A FRATERNITY UNDER THREAT
By-Willson T. Mathew Advocate
“Complaints of medical negligence have increased by 30%-40% over the past five years and each case takes at least a few years to be investigated,” says Dr Girish Tyagi, member, Delhi Medical Council (DMC), which has the mandate to probe medical negligence cases. It gets 20 to 25 complaints every month. “Of these, five or six are accepted for review, based on evidence,” says Dr Tyagi.
Complaints are on the rise all across India. Bihar Medical Council (BMC) has received 91 complaints since 2010, of which 47 cases are still pending at the hearing stage. Of the 268 cases filed with Andhra Pradesh Medical Council, action has been taken in 38 complaints. In Kerala, situation is better with 225 out of the 267 cases having been acted upon.
The US-based Indian-origin doctor had lost his wife to medical negligence by doctors at a Kolkata hospital during their visit to India in 1998. After more than fifteen years, on 24th October, 2013 in the case, Balaram Prasad v. Kunal Saha & Ors., (2013) 13 SCALE 1, the Hon’ble Supreme Court awarded a compensation of Rs.6,08,00,550 with 6% interest per annum from the date of the complaint to the date of the payment, thereby making this a landmark case where about Rs. 11 Crores has been granted as compensation to an individual for a medical negligence case, the highest compensation awarded so far in India.
However, looking into the entire gamut of complaints, we find that many of the complaints filed as against the Doctors are false and are used as a form of terrorism only to extract money. In many cases, the complainants or victims, in order to avoid payment of hospital bills, especially when the patient dies or has got no or minimal relief, resort to such false complaints, vandalism and even arson, so that the Doctors or Hospitals are asphyxiated to the extent that they are willing to waive the bills or pay a hefty sum of money as a settlement for avoiding any FIRs by the Police as it often tarnishes and damages the reputation built by a Doctor or Hospital over decades as such news of registration of FIRs are printed in ‘bold’ letters on the front pages of Newspapers by scandal friendly news agencies.
With passing of time and change in the dynamics of the Medical Profession, one has seen apparent cases of malpractice as well as formation of syndicates by Doctors mostly involving pathology laboratories as well as radiology centers. Drug manufacturing companies have indulged in huge ‘give and take’ contracts with hospitals and Doctors so that the Drugs manufactured by them are either prescribed or administered to the patients. Such activities, more aptly described to as ‘Malpractices’ have ensured that the Hospitals and Doctors become soft targets for the rising cases of Negligence as well as Malpractice in India, as 80% of our medical facilities are dominated by Private Hospitals and the flashy lifestyle of most of the Doctors has forced many to be prejudiced as against these noble people.
However, the ray of light has been the protection granted by the High Courts and Supreme Court of India against false prosecutions of Doctors and other Medical Professionals through various judgments and observations made in cases placed before them.
It is observed by the Supreme Court in the case of Suresh Gupta vs. Govt. of NCT of Delhi, [2004 (6) SCC 422] that, for fixing criminal liability 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.” It is not merely lack of necessary care, attention and skill. The decision of the House of Lords in R. V. Adomako relied upon on behalf of the doctor elucidates the said legal position and contains following observations, “Thus a doctor cannot 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.”
It is further observed in the case of Suresh Gupta, that, 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.
In the landmark case of Jacob Mathew vs. State of Punjab, [2005 (6) SCC 1], it was observed by the Apex Court that, in the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings : either he was not possessed of the requisite skill which he professed to have possessed, or he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.
It was further observed in the case of Jacob Mathew, an act which would result in loss or injury to the patient also puts the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of ‘res ipsa loquitur’ is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors, else it would be counter-productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.
It was further observed that, a mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So, also an error of judgment on the part of a professional is not negligence per se.
In the landmark case of Kusum Sharma vs. Batra Hospital and Medical Research Centre, [2010 (3) SCC 1050], it was observed by the Apex Court that, it is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals.
It was further held in the case of Kusum Sharma that, “On scrutiny of the leading cases of medical negligence both in our country, and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:-
- Negligence is the breach of a duty exercised 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 is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring 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 judged in the light of the particular circumstances of each case is what the law requires.
- A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
- In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
- The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
- Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. 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 would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
It was further held in para 95 of the Kusum Sharma case, that, ‘the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.’
INVOKING THE INHERRENT POWER OF THE HIGH COURT u/s 482 OF THE CODE OF CRIMINAL PROEDURE, 1973.
The provision of section 482 of the Cr.P.C., 1973 can be invoked by a Doctor or Medical Professional in case he or she is prosecuted falsely and without proof for any act which is allegedly a case of medical negligence. A Court while appreciating an application u/s 482 of Cr.P.C., will have to examine the 4 (four) parameters while invoking its inherent powers as laid in the case of Prashant Bharti v. State of NCT of Delhi [2013 (9) SCC 293], which are:
(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.”
In the case of State of Haryana v. Bhajan Lal [1992 AIR 604 SC], the Hon’ble Apex Court has endeavored to find seven categories of cases in which the High Court can quash criminal proceedings, the seven categories are as follows:
(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investi- gation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2)of the Code;
(c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
In the case of R.P. Kapur vs. State of Punjab [1960 AIR 862 SC], the Hon’ble Apex Court has endeavored to find ‘three categories’ of cases in which the High Court can quash criminal proceedings against a person, the three categories are as follows:
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
On the premise of the above categories, the Hon’ble Court is empowered to make such orders as may be necessary to prevent abuse of the process of any court, or otherwise to secure the ends of justice by quashing the FIR, Chargesheet as well as the entire prosecution as against a Doctor.