KK (suffering from cancer-terminal stage) was admitted to the hospital in Kanpur City. He felt difficulty in breathing. The duty nurse called some doctor to attend to the patient. No doctor turned up for 20 to 25 minutes
CS Professional · Insurance - Law and Practice · PYQS · December 2019
KK (suffering from cancer-terminal stage) was admitted to the hospital in Kanpur City. He felt difficulty in breathing. The duty nurse called some doctor to attend to the patient. No doctor turned up for 20 to 25 minutes. Then the appellant Doctor and another Doctor came to the patient's room. An oxygen cylinder was brought and connected to the mouth of the patient but the breathing problem increased further. The oxygen cylinder was found to be empty. There was no other gas cylinder available. Later, the patient was declared dead. An offence under Sections 304-A/34 Penal Code, 1860 was registered and charges filed against the doctors. Doctor's petition to High Court to quash the charges was dismissed. According to the appellant, the deceased KK was suffering from cancer in an advanced stage and as per the information available, he was, in fact, not being admitted by any hospital in the country because of his being a case of cancer at terminal stage. He was only required to be kept at home and given proper nursing, food, care and solace coupled with prayers. But his sons, who were very influential persons occupying important positions in Government, could prevail over the doctors and hospital management and got the deceased admitted as an inpatient on compassionate grounds for regulated medical treatment and proper management of diet. It was abundantly made clear to the informant and his other relations who had accompanied the deceased that the disease was of such a nature and had attained such gravity, that peace and solace could only be got at home. The patient was treated with utmost care and caution and given all the required medical assistance by the doctors and paramedical staff. The complainant and his relations, who were misguided or were under mistaken belief as to the facts, lodged police report against the accused persons which was wholly unwarranted and uncalled for. The Hon. Court in its judgment concluded that : A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men is found to be sufficient. So also, the standard of care, while assessing the practice as adopted, is judged in the light knowledge available at the time of the incident, and not at the date of trial. A professional may be held liable for negligence on one of the two findings: either he had not possessed the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds well in its applicability in India. The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of 'mens rea' must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304 A of the IPC has to be read as qualified by the word 'grossly'. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. Discuss the scope of coverage of persons and loss exposures under a Doctor's Professional Indemnity Insurance Policy.
Answer & Explanation:
The scope of coverage of persons and loss exposures under a Doctor's Professional Indemnity Insurance Policy is exhaustive. Doctors are trained professionals who deal with human lives. They have the power of restoring health and hence good quality of life to the sick and unwell. However, during the course of their work, they might commit some professional errors which, in turn, might lead to severe consequences. Though making mistakes is human, the mistakes made by doctors and medical professionals have far-reaching consequences. Their mistakes might cause loss of life, physical injury or physical impairment. If such contingencies happen, doctors face a heavy financial liability. They might be sued by the patient and/or her family which would imply incurring heavy legal costs. They might also be liable to pay a lump sum settlement to the aggrieved party. This incurs a substantial financial loss for them and this is where a doctor's professional indemnity policy comes into the picture. Further, litigation and court appearances can create involvement in time, leading to damage to the Doctor's earning capacity. The doctor's professional indemnity insurance policy covers the legal liability faced by doctors due to mistakes which they commit unintentionally in their profession. The policy pays for the following - Defense costs incurred by the insured medical practitioner in defending himself in a lawsuit. Settlement payable to the third party. Court fees incurred in a litigation. The policy can be bought by independent medical practitioners or by medical establishments on behalf of their consulting and full-time medical practitioners. The coverage level under the policy depends on two main things - Any One Accident (AOA) and Any One Year (AOY). The AOA limit denotes the maximum claim payable in a single instance of claim. The AOA limit is expressed as a percentage of the AOY limit which is the maximum liability undertaken by the insurance company. The AOY limit states the maximum claim which the insurance company will pay in any given policy year. Multiple number of claims can be made under the policy and they would be covered provided the aggregate claims payable do not exceed the AOY limit. The coverage amount chosen should be decided based on the expected liability faced by the medical practitioner. Premiums are calculated depending on the coverage availed, the ratio of AOA: AOY, the profile of the doctor being insured, experience of the doctor, past claims history, etc. Claim would be made under the policy if the doctor makes a mistake and faces a civil liability. Instances of criminal liability are not covered under doctor's professional indemnity insurance policy. Only civil liability cases which arise out of unintentional negligence are covered. Negligence is said to occur when the doctor had taken on the duty to care for the individual but the doctor breached, this duty due to which the individual suffered physical injuries, impairment of physical faculties or death. As a result of the doctor's negligence, the patient or their family can file a lawsuit against the doctor. If negligence is proven, the doctor's professional indemnity policy would cover the legal costs and settlements which are faced by the doctor. The doctor's professional indemnity insurance policy offers a comprehensive scope of coverage to medical practitioners and protects their finances from the implication of their mistakes. Individuals should, therefore, understand what the policy entails and get themselves covered under it. A comprehensive doctor's professional indemnity insurance policy covers all possible scenarios due to which doctors might face a professional or legal liability. Coverage under a comprehensive doctor's professional indemnity policy includes the following: Legal costs incurred by the insured doctor would be covered subject to the consent of the insurance company. These legal costs should have arisen due to unintentional errors committed by the insured doctor when rendering professional medical treatments and advice. The settlement payable to the third party is also covered under the policy. This settlement should also be a result of any mistake committed by the doctor. The court fees incurred for defending the insured doctor in case of a litigation would be covered. Claims are also covered on a retroactive basis. This means that if the policy is allowing coverage in the present year and a claim is made for any previous years when the policy was applicable, such claims would be covered. There are certain conditions however that can apply here. Many insurance companies also enhance their scope of coverage by providing doctors with professional legal counsel and support so that the doctors can be effectively defended in a lawsuit which has been filed against them. Though the standard doctor's professional indemnity insurance policy covers almost all types of claims, there are further policy extensions which enhance the scope of coverage. Through extensions, one can cover claims made by foreign individuals, negligence by employees or staff of the medical practitioner, loss of documents, etc.
Topics: Professional Indemnity Insurance
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