MEDICAL NEGLIGENCE- Can it be pardoned?
Medical profession is considered to be the most pious and responsible profession amongst others. It is one of the most respected sections of the society and there is no denial of the fact that doctors have been given designation equivalent to that of the God. In the current times also, everyone is looking up to these professionals and hailing them as warriors in white uniform.
However, some incidences put the doctor-client relationship in a bubble. Due to some negligent medical professionals the entire fraternity is questioned and abhorred. Even the slightest negligence of their part can be fatal for the patient and once the word ‘negligence’ is attached with any medical professional it is a big blow to the goodwill of that person.
UNDERSTANDING MEDICAL NEGLIGENCE
What is medical negligence?
The Supreme Court in Poonam Verma v. Ashwin Patel & Ors. [(1996) 4 SCC 332] discussed the concept of medical negligence and defined as under:
“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 or Negligence per se.”
A doctor can be held liable for negligence only if it can be proved that he/she is responsible of a failure that no other doctor with ordinary skills would be guilty of it, if acting with reasonable care. A slip in judgment constitutes negligence only if a professional who is reasonably competent with the standard skills and has acted with ordinary care, would not have made the same error.
The broad principles on this subject have been explained in detail by the three Judge Bench of the Supreme Court in Jacob Mathew v. State of Punjab and Anr. [(2005) 6 SCC 1]. In paragraph 41 of the decision, the Court observed that:
“The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence is what the law requires.”
Negligence can be both a Tort and a Criminal liability. Negligence as a crime has altogether a high standard. Under the tort Law, negligence is established to the extent of the loss incurred. However, negligence under the criminal law is reliant on the degree or amount of negligence. Courts have reiterated that the burden of establishing criminal negligence lies with the person calling for it. If a practitioner has a guilty mind and his/her negligence leads to the recklessness then the person committing the act will be held liable.
In Dr. Suresh Gupta v. Government of NCT of Delhi [(2004) 6 SCC 422] the Supreme Court observed that:
“Between civil and criminal liability of a doctor causing death of his patient the court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrong doing i.e. a higher degree of morally blameworthy conduct.
To convict, therefore, a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The courts have, therefore, always insisted in the case of alleged criminal offence against doctor causing death of his patient during treatment, that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable.”
A high degree of negligence is required to corroborate the allegation of criminal negligence under Section 304-A of the Indian Penal Code, 1860. For fixing criminal liability on a medical practitioner a mere lack of required care, skill and attention is not sufficient, it is required to be proved that there was a “gross negligence”. Under Indian Penal Code, Sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 discuss the law of medical malpractice in India.
The conduct of medical malpractice was brought under the Consumer Protection Act, 1986, by virtue of a landmark case of the Indian Medical Association v. V. P. Shantha & others [(1995) 6 SCC 651] wherein the Court observed that:
“medical care was defined as a “service” under this judgment that was covered by the Act, and it was also clarified that a person seeking medical attention may be considered as a consumer if certain criteria were met for example there was a payment either for treatment or registration, or charges were waived or it was paid by an insurance company.”
After this judgment, it was considered that some categories of patients now could bring charges against the negligent health care providers for compensation under the Consumer Protection Act, 1986. Facilities and doctors that provided all services free of cost to all clients were not to be held liable under the Act.
The Supreme Court in V.N. Shrikhande v. Anita Sena Fernandes [(2011) 1 SCC 53] observed that:
“18. In cases of medical negligence, no straitjacket formula can be applied for determining as to when the cause of action has accrued to the consumer. Each case is to be decided on its own facts. If the effect of negligence on the doctor’s part or any person associated with him is patent, the cause of action will be deemed to have arisen on the date when the act of negligence was done. If, on the other hand, the effect of negligence is latent, then the cause of action will arise on the date when the patient or his representative- complainant discovers the harm/injury caused due to such act or the date when the patient or his representative-complainant could have, by exercise of reasonable diligence discovered the act constituting negligence.”
Thus, the Court held that there is no blanket method to decide as to when the cause of action has ensued the consumer.
Furthermore, Sections 80 and 88 of the Code stipulates the defenses for doctors accused of criminal liability.
According to Section 80:
“80. Accident in doing a lawful act – Nothing is an offence that is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.”
According to Section 88:
“88. Act not intended to cause death, done by consent in good faith for person’s benefit – 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.”
Government at both the Central and the State level has tried to protect the quality of health care sector at all levels through promulgating different ordinances, regulations and acts.
- The Medical Council Act, 2001 – The said Act repealed the Indian Medical Council Act, 1956 as was modified in 1964, 1993 and 2001. The Act provides for the constitution of the Medical Council of India (MCI). The MCI regulates standards of medical education, permission to start colleges, courses or increase the number of seats, registration of doctors, standards of professional conduct of medical practitioners.
2. Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002– This regulation lays down the conduct of medical professionals, specifying the responsibilities and duties of the physicians in and has also put together the general guidelines required for ethical medical practice.
3. Screening Test Regulations, 2002– The Regulations provides for:
“An Indian citizen possessing a primary medical qualification awarded by any medical institution outside India who is desirous of getting provisional or permanent registration with the Medical Council of India or any State Medical Council on or after 15.03.2002 shall have to qualify a screening test conducted by the prescribed authority for that purpose as per the provisions of section 13 of the Act.
5. Drugs and Cosmetics Act, 1940– The primary objective of the Act is to ensure that the drugs and cosmetics sold in India are safe, effective and conform to state quality standards.
6. Pharmacy Act, 1948 – The Act provides for:
“An Act to regulate the profession of pharmacy. To make better provision for the regulation of the profession and practise of pharmacy and for that purpose to constitute Pharmacy Councils”
7. Medical Termination of Pregnancy Act, 1971 – The Act provides for:
“An Act to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto.”
8. Transplantation of Human Organ Act, 1994– This Act serves as the primary legislation governing the processes of organ donation and organ transplantation in India.
9. Pre–natal Sex Determination Test Act, 1994– This act was enacted to stop female foeticides and arrest the declining sex ratio in India. The act banned prenatal sex determination.
10. Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 – The said Act provides as under:
“It prohibits advertisements of drugs and remedies that claim to have magical properties, and makes doing so a cognizable offence.”
There are no two ways about the fact that doctors owe a duty of care towards the patients but at the same time it is the responsibility of the patients as well to cooperate with the medical professionals in discharge of their duties.
To err is human that doesn’t give right to patients or their family members to attack or abuse the doctors. No way is it justified. If, there is negligence in that case legal route should be adopted.
Medical professionals are currently the frontline warriors and that should be respected by everyone. If for every small thing doctors are held liable then they will fear for their own safety and life which in return will hamper in discharge of their duty.
Legislations and approach of the Courts in India has always intended to have an approach which is both balanced and precautionary. Medical negligence has neither been taken lightly nor for any petty issue has the medical professionals been held responsible. The Courts also doesn’t spare the professionals who have been reckless and highly irresponsible in discharge of their duty, which could put other being’s life at risk.