1. Acts Exempted, Under the Indian Penal Code, from Criminal Liability:
a. IPC Section 80:
Nothing is an offence which is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.
“Accidental” implies—without the prior knowledge or intention of causing the evil effect. Lack of any criminal intention (willfulness/negligence) or prior knowledge of the unforeseen injury/ill effect of the act can be a valid defense of the accused medical professional.
ADVERTISEMENTS:
b. IPC Section 81:
Act likely to cause harm, but done without criminal intent, and to prevent other harm
Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it is done without any criminal intention to cause harm and in good faith for the purpose of preventing or avoiding other harm to person or property.
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ADVERTISEMENTS:
c. IPC Section 87:
Act not intended and not known to be likely to cause death, or grievous hurt, done by consent
Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm, or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.
d. IPC Section 88:
ADVERTISEMENTS:
Act 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 Section highlights the importance of acting in good faith and with informed consent of the patient. A surgeon operating upon a critically sick patient, knowing that the surgery may cause the death of the patient, but not intending to cause his death, operates on him in good faith after obtaining an informed consent of the patient, would not be held liable in case the patient dies.
e. IPC Section 89:
An Act in “good faith” for benefit of child or insane person, by or by consent of guardian
Nothing which is done in good faith for the benefit of a person under 12 years of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, 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 that person: provided—
Firstly—that this exception shall not extend to the intentional causing of death, or to 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 infirmity.
Thirdly—that the exception shall not extend to the voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or the curing of any grievous disease or infirmity.
Fourthly—that this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend
This Section is important from the point of view of consent in case of persons below 12 years of age or insane persons. It authorizes the legal guardian of a child under 12 years of age or a person who is insane, to consent to infliction of any harm to the child or the insane person under his charge, provided it is in good faith and intended for the benefit of that child or the insane person.
For instance, the guardian of a child below 12 years of age suffering from a serious congenital anomaly of heart, gives consent, in good faith, for the operation on his child’s heart, knowing that the operation may cause the death of the child, but not intending to cause the child’s death, would not be held liable if the child dies because of the operation.
f. IPC Section 92:
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—
Firstly—that this exception shall not extend to the intentional causing of death, or to the attempt 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 infirmity.
Thirdly—that the exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than 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
Section 92 is meant to safeguard the interests of medical practitioners acting in good faith but without consent. It is meant to cover the cases where it is impossible for the sufferer (patient) to give consent or where timely consent of the legal guardian is not possible.
For example:
i. “A roadside accident victim is brought to the hospital in an unconscious state by the passersby. The surgeon knows that the patient may die because of or in spite of the surgery and yet feels that performing an emergency surgery offers the best chances of patient’s survival. However, the patient, being unconscious, is unable to give consent. In good faith, the surgeon performs the operation but the patient dies. In this situation the surgeon is not liable for the death of the patient
ii. “A child (under 12 years of age) is brought to the casualty with serious injuries which are likely to prove fatal unless an operation is performed immediately. The guardian of the child is not immediately available to give a valid consent. Because of the sense of urgency, in good faith, the surgeon performs immediate operation without waiting for the consent of the guardian.
The child dies in spite of the surgery. In such a situation though the doctor operated without the consent of the legal guardian, the act was in good faith, to save the life of the child.
He had no intentions of killing the child and is therefore, not liable for operating without consent or for causing the death of the child.
In all such cases, however, it is prudent, to involve another senior colleague in making the decision and recording in detail the justification/circumstances under which the decision was taken.
g. IPC Section 93:
No communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person.
Again the Section is meant to protect the doctors from any liability for any unintended harm (abnormal mental reaction) caused to the patient by a communication that is normally expected from him to his patient under the law.
For example, the treating physician, after studying and verifying all the investigation reports comes to the conclusion that the patient is suffering from a very advanced stage of cancer which is beyond any treatment and is likely to cause the death of the patient in a short span.
He, in good faith, communicates the same to the patient and the patient suddenly dies of a severe shock.
He would not be liable for causing death of the patient by communicating to him the facts of the case.
However, it is felt that the doctor would be prudent enough to ensure that the communication is based on verifiable facts of the case, in a good faith for the benefit of the person to whom it was made and, in view of the delicacy of the matter, conveyed appropriately (not suddenly/bluntly), may be in the presence of someone else, including a very close relative/spouse.
All these Sections of Indian Penal code protect the doctor from liability arising out of harm caused to the patient by his acts done in good faith which means (vide IPC Section 52) the acts done honestly with due care and attention.
The phrase “due care and attention” implies genuine and honest efforts and it devolves upon the doctor to show not merely that he had a good intention but that he exercised such care and skill as the duty reasonably demanded for its due discharge.
The burden of proof is on the accused doctor to prove that he acted with due care and attention. He also needs to show that there was no malice (ill- will or spite) on his part towards the plaintiff who suffered the harm.
In a case, where a person untrained in surgery operated on a patient for internal piles by cutting them out with an ordinary knife, and the man died from hemorrhage, it was held that he did not act in good faith although he had performed similar operations on previous occasions.
2. Contributory Negligence:
When a patient, by his own want of care, contributes to the damage caused by negligence of the doctor (defendant) he is said to be guilty of contributory negligence.
For example, some negligence on the part of the doctor results in some complication/disability, but if the patient, by refusing to carry out the remedial treatment recommended by the doctor, or indulging in activities forbidden by the doctor further exacerbates the damage, he would be blamed of contributory negligence.
The compensation awarded in such a case would be proportionately reduced by the extent of his own, contribution to the damages under the “Doctrine of apportionment of damages”.
3. Precautionary Measures:
Following precautionary measures, if observed, can save the medical professionals from legal hassles.
a. Meticulous Observance of Code of Medical Ethics and Conduct.
b. A Valid Informed Consent (annexure 8)
c. A Valid Informed Refusal of Consent (annexure 9) where applicable
In situations, where a critical patient persistently refuses to give consent for emergency life saving procedure exposing himself to serious danger of death
d. Credentialing and Privileging of Employees
‘Vicarious liability’ is liability of one person for the acts committed by someone else. A master can be held liable for the tort caused by his servant.
The doctrine of ‘Respondent Superior’ which literally means ‘let the master answer’ is a common form of legal defense used by the employee when charged with negligence, such as a negligent nurse using it as defense saying that let the hospital management answer.
However, in these situations, if the master or the management can prove (factually) that adequate care and skills were utilized in proper selection of a properly qualified and experienced physician, the liability for negligence may shift, to the physician and hospital management may not be held liable for the misdeeds of the physician.
Proper system of credentialing and privileging of employees is the only defense the hospital may have in such cases.
Not only that, he is supposed to give them adequate opportunities for training and continuing education as well.