Sanjeev Sirohi
Published on: 27 December 2022 at 20:25 IST
While leaving not even an iota of doubt, the Jammu and Kashmir and Ladakh High Court has in a most learned, laudable, landmark and latest judgment titled Poonam Sharma and others V/s State of J&K and others in OWP No. 214/2015 and cited in 2022 LiveLaw (JKL) 268 that was pronounced as recently as on December 26, 2022 while answering a question as to how the negligence of a professional doctor is to be gauged, maintained that only experts can certify negligence on the part of the doctor.
It must be noted that these observations came from Hon’ble Mr Justice Wasim Sadiq Nargal who while dismissing a petition seeking direction to the respondents to pay compensation to the tune of Rs 20 lakh for the death of her husband who had died due to the negligence of doctors, registration of case for criminal negligence.
We also must note that while adjudicating upon the matter, Justice Nargal had observed explicitly that only experts can certify whether there was any negligence on part of the doctor or not and it is apparent from enquiry reports conducted by the experts in the field that there was no negligence on part of respondent while treating the deceased.
At the very outset, this brief, brilliant and balanced judgment authored by the Single Judge Bench of Hon’ble Mr Justice Wasim Sadiq Nargal sets the ball in motion by first and foremost putting forth in para 1 that, “Through the medium of present writ petition, the petitioners besides seeking direction to the respondents to pay compensation to the tune of Rs.20.00 lacs to them against the death of Sh. Jai Kumar S/o Rajinder Parkash, who died due to negligence of respondent No.8, seek issuance of a writ of mandamus directing respondent Nos. 4 to 7 to register a case and investigate the matter and arrest respondent No.8 for his criminal negligence causing death of deceased Jai Kumar.”
To put things in perspective, the Bench then envisages in para 2 that, “The facts leading to the filing of present petition, as projected by the petitioners in the writ petition, are that the husband of petitioner No.1, father of petitioner No.2 and son of petitioner Nos. 3 and 4, namely Jai Kumar was detected with Gallbladder stone and was admitted to Government Hospital Sarwal on 09.01.2013. On 10th January, 2013, said Jai Kumar was operated upon for removal of stone by laser procedure by respondent No.8, who was then posted as Consultant Surgery in Sub District Government Hospital, Sarwal. According to the petitioners, while conducting surgery, respondent No.8 cut the CBD (Common bile duct) of the deceased Jai Kumar, which was not required. This resulted in serious problem to said Jai Kumar.
On 19.01.2013, said Jai Kumar was referred by respondent No.8 to Medical College Hospital, Jammu where he was admitted in Emergency. During hospitalization in Government Medical College, Jammu, said Jai Kumar remained under the treatment of Dr. Sanjay Gupta and various tests were conducted. On 22.01.2013, deceased Jai Kumar was discharged from Government Medical College, Jammu and as per the petitioners, Dr. Sanjay Gupta, who was attending the deceased, advised to go to a private Nursing Home being run by Dr. Anil Singh at Pathankot on the pretext that the laparoscopic system in the Government Medical College was not functioning properly.”
Wile continuing in the same vein, the Bench then observes in para 3 that, “The deceased was taken home and the family members of the deceased consulted Dr. Manoj, who was posted in Government Hospital at Gandhi Nagar, Jammu, who advised to get the said Jai Kumar admitted in Government Hospital, Gandhi Nagar, Jammu for further tests and treatment. Said Jai kumar remained admitted in Government Hospital, Gandhi Nagar w.e.f. 23.01.2013 to 11.02.2013 and thereafter discharged from hospital.
On 14.02.2013, said Jai Kumar died at home. According to the petitioners, deceased Jai Kumar died because of criminal negligence of respondent No.8 and accordingly, the matter was reported to Police but no action was taken. Thereafter a complaint was filed before the learned Chief Judicial Magistrate, Jammu, who directed the Station House Officer, Police Station, Bakshi Nagar to investigate the matter in light of the guidelines laid down in AIR 2005 SC 3180. Thereafter an application came to be filed before the Chief Judicial Magistrate, Jammu seeking a direction to the SHO to file status report.
Even application for initiating contempt proceedings against the SHO was filed but all in vain. All this compelled the petitioners to approach this Court to seek necessary action against respondent No.8 as also to seek a direction to the respondents to pay compensation to the petitioners for losing bread earner of their life due to the negligence of respondent No.8, who was working under the control of Government of J&K.”
Be it noted, the Bench notes in para 8 that, “In order to ascertain whether there was any medical negligence on the part of respondent No.8 during treatment/operation of Sh. Jai Kumar on 10.01.2013 in Govt. Hospital Sarwal, Jammu, an Inquiry Committee comprising of Dr. Ramesh Gupta, Medical Superintendent, Govt. Hospital Gandhi Nagar, Jammu (chairman), Dr. Anoop Singh Manhas, State Veneriologist, DHS, Jammu (Member) and Dr. Rakesh Gupta, Consultant Govt. Hospital, Gandhi Nagar, Jammu (member) was constituted by respondent No.2 vide order dated 16.02.2013.
The Inquiry Committee submitted its report on 09.03.2013. The Inquiry Committee while giving complete history of the case, opined that the patient was managed as per the standard protocol and no negligence on the part of the treating doctor was found by them.
Another enquiry conducted by the Special Medical Board constituted to ascertain the cause of death of deceased Jai Kumar revealed that “the patient was discharged from Gandhi Nagar Hospital on 11.02.2013 when he was haemodynamically stable, tolerating orally, a febrile, passing flauts and stools which shows his bowels were functioning normally.
After 11.02.2013 no record was available and also no post-mortem has been conducted, so it is difficult to ascertain the reason for cause of death of the deceased.”
It would be worthwhile to mention that the Bench then while citing the relevant case law states in para 15 that, “The Supreme Court in the case of Martina F. D Souza v. Mohd. Ishfaq, (2009) 3 SCC 1, noticed the aforesaid guidelines with approval. Para 29 of the judgment is relevant and is reproduced as under:-
“29. Before dealing with these principles two things have to be kept in mind : (1) Judges are not experts in medical science, rather they are lay men. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence.
Moreover, Judges have usually to rely on testimonies of other doctors which may not necessarily in all cases be objective, since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence.
The testimony may also be difficult to understand, particularly in complicated medical matters, for a layman in medical matters like a Judge; and (2) A balance has to be struck in such cases.
While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counterproductive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation.””
Most significantly, the Bench then minces no words to hold succinctly in para 16 that, “It is apparent that after considering and appreciating the two inquiry reports, this Court has allowed the petition filed by respondent No.8 challenging the FIR No.60/2017 and further proceedings emanating therefrom.
It is settled proposition of law that only experts can certify whether there was any negligence on part of the doctor or not and it is apparent from enquiry reports conducted by the experts in the field that there was no negligence on part of respondent No.8 while treating the deceased-Jai Kumar. Since the experts have found no negligence on part of respondent No.8, no further enquiry or investigation is required in the matter. Furthermore, the FIR lodged against respondent No.8, too, stands quashed along with proceedings emanating therefrom.”
Most forthrightly, the Bench then hastens to add in para 17 stating that, “The claim of the petitioners, when considered in the light of the two inquiry reports submitted by the expert bodies, merits rejection as the two expert bodies have exonerated the respondent No.8 and no negligence on his part was found. Even the FIR registered against respondent No.8 stands quashed. When negligence of respondent No.8 was not proved and he was given clean chit by the experts in the field, question of compensation on account of alleged negligence on part of respondent No.8 does not arise.”
Finally, the Bench then concludes by aptly holding in para 18 that, “For all what has been stated above, the writ petition is found to be devoid of any merit, hence dismissed along with connected applications.”
In conclusion, we thus see that the Jammu and Kashmir and Ladakh High Court has made it indubitably clear what is the settled legal position also that medical negligence can only be gauged by field experts. Therefore, it merits no reiteration that all the courts also must definitely pay heed to what has been laid down so very clearly in this leading case and deliver judgments accordingly. No denying it!
Sanjeev Sirohi, Advocate