Doctor's suicide or a System abated murder ? Who will save the Saviours ? - Adv. ROHiT ERANDE ©

 Doctor's suicide or a System abated murder ? Who will save the Saviours ? - 

Adv. ROHiT ERANDE ©

Whole Medical fraternity is mourning over the tragic suicidal death of a Gynaecologist - Dr. Archana Sharma from Dausa, Rajasthan.

Reportedly the well known gynaecologist, a mother of two  and loving wife  took her life as she was directly slapped with charges of Murder after the death of pregnant women reportedly due to PPH, otherwise common in patient with risk factors. 

Further, reportedly the Lady Doctor with illustrious career, as her colleagues say, took her life or can we say a System abated murder , by hanging herself and in her subside note as seen on the social media, has "begged her innocence and has asked to look after hr two kids" . What can be more unfortunate than this..

Unfortunately Law has remained in the law books that in case of Criminal Medical Negligence, before taking any action against the Doctors, expert medical opinion is aa must. Doctors should not be arrested directly by the Police. 

Doctor's irreparable Loss - Who will compensate ?

We must understand that no Doctor would like to see that the patient dies or does not get recovered. We all have sympathy for the deceased,, but the sympathy for patient does not mean the Doctor has to pay by his / her life.  The high handed and illegal action can certainly affect the name and reputation of Doctors. Mental and physical agony is another aspect. If we consider the case in hand, what is the offense of those two kids who lost their mother ?If  later on  the case proves to be false, will their mother come back ? 

In the cases which are rejected on merits, the Drs should exercise their right to seek damages for malicious prosecution. But, hardly any one does so.. merely venting On social media is of no help...

There is a famous adage which says, " Every murder is culpable homicide, but every culpable homicide is not a murder"

Like this incident, there have been umpteen number of incidences wherein whenever a patient dies, Doctors get arrested on the alleged ground of Medical Negligence and charges under Section 304-II instead of Sec.304-A are imposed and have to run from this court to that court for bail.... It's the prerogative of Investigating authorities to put the charge or sections, it's legality will be decided by the Courts..

The Apex Court , the NCDRC has observed in many cases that " every death should not be presumed as the outcome of the Medical Negligence". 

Medicos are offended when they are charged with Sec.304 (II) of IPC. If this section is imposed, then it becomes a non-Bailable offense and punishment is 10 years.!! The remedy for Doctors, if this section is applied, is to  move for anticipatory Bail or to approach Hon. High Court U/Sec.226 r/w Sec.482 of Cr.P.C. for quashing of FIR when charges U/Sec.304-II are imposed. In the States like Uttar Pradesh, there is no provision of anticipatory Bail, in such cases, approaching Hon’ble High Court is the only remedy.

The job of the Police Authorities is very important in such cases as to which sections are to be imposed and facts of each case play an important role !.

Another section of IPC 304-A talks about causing death by Negligence, which is a bailable offense and punishable with 2 years of imprisonment and/or fine  and which is generally applied in case of death in MLC and the following guidelines, technically apply whenever Sec.304-A is applied.

The Hon’ble Supreme Court of India (3 Judges bench) , in the year 2005 in the case of Jacob Mathew v/s. State of Punjab (AIR 2005 SC 3180 = 2005(6) SCC 1), itself has given clear cut guidelines on arrest of Doctors in case of Medical Negligence Cases. Please see the following link.

http://judis.nic.in/supremecourt/imgs1.aspx?filename=27088

In this case also Sec304A was applied against the Doctors and after going through the law of Negligence on this Point and after considering various legal texts, their lordships observed :

48. ….(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens-rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.

(6) The word “gross” has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be “gross”. The expression “rash or negligent act” as occurring in Section 304-A IPC has to be read as qualified by the word “grossly”.

Regarding Arrest of Doctors, it has been observed :

“52. …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.

i.) 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.

ii.) 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 the Bolam test to the facts collected in the investigation.

iii.) A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him).

iv.) Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.”

This Celebrated judgment has been followed and referred to by all the Courts thereafter.

Also in a subsequent judgment of Hon. Apex Court in the case of  A.S.V. Narayanan Rao V/s. Ratnamala & ors., same principles have been reiterated 

You may see following the link :

http://judis.nic.in/supremecourt/imgs1.aspx?filename=40762

In another celebrated and much referred judgment of Apex Court Martin F. D’Souza Vs. Mohd. Ishfaq, AIR 2009 SC 2049, wherein the Apex Court held as under:

“A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct feel below that of the standards of a reasonably competent practitioner in his field"

       

Patients are not remedy less :

Apart from the Criminal Action, the patients can move to Consumer courts for compensation and in many cases you may find that Doctors have been saddled with compensation ranging from few lakhs to Crores of Rupees.. 

It will be wrong to measure all the police authorities on single scale. If the Doctors could prove that there was malafide intention behind imposing such section, then a legal action may be initiated against such Police Authorities, subject to the protection available to Police authorities U/Sec.197 of Cr.P.C.

Well, I may also request that please refrain yourself from making any defamatory or derogatory remarks against the investigation authorities, as it may hamper the interests of the Doctors involved in the case. You have every right to stand by your fellow colleagues, but without crossing boundaries.

Thanks and Regards

(Adv. Rohit Erande)

Pune. ©