Shed clouds of ambiguity on medical negligence: Doctors tell SC

Shed clouds of ambiguity on medical negligence: Doctors tell SC

Rita Dutta – Mumbai

To mitigate clouds of doubt and ambiguity which enshroud various terms of medical negligence and to prevent criminal cases against doctors, the Delhi Medical Council (DMC) had filed an application of intervention with the Chief Justice of the Supreme Court (SC). After its initial pronouncement on August 6, 2004 exonerating doctors from criminal liability in case of medical negligence until it is proved that one is “grossly negligent” or “reckless” or displays a “gross lack of competence “, the SC had formed a larger judge bench on September 9 for revision of judgement. This was consequent to counsel Krishan Mahajan pointing out to the “inadequacies” in the judgment in an another case of negligence of a doctor.

Says Dr Arun Agarwal, president, DMC, “We are trying to give our inputs to SC’s definition of medical negligence. Our suggestion to the Chief Justice is that doctors should not be equated with criminals and be dragged to criminal courts as doctors do not commit negligence willingly.”

According to Dr S K Khatri, general secretary, DMC, “DMC, which has 32,000 doctors registered with it, felt responsible to intervene in SC’s analysis of medical negligence.”

Meanwhile, the Indian Medical Association (IMA) had also made a representation to the SC on similar lines. Says Dr Chandrakant Joshi, chairman, Consumer Protection Act (CPA) committee of IMA headquarters, “On behalf of IMA, advocate Ashok Desai has made a representation to the SC so that doctors are not treated as criminals.” New Delhi-based Dr Vinay Agarwal, secretary general, IMA, elaborates, “We want the SC to give a crystal clear definition of medical negligence. The SC needs to define terms like “gross negligence”, “error of judgement”, “professional accident” and “recklessness.” While DMC has asked that doctors should not be held criminally liable, according to Dr V Agarwal, “IMA’s representation states that only gross negligence should be made criminally liable, and not professional accident and error of judgement. We are not against being answerable, but against being hauled up for criminal negligence for just any case.”

He further explained, “when a patient is undergoing coronary bypass dies during the surgery, it becomes a case of professional accident as there is already an inherent risk of two to five per cent associated with the surgery. Similarly, when a doctor diagnoses that a patient is suffering from typhoid, but when he is actually suffering from some other disease, it is a case of error of judgement. And when a patient is operated on the left leg, when the operation is supposed to be on the right leg, it is gross negligence.”

Negligence is the opposite of diligence. An act is said to be performed negligently when it is performed without due diligence. That is to say, that the standard of care exhibited whilst performing the act was below par. When an act is done without the requisite care and caution, the act can be labelled as a rash act. Negligence and rashness usually go hand-in-hand and in general denotes carelessness.

In India as in England, it is well settled that medical malpractice cases are governed by the general principles of law of torts. Negligence has many manifestations – it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence, administrative negligence or negligence ‘per se’.

It was also observed that where a person is guilty of negligence per se, no further proof is needed (Poonam Verma v Ashwin Patel and Ors. (Supreme Court Civil Appeal No. 8856 of 1994. Decided on 10th May, 1996). Negligence therefore consists of two acts. The act of not doing (omitting) something, that a reasonable man, under the circumstances, would do (act of omission); and doing something which a reasonable prudent man under the circumstances would not do (act of commission).

It is not necessary that the duty neglected should have arisen out of a contract between the patient and the doctor. However, the duty may arise by a statute or otherwise; and if it is neglected, resulting in an injury to any person, he will get a right to sue for damages. There cannot be a liability for negligence unless there is a breach of some duty. Hence, no case of actionable negligence will arise unless the ‘duty to be careful’ exists.

Death due to medical negligence is an offence, which can be agitated both in the criminal court, under the Indian Penal Code or in the consumer court under the relevant sections of the Consumer Protection Act or alternatively the same may also be agitated in the civil courts under the Law of Torts. Section 304A of the Indian Penal Code deals with death caused by a rash or negligent act.

The main difference between murder (section 302 IPC) and death due to a rash and a negligent act (section 304A IPC) is that in the former the reason to bring about death is ‘intentional’ whilst in the latter; death is caused by an act where proper care and caution is not taken. The punishment under section 304A is two years imprisonment and fine. In criminal law, death due to negligence is not as severely punished as murder.

Dr Shenoy is former judge of Mumbai consumer court

According to New Delhi-based Dr I P Dhalla, immediate president of Delhi Medical Association and vice president of DMC, “There is a need to differentiate between recklessness and gross negligence, which the present judgement has clubbed together wrongfully.” He further explained that recklessness is doing a procedure, known to be fraught with danger, in contrast with gross negligence which is more like conducting a surgery on the wrong part of the body.

With plenty of suggestions coming in, there is a prevailing fear about the revised judgement being tipped against the medical community. “The revised judgement should retain its essence and not go against the medical community,” fears Dr Joshi. Adds Dr Duru Shah, past president of Mumbai Obstretic and Gynaecological Society (MOGS), “If doctors are criminally liable, then it would encourage defense medicine, a practice of ordering medical tests, procedures, or consultations of doubtful clinical value in order to protect the prescribing physician from malpractice suits.” Reportedly, defense medicine in on the rise in India, after doctors were included in the ambit of CPA.

In the wake of the revision of the judgement, experts like Dr Lalit Kapoor, chairman, medico legal cell, Association of Medical Consultants, feels, “It is the need of the hour to have definitive definition of various kinds of medical negligence. As of now, it depends on the whims and fancies of the judge’s interpretation.” Others feel that a better definition would put an end to “harassment” faced by doctors in criminal cases. “Most of the time, a patient files a criminal case against the doctor to harass him and then go for out of the court settlement, after procuring a whopping amount,” points out Dr Kapoor.