The High Court of Jammu and Kashmir and Ladakh ruled on Friday that before prosecuting medical professionals for the tort of criminal negligence, a criminal court should obtain the opinion of the medical expert and if, from t such an opinion, a prima facie case of criminal negligence is established against a medical professional, only then should the criminal law machinery be set in motion.
The bench of Judge Sanjay Dhar heard a plea through which the petitioner challenged an order issued by the Chief Judicial Magistrate, Pulwama, whereby an instruction was given to SHO, P/S, Pulwama, to register an FIR and investigate the case. The challenge was also launched against an FIR filed for the offense under Section 304-A PRC which was registered with P/S Pulwama in accordance with the aforementioned instruction of the Chief Judicial Magistrate.
Review of the file revealed that Respondent #1 filed a complaint with the Chief Judicial Magistrate, Pulwama, alleging that his maternal aunt was under the treatment of the Applicant and during her treatment, the Applicant prescribed medication and according to the plaintiff, the death of the deceased patient was caused by the administration of a prescribed drug which, according to the plaintiff, was an ill treatment prescribed by the plaintiff.
Lawyer Arif Sikander Mir, on behalf of the petitioners, maintained that it was not open to the magistrate to order the registration of the FIR on the basis of the said complaint without obtaining the opinion of the medical commission. Attorney Arif Sikander further argued that the petitioner is a government employee who is dismissed by the government, as such, without obtaining a sanction of prosecution under Section 197 of the CrPC, the Registration Directive of the FIR against him could not have been made.
Judging on the matter, Justice Dhar observed that, given the catena of Supreme Court judgments on the subject, it is necessary that whenever a complaint is received against a doctor or a hospital by a criminal court, then before issuing an opinion to the doctor or hospital against whom the complaint has been lodged, the correctional court must first refer the case to a competent doctor or to a commission of doctors, specialized in the field in which the medical negligence is charged, and only after such physician or commission has advised that there is a primacy in case of medical negligence, then notice shall be given to the physician/hospital concerned.
Explaining the need to adopt such measures, the Panel observed that this is extremely necessary to avoid harassment of doctors who may not ultimately be found guilty of negligence.
In support of said legal position, the bench found it useful to record the observations of the Supreme Court in Jacob Mathew v Punjab State, (2005) where SC observed,
“A private complaint can only be admissible if the plaintiff has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor in support of the accusation of recklessness or negligence on the part of the the part of the doctor in question. The investigating officer should, before prosecuting the physician accused of a reckless or negligent act or omission, obtain independent and competent medical advice, preferably from a state physician, qualified in that branch of medical practice. , which can normally be expected to give an unbiased and unbiased opinion by applying Bolam’s test to the facts gathered in the investigation”.
Explaining in greater detail the stated position of the law on the issue at hand, Justice Dhar observed:
“Courts are not experts in medical science and as such cannot substitute their own views for those of specialists. Medical science is an inexact science and the outcome of a patient’s treatment cannot can be predicted with certainty.Sometimes, even after the doctor’s best efforts, his treatment of a patient may ultimately end in failure, but just because his treatment did not yield the expected result, he cannot be held responsible for criminal negligence.All of these factors must be considered in dealing with a case of medical negligence.Therefore, without expert medical advice, criminal courts should refrain from applying criminal law to the case. against a health care professional
The bench clarified that although the Supreme Court of Lalita Kumari vs. State of UP, (2014) ruled that Article 154 of the CrPC postulates the compulsory registration of FIRs upon receipt of information relating to all offenses capable of being recognized, but at the same time it excluded the cases where a preliminary investigation can be required due to the change in the genesis and novelty of crimes with the passage of time. The Supreme Court went on to observe that such a case concerns allegations of medical negligence on the part of physicians, as it would be unjust and inequitable to sue a medical professional solely on the basis of the allegations contained in the complaint, Justice pointed out Dhar.
For the foregoing reasons, the bench granted the motion and the impugned order and impugned FIR were set aside.
Case title: Farooq Ahmad Bhat v Syed Basharat Saleem
Reference: 2022 LiveLaw (JKL) 127
Counsel for the applicant: Adv Arif Sikander Mir
Counsel for Respondents: Mr. Shabir Ahmad Dar
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