Ideal Future Law!

"Harry, they are two sides of the same coin. Life becomes living hell, but the alternative is even worse." — Jo Nesbo

I have practiced as a surgeon for about fifteen years. Thereafter, I have practiced as a medico-legal consultant for about thirty years, and during that period I served for six years as a Member Judge in the State Consumer Commission. But I am neither blind to doctor failings nor in favour of the arrest of a doctor without prima facie (not expert!) evidence.

It is in the interest of the patient and society to have control over the excessively bad behaviour of doctors as well as to control bad professional care. Criminal negligence means assessing how much thought, how much care and how much attention the doctor gave while performing an act. A doctor who is aware that they are taking an unnecessary risk for reasons best known to himself (money?) is reckless. If a different choice was available but the doctor declined to make it, this is blameworthy, and this state of mind is culpable. In simple words, the doctor was aware of the risk and had control over whether to make the obvious and logical choice to avoid it. The court must be vigilant in examining whether the reasons given for putting a patient at risk were valid in light of known advances in medical knowledge, or whether they stemmed instead from a stubborn adherence to outdated ideas.

The requirement of the twenty-first century is "Facts, Fears and the Future." It is not the punishment but the fear of punishment that will surely make doctors cautious. To deliver justice in cases of criminal medical negligence, the Indian judiciary must adopt new approaches so that, at the very least, the sufferings of victims in courts can be prevented. The court must award heavy punishments to those found guilty of criminal medical negligence.

Key Takeaways

All unnatural deaths — not just deaths from the illness treated — must be reported, and families have every right to demand answers.
FIRs under Section 106 BNS should be registered immediately on complaint, just as they are for a death caused by a driver.
Police investigation of medical deaths is not an impossible task — doctor-IPS officers already exist and can lead a SIT.
Arrest of a negligent doctor after prima facie evidence is no different from arresting any other accused of causing death.
Post-mortem, expert opinion, and an independent state-level committee are essential to remove the stigma of "doctor investigating doctor."
The State has a duty to compel hospitals — public or private — to adopt measures that protect patients' lives.

Normal Death, Unnatural Death

All unnatural deaths should be reported. For the purpose of reporting, the death of a patient can be divided as follows:

If a person falls ill and dies from the same illness for which he was admitted and treated, it is a "normal death."
All other deaths are unnatural deaths — unexpected and unexplained, particularly when family members have no access, such as in the operation theatre, ICU, labour room, cath-lab, and so on.

In the interest of victims and society, there is nothing wrong in the doctor informing the police or an authority about an unnatural death. Let the police or authority investigate to find the truth. This will satisfy the victims, and if the doctor is found prima facie negligent, he will be prosecuted. At present, there is no system to periodically collect data on patient deaths in private and government hospitals and hold them accountable for every death. In Japan, hospitals are required to report cases of medical malpractice to the police.

However, it is not necessary that an FIR be registered in every case of unnatural death. But where family members of the deceased are suspicious about the cause of death, they have every right to file a complaint, and the police should register the FIR.

CCTV cameras should be installed in hospitals at places where family members have no access. In addition, videography should be done during operations and other invasive procedures — this would be of great help in bringing out the truth. It may be noted that this practice existed in many hospitals a few years ago, though only for show and advertisement.

FIR Under Section 106 Should Be Immediately Registered

When "equality" is the fundamental right of the victim, and he lives in the era of "e-FIR," why is an FIR not registered on his complaint about the unnatural death of a loved one? Is this not inequality? If an FIR is registered when a driver causes death, why not when a doctor does?

It is information about a cognizable offence.
It is a pity that people can lodge an FIR online for any cognizable offence, but a family member (the victim) is not allowed to lodge an FIR for the death of a patient due to a doctor's negligence — neither in person nor by e-mail.
It is common experience that when poor victims (family members of the deceased) try to learn the real cause of death from the treating doctors, they get an evasive reply or are simply told it was "a known medical accident."
This is because of an imbalance of power between the strong doctor and the weak victim — and this power includes not only economic power but political power as well.
Police assistance is the only remedy open to the victim in securing transparency. A doctor is less likely to manipulate medical records — itself a crime — when facing this scrutiny. The threat of punishment certainly reduces the chance of cover-ups, and consequently, one can expect the truth about the death to emerge.

Investigation by Police

The key argument in defence is: how can a police officer with no knowledge of medical science be expected to investigate and decide that the cause of death is likely due to the gross negligence of a qualified doctor?

The answer is simple — many IPS police officers are doctors themselves. Such qualified IPS officers are proudly available in every part of India. For such cases, a SIT could be formed under such an officer, and the case investigated under his guidance and supervision. In legal terms, this is an inquest — an inquiry into the cause of death. The investigation must be carried out like any other case registered under Section 106 IPC. The police should immediately go to the hospital and conduct a panchnama, preparing a report as follows:

Dead body

Describe the position of the body, wounds, bleeding, condition of the mouth, presence of inserted tubes, other injuries, and the cause of death according to the doctor.
Send the body for post-mortem.

Place

Note where the death occurred — operation theatre, emergency room, labour room, cath-lab, ICU, or elsewhere.
Look for signs of bleeding and stains on the gowns of the surgeon and operative team, and on the floor.
Check the condition of the oxygen cylinder, suction machine, monitors, and other equipment.
A search must be conducted as in other cases, with help from forensic experts if needed.
Collect specimens such as empty drug ampules, blood bottles, and other relevant material.
Take photographs or video recordings.
Inquire whether the hospital is registered under the Clinical Establishments Act, 2010.
Seal the place for further investigation if needed.

Treating team

Note the qualifications of the doctors who operated or performed the procedure.
Note the qualifications of other team members and their roles.
Determine whether informed consent was taken from the patient.

Medical record

Must be taken into custody to reduce the chances of manipulation.
A copy may be given to the accused doctor.

Statements

Record statements of everyone directly or indirectly involved in the treatment or who witnessed the death — surgeon, anaesthetist, assistant doctors, nurses, and others.
Also record statements of other patients or persons if the police officer thinks it necessary.

Reconstruction of the scene

Nothing wrong with this — it is done in other offences too.

Arrest the Doctor?

If, after investigation and analysing the evidence, the SIT arrives at the conclusion that there is a prima facie case of negligence, it can arrest the doctor — just as police arrest a driver in a case of death caused by driving.

As mentioned earlier, the doctor performing the post-mortem is competent to give a preliminary opinion on the cause and manner of death (iatrogenic causes such as excessive bleeding, asphyxia, or perforation of organs), and the SIT may take his help before arresting the accused doctor. The SIT can also take the opinion of medico-legal consultants.

An offence under Section 106 is bailable by right, and the accused doctor can get bail easily. It is not proper to protect the reputation of any negligent person who has caused the death of another.

Post-Mortem

It should be performed by a panel of doctors.
Videography should be done in every case.
The primary findings report must be submitted to the SIT within twenty-four to forty-eight hours.
The final report should be submitted as soon as the viscera report is available.

Expert Opinion

To bring transparency and remove the stigma of "doctor investigating doctor," an independent committee should be formed at the state level.

Way back, even a Parliamentary Committee had recommended that cases of medical negligence should be inquired into by a committee of experts drawn from various fields and experience, including social activists and patients' representatives. Including a medico-legal consultant is not a bad idea either.

It is the duty of the State to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients' lives.

Conclusion

Is the Government waiting to enact such a law until it is forced by agitation, like the CJP or Gen-G? The only difference here is that the patients are guinea pigs (used for medical research) instead of cockroaches.

Someone has written nice lines: it would be very unwise to argue that just because certain liabilities are attached to the medical profession, doctors will stop practicing effectively. Just because a traffic policeman stands on the road does not stop a driver from driving — it only makes him more careful and law-abiding.