The Kerala High Court has ordered that private complaints of medical negligence against nurses shall not be entertained by courts unless prima facie evidence is produced in the form of a credible opinion given by another competent authority to support the charge.

The Court also directed that investigating officers should not proceed in such cases unless an independent medical opinion is obtained.

The Court was hearing a Criminal Miscellaneous Case in which a nurse was charge-sheeted under Section 304A (Causing death by negligence) after a 10 year old girl suffering from diarrhoea and vomiting died at a hospital.

​​The question before the Court was whether a nurse can be prosecuted under Section 304A IPC alleging medical negligence merely based on the oral statement of some witness without an expert opinion from an expert body.

The Single Judge Bench of Justice P.V. Kunhikrishnan directed, "A private complaint shall not be entertained by courts against a nurse in the Government service or in private hospitals alleging medical negligence, unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent authority to support the charge of rashness or negligence on the part of the nurse concerned.”

Advocate Betson P. Kunjappan appeared for the petitioner and Senior Public Prosecutor Noushad K.A. appeared for the State of Kerala.

The Court further said, "The Investigating Officer should, before proceeding against a nurse in the Government service or in private hospitals based on complaints of rash or negligent act or omission while they discharge their duty, obtain an independent and competent medical opinion preferably from medical experts qualified in that branch of nursing with a doctor who can normally be expected to give an impartial and unbiased opinion."

In tune with the Supreme Court's judgment Jacob Mathew v. State of Punjab (2005), the High Court said that a nurse accused of “alleged harshness or negligence” while discharging duty, may not be arrested in a routine manner, “simply because a charge has been levelled”. A nurse cannot be arrested unless their arrest is inevitable for furthering the investigation or for collecting evidence or the investigation officer feels satisfied that the nurse would not make themselves available to face the prosecution unless arrested, the Court said.

On nursing as a profession, the Court said, “Nursing is not just a job, it's a calling. They are known as the backbone of the healthcare system. Nurses don't just care for patients, they care about patients,” the Court said, citing the example of Florence Nightingale, an English social reformer and the founder of modern nursing, renowned for her dedication to healthcare reform and her compassionate approach to patient care. “...[N]urses in hospitals should get protection from malicious prosecution. They should be given moral support by the society and government. They should be allowed to work without fear of any prosecution and let them known as Indian nursing Nightingales,” the Court said.

The High Court noted the Supreme Court’s judgment in Jacob Mathew's prescription to investigating officers to obtain independent opinion before proceeding against doctors and asked, “Why not the same principle be applicable to the nurses in the hospital who are spending their day and night with patience, for the well- being of their patients?”

The Court noted that the Kerala government had issued a circular in June 2008, in pursuance of the Supreme Court’s directive, instructing procedure to be followed by the investigating officers of complaints registered against doctors. The Court was of the opinion that “the nurses in the Government service and in private hospitals should also get protection like the doctors, if a prosecution is initiated under Section 304A IPC alleging medical negligence.”

On culpability for death by negligence, the Supreme Court in Kurban Hussein Mohamedali Rangawalla v. State of Maharashtra (1964) said, “To impose criminal liability under S.304-A Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence.”

In the present case, the complaint under Section 304A was only filed against the nurse, even as it was admitted that the child was treated by a doctor, who, after perusing blood and urine lab reports, had suggested the complainant-father to take the child home after some time because there was no serious problem. The High Court concluded that no case is made out against the accused nurse in the present case considering the precedents on convictions under Section 304A which hold that the death should be the direct result of a rash and negligent act of the accused and the act was the proximate and efficient cause without the intervention of another's negligence.

The Court recorded that “absolutely no materials are produced by the prosecution to prove any negligence on the part of the petitioner” while clarifying that if any further evidence is obtained by the police about medical negligence on the part of anybody else, it can conduct further investigation and “this order will not stand in the way of such further investigation.”

Cause Title: Celinamol Mathew v. State Of Kerala [CRL.MC NO. 5401 OF 2018]

Appearance:

Petitioner: Advocate Betson P. Kunjappan

Respondents: Senior Public Prosecutor Noushad K.A. And Advocates Sasi M.R., N.P. Silpa, Kavya Krishnan, S. Sajit Sanal, Dharmya M.S

Click here to read/download the Order


Justice P.V. KunhikrishnanMedical Negligence

Tushar Kohli