Rights of Doctors and Facing Police, Arrest, Warrants and wrong Sections - in Medical Negligence Cases. Adv. Rohit Erande. ©
Rights of Doctors and Facing Police, Arrest, Warrants and wrong Sections - in Medical Negligence Cases.
Adv. Rohit Erande. ©
At the outset, I express my heartfelt gratitude to Indian Society of Anaesthetist for inviting me , for sharing my thoughts on the above referred subject.
It will not be an overstatement to say that, these days the Doctors are doing Defensive practice. Generally, the patients know their Physicians, surgeons, but they are not well versed with the unsung heroes as I may call the, yes I am referring to anesthetists.
The Anesthesiologists evaluate, monitor, and supervise patient care before, during, and after surgery. However, if something goes wrong, Anesthesiologists are arrayed as the opponents /accused.
There are umpteen number of incidences wherein if a patient dies, then the Doctors may face Civil Action for damages i.e. cases in a consumer court and/or Criminal Action, wherein the Doctors may 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 Police Authorities to put the sections in the FIR, but ultimately it's legality is decided by the Courts.
Lets' see in nutshell ;
304. Punishment for culpable homicide not amounting to murder— Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
There is a famous adage which says, "Every murder is culpable homicide, but every culpable homicide is not a murder". the Medical Negligence cases fall under the later part.
If this section is imposed, then it becomes a non-Bailable offense and punishment is 10 years.!! The job of the Police Authorities is very important in such cases as to which sections are to be imposed. If Sec.304 is imposed, then Doctors have to go for anticipatory bail for avoiding arrest.
Another section of IPC 304-A talks about causing death by Negligence and which is generally applied in case of death in MLC.
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. This is a bailable section, so Doctors get the bail as of right.
But in case of arrest of Doctors in Medical Negligence Cases, as a Special case I would say, the Police Authorities have to follow certain guidelines as laid down long back by Hon'ble Supreme Court.
The Hon. Supreme Court in its 5 judges constitutional Bench judgment, in the celebrated case of Lalita Kumari V/s. state of U.P. (2014 (2) SCC 1) - ( https://indiankanoon.org/doc/10239019/) has given solace to Doctors in the matters of arrest. The bench was dealing with mandatory lodging of FIR in cognizable offenses,
it was observed,
"Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offence, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint."
Their Lordships had asked Central /State Govt. to frame guidelines in these regards in consultation with MCI, but till date no one has taken any steps. Their lordships further relied upon the famous judgment of Jacob Mathew as mentioned herein above. The Court gave guidelines as under :
The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
Thus now in Medical Negligence cases, Preliminary enquiry is a must and before that No arrest can be made.
In the above case also, their Lordships relied upon the Celebrated judgment of Hon’ble Supreme Court (3 Judges bench) , 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 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 (criminal intent) 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 See A.S.V. Narayanan Rao V/s. Ratnamala & ors.
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"
Remedy for action U/Sec.304-II
On the other hand, Sec.304-A itself is a Bailable offense. But technically, the above referred guidelines of Hon. Apex Court are in respect of Sec.304-A, but the judgment of Lalita Kumari (supra) is applicable in Sec.304 as well as Sec.304-A. Thus, in my opinion, the Doctors can move for anticipatory Bail or can 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. But at times Hon' High Court asks to apply for anticipatory bail and if that is refused then to approach high Court. 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.
It is also to be remembered there may be some cases, where Doctors might have done some Acts that may attract Sec.304-II. So also a lot depends upon the facts of each independent case. Further civil remedies for claiming compensation against the Doctors may be exercises independently. In any of such cases first approach the expert Lawyer for further steps.
Removal of a wrong charge :
As mentioned earlier, it is the prerogative of the investigation authorities to apply the section. But U/Sec.216 of Cr.P.C., it is the right of the Courts to alter /amend /remove such charge during the trail, before the pronouncement of the judgment.
Warrant :
Warrant may be simply categorized in two types. A Warrant issued for issuing the presence of the Accused -Doctor. If the Doctor fails to appear before the Court unless expressly permitted, then the Court first issues bailable Warrant and as the name indicates, on furnishing Bail Bond or Cash Security, the warrant is cancelled. But if the Doctor fails to appear inspite of bailable warrant, then non-bailable warrant is issued, which has to be get cancelled by showing reasons to the satisfaction of the court and failing which the Accused can go behind bars. The warrants are served upon the accused-doctors through Police.
Warrant for Evidence :
A Doctor may be called as witnesses also in civil as well as criminal cases, in MLC. If the Doctor avoids to remain present in the court, inspite of serving of such witness warrant or in civil cases it is referred to as the Witness summons, then the Courts have power to issue warrant against Doctors and in case of failure thereto also, Doctors may face strong consequences including arrest.
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.
Right to sue for damages for malicious Prosecution :
The High handed and illegal action can certainly affect the name and reputation of Doctors. Mental and physical agony is another aspect. Thus if later on, the case proves to be false, 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...
Important judgments for Anaesthetists :
1. https://advrohiterande.blogspot.com/2017/04/at-time-of-delivery-its-choice-of.html
"At the time of delivery, it's the Choice of the Anesthetist to decide whether to administer General Anesthesia or Spinal Anesthesia and he cannot be held negligent for his choice."..
- Rs. 1 Crore saddled upon Hospital, Surgeon and Anesthetist for botched Squint correction surgery causing death of 6 years old.
- The anesthetist failed to caution the operating surgeon about the warning signs of a drug.
3. https://advrohiterande.blogspot.com/2022/01/supreme-compensation-of-rs-17-lakh.html
'Supreme' Compensation of Rs. 17 lakhs saddled towards Negligence as the Surgeon and Anaesthetist failed to take precautions to avoid 'known complication' after surgery .
4. Rs. 20 lakhs saddled on Doctors and Hospitals for making them aware what is humanity and human touch..." No anesthetist was present. The patient died in her delivery.
a. Non availability of Operation Theatre is not a valid ground to hold Hospital Negligent :
b. Non functioning of Machines and Equipments cannot be said to be Negligence.
c. It is an incorrect assumption to say that, "since surgery was performed by a doctor, he alone would be responsible for different aspects of the treatment required and given to the patient".
d. It is too much to expect from a doctor to remain on the bed side of the patient throughout his stay in the hospital.
e. Every death of a patient cannot on the face of it be considered to be medical negligence.
f. In spite of the treatment, if the patient had not survived, the doctors cannot be blamed as even the doctors with the best of their abilities cannot prevent the inevitable
g. The doctor cannot be held liable for medical negligence by applying the doctrine of res ipsa loquitur for the reason that a patient has not favourably responded to a treatment given by a doctor or a surgery has failed.
Case Details : Before Hon. Supreme Court of India.
Bombay Hospital & Medical Research Centre (Appellants) Vs. Asha Jaiswal & Ors. (Complainants -Respondents)
https://advrohiterande.blogspot.com/2021/12/a-supreme-judgment-with-manifold.html
Well, I may also request the Medicos from restraining themselves 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. ©
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