Indiscriminate proceedings and decisions are counter-productive: Supreme Court

» If punished, no doctor can pratise his vocation with equanimity
» It is true that medical profession has to an extent become commercialised

J.Venatesan

NEW DELHI: A doctor cannot straightway be held liable for medical negligence simply because a patient has not fa¬vourably responded to treat¬ment or surgery has failed, the Supreme Court has held.

A Bench consisting of Jus¬tices Markandey Katju and R.M. Lodha on Tuesday said: "A medical practitioner is not liable to be held negligent simply because things went wrong from a mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below the standards of a rea¬sonably competent practi¬tioner in his field."

The Bench set aside an or¬der passed by the National Consumer Disputes Redress Commission, which held Dr. Martin F. D'Souza of the Na-navati Hospital, Mumbai, guilty of negligence on a com¬plaint from Mohd Ishfaq, who was treated for renal and severe urinary tract infection.

Writing the judgment, Jus¬tice Katju said: "While doc¬tors who cause death or agony due to medical negli¬gence should certainly be pe¬nalised, it must also be remembered that like all pro¬fessionals doctors too can make errors of judgment, but if they are punished for this no doctor can practise his vo¬cation with equanimity. In¬discriminate proceedings and decisions against doctors are counter-productive and serve society no good. They inhibit the free exercise of judgment by a professional in a partic¬ular situation."

Therefore, whenever com¬plaints were received against a doctor or hospital, the con¬sumer forum or criminal court, before issuing notice, should first refer the matter to a competent doctor or a committee of doctors, specia¬lising in the field where negli¬gence was attributed. Only after that doctor or commit¬tee "reports that there is a prima facie case of medical negligence should notice be issued to the doctor/hospital concerned." The Bench said: "This is necessary to avoid harass¬ment to doctors who may not ultimately be found to be neg¬ligent. We further warn po¬lice officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down by the apex court in Jacob Mathew's case; otherwise, the police¬men will themselves have to face legal action."

The Bench said: "While this court has no sympathy for doctors who are negligent, it must also be said that frivo¬lous complaints against doc¬tors have increased by leaps and bounds particularly after the medical profession was placed within the purview of the Consumer Protection Act."

The Bench said: "The courts and consumer fora are not experts in medical sci¬ence and must not substitute their own views for that of specialists. It is true that the medical profession has to an extent become commercial¬ised and there are many doc¬tors who depart from the Hippocratic oath for their selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in in¬tegrity or competence just because of some bad apples.

"Sometimes despite the best effort, the treatment of a doc¬tor failed, the Bench said. "For instance, sometimes de¬spite the best effort of a sur¬geon, the patient dies. That does not mean that the doctor or the surgeon must be held guilty of medical negligence, unless there is some strong evidence to suggest that he is. On the facts of this particular case, we are of the opinion that the appellant [Martin F. D'Souza] was not guilty of medical negligence. Appeal allowed."