Medical negligence requires substantial expert evidence to warrant prosecution; mere allegations without solid proof are insufficient.

ORDER :

Maninder S. Bhatti, J.

This petition under Article 226 of the Constitution of India has been filed by the petitioner challenging inaction on the part of respondent Nos. 2 and 3 in not registering the case against the Doctors of Ashish Hospital, which according to the petitioner, were responsible for the death of the son of the petitioner (hereinafter referred to as the patient).

2. The facts giving rise to this petition are that the son of the petitioner was admitted in Ashish Hospital, Jabalpur on 27.1.2022 at about 11:15 AM for the purpose of surgery of stone. On 27.1.2022, at about 8:00 PM, the surgery was conducted for about one hour and after the surgery, the patient was shifted to normal ward and at that time the Blood Pressure of the patient was 150/90, which was not normal. On 29.1.2022 at about 7:00 AM, the patient started feeling pain in his chest and fell down. The patient was not provided any emergency medical back, therefore, the patient died due to cardiac arrest. It is further averred in the petition that after performing the last rites of his son, the petitioner went again to Ashish Hospital and asked for Fitness Test Report, ECG report and CBC Test and all other documents relating to the patient but the same were not provided to him. Thereafter, when the petitioner made communications dated 3.3.2022, 15.3.2022 and 29.3.2022 to the Authorities of the Ashish Hospital, the ECG report was provided to him and thereafter he came to know that the ECG number mentioned is not the same as the ECG No. mentioned previously and the patient ID number in the ECG is also different as compared and mentioned in the Admission Card. Thereafter on 21.5.2022, the petitioner again made a communication to respondent Nos. 2 and 3 to register a case against the concerned Doctors of the said hospital. Respondent Nos. 2 and 3 refused to register a case on the ground that they would first seek expert's advice as regards the said issue. Subsequently on 9.5.2023, an expert report of two Doctors of the Victoria Hospital, Jabalpur was provided to the petitioner wherein no negligence on the part of the Doctors of Ashish Hospital was found. The petitioner produced the said report and other documents before the Medical Board, Umaria, which was contrary to the report submitted by two Doctors of Victoria Hospital, Jabalpur. It is submitted that inspite of High Blood pressure, the surgery of the patient was conducted, which amounted to medical negligence and comes within the purview of offence under Section 304-II of the INDIAN PENAL CODE . By referring the above opinion of the Medical Board, Umaria, the petitioner again wrote a letter to respondent No. 2 for registering the case against the Doctors involved but to no avail. Hence, this petition has been filed.

3. Learned senior counsel for the petitioner contends that it is a case where the patient, who was the son of the petitioner, was done to death on account of gross negligence at the behest of the Doctors of the Ashish Hospital, therefore, in view of the law laid down by the Supreme Court in the case of Jacob Mathew Vs. State of Punjab & another - (2005) 6 SCC 1 , the case ought to have been registered against them for the offence punishable under Section 304-II of the INDIAN PENAL CODE . It is furt