The Jammu & Kashmir and Ladakh High Court has held that only experts can certify whether there was any negligence on part of the doctor or not.

The High Court was answering a question as to how and by which principle, negligence of a professional doctor is to be decided and hold him liable for his medical acts/advice.

A Bench of Justice Wasim Sadiq Nargal rejected the petition on the ground that since the experts have found no negligence on part of the doctor, no further enquiry or investigation may be ordered.

In this case, the family members of the deceased approached the High Court seeking compensation of Rs.20 lacs and sought registration/investigation of a criminal case alleging death owing to medical negligence.

The deceased was detected with Gallbladder stone and was operated upon for removal of the stone by laser procedure. During surgery, the common bile duct was cut, resulting in serious problems which according to the family members of the deceased were not required.

During hospitalization at Government Medical College, Jammu, one doctor who was attending the deceased, advised going to a private Nursing Home at Pathankot on the pretext that the laparoscopic system in the Government Medical College was not functioning properly. The patient Jai Kumar died at home.

The family members of the deceased alleged medical criminal negligence and reported the matter to Police but no action was taken. Thereafter, a complaint was filed before the Chief Judicial Magistrate, Jammu, who directed the concerned Station House Officer to investigate the matter in light of the guidelines laid down by the Supreme Court.

Further, an application came to be filed before the Chief Judicial Magistrate seeking a direction to the SHO to file a status report. Even an application for initiating contempt proceedings against the SHO was filed but all in vain.

In 2013, an Inquiry Committee was constituted to conduct an independent enquiry into alleged negligence during the operation and subsequent death of the deceased Jai Kumar. The Committee opined that no negligence seems to have been done as the doctor has taken due pre-operative and post-operative case and followed the standard protocols of treatment for saving the life of the patient.

Besides the Inquiry Committee, a Special Medical Board of expert doctors was also constituted for giving opinion to ascertain the reasons for the cause of death of deceased Jai Kumar and reported that "there was no negligence" and "since no post-mortem/autopsy was done, so it is difficult to ascertain the reason for the cause of death of Jai Kumar, who died at home".

The ratio laid down by the Supreme Court was relied upon by the High Court. The Apex Court has held that to prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.

"The claim of the petitioners, merits rejection as the two expert bodies have exonerated the doctor and no negligence on his part was found", the High Court said.

The High Court after considering and appreciating the two inquiry reports ordered that "the FIR lodged against the doctor, stands quashed along with proceedings emanating therefrom".

The High Court observed that when the negligence of the doctor was not proved and he was given a clean chit by the experts in the field, the question of compensation on account of alleged negligence does not arise and the writ petition was dismissed by the Court.

Cause Title- Poonam Sharma and others v. State of J&K and others

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