A healthcare worker squeezes the sweat out of his face masks as he takes a break from collecting swab samples for rapid antigen tests, Ahmedabad, July 24, 2020. Photo: Reuters/Amit Dave
- On March 29, a gynaecologist died by suicide after the Rajasthan police registered a case of murder against her, after a woman in her care died by postpartum haemorrhage.
- On April 13, a man who was undergoing de-addiction treatment in Ludhiana in a hospital died suddenly, and the police booked a doctor for causing death by negligence.
- Police have tended to pacify angry relatives by arresting doctors under Sections 304 or 304A, which expose doctors to criminal charges that include murder.
- Doctors’ arrests for medical negligence often happen to the ignorance or contravention of clear directions from the Supreme Court to follow certain checks and protocols.
In the last few weeks, there have been multiple instances of doctors expressing anguish at the police’s hostility towards them. On March 29, Dr Archana Sharma, a gynaecologist, died by suicide after the Rajasthan police registered a case of murder against her.
The incident followed the death of a woman in her care by postpartum haemorrhage, followed by the woman’s relatives urging the police to arrest the doctor. The police drew flak from doctors’ associations as well as civil society for their hurried decision to register a murder case based solely on allegations of medical negligence.
Shortly after, in an unrelated issue, Mumbai’s police commissioner issued a controversial “warning” to doctors. In a Facebook live session, Commissioner Sanjay Pandey alleged that patients were being treated as ‘commodities’. He went on to say that doctors who prescribed “unnecessary” tests were effectively cheating their patients and would thus be prosecuted should the police receive complaints.
These remarks upset members of the medical fraternity, who voiced their disappointment and urged the commissioner to withdraw his remarks. They pointed out that each patient is unique and that there couldn’t be a fixed rule on which tests would and wouldn’t be necessary.
The most recent incident of friction between the police and doctors occurred in Ludhiana. On April 13, a man who was undergoing de-addiction treatment in a hospital died suddenly. The police booked a doctor under Section 304A, which pertains to causing death by negligence, and arrested him.
The Indian Medical Association was irate about the police’s decision to file a criminal case and detain the doctor without obtaining an expert’s opinion – as mandated by the Supreme Court.
Indiscriminate use of criminal law
These incidents are symptomatic of the indiscriminate use of criminal law to regulate medical care and deter medical negligence. Why is the police so quick to book doctors under criminal provisions in the law when patients die? The answer requires us to pay attention to the legal framework.
Section 304A of the Indian Penal Code is a generic provision that criminalises the act of causing the death of a person through a rash or negligent act. It wasn’t enacted specifically to deal with medical negligence; the police and others frequently invoke it in cases of road accidents, workplace mishaps, building collapses, etc.
However, due to Section 304A’s broad scope and the fact that it encapsulates a cognisable offence, the police can file an FIR if the patient’s relatives can agree that their relative was the victim of medical negligence. If found guilty, the doctor could spend up to two years in prison.
There have also been instances of doctors being booked under Section 304: culpable homicide not amounting to murder. This provision is more stringent than Section 304A because a conviction under it can mean a prison sentence for up to 10 years, and or even life.
It is not uncommon for the police to disregard the difference between these two provisions, and have been known to book doctors under Section 304 when patients’ relatives allege medical negligence. The police have even gone a step further and booked doctors for murder – as in the case of the gynaecologist in Rajasthan.
Effectively, allegations of death due to medical negligence expose doctors to criminal charges that include murder.
Deaths are not always crimes
The underlying problem is the failure on the part of the police, and even a few judges, to distinguish between civil and criminal negligence. Medical negligence is said to have occurred when a medical professional fails to exercise reasonable care or when careless deviance from accepted standards of treatment harms the patient.
Criminal law is a harsh tool with which to regulate human conduct. The Supreme Court has held on more than one occasion that only gross medical negligence can amount to a criminal offence.
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The court has also said that to prosecute a medical professional for medical negligence, it should be demonstrated that she failed to do something that no prudent medical professional in her ordinary senses would have done. The most significant proposition laid down by the apex court is that simple errors of judgment, mishaps, failure of treatment and the possibility that a highly skilled doctor would have acted differently do not qualify as criminal negligence.
Having observed that the police hastily register cases and arrest doctors when allegations of medical negligence are rife, the court issued directions in Jacob Mathew v. State of Punjab (2005). It categorically directed the police to not register FIRs against doctors without obtaining an opinion from an independent and competent doctor, preferably a government doctor.
It also directed the police to not unnecessarily arrest doctors and held that it could do so only if the arrest was absolutely necessary to collect evidence.
Ignorance of Supreme Court’s directions
Despite such lucid guidance on what does and doesn’t amount to medical negligence, doctors continue to remain vulnerable to arbitrary actions of the police. Rarely are police officers pulled up for not strictly complying with the court’s directions – including their tendency to pacify a patient’s relatives by acting against the doctor.
To make matters worse, some trial courts also don’t acknowledge the difference between civil and criminal negligence. In January 2022, a trial court in Karnataka sentenced three doctors to two years in prison in connection with the death of a woman during a hysterectomy.
Though the court said that the doctors were negligent when they damaged certain ligaments and didn’t have a mechanical ventilator at their hospital, it didn’t set out reasons as to why this amounted to gross negligence under criminal law.
It is obvious that the Supreme Court’s directions on medical negligence have not percolated down to the police and the magistrates of lower courts.
The Indian government needs to stop relying on generic criminal laws and institutions to regulate medical negligence and malpractice. The law must be tailored to accommodate the nuances of medical care, instead of being indiscriminately stretched and shrunk to deal with these cases.
Such a law ought to recognise various degrees of medical negligence and also stipulate exceptions and defences. Scattered judicial directions can’t substitute clearly worded statutes and statutory procedures of investigation.
Investigation of cases that involve medical negligence and malpractice ought to be conducted by purpose-trained detectives together with medical professionals (in a relevant field). It is equally important to have specialised judges to decide these cases. This would protect doctors from arbitrary prosecutions and also help victims of malpractice and negligence pursue effective remedies.
But until then, stagnant laws and inefficient institutions will threaten liberty and due process.
Rahul Machaiah is a lawyer from Karnataka. He holds an LLM in Law and Development from Azim Premji University.