By : Damudor Arambam
(Criminal Justice Fellow at Tata Institute of Social Science, Mumbai)
Over few years, attackson medical practitioners and damaging hospital propertiesthereby disrupting the health services by mob consisting of relatives after the death of a patient are becoming normal trends in Manipur. Few years back, in the course of agitation by mob of relatives and locality, abody of a woman who died after giving birth to a baby girl was placed at the courtyard of a medical practitioner accusing formedical negligence.Such is the horrifying case of mob rule in the state.Recently there isanongoing case where family members and relatives of a 34-year-old womanThokchomKheroda Devi of KhuraiKongpal in Imphal East, who died due to profuse bleeding after giving birth to a baby at RIMS hospital, tried to storm and pelted stones at the Administrative block of the hospital,alleging the doctors responsible for the death. TheDepartment of Obstetrics and Gynaecology, RIMS, has clarified that the patient ThokchomKheroda Devi, who died from complications after giving birth, was given the best treatment and examination procedure by the doctors and tried their level best to save her life. However the Joint Action Committee (JAC) formed against the death of ThokchomKheroda rejected the claims made by the RIMS authority claiming that her life could have been saved if the doctors on duty given immediate and necessary treatment. After the demand for the suspension of the doctor and further departmental inquiry by the JAC and family members of the deceased, the RIMS authority suspended Dr. L. Trinity of Obstetrics and Gynaecology Department. Thereafter OPD was closed for two days by the medical practitioner’s community of RIMS in demand to revoke the suspension. This stepof the medical practitioners in the state further enhances the deterioration of doctor-patient relationship by causing grievance to public.The medical fraternity of the state in the said case is resorting to defensive of being hauled over for medical negligence.And even if negligence did occur, mob rule and damaging hospital is not the remedy.
Hospital in India may be held liable for their services individually or vicariously can be chargedwithnegligence. Every patient has a right to expect a certain standard care when he admits in the hands of the hospital authority. On one hand the persons who offer medical advice and treatment implicitly state that they have the skill to decide whether to take a case, to decide the treatment, and to administer that treatment. This is known as an “implied undertaking” on the part of health care providers.After the Consumer Protection Act, 1986, came into force, one can approach consumer court in order to claim for compensation and the liability in civil law is based upon the amount of damages incurred. In the criminal courts,doctors can be prosecuted under section 304A of Indian Penal Code, 1860 for causing death of any person by doing any rash or negligent act which does not amount to culpable homicide which is punishable for a term which may extend to two years.Furthermore, doctors can be held for criminal liable under section 336, 337 and 338 of IPC. As a result, a number of legal decisions have been made on what constitutes negligence and what is required to prove it.
Though it is very difficult to define negligence in jurisprudence, Salmond’s Law of Torts defined it as “an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”.The term negligence is used for the purpose of fastening the defendant with liability under the Civil law and, at times,under the Criminal law. The Supreme Court of India in the judgement of Jacob Mathew v. State of Punjabheld that negligence by medical professionals necessarily calls for a treatment with a difference and, the difference between occupational negligence and professional negligence has to be properly understood. The judgementfurther said that in order 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”.According to the judgement, 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 and 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. The Supreme Court while giving certain directions in the judgement held that indiscriminate prosecution of medical professionals for criminal negligence is counter-productive and does no service or good to the society.The present decisions of medical negligence by Supreme Court leave a lot of room for discretion, which at times may be exercised by doctors and judicial officers, in an undesirable manner. This is a challenge to the public as there is very less chance of prosecution of medical practitioners in the criminal court. And it is still difficult to prove medical negligence under the present judicial system as the burden rests solely with the claimant.
A bench of Justices MarkandeyKatju and GyanSudhaMisra in a Supreme Court case held that departmental action can be taken against governmental doctor indulging in private practice but cannot be construed as a criminal offence. The common citizens of the state believethat many doctors working in public hospitals have been indulging in private practice thereby showing indifference to their patients’ care which in fact remained an important cause of medical negligence.In fact in absence of strict implementation of rules and any monitoring mechanisms from the health department, many doctors indulge in private practice in Manipur. These practices further enhance the existing gap between medical practitionersand patients and families which has been a long standing problem in the health sector. Impliedly, the medical practitioners in the state does not owe a duty and now not necessarily liable in almost all circumstances.A patient centred initiative of rights protection is required to be appreciated in the present economic sphere where there is a rapid privatization of health care system and with the increasing efforts of Supreme Court to constitutionalize a right to health as a fundamental right. So a review of Supreme Court decisions on medical negligence would be relevant in this regard.And when there areno such precedents where doctors are penalised or punished for the ‘negligence’ in the state then, the image of the Judiciary and other redressal mechanism become so bad that people are losing faith completely. Now, peoplethinks if judiciary can’t deliver justice then it’s better to take into their hands. While mob justice has become an everyday practice in Manipur where suspected criminals are beaten and many a times being killed, ostracized and destroyed properties. In fact there is an overwhelming public acceptance of mob justice in the state. This is how mob rule is taking over in the state where medical practitioners are attacked by mob of relatives and family of a deceased patient.
There is a very less possibility to develop a health care system without error and negligence. However,at present,it is required to develop a health care system where negligence and error can be recognized and the accused whether doctor or other staff or whole department could be identified, accounted for and penalized so that justice should be given to the victims of medical negligence. Also the liability of medical professionals must be clearly defined so that they can perform their kind duties without any fear. This is so because most precious right to life in our state is at stake.