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Criminal Liability of Medical Professionals: Legal Contours

 

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. 

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