PROSECUTION OF DOCTOR ON FAKE ALLEGATIONS
In earlier times, medical profession was considered to be the noblest profession among all. A person who pursues medical science has place next to god. But nowadays, the trend has changed a lot. Doctors are now being harassed & subjected to huge embarrassment through frivolous prosecutions in the court of law. There are only few cases where the doctors are found guilty in court of law. This trend has begun due to some fake doctors who give ill treatment to their patients and make humongous bills which are commonly unaffordable by the patients.
The Supreme Court, in V. K. JAIN VERSUS STATE OF RAJASTHAN AND ORS., had set aside a criminal proceeding, which was initiated against a doctor for medical negligence & reiterated the guidelines for prosecuting a doctor for medical negligence. To institute criminal proceedings against a medical professional, it has to be shown that he had done something or failed to do something which in the given facts & circumstances, no medical professional, in his ordinary senses & prudence would do or fail to do so.
The doctor was alleged that he has pressurized the complainant to visit his wife’s private clinic for the delivery at mush less rate. Though, it has been not proved in the proceedings of court of law. Furthermore, it was alleged that unprofessional use of the anesthesia has led to the death of the child after delivery as a consequence. The appellant was aggrieved by the order of the High Court which set aside the order of the Additional District & Sessions Judge.
The counsel, for the appellant, had submitted before the Supreme Court that “the anesthesia injection was administered to the complainant’s wife to facilitate a caesarian delivery”. It was also submitted that “loss of consciousness is a natural consequence of anesthesia injection.” In addition to this it was inferred, through the allegations, in the order that “the lady developed complications and had to be shifted to a bigger hospital at Ajmer where she required a pace maker.”
The court set aside the order of cognizance & order of High Court were set aside. Also, the bench observed that the on the vey face of complaint, it is no offence under section 304A of “IPC”. Section 304A of IPC states that whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.[1]
The bench has also referred, in its order, to the following guidelines made in Jacob Mathew v. State of Punjab & Another, (2005)6 SCC 1. Following are the guidelines:
- 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.[2]
- 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 in regard to the facts collected in the investigation.[3]
- A doctor accused of rashness or negligence may not be arrested in a routine manner simply because a charge has been leveled 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.[4]
In short, a person cannot make allegations of negligence on part of the doctor until & unless it has been proved by some other medical professional, police before arresting the doctor has to obtain the opinion or suggestions of a government medical practioners so as to remove any uncertainty regarding the rashness of the doctor who is alleged therein. Moreover, arrest should be made when the investigating officer feels that unless without arrest the proceedings cannot be furthered.
In addition to this, the court, in issuing the order, also referred to the observations made in the Jacob Mathew V. State of Punjab. These were “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.”[5]
The institution of criminal prosecution against professional medical practitioners will lead to disastrous consequences. The embarrassment & shame, one has to go through, puts permanent damage to the reputation of the professionals. India has faced strikes of doctors due to the ill behavior & false allegations towards the professional medical practioners. Hence there’s a demand for protecting doctors from frivolous & unjust prosecutions.
BY- HARSH VARDHAN GUPTA
STUDENT REPORTER
AMITY UNIVERSITY, NOIDA
[1] Indian Penal Code, 1860.
[2] Ncbi.nlm.nih.gov (guidelines before launching the prosecution against a medical practioners)
[3] supra
[4] supra
[5] supra