In an internal circular, DGP asked investigative officers to inquire and collect all evidence when complaints against doctors are received.
Published Jun 23, 2023 | 7:59 PM ⚊ Updated Jun 23, 2023 | 9:07 PM
The DGP also instructed all the Commissioners and Superintendents of Police in the State to review and weigh the evidence before registration of a case, though a complaint is made. (Creative Commons)
Tamil Nadu Director General of Police (DGP) Sylendra Babu has issued standing orders not to arrest doctors on the complaints of the death of patients due to medical negligence.
In an internal circular issued to the force on 21 June, Babu asked the concerned investigative officers (IOs) to inquire thoroughly and collect all oral and documentary evidence whenever any complaints of death due to negligence in treatment were received.
Further, the IOs should obtain the opinion of government doctors working in the Medical College Hospitals, and also a legal opinion should be obtained whether the case is to be made out under Section 304(A) with the available evidence, before taking any action against the doctors.
Pointing to various Supreme Court and high court orders that doctors should be held criminally responsible only if a prima facie case was made out, DGP Babu said: “Such extreme action is unjustified as it causes damage to the reputation of the medical practitioner.
“It also demoralises the entire healthcare fraternity. It may be borne in mind that complications during treatment, especially surgery, are likely to happen independent of the procedures and despite the best efforts taken by the doctors in good faith.”
The DGP also instructed all the Commissioners and Superintendents of Police in the state to review and weigh the evidence before registration of a case, though a complaint is made.
He also sought an “Express Report” within 24 hours on such cases whenever it is filed. The report should contain all the facts of the case, including the details of the complainants and circumstances with details of evidence.
Usually, criminal cases are registered against doctors, for medical negligence, under Section 304(A) (Culpable homicide not amounting to murder).
On 5 August, 2005, in the Jacob Mathew vs State of Punjab case, the Supreme Court had framed temporary rules/observations for holding a doctor guilty of “criminal negligence” under Indian Penal Code (IPC) Section 304A.
The observations were:
- A simple lack of care, an error of judgement or an accident, is not proof of negligence on the part of a medical professional.
- As long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available.
- Simply because a more skilled doctor would not have chosen to follow or resort to that practice of procedure which the accused followed.
- It is not possible for every professional to possess the highest level of expertise or skills in the branch in which he practises.
- A highly skilled professional may be possessed better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
- Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable.
- Human body and medical science both are too complex to be easily understood. To hold in favour of the existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and/or errors committed by chance, which do not necessarily involve the element of culpability.
- 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 acts within the domain of criminal law under section 304-A IPC.
- 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 normally be expected to give an impartial and unbiased opinion applying the Bolam Test to the facts collected in the investigation.
- A person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
- 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 judgement on the part of a professional is not negligence per se.
- No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient.
Following this, on 4 July, 2008, the Tamil Nadu government also issued guidelines, through a Government Order (G.O.(Ms) No.220 Health and Family Welfare (21) Department), to be followed strictly while registering cases against medical practitioners.
“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 state guidelines said.
“The investigation 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 normally be expected to give an impartial and unbiased opinion applying the Bolam Test to the facts collected in the investigation,” the guidelines said.
“A doctor accused of rashness or negligence may not be arrested in a routine manner, simply because a charge has been levelled against him, unless his 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,” it further stated.
The Bolam Test was first implemented following the 1957 case of Bolam vs Friern Hospital Management Committee. The case involved a patient, Bolam, being administered the Electro Convulsive Therapy (ECT) which caused him serious fractures.
The Bolam Test is based on the premise of ascertaining whether the actions of a doctor were in line with the actions of other doctors who are in similar position. It implies that actions or decision can sometimes change according to the degree of the doctors’ experience.
Although it dates back in 1957, the basics of the Bolam Test remain unchanged, although it has been adapted to evolving medical practices.
Apart from this the National Medical Commission (NMC) has also issued guidelines on arresting doctors for medical negligence.
According to the NMC guidelines, it is required that after receiving a complaint under the Indian Medical Council Act, 1956, the matter should be forwarded to the district Medical Council Board for its recommendations before making any arrest.
Further, the matter may be recommended to the state Medical Council Board as well. The guidelines clearly mention that a doctor accused of medical negligence may not be arrested in a routine manner.
Speaking to South First, Doctor’s Association for Social Equality General Secretary Dr GR Ravindranath said: “In Tamil Nadu, doctors being arrested on complaints of medical negligence is very rare. In 1990, a doctor was arrested in Chidambaram for medical negligence. After that, an ortho doctor was booked recently, almost eight months back, for medical negligence after the death of a young football player.”
When asked about the need for such instructions from the DGP when there are guidelines put forth by the Supreme Court and the state government, Ravindranath said these guidelines were needed as the number of fake complaints lodged against doctors is seemingly increasing.
