Supreme Court on Medical Negligence

KARUNAKARAN MATHIHARAN

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The past few years have seen an alarming spate of complaints by patients alleging medical malpractice filed before the consumer disputes redressal agencies, with an order for compensation passed in a significant number of cases. In addition, in many instances, criminal complaints were filed against the medical practitioners for allegedly causing the death of the patients negligently. This sudden rise in medical malpractice suits can be attributed to the heightened awareness among the public of the constitutionally-guaranteed civil rights of an individual. Increasingly, international covenants, the Constitution of India and the Supreme Court in many health-related judgments have considered healthcare as one of the fundamental rights. This phenomenon reflects a growing conflict in our country between the ethics of trust and rights, following closely the situation prevailing in developed countries. Further, the medical profession in India failed to meet a public need for the accountability of its members. The Medical Council of India did not exercise the powers invested in it by the Indian Medical Council Act, 1956 and failed to enforce discipline among the medical practitioners. Therefore, civil society found a way of meeting that need by suing medical practitioners under criminal and consumer law. This is in consonance with the time-tested fact that professions evolve in response to social pressures, sometimes in ways that conflict with the expressed and desired intentions of their members.

Accountability of Medical Professionals

Since the dawn of civilisation, medical professionals have always been accountable to the rule of law like any other citizens. However, the means that was used to judge their accountability varied in each civilisation. To what extent is the doctor subject to the law? Where does he stand in terms of power, responsibility and accountability or answerability? Are the restraints clear, fair and reasonable? Is the law sufficiently facilitating and liberating

Economic and Political Weekly January 14, 2006 for the doctors? Everybody, and especially, professionals, must be accountable and the law is one means whereby accountability to the patient, his family and society is revealed and enforced.1 These are the questions that have always exercised the minds of jurists, health providers and administrators and the general public.

It cannot be denied that a physician owes each patient the duty to possess and to bring to bear on the patient’s behalf that degree of knowledge, skill and care usually exercised by reasonable and prudent practitioners under similar circumstances, given the prevailing state of medical knowledge and the available resources. No reasonable patient would knowingly and willingly settle for less than that. The following excerpt from the Journal of American Medical Association2 illustrates the reality that the medical profession should acknowledge:

We are all human and must and do make mistakes in diagnosis and in treatment. The complicated and incomplete data, upon which physicians must base their judgments, make mistakes inevitable. No one but the charlatan is always right. But, for negligence and lack of average skill, we may justly be held responsible, for these are errors, which is within the power of every qualified practitioner to avoid.

In earlier civilisations, medical negligence was considered more a crime rather than a tort. For instance, the oldest known source that mentions medical negligence is the Code of Hammurabi, which was developed in Babylonia some 20 centuries before the Christian era. It required that if a physician operated on a man for a severe wound with a bronze lancet and caused the man’s death, the physician’s hands should be cut off. Similar harsh punishments were given in other contemporary civilisations of the yore. Medical negligence was also considered as an offence against the state or the public at large for which the state as the representative of the people it is the “people” who bring proceedings to prosecute the crime. The purpose of the criminal proceedings is to protect and vindicate the interest of the public by punishing the defender (the physician) and/or meting out a penalty. The victims were usually not awarded any damages in criminal proceedings. However, this scenario underwent a change as common law was evolving in England. Since 14th century medical negligence has been increasingly considered as a tort rather than as a crime. The tort law differs from the criminal law since it primarily strives to provide a compensation to the patients or to their relatives rather than punishing the negligent medical practitioner. Succeeding centuries saw the rise of negligence law based on the law of torts. Accordingly, in 1838 chief justice Tyndall while determining the problem of proper standard of skill and care in a medical negligence suit said, “Every person who enters a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill”.3

In India, before the introduction of Consumer Protection Act, an aggrieved patient or his relatives could seek remedy only by filing a complaint against the doctor for monetary compensation in civil courts. The legal remedies were based on the law of torts and Section 1-A of the Fatal Accidents Act, 1855. But to avail it, an aggrieved patient or his relatives had to wait for years and spend considerable amount of money on litigations. The civil court cases concerning compensation took the route of sub-court, district court, high court and Supreme Court. For instance, in Achutrao Haribabu Khodwa vs State of Maharashtra4 which took the convoluted route of civil courts, the final award of Rs 36,000 with costs by the Supreme Court was obtained 33 years after the death of the patient. This sort of overwhelming delay would dissuade even an exceptionally tenacious person from pursuing a case against a medical practitioner.

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as recklessness or wanton recklessness sufficient to warrant a conviction under Section 304-A of IPC.

Unlike in India, in UK and US when medical professionals are alleged to have caused criminal negligence, it is considered as an involuntary manslaughter. The doctors are criminally charged with the offences only after getting the professional opinion from the licentiate authority. However in India, even an exceedingly competent doctor is liable for being arrested for the death of his patient at the subjective discretion of a police officer.

Until recently, the Indian courts were very careful not to hold any qualified physicians criminally (instances of quacks punished for criminal negligence are there) responsible for patients’ deaths that were the result of a mere mistake of judgment in the selection and application of remedies and when the death resulted merely from an error of judgment or an inadvertent death. However, since the 1990s, this scenario has changed and there have been a spate of arrests of doctors and increase in the instances of qualified medical practitioners being punished by the courts. This has brought out the pertinent question whether medical mishaps are crimes or torts, and what should be the role of police (state) in such situations.

Criminal Medical Negligence

Since 1998, Supreme Court has given four conflicting orders7 that dealt with the question of framing charges under Section 304-A of IPC against qualified medical practitioners for alleged professional negligence.

In February 2004, in Mohanan vs Prabha G Nair,8a bench of the Supreme Court held that quashing the complaint by the high court at threshold where culpability could be established only on a proper analysis of expert evidence adduced by the complainant is not justified. It also held that the appellant did not get full opportunity to produce evidence before the magistrate and negligence of a medical practitioner could be ascertained only by scanning the material, if any, and expert evidence.

However, in August 2004, in Dr Suresh Gupta vs Government of N C T of Delhi,9 the apex court did a volte-face on its earlier order in Mohanan’s case. A bench of the Supreme Court held that for fixing criminal liability under Section 304-A of IPC on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as “gross negligence” or recklessness”, and it is not merely lack of necessary care, attention and skill. Subsequent to this order, on September 9, 2004, a bench did not agree with the judgment delivered in the case of Suresh Gupta. The judges said the words – “gross, reckless, competence and indifference” – did not occur anywhere in the definition of “negligence” under Section 304-A of the IPC. Hence, they referred the question of medical negligence for determination again by a larger bench.10 This referral is still pending before a fivemember bench.

Meanwhile, in August 2005, a threemember bench of the Supreme Court in Jacob Mathew vs State of Punjab11 reaffirmed the principles of law laid down in Suresh Gupta’s case. In this case, the apex court dealt with the liability of a medical practitioner in criminal law and discussed the law of medical negligence in detail and indicated the parameters of fixing liability. Further, it highlighted the distinction between the concept of negligence in civil law and negligence in criminal law. In addition, it has differentiated “negligence” as an occupational negligence (rash or negligent act committed by the drivers in road traffic accidents) and professional negligence (committed by the professionals).

The apex court held that a mere accident is not an evidence of negligence and also an error of judgment on the part of a professional is not a negligence per se. Higher the acuteness in emergency and greater the complication, more are the chances of error of judgment. No sensible professional would intentionally commit an act or omission, which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career.

The Supreme Court summed up its conclusions as follows:

(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: “duty”, “breach” and “resulting damage”.

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Section 304-A of the IPC has to be read as qualified by the word “grossly”.

In addition, the apex court has decreed that until the government of India and/or the state governments in consultation with the Medical Council of India issue statutory rules or executive instructions incorporating certain guidelines, 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. 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 applying Bolam’s case test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.

Subsequent to the Supreme Court order in the case of Jacob Mathew, it was presumed that the medical professionals could not be sued for negligence. Therefore, as a post-script to Jacob Mathew, in State of Punjab vs Shiv Ram,14 the Supreme Court observed that in criminal prosecutions or claims in tort, the burden always rests with the prosecution or the claimant. No doubt, in a given case, a doctor may be obliged to explain his conduct depending on the evidence adduced by the prosecution or by the claimant. That position does not change merely because of the caution advocated in the case of Jacob Mathew in fixing liability for negligence, on doctors.

After the apex court’s conclusions in Jacob Mathew, medical professionals may feel smug. However, it should be realised that in Jacob Mathew the apex court has not given any new concessions to the medical professionals. It has only reaffirmed the global judicial approach in adjudicating the complaints of civil medical negligence and its own observations given in the earlier judgments15on the arrest of an accused. Moreover, subsequently in State of Punjab vs Shiv Ram,16 it has also sent a caveat to the medical professionals on the need to check their erring business-minded colleagues. It held that in recent times the self-regulatory standards in the medical profession have shown a decline and this can be attributed to the overwhelming impact of commercialisation of the sector. There are reports against doctors of exploitative medical practices, misuse of diagnostic procedures, brokering deals for sale of human organs, etc. It cannot be denied that black sheep have entered the profession and that the profession has been unable to isolate them effectively. The need for external regulation to supplement professional self-regulation is constantly growing. The high costs and investments involved in the delivery of medical care have made it an entrepreneurial activity wherein the professionals look to reaping maximum returns on such investment. Medical practice has always had a place of honour in society; currently the balance between service and business is shifting disturbingly towards business and this calls for improved and effective regulation, whether internal or external. There is a need for introspection by doctors individually and collectively. They must rise to the occasion and enforce discipline and high standards in the profession by assuming an active role. Therefore, the ball is back in the medical professionals’ court with the ultimatum to initiate steps to stem the rot set in their profession.

EPW

Email: legalmedicine@vsnl.com

Notes

[The author thanks Amrit K Patnaik, director, Institute of Legal Medicine and former director, Institute of Forensic Medicine, Madras Medical College, Chennai for his critical comments and valuable suggestions in the preparation of this paper.]

1 Samuels, Alec (1981): ‘The Doctor and the Law’, The Medico-Legal Journal, Vol XLIX, Part Four, p 139.

2 Malpractice Editorial: Dr Parker Vindicated. 1891. 3 Lauphier vs Phipos (1838) 8 C and p 475; 34

Digest 548; (1835-42) All ER Rep 421. 4 AIR 1996 SC 2377. 5 Indian Medical Association vs V P Shantha

1995 (6) SCC 651 para 51, pp 678-79.

6 Interestingly, this is the section used to frame charges against an erring driver in a road traffic accident for causing the death of a person by rash and negligent driving.