Medical Negligence: Kerala HC junks doctors' plea against expert panel opinion, clarifies it's evidence, not a finding
Kerala High Court
Ernakulam: In a recent ruling, the Kerala High Court clarified that the reports submitted by the State Level Apex Body investigating complaints of medical negligence against doctors serve only as expert evidence and cannot be considered as a finding.
The bench observed that nobody is above the law, including doctors who take the 'Hippocratic oath', and refused to interfere with an expert panel's report that suggested two doctors were guilty of gross medical negligence in the death of a 10-year-old girl in 2010.
"The views expressed by the Expert Panels concerned are only in the nature of expert evidence led by the prosecution, the veracity of which can be tested in cross-examination in a trial where it is relied upon by the prosecution. The opinion of the Expert Panel cannot, by itself, be seen as a finding or as an irrebuttable fact established against the appellants in a manner that is prejudicial to them," observed a Division bench of the High Court comprising Dr. Justice A.K. Jayasankaran Nambiar and Justice Preeta A.K.
The bench was hearing an appeal filed by two doctors who challenged a Single Judge's ruling that refused to interfere with a report submitted by the State Level Apex Body set up to investigate the complaints against doctors.
Background:
The matter concerned a 10-year-old girl who was admitted to a Pandalam-based hospital in August 2010 with complaints of abdominal pain and vomiting. She was apparently administered Bigtum 600 m.g. IV along with Rantac 0.5 cc, almost immediately after which she showed signs of discomfort necessitating her shifting to the ICU and thereafter to a Hospital in Kochi with mechanical ventilation. She later expired while in the critical care unit at the Hospital. The autopsy report showed the cause of death as on account of “choking”.
A complaint was filed alleging criminal negligence and based on this, an FIR was registered. The case was referred to the District Level Expert Panel constituted in terms of Circular dated 16.06.2008 of the Government of Kerala in the Home Department that provided for a two-tier system of scrutiny by Expert Panels, who have to submit their views on the incident from a medicolegal perspective so that the Investigating Agency could be guided in its investigation into the complaint received against the doctor(s) concerned.
Even though the State Level Apex Body's earlier reports had not found material suggesting criminal negligence, these reports were set aside in earlier proceedings. Following this, the High Court directed the expert panel to reconsider the matter. In its fresh report, the body expressed a prima facie opinion of gross negligence. Consequently, the doctors approached the High Court.
While considering the matter, the Single Judge observed that the report only recorded the views of the Expert Panel on the medico-legal aspects of the incident, and it was the duty of the Investigating Officer to consider the said views and continue further investigation. Further, the Single Judge held that the powers of the Investigating Officer under the Code of Criminal Procedure are not given a go-by on account of the views of the Apex Body. After the subgle judge dismissed their appeal, the doctors approached the Division Bench of the High Court.
Before the Division Bench, the counsel for the doctors referred to the judgment in the case of Jacob Mathew v. State of Punjab and Another to point out that negligence in the context of the medical profession necessarily calls for a treatment with a difference.
To infer rashness or negligence on the part of a professional, such as a doctor, additional considerations would apply. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional, and so long as a doctor follows a practice acceptable to the medical profession of the 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 charged doctor followed, argued the counsel. Other arguments included the improper constitution of the Expert Panel.
On the other hand, the counsel for the complainant argued that the Expert Panel's report is only in the nature of a piece of scientific evidence given by an Expert Body on a significant aspect in a criminal trial. It does not by itself constitute a finding against the appellants by a criminal court and therefore the appellants cannot be seen as persons aggrieved for maintaining a writ petition at this stage.
Observations by High Court Division Bench:
While considering the matter, the Division bench of the High Court observed that the two-tier system of scrutiny by Expert Panels to determine the existence of prima facie material suggestive of medical negligence, was put in place by the State Government in 2008 pursuant to the observations of the Supreme Court in Jacob Mathew [supra] to provide safeguards against arbitrary and misguided arrests of doctors in connection with complaints received against them alleging criminal negligence.
The bench held that the views expressed by the Expert Panels concerned are only in the nature of expert evidence led by the prosecution, and cannot be seen as a finding or as an irrebuttable fact established against the appellants in a manner that is prejudicial to them.
"We are therefore in complete agreement with the finding of the learned Single Judge on this aspect that eventually led to the dismissal of the writ petition," held the Division Bench.
Addressing the allegation regarding the improper constitution of the Expert Panel, the HC bench noted, "...the Circular dated 16.06.2008 has not been impugned by the appellants in any proceedings. That apart, the appellants were in fact beneficiaries of two reports submitted by the Apex Body on earlier occasions and they did not have any objection to the constitution of the Apex Body at that stage. It is only when the Apex Body took a view that was adverse to the expectations of the appellants that they have chosen to raise such a contention. We have not come across any material that would lead us to doubt the competence of the Apex Body to offer their views on the medico legal aspects of the incident under consideration."
The bench noted that the incident in question occurred in 2010 and even after 16 years, the trial has not commenced. The court held,
"Any further procrastination of the matter would lead to an erosion of public faith in our criminal justice system. As far as the appellants are concerned, they have sufficient opportunity to seek a discharge or acquittal in the criminal proceedings that stand initiated against them. To contend that as members of the medical profession, they should be immune from prosecution would tantamount to ignoring the constitutional mandate that the governance of the people of this country must be by the rule of law. It is a cardinal aspect of the rule of law that nobody is above the law and everybody is equal before the law. Those who swear by the Hippocratic oath at the time of entering the noble profession of Medicine, cannot ignore or avoid the commitment expected of them in the practice of medicine by the laws of our country," noted the bench, while dismissing the appeal.
To view the order, click on the link below:
https://medicaldialogues.in/pdf_upload/2026/08/06/kerala-hc-expert-panel-report-363465.pdf
