Mera Bharat Mahaan
HOPE CLINICS
Mera Bharat Mahaan
Upto 3 years imprisonment and fine against four doctors including 2 gynaecologists and 2 radiologists for missed anomalies in obstetric ultrasound scan. Our parliamentarians have done an enormous disservice to the country and its doctors of modern scientific medicine by bringing in Bhartiya Nyay Sanhita in its present form. It is a difficult and tortuous logic to accept negligence even in consumer courts for something like this but this case is under criminal law. It is well accepted principle of law that if the doctor follows an accepted course of action which is endorsed by a responsible body of similar doctors then courts cannot interfere claiming one to have been done. MLAG had recently conducted a survey among 1350 obstetric ultrasonologists in Government as well a private sector and 98 percent of them did not consider even level 2 ultrasound capable of picking up all anomalies. Which means given the same images some of them also may not have reported the anomaly found later. If a difference of opinion is not negligence under civil law how can it be so under criminal law where the negligence has to be of much higher degree (or Gross). Question arises whether doctors will be prosecuted henceforth for grievous injury under BNS. Also it is unclear why after initial medical board had not given opinion suggesting negligence why another medical board was formed before Section 125 was applied in this case.
We strongly feel that there is expected to be rampant misuse of BNS in harassing and prosecuting doctors over the coming years. It was difficult for the lay policeman to differentiate simple civil negligence from gross criminal negligence under IPC but now once medical negligence is mentioned in BNS he will have no hesitation henceforth in applying various sections. Recently as reported on 7th November a 12 year old died in UP after being given and Injection of Monocef and the doctor was arrested under Section 105 BNS and Section 15 (3) of Indian Medical Council Act 1956. Indian Penal Code did not specify “medical negligence” as a criminal activity but BNS has specifically mentions it. Once medical negligence and its association to section 106(1) is acknowledged it is fair to state that medical negligence for other sections like section 124, 127 ,117 etc will be equally and voraciously applied where rigorous life imprisonment can be awarded. This is not anticipated to be upheld by the High Courts and Supreme Court but the process under the criminal justice system till these charges are finally quashed would be sufficient to create an atmosphere of fear and terror forcing doctors to practice defensive medicine or leave the profession.
Multiple sections of BNS protect doctors for action done in good faith even if it causes harm. Problem however is the discriminatory desire of the civil society and judiciary to prosecute doctors only. An advocate cannot even be hauled up for negligence in consumer courts what to talk of criminal negligence. I wish that these very law makers develop cardiac arrest in front of a doctor and the doctor is presented with two choices; 1) Resuscitate and risk life imprisonment if brain hypoxia leading to persistent vegetative state happens vs 2) Do not resuscitate, let the patient die and accept or contest the 2 years jail term plus fine as prescribed in BNS.