Private Complaint Alleging Medical Negligence Not Valid Unless An Expert Supports Charge Of Rashness: Kerala High Court

The Kerala High Court recently dismissed an appeal filed by a woman who accused a doctor and a nurse of medical negligence during her delivery, resulting in the infant's death.While noting that the complainant had not produced any credible opinion pointing to such negligence, Justice Kauser Edappagath reiterated:"...a private complaint alleging medical negligence 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."It was also noted that the independent and competent medical opinion obtained by an investigating officer in the case explicitly indicated that it was not a case of medical negligence. BackgroundThe observation came pursuant to a private complaint filed by the woman before the Judicial First Class Magistrate against the respondents, a gynaecologist and a staff nurse at St.Joseph's Hospital, alleging that they committed offences punishable u/s 304A of IPC. The woman alleged that her baby died during delivery and pursuant to this, a hysterectomy was performed on her without her knowledge or consent or of her family members. She further alleged that she was not given proper medical care and attention and that the delivery was carried out in a most negligent manner as a result of which she lost her child. The respondents however argued that the hysterectomy had to be done to save her life. They then challenged the maintainability of the complaint relying on the Apex Court decision in Suresh Gupta v. Govt. of N.C.T. Of Delhi & Ors [(2004) 6 SCC 422]. Relying on this dictum, the trial court found that criminal prosecution alleging medical negligence against the respondents is not maintainable. As such, they were acquitted under Section 248(1) of CrPC. Challenging this order and consequent acquittal, the woman moved the High Court with an appeal. Advocates T.R. Harikumar and Adithya Rajeev appearing for the appellant submitted that the court below had committed gross procedural irregularity in acquitting the accused invoking S.248 (1) of CrPC without examining the witnesses.Advocate Shyam Padman appearing for the nurse submitted that a consumer complaint filed by the appellant alleging medical negligence for compensation against the respondents was dismissed and that this was confirmed by the State Commission.Advocate P.V. Anoop appeared for the doctor and Public Prosecutor Sanal P.Raj appeared for the State. Upon perusing the case records and the submissions made, the Court noted that despite there being an irregularity in the procedure adopted by the trial court, the matter need not be remanded since the complaint in itself was not sustainable. "It is true there is irregularity in the procedure adopted by the court below. Being a private complaint, that too summons trial, provision u/s 248(1) could not have been invoked. However, I am of the view that no purpose would be served in remanding the matter and directing the court below to give opportunity to the complainant to adduce evidence and to dispose of the case thereafter for the reason that, a perusal of the case records would show that the complaint itself is not prima facie sustainable as against respondents 1 and 2."The Judge further noted that the decision relied on by the trial court below was referred to a larger bench in Jacob Mathew v. State of Punjab (2005 (3) KLT 965) In this case, it was held that as long as the doctor follows a practice acceptable to the medical profession of that 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 practise or procedure which the accused followed. In fact, it was specifically stated that a private complaint alleging medical negligence 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. However, no such credible opinion had been produced by the complainant.On the other hand, the final report revealed that during the investigation, the investigating officer had obtained an independent and competent medical opinion from the Medical College.The case records also indicated that the appellant's husband had given consent for conducting a hysterectomy. "In these circumstances, I am of the view that no purpose will be served in proceeding with the private complaint further."The Court further noted that the doctor was now aged 80 years and the respondents have been facing the ordeal of trial for the last 20 years and recorded the submissions of the respondents. For all these reasons stated, the bench found no reason to interfere with the impugned judgment and...

Private Complaint Alleging Medical Negligence Not Valid Unless An Expert Supports Charge Of Rashness: Kerala High Court

Hannah M Varghese

The complainant had alleged that a hysterectomy was performed on her without her knowledge or consent.

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