UNIT III
MEDICAL PRACTICE-A CRIME UNDER WHITE COLLAR CRIME
Malpractice : - Under medical Science malpractice is the Wrongful and improper
practice in medicine or absence of reasonable care and skill. Thus also includes the
willful or intentional neglect of a patient by a medical practitioner as a result of which
the patient may receive bodily injuries, pain or suffering or death. The expression
"negligence" includes the acts of both 'omission' i.e., not doing a thing required to be
done and 'commission' i.e., doing a thing which a prudent man under the given
circumstances will not do. 'Negligence' is actionable both under civil and criminal laws,
but where negligence is a essential ingredient of the ofence, the negligence to be proved
by the prosecution must be culpable or gross and not negligence based upon an error of
judgment.
Syed Akbar vs. State of Karnataka AIR 1979 Sc 1843.
Criminal Malpractice: - Criminal malpractice occur, when a doctor during the
course of management of a case violates the provisions of penal law and subject himsclf
to prosecution by the stated or to a complaint are by the concerned party. The
circumstances are:
A Doctor is to report all cases of violence coming to his knowledge, in
which the commission of criminal acts suspected. If he fails to abide by this
provision of the law, he will be liable for punishment under Scc -202 LP.C.
A plastic surgeon may alter the features of ridge characteristics ofa criminal
to erase the identification so that his foot print / full proof identification
mark gets obliterated (destroyed) which generally happens in USA and some
advanced country amounts to an unlawful act. Cronzales etal, Legal
Mcdicine, Pathology and Toxicology (1954) Appleton century crafts 13Cp
917.
A Doctor, if willfully falsifiesa birth or death certificate or prepares a
fraudulent affidavit for any purpose or willfully attempts to conceal the
nature of a criminal act, is making him liable for criminal procecding.
In the event of the death of a patient on account of gross negligence,
carelessness or profound ignorance cither during administration of
anesthesia prescription of medieine or administration of drugs or
management of surgery cases, the doctors is liable for persecution against
his act of
of causing death by rash and negligent act under the provisions of
A LPC punishable with imprisonment ftwo year/
fine or both.
Daarioand by Sheen Khan (ahanveern211 #ga com)
If the patient does not die but suffers due to carelessness, negligence and
profound ignorance of medical science as evidenced by:
n The prescription of a wrong medicine and its application to the
sensitive areas likc cars or eyes or as lo cause less of vision or hearing
capabilities.
b) Operation on a WTOng patient or ofa limb/organ not requiring any
operation.
c) Leaving surgical instruments or surgical swabs inside the body, which
at times. takes place in cases of abdominal surgery.
d) Incompetent: administration of general anesthesia,. The Doctor's act
amounts to maipractice.
When a Doctor uses his professional skill and capabilities for an illegal act,
for instance, causing a criminal abortion and not a therapeutic abortion or
any act in relation to abortion out side the scope of the medical
termination of pregnancy Act, 1972, he has indulged in the commission of
an act. which is within the mischief of criminal malpractice.
Medical examination of a female patient without her consent amounts to
criminal malpractice and by way of precaution
P and safety against any charge
TiminalImalpractice
or allegation of crimi n accruing (resulting) )from this type of
negligence, the should obtain the consent of the female patient or her
guardian under certain circumstances. A male medical practitioner should
examine a female patient in the presence of another female., Sec. 18 of the
workmen's compensation Rules, 1924 present's this.
Performing a professional duty under the influence of drugs or an intoxicant
amount to an act of criminal malpractice.
Illustrative cases
1. A registered homeopathic practitioner prescribed the administration of a
dose of straomonium to be taken witha leaf of "Dhatura" in consumption of
which the patient died. Since Dhature leaf is a poisonous substance which
art of Homeopathic medicine, its prescription without
does not constitute a part
thoroughly studying its effect was held as amounting to a rash and negligent
" Performing a professional duty under the influence of drugs or an intoxicant
amount to an act of criminal malpractice.
Ilustrative cases
L. A registered homeopathic practitioner prescribed the administration of a
dose of straomonium to be taken with a leaf of "Dhatura" in consumption of
which the patient died. Since 'Dhature' leaf is a poisonous substance which
does not constitute a part of Homeopathic medicine, its prescription without
thoroughly studying its effect was held as amounting to a rash and negligent
act punishable under Sec. 304 ALP.C.
Jaggan Khan vs. State of MPAIR 1965 SC 831,1965 Cr. LJ 163
fhs document s avalatbie free ot charge on studocu
Deanioaed by [Link] han (athanshreen211 Wgmal com)
2. A Kaviraj, who was not a qualified Surgeon, cut the internal piles of a
patient by an ordinary knife is conservance of which the paticnt died of
hemorrhage (profuse blecding).The Kaviraj was convicted under sec.304-A
IPC for his rash and negligent act. He pleaded for the benefit of Sec. 88 of
the IPC saying that what he did was in good faith and he had obtained the
consent of the patient and in the past had performed several operations of
same type. His plea was unacceptable to the court. Su Karoo Kaviraj vs.
Emperor LLK(T6n .566.
of civil negligence comes up
CivilA practicc:: The when:
A patient or his relative claims compensation through a civil suit against the
doctor / hospital for sufferings/injuries/ death conscquent upon the act of
commission and omission occurring during the course of treatment.
A Doctor institutes a civil suit for the recovery of his dues from the paticnt
or his relatives who refuse to pay on some pretext or other including
professional negligence.
Acharge of professional negligence cmerges under the following conditions:
I. Duty - where a duty of care and attention exists.
Dereliction: where there is a dereliction of duty derelict= abandoned (failing
into ruins)
III. Direct Causation- When damage or injury has been caused to the patient on
account of failure to exercise duc care and attention
IV Damage when damage has been caused claimed for the loss thus
sustained.
It is the presumption of the law that a medical practitioner will use reasonable care
and skill in treatment of a paticnt even if the patient is being treated free or his
treatment is being doen ina charitable institution. Failure on the part of a patient to
pay services charges or fees will not entitle a doctor or a clinic to treat the patient
in a negligent manner.
A general practitioner is expected to use the average skill and knowledge
ation and stature
which any other general Medical Practitioner of similar qualification
(greatness) in medical practice is expected to exercise. He be expected
c to
exercise the skill and expertise of a specialist, A honest error of judgement is
diagnosis is not negligence. The liability ofa medical Practitioncr is not unlimited.
The standard of care required of him is not an insurer and guarantor of absolute
recovery and safety. He cannot be held liable if something goes wrong unless the
Downloaed ty Shieen Khan thanstreen211 grmail com)
same is due to sheer negligence law requires that there should be exercise of
professional skill and knowledge that belongs to the ordinary practitioner
Ethical Malpratice:
Violation of Ethics of medical practice in any fom is ethical malpractice.
kes the condemnation of the professionals in
No fine is imposed for it but it invokes
the field. In the event of a complaint, being lodged and facts being proved, the
name of the Medical Practitioner will be removed from the rolls of the Medical
Registrar. The question of payment of compensation arises only when it is a mixed
question of civil liability along with ethical malpractice.