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Guidelines to protect doctors from unjust prosecution should be promptly implemented
Dr KK Aggarwal,  17 April 2018
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Two doctors of Fortis hospital in Gurugram were arrested last week following findings of the district medical board, which said that they had failed to timely administer proper treatment to the patient who died of cardiac arrest last year. The two concerned doctors were arrested under Section 304 IPC (causing death by negligence) and released on bail. The patient, a 51-year-old woman was admitted to the hospital in an emergency on May 12, 2017 following complaint of chest pain around 1.35am. ECG was done at 1.45am. The medical board constituted to examine the case found that the patient was not given anti-platelet treatment as per protocol. According to the medical board, the doctors should have ideally given her an anti-platelet medicine for blood thinning immediately. The report of cardiac enzyme done around 2.23am also indicated the urgent need for medicines to prevent a heart attack. Patient suffered a cardiac arrest in the ICU around 4.30 am. She became very critical and had to be put on life support about which the husband was informed. An angiography done at 7 am showed that the left anterior descending artery was 100% blocked. The patient was declared dead at 9.48 am.

According to the report, emergency medical officer “admitted” before the board that he did not administer anti-platelets. While, the Chief cardiologist said that he had asked the resident cardiologist, to provide “all necessary treatment” to the patient around 2.15am. The Board found in its report that “proper treatment” was not given following examination of hospital records and termed this as “gross negligence” that proved fatal for the patient (ET Healthworld, April 14, 2018).

Without going into the merits of the case, some factors must be considered in general.

Which doctor was on duty at the time of the incident? Was it a junior resident doctor or a senior doctor? Ideally, an intensivist should be on duty or on call in the casualty.

Women generally do not present with the classic pattern of pain on the left side of the chest in the event of a heart attack. They may have atypical symptoms such as pain in the jaw, neck or back, or they may present with symptoms like shortness of breath, cough, or nausea. This is one of the reasons for a delayed diagnosis.

The landmark judgement of the Supreme Court of India on medical negligence in the matter of Jacob Mathew vs State of Punjab & Anr in 2005 has held that “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 judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment… No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career.” If you missed a diagnosis, this is not criminal negligence, at the most, it can be a civil negligence. But, whenever there is any doubt, the specialist should be called at once, especially in an emergency.

In the same judgement, Jacob Mathew vs State of Punjab & Anr, the Hon’ble Supreme Court had also directed that guidelines be formulated by the Govt. after conferring with the MCI for such an eventuality.

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 act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.”

A Study Group had prepared and submitted draft “Guidelines for protecting doctors from frivolous or unjust prosecution against medical negligence” last year to the MCI for further action. These guidelines have been approved by the MCI. It is now for the Govt. to notify these guidelines and implement them.

  1. “The Prosecuting Agency on receipt of any complaint of which criminal rashness or negligence is an ingredient against a registered medical practitioner under the Indian Medical Council Act, 1956 prior to making arrest refer the complaint to the Chief Medical Officer of a District who shall place it before the District Medical Board for its recommendations as regards the merit of the allegations of criminal rashness or negligence, contained in the complaint.
  2. The District Medical Board on receipt of such reference examine the allegation contained therein in a time-bound manner, preferably within two-weeks, and thereafter forward its recommendation to the Prosecuting Agency through the Chief Medical Officer of the District.
  3. The District Medical Board that has examined the complaint must ensure a Doctor qualified in that branch of medical science is part of the Board.
  4. The Prosecuting Agency, in case, it is dissatisfied with the recommendation of the District Medical Board may stating the reasons for such dissatisfaction refer the matter to the Divisional Medical Board for its recommendation within a period of three-weeks from the date of receipt of recommendation of the District Medical Board.
  5. The Divisional Medical Board, on receipt of any such reference from the Prosecuting Agency would examine the matter within a period of three-weeks from the date of receipt of such reference. The Divisional Medical Board shall provide reason for endorsing or rejecting the recommendation of the District Medical Board. The decision of the Divisional Medical Board shall expeditiously be conveyed to the prosecuting agency, and in any case not later than four-weeks from the date of receipt of reference made by the prosecuting agency.
  6. The Prosecuting Agency, in case, it is it is dissatisfied with the recommendation of the Divisional Medical Board may stating the reasons for such dissatisfaction refer the matter to the State Medical Board for its recommendation within a period of four-weeks from the date of receipt of recommendation of the Divisional Medical Board.
  7. The State Medical Board, on receipt of any such reference from the Prosecuting Agency would examine the matter within a period of four-weeks from the date of receipt of such reference. The State Medical Board shall provide reason for endorsing or rejecting the recommendation of the Divisional Medical Board. The decision of the State Medical Board shall be expeditiously conveyed to the prosecuting agency, and in any case not later than five-weeks from the date of receipt of reference made by the prosecuting agency.
  8. The Prosecuting Agency on the receipt of Recommendation of the District/Divisional/State Medical Board further proceed in the matter in accordance with law. However, in case arrest of a registered medical practitioner in the employment of State/Central Government is being made, the Controlling Officer of such Medical Practitioner would be informed by the Prosecuting Agency. Likewise, in case, the registered medical practitioner is engaged in private practice, the concerned State Medical Council, or in case there is no State Medical Council in that State/Union Territory, the Medical Council of India be informed.”

 

More and more doctors are facing criminal prosecution. This instance adds to this growing list. We should fight for the prompt implementation of these guidelines.

  

 Dr KK Aggarwal

Padma Shri AwardeeVice President CMAAOGroup Editor-in-Chief IJCP Publications

President Heart Care Foundation of India

Immediate Past National President IMA

                                                     


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  • Dr Sanjeev Suchdeva 20 April - 10:41 hrs

    Obviously, the District Medical Board together with the expert(sic),inter alia, was not aware of the Supreme Court observations with regard to negligence. It could have avoided the pain the doctors have to undergo. How can we protect them from such oversight resulting in arrest etc?

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  • Dr Durga Datt 17 April - 13:11 hrs

    All recommendations should be implemented immediately

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  • Dr S A H Khan 17 April - 05:31 hrs

    Sir. ..... . Any significant or undiagnosed chest pain beyond childhood needs to be managed as Acute MI until proved otherwise. If no absolute contraindications...anti platelet therapy has to be given immediately to save lives by juniormost MBBS doctor in Casualty/ A& E.

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