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Friday, October 24, 2008

Judge says, 'Medical oversight doesn’t call for criminal action'

One of the largest reasons for deaths in hospital is medical negligence (see Wiki). Last year in a discussion a prominent doctor had called the mindless prescription of antibiotics by doctors as a 'ticking time bomb'. The popular perception is that private hospitals are minting money from the ignorance of the patients and we are all at the mercy of doctors.  Second opinion and third opinion are taken as regular medical precautions though no one subsidizes these opinions. Under these circumstances, the Supreme Court ruling is important as it serves as a warning to the profession while granting it with the freedom to save life if backed by professional competence. 
However the one question that remains is, how does the Court decide on professional competence? When it can make a statement about Hakims and local quacks without them even being part of this particular litigation, does it have the courage to challenge any profession stemming from modern science?
Medical oversight doesn’t call for criminal action
Friday, October 24, 2008  02:42 IST
NEW DELHI: Doctors, hospitals and clinics can breathe easy after the supreme court ruled on Thursday that criminal action isn’t warranted for every negligence by medical professionals or death during treatment.

After a detailed evaluation of certain provisions of IPC like sections 304 (culpable homicide not amounting to murder) and 304A relating to negligence, the court quashed criminal action under the former provision ag-ainst a doctor who faced criminal action for causing death by administering three injections to a patient suffering from acute pain seven years ago.

Allowing the appeal by Mathura-based Dr Mahadev Prasad Kaushik, a bench of justices CK Thakker and DK Jain said “criminal prosecutions of  doctors without adequate medical opinion pointing to their guilt would be doing disservice to the community at large”.

Mere deviation from normal professional practices is not necessarily evidence of negligence. “An error of judgment on the part of the professional is also not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment,” the court ruled. “At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil,” the apex court said.

On the complaint by a person alleging that he lost his father after the doctor administered three injections, a criminal court had initiated action under section 304 IPC against him.

The defendant’s lawyer pleaded that at worst he could be tried for negligence and not for unintentional homicide. Agreeing with this argument, the apex court said “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 the patients”.

While section 304 carries a maximum jail sentence fort 10 years, the amended section 304A provides two years imprisonment at the most. Concerned with the relationship of confidence between a patient and a doctor, the bench said “It would also lead to shaking the mutual confidence between the doctor and patient”.

The court further said “Every failure or misfortune in the hospital or in a clinic of a doctor cannot be termed as act of negligence so as to try him of an offence punishable under Section 304A of the Code”. While a hakim or a quack could be tried under section 304, a qualified doctor can’t face the same charge unless he has shown blatant negligence in treating a patient. In Dr Kaushik’s case, the complainant was supported by evidence of persons who saw his father’s complexion turning to blue after getting the shots. It was alleged that accused doctor didn’t act to save the patient.

A professional may be held liable for negligence on one of 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 court added.

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