MEDICAL NEGLIGENCE CASES - CRIMINAL LAW
Page 1
Adv.C.K.SIVADASAN,
Consultant
– Medico-Legal & Hospital Administration,
Email: cksdas@yahoo.co.in
INDEX
|
CASE
|
SUBJECT
|
PAGE
|
|
Abdul Gaffar vs. State of
|
FORENSIC AUTOPSY
|
41-44
|
|
Dr.K.Abdul Muneer and Anr.
vs. The State of
|
ALLOPATHIC PRACTICE
|
85-86
|
|
Achutrao Haribhau Khodwa and Ors vs.
State of
|
DOCTRINE OF RES IPSA LOQUITUR
|
44
|
|
‘Ad Hoc’
Committee, The Indian Insurance Company Association Pool vs. Smt. Radhabai,
1976 MPLJ 349 = AIR 1976 MP 164
|
MEDICAL RELIEF
|
24
|
|
Airedale NHS Trust vs. Bland (1993) All E.R. 82) (H.L.)
|
EUTHANASIA BY DOCTORS
|
37-38
|
|
Dr.K.Alamelu vs. Government Of Tamilnadu
(
|
PUERPERAL STERILISATION, SERVICE ENQUIRY
|
81-82
|
|
Andrews vs.
Director of Public Prosecutions, [1937] A.C. 576
|
CIVIL LIABILITY AND CRIMINAL LIABILITY
|
10
|
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 2
|
CASE
|
SUBJECT
|
PAGE
|
|
Aruna
Ramchandra Shanbaug vs.
|
EUTHANASIA
|
94-97
|
|
Bhalchandra
Waman Pathe vs. State of
|
NEGLIGENCE IN CIVIL LAW AND IN CRIMINAL LAW
|
19
|
|
Bolam vs. Friern Hospital Management
Committee, Queen’s Bench Division, [1957] 1 W.L.R. 582 = [1957] 2 All E.R.
118
|
MEDICAL
NEGLIGENCE
|
13-15
|
|
Bolitho vs. City and Hackney Health Authority,
[(1997) 4 All ER 771 (HL)]
|
LIABILITY FOR NEGLIGENT TREATMENT OR DIAGNOSIS
|
51
|
|
Bowater vs. Rowley Regis Corporation - [1944] 1 KB
476
|
valid or real consent
|
11
|
|
|
NON-DISCLOSURE OF RISKS OF TREATMENT
|
23
|
|
Dr.
G.S. Chandraker vs State and Anr. (
|
NEGLIGENCE
|
69-71
|
|
Charan Lal Sahu vs. Union of
|
PARENS PATRIAE
|
35
|
|
|
BURDEN OF PROOF
|
27
|
|
Cobbs vs. Grant, 8
|
LACK OF INFORMED CONSENT
|
19-22
|
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE
CASES - CRIMINAL LAW
Page 3
|
CASE
|
SUBJECT
|
PAGE
|
|
Re. Conroy 98 NJ 321, 486
A.2d 1209 (1985)
|
INFORMED CONSENT
|
29
|
|
Cruzan vs. Director, MDH, 497
|
INFORMED CONSENT
|
34
|
|
Donald McCormick vs. Gaston Marcotte, [1972] S.C.R. 18 (Supreme Court of
|
REASONABLE CARE
|
24
|
|
Eckersley vs. Binnie, [1988] 18 Con.L.R. 1, 79
|
PROFESSIONAL COMPETENCE
|
30
|
|
Emperor vs. Omkar Rampratap (1902) 4 Bom LR 679
|
RASH AND NEGLIGENT ACT
|
9
|
|
F vs. R (1983) 33 SASR 189
|
PROFESSIONAL PRACTICES
|
27
|
|
Gian Kaur vs. State of
|
EUTHANASIA
- LIFE IS NOT MERE LIVING BUT LIVING IN
HEALTH
|
39
|
|
Gopal Das
Sindhi and Ors. vs. State of
|
COGNIZANCE OF THE OFFENCES
|
15-16
|
|
|
DOCTOR’S DUTY TO INFORM
|
24
|
|
Heller vs. DOE (509) US 312
|
PARENS PATRIAE
|
100
|
|
Hucks vs. Cole(1968) 118 New LJ 469
|
MEDICAL NEGLIGENCE
|
12
|
|
Hunter vs. Hanley 1955 SLT 213
|
NEGLIGENCE IN DIAGNOSIS OR TREATMENT
|
12
|
|
Indian Medical Association vs. V.P. Shantha & Ors; 1996 AIR 550,
1995 SCC (6) 651
|
NEGLIGENT ACTS - EXAMPLES
|
41
|
|
Indraprastha Medical Corp. Ltd. vs. State NCT of Delhi & Ors. (2010), Crl. M.C. No.
827/2010, (
|
CRIMINAL NEGLIGENCE OF HOSPITAL IN MEDICAL NEGLIGENCE
|
86
|
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 4
|
CASE
|
SUBJECT
|
PAGE
|
|
Re J (A Minor Wardship :
Medical Treatment) 1990(3) All E.R. 930
|
SOVEREIGN
AS PARENS PATRIAE - FATHER OF THE COUNTRY
|
33
|
|
Jacob Mathew vs. State of
|
NEGLIGENCE BY PROFESSIONALS
|
64-69
|
|
Javed &
Ors. vs. State of Haryana & Ors.
(2003) 8 SCC 369,
|
TWO-CHILD NORM CASE
|
60
|
|
John Oni
Akerele vs. The King AIR 1943 PC 72.
|
OVER DOSE OF MEDICINE
|
10-11
|
|
Juggankhan
vs. The State of
|
TREATMENT USING UNKNOWN MEDICINE
|
17-18
|
|
Kashmira
Singh vs. State of
|
EVIDENCES RELATED WITH CASE
|
54
|
|
V. Kishan Rao vs.
|
APPLICABILITY OF
BOLAM TEST
|
82-83
|
|
|
GOVERNMENTAL LIABILITY
|
38
|
|
Dr.
S.R.Malusare vs. The State of
|
GROSS NEGLIGENCE
|
98-99
|
|
Malay Kumar Ganguly vs. Sukumar Mukherjee & Ors. (SC of
|
STEROIDS IN TREATMENT
|
75-81
|
|
Meenakshi Bala vs. Sudhir Kumar and Ors,
(1994) 4 SCC 142
|
QUASHING OF FIR
|
40
|
|
Mohanan
vs. Prabha G. Nair and Anr.:AIR 2004 SC 1719, I (2004) CPJ 21 SC
|
CRIMINAL NEGLIGENCE – DETAILED ANALYSIS OF
EVIDENCE ESSENTIAL
|
63-64
|
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 5
|
CASE
|
SUBJECT
|
PAGE
|
|
Michael Hyde
and Associates vs. J.D. Williams & Co. Ltd., [2001] P.N.L.R. 233
|
PROFESSIONAL STANDARD
|
60
|
|
A.S. Mittal & Ors vs State Of U.P. & Ors (SC of India) 1989 AIR 1570, 1989
SCR (3) 241; 1989 SCC (3) 223; JT 1989 (2) 419; 1989 SCALE
(1)1535
|
EYE OPERATION CAMP
|
31
|
|
Moni vs State Of
|
NEGLIGENCE
|
87-91
|
|
Dr.Mukhtiar Chand and ors vs. State of
|
RIGHT TO
PRACTICE ALLOPATHIC MEDICINE. Article
19(1)(g)
|
54-55
|
|
B. Nagabhushanam vs. State of
|
NEGLIGENCE- RES IPSA LOQUITUR
|
71
|
|
K.S.Nanji and Co. vs.
Jatashankar Dossa and Ors., AIR 1961 SC 1474
|
BURDEN
OF PROOF
|
16
|
|
Palmer vs.
|
FAILED DIAGNOSIS
|
51
|
|
Paschim
Banga Khet Mazdoor Samity and Ors. vs. State of
|
CONSTITUTIONAL OBLIGATION
|
45-49
|
|
Pt. Parmanand Katara vs.
|
PROFESSIONAL OBLIGATION
|
31-33
|
|
Poonam Verma vs. Ashwin Patel
& Ors. (1996) 4 SCC 332
|
LACK
OF QUALIFICATION
|
50
|
|
Re. Quinlan 70 N.J.10, 355 A.
2d 647
|
EUTHANASIA
BY DOCTORS
|
100
|
|
R. vs.
Adomako [1994 (3) All E. R. 79
|
CRIMINAL RESPONSIBILITY
|
40
|
|
R. vs.
|
RECKLESS ACT
|
26
|
|
R. vs.
|
CRIMINAL NEGLIGENCE
|
26
|
|
Rajasthan Pradesh V.S.Sardarshahar and
Anr. vs. Union of India and ors 2010 (6) MLJ 82 (SC)
|
RIGHT TO PRACTICE UNDER Article 19(1)(g)
|
84
|
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 6
|
CASE
|
SUBJECT
|
PAGE
|
|
P.N.Rao vs. G.Jayaprakasu, AIR 1990 AP 207
|
FAILURE IN ANAESTHESIA
|
35
|
|
Rattan Singh vs. State
of
|
NEGLIGENCE- RES IPSA LOQUITUR
|
25
|
|
Dr. Ritu Rawat And Another vs Tej Singh
And Others (Delhi High Court), 2008; CRL.M.C.No.981/2007
|
LASER TREATMENT, IPC 304A, QUASHING OF
FIR
|
72-74
|
|
Saddik Mohamed Shah vs.
|
PLEADINGS
|
9
|
|
Salgo vs. Leland Stanford [154
|
WITHHOLDING OF FACTS
|
12
|
|
Sanjay Bansal and Anr. vs. Jawaharlal
Vats and Ors 2004(4) JCC 3257
|
POWERS OF MAGISTRATE
UNDER Cr.P.C.
|
61
|
|
Schoendorff vs. Society of
|
INFORMED CONSENT
|
9
|
|
Dr. Shiv
Kumar Gautam vs. Alima, R P No.586/ 1999/ 2006, NCDRC
|
LACK
OF QUALIFICATION
|
59
|
|
Shri Anandi Mukta Sadguru vs. V.R.Rudani, AIR1989 SC 1607
|
permission to withdraw the life support - Article 226
|
31
|
|
Sidaway vs.
Board of Governors of
|
NON-DISCLOSURE OF RISKS OF TREATMENT
|
28-29
|
|
|
NEGLIGENCE
- RES IPSA LOQUITUR
|
52
|
|
State of
|
QUASHING
OF CHARGES
|
50
|
|
State of
|
STERILIZATION OPERATION
|
69
|
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 7
|
CASE
|
SUBJECT
|
PAGE
|
|
State of
|
STERILIZATION OPERATION
|
60
|
|
State of
|
QUASHING OF CHARGES
|
58
|
|
State of
|
STERILIZATION OPERATION
|
68
|
|
State of
|
EXPERT OPINION
|
59
|
|
Sudha
Gupta vs. State Of
|
BURDEN OF PROVING NEGLIGENCE
|
56-57
|
|
Sue Rodriguez vs.
|
PHYSICIAN
ASSISTED SUICIDE
|
36
|
|
Superintendent of
|
CONSENT - REFUSAL OF TREATMENT
|
25
|
|
Supdt. and Remembrancer of Legal Affairs,
W.B. vs. Alani Kumar AIR 1950 (37)
|
TAKING COGNIZANCE
|
11
|
|
Surendra Chauhan vs. State of
|
MEDICAL TERMINATION OF PREGNANCY
|
60
|
|
Suresh Budharmal Kalani @ Puppu Kalani
vs. State Of
|
MEDICO-LEGAL
CASE, ASSISTANCE TO OFFENDERS
|
52-53
|
|
Dr. Suresh Gupta vs. Govt. of N.C.T. of Delhi & Anr (SC of
|
STANDARD OF NEGLIGENCE - NORMS FOR FIXING THE
CRIMINAL LIABILITY ON A DOCTOR OR ON A SURGEON
|
61-63
|
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 8
|
CASE
|
SUBJECT
|
PAGE
|
|
Syad Akbar
vs. State of
|
NEGLIGENCE IN CIVIL LAW AND IN CRIMINAL LAW
|
26
|
|
Tamilnadu Siddha Medical Graduates
Association, Rep By Dr.M.Selvin Innocent Dhas vs. Indian Medical Association
(
|
IMA & AYUSH PRACTITIONERS-RIGHT TO PRACTICE
|
91-94
|
|
Vacco vs. Quill 521
|
RIGHT TO ASSISTED SUICIDE
|
51
|
|
Vikram Deo Singh Tomar vs. State of
|
RIGHT TO LIVE WITH HUMAN DIGNITY
|
30
|
|
Washington vs. Glucksberg, 521
|
RIGHT TO ASSISTED SUICIDE
|
50
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 9
Cases in chronological order of verdict.
(RASH AND NEGLIGENT ACT)
Emperor vs. Omkar
Rampratap (1902) 4 Bom LR
679
To impose
criminal liability under Section 304-A, Indian Penal Code, it is necessary that
the death should have been the direct result of a rash and negligent act of the
accused, and that act must be the proximate and efficient cause without the
intervention of another’s negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non.
(INFORMED CONSENT)
Schoendorff vs. Society of
New York Hospital ,
211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914) Court of Appeals of New York
Every human being of adult
years and sound mind has a right to determine what shall be done with his own
body, and a surgeon who performs an operation without his patient’s consent
commits an assault, for which he is liable in damages. Thus the informed
consent doctrine has become firmly entrenched in American Tort Law. The logical
corollary of the doctrine of informed consent is that the patient generally
possesses the right not to consent, that is to refuse treatment.
(PLEADINGS)
Saddik Mohamed Shah vs. Mt. Saran
It is settled law
that though liberal consideration to the pleadings is to be given so as to
allow any question to be raised and discussed covered there under yet a
petitioner cannot be deemed to be entitled to a relief upon the facts and
evidence, neither stated nor referred to in the pleadings relied upon. Where a
claim has never been made no amount of evidence can be looked into upon a plea
which was never put forward. A decision of a case cannot be based on grounds
outside the pleadings of the parties and it is the case pleaded that has to be
found. It should, however, not be lost sight of that consideration of form
cannot override the legitimate consideration of substance. If a plea is not
specifically made and yet it is covered by an issue by implication and the
parties know that said plea was involved, in that event, the mere fact that the
plea was not expressly taken in the pleadings would not necessarily disentitle
a party from relying upon it if it is satisfactorily proved by evidence.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 10
(CIVIL
LIABILITY AND CRIMINAL LIABILITY)
Andrews vs.
Director of Public Prosecutions, (1937) A.C. 576,
Simple lack of care such as
will constitute civil liability is not enough; for purposes of the criminal law
there are degrees of negligence; and a very high degree of negligence is
required to be proved before the felony is established. Thus, a clear
distinction exists between simple lack of care incurring civil liability and
very high degree of negligence, which is required in criminal cases. A higher
degree of negligence has always been demanded in order to establish a criminal
offence than is sufficient to create civil liability.
(OVER DOSE OF MEDICINE)
John Oni Akerele vs. The King AIR 1943 PC 72.
A duly qualified medical practitioner gave to his
patient the injection of Sobita which consisted of sodium bismuth tartrate as
given in the British Pharmacopoeia. However, what was administered was an
overdose of Sobita. The patient died. The doctor was accused of manslaughter,
reckless and negligent act. He was convicted. The matter reached in appeal
before the House of Lords.
(i) A doctor
is not criminally responsible for a patient’s death unless his negligence or
incompetence went beyond a mere matter of compensation between subjects and
showed such disregard for life and safety of others as to amount to a crime
against the State;
Adv.C.K.SIVADASAN,
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MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 11
(ii) That the
degree of negligence required is that it should be gross, and that neither a
jury nor a court can transform negligence of a lesser degree into gross
negligence merely by giving it that appellation. There is a difference in kind
between the negligence which gives a right to compensation and the negligence
which is a crime.
(iii) It is
impossible to define culpable or criminal negligence, and it is not possible to
make the distinction between actionable negligence and criminal negligence
intelligible, except by means of illustrations drawn from actual judicial
opinion. The most favourable view of the conduct of an accused medical man has
to be taken, for it would be most fatal to the efficiency of the medical
profession if no one could administer medicine without a halter round his neck.
(VALID OR REAL CONSENT)
Bowater vs. Rowley Regis Corporation - [1944] 1 KB
476
A man cannot be said to be truly ‘willing’ unless he is in a
position to choose freely, and freedom of choice predicates, not only full knowledge
of the circumstances on which the exercise of choice is conditioned, so that he
may be able to choose wisely, but the absence from his mind of any feeling of
constraint so that nothing shall interfere with the freedom of his will.
(TAKING COGNIZANCE)
Supdt. & Remembrancer of
Legal Affairs, W.B. vs. Alani Kumar AIR 1950 (37) Calcutta
What is
taking cognizance has not been defined in the Cr.P.C and I have no desire to
attempt to define it. It seems to me clear however that before it can be said that
any Magistrate has taken cognizance of any offence u/S.190 (1)(a) Cr.P.C he
must not only have applied his mind to the contents of the petition but he must
have done so for the purpose of proceeding, in a particular way as indicated in
the subsequent provisions of this Chapter. Proceeding u/s.200 Cr.P.C and
thereafter sending it for inquiry and report u/s.202 Cr.P.C. When the
Magistrate applies his mind not for the purpose of proceeding under the
subsequent sections of this Chapter but for taking action of some other kind
e.g. ordering investigation u/S.156(3) Cr.P.C, or issuing a search warrant for
the purpose of the investigation he cannot be said to have taken cognizance of
the offence.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 12
(WITHHOLDING OF FACTS)
Salgo vs. Leland Stanford [154 Cal.
A physician violates his duty
to his patient and subjects himself to liability if he withholds any facts
which are necessary to form the basis of an intelligent consent by the patient
to the proposed treatment.
(NEGLIGENCE IN DIAGNOSIS OR TREATMENT)
Hunter vs. Hanley; 1955 SLT 213
In the realm
of diagnosis and treatment there is ample scope for genuine difference of
opinion and one man clearly is not negligent merely because his conclusion
differs from that of other professional men. The true test for establishing
negligence in diagnosis or treatment on the part of a doctor is whether he has
been proved to be guilty of such failure as no doctor of ordinary skill would
be guilty of if acting with ordinary care. A doctor who professes to exercise a
special skill must exercise the ordinary skill of his specialty. Differences of
opinion and practice exist, and will always exist, in the medical as in other
professions. There is seldom any one answer exclusive of all others to problems
of professional judgment. A court may prefer one body of opinion to the other,
but that is no basis for a conclusion of negligence. That a judge’s
‘preference’ for one body of distinguished professional opinion to another also
professionally distinguished is not sufficient to establish negligence in a
practitioner whose actions have received the seal of approval of those whose
opinions, truthfully expressed, honestly held, were not preferred.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 13
(MEDICAL NEGLIGENCE)
Bolam vs. Friern
Hospital Management Committee, Queen’s Bench Division, [1957] 1 W.L.R. 582 =
[1957] 2 All E.R. 118
Bolam was suffering from mental illness of the depressive
type and was advised by the Doctor attached to the defendant’s Hospital to
undergo electro-convulsive therapy. Prior to the treatment Bolam signed a form
of consent to the treatment but was not warned of the risk of fracture
involved. Even though the risk was very small and on the first occasion when
the treatment was given Bolam did not sustain any fracture but when the
treatment was repeated for the second time he sustained fractures. No relaxant
drugs or manual control were used except that a male nurse stood on each side
of the treatment couch throughout the treatment.
In
the ordinary case which does not involve any special skill, negligence in law
means a failure to do some act which a reasonable man in the circumstances
would do, or the doing of some act which a reasonable man in the circumstances
would not do; and if that failure or the doing of that act results in injury,
then there is a cause of action.
It
is generally said you judge it by the action of the man in the street. He is
the ordinary man. In one case it has been said you judge it by the conduct of
the man on the top of a Clapham omnibus. He is the ordinary man. But where you
get a situation which involves the use of some special skill or competence,
then the test as to whether there has been negligence or not is not the test of
the man on the top of a Clapham omnibus, because he has not got this man
exercising and professing to have that special skill. A man need not possess
the highest expert skill at the risk of being found negligent. It is a well
established law that it is sufficient if he exercises the ordinary skill of an
ordinary competent man exercising that particular art.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 14
In
the case of a medical man, negligence means failure to act in accordance with
the standards of reasonably competent medical men at the time. That is a
perfectly accurate statement, as long as it is remembered that there may be one
or more perfectly proper standards; and if he conforms with one of those proper
standards, then he is not negligent.… He is not guilty of negligence if he has
acted in accordance with a practice accepted as proper by a responsible body of
medical men skilled in that particular art.… A man is not negligent, if he is
acting in accordance with such a practice, merely because there is a body of
opinion who would take a contrary view. At the same time, that does not mean
that a medical man can obstinately and pigheadedly carry on with some old
technique if it has been proved to be contrary to what is really substantially
the whole of informed medical opinion. Otherwise you might get men today
saying:
“I
do not believe in anaesthetics. I do not believe in antiseptics. I am going to
continue to do my surgery in the way it was done in the eighteenth century.” That
clearly would be wrong.
About this
treatment there were two bodies of opinion, one of which favoured the use of
relaxant drugs or manual control as a general practice, and the other opinion
was for the use of drug that was attended by mortality risks and confined the
use of relaxant drugs only to cases where there are particular reasons for
their use and Bolam case was not under that category. On these facts the expert
opinion of Dr. J.de Bastarrechea, consultant psychiatrist attached to the
Hospital was taken. Ultimately the Court held the Doctors were not negligent.
In this context the following principles have been laid down:
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 15
A Doctor is
not guilty of negligence if he has acted in accordance with a practice accepted
as proper by a responsible body of medical men skilled in that particular art.
In the realm of diagnosis and treatment there is ample scope for genuine
difference of opinion and a doctor is not negligent merely because his
conclusion differs from that of other professional men. The true test for
establishing negligence in diagnosis or treatment on the part of a doctor is
whether he has been proved to be guilty of such failure as no doctor of
ordinary skill would be guilty of if acting with ordinary care.
(COGNIZANCE OF THE OFFENCES)
Gopal Das Sindhi and Ors. vs.
State of Assam
When
the complaint was received by Mr. Thomas on August 3, 1957, his order, which we
have already quoted, clearly indicates that he did not take cognizance of the
offences mentioned in the complaint but had sent the complaint under Section
156(3) of the Code to the Officer In-charge of Police Station Gauhati for
investigation. Section 156(3) states: Any Magistrate empowered under Section
190 may order such investigation as above-mentioned. Mr. Thomas was certainly a
Magistrate empowered to take cognizance under Section 190 and he was empowered
to take cognizance of an offence upon receiving a complaint. He, however,
decided not to take cognizance but to send the complaint to the police for investigation
as Sections 147, 342 and 448 were cognizable offences. It was, however, urged
that once a complaint was filed the Magistrate was bound to take cognizance and
proceed
Adv.C.K.SIVADASAN,
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under
Chapter XVI of the Code. It is clear, however, that Chapter XVI would come into
play only if the Magistrate had taken cognizance of an offence on the complaint
filed before him, because Section 200 states that a Magistrate taking
cognizance of an offence on complaint shall at once examine the complainant and
the witnesses present, if any, upon oath and the substance of the examination
shall be reduced to writing and shall be signed by the complainant and the
witnesses and also by the Magistrate. If the Magistrate had not taken
cognizance of the offence on the complaint filed before him, he was not obliged
to examine the complainant on oath and the witnesses present at the time of the
filing of the complaint. We cannot read the provisions of Section 190 to mean
that once a complaint is filed, a Magistrate is bound to take cognizance if the
facts stated in the complaint disclose the commission of any offence. We are
unable to construe the word “may” in Section 190 to mean “must”. The reason is
obvious. A complaint disclosing cognizable offences may well justify a
Magistrate in sending the complaint, under Section 156(3) to the police for
investigation. There is no reason why the time of the Magistrate should be
wasted when primarily the duty to investigate in cases involving cognizable
offence is with the police. On the other hand, there may be occasions when the
Magistrate may exercise his discretion and take cognizance of a cognizable
offence. If he does so, then he would have to proceed in the manner provided by
Chapter XVI of the Code.
(BURDEN OF PROOF)
K.S.Nanji and Co. vs.
Jatashankar Dossa and Ors., AIR 1961 SC 1474
The
amount of evidence required to shift the burden, however, depends on the
circumstances of each case. There is an essential distinction between the
phrase, burden of proof, as a matter of law and pleading and as a matter of
adducing evidence. Under Section 101 of the Evidence Act, the burden in the
former sense is upon the party who comes to Court to get a decision on the
existence of certain facts which he asserts and that burden is constant
throughout but the burden of proof in the sense of adducing evidence shifts
from time to time having regard to the evidence adduced by one party or the
other or the presumption of fact or law raised in favour of one or the other.
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NEEDLE OF SYRINGE BROKEN
It
is true that doctors could not be held liable for unforseeable accidents but
where it is shown that the patients injury was due to the doctors failure to
exercise the required degree of care the burden of proving that the injury was
brought on by some unforseen cause shifts to the doctor In the present case it
is not the movement of the arm as claimed by the doctor that cause the accident
The doctor knew that the boy was nervous and should not have vaccinated him at
that time. Having decided to proceed the doctor was negligent when he failed to
take the necessary precaution of having the boys arm completely immobilized.
The scars were the direct result of this negligence.
(TREATMENT USING UNKNOWN MEDICINE)
Juggankhan vs. The State of Madhya
Pradesh (Supreme Court of India
The appellant, a registered Homoeopathic medical
practitioner, administered 24 drops of mother tincture stramonium and a leaf of
dhatura to the patient, aged about 20 years, as treatment for Naru (Guinea
Worm). After taking the medicine the patient started feeling restless and ill,
various antidotes were given but she was not relieved. She vomited twice and in
the evening she died. The Autopsy Surgeon sent the stomach with its contents
and pieces of liver, spleen and kidney to the chemical examiner and reported
that no poison could be detected in any of these items. The appellant’s
contention that it has not been proved that death resulted from dhatura
poisoning but the High Court confirmed his conviction under S. 302, Indian
Penal Code.
We
have looked into the evidence but we are unable to say that the concurrent
finding of the courts below that 24 drops of stramonium and a leaf of dhatura
were administered is manifestly wrong. They have relied on the evidence of
Chisaji, deceased’s uncle, a register of patients maintained by the appellant,
the prescription written by the appellant, and the evidence of Shyam Swaroop
Mishra, who recognized the handwriting of the appellant. We think they were
right in relying on the above evidence. We are also of the opinion that the
courts below were right in concluding that death resulted from poisoning. It is
true that Autopsy Surgeon could not say what poison caused her death. But he could
say that death was due to something that was an irritant, and it could be due
to dhatura or belladonna or any other poison. The deceased, according to
Chisaji, was a healthy woman, and had not taken any other medicine before
arriving at the clinic. She was at the clinic from 9 a.m. till she died. The
only medicine she took, apart from antidotes, was what was administered, i.e.,
24 drops of stramonium and a dhatura leaf. She started feeling restless and ill
soon after taking these things. On these facts the conclusion of the courts
below that death was the result of dhatura poison cannot be said to be
erroneous.
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However,
on a finding that stramonium and dhatura leaves are poisonous and in no system
of medicine, except perhaps Ayurvedic system, the dhatura leaf is given as cure
for guinea worm, the act of the accused who prescribed poisonous material
without studying their probable effect was held to be a rash and negligent act.
It would be seen that the profession of a Homoeopath which the accused claimed
to profess did not permit use of the substance administered to the patient. The
accused had no knowledge of the effect of such substance being administered and
yet he did so. In this background, the inference of the accused being guilty of
rash and negligent act was drawn against him. In our opinion, the principle
which emerges is that a doctor who administers a medicine known to or used in a
particular branch of medical profession impliedly declares that he has
knowledge of that branch of science and if he does not, in fact, possess that
knowledge, he is prima facie acting with rashness or negligence.
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(MEDICAL NEGLIGENCE)
Hucks vs. Cole; (1968)
118 New LJ 469
A
medical practitioner was not to be held liable simply because things went wrong
from mischance or misadventure or through an error of judgment in choosing one
reasonable course of treatment in preference of another. Medical practitioner would be liable only where his
conduct fell below that of the standards of a reasonably competent practitioner
in his field. A doctor who professes to exercise a special skill must exercise
the ordinary skill of his specialty. Differences of opinion and practice exist,
and will always exist, in the medical as in other professions. There is seldom
any one answer exclusive of all others to problems of professional judgment.
(NEGLIGENCE IN CIVIL LAW AND IN
CRIMINAL LAW)
Bhalchandra Waman Pathe vs. State of Maharashtra (Supreme Court of India
Negligence
is an omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would
do, or doing something which a prudent and reasonable man would not do;
criminal negligence is the gross and culpable neglect or failure to exercise
that reasonable and proper care and precaution to guard against injury either
to the public generally or to an individual in particular, which having regard
to all the circumstances out of which the charge has arisen, it was the
imperative duty of the accused person to have adopted.
(LACK OF INFORMED CONSENT)
Cobbs vs. Grant, 8 Cal. 3d 229, 104 Cal.
Plaintiff
was admitted to the hospital for treatment of a duodenal ulcer. The defendant,
Dr. Dudley F.P. Grant, a surgeon, who after examining plaintiff, agreed
plaintiff had an intractable peptic duodenal ulcer and that surgery was
indicated. Al-though Dr. Grant explained
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the
nature of the operation to plaintiff, he did not discuss any of the inherent
risks of the surgery. A two-hour operation was performed the next day, in the
course of which the presence of a small ulcer was confirmed. Following the
surgery the ulcer disappeared and he was permitted to go home eight days later.
However, the day after he returned home, plaintiff began to experience intense
pain in his abdomen. Dr. Sands advised him to return to the hospital and in
readmission plaintiff went into shock and emergency surgery was performed. It
was discovered plaintiff was bleeding internally as a result of a severed
artery at the hilum of his spleen. Because of the serious-ness of the
haemorrhaging and since the spleen of an adult may be removed without adverse
effects, defendant decided to remove the spleen. A month after discharge he was
readmitted because of sharp pains in his stomach. When plaintiff began to vomit
blood the defendant and Dr. Sands concluded that a third operation was
indicated: a gastrectomy with removal of 50 percent of plaintiff’s stomach to
reduce its acid-producing capacity. Some time after the surgery, plaintiff was
discharged, but subsequently had to be hospitalized yet again when he began to
bleed internally due to the premature absorption of a suture, another inherent
risk of surgery. After plaintiff was hospitalized, the bleeding began to abate
and a week later he was finally discharged.
Since this is an appropriate case for the application of a
negligence theory, it remains for us to determine if the standard of care
described in the jury instruction on this subject properly delineates
defendant’s duty to inform plaintiff of the inherent risks of the surgery. In
pertinent part, the court gave the following instruction: “A physician’s duty
to disclose is not governed by the standard practice in the community; rather
it is a duty imposed by law. A physician violates his duty to his patient and
subjects himself to liability if he withholds any facts which are necessary to
form the basis of an intelligent consent by the patient to the proposed
treatment.”
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Preliminarily
we employ several postulates. The first is that patients are generally persons
unlearned in the medical sciences and therefore, except in rare cases, courts
may safely assume the knowledge of patient and physician are not in parity. The
second is that a person of adult years and in sound mind has the right, in the
exercise of control over his own body, to determine whether or not to submit to
lawful medical treatment. The third is that the patient’s consent to treatment,
to be effective, must be an informed consent. And the fourth is that the
patient, being unlearned in medical sciences, has an abject dependence upon and
trust in his physician for the information upon which he relies during the
decisional process, thus raising an obligation in the physician that transcends
arms-length transactions.
From
the foregoing axiomatic ingredients emerge a necessity, and a resultant
requirement, for divulgence by the physician to his patient of all information
relevant to a meaningful decisional process. In many instances, to the
physician, whose training and experience enable a self-satisfying evaluation,
the particular treatment which should be undertaken may seem evident, but it is
the prerogative of the patient, not the physician, to determine for himself the
direction in which he believes his interests to lie. To enable the patient to
chart his course knowledgeably, reasonable familiarity with the therapeutic
alternatives and their hazards becomes essential.
Therefore,
we hold, as an integral part of the physician’s overall obligation to the
patient there is a duty of reasonable disclosure of the available choices with
respect to proposed therapy and of the dangers inherently and potentially
involved in each.
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A
medical doctor, being the expert, appreciates the risks inherent in the
procedure he is prescribing, the risks of a decision not to undergo the
treatment, and the probability of a successful outcome of the treatment. But
once this information has been disclosed, that aspect of the doctor’s expert
function has been performed. The weighing of these risks against the individual
subjective fears and hopes of the patient is not an expert skill. Such evaluation
and decision is a non-medical judgment reserved to the patient alone. A patient
should be denied the opportunity to weigh the risks only where it is evident he
cannot evaluate the data, as for example, where there is an emergency or the
patient is a child or incompetent. For this reason the law provides that in an
emergency, consent is implied and if the patient is a minor or incompetent, the
authority to consent is transferred to the patient’s legal guardian or closest
available relative. In all cases other than foregoing, the decision whether or
not to undertake treatment is vested in the party most directly affected: the
patient.
However,
when there is a more complicated procedure, as the surgery in the case before
us, the jury should be instructed that when a given procedure inherently
involves a known risk of death or serious bodily harm, a medical doctor has a
duty to disclose to his patient the potential of death or serious harm, and to
explain in lay terms the complications that might possibly occur. Beyond the
foregoing minimal disclosure, a doctor must also reveal to his patient such
additional information as a skilled practitioner of good standing would provide
under similar circumstances.
In
sum, the patient’s right of self-decision is the measure of the physician’s
duty to reveal. That right can be effectively exercised only if the patient
possesses adequate information to enable an intelligent choice. The scope of
the physician’s communication to the patient, then, must be measured by the patient’s
need, and that need is whatever information is material to the decision.
The burden of going forward with evidence
of nondisclosure rests on the plaintiff. Once such evidence has been produced,
then the burden of going forward with evidence pertaining to justification for
failure to disclose shifts to the physician.
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(NON-DISCLOSURE OF RISKS OF TREATMENT)
The law on
medical negligence also has to keep up with the advances in the medical science
as to treatment as also diagnostics. Doctors increasingly must engage with
patients during treatments especially when the line of treatment is a contested
one and hazards are involved. Standard of care in such cases will involve the
duty to disclose to patients about the risks of serious side effects or about
alternative treatments. In the times to come, litigation may be based on the
theory of lack of informed consent. A significant number of jurisdictions,
however, determine the existence and scope of the doctor’s duty to inform based
on the information a reasonable patient would find material in deciding whether
or not to undergo the proposed therapy.
It is well established that the
physician must seek and secure his patient’s consent before commencing an
operation or other course of treatment. It is also clear that the consent, to
be efficacious, must be free from imposition upon the patient. It is the
settled rule that therapy not authorized by the patient may amount to a tort -
a common law battery - by the physician. And it is evident that it is normally
impossible to obtain a consent worthy of the name unless the physician first
elucidates the options and the perils for the patient’s edification. Thus the
physician has long borne a duty, on pain of liability for unauthorized
treatment, to make adequate disclosure to the patient.
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(REASONABLE CARE)
Donald
McCormick vs. Gaston Marcotte, [1972]
S.C.R. 18 (Supreme Court of Canada
The test of reasonable care applies in
medical malpractice cases as in other cases where fault is alleged. The medical
man must possess and use, that reasonable degree of learning and skill
ordinarily possessed by practitioners in similar communities in similar cases.
Whether or not such test has been met depends, of course, upon the particular
circumstances of each case.
(MEDICAL RELIEF)
‘Ad Hoc’ Committee, the Indian
Insurance Company Association Pool vs. Smt. Radhabai, 1976 MPLJ 349; AIR 1976
MP 164
The
socio-economic and welfare activities stand on a different footing and are not
included in the traditional sovereign functions. It was further pointed out
that the work of medical relief undertaken by the State is not a sovereign
function in the traditional sense. In this view of the matter it not being a
sovereign function the State cannot claim immunity.
(DOCTOR’S DUTY TO INFORM)
Hamiltorn vs. Hardy, 37 Colo.
The law on
medical negligence has to keep up with the advances in the medical science as
to treatment as also diagnostics. Doctors increasingly must engage with
patients during treatments especially when the line of treatment is a contested
one and hazards are involved. Standard of care in such cases will involve the
duty to disclose to patients about the risks of serious side effects or about
alternative treatments. In the times to come, litigation may be based on the
theory of lack of informed consent. Jurisdictions determine the existence and
scope of the doctor’s duty to inform based on the information a reasonable
patient would find material in deciding whether or not to undergo the proposed
therapy.
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(CONSENT - REFUSAL OF
TREATMENT)
Superintendent of Belchertown State School
To presume that the incompetent person must always be subjected to
what many rational and intelligent persons may decline is to downgrade the
status of the incompetent person by placing a lesser value on his intrinsic
human worth and vitality.
(NEGLIGENCE- RES IPSA LOQUITUR)
Rattan Singh vs. State of Punjab
This, however,
does not excuse the accused from his rash driving of a blind Leviathan in
berserk locomotion. If we may adopt the words of Lord Greene, M.R. It scarcely
lies in the mouth of the truck driver who plays with fire to complain of burnt
fingers. Rashness and negligence are relative concepts, not absolute
abstractions. In our current conditions, the law under Section 304 A IPC and
under the rubric of Negligence, must have due regard to the fatal frequency of
rash driving of heavy duty vehicles and of speeding menaces. Thus viewed, it is
fair to apply the rule of res ipsa
loquitur, of course, with care. Conventional defences, except under
compelling evidence, must break down before the pragmatic Court and must be
given short shrift. Looked at from this angle, we are convinced that the
present case deserves no consideration on the question of conviction.
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(NEGLIGENCE IN CIVIL LAW AND IN
CRIMINAL LAW)
Syad Akbar vs. State of Karnataka
There is
a marked difference as to the effect of evidence, viz. the proof, in civil and
criminal proceedings. In civil proceedings, a mere preponderance of probability
is sufficient, and the defendant is not necessarily entitled to the benefit of
every reasonable doubt; but in criminal proceedings, the persuasion of guilt
must amount to such a moral certainty as convinces the mind of the Court, as a
reasonable man, beyond all reasonable doubt. Where negligence is an essential
ingredient of the offence, the negligence to be established by the prosecution
must be culpable or gross and not the negligence merely based upon an error of
judgment.
(CRIMINAL
NEGLIGENCE)
R. vs. Lawrence
That in order to pronounce on criminal negligence
it has to be established that the rashness was of such a degree as to amount to
taking a hazard in which injury was most likely imminent.
(RECKLESS ACT)
R. vs. Caldwell
Recklessness
on the part of the doer of an act does presuppose that there is something in
the circumstances that would have drawn the attention of an ordinary prudent
individual to the possibility that his act was capable of causing the kind of
serious harmful consequences that the section which creates the offence was
intended to prevent, and that the risk of those harmful consequences occurring
was not so slight that an ordinary prudent individual would feel justified in
treating them as negligible. It is only when this is so that the doer of the
act is acting ‘recklessly’ if, before doing the act, he either fails to give
any thought to the possibility of there being any such risk or, having
recognized that there was such risk, he nevertheless goes on to do it.
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(BURDEN OF PROOF)
Although in an action in negligence,
the onus of proof normally rested on the plaintiff, in a case where a general
duty of care arose and there was a failure-to take a recognised precaution and
that failure was followed by the very damage which that precaution was designed
to prevent, the burden of proof lay on the defendant to show, first, that he
was not in breach of any duty and, second, if he failed to prove that he had
not been in breach of duty, that the damage suffered by the plaintiff did not
result from the breach. Accordingly, a doctor owed a duty to his patient to
observe the precautions which were normal in the course of the treatment that
he gave. Where a patient suffered damage after there had been a departure from
the orthodox course of treatment the court had to inquire whether the doctor
had taken all proper factors into account prior to taking action in order to
determine whether that departure was justified.
(PROFESSIONAL PRACTICES)
F vs.
R (1983) 33 SASR 189(Australia
In many cases an approved professional practice as to
disclosure will be decisive. But professions may adopt unreasonable practices.
Practices may develop in professions, particularly as to disclosure, not
because they serve the interests of the clients, but because they protect the
interests or convenience of members of the profession. The court has an
obligation to scrutinize professional practices to ensure that they accord with
the standard of reasonableness imposed by the law. A practice as to disclosure
approved and adopted by a profession or section of it may be in many cases the
determining consideration as to what is reasonable. On the facts of a
particular case the answer to the question whether the defendant’s conduct
conformed to approved professional practice may decide the issue of negligence,
and the test has been posed in such terms in a number of cases. The ultimate
question, however, is not whether the defendant’s conduct accords with the
practices of his profession or some part of it, but whether it conforms to the
standard of reasonable care demanded by the law. That is a question for the
court and the duty of deciding it cannot be delegated to any profession or
group in the community.
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(NON-DISCLOSURE OF RISKS OF TREATMENT)
Sidaway vs. Board of
Governors of Bethlem Royal Hospital
and the Maudsley Hospital
A surgeon, warned the plaintiff of the possibility of disturbing a
nerve root while advising an operation on the spinal column to relieve shoulder
and neck pain. He did not however mention the possibility of damage to the
spinal cord. Though the operation was performed without negligence, the
plaintiff sustained damage to spinal cord resulting in partial paralysis. The
plaintiff alleged that defendant was negligent in failing to inform her about
the said risk and that had she known the true position, she would not have
accepted the treatment.
In English jurisprudence the
doctor’s relationship with his patient which gives rise to the normal duty of
care to exercise his skill and judgment to improve the patient’s health in any
particular respect in which the patient has sought his aid has hitherto been
treated as a single comprehensive duty covering all the ways in which a doctor
is called on to exercise his skill and judgment in the improvement of the
physical or mental condition of the patient for which his services either as a
general practitioner or as a specialist have been engaged. This general duty is
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not subject to dissection into
a number of component parts to which different criteria of what satisfy the
duty of care apply, such as diagnosis, treatment and advice (including warning
of any risks of something going wrong however skillfully the treatment advised
is carried out). The Bolam case itself embraced failure to advise the patient
of the risk involved in the electric shock treatment as one of the allegations
of negligence against the surgeon as well as negligence in the actual carrying
out of treatment in which that risk did result in injury to the patient. The
same criteria were applied to both these aspects of the surgeon’s duty of care.
In modern medicine and surgery such dissection of the various things a doctor
has to do in the exercise of his whole duty of care owed to his patient is
neither legally meaningful nor medically practicable. To decide what risks the
existence of which a patient should be voluntarily warned and the terms in
which such warning, if any, should be given, having regard to the effect that
the warning may have, is as much an exercise of professional skill and judgment
as any other part of the doctor’s comprehensive duty of care to the individual
patient, and expert medical evidence on this matter should be treated in just
the same way.
(INFORMED CONSENT)
Re. Conroy; 98 NJ 321, 486 A.2d 1209 (1985) New Jersey
An 84
year old incompetent nursing home resident who had suffered irreversible mental
and physical ailments, the court decided to base its decision on the common law
right to self determination and informed consent. This right can be exercised
by a surrogate decision maker when there was a clear evidence that the
incompetent person would have exercised it. Where such evidence was lacking the
Court held that an individual’s right could still be invoked in certain
circumstances under objective ‘best interest’ standards. Where no trustworthy
evidence existed that the individual would have wanted to terminate treatment,
and a person’s suffering would make the administration of life sustaining
treatment inhumane, a pure objective standard could be used to terminate the
treatment. If none of these conditions obtained, it was best to err in favour
of preserving life.
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(RIGHT TO LIVE WITH HUMAN
DIGNITY)
Vikram Deo Singh Tomar vs. State of Bihar
We live
in an age when this Court has demonstrated, while interpreting Article 21 of
the Constitution, that every person is entitled to a quality of life consistent
with his human personality. The right to live with human dignity is the
fundamental right of every Indian citizen.
(PROFESSIONAL COMPETENCE)
Eckersley vs. Binnie,
[1988] 18 Con.L.R. 1, 79
From these
general statements it follows that a professional man should command the corpus
of knowledge which forms part of the professional equipment of the ordinary
member of his profession. He should not lag behind other ordinary assiduous and
intelligent members of his profession in knowledge of new advances, discoveries
and developments in his field. He should have such awareness as an ordinarily
competent practitioner would have of the deficiencies in his knowledge and the
limitations on his skill. He should be alert to the hazards and risks in any
professional task he undertakes to the extent that other ordinarily competent
members of the profession would be alert. He must bring to any professional
task he undertakes no less expertise, skill and care than other ordinarily
competent members of his profession would bring, but need bring no more. The
standard is that of the reasonable average. The law does not require of a
professional man that he be a paragon combining the qualities of polymath and prophet.
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(PERMISSION TO WITHDRAW THE
LIFE SUPPORT - ARTICLE 226)
Shri Anandi Mukta Sadguru vs. V.R.Rudani, AIR1989 SC 1607
No doubt, the ordinary practice
in our High Courts since the time of framing of the Constitution in 1950 is
that petitions filed under Article 226 of the Constitution pray for a writ of
the kind referred to in the provision. However, from the very language of the
Article 226, a petition can also be made to the High Court under Article 226 of
the Constitution praying for an order or direction, and not for any writ.
Hence, in our opinion, Article 226 gives abundant power to the High Court to
pass suitable orders on the application filed by the near relatives or next
friend or the doctors/hospital staff praying for permission to withdraw the
life support to an incompetent person.
(PROFESSIONAL OBLIGATION)
Pt.
Parmanand Katara vs. Union
of India & Ors. AIR 1989 SC 2039
The petitioner, a human right activist, filed
this writ petition in public interest on the basis of a newspaper report
concerning the death of a scooterist who was knocked down by a speeding car.
The report further states that the injured person was taken to the nearest
hospital but the doctors there refused to attend on him; that they told that he
be taken to another hospital, located some 20 kilometers away, which was
authorised to handle medico-legal cases; and that the victim succumbed to his
injuries before he could be taken to the other hospital. The petitioner has
prayed the directions be issued to the Union of India that every injured citizen
brought for treatment should instantaneously be given medical aid to preserve
life and thereafter the procedural criminal law should be allowed to operate in
order to avoid negligent death, and in the event of breach of such direction,
apart from any action that may be taken for negligence, appropriate
compensation should be admissible.
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The Committee
under the Chairmanship of the Director-General of Health Services had taken the
following decisions:
“1. Whenever
any medico-legal case attends the hospital, the medical officer on duty should
inform the Duty Constable, name, age, sex of the patient and place and time of
occurrence of the incident, and should start the required treatment of the
patient. It will be the duty of the Constable on duty to inform the concerned
Police Station or higher police functionaries for further action. Full medical
report should be prepared and given to the Police, as soon as examination and
treatment of the patient is over. The treatment of the patient would not wait for
the arrival of the Police or completing the legal formalities.
2.
Zonalisation as has been worked out for the hospitals to deal with medico-
legal cases will only apply to those cases brought by the Police. The
medico-legal cases coming to hospital of their own (even if the incident has
occurred in the zone of other hospital) will not be denied the treatment by the
hospital where the case reports, nor the case will be referred to other
hospital because the incident has occurred in the area which belongs to the
zone of any other hospital. The same police formalities as given in para 1
above will be followed in these cases.
All Government
Hospitals, Medical Institutes should be asked to provide the immediate medical
aid to all the cases irrespective of the fact whether they are medico- legal
cases or otherwise. The practice of certain Government institutions to refuse
even the primary medical aid to the patient and referring them to other
hospitals simply because they are medico-legal cases is not desirable. However,
after providing the primary medical aid to the patient, patient can be referred
to the hospital if the expertise facilities required for the treatment are not
available in that Institution.”
Adv.C.K.SIVADASAN,
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Article 21 of
the Constitution casts the obligation on the State to preserve life.
There can be
no second opinion that preservation of human life is of paramount importance.
That is so on account of the fact that once life is lost, the status quo ante
cannot be restored as resurrection is beyond the capacity of man.
The patient
whether he be an innocent person or a criminal liable to punishment under the
laws of the society, it is the obligation of those who are in-charge of the
health of the community to preserve life so that the innocent may be protected
and the guilty may be punished. Social laws do not contemplate death by
negligence to tantamount to legal punishment.
Every doctor
whether at a Government hospital or otherwise has the professional obligation
to extend his services with due expertise for protecting life. No law or State
action can intervene to avoid/delay the discharge of the paramount obligation
cast upon members of the medical profession. The obligation being total,
absolute and paramount, laws of procedure whether in statute or otherwise which
would interfere with the discharge of this obligation cannot be sustained and
must, therefore, give way.
(SOVEREIGN AS PARENS PATRIAE -
FATHER OF THE COUNTRY)
Re. J ( A Minor Wardship :
Medical Treatment); 1990(3) All E.R. 930,
The parens patriae (father of
the country) jurisdiction was the jurisdiction of the Crown, which could be
traced to the 13th Century. This principle laid down that as the Sovereign it
was the duty of the King to protect the person and property of those who were
unable to protect themselves. The Court, as a wing of the State, has inherited
the parens patriae jurisdiction which formerly belonged to the King.
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MEDICAL
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(INFORMED CONSENT)
Cruzan vs. Director, MDH, 497 U.S.
Nancy Cruzan sustained injuries in an
automobile accident and lay in a Missouri
State Missouri
In law
even touching of one person by another without consent and without legal
justification was a battery, and hence illegal. The notion of bodily integrity
has been embodied in the requirement that informed consent is generally
required for medical treatment. Every human being of adult years and sound mind
has a right to determine what shall be done with his own body, and a surgeon
who performs an operation without his patient’s consent commits an assault, for
which he is liable in damages. Thus the informed consent doctrine has become
firmly entrenched in American Tort Law. The logical corollary of the doctrine
of informed consent is that the patient generally possesses the right not to
consent, that is to refuse treatment.
Not all
incompetent patients will have loved ones available to serve as surrogate
decision makers. And even where family members are present, there will be, of
course, some unfortunate situations in which family members will not act to
protect a patient. A State is entitled to guard against potential abuses in
such situations. An erroneous decision not to terminate results in maintenance
of the status quo; the possibility of subsequent developments such as
advancements in medical science, the discovery of new evidence regarding the
patient’s intent, changes in the law, or simply the unexpected death of the
patient despite the administration of life-sustaining treatment, at least
create the potential that a wrong decision will eventually be corrected or its
impact mitigated. An erroneous decision to withdraw life-sustaining treatment,
however, is not susceptible of correction.
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MEDICAL
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(PARENS PATRIAE)
Charan Lal Sahu vs. Union of India
Parens patriae is the
inherent power and authority of a legislature to provide protection to the
person and property of persons non sui juris, such as minor, insane, and
incompetent persons, but the words parens
patriae meaning thereby ‘the father of the country’, were applied
originally to the King and are used to designate the State referring to its
sovereign power of guardianship over persons under disability. Parens patriae jurisdiction, it has been
explained, is the right of the sovereign and imposes a duty on the sovereign,
in public interest, to protect persons under disability who have no rightful
protector. The connotation of the term parens
patriae differs from country to country, for instance, in England it is the King, in America
(FAILURE IN ANAESTHESIA)
P.N.Rao vs. G. Jayaprakasu AIR 1990 AP 207
The plaintiff
had a minor ailment - chronic nasal discharge - for which he was admitted in
the Government General Hospital , Guntur
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(PHYSICIAN ASSISTED SUICIDE)
Sue Rodriguez vs. British Columbia
(Attorney General), Canada
Rodriguez was diagnosed with Amyotrophic
Lateral Sclerosis (ALS), and requested the Canadian Supreme Court to allow
someone to aid her in ending her life. Her condition was deteriorating rapidly,
and the doctors told her that she would soon lose the ability to swallow,
speak, walk, and move her body without assistance. Thereafter she would lose
her capacity to breathe without a respirator, to eat without a gastrotomy, and
would eventually be confined to bed. Her life expectancy was 2 to 14 months.
Sanctity
of life has been understood historically as excluding freedom of choice in the
self infliction of death, and certainly in the involvement of others in
carrying out that choice. At the very least, no new consensus has emerged in
society opposing the right of the State to regulate the involvement of others
in exercising power over individuals ending their lives.
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MEDICAL
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(EUTHANASIA BY DOCTORS)
Airedale NHS Trust vs. Bland; (1993) All E.R. 82) (H.L.)
Anthony Bland aged 17, met with disaster as
a result, he suffered catastrophic and irreversible damage to the higher
centres of the brain. For three years, he was in a condition known as
‘persistent vegetative state’ (PVS), due to the destruction of the cerebral
cortex on account of prolonged deprivation of oxygen, and the cerebral cortex
of Anthony had resolved into a watery mass. Since the cortex is the seat of cognitive
function and sensory capacity he could not see, hear, feel anything or
communicate in any way and lost consciousness. However, his brain-stem, which
controls the reflective functions of the body, in particular the heart beat,
breathing and digestion, continued to operate. In order to maintain Mr. Bland
in his condition, feeding and hydration were achieved by artificial means of a
nasogastric tube while the excretory functions were regulated by a catheter and
enemas. According to eminent medical opinion, there was no prospect whatsoever
that he would ever make a recovery from his condition, but there was every
likelihood that he would maintain this state of existence for many years to
come provided the artificial means of medical care was continued. In this state
of affairs the medical men in charge of Anthony Bland case took the view, which
was supported by his parents, that no useful purpose would be served by
continuing medical care, and that artificial feeding and other measures aimed
at prolonging his existence should be stopped.
Discontinuance
of artificial feeding in such cases is not equivalent to cutting a
mountaineer’s rope, or severing the air pipe of a deep sea diver. The true
question is not whether the doctor should take a course in which he will
actively kill his patient, but rather whether he should continue to provide his
patient with medical treatment or care which, if continued, will prolong his
life. Removing the nasogastric tube in the case of Anthony Bland cannot be
regarded as a positive act causing the death. The tube itself, without the food
being supplied through it, does
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nothing.
Its non removal itself does not cause the death since by itself, it does not
sustain life. Hence removal of the tube would not constitute the actus reus
It is
in the best interests of the community at large that Anthony Bland’s life
should now end. The doctors have done all they can. Nothing will be gained by
going on and much will be lost. The distress of the family will get steadily
worse. The strain on the devotion of a medical staff charged with the care of a
patient whose condition will never improve, who may live for years and who does
not even recognize that he is being cared for, will continue to mount. The large
resources of skill, labour and money now being devoted to Anthony Bland might
in the opinion of many be more fruitfully employed in improving the condition
of other patients, who if treated may have useful, healthy and enjoyable lives
for years to come.
(GOVERNMENTAL LIABILITY)
Public officers are
accountable for their negligence and misfeasance if they commit negligence in
the discharge of their official duties. The concept of State immunity is
diluted and the public servants may be held liable for the damages for the
malicious deliberate and injurious wrong doing. Behaving in a careless manner
may amount to malicious abuse of power. However, with the change in the socio
economic outlook in our democratic set up, the public servants are expected to
be more attentive to their onerous duties which they must discharge diligently.
In a democratic set up the functions of a government is to extend all possible
facilities to its citizen and that is why the State is known as a Welfare
State.
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(EUTHANASIA - LIFE IS NOT MERE
LIVING BUT LIVING IN HEALTH)
Gian Kaur vs.
State of Punjab
Protagonism
of euthanasia on the view that existence in persistent vegetative state (PVS)
is not a benefit to the patient of a terminal illness being unrelated to the
principle of ‘sanctity of life’ or the ‘right to live with dignity’ is of no
assistance to determine the scope of Article 21 for deciding whether the
guarantee of right to life therein includes the ‘right to die’. The right to
life including the right to live with human dignity would mean the existence of
such a right upto the end of natural life. This also includes the right to a
dignified life upto the point of death including a dignified procedure of
death. In other words, this may include the right of a dying man to also die
with dignity when his life is ebbing out. But the ‘right to die’ with dignity
at the end of life is not to be confused or equated with the right to die an
unnatural death curtailing the natural span of life.
A
question may arise, in the context of a dying man, who is, terminally ill or in
a persistent vegetative state that he may be permitted to terminate it by a
premature extinction of his life in those circumstances. This category of cases
may fall within the ambit of the ‘right to die’ with dignity as a part of right
to live with dignity, when death due to termination of natural life is certain
and imminent and the process of natural death has commenced. These are not cases
of extinguishing life but only of accelerating conclusion of the process of
natural death which has already commenced. The debate even in such cases to
permit physician assisted termination of life is inconclusive. It is sufficient
to reiterate that the argument to support the view of permitting termination of
life in such cases to reduce the period of suffering during the process of
certain natural death is not available to interpret Article 21 to include
therein the right to curtail the natural span of life.
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(QUASHING OF FIR)
Meenakshi Bala vs. Sudhir Kumar and Ors, (1994) 4 SCC 142
To put
it differently, once charges are framed under Section 240 Cr.PC the High Court
in its revisional jurisdiction would not be justified in relying upon documents
other than those referred to in Sections 239 and 240 CrPC; nor would it be
justified in invoking its inherent jurisdiction under Section 482 CrPC to quash
the same except in those rare cases where forensic exigencies and formidable
compulsions justify such a course. We hasten to add even in such exceptional
cases the High Court can look into only those documents which are unimpeachable
and can be legally translated into relevant evidence. Apart from the infirmity
in the approach of the High Court in dealing with the matter which we have
already noticed, we further find that instead of adverting to and confining its
attention to the documents referred to in Sections 239 and 240 CrPC the High
Court has dealt with the rival contentions of the parties raised through their
respective affidavits at length and on a threadbare discussion thereof passed
the impugned order. The course so adopted cannot be supported; firstly, because
finding regarding commission of an offence cannot be recorded on the basis of
affidavit evidence and secondly, because at the stage of framing of charge the
Court cannot usurp the functions of a trial court to delve into and decide upon
the respective merits of the case.
(CRIMINAL RESPONSIBILITY)
R. vs. Adomako;
1994 (3) All E. R. 79
Thus a doctor
cannot be held criminally responsible for patient’s death unless his negligence
or incompetence showed such disregard for life and safety of his patient as to
amount to a crime against the State.
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(NEGLIGENT ACTS - EXAMPLES)
Indian Medical Association vs. V.P. Shantha & Ors. (Supreme Court of India
The following acts are clearly due to negligence
:
(i)
Removal of the wrong limb;
(ii) Performance of an operation on the wrong
patient;
(iii) Giving injection of a drug to which the
patient is allergic without looking into the out-patient card containing the
warning;
(iv) Use of wrong gas during the course of an
anaesthetic, etc.
(FORENSIC AUTOPSY)
Abdul
Gaffar vs. State of Madhya Pradesh
The petitioner, an old man, past sixty,
whose sons and son-in-law were allegedly carried away by Mhow police on the
night of 15.8.1992 and later shown to have been arrested on 18.8.1992, in
connection with an offence under Section 457, Indian Penal Code, registered at
the Police Station, had moved the Court of A.C.J.M. for their release but in
vain. It was on the 19th that
he was asked by a senior Police Officer to see his son Anees in the Civil Hospital
The
first hurdle in the case, as put forth, is by the five mighty medical minds
combined who in their uniquely unanimous post-mortem examination report have
come out with an opinion so far unsurpassed, unmatched, unequalled in its
remarkable unanimity and unique in the sense that all of them willfully refuse
to see the light of the day and indulged in successfully withholding, not only
withholding but also concealing and destroying evidence that is demonstrably
clear and relevant in a criminal trial. ‘Experts’ as they are, their eyes do
not reach the light, their ears are not sensitive to the truth so loudly
proclaimed by
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MEDICAL
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the
bleeding injuries as noted by them; their own potential positive findings as
recorded on the post-mortem examination report. Even the bruise may prove to be
fatal, when it involves an important internal organ. Multiple bruises though
individual, trivial and slight because of grievous hurt and result in death due
to shock and internal haemorrhage. Therefore, the Code of Ethics remains in
print but violated in practice, at times, with impunity. While reports of
medical malpractices galore and appeal almost every day in press; but the case
at hand is a classic one, where even the dead has not been spared by the
medical men.
The
primary object of forensic autopsy is to determine the cause of death. It is
here that the pathologists owe duty even to the dead. Sadly enough the five
medical minds entrusted with the task have betrayed the faith by keeping mum on
the point. Apart from determining the cause of death these doctors again forgot
the dictum propounded by Dabot in U.S.A. as far back as 1912 that even the dead
can teach the living, which still holds good--emphasising the value of
autopsies in detecting diagnostic errors.
It
cannot be disputed that the pathologist performing autopsy must offer best and
reasoned opinion that the facts permit. When the circumstances are so clearly
indicative as in the instant case that he can justifiably give cause of death
other than unascertainable and yet not giving it. It is not only unethical but
also being dishonest to the dead. Just have a look at their own positive
potential findings. What needs to be emphasised is the necessity of obtaining
the best possible history and co-relating the pathological findings or lack of
them with all the circumstances. While it is also true that a pathologist
performing autopsy should not over speculate where the facts do not warrant it,
but in the case at hand there is a whole spectrum of findings recorded by the
panel of Doctors performing post-mortem examination pointing to the degree of
certainty so obvious, yet these mighty medical minds without an exception have
opted for, and preferred to remain silent on the cause of death for reasons
best known to them.
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A
deliberate calculated silence, where a definite conclusive opinion without an
element of uncertainty could have been returned. Should one believe that the
Doctors performing autopsy ought always to bear in mind that even an excellent
autopsy can virtually be wasted if the cause of death is withheld (as in the
present case).
A large
number of wounds, as noted above, have been found by the Doctors, performing
autopsy. Yet they are hesitant in coming out with a definite opinion and
seeking shelter behind purely academic opinion expressed by Modi in his
textbook. It is not a theoretical opinion sought from them. They are supposed
to base their report on positive facts or lack of them. Our prime aim is the
certification of cause of death after autopsy. It was for this reason that the
panel was constituted. But what a pity five mighty medical minds were bent upon
withholding the opinion in face of their own findings. Findings apart, even
lack of such findings as any foreign body or material like dust particles being
found in and around the wounded parts of the body, even the remote possibility
of a traffic accidental death was ruled out. Yet these Doctors kept mum for
reasons best known to them. By no stretch of imagination could it be the case
of sudden or unexpected death, requiring some other pathological processes.
It is
not the Doctor’s case that they waited for the chemical examiner’s report or
they asked for it, till they are actually summoned by the Court. The injuries,
as found and noted by them, clearly point to their cumulative effect, death.
Both chambers of heart were found empty, no particles of dust or any foreign
matter are noted to have been found in
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or
around the wounded parts. Thus, the possibility of traffic accidental death is
ruled out. Yet, these doctors kept mum on the cause of death for reasons best
known to them. There is no such finding recorded by these Doctors so as to
suggest any cardio-myopathy or aortic aneurysm. The brain and heart were found
as healthy. There is nothing to indicate that it could be an incident of fatal
pulmonary embolism, coronary thrombosis, cerebral thrombosis or haemorrhage. In
face of concrete positive findings, as recorded by them, yet they are referring
to purely academic opinion in Modi’s textbook, suggesting neurogenic shock, is
hardly of any avail to them.
So far
as the Doctors are concerned, it is a conspiracy of silence and a telling
testimony of readiness at heels, to oblige the authority rather than ‘truth but
a lie remains a lie even if chanted as a hymn by five or fifty. It does not
become truth.’
(DOCTRINE OF RES IPSA
LOQUITUR)
Achutrao Haribhau Khodwa and Ors. vs. State of Maharashtra
A mop was left inside the lady patient’s abdomen
during an operation. Peritonitis developed which led to a second surgery being
performed on her, but she could not survive. Liability for negligence was
fastened on the surgeon because no valid explanation was forthcoming for the
mop having been left inside the abdomen of the lady. The doctrine of res ipsa loquitur was held applicable.
A medical practitioner has various duties
towards his patient and he must act with a reasonable degree of skill and
knowledge and must exercise a reasonable degree of care. This is the least
which a patient expects from a doctor. The skill of medical practitioners
differs from doctor to doctor. The very nature of the profession is such that
there may be more than one course of treatment which may be advisable for
treating a patient. Courts would indeed be slow in attributing negligence on
the part of a doctor if he has performed his duties to the best of his ability
and with due care and caution. Medical opinion may differ with regard to the
course of action to be taken by a doctor treating a patient, but as long as a
doctor acts in a manner which is acceptable to the medical profession and the
court finds that he has attended on the patient with due care, skill and
diligence and if the patient still does not survive or suffers a permanent
ailment, it would be difficult to hold the doctor to be guilty of negligence.
But in cases where the doctors act carelessly and in a manner which is not
expected of a medical practitioner, then in such a case an action would be
maintainable.
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(CONSTITUTIONAL OBLIGATION)
Paschim Banga Khet Mazdoor Samity and Ors. vs.
State of West Bengal
Hakim Seikh is a member of Paschim Banga Khet
Mazdoor Samity, an organization of agricultural labourers, fell off a train at
Mathurapur Station in West Bengal at about
7.45 P.M. on July 8, 1992. As a result of the said fall Hakim Seikh suffered
serious head injuries and brain haemorrhage. He was taken to the Primary Health
Centre at Mathurapur. Since necessary facilities for treatment were not
available at the Primary Health Centre, the medical officer in charge of the
Centre referred him to the Diamond
Harbour N.R.S. Medical
College Hospital
near Sealdah Railway Station, Calcutta
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for further treatment. But Hakim Seikh could not
be admitted in the said hospital as no vacant bed was available in the Surgical
Emergency ward and the regular Surgery Ward was also full. He was thereafter
taken to Calcutta
Medical College
Hospital Shambhu Nath
Pandit Hospital Calcutta National
Medical College
Hospital SSKM Hospital
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In a welfare
state the primary duty of the Government is to secure the welfare of the
people. Providing adequate medical facilities for the people is an essential
part of the obligations undertaken by the Government in a welfare state. The
Government discharges this obligation by running hospitals and health centres
which provide medical care to the person seeking to avail those facilities.
Article 21 imposes an obligation on the State to safeguard the right to life of
every person. Preservation of human life is thus of paramount importance. The
Government hospitals run by the State and the medical officers employed therein
are duty bound to extend medical assistance for preserving human life. Failure
on the part of a Government hospital to provide timely medical treatment to a
person in need of such treatment results in violation of his right to life
guaranteed under Article 21. In the present case there was breach of the said
right of Hakim Seikh guaranteed under Article 21 when he was denied treatment
at the various Government hospitals which were approached even though his
condition was very serious at that time and he was in need of immediate medical
attention. Since the said denial of the right of Hakim Seikh guaranteed under
Article 21 was by officers of the State in hospitals run by the State, the
State cannot avoid its responsibility for such denial of the constitutional
right of Hakim Seikh. Hakim Seikh should, therefore, be suitably compensated
for the breach of his right guaranteed under Article 21 of the Constitution.
The
recommendations of the Committee have been accepted by the State Government and
memorandum dated August 22, 1995 has been issued wherein the following
directions have been given for dealing with patients approaching health
centres/OPD/Emergency Departments of hospitals:
(1) Proper
medical aid within the scope of the equipments and facilities available at
Health Centres and Hospitals should be provided to such patients and proper
records of such aid provided should be preserved in office. The guiding
principle should be to see that no emergency patient is denied medical care.
All possibilities should be explored to accommodate emergency patients in
serious condition.
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(2) Emergency
Medical Officers will get in touch with Superintendent/Deputy Superintendent/
Specialist Medical Officer for taking beds on loans from cold wards for
accommodating such patients as Extra-temporary measures.
(3)
Superintendents of hospitals will issue regulatory guidelines for admitting
such patients on internal adjustments amongst various wards and different kinds
of beds including cold beds and will hold regular weekly meetings for
monitoring and reviewing the situation. A model of such guidelines is enclosed
with this memorandum which may be suitably amended before issue according to
local arrangements prevailing in various establishments.
(4) If
feasible, such patients should be accommodated in trolley-beds and, even, on
the floor when it is absolutely necessary during the exercise towards internal
adjustments as referred to at (3) above.
Having regard
to the drawbacks in the system of maintenance of admission registers of
patients in the hospitals it has been directed that the Superintendents and
Medical Officers of the hospitals should take the following actions to
regularize the system with a view to avoiding confusion in respect of
Admission/Emergency Attendance Registers:
(a) Clear
recording of the name, age, sex, address, disease of the patient by the
attending medical officers;
b) Clear
recording of date and time of attendance /examination/admission of the patient;
(c) Clear
indication whether and where the patient has been admitted, transferred,
referred;
(d) Safe
custody of the Registers;
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(e) Periodical
inspection of the arrangement by the Superintendent;
(f) Fixing of
responsibility of maintenance and safe custody of the Registers.
With regard to
identifying the individual medical officers attending to the individual patient
approaching Out Patient’s Department/Emergency Department of a hospital on the
basis of consulting the hospital records, it has been directed that the
following procedure should be followed in future:
A. A copy of
the Duty Roaster of Medical Officers should be preserved in the office of the Superintendent
incorporating the modifications done for unavoidable circumstances;
B. Each
Department shall maintain a register for recording the signature of attending
medical officers denoting their arrival and departure time;
C. The
attending medical officer shall write his full name clearly and put his
signature in the treatment document;
D. The
Superintendent of the hospital shall keep all such records in safe custody;
E. A copy of
the ticket issued to the patient should be maintained or the relevant data in
this regard should be noted in an appropriate record for future guidance.
In the context
of the constitutional obligation to provide free legal aid to a poor accused
the State cannot avoid its constitutional obligation in that regard on account
of financial constraints. [See : Khatri (II) v. State of Bihar, 1981 (1) SCC 627 at p. 631]. The said observations
would apply with equal, if not greater, force in the matter of discharge of
constitutional obligation of the State to provide medical aid to preserve human
life.
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(LACK
OF QUALIFICATION)
Poonam
Verma vs. Ashwin Patel & Ors.
(1996) 4 SCC 332
The
professional may be held liable for negligence on the ground that he was not
possessed of the requisite skill which he professes to have. Thus a doctor who
has a qualification in Ayurvedic or Homeopathic medicine will be liable if he
prescribes Allopathic treatment which causes some harm.
(QUASHING OF CHARGES)
State of Bihar
It has
been held by this Court in several cases that the inherent power of the court
under Section 482 of the Code of Criminal Procedure should be very sparingly
and cautiously used only when the court comes to the conclusion that there
would be manifest injustice or there would be abuse of the process of the
court, if such power is not exercised. So far as the order of cognizance by a
Magistrate is concerned, the inherent power can be exercised when the
allegations in the First Information Report or the complaint together with the
other materials collected during investigation taken at their face value, do
not constitute the offence alleged. At that stage it is not open for the court
either to shift the evidence or appreciate the evidence and come to the
conclusion that no prima facie case is made out.
(RIGHT TO ASSISTED SUICIDE)
Washington vs. Glucksberg; 521 U.S.
The
decision to commit suicide with the assistance of another may be just as
personal and profound as the decision to refuse unwanted medical treatment, but
it has never enjoyed similar legal protection. Indeed the two acts are widely
and reasonably regarded as quite distinct. Throughout the Nation, Americans are
engaged in an earnest and profound debate about the morality, legality and
practicality of physician assisted suicide. Our holding permits this debate to
continue, as it should in a democratic society.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 51
(RIGHT TO ASSISTED SUICIDE)
Vacco vs. Quill; 521 U.S.
The
distinction between letting a patient die and making that patient die is
important, logical, rational, and well established.
(LIABILITY FOR NEGLIGENT TREATMENT OR DIAGNOSIS)
Bolitho vs. City and
Hackney Health Authority, [(1997) 4 All ER 771 (HL)]
The court is
not bound to hold that a defendant doctor escapes liability for negligent
treatment or diagnosis just because he leads evidence from a number of medical
experts who are genuinely of opinion that the defendant’s treatment or
diagnosis accorded with sound medical practice. The use of these adjectives -
responsible, reasonable and respectable - all show that the court has to be
satisfied that the exponents of the body of opinion relied upon can demonstrate
that such opinion has a logical basis. In particular in cases involving, as
they so often do, the weighing of risks against benefits, the judge before
accepting a body of opinion as being responsible, reasonable and respectable,
will need to be satisfied that, in forming their views, the experts have
directed their minds to the question of comparative risks and benefits and have
reached a defensible conclusion on the matter.
(FAILED DIAGNOSIS)
Palmer vs. Tees Health
Authority [1998] All ER 180
A psychiatric out-patient, who was known to be dangerous,
murdered a four year old child. The claim was that the defendant had failed to
diagnose that there was a real, substantial, and foreseeable risk of the
patient committing serious sexual offences against children and that, as a
result, it had failed to provide any adequate treatment for him to reduce the
risk of him committing such offences and/or to prevent him from being released
from the hospital while he was at risk of committing such offences. But the
court struck out the claim on the grounds that there was no duty of care
towards the child, as any child, at any time, was in the same danger.
Adv.C.K.SIVADASAN,
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MEDICAL NEGLIGENCE
CASES - CRIMINAL LAW
Page 52
(NEGLIGENCE- RES IPSA
LOQUITUR)
Gross medical
mistake will always result in a finding of negligence. Use of wrong drug or
wrong gas during the course of anaesthetic will frequently lead to the
imposition of liability and in some situations even the principle of res ipsa loquitur can be applied. Even
delegation of responsibility to another may amount to negligence in certain
circumstances. A consultant could be negligent where he delegates the
responsibility to his junior with the knowledge that the junior was incapable
of performing of his duties properly
(MEDICO-LEGAL CASE
- ASSISTANCE TO OFFENDERS)
Suresh Budharmal Kalani @ Puppu Kalani vs State Of Maharashtra ; 1998 (Supreme Court of India
Section 173 (2) Cr.P.C.,
Section 3 (3) of TADA and 120B IPC against Kalani and under Section 3 (4) of
TADA and 212 I.P.C. against Dr. Desai.
A presumption can be drawn
only from facts - and not from other presumptions - by a process of probable
and logical reasoning.
Under Section 30 of the Evidence Act a confession
of an accused is relevant and admissible against a co-accused if both are
jointly facing trial for the same offence.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 53
At the stage of framing charges the court is
required to confine its attention to only those materials collected during
investigation which can be legally translated into evidence and not upon
further evidence (dehors those materials) that the prosecution may, adduce in
the trial, which would commence only after the charges are framed and the
accused denies the charges.
So far as the confession of Jayawant Suryarao is
concerned, the same (if voluntary and true) can undoubtedly be brought on
record under Section 30 of the Evidence Act to use it also against Kalani but
then the question is what would be its evidentiary value against the latter.
The question was succinctly answered by this Court in Kashmira Singh vs.. State of Madhya Pradesh
Dr. Desai told them that the injured could be
admitted in a Government hospital as it was a medico-legal case. They however,
insisted that Shrikant should be treated in a private hospital and all expenses
thereof would be paid by them. Dr. Desai then contacted one Dr. Kamble over
phone and requested him to operate upon the patient..
The prosecution alleges that knowing full well
that it was a medico-legal case, Dr. Desai entertained Shrikant and arranged
for his operation by Dr. Kamble at his private hospital and thereby helped
Shrikant to abscond after he recuperated.
In absence of any other material to connect Dr.
Desai with the accusation levelled against him a basis for impugned charges in
view of the law laid down in Kashmira Singh vs. State of Madhya Pradesh (1952 SCR
526) and quash the charges framed.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 54
(EVIDENCES RELATED WITH CASE)
Kashmira Singh vs. State of Madhya Pradesh
The proper way
to approach a case of this kind is first, to marshal the evidence against the
accused excluding the confession altogether from consideration and see whether,
if it is believed, a conviction could safely be based on it. If it is capable
of belief independently of the confession, then of course it is not necessary
to call the confession in aid. But cases may arise where the judge is not prepared
to act on the other evidence as it stands even though if believed, it would be
sufficient to sustain a conviction. In aid of the confession and use it to lend
assurance to the other evidence and thus fortify himself in believing what
without the aid of the confession he would not be prepared to accept.
(RIGHT TO PRACTICE ALLOPATHIC MEDICINE. Article
19(1)(g))
Dr.Muhktiar
Chand and Ors vs. State of Punjab
The controversy in these cases was
triggered off by the issuance of declarations by the state Governments under
clause (iii) of Rule 2(ee) of the Drugs and Cosmetics Rules, 1945 which defines
“Registered Medical Practitioner”. Based on such declarations, notified
Vaids/Hakims claim right to prescribe Allopathic drugs covered by the Indian
Drugs and Cosmetics Act, 1940 and who have obtained degrees in integrated
courses claim right to practise allopathic system of medicine.
In exercise of the power under clause (iii)
of Rule 2(ee), the State of Punjab issued Notification No. 9874-Thbtt-67/34526
dated 29th October, 1967 declaring all the Vaids/Hakims who had been registered
under the East Punjab Ayurvedic and Unani Practitioners Act, 1949 and the Pepsu
Ayurvedic and Unani Practitioners Act, 2008 and the Punjab Ayurvedic and Unani
Practitioners Act, 1963 as persons practising Modern System of Medicine for
purposes of the Drugs Act. Dr. Sarwan Singh Dardi who was a medical
practitioner, registered with the Board of Ayurvedic and Unani System of
Medicines, Punjab, and who was practicing modern system of medicines was served
with an order of the District Drugs inspector, Hoshiarpur, prohibiting him from
keeping in his possession any allopathic drug for administration to patients
and further issuing general direction to the chemists not to issue allopathic
drugs to any patient on the prescription of the said Doctor.
Adv.C.K.SIVADASAN,
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MEDICAL NEGLIGENCE
CASES - CRIMINAL LAW
Page 55
The
Drugs and Cosmetics Act only provided that the medical qualifications in the
Schedule shall be sufficient qualification for enrolment on any State Medical
Register and so there was no inconsistency between the section and the Rule
when it was brought into force. But after sub- section (2) of Section 15 was
inserted in the 1956 Act, with effect from 15.09.1964, which, inter alia,
provides that no person other than a medical practitioner enrolled on a State
Medical Register shall practise modern scientific medicine in any State, the
right of non-allopathic doctors to prescribe drugs by virtue of the declaration
issued under the said Drugs Rules, by implication, got obliterated. However,
this does not debar them from prescribing or administering allopathic drugs
sold across the counter for common ailments.
The
upshot of the above discussion is that Rule 2(ee)(iii) as effected from 14.05.1960
is valid and does not suffer from the vice of want of legislative competence
and the notifications issued by the State Governments there under are not ultra vires the said Rule and are legal.
However, after sub-section (2) in Section 15 of the 1956 Act occupied the field
vide Central Act 24 of 1964 with effect from 16.06.1964, the benefit of the
said Rule and the notifications issued there under would be available only in
those States where the privilege of such right to practise any system of
medicine is conferred by the State law under which practitioners of Indian
medicine are registered in the State, which is for the time being in force. The
position with regard to medical practitioners of Indian medicine holding
degrees in integrated courses is on the same plane inasmuch as if any State Act
recognizes their qualification as sufficient for registration in the State
Medical Register, the prohibition contained in Section 15(2)(b) of the 1956 Act
will not apply.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 56
(BURDEN OF PROVING NEGLIGENCE)
Sudha
Gupta vs State Of M.P. And Ors.; (MP High Court): 1999 (2) MPLJ 259
Vinod Kumar Gupta lodged in the Central
Jail, Gwalior being an undertrial, was brought in the Central Jail Dispensary Gwalior Gwalior Government Hospital
Adv.C.K.SIVADASAN,
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MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 57
It must
not be lost sight of that care is a matter of degree, but it is difficult to
define the precise legal standard of care required in all cases of negligence.
The standard of care then is a question of fact depending upon the
circumstances of each case. In determining this standard what has to be
considered is as to how a reasonable and prudent man would behave under given
circumstances. Negligence is the omission to do something which a reasonable
man guided upon those considerations which ordinarily regulate the conduct of
human affairs will do or doing something which a prudent and reasonable man
would not do. In the realm of negligence rigid rules give right to avoidable
injustice. The degree of competent care and skill therefore by which the
respondents are to be judged has to be such as may be reasonably expected from
an average person in his profession and from any person specially gifted or
qualified. The burden of proving negligence rests upon the person who asserts
it. In medical negligence cases it is for the patient to establish his case
against the medical man and not for the medical man to prove that he acted with
sufficient care and skill. In all cases the facts proved must be sufficiently
compelling to give rise to an inference of negligence. A mere conjecture will
be insufficient. No human being is infallible and in the present state of
science even the most eminent specialist may be at fault in detecting the true
nature of the disease condition. A case of serious fault where the diagnosis of
the disease was palpably wrong has to lead to an irresistible conclusion about
negligence being committed. That is to say if the mistake is of such nature
that has to imply absence of reasonable skill and care regard having had to the
ordinary level of skill in the profession, a medical man may be guilty of
negligence if he fails to attend to his patient with regularity and promptitude
which his patient’s condition demands, but he can only be held liable if his
lack of attention leads to an avoidable deterioration of the patient’s
condition.
Adv.C.K.SIVADASAN,
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MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 58
(QUASHING OF CHARGES)
State of M.P.
The Supreme Court adverting to the question
of quashing of charges in the light of the provisions contained in Section 227
and 228, 401 and 397 and 482 of the Criminal Procedure Code had not favoured
the approach of the High Court in meticulously examining the materials on
record for coming to the conclusion that the charge could not have been framed
for a particular offence.
After
considering the material on record, learned Sessions Judge framed the charge.
That charge is quashed by the High Court against the respondents by accepting
the contention raised and considering the details of the material produced on
record. The same is challenged by filing these appeals. In our view, it is
apparent that the entire approach of the High Court is illegal and erroneous.
From the reasons recorded by the High Court, it appears that instead of
considering the prima facie case, the High Court has appreciated and weighed
the materials on record for coming to the conclusion that charge against the
respondents could not have been framed. It is settled law that at the stage of
framing the charge, the court has to prima facie consider whether there is
sufficient ground for proceeding against the accused. The court is not required
to appreciate the evidence and arrive at the conclusion that the materials
produced are sufficient or not for convicting the accused. If the court is
satisfied that a prima facie case is
made out for proceeding further then a charge has to be framed. The charge can
be quashed if the evidence which the prosecutor proposes to adduce to prove the
guilt of the accused, even if fully accepted before it is challenged by
cross-examination or rebutted by defence evidence, if any, cannot show that the
accused committed the particular offence. In such case, there would be no
sufficient ground for proceeding with the trial.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 59
(LACK
OF QUALIFICATION)
Dr. Shiv Kumar Gautam vs. Alima, R P No.586/ 1999/ 2006, (NCDRC)
The
professional may be held liable for negligence on the ground that he was not
possessed of the requisite skill which he professes to have. A homeopath liable
for negligence for prescribing allopathic medicines and administering glucose
drip and giving injections.
(EXPERT OPINION)
State of H.P.
Section 45 of
the Evidence Act which makes opinion of experts admissible lays down that when
the court has to form an opinion upon a point of foreign law, or of science, or
art, or as to identity of handwriting or finger impressions, the opinions upon
that point of persons specially skilled in such foreign law, science or art, or
in questions as to identity of handwriting, or finger impressions are relevant
facts. Therefore, in order to bring the evidence of a witness as that of an
expert it has to be shown that he has made a special study of the subject or
acquired a special experience therein or in other words that he is skilled and
has adequate knowledge of the subject.
An expert is
not a witness of fact. His evidence is really of an advisory character. The
duty of an expert witness is to furnish the Judge with the necessary scientific
criteria for testing the accuracy of the conclusions so as to enable the Judge
to form his independent judgment by the application of this criteria to the
facts proved by the evidence of the case. The scientific opinion evidence, if
intelligible, convincing and tested becomes a factor and often an important
factor for consideration along with the other evidence of the case. The
credibility of such a witness depends on the reasons stated in support of his conclusions
and the data and material furnished which form the basis of his conclusions. The
report submitted by an expert does not go in evidence automatically. He is to
be examined as a witness in court and has to face cross- examination.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 60
(MEDICAL
TERMINATION OF PREGNANCY)
Surendra
Chauhan vs. State of M.P.
The appellant
was having a degree of Bachelor of Medicine in Electrohomoeopathy from the
Board of Electrohomoeopathy Systems of Medicines, Jabalpur (M.P.). He did not
possess any recognized medical qualification as defined in the Indian Medical
Council Act, 1956. Yet he performed an operation to terminate the three month
pregnancy in a woman, who died in the clinic due to shock due to non
application of anesthesia. The Supreme Court confirmed his sentence of rigorous
imprisonment under Section 314/34 IPC and a fine.
(PROFESSIONAL STANDARD)
Michael Hyde and Associates vs. J.D. Williams
& Co. Ltd., [2001] P.N.L.R. 233,
Where a
profession embraces a range of views as to what is an acceptable standard of
conduct, the competence of the defendant is to be judged by the lowest standard
that would be regarded as acceptable.
(‘TWO-CHILD NORM’ CASE)
Javed
& Ors. vs. State of Haryana &
Ors. (2003) 8 SCC 369
The problem of increasing
population, the danger which it poses for the progress of the nation and
equitable distribution of its resources and upheld the validity of the Haryana
legislation imposing a disqualification on persons having more than two
children from contesting for an elective office. The fact cannot be lost sight
of that while educated persons in the society belonging to the middle-class and
the upper class do voluntarily opt for family planning and are careful enough
to take precautions or remedial steps to guard against the consequences of
failure of sterilization, the illiterate and the ignorant and those belonging
to the lower economic strata of society face the real problem.
Adv.C.K.SIVADASAN,
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MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 61
(POWERS
OF MAGISTRATE UNDER SECTION 190(1)(b), CR.P.C.
Sanjay
Bansal & Anr. vs. Jawaharlal Vats & Ors.
2004(4) JCC 3257
For a proper and fair investigation of the
case informant is entitled to a notice and an opportunity to be heard at the
time of consideration of the report. It was further held that the Magistrate
can ignore the conclusion arrived at by the investigating officer and
independently apply his mind to the facts emerging from the investigation and
take cognizance of the case, if he thinks fit, in exercise of his powers under
Section 190(1)(b) and direct the issue of process to the accused. The function
of the Magistrate and the police are entirely different and the Magistrate
cannot impinge upon the jurisdiction of the police by compelling them to change
from their opinion so as to agree with his view. However, the Magistrate is not
deprived of the power to proceed with the matter and there is no obligation on
the Magistrate to accept the report, if he does not agree with the opinion
formed by the police.
(RECKLESSNESS OR GROSS NEGLIGENCE)
Dr.
Suresh Gupta vs Govt. of N.C.T. of Delhi & Anr. 2004 (6) SCC 422
Section 304A
IPC.
Deceased was young man of 38 years without
cardiac problem. The doctors while conducting minor operation for removing
nasal deformity, gave incision at wrong part due to that blood seeped into the
respiratory passage and because of that patient immediately collapsed and died
and it was also attempted to show by the accused persons that he was alive at
that time and was taken to Ganga Ram Hospital for further medical attention. It
is clear from the record that patient had actually died at the clinic of the
accused.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 62
When a patient
agrees to go for medical treatment or surgical operation, every careless act of
the medical man cannot be termed as ‘criminal’. It can be termed ‘criminal’
only when the medical man exhibits a gross lack of competence or inaction and
wanton indifference to his patient’s safety and which is found to have arisen
from gross ignorance or gross negligence. Where a patient’s death results
merely from error of judgment or an accident, no criminal liability should be
attached to it. Mere inadvertence or some degree of want of adequate care and
caution might create civil liability but would not suffice to hold him
criminally liable.
This approach
of the courts in the matter of fixing criminal liability on the doctors, in the
course of medical treatment given by them to their patients, is necessary so
that the hazards of medical men in medical profession being exposed to civil
liability, may not unreasonably extend to criminal liability and expose them to
risk of landing themselves in prison for alleged criminal negligence.
For every
mishap or death during medical treatment, the medical man cannot be proceeded
against for punishment. Criminal prosecutions of doctors without adequate
medical opinion pointing to their guilt would be doing great disservice to the
community at large because if the courts were to impose criminal liability on
hospitals and doctors for everything that goes wrong, the doctors would be more
worried about their own safety than giving all best treatment to their
patients. This would lead to shaking the mutual confidence between the doctor
and patient. Every mishap or misfortune in the hospital or clinic of a doctor
is not a gross act of negligence to try him for an offence of culpable
negligence.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 63
Between civil
and criminal liability of a doctor causing death of his patient the court has a
difficult task of weighing the degree of carelessness and negligence alleged on
the part of the doctor. For conviction of a doctor for alleged criminal
offence, the standard should be proof of recklessness and deliberate wrong
doing i.e. a higher degree of morally blameworthy conduct.
To convict,
therefore, a doctor, the prosecution has to come out with a case of high degree
of negligence on the part of the doctor. Mere lack of proper care, precaution
and attention or inadvertence might create civil liability but not a criminal
one. The courts have, therefore, always insisted in the case of alleged
criminal offence against doctor causing death of his patient during treatment,
that the act complained against the doctor must show negligence or rashness of
such a higher degree as to indicate a mental state which can be described as
totally apathetic towards the patient. Such gross negligence alone is
punishable.
(CRIMINAL
NEGLIGENCE – DETAILED
ANALYSIS OF EVIDENCE ESSENTIAL)
Mohanan
vs. Prabha G. Nair and Anr.: AIR 2004 SC 1719, I (2004) CPJ 21 SC
Appellant’s wife was admitted in the first respondent’s hospital
for the delivery with medical intervention of first respondent she delivered a
dead child, there was profuse bleeding and later died. The appellant alleged
that in spite of respondent request to take his wife to the medical college
hospital, the first respondent told him that the patient has no problem and
everything would be alright within short time. The appellant filed a complaint
before the police and after investigation the police filed a report.
Thereafter, the appellant filed a criminal complaint before the Magistrate.
Apart from the statement given by the complainant, he also got examined the
Doctor, who conducted the post-mortem examination and also a Radiologist. The
Magistrate took cognizance of the offence punishable under Section 304A, IPC.
Thereafter, the first respondent filed an application before the High Court
under Section 482 of the Cr.P.C. and the proceedings quashed.
Adv.C.K.SIVADASAN,
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MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 64
It must be noticed that the
appellant herein did not get the full opportunity to produce evidence before
the Magistrate. The negligence of the Doctor could be ascertained only by
scanning the material if any and the expert evidence that may be adduced.
Having regard to the facts of this case, we feel that the appellant-complainant
should have been given an opportunity to present the case before the
Magistrate. The learned Single Judge was not justified in quashing the
complaint at the threshold, especially in a case where the culpability could be
established only on proper analysis of the expert evidence that may be adduced
by the complainant. In the result, we set aside the judgment of the learned
Single Judge and direct the Magistrate to consider the matter in accordance
with law.
(NEGLIGENCE BY PROFESSIONALS)
Jacob Mathew vs. State of Punjab
Section 304A read with
Section 34 of the Indian Penal Code
Late Jiwan Lal Sharma was admitted as a patient
in a private ward of CMC Hospital , Ludhiana
Adv.C.K.SIVADASAN,
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MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 65
Submissions
made by the learned counsel for the parties and the interveners have centered
around two issues: (i) Is there a difference in civil and criminal law on the
concept of negligence?; and (ii) whether a different standard is applicable for
recording a finding of negligence when a professional, in particular, a doctor
is to be held guilty of negligence?
(1) Negligence
is the breach of a duty caused by omission to do something which a reasonable
man guided by those considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a prudent and reasonable man
would not do. Negligence becomes actionable on account of injury resulting from
the act or omission amounting to negligence attributable to the person sued.
The essential components of negligence are three: ‘duty’, ‘breach’ and ‘resulting
damage’.
(2) Negligence
in the context of medical profession necessarily calls for a treatment with a
difference. To infer rashness or negligence on the part of a professional, in
particular a doctor, additional considerations apply. A case of occupational
negligence is different from one of professional
Adv.C.K.SIVADASAN,
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MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 66
negligence. A
simple lack of care, an error of judgment or an accident, is not proof of
negligence on the part of a medical professional. So long as a doctor follows a
practice acceptable to the medical profession of that day, he cannot be held liable
for negligence merely because a better alternative course or method of
treatment was also available or simply because a more skilled doctor would not
have chosen to follow or resort to that practice or procedure which the accused
followed. When it comes to the failure of taking precautions what has to be
seen is whether those precautions were taken which the ordinary experience of
men has found to be sufficient; a failure to use special or extraordinary
precautions which might have prevented the particular happening cannot be the
standard for judging the alleged negligence. So also, the standard of care,
while assessing the practice as adopted, is judged in the light of knowledge
available at the time of the incident, and not at the date of trial. Similarly,
when the charge of negligence arises out of failure to use some particular
equipment, the charge would fail if the equipment was not generally available
at that particular time (that is, the time of the incident) at which it is
suggested it should have been used.
(3) A
professional may be held liable for negligence on one of the two findings:
either he was not possessed of the requisite skill which he professed to have
possessed, or, he did not exercise, with reasonable competence in the given
case, the skill which he did possess. The standard to be applied for judging,
whether the person charged has been negligent or not, would be that of an
ordinary competent person exercising ordinary skill in that profession. It is
not possible for every professional to possess the highest level of expertise
or skills in that branch which he practices. A highly skilled professional may
be possessed of better qualities, but that cannot be made the basis or the
yardstick for judging the performance of the professional proceeded against on
indictment of negligence.
Adv.C.K.SIVADASAN,
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MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 67
(4) The test
for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R.
582, 586 holds good in its applicability in India
(5) The
jurisprudential concept of negligence differs in civil and criminal law. What
may be negligence in civil law may not necessarily be negligence in criminal
law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an
act to amount to criminal negligence, the degree of negligence should be much
higher i.e. gross or of a very high degree. Negligence which is neither gross
nor of a higher degree may provide a ground for action in civil law but cannot
form the basis for prosecution.
(6) The word ‘gross’
has not been used in Section 304A of IPC, yet it is settled that in criminal
law negligence or recklessness, to be so held, must be of such a high degree as
to be ‘gross’. The expression ‘rash or negligent act’ as occurring in Section
304A of the IPC has to be read as qualified by the word ‘grossly’.
(7) To
prosecute a medical professional for negligence under criminal law it must be
shown that the accused did something or failed to do something which in the
given facts and circumstances no medical professional in his ordinary senses
and prudence would have done or failed to do. The hazard taken by the accused
doctor should be of such a nature that the injury which resulted was most
likely imminent.
(8) Res ipsa loquitur is only a rule of
evidence and operates in the domain of civil law specially in cases of torts
and helps in determining the onus of proof in actions relating to negligence.
It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal
law. Res ipsa loquitur has, if at
all, a limited application in trial on a charge of criminal negligence.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 68
In view of the
principles laid down hereinabove and the preceding discussion, we agree with
the principles of law laid down in Dr. Suresh Gupta's case (2004) 6 SCC 422 and
re-affirm the same.
Guidelines re: prosecuting medical professionals As we
have noticed hereinabove that the cases of doctors (surgeons and physicians)
being subjected to criminal prosecution are on an increase. Sometimes such
prosecutions are filed by private complainants and sometimes by police on an FIR
being lodged and cognizance taken. The investigating officer and the private
complainant cannot always be supposed to have knowledge of medical science so
as to determine whether the act of the accused medical professional amounts to
rash or negligent act within the domain of criminal law under Section 304-A of
IPC. The criminal process once initiated subjects the medical professional to
serious embarrassment and sometimes harassment. He has to seek bail to escape
arrest, which may or may not be granted to him. At the end he may be exonerated
by acquittal or discharge but the loss which he has suffered in his reputation
cannot be compensated by any standards.
We may not be
understood as holding that doctors can never be prosecuted for an offence of
which rashness or negligence is an essential ingredient. All that we are doing
is to emphasize the need for care and caution in the interest of society; for,
the service which the medical profession renders to human beings is probably
the noblest of all, and hence there is a need for protecting doctors from
frivolous or unjust prosecutions. Many a complainant prefers recourse to
criminal process as a tool for pressurizing the medical professional for
extracting uncalled for or unjust compensation. Such malicious proceedings have
to be guarded against.
Adv.C.K.SIVADASAN,
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MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW
Page 69
Statutory
Rules or Executive Instructions incorporating certain guidelines need to be
framed and issued by the Government of India and/or the State Governments in
consultation with the Medical Council of India. So long as it is not done, we
propose to lay down certain guidelines for the future which should govern the
prosecution of doctors for offences of which criminal rashness or criminal
negligence is an ingredient. A private complaint may not be entertained unless
the complainant has produced prima facie evidence before the Court in the form
of a credible opinion given by another competent doctor to support the charge
of rashness or negligence on the part of the accused doctor. The investigating
officer should, before proceeding against the doctor accused of rash or
negligent act or omission, obtain an independent and competent medical opinion
preferably from a doctor in government service qualified in that branch of
medical practice who can normally be expected to give an impartial and unbiased
opinion applying Bolam’s test to the facts collected in the investigation. A
doctor accused of rashness or negligence, may not be arrested in a routine
manner (simply because a charge has been leveled against him). Unless his
arrest is necessary for furthering the investigation or for collecting evidence
or unless the investigation officer feels satisfied that the doctor proceeded
against would not make himself available to face the prosecution unless
arrested, the arrest may be withheld.
(NEGLIGENCE)
Dr.
G.S. Chandraker vs. State and Anr. (Delhi
Akash, aged about 14 years, was suffering
from an acute form of Bronchial Asthma since his childhood. On the fateful day,
he suffered an acute incident of Bronchial Asthmatic attack. Resultantly, he
developed breathing problems and was rushed to the O.P.D./ Casualty section of
the KSC Hospital
Adv.C.K.SIVADASAN,
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MEDICAL
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Akash was rushed to the hospital, the
doctor on duty, respondent No. 2 Dr. Reema S. Nagpal, did not attend him and
provide him immediate medical treatment or first-aid. This omission her part,
it was alleged, cost Akash his life. Dr. Nagpal, the accused, had the option of
resuscitation in the casualty or to refer the case to the main casualty of SSK
Hospital, an associated hospital. She opted to refer the case to the SSK
hospital as proper resuscitation equipment was unavailable for that particular
patient. This option was not refuted by the HOD Paediatrics and Senior
Paediatrician, KSC
Hospital
I must
tell you what in law we mean by “negligence”. In the ordinary case which does
not involve any special skill. Negligence in law means a failure to do some act
which a reasonable man in the circumstances would do, or the doing of some act
which a reasonable man in the circumstances would not do; and if that failure
or the doing of that act results in injury, then there is a cause of action.
How do you test whether this act or failure is negligent? In an ordinary case
it is generally
Adv.C.K.SIVADASAN,
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MEDICAL
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said
you judge it by the action of the man in the street. He is the ordinary man. In
one case it has been said you judge it by the conduct of the man on the top of
a Clapham omnibus. He is the ordinary man. But where you get a situation which
involves the use of some special skill or competence, then the test as to
whether there has been negligence or not is not the test of the man on the top
of a Clapham omnibus, because he has not got this special skill. The test is
the standard of the ordinary skilled man exercising and professing to have that
special skill. A man need not posses the highest expert skill; it is well
established that it is sufficient if he exercises the ordinary skill of an
ordinary competent man exercising that particular art. I do not think that I
quarrel much with any of the submissions in law which have been put before you
by counsel. Mr Fox-Andrews put it in this way, that in the case of a medical
man, negligence means failure to act in accordance with the standards of
reasonably competent medical men at the time. That is a perfectly accurate
statement, as long as it is remembered that there may be one or more perfectly
proper standards; and if he conforms with one of those proper standards, then
he is not negligent. Our Supreme Court approved the above test, in Suresh Gupta
and, later in Jacob Mathew.
(NEGLIGENCE- RES IPSA
LOQUITUR)
B. Nagabhushanam vs.
State of Karnataka
Reliance
placed by Mr Kulkarni on Syad Akbar v. State of Karnataka1
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MEDICAL NEGLIGENCE
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(LASER
TREATMENT, IPC 304A, QUASHING OF FIR)
Dr.Ritu Rawat and Anr. vs. Tej Singh and Ors. (Delhi
On 3rd October, 2005, late Aditya Pal was
admitted in Indraprastha Apollo Hospital for multiple laserisation of his
papillomata and during the procedure one of the pulses caused a luminescence in
the airway leading to withdrawal of the procedure as the deceased suffered laser
burns in the airway and he was shifted to ventilator support in Paediatric
Intensive Care Unit (PICU). For the laser burns during the procedure, he was
stabilized initially in O.T and then shifted to ICU for further management
where he was put on mechanical ventilator and allegedly started on IV
antibiotics and vigorous supportive care.
Post mortem was conducted at AIIMS by a
board and gave a post mortem report. The relevant observations of the post
mortem report as follows:- Alleged h/o death in Apollo Hospital
Cause of Death: Extensive ante-mortem laser
burn injuries to Oropharynx, Nasopharynx, Supraglottis, Laryngeal Cavity, Trachea
upto cervical C-7 level resulting into R.T.I (Respiratory Track Infection),
Lung Infection with Septicaemia.
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MEDICAL
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Opinion: The mentioned burn injury which is
primary cause of death was unwarranted. This speaks failure of taking required
precautions, care and skill in adopted procedure. This is res ipsa loquitur a case of gross medical negligence.
Apparently
the patient suffered from recurrent laryngeal papilloma. It is well known that
this condition affects young children and is treated by micro- laryngeal
surgery using conventional instruments or laser. There is some evidence in literature
to suggest that use of laser may result in fewer recurrences. However, there is
always an inherent risk in using laser surgery and accidental laser fire is a
known but rare complication, even if the machine is functioning normally (as
appears to have happened in the instant case). Nevertheless, there are standard
laid down guidelines to prevent and manage these complications.
It
further opined that explicit/specific information about probability of such
complications during such procedures should be made available to the patient in
the consent form. It has been observed that the pre-operative, intra-operative
and post-operative treatment provided to Master Aditya was fully in consonance
with the known standard protocol of treatment in such cases. The laser
equipment used was also in working order as per Inspection Report. It was
unfortunate that after having successful laser resection in four consecutive
occasions, accidental fire occurred during the fifth session which resulted in
laser burn of the airway of Master Aditya leading to secondary complications
and he finally succumbed to them. After going through all the records and also
examining the doctors associated with this case, the Council did not observe
any negligence in the management of the entire episode. The laser spark which
occurred in the airway at the site of surgery and which caused burn injuries in
the airway, although very rare, is known to occur with the incidence of 0.5% to
1.5% in the U.S.A. Post explosion treatment including treatment provided in the
PICU and the ward was as per standard treatment protocol. However, it is felt
that explicit/specific information about probability of such complications
during such procedures should be made available to the patient in the consent
form.
Adv.C.K.SIVADASAN,
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MEDICAL
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The SHO
relied on opinion of the Board of Doctors constituted by All India Institute of
Medical Sciences which was obtained on account of adverse remarks regarding
cause of death in the post mortem report. According to the report, the Board of
Doctors had examined the laser machine and treatment papers of the deceased and
on inspection laser machine was found to be in normal working condition. The
SHO had also referred to the opinion obtained from Delhi Medical Council which
had opined that the case of the deceased was of accidental burn. On the basis
of these reports, it was stated that the Doctor who had treated the patient is
guilty for treatment procedure even though the Medical Council of Delhi has not
observed any negligence in the management of the entire episode.
In the
circumstances, to establish medical professional negligence under criminal law,
it has to be demonstrated that the accused did something or failed to do
something which in the given facts and circumstances no medical professional in
his ordinary senses or prudence would do or fail to do. In order to have a
medical professional negligence, therefore, the act of the accused doctor
should be of such a nature that the injury which resulted was most likely
imminent. The post mortem report indicated that it is a case of res ipsa loquitur a case of gross
criminal negligence and the burn injuries which were the primary cause of death
was unwarranted and speaks of failure of taking required precautions, care and skill
in the adopted procedure. The alleged independent Board of All India Institute
of Medical Science and Delhi Medical Council in their report also do not
absolve the petitioners conclusively.
Adv.C.K.SIVADASAN,
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MEDICAL
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(USAGE OF STEROIDS IN TREATMENT)
Malay
Kumar Ganguly vs. Sukumar Mukherjee
& Ors. (2009) 9 SCC 221
Anuradha developed fever along with skin rash and
Dr. Sukumar Mukherjee, attended and examined Anuradha at her parental residence
on a professional call. However, two weeks thereafter, the skin rash reappeared
more aggressively. Dr. Mukherjee was again contacted and after examining
Anuradha, Dr. Mukherjee prescribed Depomedrol injection 80 mg twice daily for
the next three days. Despite the injection, Anuradha’s condition deteriorated
rapidly from bad to worse over the next few days. Accordingly, she was admitted
at the Advanced Medicare Research Institute (AMRI) later under Dr. Mukherjee’s
supervision. Anuradha was also examined by Dr. Baidyanath Halder and found that
she had been suffering from Erithima plus blisters. Her condition, however,
continued to deteriorate further. Dr. Abani Roy Chowdhury, Consultant was also
consulted. Anuradha was shifted to Breach Candy Hospital, Mumbai as her
condition further deteriorated severely and She breathed her last at there.
The High Court
as also the Commission principally proceeded on the premise that the
respondents herein are not liable either for any act of criminal misconduct or
negligence because of cleavage of opinion. The cleavage of opinion, if any, as
we have noticed hereinbefore, is between pro- steroid group and anti-steroid
group. Accepted treatment protocol so far as the pro-steroid group is concerned
has also been noticed by us. We have proceeded to determine the question of
negligence on the part of the respondents herein principally on the premise
that even if the opinion of the pro-steroid group is followed, the respondents
have failed and/or neglected to even act strictly in terms of the treatment
protocol laid down by them. The opinion of the anti-steroid group appears to be
more scientific and structured. According to our view, agreement should be used
on following for the treatment of TEN:
Adv.C.K.SIVADASAN,
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MEDICAL
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a. Treatment
in burn units should be strived for in exceptional cases but is not generally necessary.
b. Treatment
has to be individually tailored according to cause type and stage and presence
and type of complications.
c. Systemic
glucocorticoids should not be used routinely but are justified in the early
stages of drug induced TEN. They should be given in doses from 80 to 120 mg of methlypredisolone
per day by mouth, for several days until disease progression has ceased.
Dosages should be tapered quickly and cautiously since no further benefit can
be expected thereafter and the untoward effects may then predominate.
d. Treatment
may focus on early detection and prevention of the most fatal complication e.g.
overwhelming infection. Cultures from skin and mucosal erosions, must be
regularly performed.
e. Blood gases
and fluid, electrolytes and protein balance must be monitored and adjusted
appropriately. Fluid replacement regimens as used for burn patients.
f. Supportive
care is of great importance and particular attention must be paid to a high
calorie and high - protein diet.
g.
Debridgement of necrotic skin should not performed before disease activity
ceases.
Adv.C.K.SIVADASAN,
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MEDICAL
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As noticed
hereinbefore, precautions as also the course of actions suggested by the
authors have not been undertaken by the respondents. It is to be noted that the
learned author’s expertise in the field is neither in doubt nor in dispute,
particularly when both parties have extensively relied thereupon. Even the
suspected offending drug was not withdrawn at later stages. This drug is
considered to be a real risk for the patient suffering from TEN. The medicine
has also been administered having regard to the physical condition of the
patient. They were required to be given only as a part of the total program. We
may also place on record that there has been a cleavage of opinion in regard to
mortality rate. Whereas according to the one group of experts in TEN patients
when properly treated and in particular given supportive treatment, the
mortality rate is 0-10%. The respondents
contend that that in fact the mortality rate is quite high being 30-70%. We
would assume that the mortality rate is very high. If that be so, we feel that
the doctors should have been more careful. They should have treated the patient
upon exercise of more care and caution. For the said purpose, if they had not
been able to diagnose the disease properly or identify the proper drug they
would have undertaken some research. It is clear that they did not have any expertise
in the field and therefore they ought not to have behaved as experts
We are,
therefore, of the opinion that the universally accepted medicated treatment
protocol had also not been followed. It is also to be noted at this juncture,
that there may well be a difference of opinion on the course of action to be
adopted while treating a patient of TEN, but the treatment line followed by Dr.
Mukherjee which entailed administration of 80 mg of Depomedrol injection twice
is not supported by any school of thought. The treatment line, in this case,
does not flow from any considered affinity to a particular school of thought,
but out of sheer ignorance of basic hazards relating to use of steroids as also
lack of judgment.
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MEDICAL
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RIGHT OF THE
PATIENT TO BE INFORMED
The patients
by and large are ignorant about the disease or side or adverse affect of a
medicine. Ordinarily the patients are to be informed about the admitted risk,
if any. If some medicine has some adverse affect or some reaction is
anticipated, he should be informed thereabout. It was not done in the instant
case.
LEGITIMATE
EXPECTATION
The standard
of duty to care in medical services may also be inferred after factoring in the
position and stature of the doctors concerned as also the hospital; the premium
stature of services available to the patient certainly raises a legitimate
expectation. We are not oblivious that the source of the said doctrine is in
administrative law. A little expansion of the said doctrine having regard to an
implied nature of service which is to be rendered, in our opinion, would not be
quite out of place.
INDIVIDUAL
LIABILITY OF THE DOCTORS
There cannot
be, however, by any doubt or dispute that for establishing medical negligence
or deficiency in service, the courts would determine the following:
(i) No guarantee
is given by any doctor or surgeon that the patient would be cured.
(ii) The
doctor, however, must undertake a fair, reasonable and competent degree of
skill, which may not be the highest skill.
(iii) Adoption
of one of the modes of treatment, if there are many, and treating the patient
with due care and caution would not constitute any negligence.
(iv) Failure
to act in accordance with the standard, reasonable, competent medical means at
the time would not constitute a negligence. However, a medical practitioner
must exercise the reasonable degree of care and skill and knowledge which he
possesses. Failure to use due skill in diagnosis with the result that wrong
treatment is given would be negligence.
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MEDICAL
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(v) In a
complicated case, the court would be slow in contributing negligence on the
part of the doctor, if he is performing his duties to be best of his ability.
Bearing in
mind the aforementioned principles, the individual liability of the doctors and
hospital must be judged.
According to
general practice, long acting steroids are not advisable in any clinical
condition, as noticed hereinbefore. However, instead of prescribing to a quick
acting steroid, the prescription of a long acting steroid without foreseeing
its implications is certainly an act of negligence on his part without
exercising any care or caution. As it has been already stated by the Experts
who were cross examined and the authorities that have been submitted that the
usage of 80-120 mg is not permissible in TEN. Furthermore, after prescribing a
steroid, the effect of immunosuppression caused due to it, ought to have been
foreseen. The effect of immunosuppression caused due to the use of steroids has
affected the immunity of the patient and Dr. Mukherjee has failed to take note
of the said consequences.
After taking
over the treatment of the patient and detecting TEN, Dr. Halder ought to have
necessarily verified the previous prescription that has been given to the
patient. On 12th May, 1998 although ‘depomedrol’ was stopped, Dr. Halder did
not take any remedial measures against the excessive amount of ‘depomedrol’
that was already stuck in the patient’s body and added more fuel to the fire by
prescribing a quick acting steroid ‘Prednisolone’ at 40mg three times daily,
which is an excessive dose, considering the fact that a huge amount of
Depomedrol has been already accumulated in the body.
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MEDICAL
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Life saving ‘supportive
therapy’ including IV fluids/ electrolyte replacement, dressing of skin wounds
and close monitoring of infection is mandatory for proper care of TEN patients.
Skin(wound) swap and blood tests also ought to be performed regularly to detect
the degree of infection. Apart from using the steroids, aggressive supportive
therapy that is considered to be rudimentary for TEN patients was not provided
by Dr. Halder. Further ‘vital-signs’ of a patient such as temperature, pulse,
intake- output and blood pressure were not monitored. All these factors are
considered to be the very basic necessary amenities to be provided to any
patient, who is critically ill. The failure of Dr. Halder to ensure that these
factors are monitored regularly is certainly an act of negligence. Occlusive
dressing were carried as a result of which the infection had been increased. Dr
Halder’s prescription was against the Canadian treatment protocol. It is the
duty of the doctors to prevent further spreading of infections. How that is to
be done is the doctors concern. Hospitals or nursing homes where a patient is
taken for better treatment should not be a place for getting infection.
After coming
to know that the patient is suffering from TEN, Dr. Abani Roy Chowdhury ought
to have ensured that supportive therapy had been given. He had treated the
patient along with Dr. Halder and failed to provide any supportive therapy or
advise for providing IV fluids or other supplements that is a necessity for the
patient who was critically ill.
As regards,
individual liability of the respondent Nos 4, 5 and 6 is concerned, we may
notice the same hereunder. As regards AMRI, it may be noticed:
(i) Vital
parameters of Anuradha were not examined between 11.05.1998 to 16.05.1998 (Body
Temperature, Respiration Rate, pulse, BP and urine input and output)
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MEDICAL
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(ii) I.V. Fuid
not administered. (I.V. fluid administration is absolutely necessary in the
first 48 hours of treating TEN)
As regards,
Dr. Balaram Prasad, Respondent No. 5, it may be noticed:
(i) Most
Doctors refrain from using steroids at the later stage of the disease - due to
the fear of Sepsis, yet he added more steroids in the form of quick - acting
Prednisolone 40mg three times a day.
(ii) He stood
as second fiddle to the treatment and failed to apply his own mind.
(iii) No
doctor has the right to use the drug beyond the maximum recommended dose.
We are of the
opinion that for the death of Anuradha although Dr. Mukherjee, Dr. Halder, Dr.
Abani Roy Chowdhury, AMRI, Dr. B. Prasad were negligent.
(PUERPERAL STERILISATION,
SERVICE ENQUIRY)
Dr.K.Alamelu vs. Government of Tamilnadu (Madras
A charge memo was framed under Rule 17(b) of the Tamil
Nadu Civil Services (D & A) Rules. The charge against the petitioner was as
follows:-
That Dr.K.Alamelu, Assistant Surgeon, Government Hospital Headquarters
Hospital Headquarters Hospital
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MEDICAL
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If the
present enquiry is seen in the context of the legal precedents it will be clear
that the enquiry officer’s conduct in questioning the petitioner before the
departmental witnesses were examined as well as recording the opinion of two
senior doctors after the enquiry and in the absence of the petitioner will be
clearly illegal. Further, there is no explanation for not conducting a joint
trial in respect of the alleged negligence of the petitioner and the other Doctor
Bagavathyammal. Conducting of separate enquiries on the very same issue had
really prejudiced the petitioner.
In any
event as rightly contended in the additional grounds that in respect of some
incident, the respondents ought not to have conducted separate enquiries and
that too in such perfunctory manner and deprive the petitioner’s right to hold
her post. The Supreme Court in the legal precedent set out above had clearly
laid down certain guidelines while dealing with the cases of medical
negligence. None of those warnings ever had any impact over the respondents. It
is too dangerous to hold the petitioner guilty with such scanty evidence.
(APPLICABILITY OF BOLAM TEST)
V.
Kishan Rao vs. Nikhil Super
Speciality Hospital
Michael Jones
in his treaties on Medical Negligence Fourth Edition, 2008 criticized the Bolam
test as it opts for the lowest common denominator. The learned author noted
that opinion was gaining ground in England
Adv.C.K.SIVADASAN,
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MEDICAL
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that Bolam
test should be restricted to those cases where an adverse result follows a
course of treatment which has been intentional and has been shown to benefit
other patients previously. This should not be extended to certain types of
medical accident merely on the basis of how common they are. It is felt to do
this would set us on the slippery slope of excusing carelessness when it
happens often enough. With the coming into effect of Human Rights Act, 1988 in England , the State’s obligations under the
European Convention on Human Rights (ECHR) are justiciable in the domestic
courts of England
Everyone’s
right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by. Even though Bolam
test ‘has not been uprooted’ it has come under some criticism as has been noted
in Jackson Powell on Professional Negligence (Sweet Maxwell), Fifth Edition,
2002. The learned authors have noted (See paragraph 7-047 at page 200 in
Jackson Powell) that there is an argument to the effect that Bolam test is
inconsistent with the right to life unless the domestic courts construe that
the requirement to take reasonable care is equivalent with the requirement of
making adequate provision for medical care. In the context of such
jurisprudential thinking in England England
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[RIGHT TO PRACTICE UNDER
Article 19(1)(g)]
Rajasthan Pradesh
V.S.Sardarshahar and Anr. vs. Union of India
It is evident that right to practice under
Article 19(1)(g) of the Constitution is not absolute. By virtue of the
provisions of Clause (6) to Article 19 reasonable restrictions can be imposed.
The Court has a duty to strike a balance between the right of a Vaidya to
practice, particularly, when he does not possess the requisite qualification
and the right of a little Indian guaranteed under Article 21 of the
Constitution which includes the protection and safeguarding the health and life
of a public at large from mal-medical treatment. An unqualified, unregistered
and unauthorized medical practitioner possessing no valid qualification, degree
or diploma cannot be permitted to exploit the poor Indians on the basis of a
certificate granted by an institution without any enrolment of students or
imparting any education or having any affiliation or recognition and that too
without knowing the basic qualification of the candidates.
Question
of entertaining the issue of validity of Entry No.105 to the Second schedule to
the Act 1970 does not arise as it is not a cut-off date fixed by the Statutory
Authority rather a date, after which the qualification in question was not
recognised. Hindi Sahitya Sammelan itself admitted that the Society was not
imparting any education. It had no affiliated colleges. It merely conducts the
test. The Society never submitted any application after 1967 before the
Statutory Authority to accord recognition and modify the Entry No.105 to Part I
of Schedule II to the Act 1970. Submissions to the effect that 1953 Act
conferred privileges upon the Vaidyas in exceptional circumstances to practice
and any restriction to practice unless the names are entered in the Central
Register is arbitrary and violative of statutory provisions of the State Act,
are preposterous for the reason that such privileges, if are repugnant to the
provisions of Act 1970, cannot be availed by operation of the provisions
contained in Article 254 of the Constitution. Thus, such a restriction cannot
be held violative of equality clause enshrined in Article 14 of the
Constitution. In the context of the above, the first respondent had contended
that the petitioner’s association writ petition should be dismissed. The
earlier order having become final, they will operate as res judicata against the contentions raised by the petitioner.
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(ALLOPATHIC PRACTICE)
Dr.K.Abdul Muneer and Anr. vs.
The State of Tamil
The
grievance of the Petitioners are on account of the raid conducted by the Police
Authorities in their clinic on account of their practice in Allopathic Medicine
along with Unani Medicine. The Director of Medical Sciences in his counter
affidavit has categorically stated that the Unani Practitioners like the
petitioners are not entitled to practice in the system of Allopathic Medicine.
The petitioners have also no case that they are qualified in the Allopathic
system of medicine. The Petitioners are taking shelter under the brief training
given to them during their internship. The training which the Petitioners have
undergone during the time of house surgeoncy was only for the purpose of
completing the course as per the Regulations. During that particular period of
six months, the petitioners were given training in as many as seven departments
viz., Obstetrics, Gynecology, Medicine, Surgery, Pediatrics, E.N.T. and
Ophthalmology. The training for a brief period given to the petitioners were
not for the purpose of practicing in the system of Allopathic Medicine or to
administer modern medicine. It was only as part of their curriculum to get the
degree in BUMS they have undergone such training. The training received by the
Petitioners in the Government
Hospital
Adv.C.K.SIVADASAN,
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There is no dispute that
Ayurveda, Siddha, Unani and allopathic and homeopathic system of medicines have
got their own history, heritage, advantages and importance. It is not possible
to ignore our traditional, indigenous system of medicine and the service
rendered by the Medical practitioners of Indian Medicine for the cause of
public health. There is no restriction for practicing the Indian Medicine by
the qualified practitioners. The problem would arise only when they attempt to
practice the allopathic system of medicine without a Degree and training in the
modern system of medicine.
(CRIMINAL NEGLIGENCE
OF HOSPITAL IN MEDICAL NEGLIGENCE)
Indraprastha Medical
Corp. Ltd. vs. State NCT of Delhi &
Ors. (2010), Crl.
M.C. No. 827/2010, (Delhi
The
offence of criminal negligence requires a specific state of mind in respect of
the person committing the offence. The offence of medical criminal negligence
cannot be fastened on the company since the company can neither treat nor
operate a patient of its own. It is the Doctor working in the company who
treats and performs operations. It is the Doctor who examines the patients and
prescribes medicines. If there is a deliberate or negligent act of the Doctor
working in the Corporation/Hospital, it is the liability of the Doctor and not
of the Corporation for criminal negligence despite the fact that due to the act
of the Doctor of treating patients the Corporation was getting some revenue.
These days, all Doctors with big hospitals, are on panels where they have fixed
fee for examination of patients and for conducting operations. Out of this fee,
a percentage is paid to the hospital. The hospital/company cannot be held
liable for the personal negligence of the Doctor in giving wrong treatment.
However, if there is an administrative negligence, or a negligence of not
providing basic infrastructure, which results into some harm to an aggrieved
person or such negligence which is impersonal, the hospital can be held liable.
But, in the case of medical negligence, which is personal to the Doctor who
gave treatment, the Corporation would not be liable and it is the Doctor who
can be indicted for medial criminal negligence.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 87
(NEGLIGENCE)
Moni vs. State of Kerala
The plaintiff was admitted in General Hospital,
Ernakulam in the early hours of 26.6.1995. On the said day, at about 8.30 a.m.
the first defendant is said to have examined her and according to the plaintiff
she and her husband were told that a surgery is necessary to cure her illness.
Several tests were done. All along, according to the plaintiff, the first
defendant reiterated that a surgery was the only option. But, the first
defendant became indifferent and careless in treating the plaintiff and
discharged her on 11.7.1995 when she had not recovered from her illness.
Thereafter she had to go to Ernakulam Medical Centre and to undergo a surgery.
She had incurred heavy expenses and had undergone lot of sufferings. Pointing
out that the need for operation arose due to the negligence on the part of the
first defendant doctor, the suit was laid for damages.
The first defendant resisted the suit and
denied the allegations in the plaint and pointed out that he had done what a
doctor would do in the circumstances under which the plaintiff was placed and
he had never told either the plaintiff or the husband of the plaintiff that
operation was the only remedy. He asserted that he had followed conservative
method of treatment and since the patient had responded to the treatment, he
felt that surgery was unnecessary. He also pointed out that at the time of
discharge the plaintiff was given specific instruction that if there was any
discomfort or illness, she should at once come and meet him. But after getting
discharged, the plaintiff never turned up.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 88
Issues before the Court:
1) Were not the courts below wrong in
awarding damages to the plaintiff in the absence of any proof regarding
negligent conduct from the part of the 1st defendant resulting in any injury to
the plaintiff?
2) Were not the courts below totally in
error in completely ignoring the evidence of P.W.7 and Ext.X2 that the
plaintiff had a long previous history of stomach complaints and she had
undergone several months of continuous treatment at Ernakulam Medical Centre
for discharge of blood through mouth and anus etc even after the surgery in
July 1996 and the claimed cure and yet finding the 1st defendant is guilty of negligence in not
performing a surgery on the plaintiff?
3. Were not the courts below totally in
error in allowing Rs.6,000/- also as compensation to the plaintiff which amount
was admittedly expended for the treatments at Ernakulam Medical Centre
unconnected with the surgery for intussusception?
4. The Hon’ble Supreme Court of India in
AIR 1969 SC 132, held that a Doctor is entitled to decide the course of
treatment in an emergency. Were not the court below wrong in refusing to follow
this principle of law laid down by the apex court and finding the first
defendant guilty of negligence in not operating on the plaintiff?
Adv.C.K.SIVADASAN,
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MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 89
5. In as much as there is no proof of any
injury being suffered by the plaintiff due to the alleged negligence of the 1st
defendant are not the judgments against the dictum laid down in AIR 1936 PC
154?
6. Has not the courts below completely
misread the pleadings and evidence in the case and came to absurd conclusions?
7. Is the judgment and decree passed nearly
a year after the final hearing valid in law? Is not such judgment invalid and
inoperative in view of the mandate under Order 20 of CPC?
On
scrutiny of the leading cases of medical negligence both in our country and
other countries especially United Kingdom, some basic principles emerge in
dealing with the cases of medical negligence. While deciding whether the
medical professional is guilty of medical negligence following well known
principles must be kept in view:-
I.
Negligence is the breach of a duty exercised by omission to do something which
a reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs, would do, or doing something which a prudent and reasonable
man would not do.
II.
Negligence is an essential ingredient of the offence. The negligence to be
established by the prosecution must be culpable or gross and not the negligence
merely based upon an error of judgment.
III.
The medical professional is expected to bring a reasonable degree of skill and
knowledge and must exercise a reasonable degree of care. Neither the very
highest nor a very low degree of care and competence judged in the light of the
particular circumstance of each case is what the law requires.
IV. A
medical practitioner would be liable only where his conduct fell below that of
the standards of a reasonably competent practitioner in his field.
Adv.C.K.SIVADASAN,
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MEDICAL
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V. In
the realm of diagnosis and treatment there is scope for genuine difference of
opinion and one professional doctor is clearly not negligent merely because his
conclusion differs from that of other professional doctor.
VI. The
medical professional is often called upon to adopt a procedure which involves
higher element of risk, but which he honestly believes as providing greater
chances of success for the patient rather than a procedure involving lesser
risk but higher chances of failure. Just because a professional looking to the
gravity of illness has taken higher element of risk to redeem the patient out of
his/her suffering which did not yield the desired result may not amount to
negligence.
VII.
Negligence cannot be attributed to a doctor so long as he performs his duties
with reasonable skill and competence. Merely because the doctor chooses one
course of action in preference to the other one available, he would not be
liable if the course of action chosen by him was acceptable to the medical
profession.
VIII.
It would not be conclusive to the efficiency of the medical profession if no
Doctor could administer medicine without a halter round his neck.
IX. It
is our bounden duty and obligation of the civil society to ensure that the
medical professionals are not unnecessary harassed or humiliated so that they
can perform their professional duties without fear and apprehension.
X. the
medical practitioners at times also have to be saved from such a class of
complainants who use criminal process as a tool for pressurizing the medical
professionals/hospitals particularly private hospitals or clinics for extracting
uncalled for compensation. Such malicious proceedings deserve to be discarded
against the medical practitioners.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 91
XI. The
medical professionals are entitled to get protection so long as they perform
their duties with reasonable skill and competence and in the interest of the
patients. The interest and welfare of the patients have to be paramount for the
medical professionals.
Here
one has to notice the evidence of the first defendant. His definite stand was
that he had suspected intussusception and as the normal procedure he resorted
to conservative method of treatment. He would say that the patient responded to
the treatment and therefore he postponed the surgery. There is evidence in this
case to show that the patient responded to Barium enema and also that she had
taken oral food few days after the admission. While the plaintiff would
maintain that she continued to vomit and had severe abdomen pain, the first
defendant would say that she showed marked improvement in her condition. What
D.W.1 says can be found to be true from the entries in Ext.X1. Of course there
is some incongruity regarding the directions given by the first defendant and
the steps taken by the nursing staff. The statement of the first defendant as
D.W.1 that he did not care to look into that aspect may not be commendable. But
that is far from saying that he was negligent.
(IMA & AYUSH PRACTITIONERS)
Tamilnadu Siddha Medical Graduates
Association, Rep By Dr.M.Selvin Innocent Dhas vs. Indian Medical Association (Madras High Court, Madurai
W.P.(MD)No.7678 of 2010 has been preferred
under Article 226 of the Constitution of India praying for the issue of a writ
of mandamus to forbear the respondents and their men not to interfere with the
professional practice of the members of the petitioner association and taking
action in the name of Anti-quackery action against the members of the
petitioner’s association who are practicing their profession as per the
Regulations passed by the Central Council of Indian Medicine, New Delhi and as
per the Indian Medical Degrees (Madras Amendment) Act, 1940.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
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In the
light of the rival pleadings, two questions arise for consideration. The first
was whether the first respondent association can be given a carte blanche to
find out as to who are all practicing quackery and on that basis, the police
can be directed to proceed against those individuals in a criminal court. But,
if such a power is given to the practitioners of one system, it will naturally
result in witch hunting of others who did not have licence to practice in
Allopathic system of medicine. A reading of all the earlier orders did not
indicate that if a person is having license to practice under a particular
system of medicine and registered under the respective council, he can be
simply proceeded for the alleged transgression of their limits. If a person who
did not have any degree under any system and if he practices any form of
medicine, they can be easily identified as a quack and can be proceeded on a
complaint even under the provisions of IPC. In respect of violation of any
professional conduct or ethics under each system for which separate
registration under a council is provided. Hence each council will be the only
authority to deal with those persons who violate their professional ethics and
conduct. Even in those cases, there is no difficulty because each of the
councils were empowered by a central enactment and fully geared to deal with
such contingencies.
A
further question will arise that if a Doctor under the system of Indian
medicine prescribed Allopathic drugs, whether it would amount to violation of
Indian Medical Council Act? In fact, the Government Order issued by the State
Government in G.O.Ms.No.248, Health and Family Welfare Department, dated
8.9.2010 permits such of those practitioners
Adv.C.K.SIVADASAN,
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MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW Page 93
to be
brought under the registered practitioner in terms of Rule 2(ee)(iii). It is
the statutory order that takes out the taboo of such of those Indian medicine
doctors prescribing even Allopathy medicine. In the judgment in Dr.Mukthtiar
Chand’s case, the said issue has been dealt with and the term modern medicine
has been defined. There is lot of misconception about the Doctors who are
qualified under the Indian medicine and having valid degree as well as
registration under the statutory council being dealt with by the police solely
at the instance of the first respondent association and treating them as
criminals. If allowed it will certainly bring disrepute to them in the eye of
public and will make it appear that the system of Indian medicine comprises of
only quacks or non professionals. Such can never be the stand of any
Government. The issues to merit and demerits of each system has to be
scientifically established. Ultimately, it is for the people to apt for a
particular system of treatment. The faith of the people matters more than any
other criteria. The legal interpretation given by the court can only ultimately
guide to deal with complaints of malpractice. But certainly the police cannot
be allowed to take an initiative in such matters.
In the
light of the above, if it is seen the Supreme Court is of the opinion that
medical professionals must be saved from unjust complaints of negligence or
malpractice and safeguards should be made. No blanket permission can be issued
to the police to arrest or to prosecute the so-called quacks identified by the
respondent Indian Medical Association. If the IMA as a guild association of
Allopathic medical practitioners are aggrieved by any misconduct committed by
other medical professionals governed by other systems of medicines, they can
make complaints to their professional bodies under which those professionals
are registered as they have valid license and can find remedies. It is only in
case where they are able to establish that these persons masquerading as
Doctors, then the question of pressing into service Anti Quackery Act will come
into play. It will enable them to take that person to be prosecuted by legal
methods.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
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In the
light of the above, this court is of the view that the order passed by this
court in 2010 (4) CTC 798 is held to be a correct position of law. For the sake
of repetition, it is observed as follows: It is imperative that no proceedings
can be initiated against any of those registered practitioners in Siddha,
Ayurveda, Homeopathy and Unani, who are eligible to practice irrespective of
the respective system also with Modern Scientific Medicine including Surgery,
Gynecology and Obstetrics, Anesthesiology, ENT, Opthalmology, etc. Such
registration of the medical practitioners with Tamil Nadu Siddha Medical
Council, Tamil Nadu Board of Indian Medicine and Tamil Nadu Homeopathy Medical
Council as well as such of those qualified doctors who were recognised as such
by the Madurai Kamaraj University and Tamil Nadu Dr. MGR Medical University who
have been qualified respectively in the system of bachelor of Siddha Medicine
and Surgery.
(EUTHANASIA)
Aruna
Ramchandra Shanbaug vs. Union of India & Ors. (Supreme Court of India
The petitioner Aruna Ramachandra Shanbaug
(through her best friend) was a staff Nurse working in KEM Hospital
Adv.C.K.SIVADASAN,
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MEDICAL
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the brain. She also had brain stem
contusion injury with associated cervical cord injury. 36 years have expired
since the incident and now Aruna Ramachandra Shanbaug is about 60 years of age.
She is featherweight, and her brittle bones could break if her hand or leg are
awkwardly caught. She has stopped menstruating and her skin is now like papier mache stretched over a skeleton.
She is prone to bed sores. Her wrists are twisted inwards. Her teeth had
decayed causing her immense pain. She can only be given mashed food, on which
she survives. She is in a Persistent
Vegetative State KEM Hospital
Two of
the cardinal principles of medical ethics are Patient Autonomy and Beneficence.
Autonomy means the right to self-determination, where the informed patient has
a right to choose the manner of his treatment. To be autonomous the patient
should be competent to make decisions and choices. In the event that he is
incompetent to make choices, his wishes expressed in advance in the form of a
Living Will, OR the wishes of surrogates acting on his behalf (‘substituted
judgment’) are to be respected. Beneficence is acting in what is (or judged to
be) in patient’s best interest. Acting in the patient’s best interest means
following a course of action that is best for the patient, and is not
influenced by personal convictions, motives or other considerations.
Adv.C.K.SIVADASAN,
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MEDICAL
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Aruna
Shanbaug meets most of the criteria for being in a permanent vegetative state
which has resulted for 37 years. However, her dementia has not progressed and
has remained stable for many years.
From
the examination by the team of doctors, it cannot be said that Aruna Shanbaug
is dead. Whatever the condition of her cortex, her brain stem is certainly
alive. She does not need a heart-lung machine. She breathes on her own without
the help of a respirator. She digests food, and her body performs other
involuntary function without any help. She was making some sounds, blinking,
eating food put in her mouth, and even licking with her tongue morsels on her
mouth.
There
is no statutory provision in our country as to the legal procedure for
withdrawing life support to a person in PVS or who is otherwise incompetent to
take a decision in this connection. Hence, we are laying down the law in this
connection which will continue to be the law until Parliament makes a law on
the subject.
A
decision has to be taken to discontinue life support either by the parents or
the spouse or other close relatives, or in the absence of any of them, such a
decision can be taken even by a person or a body of persons acting as a next
friend. It can also be taken by the doctors attending the patient. However, the
decision should be taken bona fide in the best interest of the patient. In the
present case, it is the KEM hospital staff, who have been amazingly caring for
her day and night for 38 years, who really are her next friends, and not Ms.
Pinky Virani who has only visited her on few occasions and written a book on
her.
Adv.C.K.SIVADASAN,
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MEDICAL
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Hence,
even if a decision is taken by the near relatives or doctors or next friend to
withdraw life support, such a decision requires approval from the High Court
concerned as laid down in Airedale’s case.
When
such an application is filed the Chief Justice of the High Court should
forthwith constitute a Bench of at least two Judges who should decide to grant
approval or not. Before doing so the Bench should seek the opinion of a
committee of three reputed doctors to be nominated by the Bench after
consulting such medical authorities/medical practitioners as it may deem fit.
Preferably one of the three doctors should be a neurologist, one should be a
psychiatrist, and the third a physician. For this purpose a panel of doctors in
every city may be prepared by the High Court in consultation with the State
Government/Union Territory.
The
committee of three doctors nominated by the Bench should carefully examine the
patient and also consult the record of the patient as well as taking the views
of the hospital staff and submit its report to the High Court Bench.
Simultaneously
with appointing the committee of doctors, the High Court Bench shall also issue
notice to the State and close relatives e.g. parents, spouse, brothers/sisters etc.
of the patient, and in their absence his/her next friend, and supply a copy of
the report of the doctor’s committee to them as soon as it is available. After
hearing them, the High Court bench should give its verdict. The above procedure
should be followed all over India
The
High Court should give its decision assigning specific reasons in accordance
with the principle of ‘best interest of the patient’ laid down by the House of
Lords in Airedale’s case. The views of the near relatives and committee of
doctors should be given due weight by the High Court before pronouncing a final
verdict which shall not be summary in nature.
Adv.C.K.SIVADASAN,
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MEDICAL
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(GROSS NEGLIGENCE)
Dr. S.R.Malusare
vs. The State of Jharkhand
Section
468(2)(c) of the Cr.P.C., Sections 338 of the I.P.C.,
As the complainant was feeling serious pain in
her upper left side tooth and the petitioner advised her that the tooth was
required to be taken out, which she agreed. It is alleged in the complaint petition
that the petitioner gave her an injection in her upper left side gum and also
prescribed some medicines and asked her to come after few days. It is alleged
that after few hours, the face of the complainant started swelling and she
started feeling pain in her head. She went to HEC hospital on the next day and
she was told that the injection given by the petitioner had reacted. Thereafter
the complainant started loosing her vision in both eyes and also started
developing severe pain in her head. There was slight improvement in her right
eye but her left eye became completely blind.
When the
complainant approached the petitioner with the complaint of pain in her tooth,
she was given an injection by the petitioner in the gum and some medicines were
also prescribed, but what injection was given and what were the medicines
prescribed by the petitioner, have not been disclosed in the complaint
petition. In the absence thereof, it cannot be ascertained that the treatment
given by the petitioner was such that it could not have been given at all in
the ailment complained of by the complainant. As such, whether the action of
the petitioner could be described as ‘gross’ negligent or reckless, cannot be
decided on the basis of the allegations made in the complaint petition. There
is nothing on the record to show that the course of treatment adopted by
Adv.C.K.SIVADASAN,
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MEDICAL
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the petitioner
was the one, no medical professional would have taken had he been acting with
ordinary care, nor there is anything to show that this petitioner did something
or failed to do something which in the given facts and circumstances, no
medical professional in his ordinary senses and prudence would have done, or
failed to do. The case of the petitioner is fully covered by the decision of
the Apex Court in Dr.Suresh Gupta’s case (2004 (6) SCC 422), which clearly lays
down that the act complained against the doctor must show negligence or
rashness of such a highest degree so as to indicate a mental state which can be
described as totally apathetic towards the patient and such ‘gross’ negligence
is only punishable, which ratio has been fully approved by the Apex Court in
Jacob Mathew’s case (2005 (6) SCC 1).
Accordingly, the complaint case filed against the petitioner, including
the subsequent orders therein cannot be maintained in the eyes of law and are
only fit to be quashed.
The complaint
petition was absolutely barred by limitation, inasmuch as the offence under
Section 338 of the I.P.C is punishable by the maximum imprisonment of two years
and the limitation prescribed under Section 468(2)(c) of the Cr.P.C, for taking
cognizance for the said offence is only three years. From the complaint
petition, it is apparent that soon after taking injection, the complainant
started feeling pain with swelling which led to the virtual blindness of the
complainant and even though the treatment was given by the petitioner on
18.3.1998, the complaint was filed only in the month of December 2001 after an
inordinate delay of more than three and half years and accordingly, the
cognizance was clearly barred under Section 468(2)(c) of the Cr.P.C.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CRIMINAL LAW
Page 100
(EUTHANASIA BY DOCTORS)
Re. Quinlan; 70 N.J.10, 355 A. 2d 647
Karen
Quinlan suffered severe brain damage as a result of anoxia, and entered into
PVS. Her father sought judicial approval to disconnect her respirator. The New
Jersey Supreme Court granted the prayer, holding that Karen had a right of
privacy grounded in the U.S. Constitution to terminate treatment. The Court
concluded that the way Karen’s right to privacy could be exercised would be to
allow her guardian and family to decide whether she would exercise it in the
circumstances.
(PARENS PATRIAE)
Heller vs. DOE; (509) US 312
The State has a legitimate
interest under its parens patriae
powers in providing care to its citizens who are unable to care for themselves.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
For more information, PLEASE VISIT:
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MEDICAL CASES – CONSUMER – GIST
MEDICAL CASES – HOSPITAL – GIST
MEDICAL PROFESSION IN INDIA
HOSPITAL
ADMINISTRATION – A LEGAL PERSPECTIVE
IMPORTANCE
OF HR IN HOSPITAL ADMINISTRATION
EMERGENCY
MEDICINE – LEGAL AND OPERATIONAL IMPEDIMENTS
IMPORTANCE
OF CONSENT IN TREATMENT
