Negligence allegations against medical professionals require expert opinion before any FIR can be registered, as per guidelines established by the Supreme Court.

ORDER :

G. S. Ahluwalia, J.

This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-

2. It is submitted by petitioner himself that brother of petitioner is a handicapped person and as B.P. Stent which was installed inside the body of brother of petitioner had stopped working, therefore, he took his brother to Kamla Raja Government Hospital, Gwalior. Accordingly, he was admitted on 27.12.2023. Since condition of his brother was deteriorating, therefore, he was referred to Neuro Surgery Department. Dr. Anand Sharma who was posted in Neuro Surgery Department suggested the petitioner to admit his brother in a private hospital. Since financial condition of petitioner is not good, therefore, he did not admit his brother in a private hospital. However, Dr. Aditya Shrivastava and Dr. Avinash Sharma refused to admit his brother in the Neuro Surgery Department and also suggested that petitioner should take his brother to a private hospital. Accordingly, under compulsion, petitioner got his brother admitted in Jay Arogya Hospital, Gwalior in general surgery department. It is alleged that during the admission of his brother in Neury Surgery Department, the condition of his brother deteriorated. Petitioner took his brother to OPD on 08.01.2024, but Dr. Ashish Shrivastava did not come to OPD. Because of negligent attitude of the doctors of a government hospital, petitioner took his brother to government AIIMS Hospital, New Delhi and as the petitioner had not taken any appointment, therefore, his brother could not be treated at AIIMS hospital. Thereafter, petitioner took his brother to Civil Hospital, Gujarat where his brother remained admitted for a period of one month and he was operated thrice. Thus, it is submitted that on account of negligent act of doctors of Jay Arogya Hospital, Gwalior life of brother of petitioner had come in danger. Thus, it is prayed that legal action should be taken against them. During course of arguments, it was contended by petitioner that FIR should be registered against the doctors who are negligent in performance of their dutues.

3. Considered the submissions made by petitioner.

4. Before considering the facts of the case, this Court would like to consider the law governing the field of registration of criminal offence against doctors.

5. The Supreme Court in the case of Jacob Mathew Vs. State of Punjab reported in (2005) 6 SCC 1 has held as under:-

“48. We sum up our conclusions as under:-

(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.

(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment