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AMARINDER HOSPITAL, PATIALA

Dr.O.P. Singh Kande


Alleged Medical Negligence Case : Immunity to doctors under IPC

Dr.O.P.Singh Kande

President

Indian Medical Association Punjab


There is lot of heart burning among the medical professionals for about a decade about the role of Police in cases of alleged medical negligence leading to morbidity or mortality of the patient under treatment of doctors. The present trend is that on receipt of a complaint from the relatives of patient alleging harm to the patient in the form of wrong diagnosis or treatment and also in the event of death of the patient due to alleged negligence by the doctors and staff of the hospital, the police book the doctors under various sections of IPC likely ordinary criminals and put them behind the bars and sometimes even bail is denied to the doctor depending upon the papers made out by the investigation officer on the basis of allegations made by the complainant party. The doctor is not given the benefit of protection provided to him in IPC under sections 87,88 and 92 ). The matter has taken importance in view of intricacies of medical treatment and inability of the non-medical investigating police officers to understand the same and the doctors are being made to suffer because of the cases being registered us 302/ 307 / 304 and 304-A of IPC depending upon the allegations made by relatives of the patient. This has lead to continuous stress and strain on the mind of practicing doctors and certainly has a bearing on the free-mind management of serious and emergency cases needing urgent and bold initiative on the part of treating doctors without any fear of being involved in allegations of medical negligence and harassment by police. Something needs to be done on this issue lest we will land into a situation where NO DOCTOR WILL EVER DARE TO TAKE UP SERIOUS AND EMERGENCY CASES the atmosphere of fear of police will be very dangerous for proper health care delivery to suffering humanity. There is no effort to undermine cases of medical negligence and protect the doctors who have been negligent in treating the patient. There are various remedies available to patients to air their grievances and get compensation for the loss accrued due to medical negligence of doctors, which are covered under statutory law eg. Law of Torts , Consumer Protection Act and Medical Councils. No where in the world there is involvement of police to take contingence of any complaint alleging medical negligence and this is a unique feature of Indian Police to take action in cases of complaints of this nature. The reasons given by various Officers in Police are that whenever some body brings a compliant the police is duty bound to register a FIR and do justice with the Complainant. What about justice with the other party ? The Common reply have been “the patient have suffered loss of life/ bodily injury- something has gone wrong, otherwise why a patient should die. The doctor has negligently killed the patient and thus we are bound to book him under relevant sections of IPC” . Now the point has been what about section 87, 88 & 92 ? These sections of IPC provide protection to medical practitioners by way of ‘unintentional acts of causing death” and “for whose benefit it is done in good faith” and Section 88 IPC : states that “ Nothing , which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm” . The example in this section is related to the doctors. The ingredient of Offences under section 299 IPC ( punishable US 304 IPC I & II ) , Section 300 IPC ( punishable US 302 ) are “Intention and knowledge” of an action done to cause death. The description of these sections is very clear.

It is pertinent to mention that ““No Doctor would like to bring bad reputation for his clinic. It will never the intention of any doctor to kill his patient” ( Justice R.L.Anand ..Criminal Revision No. 203 of 1999 )

In view of the above the very ingredient of “intention” is absent in cases of medical cases and as such sections 302 and 304 and 307 as no applicability in cases of Hospital death. But unfortunately these sections are made applicable in many case of Hospital deaths in our country.

As for as Section 304-A ( causing death by Rash & Negligent Act ) is concerned the section deals with deaths due to rash & negligent act of the doer against the other person who is either known or unknown, but certainly not under his care. Such as a driver of a Car hits against a scooterist and kills him. The driver of car was not driving car in “good faith” or for the “benefit” of the deceased. But he has acted rashly and negligently and “unintentionally” killed the scooterist. The section 304-A is applicable. Where as if it can be proved that a Car driver was driving the car carefully but a child ran from the other side of road and came suddenly in front of the car and driver could not save him and child died during the accident. The Driver will not be charged with 304-A , if he is holding a valid license to drive. Similarly in medical cases the duly qualified and registered doctors do their best in saving the life of the patient, who is already ill and suffering from various ailments and body systems are compromised . Even if the doctors act in “good faith” for the benefit of the “Patient” and the body reacts in unexpected manner to procedures and drugs, and unfortunately the patient unable to withstand the procedure due to compromised situations, beyond the control of doctors , dies , the act on the part of the doctor is “unintentional to cause death”. Hence section 304-A is also not attracted in such situations. A doctors is considered to have acted in ‘good-faith’ for the ‘benefit of the patient’

Hence as for as law is concerned it is clear that the qualified and registered doctors as per their system of practice are provided protection under sections 88, 89 and 92 of Indian Penal code and cognizance by police under sections 302, 304, 304-A etc. do not arise at all in case of injury to or the death of the patient , during the course of treatment. Hence the police , after receipt of any complaint of alleged medical negligence resulting in bodily injury or death of the patient , must refer all such complaints to respective Medical Council , for proper action under law.

The grievances of the patient and relatives can also be sent directly to Medical Council or law courts for action under Law of Torts and to Consumer courts , as may be desired by the Complainant.


Dr.O.P.Singh Kande ,M.D.

Amarinder Hospital, Prem Nagar, Bhadson Road Patiala-147004 ( Punjab )

Tel: 0175-2362869 / 2366859 / 5009869 / 3103451 / 98140 41869 / Fax: 0175-2362869

Email: opsingh_99@yahoo.com , opskande1@sancharnet.in

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