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Alleged Medical Negligence
Case : Immunity to doctors under IPC
Dr.O.P.Singh Kande
President
Indian Medical Association Punjab
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There is lot of
heart burning among the medical professionals for about a decade
about the role of Police in cases of alleged medical negligence
leading to morbidity or mortality of the patient under treatment
of doctors. The present trend is that on receipt of a complaint
from the relatives of patient alleging harm to the patient in
the form of wrong diagnosis or treatment and also in the event
of death of the patient due to alleged negligence by the doctors
and staff of the hospital, the police book the doctors under
various sections of IPC likely ordinary criminals and put them
behind the bars and sometimes even bail is denied to the doctor
depending upon the papers made out by the investigation officer
on the basis of allegations made by the complainant party. The
doctor is not given the benefit of protection provided to him in
IPC under sections 87,88 and 92 ). The matter has taken
importance in view of intricacies of medical treatment and
inability of the non-medical investigating police officers to
understand the same and the doctors are being made to suffer
because of the cases being registered us 302/ 307 / 304 and
304-A of IPC depending upon the allegations made by relatives of
the patient. This has lead to continuous stress and strain on
the mind of practicing doctors and certainly has a bearing on
the free-mind management of serious and emergency cases needing
urgent and bold initiative on the part of treating doctors
without any fear of being involved in allegations of medical
negligence and harassment by police. Something needs to be done
on this issue lest we will land into a situation where NO DOCTOR
WILL EVER DARE TO TAKE UP SERIOUS AND EMERGENCY CASES the
atmosphere of fear of police will be very dangerous for proper
health care delivery to suffering humanity. There is no effort
to undermine cases of medical negligence and protect the doctors
who have been negligent in treating the patient. There are
various remedies available to patients to air their grievances
and get compensation for the loss accrued due to medical
negligence of doctors, which are covered under statutory law eg.
Law of Torts , Consumer Protection Act and Medical Councils. No
where in the world there is involvement of police to take
contingence of any complaint alleging medical negligence and
this is a unique feature of Indian Police to take action in
cases of complaints of this nature. The reasons given by various
Officers in Police are that whenever some body brings a
compliant the police is duty bound to register a FIR and do
justice with the Complainant. What about justice with the other
party ? The Common reply have been “the patient have suffered
loss of life/ bodily injury- something has gone wrong, otherwise
why a patient should die. The doctor has negligently killed the
patient and thus we are bound to book him under relevant
sections of IPC” . Now the point has been what about section 87,
88 & 92 ? These sections of IPC provide protection to medical
practitioners by way of ‘unintentional acts of causing death”
and “for whose benefit it is done in good faith” and
Section 88 IPC : states that “ Nothing , which is not
intended to cause death, is an offence by reason of any harm
which it may cause, or be intended by the doer to cause, or be
known by the doer to be likely to cause, to any person for whose
benefit it is done in good faith, and who has given a consent,
whether express or implied, to suffer that harm, or to take the
risk of that harm” . The example in this section is related
to the doctors. The ingredient of Offences under section 299 IPC
( punishable US 304 IPC I & II ) , Section 300 IPC ( punishable
US 302 ) are “Intention and knowledge” of an action done to
cause death. The description of these sections is very clear.
It is pertinent
to mention that ““No
Doctor would like to bring bad reputation for his clinic. It
will never the intention of any doctor to kill his patient”
( Justice R.L.Anand ..Criminal Revision No. 203 of 1999 )
In view of the
above the very ingredient of “intention” is absent in cases of
medical cases and as such sections 302 and 304 and 307 as no
applicability in cases of Hospital death. But unfortunately
these sections are made applicable in many case of Hospital
deaths in our country.
As for as
Section 304-A ( causing death by Rash & Negligent Act ) is
concerned the section deals with deaths due to rash & negligent
act of the doer against the other person who is either known or
unknown, but certainly not under his care. Such as a driver of a
Car hits against a scooterist and kills him. The driver of car
was not driving car in “good faith” or for the “benefit” of the
deceased. But he has acted rashly and negligently and
“unintentionally” killed the scooterist. The section 304-A is
applicable. Where as if it can be proved that a Car driver was
driving the car carefully but a child ran from the other side of
road and came suddenly in front of the car and driver could not
save him and child died during the accident. The Driver will not
be charged with 304-A , if he is holding a valid license to
drive. Similarly in medical cases the duly qualified and
registered doctors do their best in saving the life of the
patient, who is already ill and suffering from various ailments
and body systems are compromised . Even if the doctors act in
“good faith” for the benefit of the “Patient” and the body
reacts in unexpected manner to procedures and drugs, and
unfortunately the patient unable to withstand the procedure due
to compromised situations, beyond the control of doctors , dies
, the act on the part of the doctor is “unintentional to cause
death”. Hence section 304-A is also not attracted in such
situations. A doctors is considered to have acted in
‘good-faith’ for the ‘benefit of the patient’
Hence as for as
law is concerned it is clear that the qualified and registered
doctors as per their system of practice are provided protection
under sections 88, 89 and 92 of Indian Penal code and cognizance
by police under sections 302, 304, 304-A etc. do not arise at
all in case of injury to or the death of the patient , during
the course of treatment. Hence the police , after receipt of any
complaint of alleged medical negligence resulting in bodily
injury or death of the patient , must refer all such complaints
to respective Medical Council , for proper action under law.
The grievances
of the patient and relatives can also be sent directly to
Medical Council or law courts for action under Law of Torts and
to Consumer courts , as may be desired by the Complainant.
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Dr.O.P.Singh Kande ,M.D.
Amarinder Hospital, Prem Nagar,
Bhadson Road Patiala-147004 ( Punjab )
Tel: 0175-2362869 / 2366859 / 5009869 / 3103451 / 98140 41869 /
Fax: 0175-2362869
Email:
opsingh_99@yahoo.com ,
opskande1@sancharnet.in |
