October 28, 2008

Supreme Court breather to doctors: error of judgement not always negligence

Doctors, living under the constant threat of being dragged to courts for “erroneous” treatment, can now breathe easy.
The Supreme Court has underlined that “a simple deviation from normal professional practices in the high-risk medical profession is not always to be construed as an act of negligence on the part of doctors".

“An error of judgement on the part of the professional is also not negligence per se,” clarified a Bench headed by Justice C K Thakker and D K Jain while quashing the prosecution initiated against a doctor, Mahadev Prasad Kaushik, from Mathura.

Dr Kaushik had challenged a court order dated February 9, 2007, later confirmed by the Allahabad High Court, whereby summons were issued against him under Sections 304 (culpable homicide not amounting to murder), 504 (intentional insult) and 506 (criminal intimidation) of the IPC, in the Supreme Court.

The complainant had alleged that his father Buddha Ram died a few minutes after being administered three injections by Dr Kaushik on May 4, 2001. The two courts found prime facie negligence on Dr Kaushik's part.
However, the Supreme Court said, “Medical profession is often called upon to adopt a procedure which involves higher element of risk, but which a doctor honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow would depend on facts and circumstances of a given case.”

The SC granted a breather to doctors, who, these days are hounded by ambulance chasers, a category of lawyers who convince patients to file cases against any treatment “gone wrong”.

The Bench explained, “The standard to be applied for judging whether a person charged has been negligent or not would be that of an ordinary competent person exercising ordinary skill in that profession.”

Taking a pragmatic approach, Justice Thakker, who wrote the judgment, said: “Higher the acuteness in emergency and higher the complication, more are the chances of error of judgement.”

“At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil,” the judge added.

Relying on the police report, which found that Buddha Ram had a renal failure and died before he was brought to the clinic, the court quashed proceedings under Sections 504 and 506 of the IPC. It also dropped the charge of culpable homicide and noted, at best, it could be a negligent act to be covered under Section 304A IPC....

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