DOCTORS CRIMINALLY PROSECUTED FOR OMMISSION IN TREATEMENT,WILL GOVERNMENT  PROTECT AS DIRECTED BY SC ?

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All over India,Doctors are often manhandled and physically tortured in Pvt or Government Hospital or Clinic if emergency prompt service is not provided to a patient resulting in  complication or death or a patient becomes serious suddenly or expires during treatment or after a procedure or operation.In most of these cases,even Police comes but remain a silent looker as relatives or accompanions vandalise Hospital or clinic badly and beat attending Doctors.

                    Previuosly Police was arresting Doctor to satisfy crying relatives of patient didnothing to miscreants who took law in hand but after Hue and cry of doctors through IMA and Other specialist  Association,  in most states made rule and Doctor is not arrested but miscreants are never arrested or booked even there is a strict law to book  such culprits and see them behind bar and recover the damage but conviction rate in such cases is very less and recovery is rarely collected. 

                       But beside this,often such doctors are booked under law and tried in court and often Medical Board also label them negligent as two doctors of Fortis hospital in Gurugram were arrested last week following findings of the district medical board, which said that they had failed to timely administer proper treatment to the patient who died of cardiac arrest last year. The two concerned doctors were arrested under Section 304 IPC (causing death by negligence) and released on bail.

               The patient, a 51-year-old woman was admitted to the hospital in an emergency on May 12, 2017 following complaint of chest pain around 1.35am. ECG was done at 1.45am. The medical board constituted to examine the case found that the patient was not given anti-platelet treatment as per protocol. According to the medical board, the doctors should have ideally given her an anti-platelet medicine for blood thinning immediately. The report of cardiac enzyme done around 2.23am also indicated the urgent need for medicines to prevent a heart attack. Patient suffered a cardiac arrest in the ICU around 4.30 am. She became very critical and had to be put on life support about which the husband was informed. An angiography done at 7 am showed that the left anterior descending artery was 100% blocked. The patient was declared dead at 9.48 am.

             According to the report, emergency medical officer “admitted” before the board that he did not administer anti-platelets. While, the Chief cardiologist said that he had asked the resident cardiologist, to provide “all necessary treatment” to the patient around 2.15am. The Board found in its report that “proper treatment” was not given following examination of hospital records and termed this as “gross negligence” that proved fatal for the patient (ET Healthworld, April 14, 2018).
        But without going into the merits of the case,even Medical board considered them negligent .Board should see that even in super speciality  hospital Which doctor was on duty at the time of the incident? Was it a junior resident doctor or a senior doctor? Ideally, an intensivist should be on duty or on call in the casualty as to infuse antiplatlets or clot lysing therapy may bring any complication which can cause death.A simple telephonic order of an expert cant absolve him from vicarious liability.One maynot be able to excute such orders without presence of expert or order can be denied as there may not be recording or written order.Even telephonic consultation is mostly  considered as no consultancy legally. 

                   Secondly Women generally do not present with the classic pattern of pain on the left side of the chest in the event of a heart attack. They may have atypical symptoms such as pain in the jaw, neck or back, or they may present with symptoms like shortness of breath, cough, or nausea. This is one of the reasons for a delayed diagnosis.Many often cant bear cost of medicines and other charges for such therapy so often doesnot give consent for this,ECG and enzymes may be misleading too.

          So How a court and medical board opined for such drastic arrest of two budding doctors and charge them criminally for negligency ?as The landmark judgement of the Supreme Court of India on medical negligence in the matter of Jacob Mathew vs State of Punjab & Anr in 2005 has held that “A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment… No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career.”

         So If you missed a diagnosis, this is not criminal negligence, at the most, it can be a civil negligence. But, whenever there is any doubt, the specialist should be called at once,especially in an emergency but here specialist opined on phone to do what the best is not to inject antiplatelets so how simple negligency of emergency doctors counted? The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.”

        In the same judgement, Jacob Mathew vs State of Punjab & Anr, the Hon’ble Supreme Court had also directed that guidelines be formulated by the Govt. after conferring with the MCI for such an eventuality.A Study Group had prepared and submitted draft “Guidelines for protecting doctors from frivolous or unjust prosecution against medical negligence” last year to the MCI for further action. These guidelines have been approved by the MCI. It is now for the Govt. to notify these guidelines and implement them.

“The Prosecuting Agency on receipt of any complaint of which criminal rashness or negligence is an ingredient against a registered medical practitioner under the Indian Medical Council Act, 1956 prior to making arrest refer the complaint to the Chief Medical Officer of a District who shall place it before the District Medical Board having an expert of that branch of medicine for its recommendations as regards the merit of the allegations of criminal rashness or negligence, contained in the complaint.If Court not satisfied with District medical board may constitute a Divisional Medical Board or State Medical Board to verify all allegations.

                    But central government is still sitting on it,rather in West Bengal and Tamilnadu State Government has passed such a darconian law where any medical practitioner or pvt hospital will be booked on a simple questions by patient or relatives through a District Commission which can cancel hospital or doctor license can send him jail within 6 months against which doctor can seek rescue from high court only.

                 What you think as a doctor for booking these two doctors under criminal case of medical negligency and arresting them and then giving bail ?Please opine.