Prosecution under Section 304A IPC requires expert medical opinion to establish negligence; mere witness statements are insufficient.

ORDER

Petitioner, who was a nurse attached to the Taluk Headquarters Hospital, Cherthala, is charge-sheeted under Section 304A of the Indian Penal Code (for short, IPC ) alleging medical negligence on her part while treating a patient. The question to be decided is whether a nurse can be prosecuted under alleging medical negligence merely based on the oral statement of some witness without an expert opinion from an expert body. 2. If anybody is admitted in a hospital as a patient or is there as bystanders of patients, they will definitely express their appreciation to the nurses caring for different patients by folding their hands in respect. The devotion, hard work and readiness to face any medical emergency of the patient day and night by the nursing community is to be appreciated by the society. Nursing is not just a job, its a calling. They are known as the backbone of the health care system. Nurses don't just care for patients, they care about patients. Florence Nightingale, an English social reformer and the founder of modern nursing, is renowned for her dedication to healthcare reform and her compassionate approach to patient care, leaving an indelible mark on the nursing profession and public health. Her unwavering commitment to patient care portrays the fact that the nurses' role is not just to treat the disease but to care for the patients. To do what nobody else will do, in a way nobody else can do is the nurses' way. Nursing is an art and if it is to be made an art, it requires an exclusive devotion. As I said earlier, if any of us are admitted in a hospital we can understand the devotion and hard work of nurses in the hospital. They work day and night and they spent most of the time with their patients. The time spent by a doctor with the patients is less when compared to the time spent by a nurse with a patient. An experienced nurse can do wonders to a patient than an experienced doctor in some medical emergency situations. Therefore, the nurses also deserve care, protection and also moral support from the society while doing their duty.

3. The Apex Court in Jacob Mathew v. State of Punjab [2005 KHC 1045] observed that, the Investigating OfÏcer in criminal cases should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in Government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion to the facts collected in the investigation. 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?

4. I will come to the facts in this case first. The additional 2^nd respondent in this case before the Sub Inspector of Police, Cherthala Police Station on 27.06.2013 at 6.10 p.m. He stated that his daughter, aged 10 years, was taken to the Taluk Headquarters Hospital, Cherthala on 27.06.2013 because of diarrhea and vomiting. The doctor concerned treated the child of the defacto complainant and administered tablets and an injection. Thereafter, the daughter of the defacto complainant was admitted in the observation ward. After an hour, another doctor examined her and recommended blood and urine tests. Accordingly, the child was taken to the lab and the result was obtained and shown to the doctor. He indicated that there were no issues with the child and that the defacto complainant could take her home after sometime. It is the further case of the defacto complainant that, subsequently, the child of the defacto complainant showed symptoms of a high temperature and he informed the same to the nurse concerned. But the nurse said that, he can sponge the body of the child with a wet towel. But, according to the defacto complainant, the temperature increased again, and he contacted the doctor and nurse, but they didn’t respond properly. Subsequently, when t