Limitations in criminal liability

Limitations in criminal liability

Dr KK Aggarwal & Ira Gupta

Chapter XXXVI of Criminal Procedure Code, 1973 deals with limitation for taking cognizance of certain offences. The provisions of various relevant sections of the said chapter are as follows:

Section 468: Bar to taking cognizance after lapse of the period of limitation

(1)   Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2)   The period of limitation shall be –

a.     Six months, if the offence is punishable with fine only;

b.    One year, if the offence is punishable with imprisonment for a term not exceeding one year;

c.     Three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

(3)   For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.

To decide whether the complaint is time barred or not, we need to know under what provisions the complaint has been made and also what is the maximum punishment of the offences mentioned in the complaint. 

Further as per the provisions of Section 469(1) of the Criminal Procedure Code, 1973, the period of limitation in relation to an offender shall commence 

(a)   On the date of offence; or

(b)  Where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or

(c)   Where it is not known by whom the offence was committed, the first
day on which the identity of the offender is known to the person aggrieved
by the offence or to the police officer making investigation into the offence, whichever is earlier.

Further as per section 469(2) of the CrPC, in computing the said period, the day from which such period is to computed has to be excluded.

Also, as per the provision of Section 472 of CrPC, in case of continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues.

Dr KK Aggarwal

Padma Shri Awardee
Vice President CMAAO
Group Editor-in-Chief IJCP Publications

President Heart Care Foundation of India

Immediate Past National President IMA        

Waiting period for surgeries in government hospitals less than one month

If you live in Delhi and are entitled for Delhi Government services and if you need a surgery and the date given to you is beyond one month, you can get a referral to empanelled 42 private hospitals and get the surgery done there.

The list of hospitals empanelled and the types of surgeries are available on website of Delhi Arogya Kosh. All these hospitals are NABH/ CGHS or Delhi Government Employees Health Scheme (DGEHS) registered.

There are 24 such Delhi Government hospitals and they are authorized to refer to private hospitals.

This is a very good initiative by the government as most surgeries can now be done within one month window. The problem of not getting dates in a government hospitals will be practically over. All emergency surgeries in any way will need to be handled by the government set ups. Other states should follow the same.

Dr KK Aggarwal

Padma Shri Awardee
Vice President CMAAO
Group Editor-in-Chief IJCP Publications

President Heart Care Foundation of India

Immediate Past National President IMA

                                                     

MBBS doctor can admit patients under his/her self

Dr KK Aggarwal and Ira Gupta

The provisions of Section 15 of Indian Medical Council Act, 1956 deals with right of persons possessing qualifications in the schedules to be enrolled which is reproduced hereunder:

“(15) (1) Subject to the other provisions contained in this Act, the medical qualifications included in the Schedules shall be sufficient qualification for enrolment on any State Medical Register.

(2) Save as provided in section 25, no person other than a medical practitioner enrolled on a State Medical Register:-

(a) shall hold office as physician or surgeon or any other office (by           whatever designation called) in Government or in any institution       maintained by a local or other authority;

(b) shall practice medicine in any State;

(c) shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner:  

(d) shall be entitled to give evidence at any inquest or in any court of law as an expert under section 45 of the Indian Evidence Act, 1872 on any matter relating to medicine.

(3) Any person who acts in contravention of any provision of sub-section (2) shall be punished with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees, or with both;”

Also, the Indian Medical Council (Professional Conduct, Etiquette & Ethics) Regulation, 2002 enumerates the duties and responsibilities of Physician in general. The provisions of Regulation 1 of the Indian Medical Council (Professional Conduct, Etiquette & Ethics) Regulations, 2002 are reproduced hereunder:

“B. Duties and responsibilities of the Physician in general:

1.1 Character of Physician (Doctors with qualification of MBBS or MBBS with post graduate degree/ diploma or with equivalent qualification in any medical discipline):

1.1.1 A physician shall uphold the dignity and honour of his profession.

1.1.2 The prime object of the medical profession is to render service to humanity; reward or financial gain is a subordinate consideration. Who- so-ever chooses his profession, assumes the obligation to conduct himself in accordance with its ideals. A physician should be an upright man, instructed in the art of healings. He shall keep himself pure in character and be diligent in caring for the sick; he should be modest, sober, patient, prompt in discharging his duty without anxiety; conducting himself with propriety in his profession and in all the actions of his life.

1.1.3 No person other than a doctor having qualification recognised by Medical Council of India and registered with Medical Council of India/State Medical Council (s) is allowed to practice Modern system of Medicine or Surgery. A person obtaining qualification in any other system of Medicine is not allowed to practice Modern system of Medicine in any form.

1.3: Maintenance of medical records:

1.3.1 Every physician shall maintain the medical records pertaining to his / her indoor patients for a period of 3 years from the date of commencement of the treatment in a standard proforma laid down by the Medical Council of India and attached as Appendix 3.

1.3.2. If any request is made for medical records either by the patients / authorised attendant or legal authorities involved, the same may be duly acknowledged and documents shall be issued within the period of 72 hours.

1.3.3 A Registered medical practitioner shall maintain a Register of Medical Certificates giving full details of certificates issued. When issuing a medical certificate he / she shall always enter the identification marks of the patient and keep a copy of the certificate. He / She shall not omit to record the signature and/or thumb mark, address and at least one identification mark of the patient on the medical certificates or report. The medical certificate shall be prepared as in Appendix 2.

1.3.4 Efforts shall be made to computerize medical records for quick retrieval.

Further, as per the Schedules of Indian Medical Council Act, 1956 the qualification in MBBS is a recognized qualification and the person who undertakes the MBBS qualification is entitled to be registered as registered medical practitioner practicing modern system of medicine as per the provisions of Indian Medical Council Act, 1956. Further, the provisions of Indian Medical Council (Professional Conduct, Etiquette & Ethics) Regulations, 2002 enumerates the code of ethics to be observed by physician who is a doctor with qualification of MBBS or MBBS with post graduate degree/ diploma or with equivalent qualification in any medical discipline.  Thus, once a person has obtained a degree in MBBS and is registered under the Indian Medical Council Act, 1956, then he/she is entitled to practice the modern system of medicine.

Also, as per the provisions of Section 15 of the Indian Medical Council Act, 1956 the registered medical practitioner has a right to sign, issue and authenticate medical or fitness certificate or other certificates to his/her patient.

Also, as per the provisions of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 the physical is required to maintain the medical records of his/her indoor patients. The indoor patients are those patients who have been admitted by the physician for treatment.

Hence, a patient can be admitted under the physician who is a qualified MBBS doctor and who has been registered with the Indian Medical Council or any State Medical Council for treatment of the patient as admission of a patient is essential for treatment of the patient which is the paramount duty of the registered medical practitioner.

As per the provisions of Regulation 1.4.2 of Indian Medical Council (Professional Conduct, Etiquette & Ethics) Regulation, 2002 the physician shall display as suffix to their names only recognized medical degrees or such certificates / diplomas and memberships / honours which confer professional knowledge or recognizes any exemplary qualifications / achievements. Thus, the MBBS cannot claim himself specialist.

Further, in the matter tilted as “Surinder Kumar (Laddi) versus Dr. Santosh Menon & Others, 2000 (III) CPJ 517(Punj. SCDRC), the Hon’ble Punjab State Consumer Disputes Redressal Commission held that MBBS doctor having obtained degree from the University was competent to practice medicines, surgery and obstetrics. Caesarean operation is a part of surgery. It may be that the persons obtaining diploma like D.G.O may be more qualified to conduct Caesarean operation but it cannot be said that such persons who had obtained such training only were eligible to conduct Caesarean operation. Further, doctor was qualified as well as eligible for conducting Caesarean operation, on the basis of her experience also.  

Thus, the MBBS doctor can admit patients. 

Dr KK Aggarwal

Padma Shri Awardee
Vice President CMAAO
Group Editor-in-Chief IJCP Publications

President Heart Care Foundation of India

Immediate Past National President IMA

                                                     

Mandatory public health CMEs

Recently, the government of India has proposed mandatory MDR TB centers in all medical colleges. Why focus only on MDR TB? Ideally all colleges should have a mandatory Antimicrobial Resistance (AMR), which also incorporates MDR TB.

Dr Balram Bhargava, Director General ICMR has also said that every medical college should have a tobacco cessation clinic along the same lines. I will again go a step further “why only a tobacco cessation clinic and why not a substance abuse clinic’ in every college?

Every Medical College should also have a separate Department for national health programs, which should look after exposure and training of students in all National Health programs during MBBS. Education about the National Health programs should not be limited just to Community Medicine. All those who have passed their MBBS examination, should be given a mandatory one hour video CME on National Health programs and new government health policies.

Dr KK Aggarwal

Padma Shri Awardee
Vice President CMAAO
Group Editor-in-Chief IJCP Publications

President Heart Care Foundation of India

Immediate Past National President IMA

There has been a paradigm shift in the behavior of Aedes mosquitoes

Over the past years, there has been a paradigm shift in Aedes mosquitoes, which cause dengue fever.

Traditionally, Aedes aegypti has been regarded as a day biter and one which breeds indoors and also bites inside the house. This perception no longer holds true.

Then - It bites only in the day.
Now - It bites in the light. Day and night does not matter.

Then - It breeds in safe water.
Now - It breeds in stagnant water from natural sources.

Then - It breeds only inside the house.
Now - It breeds both inside and outside the house, in any discarded objects/containers with stagnant rainy water collection.

Then - Mosquito breeds in water tanks on the roof and coolers.
Now - It breeds both in small and large water collections. It can even grow in the caps of bottled water.

Earlier, a temperature ranging between 30^oC and 32^oC was considered as the optimal temperature for Aedes mosquito breeding. But, now this range has been lowered to between 24^oC and 28^oC.

The use of air conditioners (ACs) in homes generally coincides with the arrival of summer. ACs are usually set at a temperature of 24^oC, now an ideal temperature for the Aedes mosquito to breed and also survive all through the year. The extrinsic incubation period of the dengue virus is also reduced i.e. decrease in the time required for the virus to replicate and disseminate in the mosquito. The result is an increase in disease transmission rate. Aedes eggs can survive in a dry state for at least a year.

Hospitals have central air conditioning. It is important to check for mosquito breeding sites in central ACs in hospitals and also in homes.

The mosquito cannot comprehend the difference between day and night, or indoor and outdoor. It is the environment that counts. The climate is changing, so is the behavior of mosquitoes and so is the epidemiology of the disease they cause. Earlier prevalent as a monsoon disease, dengue is now reported all through the year.

Dr KK Aggarwal

Padma Shri Awardee
Vice President CMAAO
Group Editor-in-Chief IJCP Publications

President Heart Care Foundation of India

Immediate Past National President IMA

On this World Malaria Day, let us pledge to "Test. Treat. Track" every malaria case

India is a malaria endemic country. The reported malaria cases in the country last year have declined by 23% compared to 2016, yet India still accounts for 87% of malaria cases in the South Asia region. Also, as per the World Malaria Report, India has among the weakest malaria surveillance systems globally, with only 8% of cases detected by the surveillance system.

The World Health Organization (WHO) Global Technical Strategy for Malaria has set a target of reducing malaria case incidence by at least 90%, reducing malaria mortality rates by at least 90%, eliminating malaria in at least 35 countries and preventing a resurgence of malaria in all countries that are malaria-free.

There is still a long road ahead before the goal of elimination of malaria throughout the country by 2030 is achieved.

Malaria is entirely a preventable disease. It is also a treatable disease provided it is diagnosed and treated in time. The symptoms of malaria are non specific and can be variable. So it may be mistaken for other diseases such as viral infections, typhoid and the diagnosis of malaria may be missed as a result.

It is important to remember here that malaria is not a clinical diagnosis; the diagnosis has to be confirmed by microscopy or a rapid diagnostic test (RDT).

The ‘T3’ initiative of the WHO Global Malaria Program supports malaria-endemic countries in their efforts to achieve universal coverage with diagnostic testing and antimalarial treatment, as well as in strengthening their malaria surveillance systems

T3 stands for Test. Treat. Track., which means:

· Every suspected malaria case should be tested

· Every confirmed case should be treated with a quality-assured antimalarial medicine

· The disease should be tracked through a timely and accurate surveillance system.

Adopting and implementing this initiative will be a step in the right direction in the efforts to control and eliminate malaria.

Every patient of fever must be investigated for malaria to either confirm the diagnosis or exclude it as a cause of fever.

Surgery performed on the wrong patient is a ‘never event’

A patient who was hospitalized in a dedicated Trauma Centre run by the Delhi government with head and face injuries that he sustained in an accident, instead underwent surgery under GA for a fractured leg, as reported in TOI. The surgeon mistook him for another patient admitted in the same ward who had a leg fracture. A small hole was drilled into the patient’s right leg to put a pin on Thursday morning. As the procedure had been done under general anesthesia, the patient could not realize or object to it. However, the pin was removed within hours following a corrective surgery after it was brought to the attention of the authoritis. A committee examined the case found merit in the allegations and a disciplinary action was initiated against the doctor, a senior resident, who has been barred from conducting surgeries without supervision with immediate effect.

Res ipsa loquitur is a Latin term, which literally translates as “the thing speaks for itself”. The doctrine of res ipsa loquitur is a rule of evidence in cases of medical negligence. It infers negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved. Res ipsa loquitur is not applicable when determining the liability for criminal negligence; it applies only in cases of civil negligence.

To prove medical negligence, usually three components have to be established:

• There was an element of duty to be performed
• There was breach of duty
• Resultant damage

If the patient is not harmed by the physician’s error, then the patient cannot recover damages arising out of the error. 

This case answers ‘yes’ to all the three components of medical negligence: there was a duty of care, there was a breach in the duty of care and the patient did suffer damage as a direct result of the breach.

In res ipsa loquitur, these three components of medical negligence elements are inferred from an injury that does not ordinarily occur without negligence i.e. negligence is evident and the complainant does not have to prove anything as the “thing proves itself” as also in this case.

This is a medical error and can be classified as a ‘never event’ i.e. event that should never occur under any circumstance. Never events are defined as adverse events that are serious, largely preventable, and of concern to both the public and health care providers for the purpose of public accountability. They are usually a direct result of a negligent action and no trial of expert’s evidence is necessary

The US National Quality Forum has defined 29 never events segregated into seven categories: surgical, product or device, patient protection, care management, environmental, radiologic, and criminal.

“Surgery or other invasive procedure performed on the wrong patient” is included in list of surgical never events along with “surgery or other invasive procedure performed on the wrong body part, wrong surgical or other invasive procedure performed on a patient, unintended retention of a foreign object in a patient after surgery or other procedure”.

The World Health Organization (WHO) has developed a Surgical Safety Checklist, to be read out loud, to decrease errors and adverse events for use in any operating theatre environment. The checklist has three phases as below:

“Sign In”: Before induction of anesthesia

• Has the patient confirmed his/her identity, site, procedure and consent?
• Is the surgical site marked?
• Is the anaesthesia machine and medication check complete?
• Does the patient have a: Known allergy, Difficult airway/aspiration risk or Risk of >500ml blood loss (7ml/kg in children)?

“Time Out”: Before start of surgical intervention

• Have all team members introduced themselves by name and role?
• Surgeon, Anesthetist and Registered Practitioner verbally confirm: What is the patient’s name? What procedure, site and position are planned?
• Anticipated critical events (surgeon, nurse, anesthetist)
• Has the surgical site infection (SSI) bundle been undertaken? Antibiotic prophylaxis within the last 60 minutes • Patient warming • Hair removal • Glycemic control
• Has VTE prophylaxis been undertaken?
• Is essential imaging displayed?

“Sign Out”: Before any member of the team leaves the OR

• Registered Practitioner verbally confirms with the team:

o    Has the name of the procedure been recorded?

o    Has it been confirmed that instruments, swabs and sharps counts are complete (or not applicable)?

o    Have the specimens been labelled (including patient name)?

o    Have any equipment problems been identified that need to be addressed?

• Surgeon, Anesthetist and Registered Practitioner: What are the key concerns for recovery and management of this patient?

However, when deciding the quantum of punishment, the mitigating circumstances need to be considered.

Does the hospital have a protocol in place to avoid such mistakes? Generally, a minimum of two ID marks are required to be checked at the time of surgery. More than one patient can have the same name; room numbers may not be reliable as an identification mark. Matching of HUID no. is important.

Being overworked, lack of resources and infrastructure, insufficient staff etc. is no excuse for not following such a checklist.

There should be guidelines and/or protocols in place, which should be strictly implemented. If there are no guidelines, then there is an urgent need to develop them as per requirements. The checklist must be completed for each patient who undergoes a surgery, including under LA. It also must be documented in the patient chart.

By following these few but crucial steps, such errors can be minimized. It also ensures effective team work.

This mistake is not just that of the doctor alone. It is also a result of system failure and administration error.

Dr KK Aggarwal

Padma Shri Awardee
Vice President CMAAO
Group Editor-in-Chief IJCP Publications

President Heart Care Foundation of India

Immediate Past National President IMA