In the recent judgement by the Calcutta High Court in the Case: Dr.Sudhir Kumar Thaku V. The State of West Bengal & Ors. C.R.R No. 1027 of 2013, has observed while refusing to interfere with Trial court order stopping criminal proceedings against Doctors. The complainant had approached the Trial Court alleging that his brother died due to medical negligence of doctors and nurse of a Hospital. The Trial court invoking section 258 of the Code of Criminal Procedure had stopped the proceedings against Doctors.
The complainant approached High Court challenging it. The Court observed: “The Court may invoke under Section 258 of Cr.P.C. in a case where the allegations against the accused even accepting them as true, do not constitute offence or on being satisfied that there exists serious defects in the prosecution case which go to the root the matter, thereby rendering further proceedings rather impossible or futile. The power to stop proceedings at any stage has to be sparingly used that too in an extremely exceptional cases.”
The Court referring to various Apex Court decisions said: “If during a surgical operation hands of a surgeon begins to tremoring due to apprehension of medical negligence and that ‘Sword of Damocles’ is on his neck, he cannot render his best to carry on life saving scalpel to perform an essential surgery. In case of administering treatment with medicine, if two views are accepted by medical science, and if he applies one of them instead of using other drug and due to his such choice if the patient dies, should the doctor be penalized? In my humble view, Section 304A of Indian Penal Code although does not bear the word ‘Gross’, but while dealing with such case Court must consider it, as ‘Gross’. It must be the causa causans otherwise doctor concerned would always be under the dangling fair of facing a prosecution and to refuse to treat the patient by referring the patient to some other hospital/nursing home, clinic, which eventually would lead to disservice to the society. Court should not encourage this approach.”
The Court, upholding the discharging of Doctors by Trial court held there is no merit in this application under Section 401, 482 of the Cr.P.C. read with Article 227 of the Constitution of India so far as the accused doctors are concerned. But there is apparent gross negligence on the part of the attending nurse of the victim, therefore, she cannot be discharged at this stage.
Hence, the Courts should not encourage indiscriminate prosecution of medical professional of medical negligence as it is counterproductive
SOURCE: INBA TV