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Jharkhand High Court : Protest petition abuse of law when finding of expert committee in medical negligence is in favor of doctor

Ranchi : The Jharkhand High Court bench of Justice Sanjay Kumar Dwivedi quashed protest petition filed by the kin of the patient against the doctor as the finding of expert committee in medical negligence was in favor of doctor. Terming the protest petition as abuse of law the court set aside the entire criminal proceedings under sec 304A of the IPC against the doctor accused of medical negligence. A protest petition is filed by a complainantif the complainant is not satisfied with the police report filed before the concerned court. The complainant may move a petition against the negative report of the police which is called the protest petition.

The case relates to the hernia operation of the complainant father at Surya Nursing Home at Sahibganj by Dr. Vijay Kumar. The operation was performed in 30 minutes successfully and the patient was shifted to the ward where the patients relative waited for him to become conscious. After an hour the complainant saw that the veins of his father has stopped and called the doctor. The doctor attended the patient immediately and went away to his room and sent a message to the complainant stating that his father has passed away. Aggrieved by the sudden demise of his father the complainant along with a mob attacked the nursing home and ransacked the nursing home and assaulted the staff. An FIR was lodged by the manager of nursing home against five named accused and 100 to 150 unknown persons.

The complainant also filed a complaint with National Human Rights Commission and National Minority Commission and an expert committee headed by Dr Pradee Basky M.S. (General Surgery) was formed to probe into the medical negligence aspect. The committee after detail enquiry concluded that there was no technical evidence to hold that patient died due to negligence while conducting Hernia operation. Aggrieved by the clean chit given to the doctor by the expert committee the complainant filed a protest petition and the Chief Judicial Magistrate, Sahibganj took cognizance on the protest petition under section 304-A/34 of the IPC against the doctor.

The Jharkhand High Court bench after perusing the records concluded “Unnecessarily abonafide action of any doctor may not be subject matter of civil wrong as well as criminal wrong and in that aspect it has been directed by the Supreme Court that the case will be proceeded against the doctors after taking expert opinion andthe case in hand expert report was there which is contained in annexure-9 andthereafter final form was submitted. In that view of the matter the Court finds thatproceeding further on the protest petition when the finding of the expertcommittee is in favor of the petitioner amounts to abuse of process of law.” In view of the aforesaid facts, reasons and analysis, the entire criminal proceeding against the doctor was set aside.