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A Doctor Cannot Be Subjected To Travails Of Criminal Prosecution On Vague Allegations Of Medical Negligence: SC [Read Judgment]

Ashok Kini
18 Aug 2019 11:07 AM GMT
A Doctor Cannot Be Subjected To Travails Of Criminal Prosecution On Vague Allegations Of Medical Negligence: SC [Read Judgment]
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While setting aside criminal proceedings initiated against a Doctor accused of medical negligence, the Supreme Court reiterated that to prosecute a medical professional for negligence under criminal law, it must be shown that he did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.

The allegation in the complaint made against the Doctor was that he pressurised the complainant to come to his wife's private clinic for the delivery. It was also alleged that improper administration of anesthetic injection resulted in the death of the child soon after delivery. The Magistrate's order taking cognizance of the complaint was set aside by the District Court, but later restored by the High Court.

Before the Apex Court, it was contended that the Doctor had only administered anesthesia injection to the wife of the complainant to facilitate a caesarian delivery. Loss of consciousness is a natural consequence of administering the injection and it cannot constitute negligence, it was urged. The bench comprising Justice Navin Sinha and Justice Indira Banerjee observed:

"We are of the opinion that loss of consciousness upon administration of anesthesia is but a natural consequence. The complainant himself admits that his wife then regained consciousness at the hospital at Kishangarh. Apparently, there was no fault on part of the appellant. There is no allegation or material annexed to the complaint that the appellant was not a qualified anesthetist or that the anesthesia was administered to the patient in a negligent manner or in improper dosage. The fact that the patient developed complications because of her own bodily infirmity is evident from the fact that a pacemaker had to be installed at the government hospital at Ajmer after which she delivered the child on 26.10.2001. Unfortunately the child did not survive and expired at the hospital at Ajmer on 14.11.2001, after more than two weeks. We find it difficult to accept that the death of the child was a consequence of the anesthesia administered to the patient. There is no material whatsoever with regard to the post mortem report of the child with regard to the cause of death. It cannot be lost sight of that the child survived for more than two weeks. The appellant states that the child was born with the umbilical cord around his neck and response time after delivery was delayed by about seven minutes. There is no rebuttal to this fact. In absence of any prima facie material against the appellant, who is a doctor, it shall not be appropriate to subject him to the travails of a criminal prosecution on vague allegations."

While setting aside the order of cognizance, the bench observed that at face of the complaint itself no offence is made out against the Doctor under Section 304A IPC to sustain the order of cognizance. It also referred to the following observation made in Jacob Mathew v. State of Punjab:

To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent." 

In Jacob Mathew, the following guidelines were issued by a Three Judge Bench of the Supreme Court:

  • 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's 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.


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