Medical Negligence And Forensic Medicine- By LawPadho

In this article we will discuss about "medical negligence and forensic medicine". In the contemporary world the cases of medical negligences are increasing day by day. The Forensic medicines take a prominent role in the investigation process of medical negligence cases. In this world of science and technology, the forensic science make process of investigation smooth and also helps the court to reach at the conclusion easily. 

This Article has been written by Ashutosh Nath, a student of Symbiosis Law School, Hyderabad. 

CHAPTER -01

MEDICAL NEGLIGENCE AND FORENSIC MEDICINE: A STUDY

1)    INTRODUCTION-

The medical profession is always considered as a noble profession. For every patient, the doctor is the last person, who can save him/her physically. Due to such aspiration, all the medical professionals have a good reputation in society. So, this is the reason why society, assumes doctors as ‘God’. In this contemporary world, doctors can handle more critical health issues due to the advancement of medical science. At the same time, the rate of medical negligence cases is increasing day by day. Here the question arises whether the medical professionals are always responsible for all the medical negligence cases or not. On the other Hands, it has also been found that some people try to harass the doctor by filing false cases against them. In such situations, forensic science takes a prominent role in identifying whether there is any sort of negligence on the part of the medical professionals. Forensic medicine or medical jurisprudence is a branch of forensic science, helps in identifying the cause of death in medical negligence cases.[1]

When there is a duty to do or not to do something, any act or omission on the part of the person on whom the duty is vested will amount to negligence. In this present time, medical negligence is not uncommon as every day we read about many of the negligence cases in the newspaper and electronic media. Will full negligence or absence of reasonable skills and care on the part of the doctor can lead to bodily injury and sometimes it can also take the life of the patient. Mainly the medical negligence cases are divided into two categories. They are civil and criminal negligence. In case of civil negligence, the patient can go to the consumer court to recover the damage amount under the consumer protection act. Similarly, if the injury is more serious or if the patient has died due to the negligence activity on the part of the medical practitioner, the family member of the decreed can file a criminal case against the doctor.[2]

The contribution of Forensic science towards medical negligence is gigantic. Through investigation, the forensic department can find out the suspect, cause, and nature of death. The branches of forensic medicine, which take an important role in medical negligence cases are anatomy, pathology, and psychiatry. The role, which has been played by a pathologist in medical negligence cases, is unquestionable. But at the same time, it is also very much necessary for the pathologist that they should maintain transparency between the patient, doctors, and the law enforcing agencies while investigating such matters.

CHAPTER-02 (MAIN BODY)

2)    FORENSIC SCIENCE AND MEDICAL NEGLIGENCE-

Forensic medicine is a branch of forensic science that is also known in the name of medical jurisprudence. The chapter on medical negligence comes under the preview of forensic medicine or medical jurisprudence. Mainly anatomy, pathology, and psychiatry, are the parts of medicine that are included with forensic medicine. In simple words, we can say the concept of forensic medicine comes to pictures when we try to solve legal issues with the help of science. These branches of forensic medicine play an important role in medical negligence cases.[3]

2.1) THE ROLE OF FORENSIC SCIENCE IN MEDICAL NEGLIGENCE CASES-

Forensic medicines play an important role in the administration of justice. It also helps the legal authority to identify the real accused not only in medical negligence cases but also in every case where the victim waits for justice. The process of justice deliberation becomes easier with the help of such medical and paramedical knowledge. The importance of forensic medicine can be cleared by the citation of some of the examples. Some of the examples are cited hereinafter.[4]

·         Autopsy- Forensic medicine plays an important role in the identification of the cause of death. In this case, the autopsy comes into the picture. For example, if a death has been occurred by a particular weapon, then the forensic pathologists take an important role in finding out the type of weapon used in such incident. By application of different chemicals, they try to find out the types of weapons used for the murder. So, it is very much clear that the data which has been coming through forensic medicine helped a lot in the identification of the cause of death.[5]

·         Similarly, in the case of the death of a gunshot, forensic science takes a prominent role in the identification of the different factors like distance, types of bullet used, and the time of the incident.

·         Now the medical science is developing day by day. The development of technology helps the rape victims a lot in getting justice within a specific period. The sample collected by the forensic department like semen, blood, hair helps in the identification of the accused as soon as possible. Similarly, DNA fingerprinting is taken as evidence to decide the matters easily.

·         In the case of mental illness, psychiatry plays an important role in the identification of the problem. Many of the time the accused take a defense that is “mental illness”. The psychiatry is the person who can stand as an expert to define whether the person was suffering from any mental illness at the time of the offense. This is one of the best investigations to prove the consent on the part of the complainant.[6]

A judge is a person who is an expert in the legal field. If the matter is related to some scientific proof or full with technicalities, then in that case the judge is bound to take the expert opinion. In all these medical negligence cases the court takes the forensic technicians’ opinion as of expert opinion. The opinion given by the forensic expert helps in determining the question that is whether there is a fault on the part of the medical practitioner or not.[7]

2.2) CHALLENGES FACED IN THE CASES OF MEDICAL NEGLIGENCE-  

·         In a case of unnatural death or rape, the investigation process depends on the post-mortem report(autopsy). The post mortem report helps in the identification of the cause of death which is issued by a doctor. Many of the times it has been founded that the doctor manipulated the post-mortem report by taking some bribe amount from the accused family. As a medical practitioner, it is both the legal and moral duty of the doctor to provide a correct post-mortem report. This act on the part of the legal practitioner is considered to be a negligent act.[8]

·         Similar things happen in cases of medical negligence. In case of medical negligence, the common question which arises is 1) whether the death has been occurred by the negligent acts of the doctor or not. In such situations, the autopsy or post-modern report takes a prominent role to identify the cause of death. But many of the times the postmodern do not take place by which it becomes more difficult to identify the cause and nature of death.[9]

·         Forensic experts like pathologists, the forensic anthropologist should be more careful, when they investigate any case relating to medical negligence, where there is an allegation against the medical partitioner. This is because there is a possibility that the biases on the part of the forensic expert can provide injustice to the victim.[10]

·         Consent plays a great role in medical negligence cases while providing justice to the victim. Many of the times the doctors take the consent form as a defense in a case of medical negligence. But is also important to identify the degree of care on the part of the doctor. All the time's consent does not mean consent to death.[11]

2.3) CASE STUDIES (PRACTICAL APPROACHES)

One of the practical case study approaches has been taken to consideration to understand the matter in a better way. A report on forensic autopsy case.[12]

·        CASE STUDY – 1

In this case, one of the patients has been attacked by a wild animal. Due to such an accident, a wound has been made on the head of the victim. The victims rushed to the local hospital with their relatives. The doctor looked into the case and advised to stitch the wound. On the next date, the victim died. The relatives lodge an FIR in the local police station. After the registration of the FIR, the police came up for the autopsy report. In the autopsy report, the forensic pathologist found that there is a Lacerated injury of size 3.1 cm × 0.4 cm × muscle deep, was present over the outer aspect of the right eyebrow.[13]

Discussion- From the report of the forensic pathologist, it is quite clear that there is a breach of duty on the part of the doctor. The doctor didn’t take the matter seriously. Due to the negligent act of the doctor, the patient died. So, in this case, there is a legal duty vested on the part of the doctor to see every injury of the body carefully.

·        CASE STUDY -2

I patient was admitted to a hospital in an emergency in a private hospital. The doctor referred the patient to ICU due to the critical health condition. After 4 hours of being admitted the patient died. This has not been informed to the patient of the family member. They received the dead body after 2 days of death. So, the family member filed an FIR in the local police station by complaining that the medical administration didn’t provide the body to them to extract more ICU charges. But actually, the patient died far before.[14]

Discussion- From the investigation, the forensic science department founded that the person has died 38 hours before the death declaration. So, it is quite clear that there is a mistake on the part of the medical administration.  

3)    JUDICIAL PRONOUNCEMENT-

1.      In the case of “John Oni Akerele vs. The King”,[15] a patient was injected sodium bismuth tartrate by a medical practitioner. The next day the patient died due to overdoes. In this case, the doctor was prosecuted and convicted for medical negligence by the lower court. The upper court quashes the judgment of the lower court by stating that it is not a case of criminal negligence. In such cases, the compensation should be enough for the victim. From this case, it was quite clear that punishment depends on the degree of care. This judgment by the court distinguishes the medical negligence cases into 2 parts. They are1) medical negligence cases which are a crime 2) negligence cases where provide the rights for compensation.

2.      In the case of “Kurban Hussein Mohamedalli Rangawalla versus the State of Maharashtra”[16] the Hon’ble supreme court has come up with a landmark judgment. in the case section 304-A was in question. The main issue, in this case, was whether a legal practitioner should be held liable under section 304-A of the Indian Penal Code, 1860.In this case the court held that if the death has occurred by the direct result of rash and negligence on part of the legal practitioner, then the practitioner may punish under section 304-A of IPC. In such a situation the degree of care should be taken into consideration.

3.      The above-mentioned judgment was cited in the cases of “Kishan Chand and Anr. versus the state of Haryana.”[17]

4.      In the case of “Kusum Sharma & Ors vs. Batra Hospital and Medical Research”[18] the court has held that the law of negligence will not be same for each and every case. It has to be applied as per the fact and circumstances of the cases. The forensic departs plays an important role in providing the type of negligence is a particular case.

5.      In the case of “V.Krishan Rao Vs Nikhil Super Speciality Hospital,”[19] the patient was suffering from malaria. The doctor gave medicines for typhoid. Due to the negligent activity o the part of the doctor the patient died. The husband of the patient filed a complain against the medical administration. The court awarded the compensation amount of 2 lakhs to the patient’s family. Here the concept of res ipsa loquito (the thinks speak for itself) has been applied,

6.      In “Dr. Suresh Gupta versus Govt. of NCT of Delhi and Anr”[20] the court has held that a medical practitioner can be held liable for compensation as well as at the same time he can also be punishable under section 304-A of the Indian penal code. It varies from case to case to case. This concept will apply to those cases where the degree of recklessness is so, high that it has a serious impact on the health of the patient.

7.      In the case of “Jacob Mathew versus the State of Punjab,”[21] a three-judge bench ordered that a doctor can not be prosecuted under section 304-A for any medical negligence case unless prima facie evidence has been put before the court. The opinion of any competent doctor can take as evidence in such matters. The expert legal practitioner must belong to the same branch.

8.      In the case of “Martin F. D'Souza vs. Mohd Ishfaq,”[22] it has been held that any court (either the consumer court or criminal court can not issue any criminal proceeding without referring the matters to a medical committee.

9.      In the case of “R. vs. Adomako”[23] the court has held that every negligent act on the part of the medical practitioner does not amount to criminal negligence. It will be amount to be a case of criminal negligence when their negligence on the part of the practitioner is so reckless that it results in the death of the patient.

10.  In the case of “A.S.V. Narayanan Rao vs. Ratnamala and Another”[24]. the court has held that Forensic science takes a prominent role in the investigation process to find out the reason behind an uncertain death. In India, we also have a lot of legal provisions which empower the forensic department to conduct their investigation without any fear and fever.

CHAPTER -03

 FINDINGS-

After this research, we came to know a lot of facts, on this particular field. The findings of the research have been mentioned hereinafter.

1)      Without the help of forensic science, the investigation in case of medical negligence cannot be successful. Many of the times the doctor is found guilty due to negligent activity on his/her part. To prove the guilty on the part of the medical practitioner the forensic experts like pathologist, autopsy agency takes a prominent role in the identification of guilt.

2)      The consent on the part of the patient’s family does not amount to the consent of death. So, the negligent activity on the part of the doctor can be defined by 3 concepts. They are 1) standard of care, 2) duty of care and 3) Degree of care.

3)      Many of the times the unavailability of the autopsy report creates a lot of confusions. Every medical negligence case should be gone through the process of an autopsy, which will help in the administration of justice. There is a possibility, that the autopsy report can also save the doctor, if a false charge has been framed against him.

4)       From a report, it is quite clear that most of the medical negligence cases have been reported from the Department of Gynaecology and pediatrics. The doctors from these departments should be more careful to save themselves from medical negligence cases. 

5)      Many of the times justice has not been delivered due to the bias ness on the part of the forensic experts. As the forensic department plays a prominent role in identifying the cause of death, so they should not be biased while going through the investigation process.

CONCLUSION

To conclude, we can say forensic science takes a prominent role in solving crimes and provide justice to the victim through the process of investigations. Through the process of investigation, the forensic experts can identify the nature of death, cause of death, and also the person who is involved in the crime.  The forensic scientist took the help of different evidence to find out the reason for the actual death of a patient. In the same manner, the forensic scientist plays an important role in the identification of the cause of death in cases of medical negligence. The concept like autopsy has made the forensic pathologist journey easier. Many times, it has been seen that a negligent act (professional misconduct) on the part of the forensic experts can create injustice at the same time, it is also important that the forensic export should not be bias and follow medical ethics while conducting an investigation. A pure investigation can be work as a way forward step towards justice. The recommended idea should be taken into consideration to achieve a long-term goal in delivering justice to the needy in medical negligence cases with the help of forensic science. 

RECOMMENDATIONS-

·         In each unnatural death cases, the postmodern of the decreed should be conducted at any cost. It is the only medical technology that will help the court of law in coming toward the conclusion of a point.

·         The forensic department should be conducting all the essential investigations as soon as possible. Otherwise, there is a possibility that the essential pieces of evidence may be destroyed.

·         More awareness spread among the people who comes from the rural area. By this process they can understand the role of forensic science in the medical negligence.

·         Compulsive punishment should be taken for the persons who falsely try to collect money from the doctor by putting false allegations against them.

 

 

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[1] Raktim Pratim Tamuli, “Medicolegal Investigation of Medical Negligence in India: A Report of Forensic Autopsy Case”, Vol-06, Issue-04, Journals of Forensic Science and Medicine, (2016)

[2] Ibid-

[3] Naveen Kumar Edulla,& Ramesh Kethvath , “Determination of role and issues of autopsy in medical negligence” Vol 5 | Issue 09  International Journal of Medical Science and Public Health | 2016 |

[4] Ibid

[5] Supra Note-18

[6] Hassan DAE, Shehab AM, Kotb H “Alleged Medical Malpractice: A Retrospective Study of Forensic Evaluation of Cases in Cairo and Giza regions - Egypt (2009-2011).” J Forensic Res ISSN: 2157-7145 JFR,Volume 5 • Issue 5 (2014

[7] Ibid

[8] Ibid

[9] Supra Note-23

[10] “B L Chaudhary, Rishab K Singh, Sukhdeep Singh,Pawan K Shukla, “Recent trends of medical negligence – An autopsy-based study at lady hardinge medical college, New Delhi” IP International Journal of Forensic Medicine and Toxicological Sciences 2020;5(2):35–38”

[11] Supra Note 20

[12] Raktim Pratim Tamuli, “Medicolegal Investigation of Medical Negligence in India: A Report of Forensic Autopsy Case”, Vol-06, Issue-04, Journals of Forensic Science and Medicine, (2016)

[13] Ibid

[14] Supra Note 27-

[15] John Oni Akerele vs. The King [AIR1943PC72]

[16] “Kurban Hussein Mohamedalli Rangawalla versus State of Maharashtra (1965)2SCR622.

[17] “Kishan Chand and Anr. versus The state of Haryana.” (1970) 3 SCC 904.

[18] “Kusum Sharma & Ors vs. Batra Hospital and Medical Research MANU/SC/0098/2010 

[19] “V.Krishan Rao Vs Nikhil Super Speciality Hospital (2010) 5 SCC 513

[20] “Dr. Suresh Gupta versus Govt. of NCT of Delhi and Anr” (2004) 6 Scale 432.

[21] “Jacob Mathew versus State of Punjab, AIR2005SC3180

[22] “Martin F. D'Souza vs. Mohd Ishfaq”, 1 (2009) 3 SCC 1.

[23] “R. vs. Adomako” (1994) 3 All ER 79 (HL)

[24] A.S.V. Narayanan Rao vs. Ratnamala and Another (2013) 10 SCC 741.