INTRODUCTION
Medicine is one of the noblest professions in every country for several reasons, firstly they are entrusted with the health and well-being of people often resulting in life-saving decisions secondly because they undergo extensive training and examinations to acquire the skills required for the diagnosis of life-threatening diseases. In India, doctors are worshipped no less than God.
An increasing trend of criminal and civil cases against doctors particularly under the Consumer Protection Act can be seen. Traditionally doctors were sued only for criminal negligence but now people also sue doctors for other medical malpractices such as illegal fetal sex determination, organ transplants, adulteration of drugs, etc.
Fortunately, Indian Legislation provides various provisions under different legislations for the prosecution and punishment of doctors to protect society from wrongdoers.
CRIMINAL MEDICAL NEGLIGENCE
Medical negligence refers to the commission or omission of an act by a medical practitioner that amounts to a breach of the standard of good faith that is accepted by the medical community, leading to an injury to the patient or related persons.
The main element of medical negligence is that it has to be coupled with ‘Mens Rea’. It refers to the guilty mind and implies that when a medical practitioner knowingly does something that he knows might result in injury to a patient and he does that a fraudulent intention, mens rea may be inferred.
The following are offences recognized under the Indian Penal Code which amount to criminal medical negligence:
Section 304A- Causing death by negligence[1]
Section 336- An endangering life or personal safety of others[2].
Section 337- Causing hurt by act endangering life or personal safety of others[3].
Section 338- Causing grievous hurt by act endangering life or personal safety of others[4].
None of the offences enumerated here explicitly use the words “medical practitioner or doctors” rather they use the word “Whoever” which impliedly includes medical practitioners as well.
Elements (4 Ds) to be proved by the complainant to succeed in a medical negligence case.
- Professional Duty owed to the patient;
- Deficiency / Breach of such Duty;
- Direct Causation- injury caused by the breach (Causa Causans)
- Resulting Damages.
“To establish liability by a doctor where deviation from normal practice is alleged, three facts are required to be established.
- Firstly, it must be proved that there is a normal practice;
- Secondly, it must be proved that the defender has not adopted that practice;
- Thirdly, (and this is of crucial importance) it must be established that the course, the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care.
There is a heavy onus on the pursuer to establish these three facts, and without all three, his case shall fail[5].”
TEST OF MEDICAL NEGLIGENCE- THE BOLAM TEST
‘In Bolam vs. Friern Hospital Management Committee in 1957 test to determine medical negligence was laid down;
McNair J stated: “A doctor is not guilty of negligence if he has acted per a practice accepted as proper by a reasonable body of medical [people] skilled in that particular art.”’ [6]
In other words, for a complainant to succeed against a medical practitioner in case of medical negligence it has to be shown that the medical practitioner has acted in a manner deviating from the usual standard of care that has been expected from the doctors.
ADULTERATION OF DRUGS
Section 274 of the Indian Penal Code deals with the offence of adulteration of drugs and sale of adulterated drugs. To constitute an offence under this section it is not mandatory to prove injury or harm to the person to whom adulterated drug was administered. Mere adulteration of a drug is sufficient enough to prosecute a person under this section.
The ingredients of the section enumerated here are:
- The drug must be used in medical practice.
- The accused altered it.
- Such adulteration made the drug less effective, changed its operation, or made it noxious.
- The adulteration was done knowingly or intentionally.[7]
Section 39(1) (iv) of CrPC[8] makes it obligatory for a medical practitioner or any person to give information to the police or nearest magistrate for the commission of any offence enumerated in Sections 272 to 278. In case of non-compliance without any reasonable reason, the burden of proof shall lie upon the person so aware.
Thus, a medical practitioner must report the case of adulteration of drugs, failing which might attract civil as well as criminal liability.
OTHER OFFENCES RELATED TO MEDICINE
- ‘Section 269-Negligent act likely to spread infection of disease dangerous to life:
Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both[9].
Doctors are entrusted with the duty to stop the spread of an infectious disease. It is related to disease spread and quarantine disobedience. Thus, the negligent breach of this duty is likely to attract criminal liability of doctors.
- ‘Section 284- Negligent conduct concerning machinery:
Whoever does, with any machinery, any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any machinery in his possession or under his care as is sufficient to guard against any probable danger to human life from such machinery’[10].
This section is related to negligent conduct concerning machinery which may endanger human life. Hospital equipments are classified as machines under this section. Thus, any negligent act which leads to failure or negligent use of that machinery may attract criminal liability against doctors.
- Section 5 of the PCPNDT Act[11]
It lays down provisions for written consent of a pregnant woman for prenatal diagnosis and the prohibition on the medical practitioner or any other related person to communicate the sex of the fetus including explaining to the women all sides and procedures for diagnosis.
- Section 6 of the PCPNDT Act[12]
This section prohibits the sex determination of a fetus in any circumstance. It prohibits any pre-natal diagnosis including ultra-sound with the purpose of sex determination.
- Section 23 of the PCPNDT Act[13]
This section lays down penalties and punishments for contravention of any of the provisions of this act. It prescribes imprisonment for up to three years and a fine which may extend to ten thousand rupees.
- Section 11 of the THOTA Act[14]
This section prohibits the transplantation of human organs for any purpose other than therapeutic purposes. No person including the donor is authorised to give consent for transplantation other than therapeutic purposes.
- Section 12 of the THOTA Act[15]
This section provides for an obligation on the medical practitioner to explain to the donor all possible outcomes, effects, hazards and complications associated with the removal and transplantation
ARREST OF DOCTORS
Doctors have no immunity from arrest in any of the legislation of the government of India. They can be arrested like any other person in case of non-compliance. They also cannot be bailed in any circumstances if arrested for a non-bailable offence. However, a doctor accused of rashness or negligence, may not be arrested routinely unless his arrest is crucial for furthering the investigation or for the collection of evidence.
Even if a doctor is arrested there must be strong, concise, and clear evidence to support this action by the investigating agency.
‘At least three weighty considerations can be pointed out which any forum trying the issue of medical negligence in any jurisdiction must keep in mind. These are:
- that legal and disciplinary procedures should be properly founded on firm, moral, and scientific grounds;
- that patients will be better served if the real causes of harm are properly identified and appropriately acted upon; and
- that many incidents involve a contribution from more than one person, and the tendency is to blame the last identifiable element in the chain of causation, the person holding the smoking gun’[16].
‘Thus, a doctor can be arrested only if a prima facie case was made out and after getting an expert opinion from a qualified doctor, preferably a government doctor of adequate qualification and training’[17].
CONCLUSION
In conclusion, criminal as well as civil cases against doctors and hospitals are increasing at a rapid pace throughout the world. Medicine is not just a profession that requires a duty to be imparted. It should be processed with the utmost care, good faith, and moral conduct to avoid any sort of liability. Also, doctors should not get themselves involved in any type of malpractice because it will not only attract criminal liability but will also degrade the nobility of the profession.
Author(s) Name: Vaidehi Sharma (Mohanlal Sukhadia University)
Reference(s):
[1] Indian Penal Code 1860, s 304A
[2] Indian Penal Code 1860, s 336
[3] Indian Penal Code 1860, s 337
[4] Indian Penal Code 1860, s 338
[5] Dr. Vishwanath Shivling Birajdar vs Gangadhar Sangram Mitkari & Ors. [2012] REVISION PETITION NO. 2156
[6] (2) All England Law Reports 118,
[7] Indian Penal Code 1860, s 274
[8] Criminal Procedure Code 1973, s 39
[9] Indian Penal Code 1860, s 296
[10] Indian Penal Code 1860, s 294
[11] Pre-Conception and Pre-Natal, Diagnostic Technique Act 1994, s 5
[12] Pre-Conception and Pre-Natal, Diagnostic Technique Act 1994, s 6
[13] Pre-Conception and Pre-Natal, Diagnostic Technique Act 1994, s 23
[14] Transplantation of Human Organs and Tissues Act 1994, s 11
[15] Transplantation of Human Organs and Tissues Act 1994, s 12
[16] Jacob Mathew vs State Of Punjab & Anr [2004] Appeal (crl.) 144-145
[17]‘Doctors accused of negligence should not be arrested in a routine manner, says DGP’( The Hindu, June 23, 2023)<https://www.thehindu.com/news/national/tamil-nadu/doctors-accused-of-negligence-should-not-be-arrested-in-a-routine-manner-dgp/article66998930.ece> accessed 17 November 2023
