Kerala High Court Calls for Protection of Nurses from Malicious Medical Negligence Cases, Says They Deserve Moral Support

The petitioner, a nurse, approached the High Court to quash the medical negligence case filed against her as the sole defendant under Section 304A of the IPC.

Apex Court Jacob Mathew / Province of Punjab and Others (2005) laid down guidelines governing the prosecution of doctors for the offense of criminal negligence punishable under Section 304A of the IPC.

Justice PVKunhikrishnan He therefore urged the state government to issue a circular within three months in line with the Apex Court judgment in Jacob Mathew (supra) to protect nurses from malicious prosecutions.

“I am of the opinion that nurses in government service and private hospitals should also be protected like doctors if an investigation is initiated under Section 304A of IPC for alleged medical negligence. The Government should issue necessary orders/circular in line with Jacob Mathew’s case (supra) to ensure that nurses in Government service and private hospitals are protected from malicious and frivolous prosecutions. A private complaint alleging medical negligence against a nurse working in government services or private hospitals will not be entertained by the courts unless the complainant produces before the Court prima facie evidence in the form of a credible opinion given by another competent authority in support of medical negligence. “The nurse concerned is blamed for his haste or negligence.”

Background Facts

The second participant’s 10-year-old daughter was admitted to the hospital with complaints of diarrhea and vomiting. Her daughter was given medication and kept under observation. The child had a high fever and this was reported to the petitioner nurse. According to the second participant, the nurse reported that she could sponge the child’s body with a wet towel. He stated that when he contacted him again, the doctor and nurse did not respond immediately. It was stated that the nurse then took the child to the doctor and the child died.

Based on the complaint, the crime was registered and a final report was issued against the nurse solely for medical negligence.

Observations

The court noted that the plaintiff nurse was responsible for 30 to 40 patients at the same time. The court observed that the doctor did not immediately attend to the child as he stated that the child was fine after reviewing the blood reports. Additionally, the Court noted that when the child’s fever rose, the defendant instructed him to take the child to the doctor.

It was also seen that the father declared that he did not have any complaints against the petitioner nurse, who worked as a temporary/temporary staff member at the hospital. The father also alleged that a faulty investigation was conducted to spare those responsible for medical negligence.

Victim Based on the decisions in Hussain Mohamedali Rangawalla v. State of Maharashtra (1964), Ambalal D. Bhatt v. State of Gujarat (1972), the Court observed that for an offense to be committed under Section 304A of the IPC, death must be the result of an offence. is a rash and negligent act that should be the primary cause of death without the intervention of another person’s negligence.

The court stated that nurses spend more time with their patients than doctors and that an experienced nurse can work miracles for their patients. Expressing the Court’s appreciation for the nurses’ dedication and hard work in caring for their patients, the Court said:

“The dedication, hard work of the nursing community and the patient’s readiness to face any medical emergency day or night should be appreciated by the society. Nursing is not just a job, it is a calling. They are known as the backbone of the healthcare system. Nurses do not just care for patients, they also care for patients.”

Referring to Jacob Mathew (supra) and the notification issued by the state government (Circular No.73304/ssb3/2007/Home, dated 16.06.2008), the Court observed that nurses working in Government services and private hospitals should also receive protection for the same. Doctors if an investigation is initiated under Section 304A IPC for alleged medical negligence.

Relying on Jacob Mathew (supra), the court stated that;

1. Before making a specific complaint against a nurse, the investigating officer should obtain an independent and competent medical opinion from medical experts qualified in nursing, preferably in conjunction with a doctor.
2. Nurses should not be routinely arrested unless such arrest is unavoidable for further investigation or evidence collection, or unless they refuse to cooperate with the investigation.

Looking at the facts of the case, the Court observed that there was no evidence to establish a claim of medical negligence against the plaintiff nurse. Therefore, the Court annulled the case against the plaintiff nurse.

The court also directed the registry to forward this order to the Additional Chief Secretary of the Ministry of Home Affairs (MOH) Department and the Principal Secretary of the State government’s Health and Family Welfare Department for issuance of a circular to protect nurses from malicious prosecutions.

Petitioners’ Counsel: Attorney Betson P.Kunjappan

Counsel for the Participants: Senior Public Prosecutor Noushad KA, Advocates Sasi MR, NPSilpa, Kavya Krishnan, S.Sajit Sanal, Dharmya MS

Case Number: CRL.MC NO. 2018 5401

Case Title: Celinamol Mathew v. State of Kerala

Quote: 2024 LiveLaw (Ker) 673

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