Indian courts rule against criminal liability in cases of error
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《英国医生杂志》
A doctor should not be held criminally liable when a patient抯 death results from a physician抯 error of judgment, according to a new controversial judgment from the Supreme Court of India last week.
The judgment pleased the medical community, which has been bitterly resisting the prosecution of doctors in criminal and consumer courts by aggrieved patients.
The ruling came in the case pertaining to the death of Siavash Karim Arbab, who was operated on by plastic surgeon Dr Suresh Gupta for removal of a nasal deformity in April 1994 at the Delhi Plastic Surgery Clinic.
The cause of death was stated to be "not introducing a cuffed endotracheal tube of proper size to prevent aspiration of blood from the wound in the respiratory passage." The patient immediately collapsed and died of cardiac arrest. Dr Gupta was charged under section 304A of the Indian Penal Code for causing death by negligence.
Quashing the case against Dr Gupta, Justices Y K Sabharwal and D M Dharmadhikari said that, if this alleged cause of death were true, it could be described as a negligent act as there was lack of due care and precaution. However, although negligence through lack of proper care, precaution, and attention or inadvertence might create a civil liability it does not create a criminal one, they said.
It could be termed criminal only when the doctor exhibits a gross lack of competence or inaction or wanton indifference to his patient抯 safety, which is found to have arisen from gross ignorance or gross negligence, the judges added.
But Ms Indira Jaisingh, a lawyer at the Supreme Court who specialises in public interest litigation, said she did not agree with the ruling: "If there is a lack of adequate care, there has to be criminal liability."
The law has always been that a doctor is expected to perform in accordance with best professional standards, says Ms Jaisingh. Any fall below that standard falls within the realm of criminal liability.
However, Dr Sanjiv Malik, national president elect of the Indian Medical Association, a body representing doctors, argues that negligence cannot be equated with criminality. "We have a spate of police cases against doctors now," he said, adding that the Supreme Court has cleared a major confusion.
"India seems to be the only country in the world where if you can once prove professional negligence, you can sue the doctor in four different courts—civil, criminal, and consumer courts and the Medical Council of India," said Dr Malik. "Not even for murder do you have four parallel mechanisms fro redress," he added. In both the United Kingdom and the United States there was strong civil liability, he said.
"If any patient were to fight a civil suit for negligence here, he will get a pittance as compensation, unlike the United Kingdom, where he would get a huge compensation," said Ms Jaisingh. "At the same time doctors will not fear any criminal prosecution," she added.(New Delhi Sanjay Kumar)
The judgment pleased the medical community, which has been bitterly resisting the prosecution of doctors in criminal and consumer courts by aggrieved patients.
The ruling came in the case pertaining to the death of Siavash Karim Arbab, who was operated on by plastic surgeon Dr Suresh Gupta for removal of a nasal deformity in April 1994 at the Delhi Plastic Surgery Clinic.
The cause of death was stated to be "not introducing a cuffed endotracheal tube of proper size to prevent aspiration of blood from the wound in the respiratory passage." The patient immediately collapsed and died of cardiac arrest. Dr Gupta was charged under section 304A of the Indian Penal Code for causing death by negligence.
Quashing the case against Dr Gupta, Justices Y K Sabharwal and D M Dharmadhikari said that, if this alleged cause of death were true, it could be described as a negligent act as there was lack of due care and precaution. However, although negligence through lack of proper care, precaution, and attention or inadvertence might create a civil liability it does not create a criminal one, they said.
It could be termed criminal only when the doctor exhibits a gross lack of competence or inaction or wanton indifference to his patient抯 safety, which is found to have arisen from gross ignorance or gross negligence, the judges added.
But Ms Indira Jaisingh, a lawyer at the Supreme Court who specialises in public interest litigation, said she did not agree with the ruling: "If there is a lack of adequate care, there has to be criminal liability."
The law has always been that a doctor is expected to perform in accordance with best professional standards, says Ms Jaisingh. Any fall below that standard falls within the realm of criminal liability.
However, Dr Sanjiv Malik, national president elect of the Indian Medical Association, a body representing doctors, argues that negligence cannot be equated with criminality. "We have a spate of police cases against doctors now," he said, adding that the Supreme Court has cleared a major confusion.
"India seems to be the only country in the world where if you can once prove professional negligence, you can sue the doctor in four different courts—civil, criminal, and consumer courts and the Medical Council of India," said Dr Malik. "Not even for murder do you have four parallel mechanisms fro redress," he added. In both the United Kingdom and the United States there was strong civil liability, he said.
"If any patient were to fight a civil suit for negligence here, he will get a pittance as compensation, unlike the United Kingdom, where he would get a huge compensation," said Ms Jaisingh. "At the same time doctors will not fear any criminal prosecution," she added.(New Delhi Sanjay Kumar)