Supreme Court Issues Notice On PIL Seeking Statutory Rules For Criminal Prosecution Of Doctors In Medical Negligence Cases

The Supreme Court on Monday issued notice on a public interest litigation seeking statutory rules or executive instructions for criminal prosecution of medical practitioners in medical negligence cases.A bench of Justices Vikram Nath and Sandeep Mehta passed the order, after hearing Senior Advocate Shadan Farasat (for petitioner).The PIL, filed by Sameeksha Foundation, avers that in Jacob Mathew v. State of Punjab [(2005) 6 SCC 1], the Supreme Court highlighted a need for the Union and State governments to issue statutory rules/executive instructions regarding medical negligence cases. However, even after two decades, the same have not been framed and notified.As per an RTI reply by the National Medical Commission, the framing of the rules/instructions is under process. The non-framing, according to the petitioner, showcases the amount of value attached to human lives in the country.For context, in para 52 of Jacob Mathew, the Supreme Court directed:“Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient.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.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 Bolam [1957] 1 W.L.R. 582, test to the facts collected in the investigation.A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.”In context thereof, the petitioner-Foundation highlights that without necessary rules/instructions, medical negligence cases are difficult to prosecute, as they depend heavily on inquiry reports of Committees which mostly include doctors. It claims that many police complaints are filed by patients and their family members, but very few result in registration of FIR, due to non-availability of fair and unbiased medical inquiry reports.It further points out that doctors are protected by Indemnity Insurance Cover against 'medical negligence' claims and as regards criminal prosecution, they stand protected by 'Doctors Judging Doctors' and 'Appeal from Ceaser to Ceaser's wife' mechanism.The petitioner alleges that the medical opinions sought from a doctor, to support a case of medical negligence against another doctor, do not always happen to be unbiased. "The said position stands vindicated by 73rd Parliamentary Standing Committee Report on Health and Family Welfare (referred hereinafter) which states that there are reports that the medical professionals probing into the allegations of medical negligence are very lenient towards their colleagues guilty of negligence and none of them is willing to testify another Doctor as negligent. The immediate impact of this arrangement is that the percentage of prosecution in the medical negligence cases by the MCI is almost negligible."The petitioner refers to the 73rd report of Department-Related Parliamentary Standing Committee on Health and Family Welfare on “The Indian Medical Council (Amendment) Bill, 2013', which recommended that all medical negligence cases should be enquired into by a Committee of experts from diverse fields, including social activists, patient's representative, etc.It is mentioned that questions regarding medical negligence cases have been raised in the Parliament time and again. But the standard response is that any complaint with regard to professional misconduct by Registered Medical Practitioner (RMP) can be brought before the appropriate Medical Council for disciplinary action as per provisions made under Professional Conduct, Etiquette and Ethics Regulations 2002 framed under National Medical Commission (NMC), Act 2019 and that data of medical negligence cases filed in the country is not maintained centrally."In any other situation but for the preventable death caused by gross medical negligence within the precincts of the hospitals/nursing homes, the death so caused would have amounted to an...

Supreme Court Issues Notice On PIL Seeking Statutory Rules For Criminal Prosecution Of Doctors In Medical Negligence Cases

Debby Jain

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