Expert opinion must before summoning doctors: HC in medical negligence case

Kolkata: The Calcutta High Court has ruled that a magistrate cannot rely on lay assessment in cases of alleged medical negligence and must first obtain an impartial medical opinion.

Justice Ajoy Kumar Mukherjee, while setting aside summons issued to two doctors under Section 304A of the Indian Penal Code over the death of a patient in 2014, directed that a medical board of at least three government doctors, including one orthopaedic specialist, be formed to examine the treatment given.

The court observed that the order passed by the Judicial Magistrate, 4th Court, Barrackpore on March 4, 2017, was “cryptic” and failed to disclose the reasons or materials considered before issuing the process. It said that in matters involving disputed clinical decisions, judicial officers must seek expert scrutiny and cannot act as a “post office” in mechanically forwarding complaints.

The case was based on a private complaint filed by the patient’s father. According to the complaint, his son slipped at home and was admitted to a private hospital on July 10, 2014. He was suspected of having sustained spinal fractures and also complained of abdominal pain. It was alleged that no timely abdominal imaging was conducted and that on the morning of July 11, the anti-coagulant drug Clexane was administered without adequate monitoring.

The complainant further stated that no vital signs were recorded between the evening of July 10 and the following morning. The patient died on July 12. Based on the complaint and depositions, the magistrate had issued a summons against two doctors.

The High Court said such allegations required an independent review by qualified specialists before criminal proceedings could be advanced. It also noted that when accused persons live outside a magistrate’s territorial jurisdiction, procedural safeguards under law require a more detailed inquiry before

issuing a summons.

Delivering judgment, the High Court directed the magistrate to allow the complainant to submit additional medical papers within eight weeks. It directed that the medical board examine hospital bed head tickets, vitals charts, imaging reports, prescriptions, and the death certificate and provide a written opinion. The magistrate was asked to obtain this report and then decide afresh on whether process should be issued, recording clear reasons in accordance with the law.