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Letting doctors get away with negligence

By Rakesh Shukla

The medical profession has consistently resisted the jurisdiction of the courts. A recent Supreme Court judgment puts medical professionals in India above the criminal law of the land. But surely it is hazardous to start carving out exceptions to the uniform applicability of criminal law, asks Supreme Court advocate Rakesh Shukla

The Supreme Court judgment of August 2, 2005 in the Dr Jacob Mathew case has far-reaching implications for the rule of law as well as the delicate constitutional balance between the judiciary and legislature.

By a stroke of the pen, the judgment of August 5 has subverted equality, a sine qua non of rule of law, and legislated and created a special class for medical professionals, putting them above the criminal law of the land. The judgment categorically lays down that an investigation officer should not proceed against a doctor without obtaining an independent and competent medical opinion, preferably from a doctor in government service qualified in that branch of medical practice. Similarly, the court breezily directs that a private complaint is not to be entertained unless the complainant has produced a credible opinion by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. A father whose daughter died due to an unnecessary surgery had to appeal to scores of doctors before one agreed to give evidence!

In its order, the three-judge bench has not only endorsed the view that the doctor is not criminally liable, as in the case of Dr Suresh Gupta in 2004, but gone much further. In Dr Gupta's case, a young man with no history of any heart ailment was subjected to an operation for nasal deformity. Although the operation was neither complicated nor serious, the patient died. The cause of death was found to be "not introducing a cuffed endotracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage". In simple words, the patient choked to death during the operation as Dr Gupta had not fixed the proper tube to take the blood out. However, the Supreme Court held that the doctor was not liable for having caused death due to negligence under Section 304-A of the Indian Penal Code and in fact quashed the charges rather than letting a trial court decide the issue on merit.

Dr Mathews' case initially came up before another two-judge bench which doubted the correctness of the decision in Dr Gupta's case and referred the matter for consideration by a larger bench. As in Dr Gupta's case, there is no controversy about the facts in the present case. One Jiwan Lal Sharma had difficulty breathing. The judgment itself notes, "An oxygen cylinder was brought and connected to the mouth of the patient but the breathing problem increased further. The patient tried to get up but the medical staff asked him to remain in the bed. The oxygen cylinder was found to be empty. There was no other gas cylinder in the room. Vijay Sharma (the son of the patient) went to the adjoining room and brought a gas cylinder therefrom. However, there was no arrangement to make the gas cylinder functional and in-between 5 to 7 minutes were wasted. By this time, another doctor came who declared that the patient was dead."

Like many recent orders, the primary logic put forth in the judgment does not support the conclusion reached by the judges. The mantra of "an ordinary competent person exercising ordinary skill in that profession" and not the standard of "the highest level of expertise" for adjudging negligence has been repeated time and again in the judgment. It does not seem too much to expect of an ordinary competent doctor exercising ordinary skill to check and ensure that there is oxygen in the cylinder which he puts to the mouth of a patient experiencing breathing difficulties.

The criminal law of the land is uniformly applicable and makes no distinction on grounds of religion, caste, class or 'profession'. Section 304-A of the IPC 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 or fine. The provision is unequivocal. It has no provisos or sub-clauses permitting exceptions for certain categories of persons or professions.

When injury or damage is suffered by a person due to a breach of duty on the part of another person, this is legally considered "negligence". Duty, in a narrow sense as a legal obligation to take proper care to avoid causing injury, is usually the most difficult to establish. However, in a doctor-patient relationship this is not an issue, as clearly there is a duty owed by the doctor to take utmost care while treating the patient.

The other dimension of the offence is the existence of a direct nexus between the death of a person and the rash or negligent act of the accused. The establishment of the nexus is again an area which in many a case is difficult to establish. However, in a case like the present one, it does not present any difficulties as the fact that death was caused by the non-availability of gas in the cylinder administered to the patient is beyond doubt.

The medical profession considers itself a privileged group whose members should not be treated like ordinary mortals under the law. Claiming that evaluating the conduct of doctors is best left to peers in the profession, it has consistently resisted the jurisdiction of courts. On the other hand, internationally, the courts have been trying to balance physicians' privileges with the rights of patients and say that the standard for evaluation should be set by law, rather than left to medical practitioners to impose upon themselves.

Courts hold that whether a particular conduct is reasonable under the circumstances is not an issue that can be concluded on expert medical evidence alone. Many aspects of negligence do not reside within the medical domain, and a lay witness can competently resolve questions like physician's failure to disclose particular risks, patient's lack of knowledge of the hazards and adverse consequences following treatment. Even in the case before the apex court, the question of whether there was oxygen in the cylinder administered to the patient is not an issue which falls in the medical domain requiring expert evidence and can easily be established by lay testimony.

In India , the 1995 judgment holding that the medical profession would fall within the ambit of the Consumer Protection Act was opposed tooth and nail by the community. Doctors have commodified their services and yet an attempt to provide redressal was vociferously opposed by them. Similarly, a couple of years ago the arrest of doctors in connection with a kidney transplant racket led to dharnas and protests by medical associations and the profession at large.

Like the Indian Penal Code, the Criminal Procedure Code governing the investigation, prosecution and trial of offences is uniform throughout the country. Information about an offence is to be recorded (in an FIR) and an investigation launched by the police. Similarly, a private complaint can be made to a magistrate who can examine the complainant and witnesses if he wishes and take cognisance of the offence. The provisions governing bail to persons accused of offences also do not permit special treatment being meted out to any category of persons.

In this era of corporate hospitals set up as high-return investments, kickbacks from pharmaceutical companies and crass commercialisation of the profession, pious declarations about this 'noble' profession and 'sacred' doctor-patient relationship being vitiated by court proceedings and prosecutions ring hollow. A reliance on observations from Privy Council decisions in 1943 seems a bit discordant in 2005. General propositions about the degree of negligence required for the purposes of civil law and for criminal prosecution have little bearing on the culpability of doctors in particular. Comments about the criminal prosecution of doctors being on the rise and therefore the need for special protection appear more like drawing room opinions than conclusions based on factual data adduced by any of the parties before the court. The underlying tenor of the judgment seems to be that it is bad to file cases against noble souls like doctors even for acts of negligence committed by them.

The judgment tries to bolster the case for special treatment of doctors by quoting certain illustrations in Sections 88, 92 and 93 of the IPC pertaining to doctors. These are provisions which offer protection for acts not intended to cause death, done by consent or without consent in good faith for person's benefit vide sections 88 and 92 respectively. However, protection under any of these three sections is available only if the act is done in "good faith". Section 52 of the Penal Code lays down, "Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention". Thus a doctor who has not taken due care and attention and is negligent would not get any protection under these provisions and the provisions in no way support special treatment for doctors in criminal law.

The judgment directs that a doctor accused of rashness or negligence may not be arrested in a routine manner simply because a charge has been leveled against him but only if arrest is necessary for furthering investigation or collecting evidence or if the doctor did not make himself available for facing prosecution. There is no reason in law or any logic why these sound directions should not be applicable to every person accused of an offence.

It is hazardous to start carving out exceptions to the uniform applicability of criminal law. Tomorrow, no FIRs may be lodged against engineers whose sub-standard buildings collapse and lead to deaths, unless a fellow engineer certifies that there was negligence. And no criminal case could be registered against a lawyer without the expert opinion of a fellow lawyer. To protect patients' rights, the accountability of professionals has to be taken out of the ambit of vested interests and professional coteries.

Immunity and prerogatives to medical practitioners have no place in a democratic society. Doctors should be as accountable as other professionals under criminal, civil and consumer law for any acts of carelessness leading to harm.

As Justice Laskin in Reibl vs Hughes declared, "The definition of duty of care is not to be handed over to the medical or any other profession, but a matter for law and the courts. They cannot stand idly by if the profession, by an excess of paternalism, denies its patients a real choice. In a word, the law will not permit the medical profession to play God".

(Rakesh Shukla is an advocate in the Supreme Court of India .)

InfoChange News & Features, August 2005