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Medical professional can’t be prosecuted without ‘gross’ negligence: Bombay HC

An FIR was registered against Jaju for alleged negligence leading to the death of a woman in July 2014. It was alleged that during the surgical procedure, proper care was not taken and the victim died due to excessive bleeding.

Written by Omkar Gokhale | Mumbai |
April 15, 2021 8:40:54 pm
Mumbai: Medical professional can’t be prosecuted without ‘gross’ negligence, says HCDisposing of the plea, the bench held, “We are of the opinion that the applicant has not committed gross negligence while providing treatment to the victim." (File Photo)

The Nagpur bench of the Bombay High Court recently reiterated the principle laid down by the Supreme Court that a medical professional cannot be prosecuted in a criminal proceeding without there being “gross” negligence and mere “error of judgement” by the doctor is not sufficient to prove criminal liability.

Observing this, the court set aside a chargesheet and criminal proceedings pursuant to an FIR for causing death by negligence registered against a doctor from Washim district, alleging that a woman died in 2014 while he operated her for curating and removing incomplete abortion.

A division bench of Justice Z A Haq and Justice Amit B Borkar last month passed an order on an criminal application filed by Dr Bhagirath Bansilal Jaju (65) through advocate Ashish Chavan, challenging the chargesheet and proceedings pending before the magistrate, arising out of an FIR filed against him under Section 304-A (Causing death by negligence) of the IPC in 2014.

The FIR was registered against Jaju for alleged negligence leading to the death of a woman in July 2014. It was alleged that during the surgical procedure, proper care was not taken and the victim died due to excessive bleeding.

The report of the civil surgeon of Washim said that curating was done to save the life of the victim and the applicant had not neglected the patient as the cause of death was due to haemorrhagic shock.

Moreover, the Inspection Committee of five medical experts opined that the treatment given to the victim by the applicant was adequate and proper.

The applicant, through advocate Chavan, stated that he is registered under the Medical Termination of Pregnancy Act and cause of death of the woman was in consonance with the condition in which she was admitted to the hospital.

After hearing submissions, referring to the 2005 Supreme Court judgment in the Jacob Mathew vs State of Punjab case, the bench noted, “To attract the criminal liability, it was necessary on the part of the prosecution to bring on record the material of such nature which proves gross negligence on the part of the applicant. Mere error of judgment is not sufficient to attract criminal liability.”

The court observed, “There is no allegation against the applicant that the applicant has done something, which the medical professional in the ordinary senses has not done and or failed to do. We are satisfied that the ingredients of offence punishable under Section 304-A of the Indian Penal Code are not fulfilled in the present case.”

Disposing of the plea, the bench held, “We are of the opinion that the applicant has not committed gross negligence while providing treatment to the victim. Therefore, we find that the continuation of the proceedings against the applicant would amount to abuse of process of court.”

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