Parliament must introduce special provisions to deal with medical negligence cases: National Convention on Medicine and Law 2022

New Delhi: The Parliament must introduce special provisions in the law, to deal with the medical negligence cases against the doctors, opined the doctors, lawyers, regulators, and administrators who attended the 7th National Convention on Medicine & Law 2022.

In this regard, it was also opined that the National Medical Commission (NMC) should release a detailed guidance document to point out the difference between "gross negligence" amounting to criminal liability and "negligence" which does not.

The convention, which discussed the topic "Prosecuting Doctors For Medical Negligence - Statutory Changes Needed In IPC", was held virtually on November 6, 2022 and speakers from diverse backgrounds including former Supreme Court and High Court judges, members of the Law Commission of India also attended it.

Agreeing unanimously about the need for special provisions in the law including the Indian Penal Code (IPC), Criminal Procedure Code (CrPC), and Indian Evidence Act, many speakers of the convention also opined that Medical Tribunals need to be constituted for dealing with medical negligence cases.

While Convention was chaired by the Pro-Chancellor of Datta Meghe Institute of Medical Sciences, Dr. Vedprakash Mishra, the list of moderators included Mr. Mayank Kshirsagar, Advocate on Record, Supreme Court was the Convenor, and Dr. Parag Rindani, CEO, Wockhardt Group of Hospitals, Maharashtra.

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As per the latest media report by ET Healthworld, opining that this problem is global in nature with disastrous consequences, it was also agreed in the convention that mere consmetic changes in the existing law will not suffice and there should not be any compromise on the safety and rights of the patients. The speakers also agreed that the reasons given by the Apex Court in the Jacob Mathew case for providing special protection to the doctors in case of criminal medical negligence are requally valid till the date.

Referring to this, the former Supreme Court judge, Justice Ashok Kumar Ganguly stated that unless the suggestions made by the Supreme Court in the Jacob Mathew case are "transformed into the Letters of Law" by the Parliament it will be difficult to guide the police officers in such cases. "It is high time for the Parliament to come forward and review these old, colonial legislation of IPC and make it in tune with the present need of the time" he mentioned.

Besides, the speakers especially considered the various dimensions of the problems arising out of the prosecution of doctors for negligence, the reasons behind it, the consequences and the probable solutions in this regard.

It was opined in the convention that law is the greatest fear for the medical professionals since even the nurses are now being dragged to court. Sometimes, even the dead body of the patient is used as a bait to terrorise the doctors. The convention also discussed the role of films, media and even the doctors for creating the image of doctors as a profit-making, devious elements, corrupt, and often willfully negligent. 

At the same time, it was also noted that while there are 17 laws on violence against doctors in different states, the instances of violence continues without any control.

The convention also discussed the underlying reasons behind this tendency of holding the doctors guilty and the first reason was opined to be the inadequate level of maturity of our society that lacks to assess the factual situation during medical treatment. Especially when there is a death, the relatives get all emotional and start blaming the doctor rather than looking for other factors.

Along with the underlying anger in the minds of people, there is interference and pressure from politicians and others who want to criminalize death. The speakers at the convention agreed with the fact that the patients fail to realize that healthcare cannot be compared with a computer machine where the response will be standard. It was observed that while the doctors and the medicines are limited, our systems are grossly inadequate.

Further, the inadequate universal healthcare, prohibitive cost of healthcare, super-commercialization of medical care sector, and "perverse incentives" offered by the privately dominated system are also responsible for this underlying discontent amongst the public, opined the convention.

Discussing the possible consequences of this situation, which might result in the doctors ending their practices out of fear, the convention also suggested some measures in this regard for the improvement of the scenario.

The general consensus was about the necessity of the Parliament for making new laws for protecting doctors from false and frivolous prosecution as directed by the Supreme Court. Further, the speakers of the convention also discussed about the need for a new law and appropriate amendments in the dorm of newer provisions that should be added to the IPC, CrPC, and the Indian Evidence Act.

It was also opined that the guidelines given by the Supreme Court in both the cases- Jacob Mathew and Lalita Kumari must be taken into account while drafting these new provisions. Further, it was agreed that mere cosmetic changes will remain ineffective if appropriate procedural safeguards are not implemented.

In the convention, the role of the National Medical Commission and the State Medical Councils was also discussed and it was opined that their role should be increased in criminal cases against doctors. They must not only be statutorily empowered to investigate the cases of negligence and in appropriate cases suggest criminal action, but the speakers in the convention opined that all the criminal medical negligence cases must be referred to them for disposal of the same within proper time. 

Pointing out that NMC has more powers than the erstwhile Medical Council of India (MCI), the speakers of the convention also suggested that till the time, Parliament makes the law on this subject, it should be mandatory to take permission from NMC and State Medical Councils in order to protect the doctors in the intervening period. 

In this regard, it was also opined that the NMC should make a detailed guidance document to address the difference between "gross negligence" which attracts criminal liability and "negligence" which does not.

Discussing the role of Police, the convention observed that the police officials must be made more accountable and punished for lodging any false or frivolous FIR against the doctors. One of the many suggestions in this regard was that a panel of doctors and senior IPS officers should vet all the cases of criminal medical negligence and their opinion and permission must be taken before lodging the FIR.

Violence against doctors and healthcare workers has been one of the most important and unsolved issues of the medical fraternity. Numerous incidents of violence have been reported over the years. These instances reached their peak earlier this year when Rajasthan-based Dr. Archana Sharma had committed suicide after being booked for the murder of a patient who had died due to Postpartum haemorrhage (PPH). Doctors are being beaten up daily by unruly attendants but have got only limited relief in terms of law. Doctors have demanded Central Doctors Protection Act, however the same has still been out of reach of doctors.

Although the new Draft RMP (Professional Conduct) Regulations, 2022 have empowered the doctors to refuse treatment to the patients in case of "abusive, unruly, and violent patients or relatives", there is still no concrete solution regarding the instances of violence that the doctors need to face on a daily basis.