Doctors can not assure positive treatment results: Bombay HC quashes IPC 304 FIR against doctor

Written by MD Bureau Published On 2020-12-10T17:43:50+05:30 | Updated On 10 Dec 2020 5:43 PM IST

Doctors can not assure positive treatment results: Bombay HC quashes IPC 304 FIR against doctor

Nagpur: Holding that it is not possible for any doctor to assure or guarantee that the result of treatment would invariably be positive, the Nagpur bench of Bombay High Court has recently dismissed a police complaint against a doctor, who was booked under the Medical Termination of Pregnancy Act (MTPA) 1971 and IPC 304 among other sections.

A division bench comprising justices Zaka Haq and Amit Borkar added that the only assurance a professional can give is that he's professionally competent, has requisite skill, and would undertake tasks entrusted to him with reasonable care.

This came after a case of medical negligence was registered against the doctor and a driver following the death of a pregnant woman. Pandharkawda Police Station registered the case against the medical practitioner, where by it was alleged that the doctor performed an illegal abortion on 4 months pregnant woman that resulted in her death.

An FIR was filed against him and he along with a driver have been booked under sections 304, 314, 316, and 201 of the Indian Penal Code (IPC) and sections 4 and 5 of the Medical Termination of Pregnancy Act (MTPA) 1971 for illegally performing an abortion of a patient which resulted into her death.

As per a recent media report by Times of India, the doctor along with the driver, who was the woman's partner approached the High Court seeking to quash the FIR. The counsel for the prosecution submitted that a driver contacted the doctor to abort the child of his partner. The driver was in a relationship with the woman after which she got pregnant. However, she came to know about pregnancy only after 4 months of conceiving.

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Thereafter, it was alleged that the driver took the woman to the doctor to conduct an abortion. He allegedly performed an abortion on her in his hospital on August 5th, 2013. However, her condition started deteriorating after the procedure and the doctor reportedly advised the couple to take further treatment in Yavatmal. The driver then arranged a car for carrying the patient to Yavatmal but she died on her way.

When the incident came to light, the driver and the doctor both were booked for homicide, and allegations were raised that the doctor allegedly performed the abortion illegally despite knowing that the woman might not survive the procedure.

After receiving the submission of both the parties, a division bench comprising justice Zaka Haq and Amit Borkar noted,

" In cases where medical negligence is alleged against medical professionals like doctors, the court should be careful before instituting criminal proceedings. It's not possible for any doctor to assure or guarantee that the result of treatment would invariably be positive. The only assurance the professional can give is that he is professionally competent, has the requisite skill, and can undertake tasks entrusted to him with reasonable care."

Mentioning the apex court's verdict in Jacob Mathew's case, the court observed that the proceedings against the petitioners would amount to an abuse of the process of law as the court should be careful before instituting criminal proceedings against a medical petitioner.

The court further noted that as mentioned in Matthew's case medical negligence comprises - (i) a legal duty to exercise due care on the party complained of (ii) breach of that duty and (iii) consequential damage, reports the daily.

Subsequently, the judges pronounced that the instant case does not have the merit to initiate a trial against a medical professional especially as there is no allegation of gross negligence against him.

Moreover, there is no opinion obtained from a medical expert on the issue of medical negligence. The bench also observed that the only allegation against him is that he had knowledge about the fact that abortion may prove fatal to the patient.

TOI reports that the court finally quashed the FIR against both the petitioners noting, " In facts and circumstances, it can't be said that he's guilty of criminal negligence."

It held,

"This isn't a case where the medical professional should face trial, especially when there's no allegation of gross negligence against him, nor is there any opinion obtained from a medical expert. The only allegation against him is that he had knowledge that abortion can cause death of his patient. In the facts and circumstances, it can't be said that he's guilty of criminal negligence."

Pandharkawda Police StationFIR quashedmedical negligenceillegal abortionMedical Termination of Pregnancy Actdoctor bookedbombay high courtMTP actIPC 304

Source : with inputs

MD Bureau

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