Thursday, February 22, 2007

Doctors and Culpability under Section 304

DOCTORS AND CULPABILITY UNDER SECTION 304

By Gaurav Vivek Bhatnagar

A week after making out a strong case against a doctor, the Delhi police appears to be developing cold feet. The irony being made starker by the fact that while the police had registered a case of ``culpable homicide not amounting to murder'' against the owner of Sunderlal Jain Charitable Hospital, Dr.Chandra Prakash, for not admitting an accident victim, who subsequently died, pressure is being mounted by the doctors on the ground that Section 304 of the Indian Penal Code be made non-applicable to doctors on duty as ``no doctor would treat a patient with the intention of killing him''.

It was on July 13 that Dr.Chandra Prakash was arrested by the Ashok Vihar police in connection with the death of 30-year-old Shamshad of Azadpur who had met with a serious accident on May 16 and died because he was allegedly not given the necessary medical aid at Sunderlal Jain Hospital.

Three doctors at the hospital, Senior Resident Doctor Dr.Paramjit, Junior Resident Doctor Dr.Prashant Mishra, and a consultant, had advised Shamshad's brother, Azad Malik, to speak to Dr.Chandra Prakash about the treatment of his brother. As per Azad, Dr.Prakash demanded a deposit of Rs 25,000 and refused admission as he could not arrange the amount.

Shamshad Ali was later shifted to Sushrut Trauma Centre where he died the same day. The hospital doctors mentioned in the medico legal case (MLC) report that the patient's life could have been saved through a minor operation had timely medical aid been provided. Doctors at the Subzi Mandi mortuary, who conducted the post-mortem, also stated that the patient could have been saved.

On the complaint of Azad, the police took the sworn statement of the three attending doctors under Section 164 of Code of Criminal Procedure before the Metropolitan Magistrate. The doctors stated that Dr. Prakash had ignored their view that the patient was serious and needed urgent help and even turned down their demand for a hospital ambulance for ferrying him to some other hospital.

Having done the ground work, the police arrested Dr. Chandra Prakash on the basis of the statement of the doctors, and the MLC and post-mortem reports. A case of culpable homicide not amounting to murder was registered because the police felt that while not admitting the serious patient, the doctor knew that his action could endanger the life of the patient.

As expected, the action annoyed the medical fraternity. Both the Indian Medical Association (IMA) and the Delhi Medical Association (DMA) termed the police action an ``atrocity'' and ``setting up of an unhealthy trend''. It was claimed that ``the doctor was not even present when the so-called negligence took place'' and that against the advice of doctors at the Sunderlal Jain Charitable Hospital, the patient had left having signed a Left Against Medical Advice (LAMA) certificate.

The doctors claimed that the arrest was not done in the right spirit as it came 55 days after registration of the FIR and at a time when the ``enquiry'' in the case was still on. To register their protest all private hospitals, clinics, nursing homes and laboratories observed a day's strike on July 16.

The case brought the doctors together like never before. Be it the former Delhi Health Minister, Dr.Harsh Vardhan of Bharatiya Janata Party, or the present incumbent, Dr.A.K.Walia of the Congress, who led a delegation of the IMA to the Lieutenant Governor's residence, there was unity on the matter in the medical fraternity.

Dr.Walia says the fact that first aid was given indicates that there was ``no intention to cause death''. Hence, he asserts, a case of culpable homicide not amounting to murder is not made out. Ideally, he feels, such cases should be referred to the Delhi Medical Council for its opinion since the doctors do not intentionally wish to harm anyone.

The DMA and IMA too have demanded that doctors be exempted from Sections 304 (culpable homicide not amounting to murder) and 304(A) (causing death due to negligence) of IPC as ``no doctor treats a patient with the intention of killing him or committing homicide. Every doctor tries his best to save the life of a patient''.

With 24 hospitals joining the agitation, the pressure has mounted on the police. The Joint Commissioner (Northern Range), Mr.Ajay Chaddha, indicated that the section of the case may be changed to 304 (A) (causing death due to negligence) under legal opinion. ``While there is no plan, it may be done under legal advise''.

Lawyers believe that while action was warranted in this case, invoking the provisions of Section 304 was probably justified. Noted criminal lawyer, Mr.Rajeev Awasthy, says the accused doctor's conduct was akin to that of a person who would probably shut the door to a man being chased by a tiger. ``He knew that his action of not admitting the patient would lead to a death and so the charge is probably correct.''

The case notwithstanding, Mr.Awasthy says the Government should come out with a legislation or amendment to the Indian Penal Code to tackle such cases involving doctors. ``There is a need to prevent misuse of the penal provisions when it comes to doctors since they deal with serious patients and exceptional circumstances each day. No one wants them to be framed. At the same time there is need to fix the wrong-doers.''

Courtesy_

http://www.hinduonnet.com/thehindu/2001/07/21/stories/14212185.htm

1 comment:

  1. This is a classic case of hospital negligence. The doctor was surely aware of the dangers of not admitting the patient immediately after it was brought to his attention that he needed treatment.

    Legislation needs to be looked at after this case, because events like this are of increasing frequency, and need to be stopped.

    ReplyDelete

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