SC raises bar to sue docs, says negligence not enough

‘‘Negligence in the context of medical profession necessarily calls for a treatment with a difference…A simple lack of care, an error of judgement or an accident is not proof of negligence on the part of the medical professional,’’ it said.

The Court, however, made it clear that this was not to mean that doctors cannot be prosecuted at all. ‘‘All that we are doing is to emphasise the need for care and caution in the interest of society…’’

The apex court also laid down elaborate guidelines to govern prosecution of doctors. These are:

• A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.

• The investigating officer, should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion, preferably from a doctor in government service qualified in that branch of medical practice who can give an impartial and unbiased opinion (applying a prescribed test to the facts collected in the probe).

• Unless arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.

The court, however, made it clear that these would operate temporarily, till statutory rules were framed and issued by the Government in consultation with the Medical Council of India.

The bench pointed out that negligence would amount to an offence only if there was a mental intention. And if the negligence was not gross, it would provide a ground for action only for recovery of damages, but not any criminal offence, it said.

Reassuring bonafide medical practitioners, the order said they would not be able to save lives if they were to tremble with the fear of facing criminal prosecution. ‘‘Discretion being the better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10 per cent, rather than taking the risk of making a last-ditch effort towards saving the subject and facing criminal prosecution if the effort fails. Such timidity forced upon a doctor would be a disservice to society.’’

In the Court’s own words, the human body and medical science were too complex to be easily understood. ‘‘For a medical accident of failure, the responsibility may be with the medical practitioner and equally it may not.’’ Ideals about the medical practice, said the Court, may be far different from the realities.

The Court agreed with the views of noted men of medicine that the effect of encouraging frivolous cases against doctors will have a ‘‘distorting effect’’ on doctor-patient relations and will not benefit the patient in the long run.

The order came on a plea by a doctor of CMC, Chandigarh, who had been booked for the death of a terminally ill cancer patient. The hospital could not provide Jiwan Lal oxygen in time as there was no gas in the cylinder. However, the apex court held that he could not be prosecuted for it.