Rights of Doctors against Criminal Action and Arrest in MLC cases
Rights of Doctors against Arrest & Criminal Action in case of prosecution for Medical Negligence : Must Know for yourself and update others.
Major Observations were made regarding this in the case of A.S.V. Narayanan Rao V/s. Ratnamala & Another. CRIMINAL APPEAL NO. 1433 OF 2013.
Let's see first the Important guidelines framed by the Court to be followed before arresting a Doctor :
A) What may be negligence in civil law may not necessarily be negligence in criminal law.
B) For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree.
C) A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.
D) 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 the Bolam test to the facts collected in the investigation.
E) A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him) ,unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld
Facts in short :
1. The Appellant - Cardiologist from Hyderabad was treating Late Mr. Divakar, the husband of the respondent.
2.It was alleged that the Appellant without consulting the Anesthetist and without a surgical stand conducted Angioplasty, which should be done by the Surgeon. As the patient was a chronic smoker, the Cardiac Anaesthetist should have been consulted for fitness of the patient before conducting Angioplasty.
3. Hence the Respondent therefore filed a Criminal case against the Doctor U/Sec.304-A of IPC. The Magistrate took the cognizance and issued warrant. The Appellant approached High Court, which also confirmed the order of Trial Court.
The Apex Court gave huge relief to the Appellant Doctor, by resorting to above referred guidelines. It relied upon the Testimony of the Expert Doctor who deposed that The time gap between the angioplasty failure and the surgery is not THE FACTOR for the death of the patient. The time gap may or may not be a factor for the enhancement of the risk.”
Thanks and Regards
Adv. Rohit Erande
Pune.
This is a Landmark Judgment of Apex Court. You may see the link.
Major Observations were made regarding this in the case of A.S.V. Narayanan Rao V/s. Ratnamala & Another. CRIMINAL APPEAL NO. 1433 OF 2013.
Let's see first the Important guidelines framed by the Court to be followed before arresting a Doctor :
A) What may be negligence in civil law may not necessarily be negligence in criminal law.
B) For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree.
C) A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.
D) 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 the Bolam test to the facts collected in the investigation.
E) A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him) ,unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld
Facts in short :
1. The Appellant - Cardiologist from Hyderabad was treating Late Mr. Divakar, the husband of the respondent.
2.It was alleged that the Appellant without consulting the Anesthetist and without a surgical stand conducted Angioplasty, which should be done by the Surgeon. As the patient was a chronic smoker, the Cardiac Anaesthetist should have been consulted for fitness of the patient before conducting Angioplasty.
3. Hence the Respondent therefore filed a Criminal case against the Doctor U/Sec.304-A of IPC. The Magistrate took the cognizance and issued warrant. The Appellant approached High Court, which also confirmed the order of Trial Court.
The Apex Court gave huge relief to the Appellant Doctor, by resorting to above referred guidelines. It relied upon the Testimony of the Expert Doctor who deposed that The time gap between the angioplasty failure and the surgery is not THE FACTOR for the death of the patient. The time gap may or may not be a factor for the enhancement of the risk.”
Thanks and Regards
Adv. Rohit Erande
Pune.
This is a Landmark Judgment of Apex Court. You may see the link.
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