NO Criminal Case against Doctors without Independent Medical Opinion from Expert in same field: Supreme Court
New Delhi: The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion; reiterated the Supreme Court while responding to a medical negligence case.
The SC bench stated that this medical opinion should be taken 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.
The same pronouncement by the SC was given earlier in 2005 where the apex court had laid down guidelines governing the prosecution of doctors for the offence of criminal negligence, punishable under Section 304A of IPC. That time, the SC had held:
A private complaint may not be entertained unless the complainant produces prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge negligence.
The investigating officer should, before proceeding against the doctor accused of negligence, obtain an independent and competent medical opinion, preferably from a doctor in government service qualified in that branch of medical practice.
A doctor accused of negligence should not be arrested in a routine manner unless, his arrest is necessary for furthering the investigation or unless there is a flight risk.
"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," the then bench had reasoned.
This time, the SC was hearing an appeal against an order of the Nagpur bench of the Bombay high court that had set aside an order of the sessions court that discharged a woman along with another from charges under causing death by negligence.
The matter relates to administering medicine of Lariago. The Trial Court framed the charges after examining the witnesses. On revision being filed, the revision was allowed by the Sessions Court. The order had been questioned before the High Court. The High Court has set aside the order of the Sessions Court and restored the order of the Magistrate.
The petitioners then approached SP and maintained that the HC order was passed without taking the SC pronouncement into account.
The court noticed that the Trial Court had framed charges after examining the witnesses. However, revision of the said order was allowed by the Sessions Court which went on to discharge the Appellants. This order of discharge was subsequently questioned before the high court, which set aside the order of discharge and restored the order of the Magistrate.
Noting that the courts below had not proceeded in conformity with the above said Supreme Court ruling and had not obtained any expert opinion, the bench of Justices Arun Mishra, Vineet Saran and S. Ravindra Bhat said,
"As admittedly, no medical expert has been examined in this case, we set aside the impugned orders passed by the courts below and remand the case to the trial court to examine the witnesses and to take the view of the medical expert on behalf of the complainant and only thereafter, to form an opinion whether any charge is made out in the case or not. Obviously, the trial court shall not be influenced by any of the observations made by this Court or in the impugned order passed by the High Court. The matter to be decided strictly in accordance with law on the basis of the evidence and after hearing both the sides.