Criminal Liability of Medical Professionals: Legal Contours
- Sankalp Khurana*
Ø Introduction
The medical profession is
a profession that’s often considered to be sacred for it gives people hope.
People place a lot of trust in the medical machinery in hopes for being cured
of whatever medical problems they face, so the medical professionals carry a
lot of responsibilities on their shoulder so as not to abuse the trust placed
in them. However, with the growing scope of medical science, many people are
trying to transform it into a business model. Just like many other professions
in the modern times, corruption and dishonesty has also crept its way into the
medical profession. The doctor-patient relationship that was once considered to
be profound, now sometimes is the commencement of a legal battle between the
two sides. The trust that people placed in the medical professionals is slowly
deteriorating and if a medical procedure now fails, people tend to blame the
medical professionals. This has resulted in a plethora of litigation against
doctors and other medical professionals. The medical profession being a risky
and experimental profession, there is a need now to ascertain the legal
contours as to the criminal liability of medical professionals and when can
they be held accountable for a misappropriated medical procedure.
Ø Complexity of Medical
Science
Medical science is not an
exact science, because of its very complicated perspectives and its potential
for never ending growth, many philosophies and notions continue to emerge.
Thus, in order to test the new philosophies or to experiment on various possibilities
that surface, risks form an integral part of medical profession. The human body
works in mysterious ways and no individual can always pin point the exact
solution to a medical problem. Even if a problem is identified, the procedures
to treat some of these problems can often be complex and sometimes even
dangerous. There can sometimes be mistakes or accidents in these procedure
whether it is in a complicated surgery or while using a syringe or even the
reactions of a medicine to the body of a certain person. Some of these things
cannot be predicted, so to hold the medical professionals accountable for
unfortunate happenings would be wrong. If litigating a doctor is made easy then
the burden of the judiciary would increase immensely, that is why it is very
important to ascertain when doctors can be held liable and to what extent.
Ø Liabilities of a medical
professional
A medical professional
owes certain duties towards the society. One only finds himself in the medical
institutions in a grief stricken moment, the medical professionals thus, should
not take advantage of that grief. A common man normally does not have any
knowledge about the complications and hazards of medical procedures, thus this
poses a duty on the medical professionals to provide adequate information to
their patients and not take advantage of their qualms in any way. In the case
of Laxman Balkrishna Joshi v Trimbak Bapu Godbole and Anr (1968),
the Hon’ble Supreme Court stated that a doctor shall not undertake a medical
procedure that lies beyond the realm of his expertise, the court stated that a
doctor has certain duties such as he should decide whether or not to undertake
a case according to his skill and then to decide the apt treatment for that
case and then to administer that treatment with due care. The breach of any of
these duties will hold the doctor negligent.[i]
There can be three types of reprimands to a
medical professional if he violates his duties; the first is a disciplinary
action by the Indian Medical Association, they might impose a fine or suspend
the license of such professional temporarily or permanently; the second is a
civil suit, in the case of Indian Medical Association v VP Shantha and
ors (1995), the supreme court held that the treatments provided by a
doctor come under the definition of ‘service’ as given in consumer protection
act unless it was given for free or in a personal capacity and not a
professional one[ii],
thus a civil suit against a medical professional can be filed under the
consumer protection act; the third is criminal suit, a criminal suit against a
doctor can be filed if either he has violated a statutory provision such as
performing an illegal abortion, he is practicing without a proper license or if
has acted so recklessly as to constitute a crime against the state.
Ø Medical Negligence
As discussed earlier a
plethora of litigation is undergoing everyday against the doctors and other
medical professionals in the country. The most common of the allegations
against these medical professionals are filed under Sections 304A, 336, 337 and
338 of IPC that deal with punishment for injury caused because of negligence.[iii]
Negligence as defined in the law of torts occurs when a person has a duty
towards the other person, there is a breach of that duty and as a result of
such breach there is a direct injury to other person; but in order for
negligence to constitute a crime, the act must be so reckless as to constitute
an offence against the state. However, many of these cases are spineless
allegations and thus are filed with the malafide intention of hurting the
reputation of a doctor. These kind of cases can expose the doctors to series of
embarrassment and harassment through media, these ‘Media Trials’ can cause
serious damage to the reputation and carriers of these medical professionals.
That is why in the case of Dr. Suresh Gupta v Govt. of NCT of Delhi and
Anr (2004), the Supreme Court remarked that criminal prosecution of
medical professionals should not be made easy as they provide a great service
to the society and if their reputation is not protected they would avoid taking
complex cases so as to protect themselves, they would be more focused on
avoiding legal liability than treating the patient.[iv]
Following this various guidelines were devised in the case of Jacob
Mathew v State of Punjab and Anr (2005)[v]
in which they made clear that no criminal case can be initiated against a
doctor on the basis of a private complaint that does not form a Prima Facie
evidence before the court in the form of an expert opinion of another competent
doctor of the same field. The guidelines also expressed that a doctor should
not be arrested as in a normal prosecution unless there is a fear of his non
availability during the pendency of the trial.
Now because of reasons
aforementioned, misfortunes during medical treatments are a gross possibility
so there arises a question as to what can be considered as medical negligence
and to what extent does the liability of a doctor go if he is, in fact, found
to be negligent. In the landmark judgment of Jacob Mathew v State of
Punjab and Anr (2005) (supra), the apex court remarked that the
doctrine of Res Ipsa Loquitur as used in civil cases to constitute negligence
cannot, however, be used to constitute medical negligence. Just the lack of
proper care or choosing a different procedure than other cannot hold a medical
professional criminally liable. For a medical professional to be held
criminally liable the degree of negligence should be so gross as to constitute
recklessness that results in a serious injury to the patient. When patients
agree to undergo a certain medical procedure whether it’s a surgery or
administration of potentially harmful drugs, there is an implied consent to the
dangers that come along with those procedures and if the doctors have made them
aware of these dangers then they cannot be held liable if one of those
dangerous possibilities actually occur. A medical professional cannot be held
responsible for a procedure gone wrong so long as he has followed a practice
acceptable to the medical science of the time. The court also remarked that the
test for determining medical negligence in the Bolam’s Case (1957)[vi]
holds good applicability in India.
Ø Defenses available to a
medical professional
There are various defenses
available in the Indian Penal Code (IPC) that even if cannot protect a doctor
from civil or monetary liability, could surely help them in avoiding jail time.
Some of these are as follows:-
Section 80 of IPC states
that any act that happens because of an accident without any intention cannot
constitute a criminal offence so if an accident occurs during a medical
procedure despite due care, the medical professional cannot be held criminally
liable.
Section 88 of IPC gives
special protection to medical professionals as it states that if an act likely
to cause harm to another person is done in good faith, for the benefit of that
person and with his consent then such act cannot constitute a crime. Thus when
a medical professional performs a rather dangerous procedure on a patient with
his consent and for his benefit then he can claim protection from criminal
liability under this section.
Section 92 of IPC provides
protection to a medical professional in the extraordinary case when the consent
of person being treated cannot be obtained for some reason. This section
provides that if a patient is unable to give his consent and there is no
guardian present then a harmful act done for the benefit of the patient and in
good faith by the medical professional will not constitute an offence. This
section enables a doctor to treat patient that comes in unconscious or in such
a condition that obtaining his consent is not possible.[vii]
Ø Conclusion
Medical profession is a
great service to the society and frivolous litigation can prove to be of great
harm to the working and evolution of the medical science. So to protect our
society from a greater loss, protection of a certain magnitude has to be
provided to the medical professionals. As opined in the judgment of Jacob
Mathew (supra) there is a need for the Government of India and Indian Medical Association
to lay down concrete legal contours as to the criminal liability of medical
professionals so as to provide the patients with a clarity on what their claims
are and also to protect the medical professional from unnecessary harassment.
* Student of Department of Laws , Guru Nanak Dev University , Amritsar
[i] https://indiankanoon.org/doc/297399/
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