Five doctors summoned in 2012 infant death case under section 304

Dr KK Aggarwal

Additional Chief Metropolitan Magistrate Anuj Agrawal summoned four doctors of two different private hospitals and the medical superintendent of one of the government hospitals in East Delhi district under Section 304 (culpable homicide) of the Indian Penal Code. The court noted that the Medical Council of India (MCI) had also ordered the removal of their names from its register for three months. The case refers to the death of a 10-month-old baby in 2012. The court also pulled up police officers probing the case for not taking into consideration the ethics committee report, which had clearly directed that names of the guilty doctors be removed from the Medical Council of India’s register for a period of three months (Hindustan Times).

Commentary

Section 304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

Section 304 applicable only if:

·         There was an intention to cause death, or

·         The act was done with the knowledge that it is likely to cause death, but without any intention to cause death

If the MCI report has something categorical with regard to any of these two aspects, only then can a case be filed under section 304.

Suspension of license to practice does not mean criminal negligence.

Punishment and disciplinary actions are described in Chapter 8 (Regulations 8.2 and 8.5) of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.

·          “…If the medical practitioner is found to be guilty of committing professional misconduct, the appropriate Medical Council may award such punishment as deemed necessary or may direct the removal altogether or for a specified period, from the register of the name of the delinquent registered practitioner…” (8.2)

·         During the pendency of the complaint the appropriate Council may restrain the physician from performing the procedure or practice which is under scrutiny (8.5) 

Both do not qualify it to be a criminal negligence.

Professional indemnity

The Professional Indemnity policy for doctors protects against claims arising out of bodily injury or death caused by error, omission, negligence; legal liability including defense costs (costs, fees, expenses) incurred during investigation, cost of representation, compensation etc.

The very fact that professional indemnity covers medical negligence, all cases of negligence cannot be criminal negligence.

What to do:  IMA or DMA should become a party to it and protect the doctors from 304.

These comments are based on the media report. We will be able to expand the comments further once we study the actual judgment.

Dr KK Aggarwal

Padma Shri Awardee

President Elect Confederation of Medical Associations in Asia and Oceania (CMAAO)

Group Editor-in-Chief IJCP Publications

President Heart Care Foundation of India

Past National President IMA