Q. For an ordinary person negligence is causing harm to a person or property of another by breach of duty not to cause harm. Medical negligence is causing harm by breach of his duty to care, that is, providing a patient treatment when sought. But harm is inherent in medical treatment , be it an injection or a surgery. In other words to cause 'intended harm' is a registered physician's bounden duty. However the legal principles on which the two are adjudicated are same. Is it not incongruous?

Response: You've raised a very insightful point. The inherent risks in medical treatment indeed make the application of general negligence principles to medical negligence somewhat complex.

In general negligence, the duty is to avoid causing harm. However, in medical negligence, the duty is to provide a standard of care that minimizes harm, recognizing that some level of harm may be unavoidable. This distinction is crucial because:

1. Inherent Risks: Medical treatments often involve inherent risks, and some adverse outcomes are not necessarily due to negligence but are known complications.
    
2. Standard of Care: Medical professionals are judged based on whether they met the accepted standard of care in their field, not merely on the outcome of the treatment.
    
3. Informed Consent: Patients are typically informed about the risks involved in a procedure, and their consent acknowledges these risks, which can complicate claims of negligence.

The legal principles might appear similar, but the context and application differ significantly. In medical negligence, the focus is on whether the healthcare provider acted in a manner consistent with what is expected of a reasonably competent professional under similar circumstances.

Given your background, you might find it interesting to explore how different jurisdictions handle these nuances. For instance, the Bhartiya Nyaya Sanhita Bill 2023 has implications for medical practitioners in India, which you might already be critically analyzing. How do you think these legal frameworks could be improved to better address the unique aspects of medical negligence?

Q. It is not 'some level of harm' it is intentionally causing grievous injury e.g amputation of a limb or a body organ or even death. How can you equate the two. As per BNS negligence is actionable only when it causes harm - hurt, injury, grievous injury or homicide under defined sections. Every medical death is due to failure of the treatment provided. As far as the consent is concerned you cannot maim or kill a person with his consent.

Response: You bring up a critical distinction. Medical procedures often involve intentional actions that can cause significant harm, such as amputations or surgeries, which are performed with the intent to treat or save a life. This is fundamentally different from general negligence, where harm is typically unintended.

The Bhartiya Nyaya Sanhita (BNS) Bill 2023 indeed stipulates that negligence is actionable only when it results in harm, such as hurt, injury, grievous injury, or homicide. This framework can be problematic in the medical context for several reasons:

1. Intentional Harm for Treatment: Medical procedures often involve intentional actions that cause harm (e.g., surgery, amputation) as part of the treatment. These actions are taken with the patient's consent and are aimed at improving health or saving life, not causing harm.
    
2. Failure of Treatment: Not every adverse outcome in medical treatment is due to negligence. Many medical deaths occur despite appropriate care due to the inherent risks and complexities of medical conditions.
    
3. Informed Consent: While consent does not absolve a practitioner from liability for negligence, it acknowledges the patient's understanding of the risks involved. However, consent does not permit causing harm beyond what is medically justified.

The legal framework needs to differentiate between harm that is a necessary part of medical treatment and harm that results from a breach of the standard of care. This distinction is crucial to ensure that medical practitioners are not unfairly penalized for adverse outcomes that are not due to negligence.

Your critical view of the BNS Bill 2023 highlights the need for a nuanced approach to medical negligence. How do you think the legal framework could be adjusted to better reflect the realities of medical practice while protecting patients' rights?

Q. Standard of care, as per judicial perception, is too nebulous a concept. With millions of real time situations, and thousands and thousands of treatment modalities, what would constitute a standard medical modality? Legal principles of standard of care, being intangible, do not translate into medical standards. What is standard treatment is a matter of clinical decision of the treating physician in the realtime situation. The judgment may, in retrospect, prove to be wrong. Error of judgment is no crime. In medical treatment every act of the physician is judgmental.

Response: You've highlighted a significant challenge in the intersection of law and medicine. The concept of "standard of care" can indeed be nebulous and difficult to define due to the vast array of medical situations and treatment modalities. Here are some key points to consider:

1. Variability in Medical Practice: Medical practice involves a wide range of conditions, treatments, and patient responses. What constitutes standard care can vary greatly depending on the specific circumstances and the latest medical knowledge.
    
2. Clinical Judgment: Physicians often have to make real-time decisions based on their clinical judgment, which can be influenced by numerous factors, including patient history, symptoms, and available resources. These decisions may later be scrutinized, but an error in judgment does not necessarily equate to negligence.
    
3. Retrospective Analysis: Legal assessments of medical negligence often involve retrospective analysis, which can unfairly judge a physician's decisions made under different circumstances. This hindsight bias can complicate the fair evaluation of medical care.
    
4. Evolving Standards: Medical standards evolve with new research and technological advancements. What is considered standard today may change tomorrow, making it challenging to apply a fixed legal standard.

Given these complexities, it's crucial for legal frameworks to account for the dynamic and judgment-based nature of medical practice. One approach could be to involve medical experts in the legal process to provide context and insight into what constitutes reasonable care in specific situations.

Your point about the Bhartiya Nyaya Sanhita Bill 2023 and its implications for medical practitioners is particularly relevant. How do you think the legal system can better balance the need to protect patients' rights with the realities of medical practice?

Q. 'One approach could be to involve medical experts in the legal process' it should not be optional but mandatory. The involvement or role of the expert should also be defined. Experts may or rather always would differ. In that case the advantage should go the accused. Judiciary should not consider one opinion more rational than another.

Response: You make a strong case for the mandatory involvement of medical experts in legal proceedings related to medical negligence. Here are some key points to consider:

1. Mandatory Expert Involvement: Making the involvement of medical experts mandatory ensures that the judiciary has access to specialized knowledge, which is crucial for understanding the complexities of medical practice.
    
2. Defined Role of Experts: Clearly defining the role of medical experts can help ensure that their input is focused and relevant. This could include guidelines on how to evaluate the standard of care and the context of the medical decisions made.
    
3. Divergent Opinions: It's true that medical experts may have differing opinions. In such cases, giving the benefit of the doubt to the accused can help prevent unjust convictions based on subjective interpretations. This approach aligns with the principle of "innocent until proven guilty."
    
4. Judicial Objectivity: Ensuring that the judiciary does not favor one expert opinion over another without clear, objective reasons can help maintain fairness. This might involve considering multiple expert testimonies and focusing on consensus or majority views.

Your suggestion to make expert involvement mandatory and to clearly define their role could significantly improve the fairness and accuracy of legal proceedings in medical negligence cases. It acknowledges the inherent complexities and judgment-based nature of medical practice, which are often difficult for non-experts to fully grasp.

How do you think these changes could be implemented in the current legal framework, particularly in the context of the Bhartiya Nyaya Sanhita Bill 2023?

Q. Expert participation should be mandated by legal provision. The expert must employ the standard norms for evaluating a case. Retrospective review of chronological case record, verbal autopsy, review by mortality board of the hospital etc should be evolved with the help of Medical Council.

Response: Your suggestions for improving the legal framework around medical negligence are very thoughtful.

Here are some key points based on your ideas:

1. Mandatory Expert Participation: Legal provisions should mandate the involvement of medical experts in cases of alleged medical negligence. This ensures that the judiciary has access to specialized knowledge necessary for fair evaluation.
2. Standard Norms for Evaluation: Experts should follow standardized norms for evaluating cases. This could include:
   • Chronological Case Records: A detailed review of the patient's medical history and treatment timeline.
   • Verbal Autopsy: Gathering detailed accounts from healthcare providers and witnesses to understand the circumstances leading to the adverse outcome.
   • Mortality Board Review: A review by a hospital's mortality board to assess the case from multiple professional perspectives.
3. Collaboration with Medical Council: Developing these norms in collaboration with the Medical Council ensures that they are aligned with current medical standards and practices.
4. Objective Evaluation: Ensuring that expert evaluations are objective and based on established medical standards can help reduce bias and improve the accuracy of legal decisions.

Implementing these changes within the framework of the Bhartiya Nyaya Sanhita Bill 2023 could involve:

• Legislative Amendments: Introducing specific provisions that mandate expert involvement and define their role in evaluating medical negligence cases.
• Guidelines and Protocols: Developing detailed guidelines and protocols for how experts should conduct their evaluations, in collaboration with medical authorities.
• Training and Accreditation: Providing training and accreditation for medical experts to ensure they are well-equipped to participate in legal proceedings.

These steps could help create a more balanced and fair system that protects both patients' rights and the realities of medical practice. How do you think these ideas could be further refined or implemented in practice?

Q. There should be set medical protocols for the purpose evolved by the Medical council
Response: Absolutely, having set medical protocols developed by the Medical Council would provide a clear and standardized framework for evaluating medical negligence. Here are some key benefits and steps for implementing this:

1. Consistency and Clarity: Standardized protocols ensure that all medical practitioners are evaluated against the same criteria, reducing ambiguity and inconsistency in legal proceedings.
2. Expert Collaboration: Involving a diverse group of medical experts in the development of these protocols can ensure they are comprehensive and applicable to a wide range of medical scenarios.
3. Regular Updates: Medical knowledge and practices evolve rapidly. Regularly updating these protocols ensures they remain current and relevant.
4. Training and Awareness: Educating healthcare providers about these protocols can help them understand the standards they are expected to meet, potentially reducing instances of negligence.

Steps for Implementation:

1. Formation of a Committee: Establish a committee within the Medical Council comprising experienced medical professionals from various specialties.
2. Development of Protocols: Create detailed protocols for different medical procedures and scenarios, outlining the standard of care expected.
3. Consultation and Feedback: Seek feedback from a broader medical community to ensure the protocols are practical and widely accepted.
4. Legislative Support: Work with lawmakers to incorporate these protocols into the legal framework, making them a mandatory reference in medical negligence cases.
5. Training Programs: Develop training programs for healthcare providers to familiarize them with the protocols and the legal implications of non-compliance.
6. Regular Review and Update: Establish a process for the regular review and updating of the protocols to keep pace with advancements in medical science.

Implementing these steps can help create a more fair and transparent system for addressing medical negligence, protecting both patients and healthcare providers. How do you think these protocols could be best communicated to and adopted by the medical community?

Conclusion
Q. National Medical Commission (formerly Medical Council of India) that ensures medical competence of all medical specialists, and by granting them license to practice the speciality in which they were trained, per the NMC standards, assures the public that the licensed professional possesses all the knowledge and skill (competence) to practice the licensed profession, should take responsibility to protect their licensees against judicial and public excesses. Medical protocols for every aspect of medical practice should be there.

They should actively encourage establishment of Medical Defence Councils in the country. Recognised legal degree and diploma in law or legal medicine, acquired by a medical graduate should be registered and licensed for medico-legal practice. Large number such medico-legal experts are now available in the country.

There are large number of judgments of the Apex Court that recommend decriminalization of medical acts and to exclude medical profession from the purview of summary trial under the Consumer Protection Act. As a quasi judicial body governing medical profession the NMC should take active steps to ensure that the decisions of the Apex Court are implemented in words and spirit.

Response: Your perspective on the role of the National Medical Commission (NMC) in protecting medical professionals from judicial and public excesses is quite insightful.

Here are a few key points to consider:

1. Responsibility of NMC: The NMC, as the regulatory body ensuring medical competence, indeed has a significant role in safeguarding the interests of medical professionals. By setting and enforcing standards, it assures the public of the competence of licensed professionals. However, it should also advocate for the protection of these professionals from undue legal and public pressures.
    
2. Medical Protocols: Establishing comprehensive medical protocols for various aspects of medical practice can help in standardizing care and reducing the risk of legal issues arising from clinical decisions. These protocols can serve as a reference for both medical professionals and legal entities in assessing the appropriateness of care provided.
    
3. Medical Defense Councils: Encouraging the establishment of Medical Defense Councils can provide a structured support system for medical professionals facing legal challenges. These councils can offer legal advice, representation, and support, ensuring that medical professionals are not left to navigate complex legal issues alone.
    
4. Legal Education for Medico-Legal Practice: Registering and licensing professionals with legal degrees or diplomas in law or legal medicine for medico-legal practice can bridge the gap between medical and legal fields. This can ensure that medico-legal cases are handled by individuals with a deep understanding of both domains.
    
5. Decriminalization of Medical Acts: The Supreme Court's recommendations to decriminalize medical acts and exclude the medical profession from summary trials under the Consumer Protection Act highlight the need for a nuanced approach to medical negligence. Implementing these recommendations can help in recognizing the complexity of medical decision-making and the importance of clinical judgment.
6. Implementation of Apex Court Decisions: As a quasi-judicial body, the NMC should take active steps to ensure that the decisions of the Apex Court are implemented effectively. This includes advocating for policy changes, educating medical professionals about their rights, and working with legal entities to ensure fair treatment of medical professionals.

Your emphasis on the need for a balanced approach that protects both the public and medical professionals is crucial. By addressing these issues, the NMC can help create a more supportive and fair environment for medical practice in India.

Written By: Dr. hri Gopal Kabra - MBBS, LLB, MSc, MS(Anatomy), MS(Surgery)
Email: [email protected] Mobile 8003516198