eMedinewS Editorial

12:40 am Medicine

Guidelines for prosecuting medical professionals?

Dear Colleague

The Supreme Court of India in the Jacob Mathew case noted 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 304-A 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.

‘We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.

Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient.

A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.

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 who can normally be expected to give an impartial and unbiased opinion applying Bolam’s test to the facts collected in the investigation.

A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.”

Reference: Criminal Medical Negligence, Jacob Mathew’s Case 2005 AIR 3180 SC, Appeal (crl.) 144-145 of 2004, CJI R.C. Lahoti, Justice G.P. Mathur & P.K.Balasubramanya.

Take Home Messages

  1. State Medical councils have judicial powers of that of civil courts. (DMC has)
  2. Council court is a court.
  3. A patient will file a case against the doctor under CPA if he or she needs compensation.
  4. Most of the times he will approach the respective State Medical Council for medical negligence (criminal negligence).
  5. Supreme court has given a procedure for the same.
  6. The investigating officer and the private complainant most likely will not have knowledge of medical science.
  7. The unnecessary criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment.
  8. 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.
  9. There is a need for protecting doctors from frivolous or unjust prosecutions.
  10. Many complainants prefer recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
  11. A private complaint should not be entertained (also by state medical council) unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.
  12. The investigating officer should, before proceeding against the doctor accused of negligence/omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam’s test to the facts collected in the investigation.
  13. Investigating officer can refer for the same to state council or appoint an independent board.
  14. Suspension of license is a prosecution.

  15. Prosecution is allowed only in the case of a professional misconduct in the MCI act.
  16. Professional medical deficiency is not a professional misconduct in the MCI act.
  17. Professional misconduct has been defined in the MCI Act . (see part 2 ans part 3 tomorrow and day after tomorrow)

Dr KK Aggarwal
Padma Shri & Dr B C Roy Awardee and Chief Editor

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