The Kerala High Court on Tuesday flagged the lack of 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, said that the lack of guidelines has contributed to doctors not being given an opportunity to defend themselves.Often, this leads to the registration of first information reports (FIRs) against accused doctors before they can file appeals against the findings of the expert committee."I feel that some sort of guidelines need to be prepared by the government as to how the expert committee is to function," Justice Arun orally observed. The judge, therefore, appointed advocate Akash S as amicus curiae to assist the Bench in considering the issue in depth."Learned Additional Director General of Prosecution submits that there are no guidelines in place with regard to the manner in which the Expert Committee is to function, since the Committee was constituted based on the directions of the Hon’ble Supreme Court in Jacob Mathew v. State of Punjab. In the considered opinion of this Court, absence of such guidelines will adversely affect the right to fair trial of the accused like the petitioners herein, since it is fundamental for the Committee to consider the explanation of the Doctor before submitting the report and serve a copy of the report on the Doctor concerned, thereby providing an opportunity of filing appeal against the Expert Committee report," the Court said in its order. .The Court was considering 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. He, therefore, sought orders from the Court to quash the criminal proceedings initiated against him. .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.He, therefore, sought orders from the Court to quash the criminal proceedings against him. .Justice VG Arun observed that there is no uniformity in the manner in which expert committees function. Therefore, he opined that some guidelines would be necessary to protect the rights of doctors.Hence, he passed the order calling for suggestions in that regard. The Court requested the counsel for the petitioners and the Additional Director General of Prosecution to submit their suggestions as well. .The matter will be considered next on July 14. .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]
