PROBLEMS &ISSUES IN DEALING MEDICAL NEGLIGENCE CASES:

 PROBLEMS &ISSUES IN DEALING MEDICAL NEGLIGENCE CASES:

1.Even though the supreme court directs police to obtain an independent and competent medical opinion before filing cases against alleged doctors of negligence, Investigating officers don’t know whom to approach, so they get in touch with the state medical councils.

2.Aggrieved patients feel that getting an opinion from the state medical councils amounts to conflict of interest,

3. While patients have to run from pillar to post to get justice against erring doctors, frivolous allegations and malicious proceedings cause harassment to medical practitioners.

According to legal and medical experts, a proper statutory framework will not only protect the interests of patients but also check cases of violence against doctors.

Any progress in SOLVING the problems?

A)on October 31, 2017-The MCI passed a resolution for the first time on October 31, 2017, proposing to the government to constitute medical boards with doctors specialising in respective fields of medicine.

B)on September 29, 2021 - NMC Wrote to MOH suggesting the constitution, terms of members and functioning of such medical boards at district and state levels.

C) In 2023 - A case was filed in Madras High Court seeking direction for the medical regulator to take it on priority and the court directed the regulator to do it but still the works are in the preliminary stage,”

D) The Union Ministry of Health and Family Welfare has taken up for consideration the healthcare sector’s long-standing demand to frame guidelines for determining medical negligence cases, a reply to a Right to Information (RTI) query revealed.So far, no guidelines have been framed. It is under consideration,” said Sunil Kumar Gupta, Under Secretary in the Ministry’s medical education policy section.

Though there is no guideline at present, the matter is under consideration, the Ministry said in response to an application filed under the RTI Act on behalf of PTI.

Flash back:    what Apex court & NMC stipulate in filing cases of medical negligence under  section 304A against DOCTORS?

1.In 2005.Apex Court  in the context of judgment in Jacob Mathew Vs. State of Punjab (dated 05.08.2005) had laid down interim guidelines for the future which should govern the prosecution of doctors under  criminal negligence. 

2.The Hon'ble supreme court had also held that doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him.) Unless arrested, the arrest may be withheld.

3. In 2005, Supreme court direct the govt to frame statutory rules to deal cases of criminal medical negligence :  to determine whether the law under Sections 304A of IPC would be applicable, the top court had also held that "Statutory rules or executive incorporating certain guidelines needs to be framed and issued by the Government of India and/or State Governments in consultation with the Medical Council of India."

4.Supreme Court in the matter of lalita Kumari Vs. State of U.P &OR's, vide Judgment dated 12.11.2013 (and partially modified on 05.03.2014) held that the preliminary inquiry in medical negligence cases should be made time bound and in any case, it should not exceed fifteen days generally and in exceptional cases of it must be reflected in the General dairy entry.

5. what NMC has done? 

          With an aim to put an end to the confusion regarding the issue of how the criminal negligence aspect of medico-legal cases has to be treated, the Ethics and Medical Registration Board (ERMB), operative under the National Medical Commission (NMC) has recently framed some guidelines.(GUIDELINES ONLY,NOT THE STATUTE)

Basing on above apex court directions and Mentioning that the "criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment,", in october-2021,the EMRB, operative under NMC has recommended framing the following guidelines for protecting doctors from criminal rashness or unjust prosecution against medical negligence.

"1. The prosecuting/Investigating Agency on receipt of any complaint of which criminal rashness or negligence is an ingredient against medical practitioners under the Indian Medical Council Act, 1956/ NMC Act prior to making arrest refer the complaint to district Medical Council Board for its recommendations as regards the merit of the allegation of criminal rashness or negligence, contained in the complaint. The District Medical Board should be in govt. medical college and in district hospital if the district doesn't have a medical college. (The reason being the availability of all the experts with them.) Department of forensic Medicine and Toxicology in every medical college which can be a nodal department for such board.

2. The District Medical Board on receipt of such a reference examine the allegation contained therein within two weeks from the date of its receipt and forward its recommendations to the prosecuting/ investigating Agency.

3. The prosecuting/Investigating Agency or Doctors(against whom the complaint is lodge), in case, it is dissatisfied with the recommendation of the district Medical Board may starting the reasons for such dissatisfied refer the matter to the state Medical Board for its recommendation within a period of two weeks from the receipt of recommendation of the district Medical Board.

4. The state Medical Board should have a pool of specialist from state from each specialty apart from permanent members appointed by state government. Two specialist of the concerned Branch should be included in the board on the day of receipt of the complaint or appeal.

5. The state medical board on receipt of any such reference from the prosecuting/investigating Agency would examine the mater within two weeks from the date of receipt of such reference. The state medical board shall provide reason for endorsing or rejecting the recommendation of the district medical board.

6. The prosecuting,' Investigating Agency on receipt of recommendation of the district/ state medical board may 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 officers of such medical practitioner would be informed by the prosecuting/ Investigating 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/UT, EMRB NMC informed.

7. A doctor accused of rashness or negligence may not be arrested in a routine manner (simply because allegation has been leveled against him.) Unless the alleged negligence is of gross nature; and arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officers is satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld. Further investigating agency prior to arrest of the doctor in such cases shall place factual position for consideration of concerned superintendent of police/ DCP.

8. The Boards should apply Bolam's test to facts 'Standard of responsible body of medical opinion)."

Composition of Boards:

The guidelines have further suggested that in the case of the District Board,

A) Permanent Members of the board should change at least every two years.

B) If Board is in Medical College, then one member from the Civil Surgeon office should be included.

Further, in the case of the State Board,

A) Permanent Members of Board should be changed after 2 years and a member from DGHS be included.

what IMA demands?

The IMA stands for requesting the government to establish a separate medical tribunal comprising learned doctors to deal with such cases in a time-bound manner. It also demands that the Government of India should proactively come forward to frame these guidelines, in discussion with the NMC and other medical statutory bodies &major stakeholders like IMA.

Health is given the least priority by the government.Medical fraternity rued the delay and said it shows apathy on the part of governments.