Criminal Medical Negligence Complaints May not be Entertained without Credible expert Opinion: Kerala HC

Observing that the complainant couldn't produce any such evidence, the HC bench comprising of Justice Kauser Edappagath dismissed the plea and clarified, "...a private complaint alleging medical negligence may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor."

The appellant had filed a private complaint at the High Court against the treating doctor and nurse and two other doctors alleging that they committed offence punishable under section 304A of IPC.

It had been alleged by the appellant that after she was admitted to the treating hospital for delivery of her second child, the baby died during delivery because she was not given proper medical care and attention, and the delivery was carried out in a most negligent manner.

She further claimed that she was subjected to hysterectomy without any knowledge of it and no consent of her family members was obtained either.

Also Read: Lack of Expert opinion to prove deficiency: Consumer Court Exonerates Pediatrician from Medical Negligence charges

Initially, when she had approached the Police Station, the officials were not ready to register the crime. So, she had filed a private complaint at the magistrate court, which had forwarded the complaint to the police u/s 156(3) of Cr.P.C.

Following this, the case came to be considered by the trial court and at that time the doctor and the nurse had challenged the maintainability of the complaint itself relying on the decision of the Apex Court in Suresh Gupta v. Govt.of N.C.T. Of Delhi and Others.

Relying on the dictum laid down in the said judgment, the court found that the criminal prosecution alleging medical negligence against the doctor and the nurse was not maintainable and they were acquitted invoking S.248(1) of Cr.P.C .

Challenging the judgment, the appellant had approached the High Court. During the proceeding of the case, the counsel for the appellant submitted there was error in the previous judgment in invoking the provision under section 248 (1) without examining the witnesses as it was a private complaint.

On the other hand, Sri Shyam Pradhan, the counsel for the nurse submitted that the complaint filed by the appellant alleging medical negligence was dismissed and it was confirmed by the State Commission.

The HC bench, after perusing the case records opined that even though there was irregularity in the procedure adopted by the trial court, the matter need not be remanded as the complaint itself was not sustainable.

"It is true there is irregularity in the procedure adopted by the court below. Being a private complaint, that too summons trial, provision u/s 248(1) could not have been invoked. However, I am of the view that no purpose would be served in remanding the matter and directing the court below to give opportunity to the complainant to adduce evidence and to dispose of the case thereafter for the reason that, a perusal of the case records would show that the complaint itself is not prima facie sustainable as against respondents 1 and 2," noted the court.

Further referring to the Supreme Court judgment in Jacob Mathew v. State of Punjab, the court noted that the top court had clarified therein that as long as the 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.

Relying on the judgment, the HC bench noted,

"In paragraph 53 of the said judgment, it is specifically stated that a private complaint alleging medical negligence may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. No such credible opinion has been obtained or produced by the complainant. On the other hand, the final report would show that during investigation, the investigating officer has obtained an independent and competent medical opinion from the Medical College, Calicut."

The bench pointed out that the doctor, who is the Professor and Head of Department of Gynecology at Calicut, had opined that it was a case of "spontaneous rupture with ragged edges which the doctor has clearly documented as beyond repair, the treatment that can be undertaken is only subtotal hysterectomy."

"The case records would also show that the husband of the appellant has given consent for conducting hysterectomy. In these circumstances, I am of the view that no purpose will be served in proceeding with the private complaint further," further noted the bench at this outset.

Thus, dismissing the plea, the HC bench comprising of Dr. Kauser Edappagath noted, "For the reasons stated above, I find no reason to interfere with the impugned judgment. The appeal is accordingly dismissed."

To read the court order, click on the link below.