A medical professional practices bed-side medicine and not law. A judicial officer practices law and not medicine while adjudicating in a case of medical negligence. Transgressing their respective jurisdictions, is illegal. Both enjoy statutory immunity for their decisions taken in good faith in their respective fields.
 

Q. Please define, differentiate and elaborate on 'laws-in-medicine' and 'laws-as-medicine'

AI: Sure! Let's dive into the concepts of "laws-in-medicine" and "laws-as-medicine."

Laws-in-Medicine
"Laws-in-medicine" refers to the legal principles and regulations that govern the practice of medicine. This includes medical jurisprudence, which is the application of medical knowledge to legal issues. Medical jurisprudence covers a wide range of topics, including medical negligence, ethical conduct, professional misconduct, and the doctor-patient relationship. It also involves the role of medical practitioners as expert witnesses in legal cases, such as determining the cause of death, assessing injuries, and providing evidence in cases of violence, rape, or paternity.

Laws-as-Medicine
"Laws-as-medicine" is a more conceptual approach that views legal principles and regulations as tools for promoting public health and well-being. This perspective treats laws as a form of "medicine" that can be used to prevent harm, promote healthy behaviors, and ensure access to healthcare. For example, laws that regulate the sale of tobacco, mandate vaccinations, or establish safety standards for medical devices can be seen as interventions that protect public health. This approach emphasizes the preventive and protective role of laws in maintaining and improving health outcomes4.

Differentiation

• Scope: Laws-in-medicine focuses on the legal aspects of medical practice and the responsibilities of healthcare professionals. Laws-as-medicine, on the other hand, views laws as tools for achieving public health goals.
• Application: Laws-in-medicine is applied in legal cases involving medical issues, such as malpractice or forensic investigations. Laws-as-medicine is applied in the creation and enforcement of public health policies and regulations.
• Objective: The primary objective of laws-in-medicine is to ensure that medical practice adheres to legal and ethical standards. The objective of laws-as-medicine is to use legal mechanisms to promote and protect public health.

Elaboration

• Laws-in-Medicine: This field includes various legal frameworks that healthcare professionals must adhere to, such as the Indian Medical Council Act, the Indian Penal Code, and the Code of Criminal Procedure. It also involves medico-legal cases where medical practitioners provide expert testimony in court. Medical jurisprudence has a long history, dating back to ancient texts like the Charaka Samhita and the Sushruta Samhita, which outlined ethical guidelines for physicians.
   
• Laws-as-Medicine: This concept highlights the role of laws in shaping health behaviors and outcomes. For instance, public health laws that regulate food safety, control infectious diseases, and ensure access to clean water are examples of law-as-medicine. These laws are designed to create a healthier environment and reduce the burden of disease on society. By treating laws as preventive measures, policymakers can address health issues at a population level and improve overall well-being.

I hope this helps clarify the concepts of "laws-in-medicine" and "law-as-medicine"! If you have any more questions or need further elaboration, feel free to ask.

Q. While adjudicating in a medical negligence case which of the two should concern the judge? For instance when the judge in the verdict says "it was a case constipation which should have been treated by enema, could be best treated in Ayurved" or that the "surgeon should have done cholecystostomy and not cholecystectomy", is he not meddling in 'laws as medicine'? Is he not transgressing his judicial jurisdiction?
AI: In a medical negligence case, the judge should primarily concern themselves with "laws-in-medicine" rather than "laws-as-medicine." The judge's role is to ensure that medical practitioners adhere to legal and ethical standards and to determine whether there has been a breach of duty or negligence based on established medical practices and guidelines.

When a judge comments on specific medical treatments, such as suggesting that constipation should have been treated with an enema or that cholecystostomy should have been performed instead of cholecystectomy, they may be overstepping their judicial jurisdiction. These comments fall into the realm of medical judgment, which is typically within the expertise of medical professionals rather than legal authorities.

In such cases, the judge should rely on expert medical testimony to establish the standard of care and determine whether there was a deviation from accepted medical practice. The judge's focus should be on whether the healthcare provider's actions were reasonable and consistent with the standards of the medical profession, not on prescribing specific treatments.

By providing specific medical recommendations, the judge risks transgressing their judicial jurisdiction and interfering with the practice of medicine, which should be left to qualified medical experts. Instead, the judge should base their verdict on whether the healthcare provider acted within the bounds of accepted medical practice and whether any deviation from these standards resulted in harm to the patient.

Q. Judicial officers are provided immunity for their judicial decisions. Is he not liable to be prosecuted for his extra-judicial decision that seriously harms a medical professional?
AI: Judicial officers indeed enjoy immunity for their judicial decisions, which is known as "judicial immunity." This principle protects judges from being sued for actions performed in their official capacity, allowing them to make decisions without fear of personal liability.

However, there are limits to judicial immunity. If a judge acts outside their judicial capacity or makes decisions that are beyond their jurisdiction, they could potentially face legal consequences. In the context of medical negligence cases, if a judge's comments or decisions stray into making specific medical recommendations, such as suggesting particular treatments, this could be seen as acting beyond their judicial role. While judges are protected for their judicial acts, they are not immune if they engage in conduct that is clearly outside the scope of their judicial authority.

In practice, though, it is challenging to prosecute a judge for such actions, and instead, the legal system often relies on appeals and higher courts to correct any judicial errors or overreach. If a judge's extrajudicial decisions seriously harm a medical professional, the affected party would typically seek redress through the appellate process rather than pursuing prosecution of the judge.

In summary, while judicial immunity generally protects judges from personal liability for their decisions, there are exceptions when judges act outside their jurisdiction. However, addressing such overreach usually involves the appellate system rather than prosecuting the judge.

Q. It is on appeal to higher court that the wrong caused is established. Should not the erring judge be prosecuted on the basis of such judgment?
AI: The judicial system operates under the principle of judicial immunity, which generally protects judges from being personally sued for their judicial decisions. This principle is in place to ensure that judges can make decisions without fear of personal liability, thus maintaining the independence and integrity of the judiciary.

However, if a higher court determines that a judge has made an incorrect or harmful decision, the primary mechanism for addressing this is through the appellate process rather than prosecuting the judge. The appellate court can overturn or modify the lower court's decision, providing relief to the affected parties.

Prosecuting a judge for an incorrect judicial decision is extremely rare and usually only considered if the judge's actions were found to be grossly negligent, malicious, or conducted in bad faith. In such cases, the judge's conduct would be considered outside the scope of their judicial duties. Even then, the process is complex and involves various legal and administrative steps.

In summary, while an appellate court can correct judicial errors, prosecuting a judge for their judicial decisions is typically not pursued unless there is clear evidence of gross misconduct or malfeasance. The system prioritizes maintaining judicial independence while providing mechanisms to rectify erroneous decisions through higher courts

Q. What about the statutory immunity provided to medical profession under the exception clauses? Should a judge be allowed to transgress it with such impunity? Law has to be applied with equity?
AI: The statutory immunity provided to the medical profession under exception clauses is designed to protect healthcare providers when they act within the scope of their professional duties and adhere to accepted medical standards. This immunity is crucial to ensure that medical practitioners can perform their duties without fear of undue legal repercussions, especially in complex and high-stakes situations.

When a judge comments on specific medical treatments or prescribes what should have been done in a medical negligence case, they risk transgressing their judicial jurisdiction. Such actions can undermine the statutory immunity granted to medical professionals and may not apply the law with the necessary equity.

Judicial officers must respect the boundaries of their expertise and rely on medical experts to provide the necessary context and recommendations. The role of the judge is to determine if there was a breach of duty or negligence based on established medical standards, not to dictate specific medical treatments.

If a judge's extrajudicial comments or decisions harm the medical profession and undermine statutory immunity, there should be a mechanism to address this. Appeals to higher courts can rectify judicial errors, ensuring that the law is applied equitably and that statutory protections for medical professionals are upheld.

The principle of equity in the law requires that judges apply legal principles fairly and justly, considering the specific circumstances of each case. This includes respecting the statutory immunity provided to medical professionals and ensuring that their decisions do not unfairly disadvantage or harm any party involved.

In summary, judges should focus on determining negligence based on established legal and medical standards, without overstepping into medical decision-making. This ensures that the law is applied with equity and respects the statutory immunity granted to the medical profession.

Q. Thanks a lot. But I feel that when it concerns the two professions of law and medicine, you are biased towards legal profession. No offence meant.
AI: I understand your perspective, and I appreciate your feedback. It's important to have a balanced view when it comes to both the legal and medical professions. Each profession has its own complexities and challenges, and it's crucial to respect the expertise and boundaries of both.
In the context of medical negligence cases, the goal is to ensure fairness and justice while respecting the knowledge and skills of medical professionals. It's a delicate balance, and both legal and medical experts play essential roles in achieving this balance.

Written By: Dr. Shri Gopal Kabra, MBBS, LLB, MSc, MS(Anatomy), MS(Surgery)
Email: kabrasg@hotmail.com Mobile: 8003516198