Avoiding Criminal Negligence in Healthcare BY SIDHARTH LUTHRA SENIOR ADVOCATE & TARA NARULA ADVOCATE

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Joel Blair
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1 Avoiding Criminal Negligence in Healthcare BY SIDHARTH LUTHRA SENIOR ADVOCATE & TARA NARULA ADVOCATE

2 CIVIL vs. CRIMINAL Healthcare Experts typically face two types of Liability: Civil, under the Consumer Protection Act, and Criminal, under the Indian Penal Code and other laws, such as the MTP or PCPNDT. There is a clear difference between the degree of negligence required in Criminal and Civil law.

3 BOLAM s Case Bolam v. Friern Hospital Committee, reported as [1957] 2 All E.R in the case of a medical negligence man means failure to act in accordance with the standards of reasonably competent medical men at that time.....there may be one or more perfectly proper standards, and if the medical man conforms with one of those proper standards he is not negligent Bolam s case was followed in Suresh Gupta (2004) and later in Jacob Mathew

4 Jacob Mathew v. State of Punjab (2005) 6 SCC 1 Lack of care, an error of judgment or an accident, is not proof of negligence on the part of medical professional. Though the word gross has not been used in Section 304A IPC, yet in criminal law negligence or recklessness, must be of such a high degree as to be gross. To prosecute a medical professional for negligence under criminal law, it must be shown that the accused did something or failed to do something which in the given facts and circumstances, no medical professional in his ordinary senses and prudence would have done or failed to so.

5 V Kishan Rao v. Nikhil Super Speciality and Anr, (2010) 5 SCC 513: (On) The question of medical negligence..... in the context of Section 304-A of the Penal Code, Lahoti, C.J. speaking for the unanimous three- Judge Bench in Mathew [(2005) 6 SCC 1 : 2005 SCC (Cri) 1369], made a clear distinction between degree of negligence in criminal law and civil law......to constitute negligence in criminal law the essential ingredient of mens rea cannot be excluded......in order to pronounce on criminal negligence it has to be established that the rashness was of such a degree as to amount to taking a hazard in which injury was most likely imminent.

6 Laws Governing Doctors and Hospitals 1. The Indian Medical Council Act, The Indian Medical Council Rules, The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, Special Laws: a) The Medical Termination of Pregnancy Act, 1971 b) The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 c) The Transplantation of Human Organs and Tissues Act, 1994 d) The Consumer Protection Act 1986

7 Doctors Liability under the Indian Penal Code, 1860 Increase in criminal cases filed against doctors and hospitals invoking various IPC provisions including, but not limited to, Section 304 A IPC (but even Section 304 IPC).

8 Relevant Provisions of the Indian Penal Code Section 87- Act not intended and not known to be likely to cause death or grievous hurt, done by consent. Section 88- Act not intended to cause death, done consent in good faith for person s benefit Section 92- Act done in good faith for benefit of a person without consent.

9 Section 304- Punishment for culpable homicide not amounting to murder Section 324, 326- Causing hurt & causing grievous hurt Section 312,313,314,315,316- offences relating to miscarriage

10 Section 304-A- Causing death by negligence Section Causing hurt by act endangering life or personal safety of others. Section 338- Causing grievous hurt by act endangering life or personal safety of others.

11 CONSENT Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The only exception to this rule is where the additional procedure though unauthorized, is necessary to save the life or preserve the health of the patient Common consent for diagnostic and operative procedures contemplated.

12 HIGH RISK CONSENT Doctor should disclose : (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. The nature and extent of information to be furnished by the doctor to the patient to secure the consent should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular field.

13 Medical Record keeping Crucial test for doctor s actions in a medical negligence plea Must be cogent, accurate, without cutting, overwriting anything suspicuous Coherence between Doctor s notes and nurses chart as also different specializations necessary

14 COMMUNICATION Today s patient needs not only treatment is but is often well read (internet being the source) Aware & knowledgeable (not as a medical professional) though Where patients s need to know is not satisfied leads to suspicions and initiation of criminal action though not warranted Ethics regulations of 2002 prescribe norms which are not knownby Doctors nor followed though protection exists for doctors

15 A Note of Caution Detaining patients or bodies for non-payment of bills may also fall within the definition of wrongful restraint or wrongful confinement, punishable under Sections 341 and 342 IPC respectively.

16 Preliminary inquiry The Constitutional bench in Lalita Kumari vs. Govt. of U.P (2014) 2 SCC 1, provided a safeguard making an exception to mandatory registration of FIR, and held that there can be no registration of FIR against medical practitioners without preliminary inquiry.

17 Conclusion While prosecutions ought to be restricted to Section 304A IPC, doctors often charged with Culpable Homicide under Section 304 IPC. No bar to the application of IPC offences even where Special Laws apply, if offences distinct. Medical criminal negligence is determined in Jacob Mathew to be gross in nature. The de-facto test is based on assessing what other doctors would have reasonably done or not done in a given situation. To this end, expert evidence is required to proceed with investigation, as per the decision of the SC in Jacob Mathew and Nikhil Super Speciality.

THE SUPREME COURT'S ON MEDICAL NEGLIGENCE. By Adv. (Dr.) Santosh A. Shah, Kolhapur

THE SUPREME COURT'S ON MEDICAL NEGLIGENCE. By Adv. (Dr.) Santosh A. Shah, Kolhapur The Supreme Court of India under Art. 141 of the Constitution of Indian lays down law of the land. In recent times, it