IPC Sections 88 and 92 protect doctors against any professional liability for acts done in good faith
The Indian Penal Code (IPC) has provisions for defenses for doctors under sections 88 and 92, which protect doctors from allegations of negligence, for instance, when treatment given in an emergency or a cardiopulmonary resuscitation (CPR) done is not successful.
Section 88 IPC provides for exemption for acts not intended to cause death, done by consent in good faith for person’s benefit: “Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm”.
The illustration accompanying this section explains it further: “A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z’s death and intending in good faith, Z’s benefit performs that operation on Z, with Z’s consent. A has committed no offence”.
Section 92 provides for acts done in good faith for benefit of a person without consent but with provisos: “Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit: Provided—
- (First) That this exception shall not extend to the intentional causing of death, or the attempting to cause death;
- (Secondly) That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmi¬ty;
- (Thirdly) That this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt;
- (Fourthly) That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend”.
Illustration ‘c’ of this section is important for doctors. “A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child’s guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has committed no offence”.
In Kusum Sharma & Ors vs Batra Hospital &Med Research on 10 February, 2010, the Hon’ble Supreme Court also observed as follows:
“The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals… It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners… The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals”.
Both Sections 88 and 92 protect the doctor against any professional liability or allegations of medical negligence, in situations when acts done for the benefit of the patient, with or without his consent, do not have the desired outcome. These sections provide that any act done in good faith is not negligence. Doctors should be aware of these sections as a defense against cases of negligence filed against them.