Criminal Liability of Medical Professionals | Expert Homeopathy


Criminal Liability

Abstract
Doctors never intend to kill their patients, and thus do not possess the guilty state of mind, required to be proved for criminal liability. However, if a doctor's conduct can be proved as 'gross negligence' or 'recklessness', then mens rea shall be presumed, and the doctor will be held liable for criminal negligence.

If a patient dies due to 'gross' negligence of the doctor, then the latter is liable to be punished under Sec 304 A of the Indian Penal Code (causing death by a rash or negligent act). Supreme Court of India held that, the degree of negligence required to be proved against a doctor in case of criminal negligence (especially u/s 304 A IPC) should be so high that it can be described as 'gross negligence' or 'recklessness', not merely lack of necessary care.

The Supreme Court distinguished between negligence, rashness, and recklessness. A negligent person is one who inadvertently positive duty. A rash person knows the consequences, but he foolishly assumes that they will not be able to do so. A reckless person knows that the consequences do not matter whether the action comes from him or not. Any misconduct and willful misconduct should not be the subject of a criminal offense.

Thus, a physician cannot be held liable for the death of a patient unless it is shown that he was negligent or incompetent, for the negligence and safety of his patient to the extent that it became a crime against the State.

Certain provisions of Indian Penal Code (sec 87, 88, 89 and 92 IPC) provide immunity against criminal prosecutions to the doctor who acts in good faith and for the patient's benefit. However, such immunity is available if the doctor acted in good faith and for the patient's benefit. If a doctor who consciously or knowingly did not use sterilized equipment for an operation cannot be said to have acted in good faith.



Tips: Prosecution for Criminal Rashness or Criminal Negligence
In Jacob Mathew's case, the Supreme Court of India laid down certain guidelines for the future which should govern the prosecution of doctors for offenses of which criminal rashness or criminal negligence is an ingredient.

1] A private complaint will not be considered unless the plaintiff has presented the first evidence in Court in the form of an honest opinion given by another competent physician to support a case of haste or negligence on the part of a suspected physician.


2] 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, which can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation.

3]A doctor accused of rashness or negligence, may not be arrested in a routine manner. Unless his arrest is necessary for further investigation or collection of evidence or unless the investigating officer feels satisfied that the doctor objecting will not do so, available to face prosecution unless arrested, detention may be withheld.



Conclusion
Medical science is not an exact science. Circumstances do occur when, in spite of providing due care and diligence, error in judgment occurs and the patient gets harmed. In such cases, it is very important to ensure that the doctor-patient relationship is not affected. Physicians should be aware that providing the best possible care is not enough, as patients may still be dissatisfied. Proper patient counseling and shared decision-making is a matter of an hour. In today’s world of consumerism, suspicion is a common response to dissatisfaction associated with acquired health care. If a patient blames negligence against a physician in a court of law, there is a pre-existing bias against a doctor. When the outcome of the standard followed, but the doctor is already known, evaluation of the standard followed is subject to biased opinion (outcome bias). Similarly, a hindsight bias may affect the medical expert evaluating the medical negligence, who may falsely believe that, he could have predicted the outcome in advance and would have acted differently to prevent it. In such a situation, it is extremely important for health professionals to understand the basic principles that are used to diagnose a complex issue of medical negligence.


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