Prioritise Cases Of HIV Positive Persons : Supreme Court Directs All Courts; Issues Directions To Centre & States To Enforce HIV Act

93. In keeping with the mandate of the HIV Act, the following directions are issued to the Central and State Governments:

1) Under Section 14(1) of the HIV Act, the measures to be taken by the Central Government and all the State Government are, to provide, (as far as possible), diagnostic facilities relating to HIV or AIDS, Anti-retroviral therapy and Opportunistic Infection Management to people living with HIV or AIDS.

2) The Central Government shall issue necessary guidelines in respect of protocols for HIV and AIDS relating to diagnostic facilities, Anti-retroviral therapy and opportunistic Infection Management applicable to all persons and shall ensure their wide dissemination at the earliest, after consultation with all the concerned experts, particularly immunologists and those involved in community medicine, as well as experts dealing with HIV and AIDS prevention and cure. These measures and guidelines shall be issued within three months, and widely disseminated, in the electronic media, print media and all popularly accessed public websites.

3) Under Section 15(1) & (2) of the HIV Act, the Central government and every State Government shall take measures to facilitate better access to welfare schemes to persons infected or affected by HIV or AIDS. Both the Central and State Governments shall frame schemes to address the needs of all protected persons.

4) Under Section 16(1) of the HIV Act, the Central and all the State Governments, shall take appropriate steps to protect the property of children affected by HIV or AIDS. By reason of Section 16(2) of the HIV Act, the parents or guardians of children affected by HIV and AIDS, or any person acting for protecting their interest, or a child affected by HIV and AIDS may approach the Child Welfare Committee [within the meaning of that expression Under Section 29 of the Juvenile Justice (Care and Protection of Children) Act, 2000] for the safe keeping and deposit of documents related to the property rights of such child or to make complaints relating to such child being dispossessed or actual dispossession or trespass into such child's house.

5) The Central and every State Government shall formulate HIV and AIDS related information, education and communication programmes which are age-appropriate, gender-sensitive, non-stigmatising and non-discriminatory.

6) The Central Government shall formulate guidelines [Under Section 18(1) of the HIV Act] for care, support and treatment of children infected with HIV or AIDS; in particular, having regard to Section 18(2) "notwithstanding anything contained in any other law for the time being in force", the Central Government, or the State governments shall take active measures to counsel and provide information regarding the outcome of pregnancy and HIV-related treatment to the HIV infected women. The Central Government shall also notify HIV and AIDS policy for establishments in terms of Section 12 of the HIV Act.

7) It is further directed that Under Section 19 of the HIV Act, every establishment, engaged in the healthcare services and every such other establishment where there is a significant risk of occupational exposure to HIV, for the purpose of ensuring safe working environment, shall (i) provide, in accordance with the guidelines, firstly, universal precautions to all persons working in such establishment who may be occupationally exposed to HIV; and secondly training for the use of such universal precautions; thirdly post exposure prophylaxis to all persons working in such establishment who may be occupationally exposed to HIV or AIDS; and (ii) inform and educate all persons working in the establishment of the availability of universal precautions and post exposure prophylaxis.

8) By reason of Section 20(1) of the HIV Act, the provisions of Chapter VIII33 of the HIV Act apply to all establishments consisting of one hundred or more persons, whether as an employee or officer or member or director or trustee or manager, as the case may be. In keeping with proviso to Section 20(1) of the HIV Act, in the case of healthcare establishments, the said provision shall have the effect as if for the words "one hundred or more", the words "twenty or more" were substituted.

9) Every person who is in charge of an establishment, mentioned in Section 20(1) of the HIV Act, for the conduct of the activities of such establishment, shall ensure compliance of the provisions of the HIV Act.

10) Every establishment referred to in Section 20(1) of the HIV Act has to designate someone, as the Complaints Officer who shall dispose of complaints of violations of the provisions of the HIV Act in the establishment, in such manner and within such time as may be prescribed. The Rules in this regard may be formulated by the Central Government at the earliest, preferably within 8 weeks from today.

11)The Secretary, Department of Labour of every state shall ensure the collection of information and data relating to compliance with Sections 19 and 20 of the HIV Act, in regard to designation of a complaint officer, in all the factories, industrial establishments, commercial establishments, shops, plantations, commercial offices, professional organizations, and all other bodies falling within the definition of "establishments" [Under Section 2(f) of the HIV Act] which reads as follows:

"establishment" means a body corporate or co-operative society or any organisation or institution or two or more persons jointly carrying out a systematic activity for a period of twelve months or more at one or more places for consideration or otherwise, for the production, supply or distribution of goods or services.

Such information shall be forwarded to the Secretary, Union Ministry of Labour and Employment, within 10 weeks. The Union Labour and Employment Secretary shall file an affidavit of compliance containing a tabular statement, with respect to implementation of provisions of the Act, within 16 weeks from today.

12) Every court, quasi-judicial body, including all tribunals, commissions, forums, etc., discharging judicial functions set up under central and state enactments and those set up under various central and state laws to resolve disputes shall take active measures, to comply with provisions of Section 3434 of the HIV Act. Chief Justices of all High Courts, shall compile information, and device methods of collecting information in that regard, anonymizing identity of persons affected, appropriately and also complying with provisions of Section 34(2) of the HIV Act. The Registrar General of the Supreme Court shall also look into the matter, and frame relevant guidelines which, after approval be issued and implemented.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7175 of 2021

Decided On: 26.09.2023

Ashish Kumar Vs. Commanding Officer and Ors.

Hon'ble Judges/Coram:

S. Ravindra Bhat and Dipankar Datta, JJ.

Author: S. Ravindra Bhat, J.

Citation:  MANU/SC/1057/2023.

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Is a protest petition maintainable against a doctor if the police have filed a final report after obtaining an expert report?

 On these background, learned counsel for the petitioner submits that it is well settled that if a case against the doctor is filed the requirement of proceeding further examination by the expert as held in the case of “Martin F. D’Souza V. Mohd. Ishfaq” reported in (2009) 3 SCC 1 wherein para 106 the Hon’ble Supreme Court has held as under:-

“106. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer For a (whether District, State or National) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer the matter to a competent doctor or committee or doctors specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie of medical negligence should notice be then issued to the  doctor/hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew case, otherwise the policemen will themselves have to face legal action. {Para 5}

11. In the case in hand the learned Magistrate has chosen option no. 4 and doing so he has proceeded in accordance with law. Further, it transpires that the learned court has not taken care of judgement delivered by the Hon’ble Supreme Court in the case of Martin F. D’Souza(supra) as well as “ Jacob Mathew Vs. State of Punjab” reported in 2005 (6) SCC 1.

12. In these two cases the concern of the court was that unnecessarily a bonafide action of any doctor may not be subject matter of civil wrong as well as criminal wrong and in that aspect in both the judgements it has been directed that the case will be proceeded against the doctors after taking expert opinion and the case in hand expert report was there which is contained in annexure-9 and thereafter final form was submitted. In that view of the matter the Court finds that proceeding further on the protest petition when the finding of the expert committee is in favour of the petitioner amounts to abuse of process of law.

13. To put criminal law in motion by examining two witnesses is also deprecated by the Hon’ble Supreme Court in the case of ‘Pepsi Foods Ltd. V. Special Judicial Magistrate’ (1998) 5 SCC 749.

14. In the case in hand, doctor has discharged his responsibility. The operation was successful. The patient was brought to the ward thereafter the condition of the father of father of the O.P. No.2 was deteriorated. In the case of Martin F. D’Souza(supra) the Hon’ble Supreme Court has noted the facts that the courts and the Consumer Forum are not experts in medical science, and must not substitute their own views over that of specialists. It is true that the medical profession has to an extent become commercialized and there are many doctors who depart from their Hippocratic oath for their selfish ends of making money.

However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples.

15. It is well known that inspite of best effort made by the doctor sometime they are not successful and this does not mean that doctor must be held guilty. The Court comes to the conclusion that the case of the petitioner is fully covered with the aforesaid two judgments of the Hon’ble Supreme Court in the case of Martin F. D’Souza(supra) as well as “ Jacob Mathew Vs. State of Punjab” reported in 2005 (6) SCC 1.

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr.M.P. No. 588 of 2013

Dr. Vijay Kumar  Vs The State of Jharkhand

CORAM:MR. JUSTICE SANJAY KUMAR DWIVEDI

Dated: 22/03/2023

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Whether State is liable to Compensate if there is any Unforeseen Death Or Injury In Govt Hospital Even If There Is No Medical Negligence?

 When a patient is admitted in a government

hospital for treatment and he/she suffers any injury or

death which is not anticipated to occur in the normal

course of events, even in the absence of medical

negligence, the government is obliged to disburse exgratia

to the affected party. In the case on hand,

liability has to be fastened on the government. Since

the institution happens to be the Government institution,

the Government of Tamil Nadu will have to necessarily

take consequence. My attention is drawn to G.O(Ms)No.395

dated 04.09.2018 whereby a corpus fund has been created

by the Tamil Nadu Government. It appears that every

Government doctor contributes certain sum of money

towards this corpus fund and whenever compensation is

directed to be paid by the courts, amount will be drawn

from this fund and paid. Considering the overall

circumstances, I am of the view that the petitioner

deserves to be paid a sum of Rs.5.00 lakhs as

compensation. The said amount shall be paid by the

department/Government from the said fund. Such payment

will be made to the petitioner within a period of eight

weeks from the date of receipt of copy of this order.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 01.02.2021

CORAM

 MR.JUSTICE G.R.SWAMINATHAN

WP(MD)No.2721 of 2017

Tamil Selvi   Vs. The State of Tamil Nadu,

Dated:01.02.2021

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Whether inquiry against medical officer is sustainable on vague charges?

 Learned senior counsel next cites a judgment reported at (2009) 12 SCC 78 [Union

of India and others vs. Gyan Chand Chattar], for the proposition that an enquiry is to

be conducted against any person giving strict adherence to the statutory

provisions and principles of natural justice. The charges should be specific,

definite and giving details of the incident which formed the basis of charges. No

enquiry can be sustained on vague charges. Enquiry has to be conducted fairly,

objectively and not subjectively. Finding should not be perverse or unreasonable,

nor should the same be based on conjectures and surmises. There is a distinction

between proof and suspicion. Every act or omission on the part of the delinquent

cannot be misconduct. The authority must record reasons for arriving at the

finding of fact in the context of the statute defining misconduct.
In the High Court at Calcutta

Constitutional Writ Jurisdiction

Appellate Side

The Hon’ble Justice Sabyasachi Bhattacharyya

W.P. No. 21498(W) of 2019

Dr. Subhash Chandra Tiwari Vs. West Bengal Medical Council and others

Judgment on : 27.11.2019

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Supreme Court: Court should examine medical expert prior to framing of charge in case of medical negligence

“Jacob Mathew Vs. State of Punjab & Anr.”, reported

in (2005) 6 SCC 1. Paragraph 52 of the Judgment

reads as under :-

“52. Statutory Rules or Executive Instructions

incorporating certain guidelines need to be

framed and issued by the Government of India

and/or the State Governments in consultation with

the Medical Council of India. So long as it is

not done, we propose to lay down certain

guidelines for the future which should govern the

prosecution of doctors for offences of which

criminal rashness or criminal negligence is an

ingredient. 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.”

As admittedly, no medical expert has been

examined in this case, we set aside the impugned

orders passed by the courts below and remand the case

to the trial court to examine the witnesses and to

take the view of the medical expert on behalf of the

complainant and only thereafter, to form an opinion

whether any charge is made out in the case or not.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2063 OF 2010

ARUNA Vs  MUKUND 

Dated: OCTOBER 03, 2019.

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Leading judgment on compensation for medical negligence

 In P.B. Desai vs State of Maharashtra & Anr. (2013)15 SCC 481 , the ‘Duty of Care’

which a doctor owes towards his patient has been clearly explained as follows:-

“Once, it is found that there is ‘duty to treat’ there would be a corresponding ‘duty to

take care’ upon the doctor qua/his patient. In certain context, the duty acquires

ethical character and in certain other situations, a legal character. Whenever the

principle of ‘duty to take care’ is founded on a contractual relationship, it acquires a

legal character. Contextually speaking, legal ‘duty to treat’ may arise in a contractual

relationship or governmental hospital or hospital located in a public sector

undertaking. Ethical ‘duty to treat’ on the part of doctors is clearly covered by Code

of Medical Ethics, 1972. Clause 10 of this Code deals with ‘Obligation to the Sick’

and Clause 13 cast obligation on the part of the doctors with the captioned “Patient

must not be neglected”.

Having regard to what the Hon’ble Supreme Court has laid down about the ‘Duty of Care’ to be

followed by a medical professional viewed from any angle, it cannot be construed that ‘Duty of

Care’ of a treating doctor ends with the ‘Surgery’. (Emphasis Supplied)

22. This Commission has also held in P.D. Hinduja National Hospital & Medical Research

Centre Vs. Mrs. Veera Rohinton Kotwal, II (2018) CPJ 342 (NC), that the ‘Duty of Care does

not end with the Surgery’.

23. We find it a fit case to place reliance on the judgement of the Hon’ble Supreme Court in

Arun Kumar Manglik Vs. Chirayu Health And Medicare Private Limited & Anr., 2019 (3)

in which the Hon’ble Apex Court has laid emphasis on ‘Patient SCALE 333, Centric Approach’

and observed that the ‘Standard of Care’ as enunciated in the Bolam Case must evolve in

consonance with its subsequent interpretation by English and Indian Courts.

24. In Halsbury’s Laws of England the degree of skill and care required by a medical

practitioner is detailed as follows:-

“The practitioner must bring to his task a reasonable degree of skill and knowledge,

and must exercise a reasonable degree of care. Neither the very highest nor a very

low degree of care and competence, judged in the light of the particular

circumstances of each cases, is what the law requires, and a person is not liable in

negligence because someone else of greater skill and knowledge would have

prescribed different treatment or operated in a different way; nor is he guilty of

negligence if he has acted in accordance with a practice accepted as proper by a

responsible body of medical men skilled in that particular art, even though a body of

adverse opinion also existed among medical men.

Deviation from normal practices is not necessarily evidence of negligence. To

establish liability on that basis it must be shown (1) that there is a usual and normal

practice; (2) that the defendant has not adopted it; and (3) that the course in fact

adopted is one no professional man of ordinary skill would have taken had he been

acting with ordinary care.”

A doctor has a legal duty to take care of his patient. Whenever a patient visits a

doctor for treatment there is a contract by implication that the doctor will take

reasonable care to treat him. If there is a breach of that duty and if it results in injury

or damage, the doctor will be held liable. The doctor must exercise a reasonable

degree of care and skill in his treatment; but at the same time he does not and cannot

guarantee cure.

(Emphasis Supplied)

25. The Hon’ble Supreme Court in Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009)

9 SCC 221, case has preferred Bolitho test to Bolam test . The Supreme Court redefined medical

negligence saying that the quality of care to be expected of a medical establishment should be in

tune with and directly proportional to its reputation. The decision also says that the court should

take into account patient’s legitimate expectations from the hospital or the concerned specialist

doctor.

(Emphasis Supplied)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

FIRST APPEAL NO. 101 OF 2016

(Against the Order dated 27/11/2015 in Complaint No. 87/2006 of the State Commission

Maharashtra)

 PANKAJ R. TOPRANI  Vs BOMBAY HOSPITAL 

BEFORE:

HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT

HON'BLE MRS. M. SHREESHA,MEMBER

Dated : 04 Jul 2019

Per Mrs. M. Shreesha, Member

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Whether Magistrate should follow principles laid down by Supreme Court for registration of FIR against doctors under S. 156(3) CrPC?

The principle of law laid down by the Supreme Court in Jacob Mathew(supra) and Martin F. D'Souza (supra) for registration of criminal case against a doctor before registering an FIR under Section 154(1) of the CrPC by getting an expert opinion from a qualified doctor would apply with equal force while registering/directing for registration of offence under Section 156(3) of the CrPC, because it is also another mode of getting the FIR registered for which the person concerned has failed to get the FIR registered under Sections 154(1) & 154(3) of the CrPC, as by virtue of Section 156(1) of the CrPC, it is the power and jurisdiction of the police officer to investigate any cognizable offence without the order of the Magistrate and by virtue of Section 156(3) of the CrPC, the Magistrate is empowered under Section 190 to order such an investigation as mentioned in Section 156(3) of the CrPC. Therefore, before directing investigation and registration of FIR under Section 156(3) of the CrPC, the principle of law laid down by the Supreme Court in Jacob Mathew (para-52) (supra) and Martin F. D'Souza(para-106) (supra) is mandatory and has to be followed before directing investigation against medical professionals by obtaining medical opinion from experts is sine qua non for direction of registration and investigation of offence against medical practitioners. Thus, the course open to the learned Chief Judicial Magistrate is to call for the medical opinion of experts in line with and as per the direction in Jacob Mathew (supra) and Martin F. D'Souza (supra) before entertaining an application under Section 156(3) of the CrPC and directing registration of FIR and investigation against medical professional, which was not followed by the learned Chief Judicial Magistrate while granting the application under Section 156(3) of the CrPC making the order vulnerable.

In the High Court of Chhattisgarh at Bilaspur

(Before Sanjay K. Agrawal, J.)

Dr. Smt. Krishna Dixit  v. State of Chhattisgarh,

Writ Petition (Cr.) No. 146 of 2016

Decided on May 14, 2019

Citation: 2019 SCC OnLine Chh 47

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When medical negligence is not made out against Doctor?

That apart, we also find that respondent No.1
never raised the objection of “consent issue” to the
appellant or/and opposite party respondent No.2 Hospital
and it was for the first time in the
complaint, she raised this issue and made a
foundation to claim compensation from the
appellant. Nothing prevented her or her husband to
raise the issue of consent immediately after
performance the surgery while she was in hospital
as an indoor patient and even after discharge that
being the natural conduct of any patient. It was,
however, not done.
40. It is not in dispute that respondent No.1 failed
to prove any specific kind of negligence of the
appellant while performing the operation or/and
thereafter. Indeed, even the National Commission
in Para 18 held this issue in favour of the appellant
in following words:

“18. Yet another grievance of the
complainant is that she was not treated with
care during her hospitalization from 07.08.96
to 18.08.96. No specific instances which can
amount to carelessness or negligence on the
part of the surgeon or the nursing home have
been brought on record and, therefore, we are
unable to hold that there was any lack of care
amounting to negligence during her stay in
the nursing home for which either the
surgeon or nursing home can be made liable.”
41. Likewise the National Commission further held
in favour of the appellant in para 19 that the stones,
which were removed in the second operation at
Ganga Ram Hospital after 11 months (04.06.1997)
were the same which were noticed by the appellant
while performing the first surgery on 08.08.1996
and remained inside. In other words, respondent
No.1 failed to prove with the aid of any medical
evidence that the stones, which were noticed in the
second surgery performed after 11 months, were the
same stones which the appellant failed to remove
from the Gall Bladder. It is apposite to note the

finding of the National Commission in para 19
hereinbelow.
“………We have already found that from the
material placed on record that it is not
possible to hold with certainty that any of
the calculi which were removed from the bile
duct of the complainant at Sir Ganga Ram
Hospital was the same for which she had
undergone Cholecystectomy at the hands of
the surgeon and, therefore, the only lapse
which we can find on the part of the surgeon
is that he did not care to bestow the kind of
attention which the problem of complainant
required when she consulted him after the
procedure of Cholecystectomy, more
particularly during AprilMay
1997……….”
42. Had it been so, the appellant could be held
liable for failure on his part to remove the stones
and allowed them to remain in the Gall Bladder for
such a long time. There was no medical evidence
adduced by respondent No.1 to prove this fact.
43. In our opinion, no medical evidence of any
expert was adduced by respondent No.1 to prove
any specific kind of negligence on the part of the
appellant in performing the surgery (conventional

surgery) of Gall Bladder except raising the issue of
“nongiving
of express consent”. This issue we have
already dealt with above and found no merit
therein. In our view, respondent No.1 was under
legal obligation to prove a specific kind of negligence
on the part of the appellant in performing the
surgery and also was required to prove that any
subsequent ailment which she suffered on her
return to home such as, jaundice, dysentery, fever,
loss of weight etc. were suffered by her only due to
improper performance of conventional surgery by
the appellant and if the surgery had been
successful, she would not have suffered any kind of
these ailments.
44. In our opinion, there has to be a direct nexus
with these two factors to sue a doctor for his
negligence. Suffering of ailment by the patient after
surgery is one thing. It may be due to myriad

reasons known in medical jurisprudence. Whereas
suffering of any such ailment as a result of
improper performance of the surgery and that too
with the degree of negligence on the part of Doctor
is another thing. To prove the case of negligence of
a doctor, the medical evidence of experts in field to
prove the latter is required. Simply proving the
former is not sufficient.
45. In our considered opinion, respondent No. 1
was not able to prove that the ailments which she
suffered after she returned home from the Hospital
on 08.08.1996 were as a result of faulty surgery
performed by the appellant.
46. Learned counsel for respondent No.1
(complainant) vehemently argued that respondent
No.1 suffered immensely due to the surgery
performed by the appellant and that she was

rightly, therefore, awarded the compensation by the
National Commission.
47. Learned counsel for respondent No.1 also
placed reliance on the Discharge Certificate which,
according to her, mentions that Laparoscopy
surgery was performed on respondent No.1. On this
basis, learned counsel contended that respondent
No.1 had not given her consent for performing
general surgery.
48. In the light of the detailed discussion made
above on the issues arising in the case including the
issue of grant of consent, we are unable to accept
the aforesaid submissions of learned counsel for
respondent No.1.
49. It is apt to remember the words of the then
Chief Justice of India when he said in Jacob
Mathew’s case (supra) which reads as under:
“The subject of negligence in the context of
medical profession necessarily calls for

treatment with a difference. There is a
marked tendency to look for a human actor
to blame for an untoward event, a tendency
that is closely linked with a desire to punish.
Things have gone wrong and therefore
somebody must be found to answer for it. An
empirical study reveals that background to a
mishap is frequently far more complex than
may generally be assumed. It can be
demonstrated that actual blame for the
outcome has to be attributed with great
caution. For a medical accident or failure,
the responsibility may lie with the medical
practitioner, and equally it may not. The
inadequacies of the system, the specific
circumstances of the case, the nature of
human psychology itself and sheer chance
may have combined to produce a result in
which the doctor’s contribution is either
relatively or completely blameless. The
human body and its working is nothing less
than a highly complex machine. Coupled
with the complexities of medical science, the
scope for misimpressions, misgivings and
misplaced allegations against eh operator i.e.
the doctor, cannot be ruled out. One may
have notions of best or ideal practice which
are different from the reality of how medical
practice is carried on or how the doctor
functions in real life. The factors of pressing
need and limited resources cannot be ruled
out from consideration. Dealing with a case
of medical negligence needs a deeper
understanding of the practical side of
medicine. The purpose of holding a
professional liable for his act or omission, if
negligent, is to make life safer and to
eliminate the possibility of recurrence of
negligence in future. The human body and

medical science, both are too complex to be
easily understood. To hold in favour of
existence of negligence, associated with the
action or inaction of a medical professional,
requires an indepth
understanding of the
working of a professional as also the nature
of the job and of errors committed by chance,
which do not necessarily involve the element
of culpability.”

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.3971 OF 2011

Dr. S.K. Jhunjhunwala  Vs Mrs. Dhanwanti Kumar & Anr.

Abhay Manohar Sapre, J.
Dated:October 01, 2018

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Whether doctor prescribing medicine without diagnosis would be held guilty for medical negligence?

At this stage, a line of distinction needs to be withdrawn. As is
held above, in case there was an error in diagnosis, it would be a civil
liability. But in the present case,
(i) the patient was directed to be admitted in the absence of the
doctors;
(ii) the medicines were administered on telephonic instructions
without even enquiring about the symptoms or nature of the pain
suffered by the patient;
(iii) there was no resident medical officer;
(iv) no alternative arrangement was made;
(v) In fact, Dr. Karmarkar was also called by the staff when the
health of the patient started deteriorating. The applicants had not even
bothered to ask Dr. Karmarkar about the treatment given by him or the
condition of the patient.
(vi) All these when the complainant wanted to admit his wife in

another hospital.
There is gross negligence from the point of standard of care.

Prescription without diagnosis would amount to culpable
negligence. This issue is decided in the affirmative.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL ANTICIPATORY BAIL APPLICATION NO. 513 OF 2018
1 Deepa Sanjeev Pawaskar.
2 Sanjeev Anant Pawaskar.
V/s.
The State of Maharashtra.
CORAM : SMT. SADHANA S. JADHAV,J.

PRONOUNCED ON : JULY 25, 2018.

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When offence of criminal conspiracy is not made out in case of medical negligence?

Facts:

Wife of Respondent No. 1 was under the medical treatment of delinquent doctors. She, however, could not survive. Her husband-Respondent No. 1 was not satisfied with the manner in which medical treatment was given by these doctors. He, therefore, lodged a written complaint with the West Bengal Medical Council against those three doctors alleging negligence and maltreatment of his wife by the said three medical practitioners. On receiving the complaint, the Medical Council referred the same to the Inquiry Committee. This Committee comprised five doctors (other Appellants were the members of the Medical Council). The Inquiry Committee took opinion of certain experts in their field and the opinion of the said experts was in favour of the Complainant. Notwithstanding the same, the Inquiry Committee submitted its report giving findings that the delinquent doctors were not at fault. On the basis of that report, they were exonerated by the State Medical Council. The Complainant had also initiated proceedings against the delinquent doctors before the National Consumer Disputes Redressal Commission (NCDRC) alleging deficiency in service against several medical practitioners including the said three delinquent doctors. Though NCDRC rejected the complaint, in the appeal filed against the orders of the NCDRC, the present Court held the said delinquent doctors guilty of negligence but at the same time, it was found that their negligence was not of criminal nature but of civil consequence and, therefore, awarded damages in favour of the Complainant and against the delinquent doctors. It had been finally held that they acted with negligence while according medical treatment to the wife of the Complainant.

The Complainant filed criminal complaint against the members of the Inquiry Committee of State Medical Council including the Appellants alleging that they had committed offence under Section 201 read with Section 120B of the Indian Penal Code, 1860. The complaint was founded on the allegations that even when there were four reports of four different medical experts to the effect that delinquent doctors were guilty of professional misconduct as they had acted with negligence while giving medical treatment to the wife of the complainant, these Accused persons entered into conspiracy to save the delinquent doctors. The concerned Magistrate took cognizance of the said complaint and issued process. On receipt of the notice, the Appellants challenged the proceedings before the High Court submitting that no case of conspiracy was made out in the complaint and the 'complaint was malicious and untenable' and it could not be said that any offence by the Appellants was committed under Section 201 read with Section 120B of the Indian Penal Code, 1860. The High Court dismissed the petition. 
Ratio,
As mentioned above, there is a charge of conspiracy as well and, for this purpose, provisions of Section 120B Indian Penal Code are invoked. It makes the following reading:

120B. Punishment of criminal conspiracy.--(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.

16. Here again, criminal conspiracy that is referred to and defined Under Section 120A Indian Penal Code has to be in furtherance of committing an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards etc. The alleged conspiracy even as per the complaint was not to commit any of the offences as mentioned above. As per the complainant himself, the so-called conspiracy, if at all, was to save the delinquent doctors in disciplinary proceedings taken against them. This provision also, therefore, has no application.


IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1163 of 2016 (Arising out of SLP (Criminal) No. 8024 of 2013)

Decided On: 29.11.2016

Asoke Kumar Chaudhuri and Ors.Vs. Kunal Saha and Ors.

Hon'ble Judges/Coram:
A.K. Sikri and Abhay Manohar Sapre, JJ.
Citation:(2017) 11 SCC 561.

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When prosecution against doctor for medical negligence is liable to be quashed?

In the present case, charge sheet has been submitted, merely on
the basis of statement of Doctor Himani Negi of Sahara Hospital, who
had subsequently treated the patient. She has stated that there was a
blood clot of 600-700 ML between peritoneum and rectus which was
cleaned by her and she also resorted to blood transfusion to save life of
the patient. Due to this negligence of private Doctor any untoward
event could have happened.
19. Thus from the totality of the facts and circumstances, it appears
that the submission of charge-sheet was not in accordance with the
guidelines given by Hon’ble Apex Court in Jacob Mathew’s case
(supra). Firstly, no independent opinion of Government Doctor was
obtained regarding negligence of petitioner before submission of
charge-sheet. Though opinion of Government Doctor was not
compulsory, there should have been opinion of independent Doctor. The
opinion of Doctor Himani Negi can not be said to be independent
opinion as she herself was involved in the case and had treated the
patient. Secondly, applying BOLAM’s Test only ordinary competence
man of medical was to be exercised and not special medical skill was
required. A simple lack of care, and error of judgment or an accident
cannot be said to be poof of negligence on the part of the petitioner. It is
not the case of prosecution that the petitioner did not possess requisite
skill, which she professed to have possessed or she did not exercise of
reasonable competence in the given case, the skill which she did
possess.
20. The element of cheating is also not made out merely because the
petitioner had given assurance to control the condition of patient. There
is nothing on record to show that she concealed any fact regarding
treatment or that she did not possess the qualification which she
professed. She had exercised the skill expected from a man of ordinary
competence of medical.
21. Thus the allegations made in the First Information Report, even if
they are taken at their face value and accepted in their entirety, do not
prima facie constitute any offence or make out a case against the
accused and where no prima facie case is made out against accused, it is
liable to be quashed 
ALLAHABAD HIGH COURT
Delivered on 29.05.2017

Case :- U/S 482/378/407 No. - 4194 of 2015
 Dr. Meera Malik
V
 The State Of U.P and another

Hon'ble Ravindra Nath Mishra-II,J.

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Whether second protest petition is maintainable?

On going through the above said observation made by the Hon'ble Apex Court, it is clear that the law does not prohibit filing or entertaining the second complaint or even second protest petition before the Court in order to administer complete justice between the parties and opportunity to be given to the complainant to file necessary additional protest petition or by means of private complaint to bring the factual aspects before the Court in order to enable the Court whether it can proceed against the accused or not.

IN THE HIGH COURT OF KARNATAKA (KALABURAGI BENCH)

Criminal Petition No. 201225/2015

Decided On: 22.04.2016

 Rajeshwari

Vs.

 The State of Karnataka and Ors.

Hon'ble Judges/Coram:

K.N. Phaneendra, J.

Citation: 2017 CRLJ(NOC)17 KAR

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Precaution to be taken by court while issuing process against doctor for medical negligence

The learned counsel appearing for the petitioner has also drawn my attention submitting that, whenever a case is filed against a Doctor the court should not mechanically deal with the matter. It should apply its judicious mind before calling upon the Doctor before the Court, for the reason that, the Doctor should not be harassed. In day-to-day affairs, they may commit certain mistakes, but every mistake of the Doctor cannot be called as negligence, which will fall under Section 304-A of IPC. There should be some high standard of allegations based on factual aspects, on which the court can call upon the Doctor to explain by taking cognizance and issuing summons. In this regard, it is worth to mention here a decision of the Hon'ble Apex Court reported in MANU/SC/0225/2009 : AIR 2009 SC 2049 between Martin F. D'Souza v. Mohd. Ishfaq, wherein the Hon'ble Apex Court has observed that,-

"A medical practitioner is not liable to be held as negligent, simply because, things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below the standards of a reasonably competent practitioner in his field."

It is also observed by the Hon'ble Apex Court at Para 117, in the following manner.

"117. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer For a (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case (supra), otherwise, the policemen will themselves have to face legal action."

14. From the above observations of the Hon'ble Apex Court it is abundantly crystal clear that the court should not mechanically or casually take cognizance or issue summons against the Doctors, but it should take utmost care before passing any order in this regard. Therefore, it is incumbent upon the courts to examine and enquire into the documents produced by the complainant and the averments made in the protest petition or the complaint, and find out those documents are sufficient to take cognizance and issue summons against the Doctors. Otherwise it is the duty of the Courts that it should get the opinion of the Doctor to satisfy itself whether the allegations made against the Doctors fall within the category of cases wherein the conduct of the Doctors fell below that standards of reasonable competent practitioner in the field. Therefore, the learned Magistrates have to bear in mind the above said rulings of the Hon'ble Apex Court and then the factual aspects have to be very carefully dealt with, in such matters.

IN THE HIGH COURT OF KARNATAKA (KALABURAGI BENCH)

Criminal Petition No. 201225/2015

Decided On: 22.04.2016

 Rajeshwari

Vs.

 The State of Karnataka and Ors.

Hon'ble Judges/Coram:

K.N. Phaneendra, J.

Citation: 2017 CRLJ(NOC)17 KAR

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When contention of doctor that he was called only for medical opinion can not be relied on?

Defendant No. 1 claims that he was only called, but once, by Defendant No. 2 to give a second opinion for a patient of Defendant No. 2, the original Plaintiff No. 2. Consequently, he attended upon her only on 17th December 1987. He, therefore, claims that the case papers of the earlier dates do not bear any reference to him. The decision to take his opinion was recorded on 11th December 1987 and he attended on 17th December 1987. The endorsement in the case papers Exhibit-H of 17th December 1987 in the handwriting of Defendant No. 2 shows "seen the case and advised exploration". Another endorsement of the same date in the same handwriting shows "patient is for exploration next week". Defendant No. 1 claims that he was only called for his opinion. He gave his opinion advising exploration. He was the senior most honorary Surgeon of Oncology unit at that time. He is not shown to have been paid his fees for his opinion at all in the original bill for the charges of Plaintiff No. 1 for the hospitalization as also the surgery marked Exhibit-N in evidence. It would be inconceivable for Defendant No. 1 not to charge for his opinion, if he had given one. If he was only called for an opinion he would charge only for the opinion. In that case the surgery which he claims was required to be performed by Defendant No. 2 would show charges incurred for the surgery done by Defendant No. 2 as per the schedule of fees of BH. The original bill Exhibit-N instead shows the charges for surgery specifically in the name of Defendant No. 1 at the rate then applicable and charged by Defendant No. 1 and allowed to by BH; it does not show any charge for any opinion of any Consultant Surgeon. It must be appreciated that the charge for opinion, if any, to perform exploration would be included in the surgery charge itself if surgery was to be performed.

49. The schedule of fees fixed by BH at the relevant time for senior honorary Surgeons was Rs. 5000/-. The assistant Surgeon was entitled to charge 1/3rd of that fee. Pertinently the charge of Defendant No. 2 for the surgery specifically against the name of Defendant No. 2 is Rs. 1667/- which is a 1/3rd of a fees of the honorary Doctor, Defendant No. 1. Similarly the schedule of fees showing charges of the Anesthetist is 1/3rd of combined fees of honorary Doctor and the assistant Surgeon. The fees of Dr. R. Kotak, the Anesthetist against her name is shown to be Rs. 2222/- precisely 3rd of Rs. 5000/- plus Rs. 1667/- being 1/3rd of Rs. 6667/- i.e. Rs. 2222/-. This is the largest single circumstantial evidence of the fact of Defendant No. 1 was the honorary Surgeon for the surgery of the original Plaintiff No. 2 as contained in the original bill of BH marked Exhibit-N in evidence. His fees of the surgery coupled with the total absence of his fees for his opinion makes it conclusively clear that he was the honorary Surgeon for the original Plaintiff No. 2. The original Plaintiff No. 2 was admitted under him. The contract between the two parties - Defendant No. 1 being the honorary Doctor of the original Plaintiff No. 2 is, therefore, made out.

IN THE HIGH COURT OF BOMBAY

Suit No. 1101 of 1989

Decided On: 02.09.2011

Padam Chandra Singhi and Ors.
Vs.
 Dr. P.B. Desai and Ors.

Hon'ble Judges/Coram:
R.S. Dalvi, J.

Read full judgment here: click here

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How to prove policy of hospital in case of medical negligence?

To prove the policy alleged by Defendant No. 1 he deposed in his cross examination that there were 4 or 5 patients' files who were admitted and managed by Defendant No. 2 independently but under the name of Defendant No. 1 because of the hospital's policy. He has not produced any of those files also. His cross examination shows no recollection of any patients admitted to BH by other Surgeons in his name also. Similarly his cross examination shows that he was not aware of any other patient admitted by any other Surgeons independently, but in his name.

45. In fact in support of the case of a policy hitherto unknown and un- shown, made out by the Defendant No. 1, he has not produced evidence of any illustration of any other Doctor who was similarly shown as a honorary Surgeon merely on paper when another junior Doctor or assistant Surgeon independently admitted and treated any other patient.

46. It is a salutary principle of the law of evidence that a person who alleges a particular fact to his knowledge has to prove that fact under Section 106 of the Indian Evidence Act. Defendant No. 1 has alleged the fact of the policy of BH. He has not proved any such policy by producing the policy itself or the rules and Regulations, the letters that he claims were written to him by BH with regard to the policy or even sought to prove the policy by way of illustration.

IN THE HIGH COURT OF BOMBAY

Suit No. 1101 of 1989

Decided On: 02.09.2011

Padam Chandra Singhi and Ors.
Vs.
Dr. P.B. Desai and Ors.

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How to prove that doctor had agreed to perform operation of patient?

It has to be seen whether the proposal of the original Plaintiffs was accepted by Defendant No. 1 as the promise. If he accepted the promise, there would be an agreement. The agreement is for treating a patient for consideration. It would, therefore, be an agreement enforceable at law and consequently a contract under Section 2 (h) of the Indian Contract Act, 1872. The acceptance by Defendant No. 1 as the promise has to the absolute and unqualified under Section 7 (1) of the Act and be expressed in some usual and reasonable manner under Section 7 (2) of the Act. The relevant portion of Section 7 which runs thus:

7. Acceptance must be absolute.- In order to convert a proposal into a promise, the acceptance must-
(1) be absolute and unqualified;
(2) be expressed in some usual and reasonable manner...

What is the usual and reasonable manner makes for the acceptance by performance or by implications under Sections 8 & 9 of the Act which run thus :

8. Acceptance by performing conditions, or receiving consideration.- Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal.

9. Promises, express and implied.- In so far as the proposal or acceptance of any promise is made in words, the promise is said to be express. Insofar as such proposal or acceptance is made otherwise than in words, the promise is said to be implied.

90. Defendant No. 1 accepted the proposal of the original Plaintiffs in the usual and reasonable manner that surgeons do. Surgeons would not accept only by saying "I will operate" but by actually operating, by aiding and assisting in operation as circumstances require, by charging the fees for the operation, by contriving to fix the operation to accommodate themselves as per their schedule and, of course, by being shown as one such surgeon in the records of the hospital. By all of these modes the contract between the parties in this case must be implied and is demonstrated by performance. It is implied by the patient accepting the surgeon's command to fix the operation at his convenience. It is accepted by the fact that it is fixed on a given day, 5 days after his advice in an O.T. adjoining another O.T.  where he admittedly performed another surgery. It is further implied by the charges that are levied to the patient by way of the surgeon's fees as per the schedule prevailing at the relevant time. It is further manifest in the surgeon actually remaining at the door of the O.T. where he was expected to come as per his implied obligations and where he admittedly conferred with another surgeon to understand the medical position of the patient and to command a further act before walking out.

91. This case falls squarely within the aforesaid Sections denoting an absolute and unqualified acceptance expressed by the usual mode which surgeons reasonably adopt. The acceptance is seen by the consideration sought to be charged for his fees. of course, in this case there is no direct acceptance; it could not be because there was a stiff resistance. Nevertheless the charge was demanded. It was stated to be specifically of Defendant No. 1 and none other in the notices of demand, Exhibits O & P in evidence. The charge of the anesthetist was indeed accepted which was in terms of the schedule of fees depending of the charge of the surgeons. The acceptance was not made in so many words "I will operate"; it was implied in the condescending act of Defendant No. 1 to fix the O.T. coordinated with Defendant No. 2 on the day that would convenience none other than he.

IN THE HIGH COURT OF BOMBAY

Suit No. 1101 of 1989

Decided On: 02.09.2011

 Padam Chandra Singhi and Ors.
Vs.
Dr. P.B. Desai and Ors.

Hon'ble Judges/Coram:
R.S. Dalvi, J.

Citation: 2012(1) ALLMR 510

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