Allowing protest petition is abuse of legal process when Expert Committee Finding in medical negligence case is in favour of doctor: Jharkhand HC

Ranchi: In a recent judgment, the Jharkhand High Court opined that proceeding further on a protest petition when the expert committee finding in a medical negligence case is in favour of the doctor, amounts to abuse of the legal process.

This observation was made by the HC bench of Justice Sanjay Kumar Dwivedi as it set aside the entire criminal proceedings against a doctor accused of medical negligence while conducting Hernia operation on a patient.

Opining that the doctor discharged his responsibility and the operation was successful, the bench held, "It is well known that inspite of best effort made by the doctor sometime they are not successful and this does not mean that doctor must be held guilty. The Court comes to the conclusion that the case of the petitioner is fully covered with the aforesaid two judgments of the Hon’ble Supreme Court in the case of Martin F. D’Souza(supra) as well as “ Jacob Mathew Vs. State of Punjab” reported in 2005 (6) SCC 1."

"The court passed the above order in a criminal miscellaneous petition that was filed to quash the entire criminal proceeding, including the order taking cognizance passed by the Chief Judicial Magistrate of Sahibganj in connection with a case whereby cognizance had been taken under section 304-A read with section 34 of the IPC against the petitioner-doctor," the bench observed in the order.

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The history of the case goes back to 2009 when the complainant had taken his father to Surya Nursing Home, Sahibganj for operation of Hernia. The treating doctor, Dr Vijay Kumar operated on the patient. However, after the operation, the patient did not survive and passed away.

Following this, one of the complainants had filed a written application before the Officer-in-Charge, Town Police Station, Sahibganj. After investigating the matter, the police submitted the final form that stated that there were mistake of facts.

On the other hand, Mr. Pandey Neeraj Rai, the petitioner's counsel, submitted that after receiving information that the condition of the patient was not well, the petitioner doctor immediately attended the patient and after medical check-up it was found that the patient had died.

It was further submitted that the complainant had called around 100 to 150 persons at the Nursing Home and the mob was led by five accused persons. The mob ran sacked the nursing home, assaulted the staff of the nursing home and the mob was also shouting to kill Dr. Vijay Kumar.

The manager of the Nursing Home thereafter registered a written report against five accused persons and 100-150 unknown persons for offences under sections 341, 323, 427, 504, 34 of the IPC. Subsequently, after investigation a charge sheet was submitted and cognizance was taken by the Chief Judicial Magistrate in the case.

The petitioner doctor's counsel further submitted that the court had taken cognizance on the protest petition under section 304-A/34 of the I.P.C. against the mandate of law. After this, the National Human Rights Commission and National Minority Commission was informed about this and one enquiry committee was directed to be set up against the petitioner doctor.

Following this, an enquiry had been conducted by a team of three doctors and Dr. Pradee Basky M.S. (General Surgery) and a qualified surgeon and Dy. Director Malaria-cum-State Malaria Officer, Jharkhand was the Chairman of the Committee.

The petitioner's counsel submitted that the enquiry committee recorded the statements of the deceased and the petitioner doctor, the Nurse, Compounder, as well as the risk bound, post mortem report. After this, the detailed enquiry report concluded that there was no technical evidence to hold that the patient had died due to negligence while undergoing Hernia operation. The petitioner doctor obtained the concerned enquiry report under the R.T.I Act.

Referring to this, the counsel for the petitioner doctor pointed out that it is well settled that if a case against the doctor is filed the requirement of proceeding further examination by the expert. This was opined by the Supreme Court as well in the case of Martin F. D’Souza V. Mohd. Ishfaq.

It was also submitted by the counsel for the petitioner doctor that allowing the proceeding to be continued will amount to the abuse of the process of law. He submitted that inspite of that opinion that there was no negligence on the part of the doctor, on the protest petition as well as looking into deposition of certain enquiry witnesses cognizance has been taken which is bad in law. However, the Sessions Judge dismissed the criminal revision holding that the same is not maintainable. On these grounds, the doctor's counsel argued that the criminal proceedings should be quashed.

While considering the matter, the HC bench referred to the protest petition and noted that once the final form has been submitted, the Magistrate has four options:

(1) He may agree with the conclusion of the police and accept the final report and drop the proceeding.

(2) He may take cognizance under Section 190(1)(b) CrPC and issue process straightaway to the accused without being bound by the conclusion of the investigating agency where he is satisfied that upon the facts discovered by the police, there is sufficient ground to proceed.

(3) He may order for further investigation if he is satisfied that the investigation was made in a perfunctory manner.

(4) He may without issuing process and dropping the proceedings under Section 190(1)(a) CrPC upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 CrPC and thereafter whether complaint should be dismissed or process should be issued.

"In the case in hand the learned Magistrate has chosen option no. 4 and doing so he has proceeded in accordance with law. Further, it transpires that the learned court has not taken care of judgement delivered by the Hon’ble Supreme Court in the case of Martin F. D’Souza(supra) as well as “ Jacob Mathew Vs. State of Punjab” reported in 2005 (6) SCC 1," the HC bench observed at this outset.

Referring to these two orders, the HC bench held,

"In these two cases the concern of the court was that unnecessarily a bonafide action of any doctor may not be subject matter of civil wrong as well as criminal wrong and in that aspect in both the judgements it has been directed that the case will be proceeded against the doctors after taking expert opinion and the case in hand expert report was there which is contained in annexure-9 and thereafter final form was submitted."

"In that view of the matter the Court finds that proceeding further on the protest petition when the finding of the expert committee is in favour of the petitioner amounts to abuse of process of law," further noted the bench.

Referring to the facts in this case, the HC bench noted that the doctor has discharged his responsibility and the operation was successful. The patient was brought into the ward and after that the condition of the patient deteriorated.

"In the case of Martin F. D’Souza(supra) the Hon’ble Supreme Court has noted the facts that the courts and the Consumer Forum are not experts in medical science, and must not substitute their own views over that of specialists. It is true that the medical profession has to an extent become commercialized and there are many doctors who depart from their Hippocratic oath for their selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples," the bench noted.

To read the order, click on the link below:

https://medicaldialogues.in/pdf_upload/jharkhand-hc-206651.pdf

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