Medical negligence
Ziaur Rahman
(Querist) 18 September 2013
This query is : Resolved
In a complaint of alleged Medical Negligence and on receipt of the complaint either by the victim or his party whether the Supreme Court has barred the police from starting a criminal case against the doctors or health providers as per judgment/Ruling/guidelines in Jacob Mathew case? If so then how the police will investigate the allegation(Not arrest or detention of the accused persons)without entering an F.I.R since police have no power to enquire except under section 174CrPC i.e. in cases of unnatural deaths. Whether initiation of any criminal case includes prosecution or a prosecution starts after submission of charge sheet? Kindly answer to clear the confusion.
Dr V. Nageswara Rao
(Expert) 19 September 2013
In Jacob Mathew case the Supreme Court did not say that the FIR cannot be filed or that it cannot be investigated. The Court, in conformity with English and Indian decisions, held that CRIMINAL liability cannot be foisted on a doctor unless his conduct amounted to gross negligence or recklessness.
The Court made a distinction between negligence in the law of torts and in criminal law. This is not a new principle but one that followed a host of other decisions. The Court quashed the FIP under S. 482 of CrPC.
Ziaur Rahman
(Querist) 19 September 2013
But question is that whether on the complaint an F.I.R case should be started or not? If not started and an enquiry is conducted by the police to fix up the gross negligence by seeking the opinion of a Medical Board or MCI or IMA then whether it would be valid in law? There is a general conception in the police and advocate fraternity in West Bengal that in cases of alleged medical negligence, no case can be started without the final opinion of the Board of Experts constituted to evaluate the evidences of medical negligence by going through the Bed Head Tickets and treatment sheet. If the opinion is in negative then no case should be started and the complaint would have to be closed as filed. How far this step is in conformity with the guidelines of Supreme Court in Dr.Mathew's Case?And what is the admissibility of the evidence in law if the opinion is sought without recording an F.I.R u/s 154Cr.PC? Please discuss.
Dr V. Nageswara Rao
(Expert) 19 September 2013
The police have, the discretion, after registering an FIR, not to proceed with any case if they think that there is no evidence. They might investigate the case, including obtaining the opinion of the Medical Board, and either proceed with the case or drop it. If dropping the case is mala fide, you can approach the Court for a direction to the police. It is possible that a complaint might have been filed only to harass the doctor and extract money. The police cannot charge-sheet some body without any evidence.
