REMEDIES FOR THE VICTIMS OF MEDICAL NEGLIGENCE: RESPONSES IN CRIMINAL LAW

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1 REMEDIES FOR THE VICTIMS OF MEDICAL NEGLIGENCE: RESPONSES IN CRIMINAL LAW Prof. (Dr.) Subhash Chandra Gupta* and Shikha Dimri** * Head and Dean,School of Law, HNB Garhwal University (A Central University) Pauri Garhwal, Uttarakhand **Assistant Professor, College of Legal Studies, University of Petroleum & Energy Studies, Dehradun & Research Scholar, Mewar University, Chittorgarh, Rajasthan, India Abstract-Medical profession is one of its kind wherein the parties despite all contractual relations engage in mutual trust and reliance. This situation is rapidly changing with consumerist interventions in the healthcare sector. Negligence by a medical professional can be far more fatal than an ordinary negligence. Apart from the consequences, medical intervention and negligence also touch upon the precincts of life and personal liberty. The modern legal developments are striving to keep pace with the fast moving healthcare sector. Medical negligence could always receive redress as a tort of negligence but the specific nature of medical negligence may justify penal remedies at times. This paper seeks to ascertain the specific considerations upon which the criminal liability for medical negligence is generally based. The paper also attempts to qualitatively figure out the distinctions between civil and criminal liability for medical negligence. For this the basic principles of the law of negligence are used and the relevant pronouncements of courts are analyzed. The relevant criminal law provisions are also referred and analyzed. The authors have observed and concluded that there cannot be objective distinctions established between civil and criminal negligence and it is always a judgment of facts. Keywords: criminal, liability, medical professional, negligence. Medical Professionals throughout the world occupy a respectable position among all professionals. The profession of medicine has always been beneficial to mankind in several ways. Therefore, this profession is considered to be a noble profession. By using his knowledge, skill and accuracy of judgment, doctor saves the lives of many people. Medical negligence means, negligence resulting from the failure on the part of the doctor to act in accordance with the medical standards in practice, which are followed by an ordinarily and reasonably competent medical professional. It was rightly observed : If a doctor holds himself out as possessing special skill and knowledge, and is consulted, as possessing such skill and knowledge, by or on behalf of the patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary, nor is it necessary that the service be rendered for reward. 1 Duty of medical practitioner arises from the fact that he does something to a human being which is likely to cause physical damage unless it is done with proper care and skill 2.

2 The origin of doctors duty of care is founded in normative ethics, various ethical codes, regulations and the Hippocratic oath itself, which dates back almost to the days when medical practice first emerged during the ancient period 3 and continued till Greek period when it was documented which included the Hippocratic Oath. The doctors duty of care continued to be recognized during Roman Era, when for the first time, Ulpianus, in his writings, recognized that the doctor s duty of care arises ex contractu as well as under the Lex Aquillia. 4 The Babylonian king Hammurabi introduced a law against the physicians whose patient loses an eye. The punishment for such malpractices was to cut the hand of the physician or surgeon. Even the Egyptian and Roman laws had such similar provisions for medical malpractices causing death or serious injuries to the patient 5. In ancient Indian society, there were certain principles of practice imposing certain restriction as to qualifications for the teachers 6 of medicine and physicians, as is fairly evident from numerous passages in Sushruta Samhita and Charaka Samhita. 7 physician had to inform the administrative authority about treatment of patient they had undertaken. If any physician undertook any person without informing the administrative authority called gopa or sthanika, he was penalized for that. If the wounded person went to a physician but did not disclose his whereabouts, the said administrative authority was to be informed about that, failing which penalty was imposed on the guilty physician. Therefore it was duty of the physician to inform the administrative officer about treatment of injury or an emergency case. Basis of Medical Liability under different laws: Prior to the Consumer Protection Act of 1986, the legal position of medical negligence cases was more or less the same as that of general negligence cases. There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly co-extensive and essentially differ in their context and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrong doer in cases like arson, accident etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. According to Charaka Samhita, a physician must have mastery over scriptures, experience, purity and cleverness. After undergoing a specified period of training and studying the science of medicine and its practical application a scholar could become a physician but before starting his practice he was required to get permission of the king before commencing the practice. A person was Under Tort law to establish negligence on unqualified for the practice without the part of the defendant, the claimant practical training. Practical training was to must show: be carried on various objects for the purpose of learning so that the scholar did not experiment on human bodies, apart from qualifications of Physicians; the ancient literature speaks about professional ethics and physicians duties and their liabilities for causing harm to the patients What is the standard of care; and In Kautilya s Arthashastra, 9 it is stated that

3 2. On the facts of the case, that the defendant s conduct fell below that standard. 10 In the field of medical negligence, in the Bolam case 11 the principle laid down was: A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. It is recognised as almost determinative of both the above points; moreover, as a test it is not restricted to doctors but is of general application to any branch of the medical profession. 12 Want of skill is reckoned with as fault in English as well as Indian Laws. 13 In cases of Medical negligence burden of proof lies on plaintiff and he has to prove following things 14 : i) The medical practitioner is under duty to take reasonable care towards the patient to avoid the damage complained of or not to cause damage to the patient by failure to use reasonable care. ii) That there is breach of duty on the part of doctor & iii) That the breach of duty is the cause of damage complained of and such damage is reasonably foreseeable. Duty to take care- The first essential to constitute Negligence is that there should be a duty of care owed by the defendant to the plaintiff. This duty must be a legal duty. A moral, religious or social duty it is not a legal duty, unless law sanctions it. There is no rule of law determining such duties; it depends on each case whether a duty exists or not. To explain further the duty of care it is worthwhile to quote Lord Wright 15 as follows: All that is necessary as a step to establish the tort of actionable negligence is to define the precise relationship from which the duty to take care is to be deduced. It is, however, essential in English law that the duty should be established; the mere fact that the man is injured by another s act gives in itself no cause of action, if the act is deliberate. The party injured will have no claim in law even though the injury is intentional, so long as the other party is merely exercising a legal right; if the act involves lack of due care, again no case of actionable negligence will arise unless the duty to be careful exists. Whenever a person approaches another trusting him to possess certain skill, or special knowledge on a given problem and depends on him for service and dispensation of that skill, the second party is under an implied legal duty to exercise due diligence as is expected to act at least in such a manner as is expected in the ordinary course from his contemporaries. 16 Degree of skill expected of a medical practitioner was defined in R v Van der Merwe 17 as Negligence has a somewhat special application in the case of a member of a skilled profession such as doctor, because a man who practices a profession which require skill holds himself out as possessing the necessary skill and he undertakes to perform the services required from him with reasonable skill and ability. That is what is expected of him and that is what he undertakes, and therefore he is expected to possess a degree of skill which corresponds to the ordinary level of skill in the profession to which he belongs. As to what constitutes reasonableness Roper J, remarks: In deciding what is reasonable regard must be had to the general level of skill and diligence possessed and exercised by the members of the branch of the profession to which the practitioner belongs.

4 The standard is the reasonable care, skill and diligence which are ordinarily exercised in the profession generally. 18 Breach of Duty: The test for breach of duty is the reasonable man test. In effect, this test is a device which allows judges to control the outcome of cases, but notionally at least, the standard of care is objective. Having established that the defendant owes the plaintiff a duty of care, it will next be necessary to determine whether the defendant has in fact breached that duty. The defendant will have fulfilled his duty if he has behaved in accordance with the standards of the reasonable man. Everyone is judged by the same standard, the only exceptions being skilled defendants, children, the insane and physically ill. The question whether a person has fulfilled a particular duty is a question of fact. It was held by the House of Lords in Qualcast (Wolverhampton) Ltd v Haynes 19 that reasonableness will depend on the circumstances of the case and it is a mistake to altogether rely on previous cases as precedents for what constitutes negligence. So, in Worsfold v Howe 20, the trial judge held that a driver who had edged out from a side road and across stationary tankers before colliding with a motorcyclist was negligent as the Court of Appeal had ruled that similar actions were negligent in a previous case. The Court of Appeal held that the previous case laid down no legal principle, that such decisions were to be treated as questions of fact. activity. Accordingly, rules of law arise so that a person should not be responsible ad infinitum, for all the consequences of his wrongful conduct. Bacon in 1630 rendered a maxim "In jure non remota causa sed proxima spectatur" for limiting the liability of the negligent actor. By this maxim he meant, "it were infinite for law to consider the causes of causes, and their impulsions one of another; therefore it contendeth itself with the immediate cause, and judgeth of acts by that without looking to any further degree." 21 Criminal Liability of the Medical Man Negligence generally incurs civil liability. It is only in cases of very serious negligence that the criminal liability arises. These are the cases of gross negligence or criminal negligence. For criminal liability to arise there must be a letter of the law covering the act as an offence. According to Section 304A of the Indian Penal Code, causing death by doing a rash and negligent act is provided as founding criminal liability and it attracts imprisonment for up to two years, or a fine, or both. The burden to collect evidence of criminal liability is upon the complainant. For these reasons, an act that is seen as negligent in a civil court need not necessarily be culpable negligence in the criminal court. The extent of liability in criminal law depends on the amount and degree of negligence. In Juggan Khan v. State of MP 22 it was observed: Consequential Damage: Negligence is not actionable per se. The plaintiff has to It is true that care should be taken before further prove that due to breach of duty by imputing criminal negligence in a the defendant, he suffered some damage or professional man acting in the course of loss or injury. The plaintiff has to further his profession... show that the damage is not too remote. If the damage is too remote the defendant is not liable. Natural justice demands that a person should be held responsible for all Lord Atkin in Andrews v. Director of the consequences of his negligent act. But Public Prosecution' observed: 'Simple lack this kind of justice would, in ultimate of care such as will constitute civil liability analysis, unreasonably hamper human

5 is not enough. For purposes of criminal law, there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied "reckless" most nearly covers the case. The Indian Penal Code, in chapter 14 th provides certain provisions which can cover deliberate wrongs against public health and safety. It covers a negligent act likely to spread infection of disease dangerous to life. The provision states that whoever unlawfully or negligently does any act which is and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. 24 Another provision in the same chapter covers any malignant act likely to spread infection of disease dangerous to life. This provision states that whoever malignantly does, any act which is, and which he knows or has reason to believe to be likely to spread infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 25 It is already clear that apart from these provisions, all other provisions which constitute an offence by negligent, are applicable on negligence by doctors also. so high as can be described as gross negligence or recklessness. It is not merely lack of necessary care, attention and skill. The decision of the House of Lords in R. v. Adomako 27 relied upon on behalf of the doctor elucidates the said legal position and contains following observations: "Thus a doctor cannot be held criminally responsible for patient's death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State." In the present case 28, the patient was a young man with no history of any heart ailment. The operation to be performed for nasal deformity was not so complicated or serious. He was not accompanied even by his wife during the operation. From the medical opinions produced by the prosecution, the cause of death is stated to be not introducing a cuffed endotracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage. This act attributed to the doctor, even if accepted to be true, can be described as negligent act as there was lack of due care and precaution. For this act of negligence he may be liable in tort but his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable. Differentiating between civil and criminal liability of a doctor causing death of his patient the court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard should be proof recklessness and deliberate wrong doing i.e. a higher degree of morally blameworthy conduct. More than the law and its provisions, criminal liability for medical negligence is subject to understanding how to determine whether an act of negligence gives rise to criminal liability or not. While attempting to establish some objective criteria for fixing criminal liability on a doctor or surgeon the Supreme Court in Dr. Suresh The Privy Council, in John Oni Akerele v. Gupta v. Government of N.C.T. of Delhi The King 29, dealt with a case where a and Another 26 asserted that the standard of doctor was accused of manslaughter by negligence required to be proved should be reckless and negligent act and he was

6 convicted. His conviction was set aside by the House of Lords and it was held thus: (i) That a doctor is not criminally responsible for a patient's death unless his negligence or incompetence went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State.; (ii) That the degree of negligence required is that it should be gross, and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation... There is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime. (iii) It is impossible to define culpable or criminal negligence, and it is not possible to make the distinction between actionable negligence and criminal negligence intelligible, except by means of illustrations drawn from actual judicial opinion. The most favorable view of the conduct of an accused medical man has to be taken, for it would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck. The court in Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra 30, while dealing with Section 304A of IPC, the following statement of law by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap 31, was cited with approval: To impose criminal liability under Section 304A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non. To understand the point more clearly, it is highly expedient to refer to the judgment in Dr. Laxman Balkrishna Joshi 32 wherein the court observed that the practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. The doctor no doubt has discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. In this case, the death of patient was caused due to shock resulting from reduction of the fracture attempted by doctor without taking the elementary caution of giving anaesthetic to the patient. The doctor was held guilty of negligence and liable for damages in civil law. Here it appears needed to add that criminal negligence or liability under criminal law was not an issue in this case and hence was not considered. In a significant ruling in R. v. Lawrence 33 Lord Diplock spoke for a Bench of five judges and the other judges agreed with him. In this case the approach in R. v. Caldwell 34 was reiterated and dealt with the concept of recklessness as constituting mens rea in criminal law. The Court awarded against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being subjective or objective, and said Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible.

7 It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognized that there was such risk, he nevertheless goes on to do it. Discussing the criterion and contours of medical negligence, the Supreme Court, in Kusum Sharma and Another v. Batra Hospital and Medical Research Centre and Another 35, elaborated on how liability for medical negligence is supposed to be concluded upon. The Court asserted that doctors performing their duties and exercising an ordinary degree of professional skill and competence cannot be held guilty of negligence. Hon ble Court pronounced that while deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view: (I) Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would never do. (II) Negligence is an essential ingredient of the offence. Therefore, negligence so established by the prosecution must be culpable or gross and not negligence merely based upon an error of judgment. (III) The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. (IV) A medical practitioner would be liable only where his conduct falls below that of the standards of a reasonably competent practitioner in his field. (V) In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of another professional doctor. (VI) The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. (VII) Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. (VIII) It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck. (IX) It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension. (X) The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals and hospitals; particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. (XI) The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.

8 The hon ble court also found it expedient to add- The test whether a surgeon has been negligent is whether he has failed to measure up in any respect, whether in clinical judgment or otherwise, to the standard of the ordinary skilled surgeon exercising and professing to have the special skill of a surgeon Also in Chin Keow v. Government of Malaysia and Another 36, Privy Council had taken similar view. In this case the Privy Council had cited the words of McNair J in Bolam v. Friern Hospital Management Committee: where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. In the Jacob Mathew case 37 Supreme Court discussed the differences between civil and criminal liability of a doctor for medical negligence. The Court observed and accepted that the cases of doctors (surgeons and physicians) 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 304A 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. Conclusion The law of medical negligence has grown to a fair extent and this development has now started facing the concern for safety of the doctors. The Indian Penal Code in the provisions of general defenses, extends protection to doctors also for the consented risks in treatment but that may not always be sufficient to protect the doctors from all possibilities of action against them. Though the doctors are generally cautiously enough to record consent of the patients and their relatives before moving for the treatment but in cases of emergency the law and the medical ethics both demand that the doctor must undertake treatment immediately without looking for formalities. The current societal development is prone to risk for both the parties; ie the doctor and the patient. The patient s rights are already established and further developing but the doctors protection still needs to be strengthened so as to maintain a proper balance between the conflicting interests. This balance is needed more delicately in the instances when a doctor is subject to criminal liability. However, the judicial opinion regarding criminal liability of doctors has so far been cautious of such a balance but the legislative developments are still awaited. Reference : 1. R v Bateman (1925) 94 LJKB Philips India Ltd v Kunju Punnu AIR 1975 Bom See Cronje Retief(2000) 25;Sanbar et al (1995) 6;Rhodes(1985) See Ammundsen(1973) 17-25; Carstens and Pearmain(2007) 6 11ff 5. Tapas Kumar Koley,Medical Negligence and Law in India, Oxford Publication 6. Charaka Samhita(3.8)

9 7. K.P.S.Mahalwar, Medical Negligence and the Law, Deep and Deep Publication,pg Ibid 9. Chikitsakah pracchannavranpratikarayitram cha grahaswami cha nivedaya (gopatha nivedaya) gopasthanikayor mucyeta nyatha tulyadosas syat which means, any physicianwho undertakes in secret the treatment of patient from wounds or excess of wholesome food or drink, as well as the master of the house, are only innocent when they report to gopa or Sthanika;otherwise both of them are equally guilty with the sufferer,( ). Shastri, Dr. R.S:Kautilyam Arthasastram, Mysore(1924). 10. Malcolm Khan, Michelle Robson & Kristina Swift (2002).(2 nd ed.).london,sydney,cavendish Publishing Limited,(p.155). 11. Bolam v Friern HMC [1957] 1 WLR 582, pp see Gold v Haringey HA [1987] 2 All ER 888). 13. Clark and Lindsell on Torts(1961) P Supra Note Grant v Australian Knitting Mills Ltd.[1936] AC85(103);154 LT18;79 Sol Jo Anoop K Kaushal,Medical Negligence & Legal Remedies, Universal Law Publishing Co Pvt Ltd.pg (2) PH H 124(W) 18. R v Van der Merwe 1953 (2) PH H 124(W) 19. [1959] AC 748 (HL) 20. [1980] 1 All ER Maxims of the Law, 1630 Reg 1; See also Mclaughlin, (192526) 30 Harv LR Juggan Khan v. State of M.P., 1965 SC 831: (1965) I SCR 14: (1965) I Cri L.J (1937) 2All ER Section 269 of Indian Penal Code, Section 270 of Indian Penal Code, Dr. Suresh Gupta v. Government of NCT of Delhi and Another, MANU/SC/0579/ R. v. Adomako, (1994) WLR 288 House of Lords 28. Dr Suresh Gupta v. Government of NCT of Delhi and Another, MANU/SC/0579/ John Oni Akerele v. The King, AIR 1943 PC Kurban Hussein Muhammedali Rangawalla v. State of Maharashtra, MANU/SC/0093/1964 & (1965) 2 SCR Emperor v. Omkar Ram Pratap, (1902) 4 Bom LR AIR 1969 SC (1981) 1 All ER 974 (HL) 34. (1981) 1 All ER 961 (HL) 35. Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Another, (2010) 3 SCC (1967) WLR Jacob Mathew Vs. State of Punjab and Another MANU/SC/0457/2005

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