MEDICAL NEGLIGENCE CASES
1. Jacob Mathew vs State of Punjab 2005 (6) SCC 1 (Larger Bench)
G.P. Mathur J, P.K. Balasubramanyan J, R.C. Lahoti J.
Guidelines and general principles relating to medical neligence cases under Criminal Law i.e. S. 304 A of IPC let down. Para 53 is as under:-
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 it is not done, we propose to lay down certain guidelines fro 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 option 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. Unless his arrest the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face prosecution unless arrested, the arrest may be withheld.
2. Martin F. D’Spuza vs. Mohd. Ishfaq 2009(3) Bom.C.R. 202
Katju Markandey & Lodha R.M., JJ.
This case applied the general principles of guidelines mentioned in Jacob Mathew to consumer cases.
3. V. Kishan Rao vs. Nikhil Super Speciality Hospital & anr.
2010(6) BCR 155 SC
Singhvi G.S. & Ganguly Ashok, JJ.
The Court overruled Martin D’Souza to the extent it applied the guidelines/ directions in Jacob Mathew to consumer cases. Para 29 is as under:-
We are of the view the aforesaid direction are not consistent with the law laid down by the larger Bench in Mathew. In Mathew, the direction for consulting only in cases of criminal complaint and not in respect of cases before the Consumer Fora. The reason why the larger Bench in Mather did not equate the two is obvious in view of the jurisprudential and conceptual difference between cases of negligence in civil and criminal matter. This has been elaborately discussed in Mather. This distinction has been accepted in the judgment of this Court in Malay Kumar Ganguly see paras 133 and 180 at the pages 274 and 284 of the report.