Kerala High Court Calls For Protection Of Nurses From Malicious Medical Negligence Cases, Says They Deserve Moral Support

The petitioner, a nurse has approached the High Court to quash the medical negligence case alleged against her where she was made the sole accused under Section 304A of the IPC.

The Apex Court in Jacob Mathew v. State of Punjab & Another (2005) had laid down guidelines governing the prosecution of doctors for the offence of criminal negligence, punishable under Section 304A of IPC.

Justice P.V.Kunhikrishnan thus urged the state government to issue a circular within three months to protect nurses from malicious prosecutions in tune with the Apex Court judgment in Jacob Mathew (supra).

“I am of the considered opinion that the nurses in the Government service and in private hospitals should also get protection like the doctors, if a prosecution is initiated under Section 304A IPC alleging medical negligence. The Government should issue necessary orders/circular in tune with Jacob Mathew's case (supra) to see that the nurse in the Government service and in private hospitals are protected from malicious and frivolous prosecutions. A private complaint shall not be entertained by courts against a nurse in the Government service or in private hospitals alleging medical negligence, unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent authority to support the charge of rashness or negligence on the part of the nurse concerned.”

Background Facts

The second respondent's daughter aged 10 years was admitted to the hospital with diarrhea and vomiting. His daughter was given medication and admitted in the observation ward. The child showed a high fever and this was informed to the petitioner nurse. As per the second respondent, the nurse informed him that he can sponge the body of the child with a wet towel. He stated that the doctor and nurse did not respond immediately upon contacting them again. It is stated that subsequently the nurse took his child to the doctor and the child was declared dead.

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

Observations

The Court noted that the petitioner nurse was responsible for 30 to 40 patients at once. It observed that she did not attend to the child right away, as the doctor had indicated that the child was fine after reviewing the blood reports. Additionally, the Court noted that when the child's temperature rose, she instructed the respondent to take the child to the doctor.

It also observed that the father has also filed an affidavit stating that he has no grievance against the petitioner nurse who was working as a temporary/provisional staff in the hospital. The father also alleged that a flawed investigation was carried out to save persons responsible for the medical negligence.

Relying upon decisions in Kurban Hussain Mohamedali Rangawalla v State of Maharashtra (1964), Ambalal D. Bhatt v The State of Gujarat (1972), the Court observed that to attract an offence under Section 304A of the IPC, death should be the result of a rash and negligent act and that must be the primary cause of death without the intervention of another person's negligence.

The Court stated that nurses spent more time with their patients, as compared to doctors and that an experienced nurse can do miracles for their patients. Expressing the Court's appreciation for the devotion and hard work of nurses for caring their patients, the Court said,

“The devotion, hard work and readiness to face any medical emergency of the patient day and night by the nursing community is to be appreciated by the society. Nursing is not just a job, its a calling. They are known as the backbone of the health care system. Nurses don't just care for patients, they care about patients.”

Referring to Jacob Mathew (supra) and notification (Circular No.73304/ssb3/2007/Home dated 16.06.2008) issued by the State government, the Court observed that nurses in the Government service and in private hospitals should also get protection like the doctors, if a prosecution is initiated under Section 304A IPC alleging medical negligence.

Relying upon Jacob Mathew (supra), the Court stated;

1. investigating officer must get independent and competent medical opinion preferably from medical experts qualified in nursing with a doctor before proceeding with a private complaint against a nurse.
2. nurses must not be arrested routinely unless such arrest is inevitable for further investigation or collecting evidence, or if they refuse to cooperate with the investigation.

In the facts of the case, the Court observed that there are no materials against the petitioner nurse to allege medical negligence. As such, the Court quashed the proceedings against the petitioner nurse. 

The Court further directed the registry to send this order to the Additional Chief Secretary of the Home(SSB) Department and Principal Secretary of the Health and Family Welfare Department of the State government for issuance of the circular to protect nurses from malicious prosecutions.

Counsel for Petitioners: Advocate Betson P.Kunjappan

Counsel for Respondents: Senior Public Prosecutor Noushad K A, Advocates Sasi M.R., N.P.Silpa, Kavya Krishnan, S.Sajit Sanal, Dharmya M.S

Case Number: CRL.MC NO. 5401 OF 2018

Case Title: Celinamol Mathew v State of Kerala

Citation: 2024 LiveLaw (Ker) 680

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