Ethics section of National Medical Commission (NMC), highest medical regulatory authority in India, sent a letter this week to the Ministry of Health and PBT recommending new guidelines for arrest of a doctor under Indian Penal Code (IPC) section 304A (“criminal negligence”). The Apex Court passed a historic judgment in 2005 in Jacob Mathews v. State of Punjab holding that a doctor may be arrested and charged for “criminal negligence” causing death of patient following Bolam’s law but only after the police and investigating agency obtain certificate from doctors in governing hospital supporting the case for negligence. However, Apex Court expressed this opinion only as a temporary measure until NMC (then MCI) is able to frame specific guidelines for “criminal negligence”. Unfortunately, while Jacob Mathews (Supra.) judgment was related only to “criminal negligence”, this judgment has been grossly and widely misused and abused as civil courts and consumer courts across India have been regularly dismissing cases of “medical negligence” citing Jacob Mathews judgment that has absolutely no application in tort cases for medical negligence.
PBT was also a party in the (in)famous Jacob Mathews (Supra.) case in 2005s and earlier this year, PBT sent a legal notice to NMC demanding framing of specific guidelines for criminal negligence and arrest of a doctor in accordance to the Apex Court’s order 16 years ago. PBT also said that unless NMC frames the guidelines for criminal negligence to charge a doctor under IPC 304A, a “contempt of Supreme Court” case would be brought against the NMC. In response, NMC has now recommended guidelines for “criminal negligence” by an errant doctor. While some of these recommendations may have useful purpose, such as that a District or State Medical Board must investigate when a case of alleged “criminal negligence” is referred to them based on which charges under iPC Section 304A may be brought against a doctor, the guidelines are still grossly non-transparent (as no specific about how the members of Medical Board would be chosen) and no indication whether any non-medical person would be part of the State or District Medical Board. The letter from NMC including the full recommended guidelines is attached below.