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Medical negligence and prosecution

To err is human but the mistakes of medical professionals — which may result in death or permanent impairment — can be particularly costly. The law does not aim to punish doctors for all their mistakes, only those committed out of negligence. Of the three available remedies against medical negligence — under the Indian Penal Code, the law of torts and the Consumer Protection Act — it is the first that has the most serious implications for the medical profession. During the past one year, there has been a wide-ranging debate over whether Section 304-A of the IPC — which deals with causing death by negligence — should apply to doctors. It is a period in which there have been three Supreme Court judgments on this issue, the latest by a three-member Bench headed by the Chief Justice. This judgment makes two salient points. First, it rejects the view — and quite rightly — that the medical community must be totally immunised against charges of criminal negligence. Secondly, it stresses that medical negligence must be "gross" in nature in order to subject medical professionals to criminal prosecution. ("A simple lack of care, an error of judgment or an accident, is not proof of negligence... ") The view that the standards used to assess negligence in other professions must not be applied to medical negligence is a widely accepted one. Medicine is an inexact science, diagnosis is sometimes a hit-or-miss affair, medical intervention is often risky, and doctors can and will make honest mistakes. At the same time, medical negligence of the worst kind is a disturbingly common phenomenon in India. The failure of professional and self-regulatory bodies — such as the Indian Medical Association and the Medical Council of India — to adopt a tough position on such negligence is an important reason for it going unchecked.

What are the exact conditions under which doctors can be criminally prosecuted? A key issue here is to provide a clear definition for what constitutes "gross negligence." The expression has no basis in criminal law and it is not sufficient to merely say that it is a form of negligence that goes beyond the lack of necessary care. But the Court's ruling, which was delivered in the face of an increasing number of doctors being subject to frivolous criminal prosecution, was focussed on laying down safeguards against medical professionals being harassed. Among them are that doctors should be arrested only as a last resort and that private complaints should be acted upon only after obtaining "credible" medical opinion that supports charges of rashness or negligence. The Centre has been directed to frame a comprehensive set of statutory rules that will govern the prosecution of doctors. Such rules must strike the right balance — one that prevents doctors from being subject to vexatious litigation and, at the same time, permits aggrieved patients and their relatives to initiate criminal proceedings against them wherever justified.

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