Kerala High Court Issues Draft Guidelines To Provide Fair Hearing To Accused In Medical Negligence Cases

The Kerala High Court recently passed a detailed interim order with draft guidelines for granting a fair opportunity to medical practitioners who are accused of medical negligence.Laying down a 12-point draft guideline, Justice V.G. Arun requested the Additional Director General of Prosecution to place the same before the government for immediate action.The draft guideline is reproduced below:Upon receipt of a complaint alleging medical negligence, the Investigating Officer should act swiftly and secure the initial set of documents like doctor's notes, nurses' diary, duty roster, shift reports, attendance sheets, assessment forms, consent forms, medical reports, diagnostic reports, lab results, referral or cross consultation records, treatment notes, discharge summaries etc.The Investigating Officer shall then intimate the authority concerned about the complaint and request to convene the Expert Panel meeting immediately.A list of practitioners, by specialty, should be maintained in each district and those persons sensitized about the manner in which complaints of medical negligence are to be dealt with. A Doctor from the concerned specialty shall be included in each Expert Panel.The Expert Panel shall conclude its proceedings within 30 days of its constitution.The medical practitioner and the de facto complainant shall be issued with notice and permitted to submit written representations to the Expert Panel.In cases where the Expert Panel finds prima facie material indicating gross negligence, the medical practitioner should be called upon to appear in person and offer his explanation regarding the procedure adopted/ treatment provided.The report of the Expert Panel should contain the individual opinion of each expert. The final conclusion of the Panel should be based on consensus.The report should directly address the issue whether gross negligence or recklessness, leading to loss of life, can be attributed to the medical practitioner and specify which individual(s), from among the team of doctors, is guilty of gross negligence or recklessness and the reasons for reaching such conclusion.The Expert Panel should apply a clear and consistent test for determining criminal negligence with reference to the Bolam test. The reasoning of the panel must be reflected explicitly in the report. A reporting template may be developed for use by the Expert Panels.A copy of the report should be served on the medical practitioners affected by the report. In cases where the Expert Panel finds no negligence, on the part of the doctors, a copy of the report should be furnished to the de facto complainant.The right to appeal against the finding of the Expert Panel should be provided to the medical practitioner as well as the de facto complainant.Time limit should be stipulated for filing the appeal and for the State Level Apex Expert Committee to decide the appeal. If the appeal is filed within the time stipulated, the Investigating Officer shall file final report only after the appeal is decided.”The Court was considering two separate cases in which doctors were arrayed as the accused for causing the death of their patients by medical negligence. The offence alleged against them was that under Section 304A IPC [Causing death by negligence].In one of the cases, the accused doctor was treating a man with a wound on his chest, which occurred after an episode of alcohol consumption. The crime against him was registered after more than a year and the expert panel reported that the doctor did not take any steps to refer the patient to a cardiothoracic surgeon.In the second case, the accused was a gynaecologist, and the victim was a new mother who had undergone caesarean-section. In that case, though the doctor had repeatedly advised the family members to take the victim to another hospital, this was done much later. The panel report stated that the members could not find any act of commission of the part of the doctor but opined that earlier referral and intervention could have saved the patient.The Court considered whether the circulars issued by the government have effectively incorporated the law laid down by the Apex Court in medical negligence cases regarding grant of fair hearing to doctors.It observed: “The precedents, the circulars issued by the Government of Kerala and the Governments of other States and the suggestions/submissions of the learned counsel on both sides leaves no room for doubt that the Government of Kerala should formulate guidelines for the constitution and functioning of the Expert Panel as well as the Apex Committee.”Thus, it laid down the guidelines.After noting that the doctors have filed appeals on the expert report, the Court stayed the furhter proceedings in the cases for 3 months. It also directed the ADGP to instruct the appellate body (State Level Apex Expert Committee) to decide the appeals within two months and to produce the decisions to the Court.Case No: Crl.M.C. Nos. 3414 & 4729/2025Case...

Kerala High Court Issues Draft Guidelines To Provide Fair Hearing To Accused In Medical Negligence Cases

K. Salma Jennath

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