Medical negligence | Courts should not order FIR without expert opinion: HC

 J&K High Court, Srinagar
J&K High Court, SrinagarMubashir Khan/GK File

Srinagar, Sept 2: The High Court of J&K and Ladakh has ruled that a Criminal Court has to obtain the opinion of the medical expert before setting machinery of criminal law into motion.

A bench of Justice Sanjay Dhar while quashing an FIR that was ordered to be registered against a medical practitioner in Pulwama in 2018, said: “The Courts are not experts in the medical science and, as such, they cannot substitute their own views over that of the specialists,” Medical science, the court said, is an “inexact science and outcome of treatment of a patient cannot be predicted with certainty. “Sometimes even after best efforts of the doctor, his treatment of a patient may ultimately result in failure but simply because his treatment has not yielded the desired result, he cannot be held liable for criminal negligence,” the court said, adding, “All these factors have to be taken into account while dealing with a case of medical negligence. Therefore, without the opinion of a medical expert, the Criminal Courts have to desist from setting the criminal law into motion against a medical professional.”

The court said that a Criminal Court has to obtain the opinion of the medical expert and if from such opinion, a prima facie case of criminal negligence is made out against a medical professional, only then the machinery of criminal law should be set into motion. “This is necessary to avoid any indiscriminate and frivolous proceedings against the doctors.”

The court was hearing a petition filed by one F Ahmad Bhat, challenging the order dated 5 February 2018 passed by a magistrate in Pulwama, directing SHO police station Pulwama to register an FIR and investigate the case on a complaint alleging medical negligence on part of the petitioner. Subsequently the FIR was registered.

“This is a fit case where this Court should exercise its jurisdiction under Section 482 of the CrPC to quash the impugned order and the consequent FIR registered by Police Station, Pulwama,” the court said and accordingly quashed the FIR(32/2018 under Section 304-A RPC).

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