CRIMINAL MEDICAL NEGLIGENCE DURING COVID-19

by Akanksha Chhabra


Introduction

Every act done by a doctor cannot constitute to criminal liability. When a death occurs it’s due to an easy misplaced judgment or due to an accident, then there's no criminal liability attached thereto . Inadvertence to a degree of caution and care, which isn't gross, only attracts civil liability. When the law talks about the quality care of a doctor, it means, the quality and awaited care by the capable doctor consistent with his/her qualifications. A doctor can't be held liable for any negligence, until and unless he has followed the practice acceptable to the medical community of that day. The doctor can't be held liable if he had a far better alternative or if a more skilled doctor would have chosen another part.


Situation in times of Covid-19

Due to the increasing cases of Covid-19 within the country a day , the cases of criminal medical negligence cases also are on the increase. This is often highly because of the shortage of adequate medical instrumentation, doctors per patient ratio, inadequate medical beds and also lack of availability of hospital staff due to the spread of Covid-19.

In the context of Indian law, medical negligence is split into three leading classes;

• Criminal negligence,

• Civil negligence and

• Negligence under Consumer Protection Act.

Medical Negligence under Constitution of India

The Constitution incorporates provisions guaranteeing everyone’s right to the very best attainable standard of physical and psychological state . Article 21 of the Constitution guarantees protection of life and personal liberty to each citizen. The Supreme Court has held that the proper reference with human dignity, enshrined in Article 21, derives from the directive principles of state policy and thus includes protection of health[1]. Under the directive principles of state policy following articles mentioned in part IV of the constitution deals with Right to Health and against any Medical Negligence:

• Article 38 of the Constitution lays down the obligation of the state to guarantee social order for the promotion of the welfare of public health.

• Article 39 clause (e) pertains to the protection of well being of the workers.• Article 41 relates to rendering public assistance by the state in particular conditions like sickness, disability, adulthood etc.

• Article 42 protects the health of the infant and therefore the mothers, i.e. in a way, it refers to maternity benefit.

• Article 47 imposes a primary duty of the state in betterment of public health, in securing of justice, providing humane conditions of labor for the workers, extension of benefits concerning sickness, disability, adulthood and maternity benefits. additionally to the present , the state is under a responsibility to ban the intake of liquor within the involvement of the general public is good.

• Article 48A states the duty of the state towards supplying of an honest and healthy pollution free environment.

Medical Negligence and Penal code

Section 304A of the Indian Penal code of 1860 states that whoever causes the death of an individual by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine, or with both.

Criminal liability can also be imposed upon a doctor under particular situations wherein the patient dies during the time of managing anaesthesia in an operation; the death must even be due to malicious intention or gross negligence[2]. Many a times, the doctor also will be responsible vicariously, meaning thereby if his employee/servant rashly causes the death of a patient. therein case, the worker also the doctor are going to be liable in light of the principle of ‘Vicarious Liability’ under Tort law.

It is important to notice that, section 304 of the Indian legal code , doesn't mention the word “gross”. The judiciary, with the event of jurisprudence on medical negligence, has attempted to balance wrong done to the patient against the autonomy of doctors. From the cases that are heard by the courts, it's been established that, if doctors are held criminally liable for everything they are doing , then situations may arise where the doctor would worry about himself quite the patient. To avoid such circumstances, the courts believes the evidence produced by the plaintiff. Covid-19 being a completely unique disease to the country at large, are often only disciplined by the doctors, through their intellect, judgment and knowledge . Therefore, the way, these neglectful cases would be handled at the courts would vary as this whole situation circulates around this pandemic. Cases which involve negligence by the hospital staff in providing with the ventilators, oxygen machines, could also be easily solved. However, cases, regarding not direct medical negligence would be a task for the Indian courts.

Sections 80 and 88 of the IPC contain defences for doctors accused of criminal liability. Under Section 80 (accident in doing a lawful act) nothing is an offence that's done accidentally or misfortune and with none criminal intention or knowledge within the doing of a lawful act during a lawful manner by lawful means and with proper care and caution. Consistent with Section 88, an individual can't be accused of an offence if she/ he performs an act in straightness for the other’s benefit, doesn't shall cause harm even though there's a risk , also the patient has explicitly or implicitly given consent.


Consumer Protection Act and Medical Negligence

Since 1990’s there's a huge supposition and discussion on whether medical services are explicitly or categorically enclosed within the definition of “Services” as enshrined under Section 2(1)(o) of Consumer Protection Act (CPA). Deficiency of service means any fault, imperfection, shortcoming, or inadequacy within the standard , nature, or manner of performance that's needed to be preserved by or under any law for this in effect or has been undertaken to be performed by someone in pursuance of a contract or otherwise about any service.

The question that pertains mind is that where can a complaint be filed; the result is that, a complaint are often filed in[3]-:

1) The District Forum if the worth of services and compensation claimed is a smaller amount than 20 lakh rupees,

2) Before the State Commission, if the worth of the products or services and therefore the compensation claimed doesn't exceed over 1 crore rupees, or

3) within the National Commission, if the value of the products or services and also the compensation exceeds over 1 crore rupees.

The good affirmative aspect about this can be that there's a minimal fee for filing a complaint before the District Consumer Redressal Forums.

In 1995, the Supreme Court decision in Indian Medical Association v. VP Shantha[4] brought the health profession within the ambit of ‘service’ defined within the Consumer Protection Act, 1986. This defines the link between patients and medical professionals by giving contractual patients the ability to sue the doctors if they sustained injuries within the course of treatment in ‘procedure free’ consumer protection courts for compensation.


Conclusion

To quote Gandhi, “It is health that's a person’s real wealth and not pieces of gold and silver”. So as an ethical responsibility all the concerned authorities whether it's the hospital, Government, Medical Council or the other institution working towards betterment of healthcare facilities should work collectively and take steps to provide Prime healthcare.

In India, the medical profession is reasoned as one of the noblest and respectable in scrutiny to other such professions. Even in times of Covid-19, when everyone is latched inside their houses, it is the doctors who have taken charge and are rendering the people with the right care and medicines. Similarly, due to the rising cases of Covid-19 in the country, the cases of Medical Negligence have also enhanced at the same time, and this, in turn, is increasing the liabilities of the doctor in such difficult situations. Due to the eruption of the virus, medical interaction has increased in the country, which is the root cause of the emergence of medical negligence cases.

[1] Bandhua Mukti Morcha v. Union of India (AIR 1984 SC 802) [2] Available at http://lawcommissionofindia.nic.in/reports/rep196.pdf [3] http://www.delhistatecommission.nic.in/filing_procedure.htm [4] AIR 1996 SC 550

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