory reply.
Care is the timely fulfilment of the diagnostic and therapeutic needs of the
patient. It can be verified only from the review of the patient record. The
respondent doctor should submit transcribed, chronological details of the
patient record in his reply so as to present an account of the case details as a
time-line. Unfortunately, this is not insisted by the courts. Instead, the
complainant's narrative, which is usually an incoherent bundle of allegations
and out-of-context, self-perceived facts, is given to the accused doctor for a
Since the sequence of treatment interventions is case, context and situation
specific, a retrospective review of patient record by experts should be a
standard protocol. Since he lacks comprehension of the disease episode and
cannot expertly comment on the context-specific response by a physician, a
judicial officer should and must seek the help of a medical expert.
This expert opinion must be given to the respondent physician so that he may, if
he desires, respond either personally or with the assistance of the opinion of
other experts. All this needs to be done before the judicial officer can
honestly and comprehensively analyse the case and pronounce a just verdict. This
is what was done in the Martin D'Souza case but, sadly, in that instance it was
For establishing that caution was exercised, the respondent physician should
submit evidence that consent was taken after due disclosure and that there were
preventable protocols in place in the medical centre to prevent an occurrence of
that particular adverse event.
In summary, if a careful verification of the concerned documents shows that a
competent physician exercised care and caution, he should be held to have acted
in good faith and should not be held negligent. A consumer forum or, for that
matter, any judicial institution, should not be allowed to function like a
kangaroo court or Kajiji ki kachaheri.
Written By: Dr.Shri Gopal Kabra
15, Vijay Nagar, D-bloc, Malviya Nagar, Jaipur-302017
Ph no: 8003516198