Emedinews:Insights on Medicolegal Issues:What is the August 5, 2005 Supreme Court judgment on medical negligence?

Cases of doctors 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 emphasizing 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 prefer 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.

Emedinews:Insights on Medicolegal Issues:Medical negligence

• Any doctor who is qualified by medical council and renders emergency care or treatment to a person suffering or appearing to suffer from cardiac arrest, which may include the use of an automated external defibrillator, in good faith and without compensation, shall be immune from civil liability for any personal injury as a result of care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary prudent person would have acted under the same or similar circumstances, except damages that may result for the gross negligence of the person rendering emergency care. This immunity shall extend to the licensed physician.
• If a doctor passes the scene of an accident in which some person has been injured and is in need of urgent medical attention he would not be held to have been negligent if he does not render assistance, as no doctor/patient relationship has been established and in consequences the doctor owes the patient no legal duty.
• If, however, the doctor goes to the assistance of a person who is injured in an accident, a doctor /patient relationship is at once established. When any physician gratuitously advises medical personnel at the scene of an emergency episode by direct voice contact, to render medical assistance based upon information received by voice or biotelemetry equipment, the actions ordered taken by the physician to sustain life or reduce disability shall not be considered liable when the actions are within the established medical procedures.
• A doctor has a duty to exercise reasonable skill and care regardless of whether or not his services are being given gratuitously. A national health policy is required to be formulated to render emergency treatment to a person.
• If such a practitioner fails to attend an emergency call and a complaint is made against him it may well be that some disciplinary action will be taken against him by the health authority/medical council.

Emedinews:Insights on Medicolegal Issues:What is the August 5, 2005 Supreme Court judgment on medical negligence?

Cases of doctors 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 emphasizing 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 prefer 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.

Emedinews:Insights on Medicolegal Issues:Medical negligence

• Any doctor who is qualified by medical council and renders emergency care or treatment to a person suffering or appearing to suffer from cardiac arrest, which may include the use of an automated external defibrillator, in good faith and without compensation, shall be immune from civil liability for any personal injury as a result of care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary prudent person would have acted under the same or similar circumstances, except damages that may result for the gross negligence of the person rendering emergency care. This immunity shall extend to the licensed physician.
• If a doctor passes the scene of an accident in which some person has been injured and is in need of urgent medical attention he would not be held to have been negligent if he does not render assistance, as no doctor/patient relationship has been established and in consequences the doctor owes the patient no legal duty.
• If, however, the doctor goes to the assistance of a person who is injured in an accident, a doctor /patient relationship is at once established. When any physician gratuitously advises medical personnel at the scene of an emergency episode by direct voice contact, to render medical assistance based upon information received by voice or biotelemetry equipment, the actions ordered taken by the physician to sustain life or reduce disability shall not be considered liable when the actions are within the established medical procedures.
• A doctor has a duty to exercise reasonable skill and care regardless of whether or not his services are being given gratuitously. A national health policy is required to be formulated to render emergency treatment to a person.
• If such a practitioner fails to attend an emergency call and a complaint is made against him it may well be that some disciplinary action will be taken against him by the health authority/medical council.

Emedinews:Insights on Medicolegal Issues:Investigation and medical negligence

The investigating police officer and the private/patient complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the alleged medical professional/doctor/hospital amounts to rash or negligent act within the domain of criminal law under Section 304–A of IPC said the Supreme Court of India.

The SC says:

• As we have noticed hereinabove that the cases of doctors 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 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.

Emedinews:Insights on Medicolegal Isues:Medical negligence

The investigating police officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the alleged medical professional/doctor or hospital amounts to rash or negligent act within the domain of criminal law under Section 304–A of IPC said the Supreme Court of India. The Supreme Court states,

• “… As we have noticed hereinabove, that the cases of doctors being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by the police based on an FIR being lodged and cognizance taken.
• 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 complaint 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.”

Emedinews:Insights on MEdicolegal Issues:Medical Negligence

Medical Negligence

Government of India/Medical Council of India should give Statutory Rules or Executive Instructions on medical negligence – Supreme Court of India

• The Honorable Apex Court said that 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 That doctor 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
• The doctor should never be arrested in case of medical negligence since the basic rule of mens rea means any criminality to harm the patient always remain absent
• The exceptional ground and necessity of arrest of doctor is required to be deliberated must be transparent/well justified before the police if unavoidable for furthering the investigation or for collecting the evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make him available to face the prosecution unless arrested, the arrest may be withheld.

Emedinews:Insights on Medicolegal Issues:Medical negligence can manifest in number of ways

Doctors and nurses nowadays are often overburdened with understaffed emergency department and long hours – ripe conditions for a deadly medical mistake.

One of the most common is misdiagnosis, or failure to diagnose. Misdiagnosis occurs when a doctor misreads a patient’s symptoms or overlooks an essential facet of their condition. Failure to diagnose is a closely related error, which can turn fatal if the underlying disease is serious enough, such as with heart disease or cancer.

Major source of medical negligence is surgical error. About 12,000 patients are subjected to unnecessary surgery every year. Surgical errors may involve forgotten equipment inside the body, malfunctioning or poorly monitored equipment during surgery, or unnecessary surgery performed because of an administrative error. Because surgery is by definition invasive and dangerous, errors that occur in the surgical intervention tend to carry lifelong consequences. Experimental surgeries can give rise to wrongful death suits as well, especially if they are performed without due consent or explanation to the patient.

Nowadays a great number of powerful compounds are used to help minimize pain and induce an unconscious state, and any mistake made with anesthesia can quickly result in catastrophic injury and death.

Emedinews:Insights on Medicolegal Issues:Medical negligence–Supreme Court decisions in the United States

The implied contract of a physician or surgeon is not to cure…but to treat the case with diligence and skill.

• In 1832 Connecticut court focused on the word "ordinary "A physician and surgeon, in the performance of his professional duties, is liable for injuries resulting from the want of ordinary diligence, care and skill…"Ordinary" means usual, common…If in the performance of any operation there was a want of ordinary diligence, care, and skill, or if there was carelessness, then the defendant–physician is liable.
• Twenty–one years later, the Pennsylvania Supreme Court ruled similarly, emphasizing the word "reasonable," in addition to "ordinary."
• The implied contract of a physician or surgeon is not to cure…but to treat the case with diligence and skill. The question is...whether the doctor had employed such skill and diligence as are ordinarily exercised in his profession… The rule (is) to be reasonable…The law demands…not extraordinary skill such as belongs only to a few men of rare genius and endowments, but that degree which ordinarily characterizes the profession.
• In 1860, the Supreme Court of Illinois issued its first decision on what constitutes the standard of care of a medical physician. The lawsuit claimed that a physician, who incidentally was represented by a then–practicing attorney named Abraham Lincoln, had been negligent for improperly applying a cast to treat a wrist fracture that had been sustained by the plaintiff. The court declared
• When a person assumes the profession of physician and surgeon, he must…be held to employ a reasonable amount of skill and care. For anything short of that degree of skill in his practice, the law will hold him responsible for any injury which may result from its absence. While he is not required to possess the highest order of qualification, to which men attain, still he must possess and exercise that degree of skill which is ordinarily possessed by members of the profession. And whether the injury results from a want of skill or the want of its application, he will, in either case, be equally liable.

Emedinews:Insights on Medicolegal Issues:Medical negligence can manifest in number of ways

Doctors and nurses nowadays are often overburdened with an understaffed emergency department and long hours – ripe conditions for a deadly medical mistake.

One of the most common is misdiagnosis, or failure to diagnose. Cases of misdiagnosis occur when a doctor misreads a patient’s symptoms or overlooks an essential facet of their condition. Failure to diagnose is a closely related error, which can turn fatal if the underlying disease is serious enough, such as with heart disease or cancer.

A major source of medical negligence is surgical error. About 12,000 patients are subjected to unnecessary surgery every year. Surgical errors may involve forgotten equipment inside the body, malfunctioning or poorly monitored equipment during surgery, or unnecessary surgery performed because of an administrative error. Because surgery is by definition invasive and dangerous, errors that occur in the surgical intervention tend to carry lifelong consequences. Experimental surgeries can give rise to wrongful death suits as well, especially if they are performed without due consent or explanation to the patient.

These days, a great number of powerful compounds are used to help minimize pain and induce an unconscious state, and any mistake made with anesthesia can quickly result in catastrophic injury and death.

Emedinews:Insights on Medicolegal Issues:Medical negligence

Medicolegal Update
(Dr Sudhir Gupta, Additional Prof, Forensic Medicine & Toxicology, AIIMS)

The investigating police officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the alleged medical professional/doctor or hospital amounts to rash or negligent act within the domain of criminal law under Section 304–A of IPC said the Supreme Court of India. The Supreme Court says,

• “… As we have noticed hereinabove, that the cases of doctors being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by the police based on an FIR being lodged and cognizance taken.

• 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 complaint 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.