ARTICLE 304 A APPLIED AGAINST GURGAON HOSPITAL & DOCTORS ON IMA MEGA MOVEMENT

ARTICLE 304 A APPLIED AGAINST GURGAON  HOSPITAL & DOCTORS ON IMA MEGA MOVEMENT

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On the mega day when IMA Protested a Big Mega Protest gathering in Delhi where more than 1lac Doctors from every corner of India participated ,rallied and brought procession and a silent protest at Bapu Samadhi at Rajghat in New Delhi and called a token strike all over India for their many demands to rescue from many atrocites ,one of them and very important is to book Doctors under 304 A of IPC if patient expires after treatment by a Doctor as Medical Negligence is never an act of unwilful or gross negligence leading to death of patient as Doctor never wants death of patient but rather try best to save patient,many complications do occur inspite of best care and too cant be detected in time by strict monitoring too.

                           On the same day Six doctors of Gurgaon Artemis hospital booked for medical negligence as one patient died after second operation of explorative laprotomy and repair of missed two samll gut injuries after few days of  discharge which was missed by Operating Doctors of the  hospital even while discharging the patient after performing failed laproscopic hystrectomy resulting in open Abdominal hystrectomy.Patient's husband complained that  “The doctors found out very late that they had ruptured my wife’s small intestine. It was clearly negligence on their part as per complaind lodged last year.The police received the complaint and sought a report in the matter from a medical institute to corroborate the charges. The police received the report from Pandit Bhagwat Dayal Sharma Post Graduate Institute of Medical Sciences (PGIMS) Rohtak , after which the FIR was filed.The hospital denied the charge saying patient  was treated in accordance with standard medical practice.                     

          Past court decisions including those of the Supreme court have pointed out that 304 A should be attracted only in cases of Gross Medical Negligence. However, most of the time, the constituent medical board, including those set up by the council fail to specify, the intensity of medical negligence- that is whether they classify as gross negligence and hence attracting Criminal Liability or simple negligence attracting only civil liability( compensation) but in a case of Lawyer Delhi High court has ordered recently that a negligence under 304 A cant be lodged against Lawyers or Doctors as it is a profession and hazards are common in such practice.

     Recently, the Calcutta High Court, in a judgement on 20/07/2016 of Mr.Thakur versus Apollo Hospital said that it is perhaps needless to say that indiscriminate prosecution of medical professional of medical negligence is counter productive to the object and scheme. If during a surgical operation hands of a surgeon begins to tremoring due to apprehension of medical negligence and that ‘Sword of Damocles’ is on his neck, he cannot render his best to carry on life saving scalpel to perform an essential surgery. In case of administering treatment with medicine, if two views are accepted by medical science,and if he applies one of them instead of using other drug and due to his such choice if the patient dies, should the doctor be penalized? the answer is no as as Judge said that in my humble view, Section 304A of Indian Penal Code although does not bear the word ‘Gross’, but while dealing with such case Court must consider it, as ‘Gross’. It must be the causa causans otherwise doctor concerned would always be under the dangling fair of facing a prosecution and to refuse to treat the patient by referring the patient to some other hospital/nursing home, clinic, which eventually would lead to disservice to the society. Court should not encourage this approach.But our police or local court hardly understand it and even medical boards of higher institution hardly realise it while deciding the case referred to them for opinion.            

             But here as proposed by Dicriminatory and Demoralising West Bengal Act against PVT Doctors and Hospitals ,here too the CEO, Medical Director as well as the Medical Superintendent have also been charged under IPC 304A . It raises questions whether the said section 304 A IPC attracts a vicarious liability that , is can a hospital owner/ Management be charged under criminal liability for an act of negligence done by its medical professionals ? IMA such mega silent protest and token strike is not sufficient to check such gross interpretation of law by police or our court but need protest as being done by farmers through out country complellin our politicians and bureaucrats to formulate new laws where Doctors and hospital should never be booked for criminality under  304 A to get punishemt of 03yrs of imprisonment.Associations of Doctors like IMA or specailist or superspecialist forum or MCI or State MCI which is mostly constituted by Doctors  should desist their members passing very bad comments against doctors for cases referred to them for analysis otherwise Police,Administration,Courts and Media will always punish doctors in the way which cant be justified on any account.