Prescribing Medicine Over Phone Is Not Criminal Negligence If Similar Course Of Action Would Be Taken By Other Medics: Kerala High Court

Justice G. Girish passed the order in the Criminal Miscellaneous Case preferred by the doctor, who was charged under S. 304A of the Indian Penal Code, challenging the criminal proceedings initiated against him for allegedly causing the death of his patient.

The allegation against the doctor was that he was negligent in not attending to the patient for urgent direct evaluation even after the co-accused nurse intimated him via telephone call about the sudden illness of the patient. It was also alleged that the doctor omitted to do what a medical professional of ordinary sense and prudence would do and thereby, negligently caused the death by not referring the case to a specialist.

The learned Single Judge considered the S. 161 statement given by the father of the deceased as well as other documents submitted by experts, who agreed with the course of treatment undertaken by the petitioner. The Court observed:

“…The course adopted by the petitioner prescribing certain medicines for the same illness of patient which he had medically managed on 21.05.2012, and also directing the laboratory evaluation for ascertaining renal complications, has not been found to be wrong by any of the members of the Expert Panel…

…As far as the present case is concerned, it has to be stated that there is absolutely nothing on record to show that the act of the petitioner prescribing some medicines and directing the laboratory evaluation of vitals of the patient, amounted to gross negligence which is never expected from a Doctor of similar stature. On the other hand, there are materials to show that the course so adopted by him would have been followed if the same contingency was faced by any other medical professional in the field. That being so, the criminal prosecution initiated against the petitioner can only be termed as an abuse of process of court which has to be terminated at the threshold…”

The Court looked into the settled position of law laid down by the Supreme Court in its various decision on the subject of medical negligence. It then went on to clarify that the action of the petitioner would not amount to criminal negligence but may give rise to civil liability on the part of the hospital.

The learned Single Judge further observed:

“The law is thus trite that even in a case where a patient's death results merely from error of judgment or an accident, no criminal liability could be attached to it, and mere inadvertence or some degree of want of adequate care and caution might create civil liability, but would not suffice to hold the medical professional concerned criminally liable…”

Case No: Crl.M.C. No. 5692/2018

Case Title: Dr. Joseph John MD v. The State of Kerala and another

Citation: 2025 LiveLaw (Ker) 281

Counsel for the Petitioner: C.R. Syamkumar, P.A. Mohammed Shah, Sooraj T. Elenjickal, K. Arjun Venugopal, V.A. Haritha, Sidharth B. Prasad, R. Nandagopal and Gayathri Muraleedharan

Counsel for Respondents: Sangeetharaj N.R., Public Prosecutor

Click to Read/Download Order