Medical act of providing treatment by a licensed medical practitioner can never be a criminal act. To presume the same is inherently incongruous.

Q. Medical negligence is adjudicated under:

1. statutory criminal law Indian Penal Code,
2. under law of Tort and
3. under Consumer Protection Act.

While IPC is a codified law, Law of Tort is uncodified and based on Common Law and Natural Justice and CPA a poor hybrid of the two, ill applied to Medical Negligence. Under IPC, medical negligence is adjudicated on the anvil of Exemption Clauses, and under tort on the basis of principles laid down by judicial decisions. Thus, in IPC good faith, competence, care, caution, consent are the prescribed codified norms, virtually the same, duty to care, competence, consent and caution are laid down in Tort as judicial principles. The codified norms are specific and objective while the uncodified principle are prone to judicial subjectivity. My question is when the norms in two laws are same why should the provisions of Codified Law be not applicable to medical negligence cases under tort.

Response:

Your question touches on a critical aspect of legal interpretation and application. Here are some key points to consider:

1. Nature of Codified vs. Uncodified Law:
• Codified Law (IPC): The Indian Penal Code (IPC) provides specific, written statutes that define offenses and prescribe penalties. This codification aims to reduce ambiguity and ensure consistency in legal proceedings.
• Uncodified Law (Tort): The law of torts is based on judicial precedents and principles derived from common law and natural justice. This allows for flexibility and adaptability to new situations but can also lead to variability in judicial decisions.
2. Application of Norms:
• Codified Norms: In the IPC, norms such as good faith, competence, care, caution, and consent are explicitly defined, providing clear guidelines for adjudication.
• Judicial Principles in Tort: While similar principles exist in tort law, their application relies heavily on judicial interpretation, which can vary based on the specifics of each case.
3. Judicial Subjectivity:
• Objective Standards: Codified laws aim to minimize judicial subjectivity by providing clear, objective standards.
• Flexibility in Tort Law: The flexibility of tort law allows judges to consider the unique circumstances of each case, which can be beneficial but also introduces a degree of subjectivity.
4. Overlap and Distinction:
• Overlap: Both codified and uncodified laws aim to ensure that medical professionals adhere to standards of care, competence, and caution.
• Distinction: The key distinction lies in the method of application. Codified laws provide a more rigid framework, while tort law allows for a more nuanced approach based on judicial discretion.
5. Practical Implications:
• Consistency vs. Flexibility: Applying codified norms to tort cases could enhance consistency but might reduce the flexibility needed to address unique situations in medical negligence cases.
• Legal Precedents: Judicial decisions in tort law contribute to the development of legal precedents, which can evolve over time to address emerging issues in medical practice.

In summary, while the norms in codified law and tort law may be similar, their application differs due to the inherent nature of each legal framework. Codified laws provide clarity and consistency, whereas tort law offers flexibility and adaptability, which can be crucial in the complex field of medical negligence. Balancing these aspects is essential to ensure fair and just outcomes in medical negligence cases.
Q. It is medical norms under judicial scrutiny. The flexibility to vary the norms in appropriate situation should be the professional prerogative of the treating physician and not of judicial officer.
Response: You raise a compelling point about the professional autonomy of treating physicians. Here are some considerations:

1. Professional Expertise:
   • Clinical Judgment: Physicians possess the specialized knowledge and experience necessary to make nuanced decisions based on the unique circumstances of each patient. This expertise is crucial in determining the appropriate standard of care.
   • Dynamic Nature of Medicine: Medical science is constantly evolving, and rigid legal norms may not always keep pace with advancements in medical practice. Physicians need the flexibility to adapt to new treatments and technologies.
2. Judicial Limitations:
   • Lack of Medical Expertise: Judicial officers may not have the same level of medical expertise as healthcare professionals, which can lead to decisions that do not fully consider the complexities of medical practice.
   • Risk of Overreach: When judicial officers impose rigid standards, it can undermine the professional judgment of physicians and potentially lead to defensive medicine, where doctors prioritize legal protection over optimal patient care.
3. Role of Expert Testimony:
   • Mandatory Expert Participation: Incorporating mandatory expert testimony in medical negligence cases can help bridge the gap between legal and medical perspectives. Experts can provide valuable insights into the standard of care and the appropriateness of the physician's actions.
   • Standardized Protocols: Developing and adhering to standardized medical protocols can provide a clear framework for both physicians and the judiciary, reducing the risk of subjective interpretations.
4. Balancing Accountability and Autonomy:
   • Ensuring Accountability: While professional autonomy is important, there must also be mechanisms to ensure accountability and protect patients from genuine instances of negligence.
   • Collaborative Approach: A collaborative approach that involves both legal and medical professionals can help create a balanced system that respects the expertise of physicians while ensuring patient safety.

In summary, while judicial scrutiny is necessary to ensure accountability, the flexibility to vary medical norms should indeed be the prerogative of treating physicians. Incorporating expert input and standardized protocols can help achieve a balance between professional autonomy and legal oversight, ultimately benefiting both healthcare providers and patients.

Q. Medical negligence is a special entity, under judicial scrutiny. Legal norms should align with medical norms that are flexible. Treating physician's prerogative and autonomy should be respected.

Response: You make a strong case for preserving the professional autonomy of physicians. Here are some additional thoughts:

1. Clinical Autonomy:
   • Expertise and Experience: Physicians are trained to make complex decisions based on their medical knowledge and experience. They are best positioned to determine the appropriate course of action for their patients.
   • Individualized Care: Medical care often needs to be tailored to the specific needs of each patient. Rigid legal norms may not account for the nuances of individual cases, potentially compromising patient care.
2. Judicial Oversight:
   • Role of the Judiciary: While the judiciary plays a crucial role in ensuring accountability, it may lack the specialized knowledge required to fully understand the intricacies of medical practice.
   • Risk of Defensive Medicine: Excessive judicial oversight can lead to defensive medicine, where physicians make decisions based on legal considerations rather than what is best for the patient.
3. Incorporating Medical Expertise:
   • Mandatory Expert Testimony: Ensuring that medical negligence cases involve mandatory expert testimony can help bridge the gap between legal and medical perspectives. Experts can provide insights into the standard of care and the appropriateness of the physician's actions.
   • Standardized Protocols: Developing standardized medical protocols can provide a clear framework for both physicians and the judiciary, reducing the risk of subjective interpretations and ensuring consistency in medical practice.
4. Balancing Autonomy and Accountability:
   • Collaborative Approach: A collaborative approach that involves both legal and medical professionals can help create a balanced system. This approach respects the expertise of physicians while ensuring that patients are protected from genuine instances of negligence.
   • Continuous Education: Ongoing education for judicial officers on medical practices and standards can also help improve their understanding and decision-making in medical negligence cases.

In summary, while judicial oversight is necessary to ensure accountability, the flexibility to vary medical norms should indeed be the prerogative of treating physicians. Incorporating expert input and standardized protocols can help achieve a balance between professional autonomy and legal oversight, ultimately benefiting both healthcare providers and patients.

What are some global best practices for handling medical negligence claims?

Handling medical negligence claims effectively requires a balanced approach that ensures accountability while respecting the professional autonomy of healthcare providers. Here are some global best practices:

1. Use of Expert Testimony:
   • Mandatory Expert Involvement: Many countries mandate the involvement of medical experts in negligence cases to provide an informed perspective on the standard of care. For example, in Germany, judges appoint neutral experts to provide unbiased opinions.
2. Judicial Oversight:
   • Judge vs. Jury: In several countries, such as the UK and Germany, judges rather than juries decide medical negligence cases. This approach aims to reduce the variability and unpredictability associated with jury decisions.
3. No-Fault Systems:
   • New Zealand Model: New Zealand employs a no-fault system for medical negligence claims, which focuses on compensation rather than blame. This system aims to reduce litigation costs and expedite the resolution of claims.
4. Caps on Damages:
   • Limiting Non-Economic Damages: Some jurisdictions, like certain Canadian provinces, have caps on non-economic damages to prevent excessively high awards that can drive up insurance premiums.
5. Standardized Protocols:
   • Clear Guidelines: Developing and adhering to standardized medical protocols can help ensure consistency in care and provide a clear framework for evaluating negligence claims. This practice is seen in countries like Denmark and the UK.
6. Communication and Documentation:
   • Transparent Communication: Effective communication between healthcare providers and patients can help prevent misunderstandings and reduce the likelihood of claims. Proper documentation of patient interactions and treatment decisions is also crucial.
7. Alternative Dispute Resolution (ADR):
   • Mediation and Arbitration: Encouraging the use of ADR methods, such as mediation and arbitration, can help resolve disputes more amicably and efficiently, reducing the burden on the court system.
8. Education and Training:
   • Continuous Professional Development: Ongoing education and training for healthcare providers on legal aspects and risk management can help reduce the incidence of negligence and improve patient care.

By incorporating these best practices, countries can create a more balanced and effective system for handling medical negligence claims, ensuring both accountability and the preservation of professional autonomy.

Written By: Dr.Shri Gopal Kabra, MBBS, LLB, MSc, MS(Anatomy), MS(Surgery)
Ph no: 8003516198