IPC Sections 88 and 92 protect doctors against any professional liability for acts done in good faith

IPC Sections 88 and 92 protect doctors against any professional liability for acts done in good faith

The Indian Penal Code (IPC) has provisions for defenses for doctors under sections 88 and 92, which protect doctors from allegations of negligence, for instance, when treatment given in an emergency or a cardiopulmonary resuscitation (CPR) done is not successful.

Section 88 IPC provides for exemption for acts not intended to cause death, done by consent in good faith for person’s benefit: “Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm”.

The illustration accompanying this section explains it further: “A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z’s death and intending in good faith, Z’s benefit performs that operation on Z, with Z’s consent. A has committed no offence”.

Section 92 provides for acts done in good faith for benefit of a person without con­sent but with provisos: “Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit: Provided—

·         (First) That this exception shall not extend to the intentional causing of death, or the attempting to cause death;

·         (Secondly) That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmi¬ty;

·         (Thirdly) That this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt;

·         (Fourthly) That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend”.

Illustration ‘c’ of this section is important for doctors. “A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child’s guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has committed no offence”.

In Kusum Sharma & Ors vs Batra Hospital &Med Research on 10 February, 2010, the Hon’ble Supreme Court also observed as follows:

“The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals… It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners… The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals”.

Both Sections 88 and 92 protect the doctor against any professional liability or allegations of medical negligence, in situations when acts done for the benefit of the patient, with or without his consent, do not have the desired outcome. These sections provide that any act done in good faith is not negligence. Doctors should be aware of these sections as a defense against cases of negligence filed against them.

Criminal prosecution of medical negligence unacceptable, says IMA

Criminal prosecution of medical negligence unacceptable, says IMA A fair judgment will help in retaining the nobility of the medical profession New Delhi, 29 May 2017: Highlighting another pertinent issue faced by the medical fraternity, the IMA has expressed its disagreement over the criminal prosecution of medical negligence and clerical errors and called it unacceptable. This is one of the many issues leading up to the Dilli Chalo movement being organized by the IMA on 6th June 2017. To be joined in entirety by the medical fraternity, the march will be undertaken by over a lakh doctors in the country, both digitally and physically, and followed by deliberations on issues ailing the medical profession. According to a judgment passed by the Supreme Court in 2004, it had stated that the medical man cannot be proceeded against for punishment for every mishap or death during treatment. Without adequate medical opinion, criminal prosecutions of doctors would amount to great disservice to the community. Speaking about this, Padma Shri Awardee Dr K K Aggarwal, National President Indian Medical Association (IMA) and President Heart Care Foundation of India (HCFI) and Dr RN Tandon – Honorary Secretary General IMA in a joint statement, said, "To prosecute a doctor for criminal medical negligence, any medical action taken by him/her, should have been done with an intention to harm or with the knowledge that it can cause harm and the patient is not informed about the same. However, this is not the case in medical practice. We never treat with an intention to harm or treat without an informed consent. Then why are doctors again and again subject to criminal prosecution? Criminal prosecution of doctor should be an exception and not a routine. The situation today is that doctors now are being prosecuted in various special acts for non-professional activities like not wearing apron, not displaying a defined board or not keeping a copy of PC PNDT Act. Doctors are also being prosecuted for minor violations of privacy, confidentiality of patient information and data and violations of minor clauses in surrogacy, IVF and HIV_AIDS acts. This is not acceptable to the medical profession." Earlier, doctors from the IMA had also opined that many medical negligence cases took place in government hospitals. However, their comparatively lower bills kept such establishments out of the purview of the authorities. Adding further, Dr Aggarwal, said, "While it would be reasonable to cancel the registration of a doctor or a clinical establishment, booking a doctor under criminal charges will no longer result in this being called a noble profession. Justice has been denied to the medical fraternity on a number of accounts and this movement is a clarion call against all these issues." IMA is also initiating a signature campaign on the issues at hand on social media and has urged all doctors to join and collect hundreds of thousands of signatures to demand justice from the government.

Another medical mishap: wrong foot operated

Another medical mishap: wrong foot operated

It’s a never event: Never events are situations where deficiency of service and or negligence is presumed and no trial of expert’s evidence is necessary. Following are examples rectified by various court judgements.

a.            Removal of the wrong limb (1,6) or performance of an operation on the wrong patient  (1,6)

b.            “……The issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the Agencies under the Act.” (6)

References

1.            IMA vs VP Shantha 1995 (6) SCC 651 (37)

2.            SC/4119 of 1999 and 3126 of 2000, 14.05.2009, Nizam Institute of Medical Sciences vs. Prasanth S. Dhananka and Ors: B.N. Agrawal, Harjit Singh Bedi and G. S. Singhvi, JJ.

IMA Recommendations

1.            Definition: Near misses -- when surgeons started to operate on the wrong site or patient

2.            Operations on the wrong site or the wrong patient should never happen

3.            Surgeons shall mark the surgical site before going to the operating room.

4.            One should also mark the site should not be touched.

5.            Reasons for the errors include similar sounding names, failure to check patient names on medical records and reversing the sides of X-rays and scans placed on viewing boxes in the operating room.

6.            In the operating room before starting surgery, all members of the surgical team should confirm that they have the correct patient, surgical site and procedure.

7.            The operating room team should take ''a timeout'' to check medical records and X-rays, discuss among themselves what they are about to do, and corroborate information with the patient.

The Universal IMA Protocol  based on JCI recommendations for Preventing Wrong Site, Wrong Procedure, and Wrong Person Surgery

Conduct a pre-procedure verification process

1.            Address missing information or discrepancies before starting the procedure.

2.            Verify the correct procedure, for the correct patient, at the correct site.

3.            Try to involve the patient in the verification process.

4.            Identify the items that must be available for the procedure.

5.            Use a standardized list to verify the availability of items for the procedure.

6.            At a minimum, these items include: relevant documentation (history and physical, signed consent form, preanesthesia assessment); labeled diagnostic and radiology test results that are properly displayed and any required blood products, implants, devices, special equipment

7.            Match the items that are to be available in the procedure area to the patient.

Mark the procedure site

1.            Mark the site when there is more than one possible location for the procedure and when performing the procedure in a different location could harm the patient.

2.            The site does not need to be marked for bilateral structures. Examples: tonsils, ovaries

3.            For spinal procedures: Mark the general spinal region on the skin. Special intraoperative imaging techniques may be used to locate and mark the exact vertebral level.

4.            Mark the site before the procedure is performed. Try to involve the patient in the site marking process.

5.            The site is marked by the doctor who is ultimately accountable for the procedure and will be present when the procedure is performed.

6.            In limited circumstances, site marking may be delegated to some medical residents

7.            The mark is unambiguous and is used consistently throughout the organization.

8.            The mark is made at or near the procedure site.

9.            The mark is sufficiently permanent to be visible after skin preparation and draping.

10.          Adhesive markers are not the sole means of marking the site.

11.          For patients who refuse site marking or when it is technically or anatomically impossible or impractical to mark the site (see examples below): Use your organization’s written, alternative process to ensure that the correct site is operated on. Examples of situations that involve alternative processes: mucosal surfaces or perineum, minimal access procedures treating a lateralized internal organ, whether percutaneous or through a natural orifice, interventional procedure cases for which the catheter or instrument insertion site is not predetermined [Examples: cardiac catheterization, pacemaker insertion], teeth and premature infants, for whom the mark may cause a permanent tattoo.

Perform a time-out

1.            The procedure is not started until all questions or concerns are resolved.

2.            Conduct a time-out immediately before starting the invasive procedure or making the incision.

3.            A designated member of the team starts the time-out.

4.            The time-out is standardized.

5.            The time-out involves the immediate members of the procedure team: the individual performing the procedure, anesthesia providers, circulating nurse, operating room technician, and other active participants who will be participating in the procedure from the beginning.

6.            All relevant members of the procedure team actively communicate during the time-out.

7.            During the time-out, the team members agree, at a minimum, on the following: correct patient identity, correct site, procedure to be done

8.            When the same patient has two or more procedures: If the person performing the procedure changes, another time-out needs to be performed before starting each procedure.

9.            Document the completion of the time-out. The organization determines the amount and type of documentation.

[Source JCI]