Sheriefa P.K. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944 WA NO. 166 OF 2023** **AGAINST THE JUDGMENT IN WP(C) 26395/2017 OF HIGH COURT OF KERALA** ## **APPELLANT/ADDL.5TH RESPONDENT:** SHERIEFA.P.K., AGED 51 YEARS, W/O.AHMED ABOOTTY, AYSHA MANZIL PADUPARA, SIVAPURAM, THALASSERY, KANNUR DISTRICT, PIN - 670702 BY ADVS. P.BIJIMON R.T.PRADEEP JACOB SAMUEL K.T.SEBASTIAN PRIYA SREEDHARAN N.SURESH ## **- RESPONDENTS/PETITIONER & RESPONDENTS 1 3:** 1 DR,KRISHNA MOHAN ASSISTANT PROFESSOR DEPARTMENT OF MEDICINE GOVERNMENT MEDICAL COLLEGE, ERNAKULAM {PETITIONER}, PIN - 683104 2 STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HEARTH AND FAMILY WELFARE, DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 WA NO. 166 OF 2023 ..2.. 3 THE STATE LEVEL APEX BODY (MEDICAL NEGLIGENCE) REPRESENTED BY THE DIRECTOR OF HEALTH SERVICES,GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM -, PIN - 695035 4 THE DEPUTY SUPERINTENDENT OF POLICE CRIME BRANCH (CRIMINAL INVESTIGATION DEPARTMENT) HURT AND HOMICIDE WING-II, THRIPUNITHURA, ERNAKULAM, PIN - 682301 BY ADV T.S.HARIKUMAR THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA NO. 166 OF 2023 ..3.. ## **JUDGMENT** ## A. MUHAMED MUSTAQUE, J. The negligence of a doctor for criminal prosecution always has been a vexed issue for everyone including victim, complainant, prosecution agency etc. 2. Pursuant to an apex court judgment in **Jacob Mathew** v. **State of Punjab & Another** [AIR 2005 SC 3180], a procedure has been set in as part of criminal investigation to rely on expert opinion for launching criminal prosecution. Pursuant to the direction in **Jacob Mathew** _(supra),_ the State of Kerala issued a circular on 16.06.2008. As per the circular, two types of Body have been constituted; one, at the first level, is the Expert Panel with four members, and the second is the Apex Body. The Apex Body, in normal circumstances, would have role only if there are different views in the WA NO. 166 OF 2023 **==> picture [31 x 8] intentionally omitted <==** Expert Panel. 3. The problem arisen in this case before us is consequent upon the death of a 22-year-old medical student, Ms.Shamna Thesneem, who claims to have been died on administering Ceftriaxone injection. She was a student of the Government Medical College, Ernakulam, where she was admitted with complaints of fever and fatigue. She was asthmatic. Her father raised a complaint of medical negligence. This was referred to the Expert Panel. One member of the Expert Panel attributed negligence against doctor, as against the majority opinion. There was no unanimity among the Expert Panel. The Expert Panel did not refer the matter to the Apex Body, but it seems that the State Government, based on a direction of the State Human Rights Commission, referred the matter to the Apex Body. The Apex Body came into a definite conclusion that there was negligence on the part of Dr.Jilse George, the Professor WA NO. 166 OF 2023 **==> picture [31 x 8] intentionally omitted <==** and HOD of General Medicine; and Dr.Krishna Mohan, the Physician on duty. 4. Dr.Krishna Mohan came before this Court with the writ petition challenging the decision of the Apex Body. This has been allowed by the learned Single Judge. The learned Single Judge ordered that the Apex Body shall reconsider the matter after including an expert in General Medicine as part of the decision making body. The learned Single Judge further ordered that the mother as well as the alleged delinquent doctors also be heard before a decision is taken in the matter. Aggrieved by the directions as above, the mother of the deceased has come up before this Court in appeal. 5. At the outset, we must say that the Apex Body erred in concluding that Dri.Jilse Goerge and Dr.Krishna Mohan were liable for negligence. The scope of enquiry, in a matter like this, is the point of law to be decided by us. 6. The Expert Panel as well as the Apex Body is WA NO. 166 OF 2023 **==> picture [31 x 8] intentionally omitted <==** constituted to prevent unnecessary launching of prosecution alleging medical negligence. Negligence is contextually relevant in a matter related to prosecution of a doctor. That means, it must be shown that the medical professional did something or failed to do something, which, in the given facts and circumstances, no medical professional, in his ordinary senses, would have done or failed to do. _[See Para_ _49(7) of_ _**Jacob Mathew** (supra)]_ . 7. What is expected, in such circumstances, is that such a Body like the Expert Panel or the Apex Body, has to examine as to whether the accused doctor has followed such protocol in normal course, that could have been followed in treating such patient. Mere departure of normal protocol or procedure is not sufficient under criminal law. The very idea of inclusion of an expert in the Expert Panel or the Apex Body is to ensure that the doctor, who is having expertise in the domain, would be able to WA NO. 166 OF 2023 **==> picture [31 x 8] intentionally omitted <==** comprehend the alleged breach of duty of care by act of omission or commission with reference to the standard of procedure or protocol adopted in treating such patient. In this case, the Apex Body, admittedly, did not include an expert of General Medicine. One doctor is said to be an MBBS doctor and the other is a radiologist. The judicial review is directed against decision making process, not against decision. An opinion given by the Expert Panel and the Apex Body without experts is fundamentally flawed and erroneous. We, therefore, have no hesitation in affirming the judgment of the learned Single Judge. 8. We also take note of the fact that the Apex Body referred doctors by name to hold that they were negligent. The Apex Body is not expected to hold an individual doctor as negligent. It is for the investigating officer to find out the doctor, who is liable to be prosecuted. The Apex Body is only expected to examine the case WA NO. 166 OF 2023 **==> picture [31 x 8] intentionally omitted <==** records, case sheet and nature of omissions or commissions followed in treating the patient. Beyond that, holding a particular doctor as negligent is unwarranted. The opinion has to be confined as to the parameters, protocol procedure to be followed by a normal doctor and deviation thereon, if any. 9. We also note that the learned Single Judge also ordered an opportunity of hearing to the writ petitioner before taking a decision. We are of the view that a delinquent doctor, whoever may be, cannot take part in such decision making process. The prosecution cannot depend upon the views of culprits or accused. However, nothing prevents the Apex Body from hearing the complainant; here, in this case, the mother of the deceased. The ultimate decision for launching prosecution will have to be taken by the prosecution agency. The opinion of the Apex Body is only the _prima facie_ view on negligence. WA NO. 166 OF 2023 **==> picture [31 x 8] intentionally omitted <==** 10.In the circumstances, where the Apex Body failed to adhere to the due procedure for forming an opinion, we are of the view that the learned Single Judge is correct in setting aside the decision of the Apex Body. However, we also set aside the impugned judgment to the limited extent, affording an opportunity of hearing to the writ petitioner. The impugned judgment is affirmed in all other respects. The writ appeal is disposed of, accordingly. ## **Sd/-** ## **A. MUHAMED MUSTAQUE** ## **JUDGE** **Sd/-** ## **SHOBA ANNAMMA EAPEN** ## **JUDGE** bka/-