Abstract

In a recent Single Judge Bench judgment, Allahabad High Court observed that a doctor in the Indian society is the most revered person, who is given status of God in case the patient survives. But we all know that in cases like the present one, risk is always involved and when the patient/family members give consent for being operated, they give consent for such kind of operation to be conducted and to bear the consequences.

It is also noticed in the recent past that the cases to implicate the doctors after demise of the patient have increased, some on account of extortion of illegal money from the doctors and some due to other reasons, only to harass the doctors, out of frustration and because of these factors, the guidelines have been laid down by Hon'ble Apex Court in the case of Jacob Mathew vs. State of Punjab and Another [6] and also recently, in the case of Kusum Sharma[4].

An Inquiry Committee has been constituted by the Vice-Chancellor, AMU. On the basis of this report, it was mentioned that in a case of rare complication, it would be unfair on the part of the junior doctor (Dr. Adil) to expect of him to think of such an uncommon procedural complication. This would suggest that the accused applicant Dr. Adil was a junior doctor and he could not be, therefore, held liable for any intentional negligence, which resulted into the death of the deceased. In the Inquiry Committee report, it has been mentioned that such death occurs in very rare cases and it should not be expected from a junior doctor to think of such an uncommon procedural complication.

The UP Medical Council’s Ethical Committee observed that the cause of death as per post mortem report is Septicemia. Removal of ICD cannot be held as cause of death. Bleeding can occur in few cases from the site of ICD after removal which is not under control. Dr. Ali Adil has also done ATLS. He did his best to save the patient life under the circumstances. The Ethical Committee is the opinion that Dr. Ali Adil cannot be held guilty of medical negligence. [Para 8]

Pointing out the above order, in view of that report, the prosecution of the said doctor needs to be quashed. [Para 9]

Patient/ deceased was got admitted in the said hospital - J.N. Medical College Hospital on 24.05.2012 in a serious condition as he had met with road accident, The patient had radiologically improved on 15.06.2012.

After investigation, the police submitted charge-sheet in the said case under Section 304A of I.P.C. against both the applicants and cognizance has been taken by Ld. Chief Judicial Magistrate, Aligarh. The patient had died due to removal of chest tube, as per first information report dated 16.06.2012, while the cause of death has been mentioned to be septicemic shock in the post-mortem report, as such, there is major material contradiction between the first information report and post-mortem report.

The Ld. C.J.M. has passed summoning order and has failed to consider the law laid down by Hon'ble Apex Court in Martin F. D'Souza vs. Mohd Ishfaq [1] which says that no court, either consumer forum or criminal court, shall issue any process against a doctor before referring the matter to a competent doctor or a committee of doctors specialized in the field, relating to which the medical negligence.

This Research Paper deals with various relevant issues related to criminal prosecution of doctor in Indian context and its impact on society based on various case law of the Supreme Court of India.