Medical negligence: Kerala HC issues draft guidelines to ensure fair hearing for doctors

Kochi: The Kerala High Court has issued an interim order outlining draft guidelines to guarantee fair treatment for doctors accused of medical negligence. Justice VG Arun framed a 12-point draft guideline and asked the Additional Director General of Prosecution to place it before the state government for immediate action.

Key provisions of the draft guidelines include:

1. Investigating Officers must promptly collect all initial medical records, including doctors’ notes, duty rosters, consent forms, test results, and discharge summaries.
2. The concerned authority should be informed without delay, and an Expert Panel convened immediately.
3. Each district in Kerala must maintain a speciality-wise list of practitioners trained to handle such complaints.
4. The Expert Panel must always include a doctor from the relevant speciality.
5. Proceedings must conclude within 30 days, with both the complainant and the accused doctor allowed to submit written representations.
6. If prima facie gross negligence is found, the doctor must be given a chance to explain the treatment or procedure adopted.
7. The Panel’s report must reflect the individual opinions of its members, with conclusions reached by consensus.
8. Reports should specifically determine whether gross negligence or recklessness caused the patient’s death, and identify the responsible individuals.
9. The Bolam test must be applied consistently in assessing negligence, with reasoning clearly documented.
10. A copy of the report should be given to the concerned doctor(s); if no negligence is found, it should also be furnished to the complainant.
11. Both the doctor and the complainant should have a right to appeal against the Panel’s findings.
12. Clear timelines must be set for filing appeals and for decisions by the State Level Apex Expert Committee. Investigating Officers may file the final report only after appeals are resolved.

The Court was hearing two cases involving doctors booked under Section 304A IPC (causing death by negligence):

In one case, a doctor treating a man with a chest wound was accused of not referring the patient to a cardiothoracic surgeon.

In the other, a gynaecologist was blamed for the death of a new mother post-caesarean. Although she advised transfer to another hospital, the family delayed it. The Panel noted no direct negligence but suggested earlier referral could have saved the patient.

The Court observed that existing government circulars had not fully incorporated the Supreme Court’s principles on ensuring doctors a fair hearing in such cases. It held that Kerala must formally frame rules for Expert Panels and Apex Committees.

Since appeals against the Expert Panel reports were pending, the Court stayed further proceedings for three months and directed the ADGP to instruct the Apex Expert Committee to decide the appeals within two months and submit the outcome to the Court.
(With Live Law inputs)