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By Rakesh Shukla Medical immunity and prerogatives are the hallmark of a feudal society and have no place in a democratic society. Doctors should be as liable as others under criminal, civil and consumer law for their acts of negligence
In September, the Supreme Court referred to a larger bench, for review, its earlier judgment in the Dr Suresh Gupta case that doctors would be criminally liable only for gross negligence. This is a welcome development. However, until reviewed, the decision in the case remains the law of the land. Dr Gupta was being prosecuted for the death on April 18, 1994 of a young man with no history of heart ailment who had come in for an operation for a small nasal deformity. The operation itself was a minor one from all accounts. The Court itself notes that the patient “was not accompanied by his own wife during the operation”, which suggests how minor the operation was expected to be. For once medical opinion was unequivocal that the cause of death was “not putting a cuffed endo-tracheal tube of proper size and in a manner so as to prevent aspiration of blood blocking respiratory passage”. The Court held that the act could be said to be a “negligent” act. However, it proceeded to quash the criminal proceedings pending against Dr Gupta declaring that doctors could only be criminally liable for “gross negligence” or “recklesness” and not “mere negligence”. In law a person accused of an offence has to undergo a trial before being pronounced innocent or guilty. The general approach followed by the Court in petitions for quashing criminal charges is to say, “Please don’t worry. Please undergo trial. If you have done no wrong, the trial court will pronounce you innocent.” It is only when the Court feels that given the facts in a case no offence is made out at all, that it exercises its extraordinary power and quashes the criminal charges itself. The Apex Court quashed the charge of ‘causing death by rash and negligent act’ on Dr Suresh Gupta. The judgment declared that as far as doctors are concerned, “mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one”. The medical profession does consider itself a privileged group whose members should not be treated like ordinary persons with regard to the law and legal processes. Claiming that evaluating the conduct of doctors is best left to peers in the profession, it has consistently resisted the jurisdiction of the courts. The 1995 apex court judgment holding that the medical profession would fall within the ambit of the Consumer Protection Act and that doctors could be hauled up before consumer courts was opposed tooth and nail by the community. In this era of corporate hospitals set up as high-return investments, kickbacks from pharmaceutical companies, the lure of lucre amongst doctors and the crass commercialisation of the profession, pontifications about ‘sacred’ doctor-patient relationships being vitiated by being dragged into court or medical treatment being treated as a ‘consumer service’ sound weak and do not have all that many takers. It may not be out of place to mention that the track record of the Medical Council of India with regard to disciplinary proceedings and punishment meted out to erring doctors is pathetic. The minuscule number of cases dealt with by the State Medical Councils, the initial disciplinary authority for professional misconduct, inspires no confidence as an effective forum for redressal of genuine grievances against negligent doctors. Unlike personal laws dealing with marriage, divorce and inheritance, the criminal law of the land makes no distinction on grounds of religion, caste, class or ‘profession’. Section 304-A of the Indian Penal Code titled ‘Causing death by negligence’ lays down that “whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”. The provision is unequivocal and clear. It has no provisos or sub-clauses permitting of exceptions in certain cases or of reading-in “gross negligence” for certain categories of persons/professionals. The only requirement of the offence is that there should be a direct nexus between the death of a person and the rash or negligent act of the accused. Negligence in law is a breach of duty which is owed and it is usually the most difficult to establish. Clearly, in a doctor-patient relationship there is a duty owed by the doctor to take utmost care in treating the patient. This is not an issue in dispute. Similarly, sections of the Penal Code pertaining to grievous hurt, culpable homicide or murder are uniformly applicable. The only provision which protects a doctor from a charge of grievous hurt in case of surgical interventions and culpable homicide in case of the death of the patient on the operating table is Section 88 of the Penal Code. However, the protection is available only if the act is done in “good faith”. “Good faith” in turn has been defined in section 52 as with “due care and attention”. In order to give protection, the second requirement of the provision is “consent” of the person/patient concerned. Consent can only be given by a patient if he/she has an opportunity to evaluate knowledgeably the options available and the risks attendant upon alternative courses of action. In Dr Suresh Gupta’s case, clearly the ‘good’ doctor did not inform the patient that going in for a minor operation for a small nasal deformity may result in his death. Consent must proceed from will, and mere submission is not consent. Section 90 of the Indian Penal Code throws further light on the nature of consent required. It states that consent under a misconception of facts is not valid consent. Thus, the consent given by a patient not knowing that there is a risk of death and believing only that the operation will make him well will not protect the doctor in case the patient dies on the operating table. Under section 105 of the Evidence Act, the burden of proof would be on the doctor to establish that the patient was aware of the risk before giving his consent. It is unfortunate that even though it enjoys no legal sanction, a practice of not registering criminal cases against doctors without taking the opinion of a panel of doctors has evolved in a number of places. Medical immunities and prerogatives are the hallmark of a feudal society and have no place in a democratic society. Doctors should be as liable as others under criminal, civil and consumer law for their acts of negligence. (Rakesh Shukla is a Supreme Court advocate.) InfoChange News & Features, November 2004
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