Justice V.G. Arun, Kerala High Court
Expert Panel Report Must Contain Individual Opinion: Kerala High Court Issues Guidelines For Medical Negligence Cases
|A medical practitioner had approached the Court who was an accused for the offence under Section 304A of the IPC.
The Kerala High Court has issued certain guidelines for the cases involving medical negligence and for the constitution and functioning of the Expert Panel as well as the Apex Committee.
A medical practitioner had approached the Court who was an accused for the offence under Section 304A of the Indian Penal Code, 1860 (IPC).
A Single Bench of Justice V.G. Arun observed, “The precedents, the circulars issued by the Government of Kerala and the Governments of other States and the suggestions/submissions of the learned counsel on both sides leaves no room for doubt that the Government of Kerala should formulate guidelines for the constitution and functioning of the Expert Panel as well as the Apex Committee.”
Advocates John S. Ralph and C.R. Sanish appeared for the Petitioner while Senior Advocate and AGP Gracious Kuriakose appeared for the Respondents. Advocate Akash S. was appointed as the Amicus Curiae.
Factual Background
In 2023, a person was admitted at the Amala Medical College with a lacerated wound on his chest. The wife of the injured, who had accompanied him, stated that the wound was the result of a drunken accident, when the injured slipped and fell on a sharp piece of wood. The patient, who was conscious and speaking coherently, supported his wife's version. The wife also informed that the patient was initially taken to the Government Hospital and from there he was referred to the Medical College. Instead of following the advice, the patient was taken to the ESI Hospital and referred to the Amala Medical College. While undergoing treatment over there, the patient succumbed to death. In the postmortem, it was observed that despite decrease in oxygen saturation and moderate fluid collection with collapse of underlying lung, there was no evidence of any active intervention performed to remove the collected blood.
Thereafter, a crime was registered against his wife, as it came to light that the deceased had sustained injury on being stabbed by his wife. A few days later, it was informed by the police to the Petitioner and the Medical Superintendent about the possibility of medical negligence aspect being investigated based on the opinion expressed by the Forensic Surgeon. The Petitioner was the Surgeon in the team of doctors that had examined and treated the deceased. More than a year later, he was summoned to the office of the Assistant Commissioner of Police (ACP) and informed that the District Medical Board in its meeting opined that, there had occurred negligence in treating the patient. Hence, cognizance was taken by the jurisdictional Magistrate and in the meanwhile, the Petitioner filed an Appeal challenging the Expert Panel’s report before the State Level Apex Expert Committee in Medical Negligence Cases. Assailing the registration of crime, he was before the High Court.
Court’s Observations
The High Court in the above regard, noted, “The question here is whether the circulars issued by the Government of Kerala are consistent with the decisions above and provides fair opportunity to the doctor against whom the allegation is raised. As rightly pointed out by the learned amicus curiae, even though the Government of Kerala has issued a series of circulars starting from 1989 onwards to deal with the investigation of cases where medical practitioners are accused of negligence, constitution of Expert Panels and Apex Body and the timelines for completing the proceedings, none of those circulars stipulates the grant of opportunity of hearing to the medical practitioner.”
The Court added that a perusal of similar circulars issued by other States revealed that the Government of Karnataka, as per its Standing Order on the subject Standard Operating Procedure (SoP) to deal with violence against medical professionals and medical establishments, has made it mandatory for the expert body to give opportunity to the doctor, against whom negligence is alleged, to submit his reply/explanation in writing and to provide an opportunity for personal hearing, if the doctor so desires.
Guidelines
The Court, therefore, provided the below draft of the guidelines which the Government may adopt or refer to for guidance –
1. Upon receipt of a complaint alleging medical negligence, the Investigating Officer should act swiftly and secure the initial set of documents like doctor’s notes, nurses’ diary, duty roster, shift reports, attendance sheets, assessment forms, consent forms, medical reports, diagnostic reports, lab results, referral or cross consultation records, treatment notes, discharge summaries etc.
2. The Investigating Officer shall then intimate the authority concerned about the complaint and request to convene the Expert Panel meeting immediately.
3. A list of practitioners, by specialty, should be maintained in each district and those persons sensitized about the manner in which complaints of medical negligence are to be dealt with. A Doctor from the concerned specialty shall be included in each Expert Panel.
4. The Expert Panel shall conclude its proceedings within 30 days of its constitution.
5. The medical practitioner and the de facto complainant shall be issued with notice and permitted to submit written representations to the Expert Panel.
6. In cases where the Expert Panel finds prima facie material indicating gross negligence, the medical practitioner should be called upon to appear in person and offer his explanation regarding the procedure adopted/ treatment provided.
7. The report of the Expert Panel should contain the individual opinion of each expert. The final conclusion of the Panel should be based on consensus.
8. The report should directly address the issue whether gross negligence or recklessness, leading to loss of life, can be attributed to the medical practitioner and specify which individual(s), from among the team of doctors, is guilty of gross negligence or recklessness and the reasons for reaching such conclusion.
9. The Expert Panel should apply a clear and consistent test for determining criminal negligence with reference to the Bolam test. The reasoning of the panel must be reflected explicitly in the report. A reporting template may be developed for use by the Expert Panels.
10. A copy of the report should be served on the medical practitioners affected by the report. In cases where the Expert Panel finds no negligence, on the part of the doctors, a copy of the report should be furnished to the de facto complainant.
11. The right to Appeal against the finding of the Expert Panel should be provided to the medical practitioner as well as the de facto complainant.
12. Time limit should be stipulated for filing the Appeal and for the State Level Apex Expert Committee to decide the Appeal. If the Appeal is filed within the time stipulated, the Investigating Officer shall file final report only after the Appeal is decided.
The Court requested the ADGP to place the above draft guidelines before the Government for immediate further action.
Accordingly, the High Court stayed the further proceedings for three months and listed the case on September 30, 2025.
Cause Title- Dr. Mohamed Rizwan T. v. State of Kerala & Ors. (Case Number: CRL.MC NO. 3414 OF 2025)