With no Rules for Criminal Investigation of Medical Negligence Cases, Police relies on State Medical Councils for opinion

“So, it is better to write to the regulator who will identify the specialists and offer an opinion,” the police official told PTI.

Even though back in 2005, while considering the case of Jacob Mathew, the Supreme Court while laying down guidelines to be followed in the criminal cases of negligence had asked the central and state governments to frame certain guidelines with the erstwhile Medical Council of India (MCI), there is still no clarity regarding this.

Addressing the issue of booking doctors under IPC 304A, the Apex Court had noted back in 2005, "The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards."

Back then, the top court had also clarified that the police should obtain opinion of a specialist doctor before initiating the proceedings. The court had observed, "The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation."

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The MCI passed a resolution for the first time on October 31, 2017, proposing to the government to constitute medical boards with doctors specialising in respective fields of medicine.

The National Medical Commission (NMC) wrote to the Union health ministry in September 2021 suggesting the constitution, terms of members and functioning of such medical boards.

With no specific provisions in this regard, the police authorities approach the State Medical Councils for seeking expert opinions. However, the role of State Medical Councils has been alleged to be biased by the complainants and challenging the orders passed by the Councils, the complainants approach the Courts.

While considering such a case, back in 2020, the Delhi High Court had stayed the Delhi Medical Council's order that had absolved doctors of Fortis Hospital at Shalimar Bagh of medical negligence case in relation to brain damage suffered by a newborn at the facility.

His parents claim Fortis Hospital, Shalimar Bagh, where Devarsh’s mother Sapna gave birth to him, deliberately hid the birth injury from them, depriving him of timely treatment. The hospital has denied any wrongdoing.

The DMC held that the hospital and doctors were innocent, thus exonerating them of criminal charges. Sapna challenged the council’s opinion in court and an FIR was lodged on October 1, 2019.

The Delhi HC bench had also issued notice to the Delhi Medical Council (DMC), Medical Council of India (MCI) and Fortis Hospital seeking their stands on a plea moved on behalf of the two-year-old toddler, who became mentally and physically disabled due to the brain haemorrhage suffered during delivery, and his mother, who have challenged the clean chit given to the doctors.

PTI adds that this was not the first case in which the role of DMC exonerating doctors accused of negligence was questioned. As a matter of practice, police take the DMC’s opinion in all criminal complaints of medical negligence.

There have been cases when high courts have taken into consideration the objection against the “inherent bias” of the medical councils and, instead, relegated the complaint to government hospitals for an expert opinion.

For instance, in the Himanshu Singhal vs State of NCT case, in which a child died during treatment for dysentery, the Delhi High Court asked Maulana Azad Medical College to constitute a medical board and submit its report.

In another case, Rashmi Dixit vs Medical Council of India (MCI) (now National Medical Commission), the Delhi High Court expressed deep anguish over the DMC and the MCI exonerating a doctor who was not qualified to conduct surgery.

Filing the plea before the Delhi High Court, the father of the newborn baby who suffered brain damage had also challenged the power of DMC to give expert opinions.

The petition argued that the DMC is an elected body of doctors who generally protect other doctors and the council does not have the power to give expert opinions to the police in criminal cases.

Praveen Khattar, who represented the DMC, argued that the DMC Act empowers the council to give its opinion in cases of alleged medical malpractice.

In a court affidavit, the DMC said that the Delhi High Court in Ramesh Dutt Sharma Vs. MCI case, while referring to the Jacob Mathew matter, has “held that it found no infirmity with the action of the police authorities in relying on the opinion/view expressed by DMC/MCI in determining whether an FIR is to be registered or not”. The matter is pending in court.