Expert Opinion mandatory before prosecuting Doctors facing Medical Negligence charges: HC

Srinagar: Observing that before prosecuting medical professionals facing charges of medical negligence, a Criminal Court needs to obtain opinions from medical experts, the High Court of J & K and Ladakh recently quashed the FIR against a doctor.

The HC bench also quashed the directions issued by the Chief Judicial Magistrate of Pulwama directing the SHO, P/S, Pulwama, to register an FIR and investigate the matter alleging that a patient had died after being administered Gravidol-200 mg following the advice of the concerned doctor. Challenge had also been thrown to an FIR lodged for the offence under Section 304-A RPC that has been registered with P/S Pulwama pursuant to the aforesaid direction of the Chief Judicial Magistrate.

Reiterating the guidelines issued by the Supreme Court for deciding cases relating to prosecution of medical professionals for criminal negligence on their part, the HC bench comprising of Justice Sanjay Dhar noted, "The Courts are not experts in the medical science and, as such, they cannot substitute their own views over that of the specialists. Medical science is an inexact science and outcome of treatment of a patient cannot be predicted with certainty. Sometime even after best efforts of the doctor, his treatment of a patient may ultimately result in failure but simply because his treatment has not yielded desired result, he cannot be held liable for criminal negligence. All these factors have to be taken into account while dealing with a case of medical negligence. Therefore, without opinion of a medical expert, the Criminal Courts have to desist from setting the criminal law into motion against a medical professional."

In the concerned case, a complaint had been filed before the Chief Judicial Magistrare, Pulwama wherein the complainant had alleged that his maternal aunt was undergoing treatment of petitioner, Farooq Ahmad Bhat. It was claimed by the complainant that Dr. Bhat had prescribed a drug, namely Gravidol-200 mg, that was to be injected to the patient.

Further, the complainant alleged that after injecting the drug through a medical assistant, the condition of the patient worsened and the petitioner doctor did not bother to examine the patient which compelled the original complainant to administer oxygen to the patient himself. However, the patient expired.

When the complainant sought medical advice from other experts in the filed he had been allegedly informed that the injection that was administered to the patient is advisable to be given to the patients with acute hypertension and not to the patients like Mst. Rafeeqa. According to the complainant, the death of the deceased patient was caused due to the administration of aforesaid drug which, according to the complainant, was a wrong treatment prescribed by the petitioner.

After receiving the complaint, the Chief Judicial Magistrate of Pulwama, perused the contents of the complaint and forwarded the matter to SHO, P/S Pulwama, and directed registration of FIR and investigation of the case. A further direction was issued to SSP, Pulwama, to monitor the investigation. Challenging this order as well as the FIR registered following the concerned order, the petitioner doctor approached the High Court.

Filing the plea, the petitioner contended that it was not open for the Magistrate for issuing direction to register FIR on the basis of the aforesaid complaint without obtaining an opinion of the Medical Board. Further the doctor argued that since he was a Government employee who is removable from service by the Government, the direction for registering FIR against him could not be given without obtaining a sanction for prosecution in terms of Section 197 of the Cr. P. C. Apart from this, the doctor argued that while issuing the concerned direction, the Magistrate had not followed the guidelines occupying the field.

The court noted that in its status report, SHO, P/S, Pulwama has narrated the allegations made in the complaint and it has been stated that the impugned FIR discloses commission of cognizable offence against the petitioner, as such, its investigation is required to be taken to its logical conclusion.

After perusing the entire matter, the court noted that case concerned the allegations of criminal negligence made by the complainant against the concerned doctor.

Before deciding the matter, the bench referred to the guidelines issued by the Supreme Court in the case of Jacob Mathew vs. State of Punjab. These guidelines were noticed with approval by the Supreme Court in its later judgment in the case of Martin F. D'Souza v. Mohd. Ishfaq and while reiterating these guidelines, the Court observed that certain factors needed to be kept in mind while deciding cases relating to prosecution of medical professionals for criminal negligence on their part.

In Para 29 of the concerned judgment, the top court had held that, "Before dealing with these principles two things have to be kept in mind : (1) Judges are not experts in medical science, rather they are laymen. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, Judges have usually to rely on testimonies of other doctors which may not necessarily in all cases be objective, since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence. The testimony may also be difficult to understand, particularly in complicated medical matters, for a layman in medical matters like a Judge; and (2) a balance has to be struck in such cases. While doctors who cause death or agony due to medical negligence should certainly be penalised, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this no doctor can practise his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counterproductive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation."

In the same judgment, the Apex court had directed that whenever a complaint is received against a doctor or a hospital by a Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made, the Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital, noted the High Court.

Further, the Apex Court had emphasized on the fact that such rules were required for avoiding harassment to doctors who may not be ultimately found to be negligent. Apart from this, the HC bench referred to the fact that the top court had also issued a warning to the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case (supra). It had been made clear back then that if these directions were not followed, the policemen might themselves face legal action.

Therefore, referring to the Supreme Court judgment, the bench directed,

"From the aforesaid analysis of law on the subject of prosecuting medical professionals for offence of criminal negligence, it is clear that before initiating such prosecution, a Criminal Court has to obtain opinion of the medical expert and if from such opinion, a prima facie case of criminal negligence is made out against a medical professional, only then the machinery of criminal law should be set into motion. This is necessary to avoid any indiscriminate and frivolous proceedings against the doctors."

Apart from this, the court also referred to the top court order in the case of Anil Kumar v. M.K. Aiyappa, where it had been held that application of mind by the Magistrate should be reflected in the order and a mere statement that he has gone through the complaint, documents and heard the complainant will not be sufficient. In that order, the Apex court bench had further observed that after going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr. P. C, should be reflected in the order, though a detailed expression of his views is neither required nor warranted.

Referring to this, the HC bench perused the impugned order by the Magistrate issued on 05.02.2018 and noted, "As is clear from the aforequoted extracts of the impugned order of the learned Magistrate, it has been observed that in view of the facts and submissions, the complaint is forwarded to SHO, P/S, Pulwama, for investigation and registration of the FIR. The learned Magistrate has nowhere, in his order, stated as to what has weighed in his mind for persuading him to come to a tentative opinion that cognizable offences are disclosed from the contents of the complaint."

"The impugned order passed by the learned Magistrate exhibits total non-application of mind as also his failure to discharge the duty cast upon him while exercising power under Section 156(3) of Cr. P. C. The learned Magistrate could not have formed an opinion that the offence of criminal negligence is made out against the petitioner without there being any medical opinion on record. The impugned order on this ground alone is not sustainable in law," mentioned the order.

Further the bench noted, "Apart from the above, if we have a look at the contents of the complaint, respondent No.1/complainant has nowhere stated that he had either approached the SHO concerned or the SSP concerned prior to filing the complaint before the learned Chief Judicial Magistrate."

Besides, the HC bench also referred to the Supreme Court order in the case of Priyanka Srivastava and another vs. State of Uttar Pradesh and others and pointed out that the top court in this order had laid down that without exhausting the remedies under Section 154(1) and 154(3) of the Cr. P. C, a Magistrate should not exercise his jurisdiction under Section 156(3) and direct registration of an FIR.

"It has been further laid down by the Supreme Court that both these aspects should be clearly reflected in the application and necessary documents to that effect should be filed. In the instant case, nothing of this sort has even been indicated in the complaint nor any documents suggesting adherence to the guidelines laid down by the Supreme Court in the aforesaid case have been annexed by respondent No.1/complainant with the complaint. The impugned order passed by the learned Magistrate is, therefore, in breach of the guidelines laid down by the Supreme Court in Priyanka Srivastava's case," the HC bench noted at this outset.

Referring to all these instances and previous orders, the HC bench observed,

"From the above it is clear that in the cases of medical negligence, a Magistrate before directing registration of an FIR has to make a direction with regard to preliminary enquiry and if police receives an information relating to a case of medical negligence, it is also duty bound to undertake preliminary enquiry before registering an FIR."

To read the order, click on the link below.

https://medicaldialogues.in/pdf_upload/jammu-kashmir-hc-184953.pdf

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