A patient provided regular treatment by a qualified and licensed practitioner, by a team of medical personnel in a hospitalized situation, after due consent, should be excluded from the purview Sec. 304A.

A criminal complaint for causing death by medical negligence is lodged under Sec 304 A IPC

The section states:
304A. Causing death by negligence:
Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Intentional killing, culpable homicide, is excluded from the purview of the section. It is unintentional death by rash and negligent act that constitutes a crime under this section.

Rash and negligent act is easy to conceptualize in ordinary situation as there cannot be any justification for causing injury that results into death of a person.

However, death by medical negligence is on different pedestal as it is inherent in the medical treatment to cause bodily injury every act of treatment intervention is an injury inflicted on the body of the patient. But for the consent, implied or express, every medical intervention would, technically, constitute an assault.

Prima facie presumption of criminal mindset to cause injury that results into death by duly licensed treating physician/s and other medical personnel, by the interventional acts done in hospitalized situation, openly and transparently, is unjustified to initiate criminal negligence proceedings against the doctor. I submit, no regular medical treatment provided in normal situation, can be to commit a crime. Criminal medical treatment is an incongruous concept.

Consider in this context the lead Jacob Mathew case in which the alleged non-availability of oxygen cylinder in a terminal cancer case, under hospitalized hospice care, when the patient finally arrested, to be accepted as an act of criminal negligence for, prosecution under 304A IPC. Medically no pure oxygen is needed to resuscitate anarrested patient CPR is done with room air.

However, no CPR was indicated in this terminal (beyond treatment) cancer patient on hospice care. Now, what is negligence, let alone criminal negligence in this case? The Bench had all the sympathy for poor doctors, who, for almost a decade faced criminal prosecution at the hands of magistrate, sessions and high court.

Consider another, long lasting, most tortuous and torturous case of Dr. P BDesai the well known most experienced cancer surgeon of Mumbai. This too was a case of terminal cancer with wide spread metastasis in the abdomen. Exploratorylaparotomy was done to open the abdomen and explore the possibility to surgically prevent bleeding from the involved uterus.

On exploration the pelvis was found to be full of cancer (frozen pelvis) rendering any intervention unfeasible. Apprised of the facts Dr. Desai who was operating in adjacent OT, advised to close the abdomen. Post operatively the accumulating fluid in the peritoneum resulted in non closure of a suture and persistent peritoneal fistula till she died at home after almost a year.

The entire treatment including surgery was entrusted to the qualified cancer surgeon who had been treating the patient and who had admitted the patient under Dr Desai.

Nothing in the surgical management was challenged per se. The allegation was that though technically bound to treat the patient, he himself did not operate onthe patient or come to look up the case when frozen pelvis was reported to him. What was criminal in the alleged acts of Dr. Desai? What was the prima facie evidence of criminal mindset in this case?

The Three Judge Bench in Jacob Mathew case was acutely concerned of the harassment caused to honest medical professionals by such frivolous criminal medical negligence complaints under IPC Se 304A. To prevent the same the Hon\'ble Bench laid down law and issued guidelines for filing and registering a criminal medical complaint.

Guidelines by Court for prosecuting medical professionals for offences of which criminal rashness or criminal negligence is an ingredient:
The person accused cannot always be supposed to have knowledge of medical science to determine whether the act amounts to a rash or negligent act within section 304-A IPC. He has to seek bail to escape arrest, which may or may not be granted to him. In the end, he may be acquitted, but any standards cannot compensate for the loss which he has suffered in his reputation. There is a need to protect doctors from frivolous or unjust prosecutions in the interest of the entire society.

 

• A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court as a credible opinion given by another competent doctor to support the charge of rashness or negligence by the accused doctor.
   
• The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, get 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 unbiased opinion applying the Bolam test to the facts collected in the investigation.

Now, a medical expert may, on retrospective review of a death file, comment on the existence of rashness or negligence but certainly not about its criminal nature by applying non-medical Bolam test. The safety guideline is, I respectfully submit, impractical for the purpose of complaint under IPC 304 A.

Following the principle laid down by the Three Judge Bench in Jacob Mathew, a Two Judge Bench of the Hon\'ble Supreme Court, in Martin D\'Souza, extended the benefit of it to civil medical negligence complaints under CPA Act. This provides some protection against filing of frivolous medical negligence complaints.

The medical fraternity should approach and persuade Supreme Court and the Law Makers to decriminalize and exclude medical negligence from the purview of IPC 304 A.

Act of Criminal Negligence causing death of a person is an offence independent of death caused by an act of medical treatment.

Medical negligence cases should be adjudicated under Sec 88 and other related sections of IPC.

Written By:  Dr.S.G.Kabra - MBBS, LLB, MSc, MS (Anatomy), MS(Gen.Surgery)
15, Vijay Nagar,D-bock, Malviya Nagar, Jaipur-302017 Mobile: 8003516198