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Doctors and their criminal liability

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  • 1.  DOCTRINES OF DOCTOR LIABILITY  PROFESSIONAL NEGLIGENCE Tracyness Sutnga Roll No.: 373
  • 2. DOCTRINES OF DOCTOR LIABILITY  DOCTRINE OF LOSS OF CHANCE.  DOCTRINES OF APPARENT AUTHORITY  DOCTRINE OF CORPORATE NEGLIGENCE  DOCTRINE OF INFORMED CONSENT OF THE PATIENT
  • 3. PROFESSIONAL NEGLIGENCE  WHAT IS NEGLIGENCE?  NEGLIGENCE UNDER INDIAN PENAL CODE.  TESTS USED IN INDIA TO DETERMINE MEDICAL NEGLIGENCE.  DUTY ON PART OF HOSPITAL AND DOCTOR.
  • 4. Liabilities of doctors under Indian Penal Code(IPC) Name: Utkarsh Kumar Roll No.: 356 PR No.: 12010123356
  • 5. What is IPC?  The Indian Penal Code 1860(IPC) is the most fundamental document in the entire judiciary of India, that lists all the cases and punishments that a person committing any crime is liable to be charged with, including doctors Provision of IPC • According to the provisions of Indian Penal Code 1860 (IPC), any act of commission or omission is not a crime unless it is accompanied by a guilty mind (MENS REA).
  • 6. Sections of IPC relating to Medical profession  Sec 52-Describes ―Good Faith‖  Sec 80-Accident in doing lawful act  Sec 88-Act not intended to cause death, one by consent in good faith for person‘s benefit  Sec 90-Related to consent  Sec 176-Failure to inform police when essential  269-271-Related to spread of infectious disease and disobedience of quarantine rules  272-273-Related to adulteration of foods and drinks
  • 7. Contd..  Sec274-276-Related to adulteration of drugs  Sec 304-A-Deals with death caused by a negligent act  Sec 269-271- Related to spread of infectious disease and disobedience of a quarantine rule  Sec 306-309-Are related with abetment of suicides  Sec 312-314-Related to causing miscarriage, abortion and hiding such facts  Sec 315-316-Deals with act to prevent child being born alive or to cause it to die after birth
  • 8. Contd..  Sec 319-322-Are related to causing hurt, grievous hurt, loss of vision, loss of hearing or disfigurement  Sec 336-338- Deals with causing hurt by rash or negligent act.
  • 9. Key points to note  Thin line of difference between Section 304 and 304-A:  in Sec. 304 there is no intentional act of negligence while in Sec 304-A the act is never done with the intention to cause death  Under Sec.304 the offence is non-bailable while in case of Sec.304A the offence is bailable
  • 10. CRIMINAL LAW SECTION 193 IPC OFFENCES Perjury PUNISHMENTS Imprisonment upto 7 yrs.+/- Fine. 197 IPC Issuing certificate 191 IPC Hostile Witness -do- 354 IPC Indecent assault Imprisonment upto 2 Yrs. +/- Fine. False -do-
  • 11. SECTIONS OFFENCES PUNISHMENTS Criminal Abortion Imprisonment from 3 Yrs. To 10 yrs.+/- Fine. 316 IPC 376 IPC Rape 497 IPC Adultery Imprisonment upto 7 yrs. May be 10 yrs, may be life imprisonment +/fine. Imprisonment upto 5 Yrs. +/- Fine 312 IPC TO
  • 12. DIFFERENT PROVISIONS AND MEDICAL - DIVYA LAKRA 360
  • 13. Section 164A of CrPC  Examination only by female registered medical practitioner • Without delay • Consent -documented • Note down particulars • Complete history • Examination – Genital examination and injuries  Standard protocols and guidelines • Preserve samples-DNA profiling • Emergency Contraception if required • Treatment /prophylaxis as required • Opinion
  • 14. Section 53A CrPC • Brought by police written and signed request • Details of examination findings • Sample preservation –Clothing/Blood/Semen sample/Pubic hairs for DNA profiling • Opinion • Age determination Consent not required
  • 15. REST OF THE ACTS:  Section 53 CrPC (Examination of accused by medical practitioner at the request of police officer)  Section 53A CrPC (Examination of person accused of rape by medical practitioner)  Section 54 CrPC (Examination of arrested person by medical practitioner at the request of the arrested person)
  • 16. MOTOR VEHICLE ACT,1988  Sec 203- Breath tests.  204. Laboratory test. VICARIOUS LIABILITY If the patient has suffered an injury in circumstances, which are explicable only as being attributed as negligence on part of the doctor, the maxim Res Ipsa Loquitur (thing speak for itself) may be applied. The patient is then entitled to succeed unless the doctor can bring evidence to rebut the possibility of negligence The doctrine may be used where1) the accident is of a kind which ordinarily does not occur in the absence of negligence, 2) the apparent cause of the accident being within the control of the defendant 3) and the plaintiff could not have contributed to it
  • 17. INDIAN EVIDENCE ACT,1872 SEC 45: Medical evidence is merely an option evidence.  Evidence given by a medical officer is of advisory character.  Medical evidence not in conflict eye-witness evidence can be taken.Medical evidence not in conflict with dying declaration is reliable.  Medical evidence cannot itself prove the prosecution. It is only corroborative.Courts can use medical evidence in the following ways:Consistent with direct and circumstantial evidences: Paternity Identity of the deceased Rape
  • 18. SEC 51:  to facilitate open and frank discussion of clinical events to aid quality improvement without fear of reprisal.  does not provide physicians with blanket protection from litigation and does not provide protection unless the information is handled, as specified, within the Act.
  • 19. Consumer protection act. 1986 With reference to medical negligence Manaswitha Rai Roll no : 309
  • 20. Objectives  The purpose of the act : To protect the interest of the consumers of different commodities for which they pay but do not get standard quality of service.  Example – daily commodities of use, Banking, Food Transport, Electricity supply et etc.
  • 21. Hierarchy of court 1. National Commission at National Level, located at New Delhi 2. State Commissions at State Level, located in state. every 3. District Consumer Forums located in various areas of cities.
  • 22. Definition of Consumer and service in medical negligence cases  Consumer is : (a) a patient who pays to get services of doctor /hospital (b) any person who pays for the patient (c) legal heirs /representatives of such patients (d) spouse, parents and children of the patient.  service hired or availed, which does not cost anything or can be said free of charge, or under a contract of personal service, is not included within the meaning of „service‟
  • 23. Procedure  A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum, by –  (a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided;  (b) any recognized consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not;  (c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or  (d) the, Central or the State Government.
  • 24. JURISDICTION FOR FILING COMPLAINTS In terms of the provisions contained in the Consumer Protection Act, 1986, complaints: 1. Where the value of goods or services and compensation, if any, claimed below Rs. Twenty Lacs or upto Rs. Twenty Lacs, can be filed before District Forum.  2. Where the value of goods or services and compensation, if any, claimed exceeds Rs. Twenty Lacs but does not exceed Rs. One crore, can be filed before State Commission.  3. Where the value of goods or services and compensation, if any, claimed exceeds Rs. One crore, can be filed before National Commission.
  • 25.  Consumer of Medical Services as under COPRA, 1986  Status of Government Hospitals under COPRA 1.Paramjit Kaur vs State of Punjab 2.Pune vs. Dr.R.L. Bhutan  Status of Private Practice under COPRA
  • 26.  Patient has the right to quality healthcare Pravat Kumar Mukherjee vs. Ruby General Hospital & Ors7
  • 27. INTERNATIONAL LAW NAME – DHRITI HAZOWARY CLASS – B.A./L.L.B DIV – D ROLL NO. – 316 YEAR – IInd SEM - IV
  • 28. UNITED KINGDOM SCENARIO 1. The police, the criminal courts and prisons are all publicly funded services, though the main focus of criminal law concerns the role of the courts, how they apply criminal statutes and common law, and why some forms of behaviour are considered criminal. 2. The fundamentals of a crime are known as the ‗actus reus‘ and the ‗mens rea‘. 3. Latin terms mean "guilty act" (doing that which is prohibited) and "guilty mind" (i.e. the intent to commit the crime). 4. England and Wales does not have a Criminal Code, though such an enactment has been often recommended and attempted.
  • 29. U.K. CASES 1. R v. Adomako (1995) 2. R v. Prentice and Another (1993) 4 All E.R. 935 C.A. 3. R v. Sullman (1993)
  • 30. UNITED STATES OF AMERICA SCENARIO 1. Traditionally medical liablity of doctors has been under the authority of the individual states and not the federal government, in contrast to many other countries. 2. Current law has its origins in 19th century English common law. English common law refers to the legal system of England and Wales, and forms the basis of jurisprudence in the United States.
  • 31. 3. In the United States, medical malpractice law is under the authority of the individual states; the framework and rules that govern it have been established through decisions of lawsuits filed in state courts. Thus, state law governing medical malpractice can vary across different jurisdictions in the United States, although the principles are similar. 4. One exception to medical liability can arise in the context of those who volunteer assistance to others who are injured or ill; this exception is embodied in ―Good Samaritan‖ laws that address bystanders‘ fear of being sued or prosecuted for unintentional injury or wrongful death.
  • 32. U.S. CASES 1. Moore v. Williamsburg Regional Hospital (4th Cir. 2009) 2. Chudacoff v. University Med. Ctr. of S. Nevada (D. Nev. April 14, 2009) 3. Poliner v. Texas Health Systems (5th Cir. 2008) 4. Adkins v. Christie (11th Cir. 2007)
  • 33. Aishwarya Dhakarey Roll No 369 Judicial Approach :Case laws (Foreign and Indian)
  • 34. UK case laws
  • 35. R. v. Prentice and Sullman Facts: Two young and relatively inexperienced doctors were prosecuted for manslaughter for having injected intrathecally an injection that should have been given intravenously. It was held: 1. Except in motor manslaughter, the ingredients of involuntary manslaughter by breach of duty which need to be proved are: a. the existence of the duty; b. the breach of the duty causing death; c. gross negligence which the jury considers justifies a criminal condition; 2. If the jury had been given the gross negligence test, then in deciding whether the necessary high degree of gross negligence had been reached they could properly have taken into account 'excuses' or mitigating circumstances.
  • 36. Bolam Test Bolam v Friern Hospital Management Committee [1957] 1 WLR 583
  • 37. Facts  Claimant undergoing electro convulsive therapy as treatment for his mental illness. Doctor did not give any relaxant drugs and the claimant suffered a serious fracture.  Divided opinion amongst professionals as to whether relaxant drugs should be given. If they are given there is a very small risk of death, if they are not given there is a small risk of fractures.  The claimant argued that the doctor was in breach of duty by not using the relaxant drug.
  • 38. Held:  The doctor was not in breach of duty.  a medical professional is not 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 . . . Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view."
  • 39. Bolitho v City & Hackney Health Authority [1997] 3 WLR 1151  Facts: BOLITHO TEST  2 year old child admitted to hospital suffering from breathing difficulties. A doctor was summoned but did not attend as her bleep was not working due to low battery. The child died. The child's mother brought an action claiming that the doctor should have attended and intubated the child which would have saved the child's life.  The doctor gave evidence that had she attended she would not have intubated. Another doctor gave evidence that they would not have intubated.  The trial judge applied the Bolam test and held that there was no breach of duty. The claimant appealed.
  • 40. Held:  Held: In applying the Bolam test where evidence is given that other practitioners would have adopted the method employed by the defendant, it must be demonstrated that the method was based on logic and was defensible. the Court in Bolitho did not specify in what circumstances it would be prepared to hold that the doctor has breached his duty of care by following a practice supported by a body of professional opinion, other than stating that such a case will be "rare".
  • 41. Indian case laws
  • 42. Anuradha Saha Case  Anuradha Saha, resident of Ohio developed skin rashes and fever on her visit to Kolkata  A well-known physician Dr. Sukumar Mukherjee prescribed a drug for her and she was later admitted to the AMRI hospital under the care of three other physicians  Later, her skin started to peel off and she is diagnosed with a life-threatening condition caused by a drug reaction  She later airlifted to a Mumbai hospital where she dies  Her husband lodged a criminal case accusing the doctors of negligence  15 years later, court orders compensation of Rs 5.96 crore for the death of Anuradha Saha for medical negligence
  • 43. Jacob Mathew V. State of Punjab  Patient, feeling serious difficulties in breathing was admitted in a private ward of the CMC hospital, Ludhiana at about 11pm on the night of 22nd February 1995  Dr. Jacob Mathew and Dr. Allen Joseph came to the patient‘s room and connected an oxygen cylinder to the patient‘s mouth, but the cylinder was found empty  No other cylinder was available in the room at that time and when the Patient‘s son arranged a cylinder, nothing was done to make the cylinder functional  By this time the patient had passed away
  • 44. Contd…  Cancellation of license and prosecution of doctors who are found to  Violate provisions of Acts like the Transplantation of Human Organs Act  Engage in fetal sex determination  Doctors are not Gods. They are humans and it is normal for them to err  Dragging negligence cases to court for trial is undesirable
  • 45. Indian Medical Association v. V.P. Shantha and Ors  In Indian Medical Association v. V.P. Shantha and Ors the principal issue which arose for decision before the Supreme Court was whether a medical practitioner renders 'service' and can be proceeded against for 'deficiency in service' before a forum under the Consumer Protection Act, 1986. The Court dealt with how a 'profession' differs from an 'occupation' especially in the context of performance of duties and hence the occurrence of negligence. The Court noticed that medical professionals do not enjoy any immunity from being sued in contract or tort (i.e. in civil jurisdiction) on the ground of negligence.
  • 46. Informed Consent  Medical opinions are still required to assist the court in its deliberation- patient‘s right to know  Bolam test has been challenged & rejected in America, Canada, Australia, South Africa & Malaysia
  • 47. Other Case laws  Canterbury v Spence (1972) 464 F (2d) 772 — United States  Naxakis v Western General Hospital (1999) 73 ALJR 782 Australia  Pai Lily v Yeo Peng Hock Henry [2000]- Singapore
  • 48. REMEDIES UNDER MEDICAL NEGLIGANCE Name: Anjela.D Class: BA LLB ‗D‘ Prn. No: 12010123374
  • 49. Remedies: Civil Suit Consumer Court Cases that deal in medical negligence and medical practice. Civil remedy where relief is sought in compensation under the consumer protection act 1985. Indian Medical Association vs. V.P. Shantha (1995) 6 SCC 651 Spring Meadows Hospital vs. Harjo Ahluwalia (1998) 4 SCC 39 The Court held that proceedings under the Consumer Protection Act are summary proceedings for speedy redressal and the remedies are in addition to private law remedy. The issue was whether patients are consumers under the Consumer Protection Act and could they claim damages for injury caused by the negligence of the doctor, hospital or nursing home.
  • 50. Criminal Negligence The main section under which a criminal case is filed against doctors is Section 304B of the Indian Penal Code which deals with causing death due to rash and negligent act. The punishment is two years imprisonment or fine or both. S.336 of the Penal Code provides that it is an offence to endanger the human life or personal safety of others through a rash or negligent act. The punishment is three months imprisonment or fine of Rs. 250 or both. S.337 and 338 of the Indian Penal Code make it an offence to cause simple hurt or grievous hurt through rash or negligent act. The punishment can be upto six months of imprisonment or fine upto Rs. 500 or both for simple hurt and punishment upto 2 years or fine upto Rs. 1000 or both for causing grievous hurt.
  • 51. Medical Council A case against a doctor can be filed in Medical Council of the concerned system of medicine. Medical Councils do not have powers to award compensation or to imprison. One way to reduce this treat is to draft legislation reserving criminal prosecution for acts possessing the gross, wanton, and deliberate misconduct, with an accompanying mens rea, that truly deserves punishment. Another is for regulatory agencies and peer review boards to be more proactive in uncovering negligent practices and weeding out incompetent physicians. Criminal sanctions against health care personnel should be an extraordinarily rare event in clinical medicine. Although cases are sparse, the number of medical professionals facing criminal prosecution is increasing. Clearly, the time to address this problem is now.