In India, the medical profession is considered one of the noblest and respectable in comparison to other such professions. Even in times of Covid-19, when everyone is locked inside their houses, it is the doctors who have taken charge and are providing the people with the right treatment and medicines. The people are sympathetic towards the doctors, as they are effortlessly and tirelessly working for the country at these trying times. To encourage the doctors, the government, as well as the general public, is arranging activities and gestures that help to motivate the doctors so that they can perform at their best.
People equate doctors with the image of God. However, as every coin has two sides, these positive aspects have a profound negative impact as well. Similarly, due to the rising cases of Covid-19 in the country, the cases of Medical Negligence have also increased simultaneously, and this, in turn, is increasing the liabilities of the doctor in such difficult situations. Due to the outbreak of the virus, medical interaction has increased in the country, which is the root cause of the rise of medical negligence cases. The jurisprudence around criminal medical negligence is credited to the Supreme Court through three primary cases- Suresh Gupta, Jacob Mathew, and Dr. Praful Desai.
There are different types of negligent activities under IPC which a doctor may conduct. Under tortious negligence, a doctor may be asked to pay compensation and damages according to the loss of the patient, while under criminal negligence which is mentioned under section 304 of Indian Penal Code he may be awarded imprisonment or fine. There are three primary ingredients constituting negligence which are: (i) duty of care, (ii) breach of duty, (iii) subsequent injury. For a case to qualify as criminal negligence, there has to be either gross negligence or rashness endangering life. Culpable rashness is acting with the consciousness that mischievous and illegal consequences will follow, but with hope against it and the trust that the one doing the act has taken sufficient and enough precautions to prevent it. On the other hand, culpable negligence is acting without any consciousness that illegal and mischievous consequences may follow.
What is Criminal Negligence?
Every act done by a doctor cannot constitute to criminal liability. When a death occurs due to a simple misplaced judgment or because of an accident, then there is no criminal liability attached to it. Inadvertence to a degree of caution and care, which is not gross, only attracts civil liability. When the law talks about the standard care of a doctor, it means, the standard and expected care by the competent doctor according to his/her qualifications. A doctor cannot be held responsible for any negligence, until and unless he has followed the practise acceptable to the medical profession of that day. The doctor cannot be held liable if he had a better alternative or if a more skilled doctor would have chosen another part. The standard care refers to the sense of an ordinary man. This standard of care is as per the knowledge at the time of the incident and not when the trial is initiated. If a doctor has some special skill or competence, negligence is not measured as per the man, but as per the standard of an ordinarily skilled professional. Honest differences in opinions do not infer negligence. It is essential to differentiate between medical accidents, diffusion of responsibility and culpable conducts.
Due to the increasing cases of Covid-19 in the country every day, the cases of criminal medical negligence cases are also on the rise. This is highly due to the lack of sufficient medical equipment, doctors per patient ratio, insufficient medical beds and also lack of availability of hospital staff due to the spread of Covid-19.
Another major reason for the rise in medical negligence cases is the treatment of Covide-19. As there is not a proper treatment protocol issued in treating covid-19 patients and bodies, there is an ambiguity in the treatment procedure. At times, while treating the patient to the best of his ability, the doctor may commit a mistake, this may be blamed as an instance of alleged medical negligence.
When a doctor, refuses a patient of a ventilator, or any other medical equipment which is necessary for the survival of the patient, he/she directly contributes to “Criminal Medical Negligence”. Apart from this, after the virus has taken a toll on the whole country, many doctors have stopped reporting to duty, in fear of the spread of the infection. There have also been cases reported, where the doctors or the hospital staff have deliberately refused to admit the patients even in critical situations which has to lead to many medical negligent cases and FIRs against such doctors for the same. Due to these negligent cases, many doctors have been suspended, and many doctors have also received notices from the Indian Medical Association. All these things, amidst the coronavirus and the lockdown, has contributed to more petitions by the patients in the supreme court against the doctors. The Supreme Court of India is only hearing urgent cases through video conferencing and other online modes, no judgments have been announced for such matters.
However, a negligent act is not just about being negligent to the patients; there have been various reported cases wherein the hospitals have issued notices to doctors for not showing up for treating patients. Hence, the doctors, amid this pandemic, need tobe careful in safeguarding their career.
It is important to note that, section 304 of the Indian Penal Code, does not talk about the word “gross”. The judiciary, with the development of jurisprudence on medical negligence, has attempted to balance wrong done to the patient against the autonomy of doctors. From the cases that have been heard by the courts, it has been established that, if doctors are held criminally for everything they do, then situations may arise where the doctor would be concerned about himself more than the patient. To avoid such circumstances, the courts believe in the evidence produced by the plaintiff. Covid-19 being a novel disease to the country at large, can be only controlled by the doctors, through their intellect, judgment and experience. Therefore, the way, these negligent cases would be handled at the courts would be different as this whole situation revolves around this pandemic. Cases which involve negligence by the hospital staff in providing with the ventilators, oxygen machines, may be easily solved. However, cases, involving not direct medical negligence would be a task for the Indian courts.