The dawn of third millennium has seen many ups and downs in human relations. There have been many turbulent changes in the society. This has not spared even doctor-patient relationship. The rapid changes in the medical field have strained the age-old good relations between the patient and the treating physician or surgeon.The distrust between the medical fraternity and the public is increasing hence there is need to bridge the "existing gap between the doctor-patient relationship". In various kinds of medical treatment and surgical operation, likelihood of an accident or misfortune leading to death can't be ruled out. A patient willingly takes such a risk. This is part of doctor-patient relationship and mutual trust between them. There is need to improve accessibility and affordability of quality health services. There is also a lack of health education among the masses.

Criminal liability for doctors is a grey area. Criminal law is applicable to all individuals and doctors are no exception to it. As far as medical practice is concerned patients or relatives usually don't approach the police. But now-a-days this scenario is also changing. In last few decades as doctor patient relationship has deteriorated, the complaints against doctors have increased(1). According to the provisions of Indian Penal Code 1860 (IPC) any act of commission or omission is not a crime unless it is accompanied by a guilty mind (MENS REA). The acts are not punishable only because it led to some mischievous results unless associated with intention or mental attitude of the person. Most of the times doctors treatment is in good faith, with the consent of the patient and hence most of the provisions of IPC are not applicable to the doctors unless or until there is rashness or gross negligence. The following Sections of IPC are related to medical profession(2):

Sec. 29 - Deals with documents

Sec. 52 - Describes "Good Faith"

Sec. 80 - Accident in doing lawful act

Sec. 88 - Act not intended to cause death, one by consent in good faith for person's benefit

Sec. 90 - Related to consent

Sec. 176 - Failure to inform police whenever essential

Sec. 269-271 - Related to spread of infectious disease & disobedience of a quarantine rule

Sec. 272-273 - Related to adulteration of food & drinks

Sec. 274-276 - Related to adulteration of drugs

Sec. 304-A - Deals with death caused by a negligent act

Sec. 306-309 - Are related with abetment of suicides

Sec. 312-314 - Related to causing miscarriage, abortion and hiding such facts

Sec. 315-316 - Deals with act to prevent child being born alive or to cause it to die after birth

Sec. 319-322 - Are related to causing hurt, grievous hurt, loss of vision, loss of hearing or disfigurement

Sec. 336-338 - Deals with causing hurt by rash or negligent act

Sec. 340-342 - Are related to wrongful confinement

Sec. 491 - Is related to breech of contract

Sec. 499 - Is related to defamation

Section 304 and 304-A

There is lot of discrepancy while applying these sections in cases of professional negligence by doctors. Most of the times the police authorities register the cases of professional negligence deaths under Sec. 304 of IPC. According to this Section the offence is non-bailable. This causes lot of hardship, bad reputation and mental agony to the doctors. In fact the police should register the cases of deaths due to medical negligence under Sec. 304-A of IPC, in which the offence is bailable and the doctor can be released on bail. This judgement has been passed by Bombay High Court in Criminal Revision application no. 282 of 1996 (Dr. Mrs. Mrudula S. Deshpande vs State of Maharashtra) dated 28th November 1998(3). The basic difference is that in Sec. 304 there is intentional act of negligence while in 304-A the act is never done with the intention to cause death.

Grievous hurt

Sec. 319-322 of IPC are related to causing grievous hurt for example loss of limbs, loss of vision, loss of hearing or disfigurement etc. Sec. 336-338 deal with causing grievous hurt by rash or negligent act.

Examples:
(1) While giving IV fluids suppose there is leakage of fluid in surrounding tissue resulting in spasm of vessels and subsequent necrosis of limbs.
(2) A surgical procedure is done on eye, limbs, face etc. without adequate aseptic precautions resulting in local infection. This may lead to loss of eyes, limb or disfigurement of face.
(3) An unqualified doctor performing surgical procedure which results in permanent damage to eyes, limbs, hearing etc.

Wrongful confinement (Sec. 340-342 of IPC)

A patient cannot be detained on the grounds of non-payment of hospital charges. This may constitute the offense of wrongful confinement under Sec. 340-342 of IPC. Doctors can take advance or fee from the patient before starting the treatment.

If a police officer is keeping the doctor in detention, in cases of bailable offenses, he is liable for the offense of wrongful confinement under these Sections of IPC.

Definitions

Crime or offence means any act or ommission which is contrary to any law or statute for the time being in force.

Summons is the process of court asking the opposite party to appear and answer the allegation preferred by the party who has brought action.

Warrant means an order issued by the court, magistrate or a competent judicial authority, directing a police officer to make arrest, seize or search or to do any other work incidental to administration of justice.

A Warrant case is related to an offence punishable with death, life imprisonment or imprisonment for more than two years. Example: If a doctor helps a pregnant woman in getting rid of the child or to cause its death after its birth.

Cases other than warrant cases are Summons cases. If a doctor acts negligently by using infected syringe or instrument resulting in an infection to an uninfected patient exemplifies a Summons case.

Cognizable offences are those in which a police officer may arrest without warrant, according of Schedule I of Criminal Procedure Code (CPC).

Non-cognizable offences are those in which a police officer can't arrest without a warrant, e.g. a doctor knowingly disobeying a quarantine rule is liable to be punished with imprisonment upto 6 months or fine.

Bailable Offencesare those in which bail can be granted by any law for the time being in force. In such cases bail is matter of right. The court can't refuse bail and the police has no right to keep the doctor in custody. If any police officer puts a doctor in detention in such cases, he is liable for the offense of wrongful confinement under Sec. 340-342 of IPC(4).

Non-Bailable offences are offences other than the bailable or an offence in which bail can't be granted. These are the serious offences in which a person may be convicted and imprisoned for term extending more than ten years. For example, offences under transplantation of Human Organ Act 1994.

Presumption of innocence: Law presumes that a person is innocent till his guilt is proved. The onus of proof is on prosecution(5).

Mistake of law: "Ignorentia juris non excusat, means ignorance of law or mistake of law (existence or mistaken understanding) is not excusable. Erroneous or wrong conclusion of law is not a valid defense. For example, if a doctor carries out prenatal test intended to abort a female fetus, can't avoid prosecution by saying that I was unaware of any law which punishes such act.

Mistake of fact is a situation where a person not intending to do unlawful act, does so because of wrong conclusion or understanding of fact. The guilty mind was never there while doing the act. The person may not be held responsible in such cases.

Res Judicata:This doctrine of law means "the things have been decided". According to this principle, once the case is completed between two parties, it cannot be tried again between the same parties. Suppose a patient sues a hospital for any wrong, damages or malpractice and the things are decided, he cannot subsequently sue the doctor again separately for the same negligence.

Res Ipsa Loquitur is a situation of gross negligence or rashness. The things are so obvious that they "speak for themselves". Most of the time there is no need for any proof of negligence in such cases. Common examples include giving blood transfusion to wrong patient, or operating on wrong side of the body or wrong patient.

Consent in Criminal Law (Sec. 90 IPC)

A valid consent must be given voluntarily, by an adult who is not of unsound mind. The consent must be given after reasonable understanding and without any misrepre-sentation or hiding of the facts. Thus the consent should be an informed consent, preferably in writing and in presence of witnesses. All components of valid consent are applicable even for the consent in criminal law. According to criminal law, it is an offence to cause injury to any person even with his consent. No person has right to give consent to suffer death or grievous hurt. This point has to be kept in mind specially during cases of organ transplantation. The donor may have given consent under family, social or financial pressures. In cases of dead donors if there is no expressed will, the body is the property of the heirs and their consent is required.

Criminal Liability

A person who commits a wrongful act, shall be liable for it. The crimes are public wrongs and aim of criminal proceeding is to punish the wrong doer. The law imposes liability on him who fails to perform duty. The wrongful act may be (a) Intentional or wilful wrong this usually doesn't apply in medical practice as no doctor has intention to cause harm to his patient, (b) negligent act – the doctor fails to take proper care, precaution and is just indifferent to the consequences of his act. Lack of skill proportional to risk undertaken also amounts to negligence; (c) wrongs of strict liability created by some special statutes like transplantation of human organ act (1994)(6).

WHEN TO INFORM THE POLICE

A doctor has to inform the police in following circumstances (personal communication Dr. Jayat Navrange). Failure to inform police in such cases may result in penal consequences.

Police must be informed in

  1. cases of suspected homicide
  2. cases of suicidal deaths
  3. unknown, unconscious patient
  4. death on operation table
  5. suspected unnatural death
  6. sudden, unexpected, violent and unexplained death
  7. instant death after treatment or reaction of medicine
  8. married lady dying within seven years of marriage due to any reason

It is advisable to inform police in following circumstances

  1. undiagnosed death within 24 hrs. of admission or specially if there is any suspicion
  2. any cases of poisoning
  3. accidental deaths
  4. in cases of hospital deaths if :
    1. accidents not related to medical management like fall from staircase etc., though there is no legal obligation on doctor, it is advisable to inform the police

    2. unexpected or rare complications may occur sometimes, e.g. a child may vomit, aspirate the content and may die. This is very unpredictable and it is not obligatory on part of the doctor to inform such deaths. But it is better if we inform the police because sometimes patient's relatives may allege negligence in such cases.

    3. In cases of death due to negligence in treatment there are no specific provisions to inform the police but in order to avoid untoward incidences it is better to inform the police.

"Brought dead cases": In such cases, if the cause of death is apparent and there are no reasonable grounds to suspect some medico-legal complications then it is not necessary to inform the police. If the cause of death can't be ascertained in any case then it is desirable to send the body for postmortem examination preferably with the help of the police. It is advisable to suggest postmortem in the following circumstances: (i) whenever death is sudden, unexpected or unexplained, (ii) accidental deaths which may be roadside, domestic or industrial, (iii) when precise cause of death is needed for insurance claim purposes etc., and (iv) as a help to arrive at final diagnosis.

Information to police shall preferably be in writing and the written acknowledgement should be obtained. If the information is telephonic one must note down name, buckle number and designation of the police.

Can a Doctor be Arrested

Doctors have no immunity against arrest (as any other citizen of India) for the various criminal acts as per the provisions of IPC or CPC of India. Illegal organ trading, unlawful sex determination etc. are non-bailable offenses. But the question is whether a doctor be arrested for:

  1. alleged medical negligence during day to day care of a patient
  2. unexplained hospital deaths like SIDS etc.,
  3. postoperative complication or failure of operation;
  4. not attending or refusing a patient (who was not already under his care) who becomes serious or dies and
  5. not attending a case of roadside accident.

Recently, the chairman of a hospital was arrested for not complying with the Supreme Court directives in a roadside accident. In this particular case the patient died while being shifted to other hospital. The Supreme Court directives (criminal writ petition no. 270 of 1988) in a roadside accident include:

  • The medical aid should be instantaneous. It is the duty of the registered medical practitioner to attend the injured and render medical aid, treatment without waiting for procedural formalities unless the injured person or guardian (in case of minor) desires otherwise.
  • The effort to save the person and preserve the life, should be top priority, not only of the doctor but also of the police officer or any other citizen who happens to notice such an accident.
  • The professional obligation of protecting life extends to every doctor, whether at Government hospital or otherwise.
  • The obligation being total, absolute and paramount, no statutory or procedural formalities can interfere in discharging this duty.
  • Whenever better or specific assistance is required, it is the duty of treating doctor to see that the patient reaches the proper expert as early as possible.
  • Non-compliance of these directives may invite prosecution under provisions of Motor Vehicle Act or IPC(7).

If FIR is lodged by patient or relatives then the police may arrest the doctor. Hence better approach in cases where we feel that the patients or relatives may create nuisance will be as follows:

1. The doctor should lodge a FIR that a particular incidence has happened in my hospital.

2. A crisis management committee may be formed at each Taluka or District level. The committee shall include doctors, social workers, legal personalities, politicians, press reporters etc. The committee members may meet the police officers and request them for complete investigation of the incidence and to avoid prosecution till the guilt is proved. The committee can also request the press reporters not to give unnecessary publicity to such cases. The Government of Kerala (G.R. no. 3231/SS-B4/92/Home dated 20.09.1993) has issued the following instructions if there are any cases of criminal negligence against a private practitioner, doctor or private hospital. According to G.R. the investigating Deputy Superintendent of Police shall refer the case to a panel of Superintendent of Police, commissioner of Police, District Medical Officer or Principal of Medical College. Still if the views differ, the opinion of an apex body consisting of Director of Health Services and expert in that particular speciality may be taken. The affected doctor is also free to approach the apex body with appeals(8).

Legal Rights of an Arrested Person

The arrested person shall be communicated with the particulars of offence and the ground for arrest. If the offence is bailable, then the person should be informed and the arrangement for the bail may be made. If the police officer refuses to release such person on bail, he will be liable for damages for wrongful confinement. Sometimes a police officer may register an offence under Sec. 304 of IPC instead of 304-A in order to detain the accused doctor. In such cases officer may have to face serious consequences. The person shall not be subjected to more restraint than necessary to prevent his escape. If there are any offensive weapons belonging to the arrested person, these weapons may be seized. The arrested person must be produced before a magistrate having jurisdiction in that case. No police officer shall detain in custody an arrested person for more than 24 hours unless a special order from a magistrate is obtained(9).

Anticipatory Bail: In order to avoid frivolous accusations, there is provision of anticipatory bail. This may be granted as a protection in offences which are non-bailable. It is direction to release applicant on bail, if there is arrest. Once granted it remains in force. Pre-requisites for anticipatory bail are: (i) there must be reasonable apprehension of arrest, (ii) the alleged offence must be non-bailable, and (iii) the registration of FIR is not necessary.

Procedure for Bail: The accused is required to execute his personal bond at the police station with or without surety. The surety may be a close relative, a friend or a neighbour, who is required to undertake to pay the said amount in case of absconding of the accused.

Do's and Don'ts

  • Inform police whenever necessary.
  • Extend all possible co-operation to the police.
  • Furnish copies of medical records to police, court or relatives whenever demanded. Consent of patient may be taken while providing information to police.
  • Follow the legal procedures or provisions.
  • Have a valid informed consent for the treatment(10).
  • Preserve the documents, records specially in medico-legal, controversial or complicated cases.
  • Insist for post-mortem examination if the cause of death can't be ascertained.
  • Involve medical associations, medico-legal cells, voluntary organizations whenever legal problem arises.
  • Consult your lawyer before giving any reply.
  • Don't become panicky.
  • Don't manipulate or tamper with the documents.
  • Don't do unlawful or unethical acts.
  • Don't issue false or bogus certificates. Certificate was issued on request is no defense.
  • Don't neglect the treatment while completing legal formalities specially in serious or emergency situation.