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MEDICAL PRACTICE – A CRIME UNDER WHITE COLLAR CRIME

Malpractice : - Under medical Science malpractice is the wrongful and

improper practice in medicine or absence of reasonable care and skill. Thus
also includes the willful or intentional neglect of a patient by a medical
practitioner as a result of which the patient may receive bodily injuries, pain
or suffering or death. The expression “negligence” includes the acts of both
‘omission’ i.e., not doing a thing required to be done and ‘commission’ i.e.,
doing a thing which a prudent man under the given circumstances will not do.
‘Negligence’ is actionable both under civil and criminal laws, but where
negligence is a essential ingredient of the offence, the negligence to be
proved by the prosecution must be culpable or gross and not negligence
based upon an error of judgment.

Syed Akbar vs. State of Karnataka AIR 1979 Sc 1843.

Criminal Malpractice: - Criminal malpractice occur, when a doctor during the

course of management of a case violates the provisions of penal law and
subject himself to prosecution by the stated or to a complaint are by the
concerned party. The circumstances are: -

 A Doctor is to report all cases of violence coming to his

knowledge, in which the commission of criminal acts suspected. If
he fails to abide by this provision of the law, he will be liable for
punishment under Sec -202 I.P.C.
 A plastic surgeon may alter the features of ridge characteristics of
a criminal to erase the identification so that his foot print / full
proof identification mark gets obliterated (destroyed) which
generally happens in USA and some advanced country amounts to
an unlawful act. Cronzales etal, Legal Medicine, Pathology and
Toxicology (1954) Appleton century crafts 13C p 917.
 A Doctor, if willfully falsifies a birth or death certificate or
prepares a fraudulent affidavit for any purpose or willfully

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attempts to conceal the nature of a criminal act, is making him

liable for criminal proceeding.
 In the event of the death of a patient on account of gross
negligence, carelessness or profound ignorance either during
administration of anesthesia prescription of medicine or
administration of drugs or management of surgery cases, the
doctors is liable for persecution against his act of causing death by
rash and negligent act under the provisions of section – 304-A,
I.P.C. and is punishable with imprisonment of two years/ fine or
both.
 If the patient does not die but suffers due to carelessness,
negligence and profound ignorance of medical science as
evidenced by:
a) The prescription of a wrong medicine and its application to
the sensitive areas like ears or eyes or as to cause less of vision or
hearing capabilities.

b) Operation on a wrong patient or of a limb/organ not

requiring any operation.

c) Leaving surgical instruments or surgical swabs inside the

body, which at times, takes place in cases of abdominal surgery.

d) Incompetent administration of general anesthesia,. The

Doctor’s act amounts to medical malpractice.

 When a Doctor uses his professional skill and capabilities for an

illegal act, for instance, causing a criminal abortion and not a
therapeutic abortion or any act in relation to an abortion out side
the scope of the medical termination of pregnancy Act, 1972, he
has indulged in the commission of an act, which is within the
mischief of criminal malpractice.

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 Medical examination of a female patient without her consent

amounts to criminal malpractice and by way of precaution and
safety against any charge or allegation of criminal malpractice
accruing (resulting) from this type of negligence, the doctor
should obtain the consent of the female patient or her guardian
under certain circumstances. A male medical practitioner should
examine a female patient in the presence of another female, Sec.
18 of the workmen’s compensation Rules, 1924 present’s this.
 Performing a professional duty under the influence of drugs or an
intoxicant amount to an act of criminal malpractice.

Medical malpractice
Framework and goals of the system
The social goals of malpractice litigation include deterrence against unsafe
practices, compensation for injury through negligence, and exact corrective
justice. The attorney acts as the gatekeeper by evaluating the prospective
plaintiff’s story, gauging the costs of bringing the lawsuit, and estimates the
probability of success and the likely award. The functioning of the malpractice
system is efficient in theory; the actual practice is more complicated.
Empirical research on the malpractice system
Studies from different parts of the US showed identical rates of iatrogenic
injury (4%-5% of admissions) and malpractice claims (10%). While only 2% of
negligent injuries resulted in malpractice claims, only 17% of malpractice
claims involved negligence. The key predictor of payment was the plaintiff’s
degree of disability. The data reveal a profoundly inaccurate and inefficient
mechanism for distributing com-pensation. Sixty per cent of compen-sation is
absorbed by administrative costs (predominantly legal fees).
The malpractice system’s role in improving care is less well studied. Tort law
encourages ordering of tests and procedures of little medical benefit, primarily
for the purpose of reducing medicolegal risk. A new malpractice insurance
crisis has evolved over the past few years in the shadow of a patient-safety
movement precipitated by The Institute of Medicine’s 2000 report on medical
errors. The interconnectedness of patient safety and malpractice is increasingly
apparent.

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Malpractice law and patient safety

There is a deep-seated tension between the malpractice system and goals of
the patient-safety movement. The problem is one of conflicting cultures: trial
attorneys believe that the threat of litigation makes doctors practise more
safely, but the punitive, individualistic, adversarial approach of tort law is
antithetical to the non-punitive, systems-oriented, cooperative strategies of
the patient-safety movement.
Transparency has become the leitmotif of the patient-safety movement: to
learn from errors, we must first identify them; to identify them, we must foster
an atmosphere that is conducive to openness about mistakes. Hospitals and
physicians must be honest with patients about medical errors, report such
events to one another and to regulators, and address methods of prevention.
To nurture openness, experts stress that most errors arise from the faulty
systems, not from clinicians’ incompetence or carelessness. In sharp contrast,
tort law targets individual physicians, assigning blame and demanding
compensation on the basis of proof of negligence. Concern about exposure to
malpractice litigation diminishes the interest of the medical profession in
patient-safety activities, as doctors feel that they are being asked to be open
about errors with little or no assurance of legal protection.
Tort reform
Conventional tort reforms can be divided into:
A. Limiting access to court. Screening panels evaluate the merits of claims before
they reach court.
B. Change liability rules to reduce the size of payouts.
C. Caps on damages awards and attorneys’ fees.
Critics of malpractice litigation point out that it is unrealistic to expect that
increased levels of malpractice litigation will promote patient safety or make
compensation for injuries more accurate or fair. Also, insurance premiums are
dictated as much by losses that insurance companies suffer as by the size of
the payouts and therefore tort reform may not prevent premium crises.
Reform of the system
Over the past 20 years, a growing sense that the tort system is flawed has led
to a number of alternatives. The leading recommendations include using
alternative mechanisms to resolve disputes, dispensing with negligence as the
basis for compensation (no-fault) and locating responsibility for accidents at
the institutional level (enterprise liability). Most likely, this will result in
another round of conventional tort reforms, which will do little to alleviate the

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haphazardness of compensation. Proponents of patient safety will continue to

wrestle with an adversarial litigation system that undermines the goals of
trans-parency and error reduction.
Commentary
In 1992, the Kerala High Court extended the 1986 Consumer Protection Act to
medical malpractice and negligence. While activists and consumer protection
groups welcomed this, most physicians were unanimous in their opposition
and promptly took this to the Supreme Court (1). The Kerala High Court’s
opinion was upheld by the Supreme Court. Rules were drawn up and
appropriate courts established in all states to handle consumer complaints.
While the lay press has published many accounts of its aftermath, mainstream
medical journals have been surprisingly silent. In contrast, several articles have
appeared in the pages of this Journal (2, 3, 4, 5)..
Almost a decade after the High Court ruling, panellists at an annual Tamil Nadu
Orthopaedic Association meeting (3) expressed that the Act was needed as
unethical practices had become common in the medical profession and the Act
had forced an improvement in the equipment of nursing homes. The lawyers
on the panel thought that the present Act needed fine-tuning.
In terms of error reporting, a study examined physician attitudes towards
revealing iatrogenic errors to patients. Doctors at the Apollo Hospitals in New
Delhi and at the University of Chicago Hospital in Chicago were asked to
complete a questionnaire (4), which presented three scenarios: A 75-year-old,
terminally ill patient suffers a cardiac arrest; a 75-year-old, terminally ill patient
suffers a cardiac arrest from an unknown allergy to an antibiotic; and a 75-
year-old, terminally ill patient suffers a cardiac arrest as a result of a known but
forgotten allergy to a prescribed antibiotic. In each case, the physician is asked
whether or not he/she would resuscitate the patient. Who is informed when a
mistake is made? Are there any legal issues that are of concern when revealing
iatrogenic error? Was any training received in medical school on how to handle
mistakes?
In Delhi, 55% would resuscitate the patient in scenario 1. This increased to
87.5% for scenario 2 and 95% for scenario 3. The corresponding figures for the
US were 50%, 82.5% and 82.5%. In both countries, almost all the doctors felt a
sense of moral duty to resuscitate iatrogenic cardiac arrest. In Delhi, 57.5%
could not identify a hospital department they could report the error to, while
in Chicago 87% would report it to the risk management rather than quality
assurance department. Seventy-five per cent of the Indian and 90% of the US
physicians would report the error to the patient, and 72.5% to the patient’s

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family also. The most common reason for this was the sense of duty to be
honest with the patient and family. Ninety per cent of the doctors in both
countries were concerned about the legal ramifications. Sixty-five per cent of
the Indian doctors and 50% of the US physicians said they had not received any
instruction during their training on how to handle mistakes. The similarity
between the physicians’ responses in the two countries is striking. Despite
differences in the cultural and health care settings, physicians in both countries
felt a moral duty to resuscitate a patient who had suffered an iatrogenic injury.
The malpractice systems in India and the US differ mainly in that in the US such
cases are handled by state courts. Guilt and retribution are determined by a
jury. Faced with the stark contrast of a ‘poor’ disabled patient against a ‘rich’
insurance company and doctor, juries often favour the patient and large
awards for pain and suffering are not unusual. In India, special consumer
courts handle the cases. Awards are restricted to actual damages. Thus, the
kind of malpractice insurance crises seen in the US are not likely here. In
addition, lawyers are not permitted to take cases on contingency basis. In
India, doctors continue to have an exalted status, with few patients, even
wealthy ones, questioning their decisions, though this may be changing.
However, neither system has the capacity to fairly and accurately identify all
errors and injuries that result. In the US, there is a fledgling patient-safety
movement to reduce the rate of iatrogenic errors with a legal require-ment for
doctors and hospitals to report all errors. At present, there is no move to link
this with a compensation scheme, although many approaches have been
proposed. Dr Sunil Pandya (5) described the New Zealand practice of
establishing a fund to compensate patients who suffer an injury, whether from
negligence or malpractice. It is time doctors in India take the initiative and
develop similar proposals to self-monitor and report errors not only to reduce
the rate of inappropriate care and negligent injuries but also to establish fair
guidelines for compen-sation of those injured.

Medical Malpractice in India

Medical malpractice is an act of negligence committed by a medical provider, a
physician in most situations. It is defined as doing something a medical
provider of ordinary skill would not have done, or failing to do that which a
medical provider of ordinary skill would have done.

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An individual may be subject to one of the various forms of medical

malpractice whenever he or she seeks the care of a medical provider.
Malpractice can be constituted by something as simple as failing to put the
rails of a hospital bed in the upright position, to something as complex as
improperly performing open heart surgery. A related issue in these cases is
whether a patient has provided informed consent to a particular treatment.
Only if a patient has been informed of the details, risks, benefits and
alternatives to a recommended form of care can he or she rightly be said to
have given informed consent.

Fortunately, there are laws that entitle patients to receive complete medical
care. If you have been seriously injured due to substandard medical care, our
attorneys may be able to obtain compensations on your behalf for the damage
caused. To establish a medical malpractice claim, there must be injury and
damage to the patient directly resulting from the negligence. A shocking fact
about medical malpractice is that it frequently goes undetected or at least
overlooked. Different studies have concluded that the percentage of medical
negligence that escapes lawsuits may approach ninety (90%)*. In Ohio, as
elsewhere, pursuing a medical malpractice case is a tedious, time consuming,
and expensive process. Defense attorneys know this and make it as difficult,
costly and cumbersome as possible to successfully prosecute a claim. People
witness firsthand the conspiracy of silence in the local medical communities.
Patients ordinarily receive very little candid, truthful assistance by involved
physicians regarding identifying medical negligence when it occurs. For similar
reasons, the negligent physicians have a much easier time locating physician
experts to support the quality of their care.

Therefore, it takes a tough, experienced, and respected law firm to successfully

prosecute negligence cases. At the firm of Wolske & Associates, attorneys
possess the requisite level of skill and expertise to successfully win full and fair
compensation on behalf of medical malpractice clients.

The last few decades have seen many scientific and technological advances,
decreasing mortality, morbidity and overall improvement in quality of life. At
the same time there are some negative changes such as decreasing standard of

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medical attention, decreasing ethical values, commercialization and corporate

culture in the managements of patients. These changes have significantly
affected the doctor patient relationship which was based on mutual trust. In
today's situation this relationship is strained and is bringing doctors under the
ambit of Consumer Protection Act. Of the challenges, in all likelihood, none can
be so threatening and draining for a doctor, on an emotional, personal and
professional level, as being a defendant in a medical malpractice claim. The
duties of a doctor when he undertakes the treatment of the patient have been
clearly described by the Supreme Court in Lakhsman Joshi v. Trimbak. A
person, who holds himself out ready to give medical advice and treatment,
impliedly undertakes that he is possessed of skill or knowledge for the
purpose, such person when consulted by a patient owes him certain duties. A
breach of these duties gives a right of action for negligence to the patient.

In a major ruling on August 5, 2005 the Supreme Court directed law

enforcement agencies not to proceed against doctors accused of rash or
negligent act or omission without obtaining an independent and competent
medical opinion to support the charges. Noting that cases of doctors being
subjected to criminal prosecution were on the increase, the Supreme Court
held that a private complaint alleging negligence against a doctor, should not
be entertained as routine matter unless the complainant produces before the
court a credible opinion by another competent doctor supporting the charges.

The Supreme Court judgment in Jacob Mathew vs. State of Punjab is a

landmark judgment as the Supreme Court has framed guidelines under which a
Doctor could be held criminally liable on account of his professional negligence
or deficiency of service. The judgment arose on appeal filed by a doctor of
CMC, Chandigarh, who had been booked for the death of a terminally ill cancer
patient. According to the complaint made on behalf of the family members of
the deceased, Jiwan Lal who was a patient, the hospital could not provide
oxygen in time as there was no gas in the cylinder.

On facts, the apex court held that the doctor could not be prosecuted for it.
The Supreme Court said that extreme care and caution should be exercised
while initiating criminal proceedings against medical practitioners for alleged
medical negligence and drew up elaborate safeguards for them, including

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avoiding arrest unless it was inevitable. Drawing elaborately from established

provisions of law and practice, the Bench ruled that this was necessary for, the
service which medical profession renders to human being is probably the
noblest of all and hence there is a need for protecting doctors from unjust
prosecutions. Negligence in the context of medical profession necessarily calls
for a treatment with a difference. A simple lack of care, an error of judgment
or an accident is not proof of negligence on the part of the medical
professional, it stated.

The Court, however, made it clear that this did not mean that doctors cannot
be prosecuted at all. All that we are doing is to emphasize the need for care
and caution in the interest of society... the Court added.

The apex court laid down elaborate guidelines to govern prosecution of

doctors. These are:

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 charges of rashness
or negligence on the part of the accused doctor. The investigating officer,
should, before proceeding against the doctor accused of rash or negligent act
or omission, obtain an independent and competent medical opinion,
preferably from a doctor in government service qualified in that branch of
medical practice who can give an impartial and unbiased opinion (applying a
prescribed test to the facts collected in the probe).

"Unless 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. However it was made clear that
these would operate temporarily, till statutory rules were framed and issued
by the Government in consultation with the Medical Council of India. The
three-Judge Bench pointed out that negligence would amount to an offence
only if there was a mental intention. And if the negligence was not gross, it
would provide a ground for action only for recovery of damages but not any
criminal offence. The ruling went on to add that. Discretion being the better
part of valour, a medical professional would feel better advised to leave a
terminal patient to his own fate in the case of emergency where the chance of
success may be 10 per cent, rather than taking the risk of making a last-ditch

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effort towards saving the subject and facing criminal prosecution if the effort
fails. Such timidity forced upon a doctor would be a disservice to society..."

In the Court's words, the complexities of the human body and medical science
were too easily understood. For a medical accident of failure, the responsibility
may be with the medical practitioner and equally it may not. Ideals about the
medical practice, according to the Court, may be far different from the
realities. The Court agreed with the views of noted men of medicine that the
effect of encouraging frivolous cases against doctors will have a distorting
effect on doctor-patient relations and will not benefit the patient in the long
run. The essence of the Supreme Court judgment is that intention and lack of
proper care and caution? are important ingredients before which a criminal
action can be launched against a medical doctor under criminal law. In simple
terms when a doctor does not treat a patient with the proper amount of
quality of care, resulting in serious injury or death, they have committed
medical negligence.

The Constitution of India understandably does not provide any special rights to
the patient. In fact the patient's rights are basically indirect rights, which arise
or flow from the obligations of a physician or health care provider under the
Indian Medical Council (Professional Conduct, Etiquette and Ethics)
Regulations, 2002 and more importantly other fundamental rights such as the
right to know about his condition, or the right to participate in treatment
decision-making etc. Nevertheless, the decision-making primarily remains in
the hands of doctors and other health care professionals.

The relevant provision for imputing liability to doctors and associated medical
professionals is Section 304-A of the Indian Penal Code (IPC), 1860 under which
a complaint against a medical practitioner for alleged criminal medical
negligence is registered. Section 304-A provides that whoever commits
culpable homicide not amounting to murder shall be punished for life or
imprisonment for a term up to 10 years and fine as well. Section 337 of the IPC
deals with hurt caused by an act endangering life or personal safety of others.
Section 338 of the IPC relates to grievous heart by an act endangering life and
personal liberty of others. However, it has been made patently clear in a
plethora of Supreme Court judgments that the simple lack of care attracts only
civil liability and hence any and every kind of negligence may not be enough to
hold a medical professional criminally liable. The apex court said that for fixing
the criminal liability of the doctor the standard of negligence required to be
ascertained is whether it is gross negligence or recklessness. The mere lack of

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necessary care, attention and skill will not constitute gross negligence or
recklessness. The SC judgement in the Jacob Mathew case goes one step ahead
by defining what constituted gross negligence by stating that there should be a
clear intention backed by strong evidence attributable to the doctor to make
him criminally liable.

The significance of the Jacob Mathew judgment lies not just in what it says but
what it ultimately translates to. The SC guidelines for a private complaint
require for a complaint to be entertained, 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. This part of the judgment has been a cause of concern for various
consumer activists across the country who has serious doubts as to the efficacy
of having any doctor to come forward and support charges leveled against
another from his own fraternity. Mr. J. Pookkat of the Consumer Online
Foundation echoes this feeling and suggests Once peers get involved in the
picture, they are all equally interested parties and their own biases and
sympathies creep in. A mechanism should be put in place involving a medical
teacher and not a practicing doctor along with consumer activists. However
the judgment realizes that what is being done is actually in the long term
interest of patients. Application of Consumer Protection Act to medical
profession and the increasing number of litigation, though has protected the
patients but at the same time has made the doctors overcautious and
apprehensive. The distrust of patients and apprehension of being exploited
economically have made things difficult for both patients and doctors. The high
cost of inputs, commercial angle to practice of medicine, ever increasing
dependence on technology, high-tech equipment, supportive staff, are making
health services not only unaffordable but also inaccessible especially for the
poor. Therefore, to that extent the Supreme Court judgment is welcome. The
Court was seized of this issue when it notes..."Negligence in the context of
medical profession necessarily calls for a treatment with a difference...A simple
lack of care, an error of judgment or an accident is not proof of negligence on
the part of the medical professional," it stated. The Court, however, made it
clear that this did not mean that doctors cannot be prosecuted at all. "All that
we are doing is to emphasize the need for care and caution in the interest of
society..."

Experienced practitioners are known to have refused to treat

serious/complicated cases for fear of being accused of negligence. Young men

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are even deterred from entering the profession because of the risks involved
as had been noted in a IMA-CCC seminar held in September 2004.

Therefore, though it is necessary to expose the errant practices being

undertaken by doctors, at the same time it is in the interest of the patients to
also protect the rights of the doctors and to understand the risks involved
while they are dealing with complicated cases.

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