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LEGAL ISSUES IN MEDICINE: PRESENT DAY CHALLENGES FOR INDIAN PHYSICIANS Dr K K Aggarwal Padma Shri, Dr B C Roy & DST National Science Communication Awardee Sr. Physician and Cardiologist, Moolchand Medcity, New Delhi President, Heart Care Foundation of India Honorary Secretary General, Indian Medical Association Introduction The main challenge that a physician today faces is the fear of legal lawsuits. There are multiple swords hanging over a physician today: the medical councils (state and the Medical Council of India (MCI), the Consumer Protection Act (CPA) and the Indian Penal Code (IPC). As a result, practice today has become defensive. Recently there have been more than three cases where the Supreme Court of India has awarded compensation of more than one crore rupees. Medical negligence is lack of reasonable degree of care and skill or willful negligence on the part of a medical practitioner while treating a patient resulting in bodily injury, ill-health or death (damage). The essential components of negligence are three: ‘duty’, ‘breach’ and ‘resulting damage’. A patient cannot sue the doctor if no damage has occurred, however the doctor might be negligent. In Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118, the law was stated thus: “Where you get a situation which involves the use of some special skill or competence, then the test...is the standard of ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art... A doctor is not negligent, 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 doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. When a doctor dealing with a sick man strongly believed that the only hope of cure was submission to a particular therapy, he could not be criticized if, believing the danger involved in the treatment to be minimal, did not stress them to the patient. In order to recover damages for failure to give warning the plaintiff must show not only that the failure was negligent but also that if he had been warned he would not have consented to the treatment.” The consumer courts and criminal courts usually refer cases of alleged medical negligence to the council to decide if it is negligence or not. So it is very important to know how a council functions and decides upon the quantum of punishment. The present article defines how the quantum of punishment is decided by the council. If you read it well, you can avoid situations where punishment can be avoided. Remember, you need to be ethically, morally, scientifically and legally correct.

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Powers to conduct an Inquiry In Chapter 8, Punishment and Disciplinary Action, of its Code of Ethics Regulations, 2002, the MCI has directed that any professional incompetence on the part of a physician shall be judged by peer group as per guidelines prescribed by Medical Council of India (Regulation 8.6). These guidelines are yet not available. And, regulation 8.2 states that “any complaint with regard to professional misconduct can be brought before the appropriate Medical Council for Disciplinary action. Upon receipt of any complaint of professional misconduct, the appropriate Medical Council would hold an enquiry and give opportunity to the registered medical practitioner to be heard in person or by pleader.” If the physician is found guilty, then the quantum of punishment is decided by the respective appropriate councils on case to case basis. Delhi Medical Council (DMC) Act, 1997 Section 10: Powers, duties and functions of the Council. “f) to receive complaints from public (including patients and their relatives) against misconduct or negligence by a medical practitioner, to proceed for inquest, take a decision on the merits of the case and to initiate disciplinary action or award compensation and similarly to take action against frivolous complaints.” Administrative requirements during an Inquiry When a complaint is filed in the medical council, the council has to examine the complaint to verify that it is in the prescribed manner and not a fraudulent complaint. The following are some administrative requirements that are taken into consideration during an inquiry:

Is the complaint in the proper format and filed in time? (Section 32 DMC Rules, 2003 Complaint against medical practitioner)

Is it a frivolous complaint? Section 10f of DMC Act, 1997 empowers the council to take action against frivolous complaints.

Is the doctor registered under the council/other councils/MCI?

Is the matter sub judice?

Has the complainant filed a case in other courts? If yes, has he submitted all the required details?

Is it a referred complaint (MCI, Directorate of Health Services, Police, and Courts)? If yes, what is the request: opinion or an enquiry? If the objective of the inquiry is to seek an opinion, then it may not be required to hear the parties.

What is the allegation? Has the physician been charged with professional misconduct (infamous conduct, dishonor-disgrace to the medical profession), unethical act, medical negligence, violation of IPC, deficiency of service or administrative lapse?

What is the actual complaint? The Inquiry committee should limit its inquiry to the deficiencies in service specified by the complainant and not find faults in treatment not specified in the complaint.

What is the remedy asked for? o Compensation or action (asked by the complainant) o Opinion, if any criminal negligence (asked by the police) o Whether or not there is deficiency of service (asked by consumer fora). One should not deal with what is not asked for. Su moto actions and observations should be exceptions.

Where was the patient treated? Was it at a Government hospital or private hospital? Was the treatment provided free of cost etc.? In cases of treatment provided free of cost, the CPA may not be applicable. These may be taken up in either civil courts or criminal courts, as the case may be.

Is there a possibility of a compromise (arbitration, conciliation, mediation) and withdrawal of the complaint?

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Was the post mortem done? If yes, is the report available?

When was the complaint filed? Was it after the bill was received? Was the bill paid?

Is the order/judgment that is being challenged a speaking order? A speaking order is an order that speaks for itself i.e., the order should contain all the details of the issue, clear findings, and a reasoned order The order should stand the test of legality, fairness, and reason at all the higher appellate forums.

Is the alleged doctor insured? Is the insurance lawyer involved in the case or has been informed?

The appellant courts are not trial courts. High court is not a trial court. The MCI, however is both an appellant court and a trial court (when the state medical council does not act in six months).

Issues to be considered while dealing with a complaint

Is it an opinion or enquiry?

What is the relief asked for?

Is it a su moto inquiry? (Only in exceptional circumstances)

Has he/she committed any act that can be considered as unethical act (Chapter 6 MCI Code of Ethics Regulations, 2002)?

o Advertising (6.1) o Patent and copyrights (6.2) o Running an open shop (6.3) o Rebates and commissions (6.4) o Secret remedies (6.5) o Violation of human rights (6.6) o Practicing euthanasia (6.7) o Doctor-pharma relationship (6.8)

Has he/she committed any act that can be construed as an act of professional misconduct (Chapter 7 MCI Code of Ethics Regulations, 2002)? o Violation of the Regulations (7.1) o Not maintain medical records and giving them when asked for (7.2) o Not displaying registration number in his/her clinic, prescriptions and

certificates etc. issued by him/her (7.3) o Adultery or Improper Conduct (7.4) o Conviction by Court of Law for offences involving moral turpitude / Criminal acts

(7.5) o Undertaking sex determination tests (7.6) o Signing any professional certificates, reports and other documents that are

untrue, misleading or improper (7.7) o Violating provisions of the Drugs and Cosmetics Act and Regulations (7.8) o Performing or enabling unqualified person to perform an abortion or any illegal

operation for which there is no medical, surgical or psychological indication (7.9) o Issuing certificates of efficiency in modern medicine to unqualified or non-

medical person (7.10) o Contributing to lay press articles which may have the effect of advertising himself

or soliciting practices (7.11) o Violating Institutional advertising guidelines (7.12) o Displaying an unusually large signboard (7.13) o Disclosing the secrets of a patient (7.14)

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o Refusing treatment on religious grounds (7.15) o Not taking informed consent (7.16) o Publishing photographs or case reports of patients without their permission

(7.17) o In the case of running of a nursing home by a physician and employing assistants

to help him / her, the ultimate responsibility rests on the physician (7.18) o Using touts or agents for procuring patients (7.19) o Claiming to be a specialist without special qualification in that branch (7.20) o Doing artificial insemination or IVF without proper consent (7.21) o Not following ICMR guidelines for research (7.22)

Regulation 7.1 should be read along with Regulation 2.4, which states while a physician is free to choose whom he will serve, he/she should respond to any request for assistance in an emergency. “Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving adequate notice to the patient and his family. Provisionally or fully registered medical practitioner shall not willfully commit an act of negligence that may deprive his patient or patients from necessary medical care.” It also becomes important to read Regulation 8.1 in this context. “It must be clearly understood that the instances of offences and of professional misconduct which are given above do not constitute and are not intended to constitute a complete list of the infamous acts which calls for disciplinary action, and that by issuing this notice the Medical Council of India and or State Medical Councils are in no way precluded from considering and dealing with any other form of professional misconduct on the part of a registered practitioner. Circumstances may and do arise from time to time in relation to which there may occur questions of professional misconduct which do not come within any of these categories. Every care should be taken that the code is not violated in letter or spirit. In such instances as in all others, the Medical Council of India and/or State Medical Councils have to consider and decide upon the facts brought before the Medical Council of India and/or State Medical Councils.”

Is it a case of deficiency of service or administrative lapse?

Is it a case of medical negligence? If yes, is it a civil or criminal negligence?

What is the quantum of punishment to be awarded to the physician? Factors on which punishment should be considered

Physician not registered with the council o Section 15(6) of Delhi Medical Council Act, 1997: Any person servicing or

practicing modem scientific system of medicine in Delhi shall be registered with the Council under this Act. Without registration with the Council any person though qualified in modern scientific system of medicine shall be liable for action as specified by the Council.”

o Jurisdiction to proceed on disciplinary issue against a physician (High Court of Delhi, Dr. Yash Nigam vs Delhi Medical Council on 26 July, 2004, C.W.P. No. 4414 of 2003: Dated 26.07.2004)

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Quackery Section 27 of Delhi Medical Council Act, 1997: False assumption of Medical Practitioner or Practitioner under this Act to be an offence. Any person who falsely assumes that he is a medical practitioner or practitioner as defined in clause (7) of section 2 and practices the modern scientific system of medicine, shall be punishable with rigorous imprisonment which may extend up to three years or with fine which may extend up to Rs. 20,000 or with both.”

Hospital not registered with Directorate of Health Services

Negligence or misconduct

Degree of professional misconduct or infamous conduct

First offence or regular offender

Patient information: Age, pregnancy, income, status, dependency

Who is the alleged doctor? Is he a junior/senior doctor, a general practitioner, a specialist or a super specialist? A senior doctor may be more liable for the same mistake than a junior doctor. Also, if a senior doctor assigns a task to his junior, then he/she is responsible for any mishap that may arise out of their actions (vicarious liability).

Degree of negligence: an element of recklessness, willful or apathetic act?

Extent of damage: death, disability (temporary or permanent), monetary loss, mental agony.

Any contributory negligence (by the patient, relatives, previous treating doctors)

Mitigating circumstances

In Martin F. D'Souza vs Mohd. Ishfaq, 3541 of 2002, dated 17.02.2009, Justice Markandey Katju and G S Singhvi observed “... the higher the acuteness in an emergency and the higher the complication, the more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and has to choose the lesser evil. The doctor is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case but a doctor cannot be penalized if he adopts the former procedure, even if it results in a failure. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not in a position to give consent before adopting a given procedure.” Errors can be made in emergency and may not amount to medical negligence.

Treatment received prior to the current admission. Was there any delay in treatment, delay in referral or treated taken by a quack in the recent past?

What is the opinion of the experts (council experts, executive committee experts, experts brought by the complainant, experts brought by the treating doctor, experts

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in the internal enquiry report, expert’s cross examination, experts opinion vs evidence based opinion)? When experts differ in their opinion, the benefit of doubt must go to the doctor.

Who was at fault (hospital, resident, nurse, and paramedical staff)?

Was there any deficiency of service by the hospital?

Deviation from normal practice: In Samira Kohli vs Dr. Prabha Manchanda and Anr, SCI Civil Appeal No. 1949 of 2004, 16.01.2008, the Supreme Court of India observed: “To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care.”

Is it the case of a ‘never event’? Never events are situations where deficiency of service and or negligence is presumed and no trial or expert evidence is necessary. Following are some examples that were rectified by various court judgments.

o Removal of the wrong limb (Indian Medical Association vs VP Shantha & Ors on

13 November, 1995, 1996 AIR 550, 1995 SCC (6) 651; Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka and Ors, SC/4119 of 1999 and 3126 of 2000)

o Performance of an operation on the wrong patient (Indian Medical Association vs VP Shantha & Ors on 13 November, 1995, 1996 AIR 550, 1995 SCC (6) 651; Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka and Ors, SC/4119 of 1999 and 3126 of 2000)

o Giving injection of a drug to which the patient is allergic without looking into the outpatient card containing the warning (Indian Medical Association vs VP Shantha & Ors on 13 November, 1995, 1996 AIR 550, 1995 SCC (6) 651; Spring Meadows Hospital v. Harjol Ahluwalia SC/1014/1998: (1998) 4 SCC 39; Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka and Ors, SC/4119 of 1999 and 3126 of 2000).

o Use of wrong gas during anesthesia etc. (Indian Medical Association vs VP Shantha & Ors on 13 November, 1995, 1996 AIR 550, 1995 SCC (6) 651; Spring Meadows Hospital v. Harjol Ahluwalia SC/1014/1998: (1998) 4 SCC 39 ; Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka and Ors, SC/4119 of 1999 and 3126 of 2000)

o Relatives found a pair of scissors while collecting the last remains. Compensation of Rs. 1.20 lakhs (Nihal Kaur vs Director, P.G.I.M.S.R. (1996) CPJ 112; Jacob Mathew vs State of Punjab and Anr: 5th day of August 2005: 334/2005/SCI/ 144-145 of 2004; Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka and Ors, SC/4119 of 1999 and 3126 of 2000)

o Mop left in abdomen → second surgery → death (Achutrao Haribhau Khodwa & Ors. vs State of Maharashtra and Ors. (1996) 2 SCC 634; Jacob Mathew vs State of Punjab and Anr: 5th day of August 2005: 334/2005/SCI/ 144-145 of 2004; Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka and Ors, SC/4119 of 1999 and 3126 of 2000)

Medical records: Failure to maintain medical records, failure to comply with the request for medical records by the patient or their authorised representative or tampering with medical records

Medical certificate: Issuing false, misleading or improper certificates

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Consent: Allegation of informed consent not taken. In Samira Kohli vs Dr. Prabha Manchanda and Anr, SCI, Civil Appeal No. 1949 of 2004, 16.01.2008, the Supreme Court observed:

o “… that remote risk of damage (referred to as risk at 1 or 2%) need not be

disclosed but if the risk of damage is substantial (referred to as 10% risk), it may have to be disclosed.

o ……. in India we may not follow the stringent consent as is the practice in the west.

o “We may note here that courts in Canada and Australia have moved towards Canterbury standard of disclosure and informed consent “

o “ We have however, consciously preferred the 'real consent' concept evolved in Bolam and Sidaway in preference to the 'reasonably prudent patient test' in Canterbury, having regard to the ground realities in medical and health-care in India. But if medical practitioners and private hospitals become more and more commercialized, and if there is a corresponding increase in the awareness of patient's rights among the public, inevitably, a day may come when we may have to move towards Canterbury. But not for the present.”

Relief beyond that asked by the complainant. The onus of the complaint lies on the complainant. It is NOT the duty of the inquiry committee to find faults while conducting an inquiry of facts not mentioned by the complainant. o “Reverting back to the facts of the case before us, we are satisfied that all the

averments made in the complaint, even if held to be proved, do not make out a case of criminal rashness or negligence on the part of the accused appellant. It is not the case of the complainant that the accused-appellant was not a doctor qualified to treat the patient whom he agreed to treat. It is a case of non-availability of oxygen cylinder either because of the hospital having failed to keep available a gas cylinder or because of the gas cylinder being found empty. Then, probably the hospital may be liable in civil law (or may not be -- we express no opinion thereon) but the accused appellant cannot be proceeded against under Section 304A IPC on the parameters of Bolam’s test.” Jacob Mathew vs State of Punjab and Anr: 5th day of August 2005: 334/2005/SCI/ 144-145 of 2004

Legal Opinion: The Council must have before it a specific complaint by a patient or a relative. The Council cannot generally enquire into the entire case otherwise an unhappy patient can make a general complaint, without specifics, and every doctor will have to justify himself before the Council. A specific allegation is, thus, the requirement of every complaint and the Council, which is a body created by law to examine individual cases must restrict itself to those allegations. (Mukul Rohatgi, Senior Advocate, Supreme Court, 2011)

Give a chance to defend their quantum of punishment by the complainant and the defendant: Following Codes of Criminal Procedure (CrPC), 1973 are applicable to quasi-judicial bodies under the law of natural justice.

o Section 235 CrPC: Judgment of acquittal or conviction:

(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case. (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360 (Order to release on probation of good conduct or after admonition), hear the accused on the question of sentence, and then pass sentence on him according to law.

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o Section 248 CrPC: Acquittal or conviction.

(1) If, in any case under this Chapter in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal. (2) Where, in any case under this Chapter, the Magistrate finds the accused guilty, but does not proceed in accordance with the provisions of section 325 (the punishment duration is beyond the power of the judge) or section 360 (Order to release on probation of good conduct or after admonition), he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law…”

Powers for action

MCI Code of Ethics Regulations 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 …”

DMC Act Section 21: Disciplinary action including removal of names from the register: (2) If a registered practitioner has been, after due inquiry held by the Council or by the Executive Committee in the prescribed manner, found guilty of any misconduct by the Council or the Executive Committee, the Council may …” Explanation. For the purpose of this section a registered practitioner shall be deemed to be guilty of misconduct if—

o he is convicted by a criminal court for an offence which involves moral turpitude and which is cognizable within the meaning of the Code of Criminal Procedure, 1974 (2 of 1974), or

o in the opinion of the Council his conduct is infamous in relation to the medical profession particularly, under any Code of Ethics prescribed by the Council or by the Medical Council of India constituted under the Indian Medical Council Act, 1956 (102 of 1956) in this behalf.

Possible actions taken by the medical council The medical council can dismiss the complaint.

DMC Rules, 2003, Section 32: “The complaint shall contain the following particulars:—

a) the name, description and address of the complainant; b) the name, description and address of the opposite party or parties, as the case

may be, as far as they can be ascertained; c) the facts relating to the complaint,, when the cause of action arose and what

are the grounds or causes of the complaint; d) the documents in support of the complaint if any; e) the relief which the complaint claims.

No complaint shall be entertained unless it is in writing and signed by the person making it. The complaint shall be verified by the complainant. The complainant shall file six copies of the complaint along with such number of copies as there are opposite parties in the complaint. All anonymous and frivolous complaints shall be rejected.”

The medical councils can rule as “No negligence”

The medical councils can rule as “No professional misconduct”

The complaint may be found to be “Administrative in nature” In its order, DMC/DC/F.14/Comp.642/ 2010 dated 7th June 2010, the Council held: “… Most of

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the other issues raised in the complaint are administrative in nature and hence be referred to Directorate of Health Services for appropriate action.”

The council may avoid commenting on a matter that is sub judice. In KCA vs Dr. CS (MCI F.No.828/2010), the complainant alleged that “Dr. CS had been harassing the complainant and his family by filing false criminal case against him. The Committee is of the view that this matter is outside the purview of the Medical Council of India and hence no action can be taken against the doctor on the basis of this complaint.”

Similarly, in DMC/DC/F. 14/Comp. 333/2/2006/, dated 18th September, 2006, the council observed “… the same pertains to issues that are sub judice, hence, the complaint cannot be examined.”

The matter relates to functioning of the hospital and no negligence can be found against the doctor (DMC/DC/F. 14/Comp. 347/2008/, dated 5th August, 2008).

Withdrawal of complaint or complainant not pursuing it: In Dr SSB vs SK (F. No. 196/2011), the MCI Ethics Committee “… also noted that the complainant in his letter dated nil, received by the Council on 14.05.2012, had stated that he has withdrawn his complaint dated 02.05.2011 lodged against the doctors. The Ethics Committee observed that the complainant seemed no longer interested to pursue his complaint and accordingly the Ethics Committee decided to dispose of the above mentioned complaint.”

Time barred complaint: In F.No.123/2011, the MCI Ethics Committee, decided not to admit the said appeal as it was a time barred case in terms of Clause 8.8 of the Ethics Regulations namely the “Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002.”

In V. N. Shrikhande vs Anita Sena Fernandes on 20 October, 2010, the Supreme Court of India observed that “if the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24A (2), the consumer forums will have no option but to dismiss the same.”

If relief claimed is beyond the scope of the council (DMC/DC/F.14/Comp.331/2/2006/, dated 18th September, 2006)

A complaint in the form of legal notice may be dismissed. In DMC/DC/F-14/568/2009, dated 22nd May, 2009, “the Delhi Medical Council has observed that a legal notice does not constitute a proper complaint in terms of Rule 32 of the Delhi Medical Council Rules 2003 and the same stands rejected.”

Complaint in the form of email may be dismissed. In DMC/DC/F.14/Comp.496/2008/, dated 28th July, 2008, the Council observed as follows: “… on perusal of the email, the Delhi Medical Council has observed that in light of the provisions of Delhi Medical Council Act and Rules made thereunder, which mandates that “No complaint shall be entertained unless it is in writing and signed by the person making it”, this email cannot be entertained.”

The council cannot examine any criminal complaint under IPC.

Frivolous complaints may be dismissed. According to Section 10(f) of DMC Act, 1997, the council can take action against frivolous complaints. Section 10 (g) of DMC Act, 1997 also enumerates one of the

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powers, duties and functions of the council to be “to provide protection to its members in discharging professional duties.” Section 26 of the Consumer Protection Act, 1986 also provides for dismissal of frivolous or vexatious complaints. “Where a complaint instituted before the District Forum, the State Commission or as the case may be, the National Commission, is found to be frivolous or vexatious, it shall, for reasons to be recorded in writing, dismiss the complaint and make an order that the complainant shall pay to the opposite party such cost, not exceeding ten thousand rupees, as may be specified in the order.”

The medical council can give a ruling of professional misconduct.

Pardon (under the word ‘May”)

MCI 8.2 “… Upon receipt of any complaint of professional misconduct, the appropriate Medical Council would hold an enquiry and give opportunity to the registered medical practitioner to be heard in person or by pleader. If the medical practitioner is found to be guilty of committing professional misconduct, the appropriate Medical Council MAY …” DMC Act, 1997 Section 21(2) If a registered practitioner has been, after due inquiry held by the Council or by the Executive Committee in the prescribed manner, found guilty of any misconduct by the Council or the Executive Committee, the Council MAY …”

Allow a plea: A plea is simply an answer made by someone in a civil or criminal case under common law. In response to a criminal charge (professional misconduct in the case of a doctor), the person may plead guilty, not guilty, no contest or afford plea. Under the common law, a plea of ‘guilty’ by the defendant waives trial of the charge, offences and the defendants may be sentenced immediately. If pleading guilty with an intent to get less punishment, may be pardoned or merit a warning. This also avoids the mental harassment of a long trial.

Apology (personal or public): To be read with Regulation 8.2 of MCI Act

The council may award compensation to the complainant. Section 10(f) of DMC Act, 1997 has defined the Powers, duties and functions of the Council. It states that “subject to such conditions as may be prescribed by or under the provisions of this Act, the powers, duties and functions of the Council shall be … f) to receive complaints from public (including patients and their relatives) against misconduct or negligence by a medical practitioner, to proceed for inquest, take a decision on the merits of the case and to initiate disciplinary action or award compensation …”

The council may issue a warning to the physician. Under Section 21 of DMC Act, 1997 (Disciplinary action including removal of names from the register), the council may issue a letter of warning to the physician, if he/she has been, after due inquiry held by the Council or by the Executive Committee in the prescribed manner, found guilty of any misconduct by the Council or the Executive Committee.

Compromise/ Arbitration/Withdrawal of complaint: NHI vs DGHS, DMC/DC/14/2/Comp.230/2006/

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The council may ask the physician to attend CMEs or undergo training in the subject. In an appeal (F. No. 826/2010) against the order, DMC/DC/F.14/Comp.591/2010/ dated 19th April, 2010, the MCI while upholding the order of the DMC observed that both doctors should attend CME for 15 days for 3 years and submit compliance report.

“The Ethics Committee noted that as suggested by the High Court of New Delhi under WP(c) 5058/2011 & WP (c) 6084/2011 dated 16th September, 2011, the above doctors need not undergo CME programs only in the hospitals where they have undergone sub specialty training. They have to undergo 15 days of continuous Medical Education Program (CME) and continuous professional development program (CPD) every year for three years in Ophthalmology, especially in their respective areas of sub specialty. They can participate in workshops, Seminars, symposium, panel discussions, clinical meetings, Journal clubs, teaching programs etc. in recognized international, National and State conferences and teaching institutions. They can participate in teaching programs in their own institutions of repute. They can participate in such programs in the institutions where they obtained their sub specialty training. Six monthly report of such training to be submitted to Secretary, Medical Council of India for the next three years as compliance.”

Fine: This has not been defined in council acts

The council may temporarily restrict the doctor from performing certain procedures or seeing certain types of patients.

o MCI Act 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.

“The Ethics Committee of the Medical Council of India considered … complaints against Dr. V and after hearing both the parties and perusing the records and FIR, it noted that Dr. V has been accused of serious allegations of violating the faith, reposed in a doctor by hapless patient. He was found to have misused his profession by indulging in various acts and omission which is unbecoming of a medical practitioner. Having regard to seriousness and nature of allegations, the Ethics Committee recommended that medical license of Dr. RV be suspended during the pendency of the criminal case against him.” Central Administrative Tribunal – Delhi Dr. Rakesh Verma vs The Secretary on 22 May, 2013

The council may temporarily suspend the licence to practice for acts of professional misconduct.

o MCI 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. Deletion from the Register shall be widely publicized in local press as well as in the publications of different Medical Associations/ Societies/Bodies.”

o Section 21.2 of DMC Act, 1997: If a registered practitioner has been, after due

inquiry held by the Council or by the Executive Committee in the prescribed manner, found guilty of any misconduct by the Council or the Executive Committee, the Council may

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(b) direct the name of such practitioner— (i) to be removed from the register for such period as may be specified in the aforesaid direction; or (ii) to be removed from the register permanently.

The duration of suspension of license is to be decided by the respective appropriate councils on case to case basis (MCI 8.2), which can be TRC (till the rising of the council court), 0-24 weeks ( multiples of four weeks each)

The councils may permanently suspend the license to practice: MCI 8.2, DMC 21.2b (ii)

The councils may refer the matter to the police for inquiry under relevant IPC sections.

When is it a case of negligence? If no inquiry or experts are required, then it is a clear case of negligence. In such cases, medical negligence is established based on the doctrine of res ipsa loquitur (the thing speaks for itself).

If there is any evidence of prima facie case, never events or mens rea (criminal intent).

If there is violation of any of the following SCI recommendations (Martin F. D'Souza vs Mohd. Ishfaq, 3541 of 2002, dated 17.02.2009)

o Current practices, infrastructure, paramedical and other staff, hygiene and

sterility o No prescription should ordinarily be given without actual examination o The tendency to give prescription over the telephone, except in an acute

emergency, should be avoided o A doctor should not merely go by the version of the patient regarding his

symptoms, but should also make his own analysis including tests and investigations where necessary

o A doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient

o An expert should be consulted in case of any doubt; Full record of the diagnosis, treatment, etc. should be maintained.

o Not maintaining complete records of diagnosis, treatment etc.

If there is any violation of established treatment guidelines with no consent.

If informed consent was not taken

If a copy of medical records were not given in time despite request by the patient or authorized person

If the act in question is a willful act

If the patient was neglected at any time or not attended to in an emergency Death of a patient does not always mean negligence In its judgment in Dr. Suresh Gupta vs. Government of N.C.T. of Delhi and another AIR 2004 SC 4091 Appeal (crl.) 778 of 2004, the Supreme Court of India said, “… the cause of death is stated to be 'not introducing a cuffed endotracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage'. This act attributed to the doctor, even if accepted to be true, can be described as negligent act as there was lack of due

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care and precaution. For this act of negligence he may be liable in tort but his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable. Between civil and criminal liability of a doctor causing death of his patient the court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrong doing i.e. a higher degree of morally blameworthy conduct. To convict, therefore, a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The courts have, therefore, always insisted in the case of alleged criminal offence against doctor causing death of his patient during treatment, that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable.” Professional misconduct or negligence Professional misconduct or negligence may be viewed as different when deciding upon the quantum of punishment.

1. DMC Act (32): Complaint against medical practitioner. (1) “The Council may inquire into complaint against medical practitioner either suo motu or on the basis of any complaint made to the Council in respect of misconduct or negligence of any medical practitioner for the purposes of the Act through the Disciplinary Committee …”

2. DMC Act [21 (2)] talks about who can be punished. “If a registered practitioner has been, after due inquiry held by the Council or by the Executive Committee in the prescribed manner, found guilty of any misconduct by the Council or the Executive Committee, the Council may— issue a letter of warning to such practitioner; or direct the name of such practitioner (i) to be removed from the register for such period as may be specified in the aforesaid direction; or (ii) to be removed from the register permanently. Explanation—For the purpose of this section a registered practitioner shall be deemed to be guilty of misconduct if— he is convicted by a criminal court for an offence which involves moral turpitude and which is cognizable within the meaning of the Code of Criminal Procedure, 1974 (2 of 1974), or in the opinion of the Council his conduct is infamous in relation to the medical profession particularly, under any Code of Ethics prescribed by the Council or by the Medical Council of India constituted under the Indian Medical Council Act, 1956 (102 of 1956) in this behalf.

Section 10(f) of DMC Act, 1997 has defined one of the powers, duties and functions of the Council as “to receive complaints from public (including patients and their relatives) against misconduct or negligence by a medical practitioner, to proceed for inquest, take a decision on the merits of the case and to initiate disciplinary action or award compensation and similarly to take action against frivolous complaints.” Note: This clause differentiates misconduct and negligence and defines the punishment of disciplinary action for misconduct and “award compensation” for negligence.

MCI Chapter 6 and 7 have also separately defined unethical acts and acts that come under purview of professional misconduct, as described already.

Chapter 3 of the MCI Act further defines the duties of the physician in consultation, the violation of which would constitute professional misconduct.

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o Unnecessary consultations and referrals should be avoided (3.1) o Consultation should be for the patient’s benefit (3.2) o Punctuality in consultation should be observed by the physician (3.3) o Statement to Patient after Consultation (3.4) o Treatment after consultation (3.5) o The name and designation along with registration details should be mentioned in

prescription pad (3.7.2) Note: In Government hospital where the patient–load is heavy, the name of the prescribing doctor must be written below his/her signature.

Civil or criminal negligence: Quantum of punishment Negligence may be different in civil and criminal law as also the parameters to prove civil negligence and criminal negligence. In Jacob Mathew vs State of Punjab and Anr: 5th day of August 2005: 334/2005/SCI/ 144-145 of 2004, the Supreme Court of India observed: “Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability…To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.” Summing up its conclusion in the same judgement, the Bench comprising of Chief Justice RC Lahoti, Justice GP Mathur and Justice PK Balasubramanyam observed: “… The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.” In Martin F. D'Souza vs Mohd. Ishfaq, 3541 of 2002, dated 17.02.2009, the Supreme Court of India held “… It has been stated that simple negligence may result only in civil liability, but gross negligence or recklessness may result in criminal liability as well. For civil liability only damages can be imposed by the court but for criminal liability the doctor can also be sent to jail (apart from damages which may be imposed on him in a civil suit or by the consumer fora). However, what is simple negligence and what is gross negligence may be a matter of dispute even among experts. Note: Deficiency of service and simple negligence only attracts the law of torts. The very fact doctors are covered under professional indemnity insurance, it means that they are liable for trial for awarding compensation to the complainant. 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. Jacob Mathew vs State of Punjab and Anr: 5th day of August 2005: 334/2005/SCI/ 144-145 of 2004