No Expert Opinion in Chargesheet: HC quashes criminal proceedings against 3 Doctors Accused of medical negligence
Bengaluru: Taking note of the fact that no expert opinion was obtained by police, the Karnataka High Court recently absolved three doctors accused of medical negligence and quashed the complaint registered against them.
Allowing the plea by the doctors, a single judge bench of Justice Sachin Shankar Magadum further took note of the fact that the erstwhile Medical Council of India (MCI) had also concluded that there was no medical negligence.
Referring to this, the order mentioned, "Be that as it may. If MCI while entertaining the appeal has concluded that there is no medical negligence, I am of the view that the proceedings are liable to be quashed."
These doctors were accused of not following the standard protocol and the guidelines while treating a patient who was admitted with a complaint of back ache and leaking per vaginum.
On the basis of the complaint lodged against the doctors at Basavanagudi Police Station, the Investigating Officer filed the charge sheet. These doctors were booked for offences punishable under Sections 338, 201, 420, 468, 471, 120(B) read with Section 34 of IPC.
Approaching the High Court bench, the doctors sought quashing of the proceedings against them. Their counsel argued that even if the charge sheet was accepted, no case of negligence was made out against the doctors.
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The counsel for the doctors also referred to the order passed by the erstwhile MCI and contended that except the statement of interested witnesses, the charge sheet was not supported by any expert's opinion. Referring to the MCI order, they pointed out that the Apex medical body took cognizance of the expert's opinion and confirmed only that portion of the order passed by the Karnataka Medical Council wherein the petitioners were warned.
Referring to the charge sheet, the doctors' counsel argued that it did not constitute any offence in the first place and it was not supported by any expert's opinion and therefore, if petitioners are prosecuted for the alleged offences, the same would amount to abuse of process.
On the other hand, the counsel for the complainant requested the court not to quash the proceedings and pointed out that all the grounds urged in the petition are to be tested by way of a fill fledged trial.
The Government Pleader also argued that the contentions are very much available to the petitioners in the form of defence and therefore, these grounds cannot be tested at this juncture and the proceedings cannot be quashed.
Taking note of the arguments, the HC bench also noted that the even though the doctors were accused of medical negligence, a perusal of the charge sheet is quite surprising. "...though Investigating Officer though has submitted a charge sheet, the same is not supported by any expert's opinion," the court pointed out.
Further, the bench observed that in order to counter the charge sheet, the doctors relied on the expert opinion secured by the Ethics Committee. Referring to the expert opinion obtained by MCI Ethics Committee, the HC bench noted, "The Ethics Committee having taken cognizance of the expert's opinion also found that the allegation of medical negligence is not substantiated."
The Court noted that on the basis of the expert opinion and the recommendation by the Ethics Committee, the MCI issued only a warning to the concerned Doctors as was done by the Karnataka Medical Council.
"The crime registered in Crime No. 139/2014 for the aforesaid offences completely hinges on medical negligence. If the allegation of medical negligence is taken away as indicated in the expert's opinion, the entire edifice on which the charge sheet is submitted goes. Therefore, if petitioners' are compelled to face the prosecution for the aforesaid offences, no purpose will be served and if permitted, the same would amount to abuse of process," the court noted.
Directing to quash the proceedings, the bench further observed,
"In the light of the expert's opinion indicating that there was no negligence on the part of the petitioners, I am of the view that this is a fit case where proceedings are liable to be quashed."
At this outset, the HC bench also referred to the Supreme Court order in the case of Martin F. D'souza .vs. Mohd. Ishfaq and Jacob Mathew .vs. State of Punjab and pointed out that in these orders, the top court bench
"...categorically held that the Investigating Officer before proceedings against the doctors for rash and negligent acts should obtain an independent and competent medical opinion, preferably from a doctor from a Government service, qualified in that branch of medical practice. As indicated in the preceding paragraph, this charge sheet is not supported by an expert's opinion."
"Be that as it may. If MCI while entertaining the appeal has concluded that there is no medical negligence, I am of the view that the proceedings are liable to be quashed," ordered the bench.
"The proceedings in C.C.No.1290/2016 pending on the file of IV Additional Civil Judge and Judicial Magistrate I Class, Shivamogga, for offences punishable under Sections 338, 201, 420, 468, 471, 120(B) read with Section 34 of IPC., are hereby quashed," the court directed.
To read the order, click on the link below:
https://medicaldialogues.in/pdf_upload/karnataka-hc-order-214178.pdf
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