Kerala High Court issues guidelines to ensure doctors get fair hearing in medical negligence cases

The Kerala High Court recently issued draft guidelines for the functioning of the expert committees that consider medical negligence cases [Dr. Mohamed Rizwan T v. State of Kerala, Dr. L Jayachandran v. State of Kerala]

Justice VG Arun, who sits in the jurisdiction of medical negligence cases, had earlier observed that the lack of guidelines was leading to doctors being denied an opportunity to defend themselves.

The Court's draft guidelines, therefore, make it mandatory to give doctors and other medical practitioners accused in such cases, to be given a chance to defend themselves and to file appeals against findings of the expert panels considering their cases.

The guidelines also stipulate that the complainants in such cases should also be given a hearing if the expert panel finds no fault on the part of the accused practitioners.

The Court also directed the State government to frame concrete guidelines based on the ones drafted by the Court.

The following are the draft guidelines:

1. Upon receipt of a complaint alleging medical negligence, the Investigating Officer should act swiftly and secure the initial set of documents like doctor’s notes, nurses’ diary, duty roster, shift reports, attendance sheets, assessment forms, consent forms, medical reports, diagnostic reports, lab results, referral or cross consultation records, treatment notes, discharge summaries etc.

2. The Investigating Officer shall then intimate the authority concerned about the complaint and request to convene the Expert Panel meeting immediately.

3. A list of practitioners, by specialty, should be maintained in each district and those persons sensitized about the manner in which complaints of medical negligence are to be dealt with. A Doctor from the concerned specialty shall be included in each Expert Panel.

4. The Expert Panel shall conclude its proceedings within 30 days of its constitution.

5. The medical practitioner and the de facto complainant shall be issued with notice and permitted to submit written representations to the Expert Panel.

6. In cases where the Expert Panel finds prima facie material indicating gross negligence, the medical practitioner should be called upon to appear in person and offer his explanation regarding the procedure adopted/ treatment provided.

7. The report of the Expert Panel should contain the individual opinion of each expert. The final conclusion of the Panel should be based on consensus.

8. The report should directly address the issue whether gross negligence or recklessness, leading to loss of life, can be attributed to the medical practitioner and specify which individual(s), from among the team of doctors, is guilty of gross negligence or recklessness and the reasons for reaching such conclusion.

9. The Expert Panel should apply a clear and consistent test for determining criminal negligence with reference to the Bolam test. The reasoning of the panel must be reflected explicitly in the report. A reporting template may be developed for use by the Expert Panels.

10. A copy of the report should be served on the medical practitioners affected by the report. In cases where the Expert Panel finds no negligence, on the part of the doctors, a copy of the report should be furnished to the de facto complainant.

11. The right to appeal against the finding of the Expert Panel should be provided to the medical practitioner as well as the de facto complainant.

12. Time limit should be stipulated for filing the appeal and for the State Level Apex Expert Committee to decide the appeal. If the appeal is filed within the time stipulated, the Investigating Officer shall file final report only after the appeal is decided.

The judgment was passed on two petitions moved by doctors seeking to quash the medical negligence cases registered against them.

Dr. Mohamed Rizwan was being prosecuted for medical negligence after a patient, who was stabbed by his wife, died two days after being treated by him and his medical team.

The patient died of cardiac arrest which the District Level Expert Committee concluded was the result of a drainage tube not being inserted. However, Dr. Rizwan maintained that the patient was exhibiting violent symptoms associated with withdrawal from alcohol. According to the doctor, the violence made it dangerous to insert the tube and contributed to bleeding and death as well.

A first information report (FIR) was subsequently registered by the police charging the doctor under Section 304A (death by negligence) of the Indian Penal Code. Dr. Rizwan also filed an appeal against the finding of negligence which is pending before the State Medical Board.

Before the High Court, Dr. Rizwan contended that the committee never gave him an opportunity to be heard, which violated the principles of natural justice. He also argued that the committee relied solely on a superficial reading of the post mortem report to arrive at its decision.

The other petitioner, Dr. L Jayachandran, an obstetrician, was charged under Section 304A after a woman he was treating died during childbirth.

While the expert committee in this case opined that there was no negligence on his part, the police lodged an FIR against him.

In his petition, Dr. Jayachandran claimed that there were some complications due to the presence of a hematoma which was only identified during the surgery.

Both doctors sought orders from the Court for quashing the criminal proceedings against them.

In an order dated August 4, the Court stayed the proceedings in the proceedings against them for a period of three months. It also directed the State Level Apex Expert Committee to decide the appeals filed by the petitioners within two months.

Dr. Mohamed Rizwan was represented by advocates John S Ralph, Vishnu chandran, Ralph Reti John, Giridhar Krishna Kumar, Geethy TA, Mary Greeshma, Liz Johny and Krishnapriya Sreekumar.

Dr. L Jayachandran was represented by advocates CR Sanish, VO Robinson, Anjana KP and Arjun Sasi.

[Read Order]