Kerala High Court | Criminal Prosecution of Doctors Requires Proof of ‘Gross Negligence’ Under S.304A IPC | Draft Guidelines Issued for Expert Panels to Ensure Fair Hearing
Safiya Malik
The High Court of Kerala Single Bench of Justice V.G. Arun held that further proceedings in criminal prosecutions against two medical practitioners for alleged negligence under Section 304A of the Indian Penal Code shall remain stayed for three months. The Court directed that the State Level Apex Expert Committee in Medical Negligence Cases must decide pending appeals filed by the accused doctors within two months. It further drafted and proposed guidelines to the Government of Kerala for the proper constitution and functioning of Expert Panels and Apex Committees in medical negligence matters.
The matter concerned two petitions filed by a medical practitioner facing prosecution under Section 304A of the Indian Penal Code, which penalises causing death by negligence. The first petition related to C.C.No.52 of 2025 on the files of the Judicial First Class Magistrate Court, Kunnamkulam, arising out of Crime No.485 of 2024 registered at Peramangalam Police Station. The petitioner, a surgeon, was accused of negligence in the treatment of a patient, Vinod P.V, who had been admitted to Amala Medical College on 12 July 2023 with a lacerated chest wound. Initially, both Vinod and his wife described the injury as accidental. Vinod succumbed to his injuries at 1:50 a.m. on 14 July 2023. A subsequent postmortem suggested that collected blood had not been removed from his chest cavity. The District Medical Board later opined that negligence occurred, as no tube thoracostomy was performed despite radiological indications.
The petitioner contended that Vinod was suffering from alcohol withdrawal-induced delirium and aggressive behaviour, making tube insertion dangerous. According to the petitioner, hemothoraces with moderate pooling of blood could be managed without immediate surgical intervention. The petitioner argued that he had acted in accordance with accepted medical practice and that his decision was a matter of professional judgment rather than criminal negligence.
The second petition related to C.C.No.2316 of 2017 on the files of the Judicial First Class Magistrate Court, Adoor, arising from Crime No.784 of 2010 registered at Pandalam Police Station. The petitioner, an Obstetrician and Gynaecologist, had performed a cesarean section on a patient named Bindu Sajeev on 26 July 2010. Post-surgery, she developed a massive retroperitoneal hematoma. Despite advice for referral to a higher centre, the patient was shifted to Kottayam Medical College only in the morning of 27 July 2010, where she died en route. An Expert Panel reported that although no act of commission could be attributed to the treating doctor, negligence occurred due to the delay in referral and lack of timely surgical intervention.
The petitioner argued that he had advised referral as early as midnight and repeated the advice at 4:10 a.m., but the patient’s relatives delayed shifting her. He contended that the Expert Panel’s adverse conclusion was unjustified, particularly as no opportunity of hearing or copy of the report had been given to him before prosecution.
The court recorded arguments presented by the petitioners’ counsel, including references to precedents such as Jacob Mathew v. State of Punjab, John Oni Akerele v. The King, Bolam v. Friern Hospital Management Committee, Hucks v. Cole, and Hunter v. Hanley. The petitioners submitted that criminal liability under Section 304A arises only from gross negligence and that errors of judgment or simple negligence cannot constitute a criminal offence.
The learned Additional Director General of Prosecution (ADGP), Senior Advocate Gracious Kuriakose, stated that Expert Panels should provide doctors an opportunity to explain their treatment decisions and that furnishing a copy of the report and awaiting the outcome of any appeal would ensure fairness. The Kerala State Medical Council’s recommendations and a letter from the National Medical Commission’s Ethics and Medical Registration Board were also placed before the court, both stating procedural safeguards and clear standards.
Impleading petitions were also filed by a practising doctor and the Medico-Legal Society of India, which were considered. An amicus curiae, Advocate Akash S., was appointed and presented a detailed study with suggestions for guidelines.
Justice V.G. Arun recorded that the judicial principles governing medical negligence. Referring to Halsbury’s Laws of England, the judgment quoted: “The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires.”
The court cited the Bolam test: “The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”
The court discussed the Code for Crown Prosecutors in the United Kingdom, which requires gross negligence for criminal liability. It quoted from R. v. Adomako as referred in D. Suresh Gupta v. Govt. of NCT of Delhi: “A doctor cannot be held criminally responsible for patient’s death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State.”
The judgment noted that in Jacob Mathew, the Supreme Court held: “Negligence in the context of the medical profession necessarily calls for a treatment with a difference… So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available.”
It further quoted: “For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.”
The judgment observed that undue reliance on Expert Panel reports without hearing the doctors caused prejudice: “Undue reliance placed on the report of the Expert Panel by trial courts is causing substantial prejudice, as it is difficult to dislodge the credibility being attached to the report, even by examining other experts.”
Referring to Lalita Kumari v. Government of Uttar Pradesh, the judgment stated: “Medical negligence cases fall within the category of cases where preliminary inquiry may be made before registering a crime.” The court further noted that Kerala’s circulars did not mandate an opportunity of hearing for doctors, unlike Karnataka’s Standing Order No.1018, which requires written explanations and personal hearings if requested.
The court also referred to the National Medical Commission’s recommendations, which provided a structured multi-tiered process involving District and State Medical Boards, mandatory timelines, inclusion of specialists, and safeguards against arbitrary arrest.
Based on the case records and submissions, the High Court directed the Government of Kerala to immediately formulate guidelines for the constitution and functioning of Expert Panels and State Level Apex Committees in medical negligence cases. The draft guidelines were reproduced in the order, and the Court specified that these guidelines should be adopted or referred to by the Government for future proceedings. The draft required Investigating Officers, upon receipt of a complaint alleging medical negligence, to secure all relevant medical records, including doctors’ notes, nurses’ diaries, duty rosters, shift reports, assessment forms, consent forms, medical and diagnostic reports, referral and cross consultation records, treatment notes, and discharge summaries. The Investigating Officer was required to intimate the authority concerned and request immediate convening of an Expert Panel.
The guidelines further required that each district maintain a list of practitioners by specialty, with sensitisation regarding medical negligence inquiries. The Expert Panel was to include a doctor from the relevant specialty and conclude its proceedings within thirty days of constitution. Notices were to be issued to the medical practitioner as well as to the complainant, permitting both sides to submit written representations. In cases where the Panel found prima facie material suggesting gross negligence, the medical practitioner was to be called upon to appear in person and offer his explanation regarding the treatment provided.
The Court directed that reports of the Expert Panel should contain the individual opinion of each expert, with the final conclusion based on consensus. The report must specifically address whether gross negligence or recklessness leading to loss of life could be attributed to the medical practitioner and identify the individual doctors responsible. The reasoning must be explicit and the Bolam test applied consistently. A reporting template was to be developed for uniformity. Copies of the report were to be served on both the medical practitioners affected and the complainants.
The directives further stated: “The right to appeal against the finding of the Expert Panel should be provided to the medical practitioner as well as the de facto complainant. Time limit should be stipulated for filing the appeal and for the State Level Apex Expert Committee to decide the appeal. If the appeal is filed within the time stipulated, the Investigating Officer shall file final report only after the appeal is decided.”
The Court then ordered: “As the final reports in the Crl.M.Cs under consideration were filed before deciding the appeals filed by the petitioners, further proceedings in the Calender Cases shall stand stayed for a period of three months. The learned ADGP shall instruct the State Level Apex Expert Committee to decide the appeals filed by the petitioners within two months and make available those decisions to this Court.” The case was directed to be listed for further consideration on 30 September 2025
Advocates Representing the Parties
For the Petitioners: M/s. V. John Sebastian Ralph, Vishnu Chandran, Ralph Reti John, Giridhar Krishna Kumar, Geethu T.A., Mary Greeshma, Liz Johny, and Krishnapriya Sreekumar, Advocates.
For the Respondents: M/s. A. Ajit Joy and Panchami Menon, Advocates
Case Title: Dr. Mohamed Rizwan T v. State of Kerala & Others
Case Number: Crl.M.C.Nos.3414 and 4729 of 2025
Bench: Justice V.G. Arun
