These comments are based on the media report. We will be able to expand the comments once we study the actual judgment.

Additional Chief Metropolitan Magistrate Anuj Agrawal summoned four doctors of two different private hospitals and the medical superintendent of one of the government hospitals in East Delhi district under Section 304 (culpable homicide) of the Indian Penal Code. The court noted that the Medical Council of India (MCI) had also ordered the removal of their names from its register for three months. The case refers to the death of a 10-month-old baby in 2012.

The court also pulled up police officers probing the case for not taking into consideration the ethics committee report, which had clearly directed that names of the guilty doctors be removed from the Medical Council of India ’s register for a period of three months.

Commentary

1. 304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

This act is only applicable

1. If there was an intention to cause death
2. Or if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death,

If the MCI report has categorical in any of these two aspects then only a case can be filed in section 304.

Suspension of license to practice does not mean criminal negligence

1. 8.5 During the pendency of the complaint the appropriate Council may restrain the physician from performing the procedure or practice which is under scrutiny.
2. 8.2 “………………. If the medical practitioner is found to be guilty of committing professional misconduct, the appropriate Medical Council may award such punishment as deemed necessary or may direct the removal altogether or for a specified period, from the register of the name of the delinquent registered practitioner…………….”

Both does not qualify it to be a criminal negligence

Professional indemnity

The Professional Indemnity for Doctors Policy protects against claims arising out of bodily injury or death caused by error, omission, negligence; Legal liability including; Defence costs (costs, fees, expenses) incurred while investigation, cost of representation, compensation etc.

The very fact professional indemnity covers medical negligence all cases of negligence can not be criminal negligence.

What to do: IMA or DMS should become a party to it and protect the doctor from 304.