MEDICAL NEGLIGENCE AND MALPRACTICE

2012 (6) CTC 739 

Dr. J.S. Rajkumar and Anr Vs Assistant Commissioner of Police, cyber Crime Cell, Central Crime Branch, Egmore, Chennai-8 and Anr 

Torts – Medical Negligence  – Gross Negligence – Doctor conducting bariatric surgery on patient aged 20 years – Post-operation patient complaining of abdominal pain on fluid collection in abdominal cavity – Doctor performing second surgery and claimed to clean cavity, drain collection and close seat of perforation – Patient, however, even after second surgery became critical – Drainage tube recklessly removed by within three days of operation – Food fed, leaking through perforation, could not be drained on account of removal of drainage tube - Infection of patient progressing severely – Said acts of Doctor, held, constitute gross negligence. 

Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Documents to be considered by Court – Court to only look into documents filed by Police and relied upon by them under Section 207 – Documents produced by Accused not to be considered, unless same is impeccable in nature – Statements recorded by witnesses under Section 161 not to be relied upon by Court.

Code of criminal Procedure, 1973 (2 of 1974), Section 482 – Medical Negligence – Conflicting opinion of Doctors – Approach of Court – Petition to quash Criminal proceedings initiated on account of alleged gross negligence by Petitioner-Doctor – Two out of three Doctors opining that Petitioner was guilty of gross negligence whereas other three Doctors offering opinion favouring Petitioner – Held, in Petition under Section 482, Court not to make roving enquiry to determine which opinion is acceptable – Duty of Trial Court to test acceptability of said opinions.

Medical Negligence – Factors necessary to prosecute Doctor – Doctor to be guilty of gross negligence and not merely ordinary negligence – Obtaining of independent opinion from unbiased Doctors by Investigating Officer pre-requisite for prosecuting a Doctor – Doctors, dedicated to serving society, ought to be protected from unscrupulous prosecution – Police and Courts to be guarded from being swayed by ill-founded allegations against Doctors.

Criminal Jurisprudence – Medical Negligence – Conflicting opinion of two set of Doctors – In case of conflicting opinion given by Doctors, Police not to close case by accepting opinion favouring Accused – Police bound to file Final Report leaving it to decision of Court as to acceptability of said opinions. 

Indian Penal Code, 1860 (45 of 1860), Section 304-A – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Medical Negligence – Gross Negligence, whether attributable to Hospital, where Doctor was working? – Offence registered against Doctor for negligently causing death of patient – Hospital, where Doctor was working also arrayed as Accused – No material available on record to maintain prosecution against Hospital – Criminal proceedings against hospital, quashed.

Sources and compiled by;Tamil Nadu State Judicial Academy