Donít let docs off the hook

Pushpa Girimaji

THE recent judgment of the Supreme Court in the case of Jacob Mathew vs the State of Punjab has raised the debate on the issue of medical negligence and the culpability of doctors. Holding that doctors cannot be treated as ordinary criminals, arrested and tried on the basis of a complaint that may be unjust or frivolous, the apex court has issued certain guidelines that need to be followed while prosecuting doctors under the Indian Penal Code. What is of concern is that if these guidelines are followed, even the doctors who may have been guilty of gross criminal negligence can escape the arm of the law. And worse, the guidelines have taken away from the citizens their right to prosecute doctors for rash and negligent acts leading to death.

The guidelines say that: "A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor".

Now how are the poor relatives of the patient to determine who is a "competent" doctor who will give "credible opinion"? And even if they manage to identify one such, will he be willing to tender an opinion on a fellow professional merely because some patient or his relative wants him to?

In a number of cases, those who file a police complaint against a doctor are either poor or illiterate people, who would most likely have received free service from a hospital and therefore have no right to seek redress before the consumer courts. And have no financial means to engage a lawyer and fight a civil suit. Besides, it is almost impossible to get medical records from hospitals and so most of them would not even have the required evidence to prove negligence. In such cases, they expect the police to do the investigation. With the new guidelines, this would become almost impossible.

The guidelines also say that the investigating officer should, before proceeding against the accused doctor, obtain an independent and competent medical opinion, preferably from a doctor in a government service qualified in that branch of medial practice applying Bolamís test to the facts collected in the investigation.

These conditions are bound to discourage police officers from investigating because in addition to locating the doctors who are likely to give impartial and unbiased opinion, the investigative officers should give them a copy of what McNair J said on what constitutes negligence by professionals in Bolam vs Friern Hospital Management Committee, so that the doctor can apply it to the facts of the case before giving his opinion. The apex courtís issued these guidelines following a police complaint filed by the relatives of Jasswant Lal Verma, against two doctors of CMC, Ludhiana. The Supreme Courtís view here was that there was no negligence or rashness on the part of the two doctors, leading to the death of the patient, who was terminally ill.

Consumers should now appeal to the Supreme Court to review this decision. What is required to protect doctors is not such guidelines, but better standards of patient care, independent and impartial system of time-bound grievance redress and stringent action against those doctors found guilty of negligence. The imposition of stiff financial penalty on those who file false or vexatious complaints would be another step to discourage frivolous complaints.

The reality of the health care system in India today is that patients hardly have any rights ó not even to their medical records. In many cases, while patients who are victims of negligence suffer the consequences throughout their lives (those who survive), the doctors responsible for it go unpunished. A complete overhaul of the health care system s required where the patientís voice is heard and his/her rights respected.