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Modern medical treatment

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Doctors and Criminal Law

The dawn of third millennium has seen many difficulties in human relations. There have been many turbulent changes in the society. This has not spared even doctor-patient relationship. The rapid changes in the medical field have strained the age-old good relations between the patient and the treating physician or surgeon.


Criminal law is applicable to all individuals and doctors are no exception to it. As far as medical practice is, concerned patients or relatives usually do not approach the police. However, now days this scenario is also changing. In last few decades as doctor patient relationship has deteriorated, the complaints against doctors have increased (1). According to the provisions of Indian Penal Code 1860 (IPC) any act of commission or omission is not a crime unless it is accompanied by a guilty mind (MENS REA). The acts are not punishable only because it led to some mischievous results unless associated with intention or mental attitude of the person. Most of the times doctors treatment is in good faith, with the consent of the patient and hence most of the provisions of IPC are not applicable to the doctors unless or until there is rashness or gross negligence.

The following Sections of IPC are related to medical profession (2):


Sec. 29 Deals with documents


Sec. 52 Describes "good faith"


Sec. 90 related to consent


Sec. 176 Failure to inform police whenever essential


Sec. 269-271 Related to spread of infectious disease and disobedience of a quarantine rule.


Sec. 272-273 related to adulteration of food and drinks.


Sec. 274-276 related to adulteration of drugs.


Sec. 304-A Deals with death caused by a negligent act.


Sec. 306-309 Related with abatement of suicide.


Sec. 312-314 related to causing miss-carriage, abortion and hiding such facts.


Sec. 315-316 Deals with act to prevent child being born alive or to cause it to die after birth.


Sec. 319-322 Related to causing hurt, grievous hurt, loss of vision, loss of hearing or disfigure-ment.


Sec. 336-338 Deals with causing hurt by rash or negligent act.


Sec. 340-342 related to wrongful confine-ment.


Sec. 491 Related to breech of contract.


Sec. 499 Related to defamation.


Section 304 and 304-A


There is lot of discrepancy while applying these sections in cases of professional negligence by doctors. Most of the times the police authorities register the cases of professional negligence deaths under Sec. 304 of IPC. According to this Section, the offence is non-bailable. This causes lot of hardship, bad reputation and mental agony to the doctors. In fact, the police should register the cases of deaths due to medical negligence under Sec. 304-A of IPC, in which the offence is bailable and the doctor can be released on bail. This judgment has been passed by Bombay High Court in Criminal Revision application no. 282 of 1996 (Dr. Mrs. Mrudula S. Deshpande vs. State of Maharashtra) dated 28th November 1998(3). The basic difference is that in Sec. 304 there is intentional act of negligence while in 304-A the act is never done with the intention to cause death.


Grievous hurt


Sec. 319-322 of IPC are related to causing grievous hurt for example loss of limbs, loss of vision, loss of hearing or disfigurement etc. Sec. 336-338 deal with causing grievous hurt by rash or negligent act.


Examples: (1) While giving IV fluids suppose there is leakage of fluid in surrounding tissue resulting in spasm of vessels and subsequent necrosis of limbs. (2) A surgical procedure is done on eye, limbs, face etc. without adequate aseptic precautions resulting in local infection. This may lead to loss of eyes, limb or disfigurement of face, (3) An unqualified doctor performing surgical procedure which results in permanent damage to eyes, limbs, hearing etc.


Wrongful confinement (Sec. 340-342 of IPC)


A patient cannot be detained on the grounds of non-payment of hospital charges. This may constitute the offense of wrongful confinement under Sec. 340-342 of IPC. Doctors can take advance or fee from the patient before starting the treatment.


If a police officer is keeping the doctor in detention, in cases of bailable offenses, he is liable for the offense of wrongful confinement under these Sections of IPC.


Definitions


Crime or offence means any act or omission, which is contrary to any law or statute for the time being in force.


Summons is the process of court asking the opposite party to appear and answer the allegation preferred by the party who has brought action.


Warrant means an order issued by the court, magistrate or a competent judicial authority, directing a police officer to make arrest, seize or search or to do any other work incidental to administration of justice.


A Warrant case is related to an offence punishable with death, life imprisonment or imprisonment for more than two years. Example: If a doctor helps a pregnant woman in getting rid of the child or to cause its death after its birth.


Cases other than warrant cases are Summons cases. If doctor acts negligently by using infected syringe or instrument resulting in an infection to an uninfected patient exemplifies a Summons case.


Cognizable offences are those in which a police officer may arrest without warrant, according of Schedule I of Criminal Procedure Code (CPC).


Non-cognizable offences are those in which a police officer can’t arrest without a warrant, e.g. a doctor knowingly disobeying a quarantine rule is liable to be punished with imprisonment up to 6 months or fine.


Bailable Offences are those in which bail can be granted by any law for the time being in force. In such cases, bail is matter of right. The court cannot refuse bail and the police has no right to keep the doctor in custody. If any police officer puts a doctor in detention in such cases, he is liable for the offense of wrongful confinement under Sec. 340-342 of IPC (4).


Non-Bailable offences are offences other than the bailable or an offence in which bail cannot be granted. A person may be convicted and imprisoned for term extending more than ten years in these serious offences. For example, offences under transplantation of Human Organ Act 1994.


Presumption of innocence: Law presumes that a person is innocent until his guilt is proved. The onus of proof is on prosecution (5).


Mistake of law: "Ignorentia juris non excusat means ignorance of law or mistake of law (existence or mistaken understanding) is not excusable. Erroneous or wrong conclusion of law is not a valid defense. For example, if a doctor carries out prenatal test intended to abort a female fetus, cannot avoid prosecution by saying that I was unaware of any law, which punishes such act.


Mistake of fact is a situation where a person not intending to do unlawful act, does so because of wrong conclusion or understanding of fact. The guilty mind was never there while doing the act. The person may not be held responsible in such cases.


Res Judicata: This doctrine of law means, "The things have been decided". According to this principle, once the case is completed between two parties, it cannot be tried again between the same parties. Suppose a patient sues a hospital for any wrong, damages or malpractice and the things are decided; he cannot subsequently sue the doctor again separately for the same negligence.


Res Ipsa Loquitur is a situation of gross negligence or rashness. The things are so obvious that they "speak for themselves". Most of the time there is no need for any proof of negligence in such cases. Common examples include giving blood transfusion to wrong patient, or operating on wrong side of the body or wrong patient.


Consent in Criminal Law (Sec. 90 IPC)


A valid consent must be given voluntarily, by an adult who is not of unsound mind. The consent must be given after reasonable understanding and without any misrepresentation or hiding of the facts. Thus, the consent should be an informed consent, preferably in writing and in presence of witnesses. All components of valid consent are applicable even for the consent in criminal law. According to criminal law, it is an offence to cause injury to any person even with his consent. No person has right to give consent to suffer death or grievous hurt. This point has to be kept in mind especially during cases of organ transplantation. The donor may have given consent under family, social or financial pressures. In cases of dead donors if there is no expressed will, the body is the property of the heirs and their consent is required.


Criminal Liability


A person, who commits a wrongful act, shall be liable for it. The crimes are public wrongs and aim of criminal proceeding is to punish the wrong doer. The law imposes liability on him who fails to perform duty. The wrongful act may be (a) Intentional or willful wrong this usually doesn’t apply in medical practice as no doctor has intention to cause harm to his patient, (b) negligent act – the doctor fails to take proper care, precaution and is just indifferent to the consequences of his act. Lack of skill proportional to risk undertaken also amounts to negligence; (c) wrongs of strict liability created by some special statutes like transplantation of human organ act (1994) (6).


When to Inform Police


A doctor has to inform the police in following circumstances (personal communication Dr. Jayant Navrange). Failure to inform police in such cases may result in penal consequences. Police must be informed in (i) cases of suspected homicide, (ii) cases of suicidal deaths, (iii) unknown, unconscious patient, (iv) death on operation table, (v) suspected unnatural death, (vi) sudden, unexpected, violent and unexplained death, (vii) instant death after treatment or reaction of medicine, and a (viii) married lady dying within seven years of marriage due to any reason.


It is advisable to inform police in following circumstances (i) undiagnosed death within 24 hrs. of admission or specially if there is any suspicion, (ii) any cases of poisoning, (iii) accidental deaths, and (iv) in cases of hospital deaths if (a) accidents not related to medical management like fall from staircase etc., though there is no legal obligation on doctor, it is advisable to inform the police, (b) unexpected or rare complications may occur sometimes, e.g. a child may vomit, aspirate the content and may die. This is very unpredictable and it is not obligatory on part of the doctor to inform such deaths. However, it is better if we inform the police because sometimes patient’s relatives may allege negligence in such cases. In cases of death due to negligence in treatment, there are no specific provisions to inform the police but in order to avoid untoward incidences it is better to inform the police.


"Brought dead cases": In such cases, if the cause of death is apparent and there are no reasonable grounds to suspect some medico-legal complications then it is not necessary to inform the police. If the cause of death cannot be ascertained in any case then it is desirable to send the body for postmortem examination preferably with the help of the police. It is advisable to suggest postmortem in the following circumstances: (i) whenever death is sudden, unexpected or unexplained, (ii) accidental deaths, which may be roadside, domestic or industrial, (iii) when precise cause of death is needed for insurance claim purposes etc., and (iv) as a help to arrive at final diagnosis.


Information to police shall preferably be in writing and the written acknowledgement should be obtained. If the information is telephonic, one must note down name, buckle number and designation of the police.


Can a Doctor be Arrested


Doctors have no immunity against arrest (as any other citizen of India) for the various criminal acts as per the provisions of IPC or CPC of India. Illegal organ trading, unlawful sex determination etc. are non-bailable offenses. However, the question is whether a doctor be arrested for:


(a) alleged medical negligence during day to day care of a patient,


(b) unexplained hospital deaths like SIDS etc.


(c) postoperative complication or failure of operation;


(d) not attending or refusing a patient (who was not already under his care) who becomes serious or dies and


(f) not attending a case of roadside accident.


Recently, the chairman of a hospital was arrested for not complying with the Supreme Court directives in a roadside accident. In this particular case, the patient died while being shifted to other hospital. The Supreme Court directives (criminal writ petition no. 270 of 1988) in a roadside accident include:


• The medical aid should be instantaneous. It is the duty of the registered medical practitioner to attend the injured and render medical aid, treatment without waiting for procedural formalities unless the injured person or guardian (in case of minor) desires otherwise.


• The effort to save the person and preserve the life should be top priority, not only of the doctor but also of the police officer or any other citizen who happens to notice such an accident.


• The professional obligation of protecting life extends to every doctor, whether at Government hospital or otherwise.


• The obligation being total, absolute and paramount, no statutory or procedural formalities can interfere in discharging this duty.


• Whenever better or specific assistance is required, it is the duty of treating doctor to see that the patient reaches the proper expert as early as possible.


• Non-compliance of these directives may invite prosecution under provisions of Motor Vehicle Act or IPC (7).


If FIR is lodged by patient or relatives then the police may arrest the doctor. Hence, better approach in cases where we feel that the patients or relatives may create nuisance will be as follows:


1. The doctor should lodge a FIR that a particular incidence has happened in my hospital.


2. A crisis management committee may be formed at each Taluka or District level. The committee shall include doctors, social workers, legal personalities, politicians, press reporters etc. The committee members may meet the police officers and request them for complete investigation of the incidence and to avoid prosecution until the guilt is proved. The committee can also request the press reporters not to give unnecessary publicity to such cases. The Government of Kerala (G.R. no. 3231/SS-B4/92/Home dated 20.09.1993) has issued the following instructions if there are any cases of criminal negligence against a private practitioner, doctor or private hospital. According to G.R., the investigating Deputy Superintendent of Police shall refer the case to a panel of Superintendent of Police, commissioner of Police, District Medical Officer or Principal of Medical College. Still if the views differ, the opinion of an apex body consisting of Director of Health Services and expert in that particular speciality may be taken. The affected doctor is also free to approach the apex body with appeals (8).


Legal Rights of an Arrested Person


The arrested person shall be communicated with the particulars of offence and the ground for arrest. If the offense is bailable, then the person should be informed and the arrangement for the bail may be made. If the police officer refuses to release such person on bail, he will be liable for damages for wrongful confinement. Sometimes a police officer may register an offense under Sec. 304 of IPC instead of 304-A in order to detain the accused doctor. In such cases officer may have to face serious consequences. The person shall not be subjected to more restraint than necessary to prevent his escape. If there are any offensive weapons belonging to the arrested person, these weapons may be seized. The arrested person must be produced before a magistrate having jurisdiction in that case. No police officer shall detain in custody an arrested person for more than 24 hours unless a special order from a magistrate is obtained(9).


Anticipatory Bail: In order to avoid frivolous accusations, there is provision of anticipatory bail. This may be granted as a protection in offences, which are non-bailable. It is direction to release applicant on bail, if there is arrest. Once granted it remains in force. Pre-requisites for anticipatory bail are: (i) there must be reasonable apprehension of arrest, (ii) the alleged offence must be non-bailable, and (iii) the registration of FIR is not necessary.


Procedure for Bail: The accused is required to execute his personal bond at the police station with or without surety. The surety may be a close relative, a friend or a neighbour, who is required to undertake to pay the said amount in case of absconding of the accused.


Do’s and Don’ts


• Inform police whenever necessary.


• Extend all possible co-operation to the police.


• Furnish copies of medical records to police, court or relatives whenever demanded. Consent of patient may be taken while providing information to police.


• Follow the legal procedures or provisions.


• Have a valid informed consent for the treatment (10).


• Preserve the documents, records especially in medico-legal, controversial or complicated cases.


• Insist for post-mortem examination if the cause of death cannot be ascertained.


• Involve medical associations, medico-legal cells, voluntary organizations whenever legal problem arises.


• Consult your lawyer before giving any reply.


• Don’t become panicky.


• Don't manipulate or tamper with the documents.


• Don’t do unlawful or unethical acts.


• Don’t issue false or bogus certificates. Certificate was issued on request is no defense.


• Don’t neglect the treatment while completing legal formalities especially in serious or emergency situation.

Ten Things You Need for a Successful Practice:

Ten Things You Need for a Successful Practice:

Every one of us involved in medical practice forms a certain Dos and Don’ts in his professional life. After working for 25 years, with some personal experiences, some rules told by the seniors and some by even juniors, I have come to formulate few set of laws of natural success. I have trialed & calculates mentally and physically with the success & failures of so many colleagues in last few years and feel that they will be definitely useful for most of us.


1. Regularity: It means attending the OPD timings as painted on our notice boards. Commitment to attend patients admitted in the hospitals & following the schedule of time of daily routine in the clinic along with accepting the home visit calls and observing the exact time we have committed. The appointment system for consulting the patient will be the highest achievement if one can follow it with the discipline.


2. Art of Conversation: It does not mean only to speak in very sweet language but to say proper things with a perfect & proper timing. It also means saying ‘NO’ when you do not want to say yes to so many requests like asking for a false medical bill, a false absentee certificate, attending some family function of a patient etc. It requires a great strength and art to say a sweet no to a request for keeping the bill balance (UDHAR).


3. Right time referrals: So many times, we GPs are blamed for not referring the patients at proper time during the progress of a life threatening condition. It is not a great achievement when you refer a patient dying condition, like Infarcts, shock, burns, head injuries etc. A successful GP scores over by recognisng a serious condition of an apparently simple looking complaint. It is true in diagnosing cancers, tumours, abdominal conditions etc.


4. Keeping patients at closed distance: In Munnabhai MBBS, a pyarki Zappi got very popular. The dean saying, ‘I treat the diseases not the patients and my hands do not shake!’ was criticized. However, in practice we should follow the dean with externally showing the façade of Munnabhai’s zappi. As professionals, we should not be too close to the patients so as they observe and criticize our professional work and at the same time; they should not feel that the doctor is very ‘Akhdoo’.


5. Updating scientific knowledge: I hope we need not stress this point to the GPA members. Nevertheless, it is a good habit of writing down the clinical difficulties, difficult cases faced in the practice and seeking their solutions, answers in books & journals, by internet, by discussing them with the specialists and seniors and off course by following the critical and unsolved mysteries in the hospitals and institutes. It is worth mentioning that updating the patient’s knowledge is also a great thing than happening it vice a versa.


6. Case papers & History maintenance: Our observation tells us that 8 out of 10 GPs do not maintain case records properly. Apart from medico legal problems, this record keeping guides us how regular the patient is in his follow up, what are his usual complaints and with which medicine he feels better. When he was investigated, what were his previous ailments, what are his long time prescriptions etc. are the things, which enlightens us by a mere look, even before the patient enters in the consulting room.


7. Accounts maintenance & financial planning: We never learn this practical aspect in the Medical College. A primary knowledge in accounts is must now a days. We should take help of a good C.A. about maintaining the books of accounts, keeping the bills and payment vouchers, investments made etc. Now a day hiding your income to save the taxes is not a good policy, but to show the full income, investing it properly and enjoying depreciations and tax deductions and paying the similar tax is a wise thing. There are so many avenues to invest with the financial planning; like real estate, mutual funds and shares, gold-silver like commodities, PPF, Govt. bonds, bank deposits and so many others. .They give you a great pleasure of tasting the sweet fruits of your success


8. Taxes & Duties: It is an utmost important thing for a good citizen to pay all the taxes. A successful doctor has to be a good citizen. These days there are several types of taxes & duties. The examples being Income Tax, Professional Tax, PMC Tax, Shop act registration, Biomedical waste payments etc. etc. All these are deductible from the income (except Income Tax), and you cannot avoid them. The taxmen are very sharp and their net is very elusive.


9. Healthy Habits: I think it is not necessary to stress, the significance of this virtue. Good diet, good rest, regular exercise, avoiding over indulgence in vices are the points of healthy living we keep on telling our patients. It is a worthwhile proposition we should also live by example.


10. Recreation & Hobbies: All professional should plan their leisure time during the active career and the time after they retire. We must retire early to have the charming side of the life. We must have some hobbies, some involvement in both the outdoor & indoor games, and a good circle of friends comprising not only medical but non-medical group, a happy link of relatives, habit of going on vacation every year to recharge your batteries.


The list may include so many things from person to person. The success is a relative thing. One should not compete with the success of others around you, but I feel to become successful we must compete with your own achievements. We must feel and desire to surpass our own achievements every day and to improve in the large store of our wealth.

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