MUHAMMAD IQBAL KALHORO, J.---- Petitioners are doctors and through these petitions have prayed for quashing of FIR No.78/2019 under sections 316, 319, 34, P.P.C. lodged against them at PS. Steel Town Karachi by Tanweer Abass alleging that on 14.02.201 9 he took his pregnant wife to Al-Hadeem Medical Complex, Gulshan-e- Hadeed, Karachi for medical checkup where she gave birth to a baby girl through a caesarian section conducted by petitioners Dr. Faria and Dr. Shoaib, which they claimed was successful and urgently needed. But on 15.02.2019 her condition got aggravated due to abdominal pain and swelling there. The said doctors recommended her second surgery but he having lost confidence on them took his wife to Liaqat National Hospital, Karachi, where petitioner Dr. Sheeraz-u-Rehman and Dr. Haleema Haslimi operated her on 16.02.2019 but thereafter she did not gain senses and died on 23.03.2019. Hence FIR.
2. Learned counsel for the petitioners have mainly argued that registration of FIR against the petitioners is against provisions of the Sindh Health Care Commission Act, 2013 (the Act); that as per section 29 thereof, criminal prosecution for negligence in providing healthcare services is not maintainable against the doctors and action, if any, for the same would be taken only under the Act. Learned counsel for petitioner Dr. Sheeraz-u-Rehman submitted that the matter was referred to the Sindh Healthcare Commission (the Commission) established under the Act in terms of an order of this court dated 09.04.2019 passed in Criminal Miscellaneous Application No.132/2019, which after an enquiry has exonerated him and other doctors of Liaqat National Hospital, Karachi from any negligence in providing treatme nt to complainant's wife. On behalf of remaining petitioners their counsel contended that complainant's grievance was referred to a Medical Board compr ising five senior doctors by the Secretary , Health Department which has reported that patient was managed adequately and as per routine in both the hospitals i.e. Al-Hadeed Medical Center and Liquat National Hospital, and that there is no negligence on the part of any of doctors. He further said that in presence of such a report FIR is incompetent and liable to be quashed. Lastly learned counsel in suppo rt of their arguments relied upon the case law reported in PLD 2019 Lah.
429, PLD 2018 Lah. 762, 2011 CLC 463 (Shifa International Hospitals Ltd.), 2017 CLC 1150, PLD 2018 Lah 903, 2016 MLD 1810 , 2017 YLR 669, 2017 PCr.LJ 192, PLD 2010 Karachi 134, PLD 2016 SC 581, AIR 2005 SC 3180 and AIR 2004 SC 4091.
3. On the other hand, learned counsel appearing for the complainant and learned DPG have opposed these petitions. Learned DPG has proposed that since report of the Commission has been received, I.O. may be directed to place the same before the trial court along the material collected in the invest igation for orders in accordance with law. Barrister Sadia Qureshi along with, Dr.Muhammad Amir Hussain, Director Complaint, made submissions on behalf of the Commission.
4. We have heard the parties and with their assistance have gone through the record and decisions relied upon by them. As the petitioners are claiming immunity from criminal prosecution, and have submitted that no action, except under the Act, related to provision of healt hcare services can be taken against them, we first proceed to examine its relevant provisions for appreciating their contention. The main purpose of the Act as per its preamble is to make provision for improvement, access, equity , and quality of healthcare service, to ban quackery in all its forms and manifestations and to provide for ancillary matters. In clause (xxii) of section 2, 'medical negligence' has been defined to mean a case where a patient sustains injury or dies as a result of improper treatment in a healthcare establishment and, in case of death, determined on the basis of an autopsy report.
Section 3 provides for establishment of the Commission and further defines that it shall be a body corporate having perpetual succession and a common seal with powers to enter into contract, sue and be sued by its name. It can exercise such powers as may be required to improve the quality of healthcare services and clinical governance and to ban quackery . For achieving such object, the Commission has been given authority under section 4 to perform several functions. In terms of subsection (6) thereof, it can investigate allegations of maladministration, malpractice or failure on the part of a healthcare service provider , or any employee of the healthcare service provider , notwithstandi ng anything contained in any other law, on a complaint by any aggrieved person, or by any aggrieved healthcare service provider , or on a reference by Government or the Provincial Assembly of Sindh, or on a motion of the Supreme Court of Pakistan or the High Court made during the course of any proceedings before it. And under subsection (7), It can proceed to examine a case of harassment to healthcare service provider , or damage to healthcare establishment property and, if need be, could refer such matter to the competent forum for further action.
5. As per sectionl9, a healthcare service provider may be held guilty of medical negligence on the findings that the healthcare establishment does not have the requisite human resources and equipment which it professes to have possessed; or he or any of his employ ee did not, in the given case, exercise with minimum service delivery standard prescribed by government competence the skill which he or his employee did possess. However , it has been clarified that recognized and known complications of a medical or surgical treatment are not considered as medical negligence.
6. Section 23 empowers the Commission to prescribe procedure for the investigation and details the process required to be followed for filing a complaint. Section 26 also seems relevant for current discussion as it reveals that where the circumstances of a case warrant action under any other law, the Commission may refer the matter to concerned government authorities or law enforcement agencies for appropriate action under relevant laws.
Protection to the Government, the Commission, etc. from liability of any suit or other legal proceedings for anything done in good faith in execution or purpo rted execution of the Act, rules or regula tions has been extended under section 27. Section 28 confers jurisdiction on "the Commission to adjudicate and impose fine up-to five hundred thousand rupees, keeping in view gravity of offence, but only after affording an adequate opportunity of hearing to a person to be fined. And in case the complaint is proved false, it could impose fine up-to two hundred thousand rupees upon the complainant.
7. Section 29 relied upon by the petitioners in support of their case reads that no suit, prosecution or other legal proceedings related to provision of, health care services shall lie against a healthcare service provider except under the Act. Section 30 is to the effect that no court other than the court of the District and Sessions Judge shall have jurisdiction to question validity of any action taken or to be taken under the Act; or grant an injunction or stay or to make any interim order in relation to any proceedings before, or anything done by, or under the orders or at the instance of the Commission. A right of appeal to be availed within 30 days before the District and Sessions Judge against refusal, etc. by the Commission to issue, renew , suspend or revoke a license; or an order relating to equipment, apparatus, appliances, or other things at a healthcare establishment; or an order imposing fine; etc. has been provided under section 31.
8. Under section 35, all executive authorities and law enforcement agencies of Government have been directed to act in aid of the Commission. Under section 36 the Commission has been authorize d to recover fines or other dues recoverable under the Act as arrears of land revenue under the Sindh Land Revenue Act, 1967. Under section 37, if any person fails to comply with the final decision or recommendation of the Commission, it may impose on him a fine which may extend to five hundred thousand rupees.
9. Above summary of relevant provisions of the Act clearly reflects that certain powers have been conferred on the Commission to enable it to improve quality of healthcare service and to ban quackery in all its forms and manifestations. To investigate or enquire into violations of provisions of the Act is the most distinctive among them.
But such power is strikingly limited to complaints which only pertain to allegations of maladministration, malpractice or failure of a healthcare service provider , or his employee. The words 'maladministration, malpractice and failure' to provide healthcare services have not been defined in the Act nor the difference between them explained. It is not clear how the Commission could determine a complaint to relate to either of them and take cognizance and impose a penalty accordingly . Further no particula r penalty except under section 28, which generically stipulates imposition of fine up-to rupees five hundred thousand against contravention of a provision of the Act, has been specified.
There is virtually nothing to highlight a difference in penalty for different contraventions identified by the Act like a contravention of civil nature which may relate to failure to obtain license, registration, etc., or the one involving actus reus where a patient sustains injury or dies due to negligence on the part of a doctor . Next, although the said provision sets out fine to be imposed as per gravity of offense but surprisingly neither 'offence' has been defined nor its 'gravity' categorized in the Act. Obviously , It has been left entirely to the discretion of the Commission to make a decision of imposing fine of whichever amount up-to rupees five hundred thousand against any of contraventions and nothing to regulate or guide exercise of such discretion has been set forth.
10. Be that as it may, the Act seems to assume medical negligence as a specie s apart from maladministration, malpractice or failure to provide healthca re services as only in the latter cases the Commission has been given powers of enquiry and investigation. On medical negligence, no such authority has been extended to the Commission. However , in Part-IX under regulation 42 of the Commission Regulations, 2017 (the Regulations) framed in pursuance of section 40 of the Act, the Commission has been authorized to accept a complaint regarding allegations, among others, of medical negligence. But not only conferment of such power by a subordinate legislation is questionable, since no specific punishment for medical negligence has been provided anywhere, the effects of exercise of such power by the Commission are ambivalent. Section 28, besides other provisions of the Act laying down revocation of license, etc., may be cited but it only broadly seeks imposition of fine against contraventions without any specification. Further , it does not propose to differentiate between contraventions of assorted nature conceived by the Act and does not tend to label medical negligence as a separate species as per spirit of the Act. Hence it is hard to assume that said provision providing fine up-to five hundred thousand rupees is meant to address cases of medical negligence (particularly) of a degree or level as to amount to an offence. There is another reason into it, medical negligence sometime could result into a permanent injury or a death of a person earning more than maximum amount of fine per month. Limiting him or his family , in such circumstances, to only accepting that mount of fine would definitely be against natural justice. Therefore, an interpretation proposing that, an aggrieved person has no other remedy save to lodge a complaint under the Act, before the Commission and to receive five hundred thousand rupees maximum on his success would not only be unsustainable on the principle of prudence and fairness but would also be violative of other relevant laws.
11. It may also be noted that the Commission's powers to improve quality of healthcare service and to ban quackery are basically supervisory in nature and are mainly intended to check contravention of nature which at the most could be returned with civil liability . The whole scheme of the Act seems supplementary to what has already been provided in other laws on the subjec t and has been set forth in a manner to look so. Further , there is nothing to show that such a course has an overriding effect to other laws on the subject or that it tends to derogate or substitute them. For, elucidation, - following provisions are cited. Section 4(6) states that 'notwithstanding anything contained in any other law, the Commission may (a)...(b)...(c)...(d)... undertake investigation...', likewise section' 28 states that 'notwithstanding anything contained in any other law, the Commission may... impose fine..." Explicitly these provisions point out to an additional approach to be taken by the Commission for looking at the matter and acting accordingly which could be resorted to by an aggrieved person either independently or side by side with a remedy being availed under any other law. For further favour , section 4 (7) and section 26 can be cited, which both allow the Commission to refer any case to the competent forum and/or to relevant government authorities or law enforcement agencies for appropriate action under relevant laws. Meaning thereby an independent action under a dif ferent law in the matters related to the Act is neither ousted nor barred.
12. Further the Commissions power to investigate a matter in terms of section 4(6) is contingent upon filing of a complaint, or a reference by Government, or a motion of the Supreme Court or the High Court made to. it in the pending proceedings. While under section 4(2), the Commission can perform various functions, but insofar as its authority to take cognizance of a matter respecting maladministration, malpractice or failure to provide healthcare services is concerned, there is no mode other than the one stated above. This essentially means that if such procedure is not followed, the Commissio n shall have no jurisdiction to undertake any proceedings. But whether such lapse would be allowed to result into no action against the accused and the ouster of jurisdiction of other authorities to take its cognizance and proceed accordingly . No one would agree to an affirmative reply , for this would be against the spirit of law and justice in addition perpetuating the wrong the Act is meant to arrest. Besides, such an approach could not be the intenti on of legislature behind promulgation of the Act. In such circumstances, in our humble D view, when an aggrieved person decides to avail a remedy under some other law, and/or a different law has been set in motion, neither he would be non-suited nor such law set at naught on the ground that there is a provision in the Act (Sec.29) proposing immunity to a healthcare service provider from prosecution or other legal proceedings relating to provision of healthcare services.
13. Notwithstanding the above, certain questions are hard to ignore. For example, whether every case of medical negligence shall entail criminal prosecution and then what shall be the standard of proof for setting up such a course in these cases. In a number of decisions given by foreign as well as our courts, it has been recognized that for fixing criminal liability on a doctor or a surgeon for medical negligence, the standard of proof shall be as high as can be described gross negligence or recklessness. Mere lack of necessary care, attention and skill will not expose a doctor to criminal prosecution. A doctor would not be held responsible criminally 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. It is also settled that a negligent act of a doctor may create a civil liability against him, and yet could be short of a level or degree required to make it a criminal offence. In order to further elucidate this point we would like to reproduce some of the excerpts of a decision given by this court in the case of Muhammad Aslam v. Dr. Imtiaz Ali Mughal and 4 others (PLD 2010 Karachi 134). This decision has been given on a criminal acquittal appeal impugning an order under section 265-K, Cr.P.C.. acquitting the doctors accused of negligence causing death of a patient during treatment. As is obvious the said facts are more or less similar to the ones obtaining in this case.
8. The Supreme Court of India has, in two recent decisions, examined the nature and scope of section 304A (which continues to be a part of the Indian Penal Code) in the specific context of doctors acting in the discharge of their professional obligations. In Dr. Suresh Gupta v. Government of NCT Delhi and another AIR 2004 SC 4091, it was held as follows:-- "20. For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as "gross negligence" or "recklessness". It is not merely lack of necessary care, attention and skill. The decision of the House of Lords in R. v. Adomako [1994] 3 All ER 79 relied upon on behalf of the doctor elucidates the said legal position and contains following observations; Thus 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."
21": Thus, when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as 'criminal'. It can be termed 'criminal' only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patient's safety and which is found to have arisen from gross ignorance or gross negligence. Where a patient's death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable.
23. For every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment. Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large because if the courts were to impose criminal liability on hospitals and doctors for everything that goes wrong, the doctors would be more worried about their own safety than giving all best treatment to their patients. This would lead to shaking the mutual confidence between the doctor and patient. Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an offence of culpable negligence.
25. Between civil and criminal liability of a doctor causing death of his patient the Court has a difficult task of weighing the degree of carelessnes s and negligence alleged on the part of the doctor . For conviction of a doctor for alleged criminal offence, the standard should be proof recklessness and deliberate wrong doing i.e. a higher degree of morally blameworthy conduct. [emphasis in original].
26. To convict, therefore, doctor , the prosecution has to come with a case of high degree of negligence on the part of the doctor . Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The courts have, therefore, always insisted in the case of alleged criminal offence against doctor causing death of his patient during treatment, that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable.'
9. The second decision is reported as Jacob Matthew v. State of Punjab and another AIR 2005 SC 3180 . It is pertinent to note that when Jacob Matthew first came up for hearing, reliance was placed on behalf of the doctor and Dr. Suresh Gupta. However , the bench hearing the matter doubted the correctness of the view taken in the 2004 decision and accordingly a larger bench was constituted to hear the appeal in Jacob Matthew . The larger bench expressly upheld and reaffirmed the principles laid down in Dr. Suresh Gupta, it was also noted that the Indian Supreme Court had in its earlier decisions approved the observations of Straight; J., in Idu Beg (the 1881 Allahabad High Court decision cited with approval by this court as noted above). The Supreme Court considered the issue of medical negligence at length, both in terms of civil and criminal liability and; after citing extensively from the case law and relevant treatises, observed, inter alia, as follows in para 49: "The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. 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 word 'gross' has not been used in section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in section 304A of the IPC has to be read as qualified by the word 'grossly'.
To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The' hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent."
10. It follows from the foregoing analysis that the offence of Qatl-i-khata under section 318, insofar as death is caused by a rash or negligent act, and in the specific context of doctors accused of professional negligence; is committed only if it is proved that the accused acted with 'gross negligence' (in the sense as explained above) or with reckless disregard or indifference to the consequences of the act which caused the death. Thus, the standard of professional negligence in civil law (which is of course, a well recognized tort) differs from criminal negligence in two ways. Firstly , and more generally , the standard of proof in all civil litigation is the simply the balance of probabilities, whereas in criminal prosecution, the offence has to be proved beyond reasonable doubt. This is a fundamental and well recognized distinction; see, e.g., the recent decision of this Court reported as Province of Sindh and another v. Shams ul Hasan and others 2009 MLD 1093 , 1096. Secondly , the degree of negligence must be much higher for it to constitute a criminal offence, i.e. it must amount to 'gross negligence'. A negligent act may attract tortious (or civil) liability and yet fall short of the level or degree required for it to constitute a criminal offence. As noted above, the appellant did not at any stage institute civil proceedings against the respondent Doctors. Had he done so, their liability (if any) would have been determined on the civil law standard applicable to professionals (here doctors) , professing to possess, and practising, a skill in a particular profession (here the medical profession). The position in criminal law is quite different. The level or degree of negligence is substantially higher , i.e., it must amou nt to gross negligence or recklessnes s. The Courts have advisedly refrained from attempting to give an exhaustive meaning to the expression 'gross negligence'. In my view , Idu Beg and the two decisions of the Supreme Court of India correctly identify the elements that constitute 'gross negligence' in the context of professional negligence by doctors, and these elements must be proved beyond reasonable doubt for the offence under the (previous) section 304A or the (present) section 318 to be made out.
14. From a perusal of above, it is clear that negligence in civil law may not necessarily be negligence in criminal law. For an act to amount to criminal negligence, the degree or level of negli gence should be much higher .
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 criminal prosecution. To prosecute a doctor for negligence under F criminal law it must be shown that he did something or failed to do something which under the same facts and circumstances no doctor in his ordinary senses and prudence would have done or failed to do. A doctor cannot be prosecuted for every mishap or death during medical treatment unless it is established that degree of his negligence was so high as to constitute an of fence.
15. This conclusion has brought us to next point, that is, how it could be deter mined at the first instance that alleged negligence is prima facie so gross or reckless as to amount to an offence necessitating criminal prosecution. It does not require much prudence to understand that an opinion verifying negligence of a doctor amounting to an offence can only be given by the senior and expert doctors of the same discipline. Without such a prerequisite, in our view, sanctioning criminal 'prosecution against the doctors for alleged medical negligence would be disservice to them and may lead to a dangerous situation. Therefore, it seems reasonable that when an FIR alleging medical negligence against a doctor is registered, the investigation officer shall first involve the Commission (which is the relevant forum under the law for the time being) for an opinion from senior doctors concerned in verification of such allegations before proceeding further against him.
16. In the light of above discussion, we do not hesitate to hold that if any case of medical negligence as defined in the Act or in some other laws in force for the time being is reported to a police station and an FIR is registered, the Investigation Officer shall first after forma l investigation needed to get acquaintanc e with facts of the case refer the matter to the Commission for enquiry , which shall treat such reference as a complaint under section 4(2)(6) of the Act and proceed accordingly . In the course of which it shall seek help of the senior doctors concerned for verification of allegation. It shall convey its report to the investigation officer within a period not later than 30 days of receiving of such reference. If the report in respect of allegation is in positive, the same shall be treated as a reference by the Commission under section 26(2) of the Act. Then I.O. shall procee d further in accordance with law and file a report under section 173, Cr .P.C. for a trial making report of the Commission its part.
17. After having held so, we now advert back to certain relevant facts of the case, it appears that the 'petitioners (C.P.No.D-6721/2019) earlier filed a criminal miscellaneous application challenging registration of subject FIR against them before a single bench of this court which vide order dated 9.04.19 stayed the same and referred the matter to the Commission. After enquiry , the Commission has given report on 14.5.219 concluding as under:- Decision: SHCC Enquiry Panel unanimously have decided that there was grave medical negligence on part of Dr. Shuaib and Dr. Saima who misrepresented as Consultant and deceiving the public at large in realty they were not as they hold MBBS degrees only and have no postgraduate qualification.
They were working ultra vires i.e. beyond their powers. They were not authorized to perform any Caesarean section or any surgery . You need at least a Post graduation degree to perform such surgeries and sadly they were not even aware of this fact. Ignorance of law is no excuse.
There was no need of a Caesarean section in the first .place they unnecessarily intervened. There was no sign of fetal distress or oligohydramnios etc. or any indication or report found which lead to this conclusion. There was delay in proper diagnosis after post operative surgery complications and they did not refer the patient in time and there was 36 hours delay . If proper diagn osis and timely efforts were made young woman life could be saved. She died due to incompetence, substandard care, insuf ficient staf f, poor referral policy/service by Al-Hadeed Hospital.
The patient reached Liaqat National Hospital in a critical condition and was managed appropriately and there was no evidence of negligence found on part of the hospital.
SHCC imposes a penalty under section 28(1) of Sindh Health Commission Act (2013) of four hundred thousand rupees on Dr . Shuaib and his wife Dr . Samia.
This case is referred to PMDC to take stern action against Dr . Shuaib and Dr . Samia to cancel their licenses.
Also fines Dr. Fareeha liable to pay a fine of fifty thousand rupees only and recommends her to get a proper training and pursue continuous professional development.
Dr. Zalma Majid who was called to perfor m the Caesarean section. She behaved like a rent a surgeon she did not bother to check if the decision was right or wrong and left the patient when spinal anaesthesia was already given.
The patient was prepared for a surgery and there was no other Surgeon to replace her .
She kept the patient in a limbo and left with a lame excuse that she was feeling dizzy and which is highly unprofessional and she is fined and liable to pay fifty thousand rupees.
Sindh Health Care Commission orders the hospital senior management to rectify the above mentioned observations within two months' time, meanwhile Al-Hadeed Medical Centre will remain sealed.
By order Director Complaints Sindh Healthcare Commission Above decision demonstrates that against the doctors of Liaqat National Hospital, Karachi including petitioner (C.P.No . D-7001/2019) Dr. Sheeraz-ur-Rehman nothing incriminating of nature leading to an inference of gross negligence on their part was found, and they have been exonerated. But petitioners (C.P.No.D-6721/20.19) Dr. Shuaib and Dr. Fareeha Smia have been declared negligent in treating the complainant' s wife prima facie leading to her death, and have been fined. The allegations of Incompetence, gross negligence and misrepresentation amounting to an offense alleged in FIR against them have been prima facie established. It has been held in preceding paras that on the basis of scheme under section 29 of the Act, criminal prosecution or a remedy other than that against a healthcare service provider (here the doctors) for medical negligence is not legally barred.
Therefore, we have decided not to quash the FIR and rather direct the investigation officer of the case to resume investigation and submit the report under section 173, Cr.P.C. in the light of report of the Commission dated 14.05.2019 before the trial court.
Summary . + The Commission's powers to improve quality of healthcare service and to ban quackery are basically supervisory in nature and are mainly intended to check contravention of nature which at the most could be returned with civil liability . The whole scheme of the Act is supplementary to what has already been provided in other laws on the subject. Further , there is nothing to show that such a course has an overriding effect to other laws on the subject or that it tends to derogate or substitute them. For elucidation, following provision are cited. Section 4(6) states that 'notwithstanding anything contained in any other law, the Commission may (a)... (b)... (c)... (d)... undertake investigation...' , likewise section 28 states that 'notwithstanding anything contained in any other law, the Commission may... impose fine...' Explicitly these provisions point out to an additional approach to be taken by the Commission for looking at the matter And acting accordingly which could be resorted to by an aggrieved person either independently or side by side with a remedy being availed under any other law. For further favour , section 4(7) and section 26 can be cited, which both allow the Commission to refer any case to the competent forum and/or to relevant government authorities or law enforcement agencies for appropriate action under relevant laws.
Meaning thereby an independent action under a different law in the matters related to the Act is neither ousted nor barred. + When an aggrieved person decides to avail a remedy under some other law, and/or a different law has been set in motion, neither he would be non-suited nor such law set at naught on the K ground that there is a provision in the Act (Sec.29) proposing immunity to a healthcare service provider from prosecu tion or other legal proceedings relating to provision of healthcare services. + Negligence in civil law may not necessarily be negligence in criminal law. For an act to amount to criminal negligence, the degree or level of negligence should be much higher . 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 criminal prosecution. To prosecute a doctor for negligence unde r criminal law it must be shown that he did something or failed to do something which under the same facts and circumstances no doctor in his ordinary senses and prudence would have done or failed to do. + The better course to know that alleged negligence is prima facie so gross or reckless as to amount to an offence is to get an opinion from the senior and expert doctors of the same discipline verifying allegation. Therefore, if any case of medical negligence as defined in the Act or in some other laws in force for the time being is reported to a police station and an FIR is registered, the Investigation Officer shall first after formal investigation refer the matter to the Commission for enquiry , which shall treat such reference as a complaint under section 4(2)(6) of the Act and proceed accordingly . In the course of which it shall seek help of the senior docto rs concerned for verification of allegation. It shall convey its report to the investigation officer within a period not later than 30 days of receiving of such reference. If the report in respect of allegation is in positive, the same shall be treated as a reference by the Commission under section 26(2) of the Act. Then I.O. shall proceed further in accordance with law and file a report under section 173, Cr .P.C. for a trial making report of the M Commission its part.
The petitions in hand stand disposed of in above terms along with pending applications.