Presently, such guidelines have been set out in the Jacob Mathew vs State of Punjab and Another judgement ( 2005) . This judgement is considered a landmark one for medical jurisprudence in India and is frequently cited in many situations. The Original Judgement as taken from the Website of the Honorable Supreme Court is attached here.
Repeating the relevant extracts of the judgement for the topic at hand :
- Statutory Rules of 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 in regard 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 leveled 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.
While almost 15 years have passed, no statutory rules as asked for above have been framed.
Regarding ” independent and competent medical opinion” referred to above, quite frequently it is observed that the case is forwarded to State Medical Councils. However, this is not the right procedure as there is NO mention of such a forwarding to be done in the instructions above. On the other hand, there are several rules and decisions pointing out the correct entity who needs to handle the complaint. For example :
- In Max Hospital and Others Vs Monisha, Punjab High Court, January 2019, it has been held :
” Having given thoughtful consideration to the rival submissions & taking into account the directions of the Hon’ble Supreme Court in the above referred authorities, the trial Court at Gurgaon is directed to refer the case of respondent-complainant to a District Level Board constituted by the State of Haryana vide notification No.25/10/2017-6HBI dated 31.05.2017, to seek opinion as to whether the allegations of the respondent-complainant against the petitioners in the impugned complaint with respect to their medical negligence are substantiated.
In turn, the Chief Medical Officer, Gurgaon, shall take care and ensure that impartial and unbiased opinion is given by the District Level Board, after joining the respondent-complainant.”
2. Per Haryana Government Health Department Notification, Feb. 2018, complaints of Medical Negligence are to be forwarded to ” District Medical Boards for Negligence” . A downloaded copy of this notification is stored here.
3. Honrable NCDRC has held in a recent order that ” In my view the DMC is a professional regulatory body (PRB). it’s opinion cannot be construed as an ‘expert opinion’. ” This order may be downloaded from here .
4. In Maharaja Agrasen Hospital . vs Master Rishabh Sharma . on 16 December, 2019 , it is clearly stated that :
5.22 The National Commission vide Order dated 29.02.2012 directed the Medical Board, AIIMS to give an expert opinion in the matter.
4. The Delhi Medical Council Act 1997 can be read here. No where does the Act, (and more particularly its Section 10 (f)) provides for a rendering of “expert opinion” which can hold in other judicial foras and proceedings. Instead , it only provides for actions that the DMC can Internally against doctors registered with itself such as disciplinary steps.
5. In W.P.(C) 452/2021 and CM APPL. 1164/2021, decided 13th Jan. 2021 it has been held that :
“10. Accordingly, it is directed that a fresh enquiry shall be conducted by a Committee headed by Dr. Anita Saxena, Professor & Head, Department of Cardiology, Chief of Cardio Thoracic Sciences Centre, AIIMS, New Delhi …. Dr. Saxena is permitted to include two other suitable members in the Committee.
13. Let the enquiry be concluded within four months from the date of the first hearing. The proceedings of the committee shall be video recorded by the independent videographer, appointed by the Chairperson of the committee.”
Here the proceedings were not sent to DMC, besides they were to be ordered to be videographed since the petitioner had earlier appealed to the CM, Delhi and got an order issued accordingly.
Hence there are plenty of precedents , both in law as well as actual settled cases , showing that instead of State Medical Councils, medical negligence cases should be sent to independent Government doctors.