P L D 2024 Sindh 320 (PLP)

OMAR SIAL, J.

A 78-year-old lady, Huzoor Begum, fell ill and was taken to the Liaquat National Hospital and Medical College for treatment on 17.05.2021. She unfortunately expired on 01.06.2021. Her son, Faique Ali Pathan, made a complaint to the Sindh Healthcare Commission ("SHCC"), alleging that Huzoor Begum died due to the negligence of the doctors who treated her at the Hospital.

2. The SHCC, in its report dated 22.03.2022, concluded that the Hospital had erred on several counts and imposed a penalty of Rs.200,000 on the Hospital. Certain recommendations were also made to improve the Hospital's management. The SHCC wrote to the police to inform them that "this is not a case of medical negligence but maladministration, and hence, no specific quantifiable role of doctors about medical negligence can be attributed to the same."

3. Upon issuing the inquiry report, Faique Ali Pathan made allegations against the SHCC and the inquiry they had conducted. The SHCC, being aggrieved by what it termed "baseless" allegations made without a "shred of evidence", responded to Pathan through a letter dated 07.04.2023.

4. On 20.04.2022, Pathan challenged the Inquiry Report under section 31 of the SHCC Act, 2013, before the learned District and Sessions Judge, Karachi East. The decision on this appeal is yet to be made. Before an outcome of the appeal, however, Pathan lodged FIR No. 398 of 2022 under sections 322 and 34, P.P.C. at the New Town police station on 19.09.2022. The police recommended the disposal of the case in "C" Class; however, the learned 18th Judicial Magistrate declined to accept the recommendation and took cognizance on 27.10.2023. The applicants have now approached this Court, challenging the order of the learned Magistrate.

5. I have heard the learned counsel for the applicants, the answering respondent, Pathan, and the learned Additional Prosecutor General. For the sake of brevity, their respective arguments are not being reproduced but are reflected in my observations and findings below.

6. The applicants are all seasoned, experienced and well-educated doctors. Criminal liability on such doctors must necessarily be attributed with great caution. And after great thought.

7. A distinction between civil and criminal liability has to be drawn. It is the rarest of rare doctors who will want to kill his patient. A distinction must also be made between quack and professional doctors. The doctors to whom criminal liability is attributed have glorious careers backed by premium education and experience. The question which reverberates in my mind is why a doctor of such a profile would want to or intend to kill his patient. These doctors have been judged by their peers at the SHCC, and the Commission itself has absolved them of negligence, let alone criminal negligence. Criminal negligence is usually considered a more serious mistake than ordinary negligence. This is where there is a difference between civil malpractice negligence and criminal negligence. We fail to see logic and react emotionally in our grief at such times. Our emotions should, however, not have the better of us. Doctors should be allowed to work with the freedom to make decisions that they believe are the correct ones in the given situation when exercising their profession. Imposing criminal liability on doctors with such great ease can adversely impact society. If the outcomes of medical practice can result in criminal punishment, then in the long run, this would lead to an increase in the burden placed on patients and the overall costs of medical care throughout the country. Further, a doctor might decline to treat a patient in an emergency because they fear that a troubled person will register an FIR against them if things go wrong. The interests of the society at large may overshadow individual grief. A relevant observation in this regard was made by a Full Bench of the Supreme Court of India in Dr. Suresh Gupta v. Government of NCT Delhi AIR 2004 SC 4091: (2004) 6 SCC 42). The Court declared that extreme care and caution should be exercised while initiating criminal proceedings against medical practitioners for alleged medical negligence and that bona fide medical practitioners should not be put through unnecessary harassment. The court observed that "between the civil and criminal liability of a doctor causing the death of his patient, the court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For the conviction of a doctor for an alleged criminal offence, the standard should be proof of recklessness and deliberate wrong, i.e. a higher degree of morally blameworthy conduct." It went on to hold that: To convict, therefore, a doctor, the prosecution has to come out 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. The House of Lords in R v. Adomako [1995] 1 A.C. 171 observed: "Thus, a doctor cannot be held criminally responsible for a 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."

8. Hospital management and medical services need to improve. There is no question about that. But that will not happen overnight. It will be an evolutionary process. Doctors must be judged by their peers. The SHCC, constituted of experienced and wise doctors, have cleared the doctors of criminal liability. The recommendations of the Commission have to be given weight in cases of medical negligence. The person aggrieved in this case was highly disappointed at the service rendered to him. In the whole incident, sadly, his mother passed away, and he was rightly hurt. He is a competent member of the judiciary, and keeping in mind his intelligence and wisdom, perhaps his feelings got the better of him. It is evident from the number of doctors he has a grievance against that he has attributed criminal liability upon all who came on his radar. This was a reckless and incorrect step to take. Huzoor Begum was an elderly lady suffering from many ailments, and it appears that she sadly was also impacted by the COVID-19 virus. There were lapses on the part of the hospital management. That aspect has, however, been analyzed by, the SHCC, and penalties that the Commission thought were fair were imposed. It would have enhanced the Hospital management's dignity someone had reached out to the aggrieved person, heard him out and apologized for any grief caused.

9. The medical profession, too, has a lot to answer. Insensitivity of doctors towards their patients, a quest to generate more money by the hour, long wait hours, not briefing patients, disdain towards queries made by patients, fragile egos and arrogance, and lack of clinical manners are some areas in which the medical profession should introspect. It cannot be denied that patients being treated like cattle is on the rise in the medical profession. I do not doubt that the SHCC will weed out such black sheep in the medical profession.

10. In the recent case of F.I.A. v. Syed Hamid Ali Shah (PLD 2023 SC 265), the Supreme Court has reiterated that an FIR cannot be quashed under section 561-A, Cr.P.C., but that proceedings can. Even in the latter situation, it is preferable that an aggrieved person first seeks his remedy before the trial court under Section 265-K or 249-A, Cr.P.C. In the present case, the aggrieved doctors have not sought their remedy before the learned trial court; however, for the reasons given in the preceding paragraphs, I am of the view that the circumstances of the present case necessitate quashing the proceedings originating out of FIR No. 398 of 2022. Order accordingly.

11. The aggrieved person will not be restrained from pursuing any legal route he has after the decision on the appeal, which is pending adjudication if it is held in the appeal that the doctors had been criminally negligent. JK/S-12/Sindh Order accordingly.