"There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws." Ayn Rand

In the field of medicine, since you can't rule over honest doctors, deliberately or by default, advertently or inadvertently, the judiciary, makes such extensive rules and laws for practice of medicine that no doctor can navigate without contravening any one of them. Ill defined and loose textured they can be interpreted per one's personal perception. It was not without reason that Charles Dickens declared that "the law is an ass". The law is an ass is a derisive expression said when the rigid application of the letter of the law is seen to be contrary to common sense.

Take Sec 106 of the newly enacted Bhartiya Nyaya Sanchita 2023:
Whoever causes 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 five years, and shall also be liable to fine; and if such act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.

By including 'act done by a registered medical practitioner while performing medical procedure' to be an act of rash or negligent act amounting to a crime of homicide, should the procedure cause death of the patient, provides a blanket provision to accuse every physician whose medical procedure has caused death. Since there cannot be a physician whose patient has not died while being treated, all medical practitioners would be accused criminals, till after 5 to10 years of legal torture he/she is exonerated. In the celebrated Jacob Mathew case decided in favour of the doctors, it took almost 10 years of litigation through Magistrates Court, to Sessions Court to High Court to SC.

Since such deaths are common in conduct of delivery of a patient, obstetricians would be the most frequent accused. And to add insult to injury, the complainant has an easy and lucrative option of filing a case for civil liability, claiming crores for the young life lost.

Classical examples, of the aforesaid in practice of medicine, are laws declared, and stringent legal boundaries imposed by the medical negligence case-judgments, especially in the summary trial under the CP Act. As a result, there is nothing in the vast and highly complex field of medical management of a disease episode that cannot be declared negligent, when there are adverse consequences. Undefined or ill-defined legal criteria to judge medical negligence, when subject to personal perception, are virtually improvised explosive devices (IED) in the field of practice of medicine.

Negligence, more so the medical negligence, is not defined in any statute. Supreme Court in Jacob Mathew case adopted the definition per Ratan Lan Dhiraj Lal, which is as under:

" Negligence as a tort: The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well-stated in the Law of Torts, Ratanlal & Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P. Singh).

It is stated "Negligence is the breach of a duty caused by the 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 not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.

The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort."

The opening sentence "The jurisprudential concept of negligence defies any precise definition", says it all. The jurisprudential concept is imprecise. Subject to subjective perceptions "Eminent jurists and leading judgments have assigned various meanings to negligence", states the definition. Defined as 'breach of duty', the duty is not defined. Defining duty as "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 not do", are equally imprecise, where 'reasonable man', 'ordinarily regulate the conduct of human affairs', as ingredient or criteria, only adds to the subjective lay interpretation.

Bolam's Rule evolved for it is too subjective to be applied to evidence based, objective treatment provided by a qualified and trained physician to a patient. It was unfathomable, medically, when the SC applied Bolam's Rule, not to infer negligence, but to distinguish 'civil negligence' from 'criminal negligence', that too in a case where a terminal cancer patient, admitted to a hospital for end-stage hospice care, for not attempting to resuscitate the patient. (Jacob Mathew) A physician of ordinary prudence knows that such patients are under DNR (Do Not Resuscitate) protocol.

The stated three constituents of negligence were adopted and approved by the SC for adjudication of Medical Negligence cases.

"A legal duty to exercise due care" became the sheet anchor. 'Legal Duty' was well defined being bounden obligation of a licensed medical professional making himself available for treatment. But 'due care' is not defined. 'Care due' here has two contexts, 'care' due to the patient and 'due care' meaning proper care. Care for a medical professional means assessing and fulfilling the patient's medical needs by diagnosis and treatment. This is a question of fact, objectively verifiable from the patient record.

For 'due' or proper care, legal doctrines of Consent, Competence and Caution were established, none of which were amenable to precise definition in the context of medical management of a disease episode. Consent, was further qualified to be an 'informed' consent with its further qualifications of 'complete disclosure', 'understanding' and 'voluntary'. As a legal concept it was excellent and could not be faulted. But its interpretation in the hands of lay judiciary created havoc.

For instance, in a case under CPA, where over 15 consents in patient's own vernacular were presented to the court, the judgment was ' it was your legal duty to treat the patient, you needed no consent for every medical act', 'obviously the consents were taken to protect the doctor and not the patient' and 'in any case the consent is not a license to harm and kill'. It was a complicated case of Hirschsprung's disease, treated by a qualified super specialist Pediatric Surgeon. To the learned judge, however, it was a "simple case of constipation, easily treated in Ayurveda". For refractory severe anemia in the child, the judge pronounced "anemia is so common in our country and treated with iron and folic acid, why did you give 20 blood transfusions ".

'Competence' medically means possession of knowledge and skill. Necessary qualification and license to practice in the professed field of medicine is proof of competence and is easily verifiable. Competence to be acceptable, it is further stipulated that it should show that the 'skill was duly used' and the surgeon exercised 'due caution'.

Conceptually excellent propositions. However, subject to subjective and personal perception of a lay judicial officer it has caused great mischief to the practitioners of modern medicine. For instance, in a complicated case of uterine cancer, where Laparoscopic Assisted Vaginal Hysterectomy with Salpingio-oopherectomy was done jointly by three qualified specialists - Gynecologist, Oncosurgeon (cancer surgeon) and Urologist, the judgment was, "obviously they did not apply their skill competently, otherwise why they could not prevent a known risk of injury to the Ureter".

The learned judge then detailed his personal knowledge of the surgery and the surgical anatomy of ureters, on the basis of which he had judged the case, to state, "the ureters are two 20 cm long thin tubes that connect kidney to the urinary bladder below, the ureter was adhered to the uterus, they should have first separated it before removing the uterus". The three super specialist surgeons, according to the learned judge, did not have even this basic knowledge.

Similarly in V Krishna Rao vs Nikihil Super specialty Hospital, the medical record of the patient explicitly evidenced that it was a complicated case of Cerebral Malaria, complicated with super added bacterial infection, ARDS (Acute respiratory distress syndrome) and multiple organ dysfunction. The learned judges, per their personal perception and interpretation, found the case to be a case of 'simple malaria' wrongly treated for typhoid that killed the patient.

They applied the doctrine of res ipsa loquitur to decide the case, specifically asserting that in such cases no independent medical opinion is needed or should be insisted upon. This is how the lofty doctrine of competence, care and caution was applied. The immense harm that the judgment caused substantiates Ayn Rand: "One declares so many things to be a crime that it becomes impossible for men to live without breaking laws,"

Written By: Dr. Shri Gopal Kabra
Mobile: 8003516198 email: [email protected]