How to deal with medical negligence complaints received against doctors under IPC 304A: TN DGP issues guidelines, check out details

Chennai: Taking note of the fact that criminal cases under section 304 (A) of the Indian Penal Code, which is culpable homicide not amounting to murder, are being registered against medical practitioners for alleged medical negligence, the Director General of Police, Tamil Nadu has now issued guidelines for the police personnel to follow proper protocol before booking doctors in such cases.

"Such extreme action is unjustified as it causes damage to the reputation of the medical practitioner. It also demoralises the entire health care fraternity, who take care of the health of people," noted the DGP in a recent Circular Memorandum dated 21.06.2023.

Referring to the Guidelines issued by the Supreme Court and previous guidelines issued by the Tamil Nadu Government, the Head of the Police Force of the State reiterated that whenever a complaint of death due to negligence on the part of Medical Practitioners is received, the investigating officers should comply with the following guidelines:

a) Make thorough enquiry and collect all oral and documentary evidences.

b) Obtain the opinion of another competent Government doctor preferably from the Medical College Hospital.

c) Obtain Legal opinion if a criminality under 304(A) is made out with the available evidences.

d) The doctor accused of rashness or negligence, shall not be arrested in a routine manner.

e) The CoPs and SPs should personally review and weigh the evidences before registration of case.

f) An express report on registration of cases, facts and circumstances with details of evidence of the case shall be sent to the DGP/HoPF within 24 hours of registration of case. 

Issuing these guidelines, the DGP also pointed out that "It may be borne in mind that, complications during treatment especially surgery are likely to happen independent of the procedures and in spite of the best efforts taken by the doctors in good faith." 

In the Memorandum, the DGP also referred to the guidelines issued by Courts and mentioned, "The Hon’ble Supreme Court of India and the Hon’ble High Court have issued guidelines time and again in this regard to the effect that the doctors shall be held criminally responsible only if a prima facie case is made out and after getting an expert opinion from a qualified doctor, preferably a Government doctor of adequate qualification and training."

Also Read: Gross negligence needed for IPC 304 A: HC relief to doctor blamed for death during DnC

Guidelines Issued by the Supreme Court:

The Apex Court in its judgment in Jacob Mathew Vs. State of Punjab dated 05.08.2005, had framed temporary rules/observations for holding a doctor guilty for "criminal negligence" under Indian Penal Code (IPC) Section 304A.

The important guidelines issued by the Supreme Court that have been mentioned by the Tamil Nadu DGP are as follows:

i) A simple lack of care, an error of judgement or an accident, is not proof of negligence on the part of a medical professional.

ii) So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available.

iii) Simply because a more skilled doctor would not have chosen to follow or resort to that practice of procedure which the accused followed.

iv) It is not possible for every professional to possess the highest level of expertise of skills in that branch which he practices.

v) A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligOpinionsOpinionsence.

vi) Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable.

vii) Human body and medical science both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in depth understanding of the working of a professional as also the nature of the job and or errors committed by chance, which do not necessarily involve the element of culpability.

viii) The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under section 304-A IPC.

ix) 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 ofrashness or negligence on the part of the accused doctor.

x) 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 normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation..

xi) A person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.

xii) A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se.

xiii) No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient.

Guidelines Issued by Tamil Nadu Health Department:

Apart from the Supreme Court directions, the Memorandum also referred to a previous guidelines issued by the Tamil Nadu Government. In its order dated 04.07.2008, the Health Department of Tamil Nadu had issued the following guidelines to be followed strictly while registering case against the Medical Practitioners:

“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. The investigation 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 normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner, simply because a charge has been levelled against him, unless his 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.”

NMC Guidelines: 

Medical Dialogues had reported that back in 2021, with an aim to put an end to the confusion regarding the issue of how the criminal negligence aspect of medico-legal cases has to be treated, the Ethics and Medical Registration Board (ERMB), operative under the National Medical Commission (NMC) had framed some guidelines that spell out the prosecution of doctors for causing death of innocent patients due to gross medical negligence or reckless therapy.

The guidelines were recently communicated by the NMC in a letter to the secretary, Ministry of Health and Family welfare in response to letter filed by Dr Kunal Saha, President PBT demanding the implementation of the directions issued by SC in this regard. 

Back in 2005, opining that the investigation officers and the private complaint cannot always be supposed to have knowledge of medical sciences to determine whether the law under Sections 304A of IPC would be applicable, the top court had also held that "Statutory rules or executive incorporating certain guidelines needs to be framed and issued by the Government of India and/or State Governments in consultation with the Medical Council of India."

The Guidelines by NMC spelled out the entire procedure of protection of doctors under IPC 304A and called for a setup of a specific district medical board that will establish negligence.

According to the NMC Guidelines, it is required that after receiving a complaint under the Indian Medical Council Act, 1956, the matter should be forwarded to the district Medical Council Board for its recommendations before making any arrest. Further, the matter may be recommended to the State Medical Council Board as well and the guidelines have clearly mentioned that a doctor accused of medical negligence may not be arrested in a routine manner.

To view the guidelines by Tamil Nadu DGP, click on the link below:

https://medicaldialogues.in/pdf_upload/tamil-nadu-dgp-212490.pdf

Also Read: IPC 304 A: NMC frames Guidelines for Prosecution of Doctors in Criminal Negligence