Doctors, here is a Much awaited relief in the offense U/Sec. 304-A – IPC (Causing death by negligence), by Hon. M.P. High Court…
Hon. M.P. High Court, after considering various earlier judgments, have framed the detailed guidelines before lodging FIR and arresting Doctors in the offenses of Sec.304-A of IPC , in its recent judgment of Dr.B.C.Jain V/s. Maulana Saleem, decided on 28/02/2017.
Facts in short :
1. The only allegation against the Petitioner – Doctor in this case is that he did not send the sample of the cerebral spinal fluid (CSF) that he had extracted from the spine of the deceased (i.e. daughter of the Respondent) for pathological test to the laboratory and that the deceased died on account of the absence of the report relating to the CSF which had indirectly impacted the administration of the treatment given to the deceased.
2.Thus the Respondent filed a criminal complaint against the Doctor and the Ld. JMFC was pleased to take cognizance for offence U/s.304-A I.P.C. against the petitioner and proceeded against him.
3.The Civil Surgeon/Hospital Superintendent also gave report holding the Doctor negligent.
4. The PEtitioner contended that CSF sample could not be sent as it was not clear and was mixed with blood due to moments made by the deceased at the time of taking out the sample. it was contendednd that it was not a “Gross Negligence” on part of Petitioner to prosecute U/Sec.304-A.
1. The M.P. High Court quashed the proceedings against the Doctor and observed that there can be no conclusive assessment relating to the cause of death in absence of PM Report.
2. The Civil surgeon only opined that the petitioner may be asked to give an answer for such an omission. this no where impliedly or expressly hold the Petitioner as Negligent.
3. Looking at the rising trend of roping in doctors working in the Government Hospitals by the next of kin of persons dying during the course of treatment at Government Hospitals, and relying on 4-5 judgments of Hon. Apex Court, it has framed the following guidelines.
::: 7 Guidelines :::
The guidelines as laid by the honourable court state
I – That, all allegations relating to negligent conduct on the part of a Government Doctor for which a prosecution u/s. 304-A IPC and/or its cognate provisions, or under such other law involving penal consequences is sought, the same shall be enquired into by a Medical Board consisting of at least three doctors, constituted by the Dean of any Government Medical College in the State of Madhya Pradesh, upon the request of the Police, Administration or the directions of a Court/Tribunal/Commission, within seven days of such requisition.
II. The doctor so selected by the Dean of the Medical College concerned to sit on the Medical Board, shall not be inferior in seniority and experience to that of an Associate Professor.
III. The doctor against whom such negligence is alleged, shall be given an opportunity by the Medical Board to give his reply/explanation in writing and if the doctor so desires to be heard personally, he shall be given such an opportunity by the Medical Board. However, if the Medical Board is of the opinion that the request for personal hearing is with the intent of procrastinating the proceedings before the Board, it may, for reasons to be recorded, waive the opportunity of a personal hearing and proceed to decide the case on the basis of the documents/treatment record and give its finding.
IV. The Medical Board shall endeavour to complete the exercise within sixty days from the date on which it is constituted and upon completion of the enquiry, submit the report to the Police,
Administration or the Court/Tribunal/Commission, as the case may be.
V. The police shall not register an FIR against such a doctor in the absence of the report of the Medical Board referred hereinabove and also, only when the report by the Medical Board has held the doctor prima facie guilty of Gross Negligence and not otherwise.
VI. If a complaint case has been preferred U/s. 200 Cr.P.C, there shall be no order u/s. 156(3) Cr.P.C unless the complaint is accompanied by the report of the Medical Board adverted to in guideline I with prima facie finding of Gross Negligence on the part of the Doctor. However, if the complaint is not accompanied with a report of the Medical Board, the Court may ask the Police to enquire into the case u/s. 202 Cr.P.C. The police, if so directed by the Court, shall approach the Dean of the Medical College for the constitution of the Medical Board and thereafter place the report of the Medical Board before the Court concerned.
VII. If the opinion of the Medical Board is one of Gross Negligence on the part of the doctor, the Court concerned shall direct the police to seek sanction u/s. 197 Cr.P.C from the State Government. The State Government shall, within thirty days from the date of such request for sanction, either grant or refuse the
same, which the police shall convey to the Court concerned.Thereafter, the Court concerned shall either dismiss the complaint case against the doctor by exercising jurisdiction u/s. 203 Cr.P.C or issue process u/s. 204 Cr.P.C and try the case in accordance with the law.
These guidelines thoguh prima facie may seem to be applicable to Govt. hospitals, according to me it will be applicable for all Sec.304-A cases. The Law is same for all the Doctors, irrespective area of practice.. These guidelines certainly have persuasive value as far as other states than M.P. are concerned, as same have been framed considering the earlier judgments of hon. Apex Court. Make others aware, especially our Police Friends about this judgment..
Thanks and Regards,
Adv. Rohit Erande
You may see the following link…