Question: I am a doctor and my patient’s son has filed a false FIR in medical negligence case. His mother was admitted to my hospital for surgery. Her condition was not good and I have informed him about the imminent danger of her life. Therefore, I have taken his consent for the surgery. During the surgery his mother died due to excessive bleeding. Then he has filed a false case under Section 420/338/201 of the Indian Penal Code. What should I do?
Asked from: Bihar
The aforementioned first information report (FIR) is false if you have conducted the surgery according to the standard procedure or accepted line of treatment. Negligence is the failure to meet a standard of behaviour established to protect society against unreasonable risk. It is a breach of duty which is not expected by a prudent man in discharge of his duty.
As a medical professional, you must follow the standard operating procedure (SOP) in the treatment of patients. However, a doctor need not possess the highest professional skill but it is sufficient if he has followed the accepted line of treatment. Any dereliction from accepted practice may constitute offence if the patient has suffered bodily injury.
A simple lack of care or error of judgement in a particular accident does not constitute negligence [Jacob Methew Versus State of Punjab and another, AIR 2005 SC 3180].
Quashing of false FIR of medical negligence
If you think that there was no negligence on your part then you should approach the High Court for the quashing of the false FIR. You should wait for some time because quashing is not easy at the onset of investigation. Let the investigating officer conduct the investigation.
The investigating officer will record the opinion of doctors towards the line of treatment you have adopted in the treatment of the informant’s mother. If the investigating officer finds no evidence regarding the negligence then she shall submit a closure report under Section 169 of the code of criminal procedure. In vice versa he shall submit a charge sheet under Section 173 crpc.
When you find that the investigation is being conducted without recording of statements of other doctors then you should immediately move a quashing petition. In Jacob Methew case, the Supreme Court has held that
The Investigating Officer should before proceeding against the Doctor, accused of rash or negligent act or omission, obtain an independent and competent medical opinion, preferably from a Doctor in Government service qualified in that branch of medical practice.
If the investigation is carried on at the initial stage then you should wait for a while. When the investigation officer is not following the guidelines of the Jacob Mathew case then you should move a quashing petition and also seek protection against arrest as an interim relief.