The law works in many complex ways. An issue that seems straightforward to a complainant might have several layers concealed within. Take the case of medical negligence, for instance.
On December 17, 2013, the death of a 27-year-old woman, allegedly caused by medical negligence during a gynaecological procedure at a hospital in Nungambakkam, created a furore, with the woman’s relatives demanding the arrest of the doctor. The clinic downed its shutters much to the ire of the victim’s kin. The police registered a case under section 174 (suspicious death) of CrPC.
However, the general public seems to be unaware about the law that safeguards a medical practitioner. Section 88 of the Indian Penal Code lays down that an act not intended to cause death, done by consent in good faith for person’s benefit, does not constitute an offence. In simple words, police action should not be initiated against a doctor in suspected cases of medical negligence. Instead, the investigating officer is required to forward the case diary along with a post-mortem report, if any, to a team of doctors of the Medical Council of India (MCI) for probe.
Further, a State Government Order dated July 7, 2008, issued based on a Supreme Court verdict on August 5, 2005, states a private complaint against a doctor may not be entertained unless the complainant produces prima facie evidence before the court, in the form of a credible opinion of another competent doctor, to support the charge.
According to city police records, there have been close to a dozen cases of alleged medical negligence in the last two years. However, according to police sources, no doctor has been booked for medical negligence in the last five years, and the cases were forwarded to the IMC team.
One of the notable cases occurred in August 2010, when a 27-year-old woman died after she was given medication for fever at a hospital in Nanganallur. The cause of death was later ascertained to be Steven-Johnson syndrome.
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For families seeking help in cases of alleged medical negligence, the State Medical Council can be of little help as there is no mechanism in place to deal with such cases.
“The Medical Council Act, 1956, had no provisions to take action against doctors found guilty of medical negligence. In the regulations brought out in 2002, the statutory body said action could be taken against such doctors but did not stipulate any section or provision under which they could be penalised,” K. Prakasam, president of Tamil Nadu Medical Council, said.
As a result, the State Medical Council does not deal with any complaint of medical negligence and families are asked to seek legal remedy. Dr. Prakasam said they have been repeatedly requesting the MCI to define clear-cut provisions for taking up these cases.
Presently, the State body takes action only against doctors found guilty of violating the code of ethics.
The council and other medical bodies like the Indian Medical Association also believe that constituting a medical tribunal will help in conducting thorough inquiries.
“When such a case goes to the consumer court, the absence of a non-medical person to understand medical concepts hurts a lot. Hence, we want a medical tribunal to be set up,” M. Balasubramanian, State president of IMA-Tamil Nadu, said.
Violent attacks on hospitals have become common despite the Tamil Nadu Medicare Service Persons and Medical Service Institutions (Prevention of violence and damage or loss to property) Act being enforced in 2008. Hardly any cases are booked under this Act as the police are still unaware of it, he added.
The government medical fraternity too has been demanding police security for hospitals. “The government said that armed police personnel will be deployed for hospitals but this is yet to be implemented,” P. Balakrishnan, president of Tamil Nadu Government Doctors Association-Chennai, said.
(Reporting by Petlee Peter and Serena Josephine M.)
