Decriminalising medical negligence in the new criminal Bill, the government may have taken an unpopular decision but they have tried to make it clear that doctors cannot be treated at par with criminals.
Bharatiya Nyaya Sanhita Bill seeks to replace the colonial era-Indian Penal Code.
Medical negligence occurs when the doctor simply fails to take “due care” and fails to perform according to standard operation procedures.
But then should he/she be made into a criminal or a murderer who intentionally snuffs out the life of another? The answer is No.
However, though criminal negligence has been kept out it, would definitely not mean that any patient who feels that criminal negligence has occurred cannot knock on the doors of civic forums like the Medical Council of India, etc, or even the courts, a doctor points out.
It’s a ticklish issue with strong arguments on both sides.
While patients feel that crass commercialisation in today’s world is making the noble profession into a business to make money in any way, the doctors feel that with the medical profession being deemed a service to consumers and consumers taking to consumer courts in a big way and the courts levying heavy compensations on hospitals and doctors, their profession was becoming fraught with risks of legal entanglements.
The dedicated doctor too can be scared because there are no guarantees of medical results and an unsuccessful result may be pointed out as medical negligence.
A doctor may just not risk to venture into any complicated case where he might be blamed later. The consumer has to show that an injury or damage resulted from the doctor not following the standard of care applicable to the procedure.
However, at times doctor has to and must deviate from the standard operating procedure to save a patient depending on his condition.
Taking this kind of risk is part of his job but if the results are not successful, he might be thought to have been negligent.
Secondly, it is also true that commercialisation in today’s world has led to a position where a lot of unnecessary tests and operations are done and business interests at times rule.
The moot point is that for most patients who go to a doctor when they are seriously ill, the doctor is virtually like God, who heals.
So, for the doctor to maintain the high ethical standards of his noble profession and try his utmost to heal and cure the patient is what is required.
In the consumerist society, these standards seem to have fallen with patients demanding a service and doctors being asked to fulfil it. The sacred bond between the healer and the healed seems not to be there.
Usually, a team of expert doctors must examine the case before determining if the doctor has been negligent.
Now the government has made an amendment in the criminal law Bill exempting doctors from criminal prosecution in cases of death due to medical negligence.
Naturally, the medical fraternity is elated.
Death of patients under a doctor’s care used to be classified as criminal negligence under Section 304A of the Indian Penal Code. It says that whoever causes the death of any person by doing any rash or negligent act shall be punished with imprisonment for up to two years.
The new Bharatiya Nyaya Sanhita the new Indian criminal law has said that medical negligence by a doctor that results in death would be decriminalised.
It is also a case in point that cases of medical negligence have been rising over the years as awareness of the right of patients spread.
A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court as a credible opinion given by another competent doctor to support the charge of rashness or negligence by the accused doctor.
Doctors are understood to take the Hippocratic oath swearing by Greek gods of Apollo the physician, and Aesculapius the god of Medicine that they will “follow that system of regimen which, according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous,” when they graduate as a doctor.
Hippocratic oath says “With purity and with holiness I will pass my life and practice my Art.”
Interestingly, it further says, “Into whatever houses I enter, I will go into them for the benefit of the sick, and will abstain from every voluntary act of mischief and corruption;….”
Even in those ages, certain ethical norms had to be followed by doctors following one of the sacred functions treating a weak and ailing person.
Courts have been warning the police not to harass or arrest doctors at times on frivolous charges of medical negligence.
It is only a panel of expert doctors who can say whether the procedure followed by the doctor is tantamount to negligence or it is a simple question of human error or mistake. While a mistake may be condoned, negligence cannot be pardoned as it would question the skill and competence of a practicing doctor.