Can a Doctor be prosecuted for Negligence?

It is estimated that 98,000 people die every year in the United States because of mistakes committed by medical professionals. One can well imagine the figures in India. However, the law does not aim to punish all acts of a doctor that caused injury to a patient. It is concerned only with negligent acts. Medical negligence arises from an act or omission by a medical practitioner, which no reasonably competent and careful practitioner would have committed. What is expected of a medical practitioner is ‘reasonably skilful behaviour’ adopting the ‘ordinary skills’ and practices of the profession with ‘ordinary care’. There is, however, room for ambiguity, and judicial interpretation as what is ‘reasonable’ and ‘ordinary’ is a question of fact. Essentially, doctors are generally bound to exercise an ordinary degree of care and not the highest possible degree of care. If a medical practitioner has taken reasonable care, then he cannot be held liable. A mere difference in opinion is not a ground for fastening liability on doctor.

Doctors’ duties to their patients are clear. They must decide whether or not to undertake the case; they must decide what treatment to give, and they must take care in the administration of that treatment. A breach of any of these duties gives the patient a right to action for negligence.

Liability under the Consumer Protection Act (Deficiency In Services)

Practice of medicine is as old as existence of human race. Originally, the priest functioned as preacher, teacher, judge as well as healer. He was the first physician and his relationship with his patients was unique and unquestioned. With the passage of time not only has practice of medicine graduated to become independent and noble profession, but his relationship has slowly shifted from ‘Next to God’ to ‘Friend, Philosopher and Guide’, to ‘respected professional’ and, today, to service provider. With increased consumer awareness, rising expectation, western trend of medical liability litigation, Consumer Protection Act, and judicial activism, increasing number of complaints are being filed by dissatisfied patients resulting in growing distrust between patients and doctors and increased cost of medical treatment.

In 1995, the Supreme Court decision in Indian Medical Association v VP Shantha brought the medical profession within the ambit of a ‘service’ as defined in the Consumer Protection Act, 1986. This defined the relationship between patients and medical professionals as contractual. Patients who had sustained injuries in the course of treatment could now sue doctors in ‘procedure-free’ consumer protection courts for compensation.

The Court held that even though services rendered by medical practitioners are of a personal nature they cannot be treated as contracts of personal service (which are excluded from the Consumer Protection Act). They are contracts for service, under which a doctor too can be sued in Consumer Protection Courts.

A ‘contract for service’ implies a contract whereby one party undertakes to render services (such as professional or technical services) to another, in which the service provider is not subjected to a detailed direction and control. The provider exercises professional or technical skill and uses his or her own knowledge and discretion. A ‘contract of service’ implies a relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of performance. The ‘contract of service’ is beyond the ambit of the Consumer Protection Act, 1986, under Section 2(1)(o) of the Act.

The Consumer Protection Act will not come to the rescue of patients if the service is rendered free of charge, or if they have paid only a nominal registration fee. However, if patients’ charges are waived because of their incapacity to pay, they are considered to be consumers and can sue under the Consumer Protection Act.

Liability under tort law

Under civil laws, at a point where the Consumer Protection Act ends, the law of torts takes over and protects the interests of patients. This applies even if medical professionals provide free services. In cases where the services offered by the doctor or hospital do not fall in the ambit of ‘service’ as defined in the Consumer Protection Act, patients can take recourse to the law relating to negligence under the law of torts and successfully claim compensation. The onus is on the patient to prove that the doctor was negligent and that the injury was a consequence of the doctor’s negligence. Such cases of negligence may include transfusion of blood of incorrect blood groups, leaving a mop in the patient’s abdomen after operating, unsuccessful sterilisation resulting in the birth of a child, removal of organs without taking consent, operating on a patient without giving anaesthesia, administering wrong medicine resulting in injury, etc.

Liability under criminal law

In certain cases, negligence is so blatant that it invites criminal proceedings. A doctor can be punished under Section 304A of the Indian Penal Code (IPC) for causing death by a rash or negligent act, say in a case where death of a patient is caused during operation by a doctor not qualified to operate. According to a recent Supreme Court decision, the standard of negligence required to be proved against a doctor in cases of criminal negligence (especially that under Section 304A of the IPC) should be so high that it can be described as ‘gross negligence’ or ‘recklessness’, not merely lack of necessary care. Criminal liability will not be attracted if the patient dies due to error in judgment or accident. Every civil negligence is not criminal negligence, and for civil negligence to become criminal it should be of such a nature that it could be termed as gross negligence.

Very rarely can a doctor be prosecuted for murder or attempt to murder as doctors never intend to kill their patients, and hence do not possess the required level of guilty intention. When doctors administer a treatment involving the risk of death, they do so in good faith and for the patient’s benefit. A doctor can also be punished for causing hurt or grievous hurt under the IPC. However, Sections 87, 88, 89 and 92 of the IPC provide immunity from criminal prosecutions to doctors who act in good faith and for the patient’s benefit. But the defence must prove that the doctor acted in good faith and for the patient’s benefit. For example, a doctor who consciously or knowingly did not use sterilised equipment for an operation cannot be said to have acted in good faith.

Dr. Jacob Mathew Case:

The question of liability of doctors for negligence came before the Supreme Court of India in the case of Jacob Mathew Vs State of Punjab (2005). On 15th February 1995, a patient was admitted in a private ward of the CMC hospital, Ludhiana. The patient felt serious difficulties in breathing at about 11pm on the night of 22nd February 1995. Patient’s son immediately contacted the nurse who in turn called the doctors. After about 20-25 minutes Dr. Jacob Mathew and Dr. Allen Joseph came to the patient’s room and connected an oxygen cylinder to patient’s mouth, but the cylinder was found empty. No other cylinder was available in the room at that time. However the patient’s son managed a cylinder from the adjoining room but no arrangement was made to make the cylinder functional. 5-7 minutes were wasted in this process and by that time the patient died.

An F.I.R was lodged in this connection and the judicial magistrate Ist class Ludhiana framed charges under sections 304A and 34 IPC against the two doctors for negligence.

A revision petition was filed by both the doctors in the court of sessions judge but the same was dismissed. The High Court also dismissed the petition filed by both the doctors for quashing the FIR and all subsequent proceedings.

The aggrieved doctors then filed a petition before the Supreme Court of India by special leave.

The main issue before the court in this case was to ascertain the liability of doctors for negligence under civil and criminal law.

The hon’ble court observed that, there is a difference in the concept of negligence under civil and criminal laws. In criminal law, the amount and degree of negligence is determinative of liability. Mens rea or mental element cannot be excluded in case of criminal negligence. For the existence of criminal rashness or negligence it is to be found that the rashness was of such degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent.

The professionals such as lawyers or doctors posses special skills for performing special tasks, but that does not mean that they can assure about the positive results in every dealing. What they can assure is that, they posses the requisite skill in their respective branch of profession and they will exercise their skill with reasonable competence while performing the task. It is not compulsory for every professional to posses the highest level of skill in his respective branch of profession.

A mere accident or deviation from the normal professional practice is not necessarily an evidence of negligence. Sometimes there may be an error of judgment while making a choice between the available procedures. But as long as the adopted procedure is found to be acceptable by medical science as on that date, the medical practitioner cannot be held negligent merely because he choose to follow one procedure and not the other resulting in failure.

The court further observed that if a doctor is kept under the fear of legal action then he cannot perform a successful treatment. A doctor under the fear of facing a criminal prosecution in the event of failure for whatever reasons, whether attributable to him or not, can never go for a successful treatment. Even the doctors may feel it better to leave a terminal patient untreated when the chances of success may be less than 10% or so. In case of serious patients who are in a state of ‘coma’ or in case of grave emergencies where the patients death is almost certain, the doctors may try for a last effort towards saving the life, but if there is a fear of criminal prosecution then the doctors may not go for taking a risk and facing a legal action.

“Negligence” with reference to doctors necessarily calls for a different treatment. Our criminal law has invariably placed the medical professionals on a different pedestal from the ordinary mortals. The Indian Penal Code under the chapter of general exceptions provide exemptions for acts not intended to cause death , done by consent in good faith for person’s benefit. Section 92 provides exemptions for acts done in good faith for the persons benefit without his consent though the act causes harm to that person and the person has not consented to suffer such harm.

However doctors can also be prosecuted for an offence containing rashness or negligence, but there is a need for protecting doctors from frivolous and unjust prosecutions.

The hon’ble court formulated the following guidelines to be followed, which should govern the prosecution of doctors for offences of which criminal rashness is an ingredient:

  1. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.
  2. The investigating officer should , before proceeding against the doctor accused of rash or negligent act or omission , obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion.
  3. A doctor accused of rashness and negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.

The court finally held that, even if all the averments made in the complaint of the present case are proved, they do not make out a case of criminal rashness or negligence on the part of the accused appellant. The accused appellant cannot be prosecuted under section 304A IPC, however the hospital may be liable in civil law.

Juggankhan Case:

In Juggankhan v. The State of Madhya Pradesh, the accused, a registered Homoeopath, administered 24 drops of stramonium and a leaf of dhatura to the patient suffering from guinea worm. The accused had not studied the effect of such substances being administered to a human being. The poisonous contents of the leaf of dhatura were not satisfactorily established by the prosecution. The Supreme Court exonerated the accused of the charge under Section 302 IPC. However, on a finding that stramonium and dhatura leaves are poisonous and in no system of medicine, except perhaps Ayurvedic system, the dhatura leaf is given as cure for guinea worm, the act of the accused who prescribed poisonous material without studying their probable effect was held to be a rash and negligent act. It would be seen that the profession of a Homoeopath which the accused claimed to profess did not permit use of the substance administered to the patient.

The accused had no knowledge of the effect of such substance being administered and yet he did so. In this background, the inference of the accused being guilty of rash and negligent act was drawn against him. Thus the principle which emerges is that a doctor who administers a medicine known to or used in a particular branch of medical profession impliedly declares that he has knowledge of that branch of science and if he does not, in fact, possess that knowledge, he is prima facie acting with rashness or negligence.

In Poonam Verma v. Ashwin Patel and Ors a doctor registered as medical practitioner and entitled to practice in Homoeopathy only, prescribed an allopathic medicine to the patient. The patient died. The doctor was held to be negligent and liable to compensate the wife of the deceased for the death of her husband on the ground that the doctor who was entitled to practice in homoeopathy only, was under a statutory duty not to enter the field of any other system of medicine and since he trespassed into a prohibited field and prescribed the allopathic medicine to the patient causing the death, his conduct amounted to negligence per se actionable in civil law.

In Achutrao Haribhau Khodwa and Ors. v State of Maharashtra and Ors the Supreme Court noticed that in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. It was a case where a mop was left inside the lady patient’s abdomen during an operation. Peritonitis developed which led to a second surgery being performed on her, but she could not survive. Liability for negligence was fastened on the surgeon because no valid explanation was forthcoming for the mop having been left inside the abdomen of the lady. The doctrine of res ipsa loquitur was held applicable ‘in a case like this’.

In Dr. Suresh Gupta v. Govt. of NCT of Delhi and Anr. the legal decision is almost firmly established that where a patient dies due to negligent medical treatment of the doctor, the doctor can be made liable in civil law for paying compensation and damages in tort and the same time, if the degree of negligence so gross and his act was reckless as to endanger the life of the patient, he would also be made criminally liable to offence under Section 304-A IPC. “Thus a doctor can not be held criminally responsible for patient’s death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State”.

Conclusion

The very nature of the medical profession makes it vulnerable to civil and criminal suits. Many suits are filed to harass doctors, or are filed to evade the payment of bills. In the post V P Shantha era it is difficult for doctors to shun responsibility. It is also easier for people to force negligent doctors to Consumer Protection Forums.

It is important to punish guilty doctors. It is also important to protect doctors who act in good faith from harassment. The courts must strike a perfect balance. The Supreme Court once observed that the doctor’s job is to protect life and the courts should assist in this cause as far as possible. It is also the duty of the courts to see that doctors are not harassed in the course of performance of such duty.

With the awareness in the society and the people in general gathering consciousness about their rights, measures for damages in tort, civil suits and criminal proceedings are on the augment. Not only civil suits are filed, the accessibility of a medium for grievance redressal under the Consumer Protection Act, 1986 (CPA), having jurisdiction to hear complaints against medical professionals for ‘deficiency in service’, has given rise to a large number of complaints against doctors, being filed by the persons feeling aggrieved. The criminal complaints are being filed against doctors alleging commission of offences punishable under Sec. 304A or Sections 336/337/338 of the Indian Penal Code, 1860 (IPC) alleging rashness or negligence on the part of the doctors resulting in loss of life or injury of varying degree to the patient. This has given rise to a situation of great distrust and fear among the medical profession and a legal assurance, ensuring protection from unnecessary and arbitrary complaints, is the need of the hour. The liability of medical professionals must be clearly demarcated so that they can perform their benevolent duties without any fear of legal sword. At the same time, justice must be done to the victims of medical negligence and a punitive sting must be adopted in deserving cases. This is more so when the most sacrosanct right to life or personal liberty is at stake.

References

  1. Kalantri S P. Medical errors and ethics. Indian J Anaesth 2003; 47: 174-175.
  2. Kataria Mrityunjay, Kataria Prashant. Medical negligence: criminal liability of the doctor and establishment. Cri L J 2003; 11 (SC) Journal 1.
  3. Santosh Kumar Sodhi v. Dr Vijay Maroo I (2003) CPJ 344
  4. L B Joshi (Dr) v. T B Godbole (Dr) AIR 1969 SC 128,131
  5. Indian Medical Association v. V P Shantha AIR 1996 SC 550: (1995) 6 SCC 651
  6. Philips India Ltd. v. Kunju Pannu AIR 1975 Bom. 306
  7. Kalra Satyanarayana v. Lakshmi Nursing Home 1 (2003) CPJ 262
  8. Achutrao Haribhao Khodwa v. State of Maharashtra (1996) 2 SCC 634
  9. State of Haryana v. Smt Santara AIR 2000 SC 1888
  10. Lakshmi Rajan v. Malar Hospital III (1998) CPJ 586
  11. P N Rao v. G Jayaprakasu AIR 1950 AP 201
  12. Spring Meadows Hospital v. Harjol Ahluwalia AIR 1998 SC 1801
  13. Suresh Gupta (Dr) v. Govt. of NCT of Delhi (2004) 6 SCC 422
  14. Paramananda Katara v. Union of India (1989) 4 SCC 286
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