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Supreme Court Ruling to help Doctors


I am submitting this important piece of legislation for Indain Doctors that recently was covered extensively in the press.


Dr.Ashok Sharma


SC: doctor not to blame for patient’s death
S.S. Negi
Our Legal Correspondent


New Delhi, August 5
In a judgement of far-reaching consequences for people in the medical profession, the Supreme Court has ruled that a doctor cannot be held liable for criminal negligence for the death of a patient during the treatment due to error of judgement or an accident.

“Where a patient’s death results merely from the error of judgement or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable,” a division Bench of Mr Justice Y.K. Sabharwal and Mr Justice D.M. Dharmadhikari ruled.

Exonerating capital’s plastic surgeon Suresh Gupta in a medico-negligence case filed against him under Section 304 A of the IPC, the court said to convict a doctor for such an offence, the prosecution had to come out with a case of high degree of negligence on his part.

Elaborating further, the court said to establish the criminal liability against a doctor for causing the death of his patient during treatment, “the act complained must show negligence or rashness of such a high degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable.”

The Bench said such approach by lower courts in the matter of fixing criminal liability on doctors was necessary so that the hazards of medical men in medical profession being exposed to civil liability may not unreasonably extend to criminal liability and expose them to the risk of landing themselves in prison.

A medical man could not be proceeded against for every mishap or death during treatment. “Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing a great disservice to the community at large because if the courts were to impose criminal liability on hospitals and doctors for everything that goes wrong, the doctors would be more worried about their own safety than giving all the best treatment to their patients,” the court said.

Cautioning lower courts to tread with care in such cases because it was a “difficult task” for them to weigh the degree of carelessness and negligence and to decide between civil and criminal liability, the apex court said “this would lead to shaking of the mutual confidence between the doctor and a patient.”

“After examining the medical papers accompanying the complaint, we find that no case of recklessness or gross negligence has been made out against the doctor to compel him to face the trial for offence under Section 404 A of the IPC,” Justice Dharmadhikari said.

A case against Dr Gupta and an assisting anesthetist was filed in April, 1994 after a patient operated upon by him for removing “nasal deformity” had died. The case against anesthetist was abated later because he had died during the trial proceedings.

According to the complaint lodged against Dr Gupta, it was alleged that the patient had died on the same day of the operation on April 18, 1994 and the post-mortem examination had reported the cause of death as “blockage of respiratory passage by aspirated blood consequent upon the surgical incised margin of nasal septum”.

The prosecution said from the post-mortem examination report and the opinion of three medical experts of a board constituted to investigate the case by the Delhi Government, it was clear “there was negligence in not putting a cuffed endo-tracheal tube of proper size and in a manner so as to prevent aspiration of blood blocking the respiratory passage.”

On the basis of the report, a court of magistrate had decided to proceed against Dr Gupta under Section 304 of the IPC.

The High Court had also rejected his plea for quashing of the trial proceedings against him.


Submitted by Dr.Ashok Sharma, Kota, Rajasthan 



 

Posted on : Tuesday, August 12, 2008 2:14 AM
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an item in response to the supreme court ruling in???favour of supreme court ruling appeared in hindustan time which should be addressed by the esteemed fellow doctors and please post your comments which i would forward to the writer.wake up before its too late if we do not speak now we never would.believe me there are numerous no.of frivolous cases and doctors being sued.anyone of you could be next.this site has a membership of 2376 doctors a response from even half of you could make a difference



Medical negligence and criminal liability

Dr. Kunal Saha

Columbus,


This is regard the recent SC ruling on "medical negligence" and criminal liability for the erring doctors have raised vital questions related to the practice of medicine in India and the fundamental rights for life for the ordinary citizens in the country who have been falling victims in large numbers to the uncontrolled practice of medicine by the Indian medicos.



Many in the medical field, have tried to extract a positive impact of the SC judgment on the plummeting "doctor-patient" relationship across India. Some have even drawn conclusion that this judgment would help preemptively to prevent the "crisis" of excessive litigations against the doctors in the US and restore the confidence of the Indian healers. Arguments have been put forward to draw support from the recent changes in some states in the US medical jurisprudence to limit the level of liability of damages against the doctors.



The US scenario is largely unrelated to the issues discussed in the recent Indian Apex court ruling on "medical negligence". Several fundamental differences in the ways medicine is practiced in India and the US have made it abundantly clear that the same rules cannot be applied to solve the "crisis" in healthcare in these two countries. While doctors in the US have been facing a severe predicament because of an over-abundance of frivolous lawsuits from unscrupulous attorneys for financial compensation, excessive litigation against the medicos is hardly an issue in the Indian environment.



Unlike in most developed countries, ignorance about healthcare is still pervasive among the majority of the Indian population. Indeed, most victims of "medical neglect" in India hardly even realize when they fall prey to the wrongful medicine at the hands of their doctors. To bring justice to the errant doctors is practically beyond the means even of most affluent and educated people in India for reasons more than one. There can be no argument that the vast majority of the cases of genuine "malpractice" by the Indian doctors go unnoticed to all except probably the errant medicos themselves.



In spite of recent increase in public awareness about "medical negligence", only a miniscule fraction of the episodes of bona fide medical neglects even make it to the news. It is common knowledge that the Medical Council in India, the only legal body empowered to take disciplinary actions against the delinquent physicians, has virtually remained as a safe heaven for the errant medicos.



In the US, death from "medical negligence" is almost impossible to go undetected. Thus, any attempt to emulate the American way of practice of medicine for an Indian environment is likely to be misguided. A few bare facts would glaringly display the extreme level of disparity that exists in the practice of medicine between the US and India. Although no official figures are made available on the number of complaints of "medical negligence" that different Medical Councils in India receive each year, in the ongoing public interest litigation (PIL) at the Supreme Court brought by the "People for Better Treatment" (PBT) (a registered humanitarian organization established to support the victims of "medical negligence") against the Medical Councils in India (Supreme Court Civil Writ Petition No. 317 of 2000), the Apex court had sought for an explanation from all state medical councils about the number of complaints against the doctors that they received and actions taken in the past two decades.



None of the state Medical Councils could provide a complete account for the past 20 years. A few councils have not even kept any record of complaints against the doctors for more than a couple of years while others have some complaints pending for decades. Indeed, the Medical Council of Kerala has listed a complaint filed in 1961 which is still pending. In an affidavit filed in 2001, the West Bengal Medical Council (WBMC) had listed a total of a mere 16 complaints filed against doctors in the previous 20 years, i.e. less than one complaint each year.



Ironically, the WBMC found not a single doctor guilty for "medical negligence" in these 16 complaints. The Federation of State Medical Board (FSMB) in the US routinely list in their website (www.fsmb.org) the complaints filed and actions taken by different state medical boards (same as "medical councils" in India) in the country each year. In contrast to the Indian scenario, a state in the US comparable to the size of West Bengal would receive between 300-400 complaints against doctors each year and 5-15% of these complaints eventually resulted in "conviction" of the accused doctors.



This simple math dose not require a genius brain for explanation and it poignantly points to the basic problem in the system of healthcare in India as it establishes beyond any reasonable doubts that there are virtually no "checks and balances" for the doctors in India. These numbers also explains why an observation may not be interpreted in the same manner for the vastly different medical systems in these two countries. Too many frivolous cases for financial damages against doctors were the primary reason why it may be necessary to regulate litigations for "malpractice" claim in the US.



The suggestion that the Apex court decision also draws support from the recent laws of "capping" the maximum claim against the doctors in some states in the US is clearly not valid in this situation. The Supreme Court ruling has only disfavored the filing of "criminal" cases for wrongful therapy except in cases of "gross negligence".



Indeed, the Apex court's observation is likely to enhance filing of more litigations for financial damages against the doctors in India as it has clearly indicated that doctors should be held responsible to compensate the family of a victim in the event of "medical negligence" resulting even from a mere "error of judgment". The "crisis" of excessive lawsuits faced by many doctors in the US has no connection with the healthcare problems in India. It would be an utter distortion of truth to claim that too many frivolous cases are filed against the doctors in India.



Indeed, the truth is almost the opposite - too many lives of innocent patients are being lost from reckless practice of wrongful medicines by the Indian healers who are fully aware that there is hardly any chance for them to ever face "real" justice under the protection of a medical environment which is heavily stacked against the ordinary people. In fact, in the history of independent India, not a single allopathic doctor has ever been convicted by the Apex court for "criminal" negligence.



Though rare, doctors in the US have been put to jail for "criminal negligence" leading to the death of a patient in the recent years. The laws for conviction of a physician for "criminal negligence" under the Section 304A of the Indian Penal Code (IPC) have always mandated that the errant doctor has to be guilty of "gross negligence" and not a simple "error in judgment". From a practical point of view, there was nothing novel in the recent Apex court judgment even though the powerful medical lobby made it appear as if the Supreme Court has ruled that the healers of our country should be held above the "criminal" law.



Unfortunately, a dangerous signal is likely to spread from this unscrupulous stance of the medical lobby for the practicing doctors in different corners of the country that may have devastating consequences on the hapless patients of India. The careless doctors are likely to become even more careless in the aftermath of such dubious claims by the leaders of the medical community and even more patients are likely to fall prey to the ruthless acts by these fearless doctors.



There can be no dispute that even the judges at the Apex court had never fathomed about such unfortunate scenarios before passing this recent judgment. One can only hope that the medical leaders of our country would come back to their senses and would desist from promoting any ideas of an "untouchable" status for our healers.



(The writer is President, People for Better Treatment (PBT) and Asst. Professor, Children Hospital, Columbus. The views expressed here is his personal.)
Replied on Tuesday, September 09, 2008 12:12 AM

With every passing day the newspaper and the television is full of one case of negligence by the doctor or the other.Nursing homes being thrashed up.Doctors are being bashed up and the medical community is still in its slumber.Each one of you out there thinks its not going to happen to you.But no one knows who is on the list next.Today morning the media man showed a lady doctor running away and the camera man chasing her.The whole scene was so ridiculous and degrading.An educated gentleman stating on t.v "my mother died because nsaids are not to be given to diabetics".Is it not time the doctors woke up from their respective services and thought collectively about it.What good is non conviction after 10 yrs if the doctor is already crucified by the media.If you are even a wee bit concerned just reply to this thought and we could show OUR fraternity that all those doctors are dilligent and not negligent.IN CASE ,THERE IS ANY SUCH CLAIM THE MEDIA SHOULD AT LEAST THINK TWICE ,BEFORE RUNNING BEHIND A DOCTOR.hoping for some response at least 


 

Replied on Monday, November 10, 2008 1:20 PM

The Doctor patient relationship in our country has undergone a sea change in the last decade and a half. The lucky doctors of the past were treated like God and people revered and respected them. We witness today a fast pace of commercialization and globalization on all spheres of life and the medical profession is no exception to these phenomena. As a result, the doctor-patients relationship has deteriorated considerably. Earlier too, doctors were covered by various laws, i.e. the Law of Torts, IPC etc., but since the passing of the Consumer Protection Act in 1986, litigation against doctors is on the increase. The medical profession is definitely perturbed by this and a rethink is necessary on standards of medical practice or ‘defensive medicine’.

doctors busy themselves in acquiring knowledge, perfecting operative techniques and assimilating the newest technologies that are evolving so rapidly. Sometimes the course of the
disease or therapeutic decisions does not run along predictable lines. The patient-doctor relationship is then put to test.

Doctors practicing ethically and honestly should not have any reason for fear. Law whether civil, criminally or consumer law, can only set the outer limits of acceptable conduct i.e. minimum standards of professional care and skill, leaving the question of ideal to the profession itself.


With every passing day the newspaper and the television is full of one case of negligence by the doctor or the other.Nursing homes being thrashed up.Doctors are being bashed up and the medical community is still in its slumber.Each one of you out there thinks its not going to happen to you.But no one knows who is on the list next.Today morning the media man showed a lady doctor running away and the camera man chasing her.The whole scene was so ridiculous and degrading.An educated gentleman stating on t.v "my mother died because nsaids are not to be given to diabetics".Is it not time the doctors woke up from their respective services and thought collectively about it.What good is non conviction after 10 yrs if the doctor is already crucified by the media.If you are even a wee bit concerned just reply to this thought and we could show OUR fraternity that all those doctors are dilligent and not negligent.IN CASE ,THERE IS ANY SUCH CLAIM THE MEDIA SHOULD AT LEAST THINK TWICE ,BEFORE RUNNING BEHIND A DOCTOR.hoping for some response at least 

Replied on Monday, November 10, 2008 1:56 PM
This is in reference to Dr. Kunal Saha's article posted by victimoffaith. I broadly agree with his views. He is right.
Dr. M C Gupta MD [Medicine], LL.M.
Advocate
Ex-Professor Dean NIHFW/AIIMS
Mcgupta44@gmail.com


Replied on Monday, March 09, 2009 1:39 PM
Hi,

PPA is law that will protects The information on Health and Provides information on Health. As the name HIPPA represents Health Information Portability Accountability Act. This help the medical patients in providing every latest information on Health and various treatments. HIPPA gives information in quickest way to the people through the internet.
Replied on Wednesday, April 08, 2009 11:49 AM
 




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