Kerala HC issues 12-point draft guidelines for medical negligence cases, details

1. Upon receipt of a complaint alleging medical negligence, the Investigating Officer should act swiftly and secure the initial set of documents like doctor’s notes, nurses’ diary, duty roster, shift reports, attendance sheets, assessment forms, consent forms, medical reports, diagnostic reports, lab results, referral or cross consultation records, treatment notes, discharge summaries etc.

2. The Investigating Officer shall then intimate the authority concerned about the complaint and request to convene the Expert Panel meeting immediately.

3. A list of practitioners, by specialty, should be maintained in each district and those persons sensitized about the manner in which complaints of medical negligence are to be dealt with. A Doctor from the concerned specialty shall be included in each Expert Panel.

4. The Expert Panel shall conclude its proceedings within 30 days of its constitution.

5. The medical practitioner and the de facto complainant shall be issued with notice and permitted to submit written representations to the Expert Panel.

6. In cases where the Expert Panel finds prima facie material indicating gross negligence, the medical practitioner should be called upon to appear in person and offer his explanation regarding the procedure adopted/ treatment provided.

7. The report of the Expert Panel should contain the individual opinion of each expert. The final conclusion of the Panel should be based on consensus.

8. The report should directly address the issue whether gross negligence or recklessness, leading to loss of life, can be attributed to the medical practitioner and specify which individual(s), from among the team of doctors, is guilty of gross negligence or recklessness and the reasons for reaching such conclusion.

9. The Expert Panel should apply a clear and consistent test for determining criminal negligence with reference to the Bolam test. The reasoning of the panel must be reflected explicitly in the report. A reporting template may be developed for use by the Expert Panels.

10. A copy of the report should be served on the medical practitioners affected by the report. In cases where the Expert Panel finds no negligence, on the part of the doctors, a copy of the report should be furnished to the de facto complainant.

11. The right to appeal against the finding of the Expert Panel should be provided to the medical practitioner as well as the de facto complainant.

12. Time limit should be stipulated for filing the appeal and for the State Level Apex Expert Committee to decide the appeal. If the appeal is filed within the time stipulated, the Investigating Officer shall file final report only after the appeal is decided.

These guidelines were issued by the HC bench while considering two separate cases in which doctors were accused of causing the death of their patients, allegedly due to medical negligence. They were booked under Section 304A of IPC [Causing death by negligence].

The first case concerned the accused doctor, who was treating a man with a wound on his chest, which allegedly occurred after an episode of alcohol consumption. More than a year later, the crime against the accused was registered, and the expert panel also concluded that the treating doctor had not taken any steps to refer the patient to a cardiothoracic surgeon.

In the second case, the accused doctor was a gynaecologist and the patient was a new mother who delivered via cesarean section. During the operation procedure, the patient was found to have a huge hematoma in the retroperitoneal area, extending from the diaphragm to the pelvic wall. Based on the advice of the consultant Surgeon of the hospital, the patient was provided conservative line of management by adopting appropriate measures to mitigate the situation and keep her stable. As the condition of the patient kept deteriorating, her husband was advised to take the patient to the Kottayam Medical College Hospital, the nearest higher centre.

It was alleged that even though the treating doctor had repeatedly advised the family members of the patient to another hospital, there was a long delay.

The panel opined that no action of commission on the doctor's part could be found. It was also observed that earlier referral and intervention by way of exploratory laparotomy would have saved the patient, and to that extent, there was negligence on the part of the treating doctor. Based on the expert panel report, the police concluded the investigation and filed final report, arraying the treating doctor as the accused.

After taking note of the arguments on these two cases, the HC bench considered whether the circulars issued by the government had effectively been incorporated the law laid down by the Apex Court in medical negligence cases regarding the grant of fair hearing to the doctors.

"The precedents, the circulars issued by the Government of Kerala and the Governments of other States and the suggestions/submissions of the learned counsel on both sides leaves no room for doubt that the Government of Kerala should formulate guidelines for the constitution and functioning of the Expert Panel as well as the Apex Committee," observed the HC bench, as it laid down the guidelines. "The learned ADGP is requested to place this draft guidelines before the Government for immediate further action," ordered the HC bench.

Meanwhile, the Court noted that the doctors had filed the appeals on the expert report and hence it stayed the further proceedings in the cases.

It also directed the ADGP to instruct the instruct the State Level Apex Expert Committee to decide the appeals filed by the petitioners. "As the final reports in the Crl.M.Cs under consideration were filed before deciding the appeals filed by the petitioners, further proceedings in the Calender Cases shall stand stayed for a period of three months. The learned ADGP shall instruct the State Level Apex Expert Committee to decide the appeals filed by the petitioners within two months and make available those decisions to this Court," the Court ordered, while lising the matter for further hearing on 30.09.2025.

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/kerala-hc-299619.pdf

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