Court administers wrong medicine

The recent judgement in the Dr Jacob Mathew case with regard to criminal liability for negligence of medical professionals has far-reaching ...

The recent judgement in the Dr Jacob Mathew case with regard to criminal liability for negligence of medical professionals has far-reaching implications. They impact the principle of the rule of law as well as the delicate constitutional balance between judiciary and legislature.

The three judge bench has not only endorsed the view taken in Dr Suresh Gupta8217;s case in 2004 by a 2-judge bench but gone much further. In Dr Gupta8217;s case, a young man with no history of heart ailment was subjected to a simple operation for nasal deformity. The patient died. The cause of death was found to be 8216;8216;not introducing a cuffed endotracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage8217;8217;. That is, the patient choked to death during the operation as Dr Gupta had not fixed the proper tube to take the blood out. The Supreme Court held the doctor to be not liable for having caused death due to negligence under section 304-A of the IPC and in fact quashed the charges rather than letting a trial court decide the issue on merits.

Dr Mathew8217;s case came up initially before another two-judge bench which doubted the correctness of the decision in Dr Gupta8217;s case and referred the matter for consideration by a larger bench. Like in Dr Gupta8217;s case, there is no controversy about the facts. Jiwan Lal Sharma felt difficulty in breathing. The judgement itself notes 8216;8216;An oxygen cylinder was brought and connected to the mouth of the patient but the breathing problem increased further. The patient tried to get up but the medical staff asked him to remain in bed. The oxygen cylinder was found to be empty. There was no other gas cylinder in the room. Vijay Sharma the son of the patient went to the adjoining room and brought a gas cylinder therefrom. However, there was no arrangement to make the gas cylinder functional and in-between 5 to 7 minutes were wasted. By this time, another doctor came who declared that the patient was dead8217;8217;.

Unfortunately, the main logic put forth in the judgement does not seem to support the conclusion reached by the judges. The mantra of 8216;8216;an ordinary competent person exercising ordinary skill in that profession8217;8217; and not the standard of 8216;8216;the highest level of expertise8217;8217; for adjudging negligence is repeated in the judgement. It does not seem too much to expect of an ordinary competent doctor exercising ordinary skill to ensure that there is oxygen in the cylinder he puts to the mouth of a patient experiencing breathing difficulties. Unlike personal laws dealing with marriage, divorce and inheritance, criminal law makes no distinction on grounds of religion, caste, class or 8216;8216;profession8217;8217;. Section 304-A of the IPC lays down that 8216;8216;whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide8217;8217; shall be punished with imprisonment or fine. The provision has no provisos or sub-clauses permitting of exceptions for certain categories of persons or professions. Similarly, the Criminal Procedure Code governing the investigation, prosecution and trial of offences is uniform throughout the country.

The judgement has subverted equality. It has legislated a special class for medical professionals making them above the criminal law of the land. The judgement lays down that an investigation officer should not proceed against a doctor without obtaining an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice. The court breezily directs that a private complaint is not to be entertained unless the complainant has produced a credible opinion by another competent doctor to support the charge of negligence on the part of the accused doctor 8212; a tall order indeed.

The medical profession does consider itself a privileged group whose members should not be treated like ordinary mortals under the law. Claiming that evaluating the conduct of doctors is best left to peers in the profession, it has resisted the jurisdiction of courts. The 1995 judgement holding that the medical profession would fall within the ambit of the Consumer Protection Act was opposed tooth and nail. In this era of crass commercialisation of the profession, pontifications about 8216;8216;noble8217;8217; profession and 8216;8216;sacred8217;8217; doctor-patient relationship being vitiated by being taken to court ring hollow. The only protection available under the IPC to doctors for acts which may result in death or hurt is for acts done in 8216;8216;good faith8217;8217;. However, 8216;8216;good faith8217;8217; has been defined in section 52 as with 8220;due care and attention8221;.

It is hazardous to carve out exceptions to the uniform applicability of criminal law. Medical immunities and prerogatives are the hallmark of a feudal society and have no place in a democratic society. Doctors should be as liable as others under criminal, civil and consumer law for their acts of negligence.

The writer is an advocate in the Supreme Court