Doctors' Association for Social Equality

New Delhi: A larger Bench of the Supreme Court will examine whether doctors who are not qualified to perform abortion can be prosecuted for medical negligence.

In 2005, a three-judge Benchheld that a doctor would be liable for criminal prosecution only for "gross negligence" or if he/she did not possess the requisite skill. "A simple lack of care, an error of judgment or an accident, is not proof of negligence." The court also laid down broad guidelines for prosecution of doctors for medical negligence. "A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor."

On Thursday, a vacation Bench consisting of Justices Arijit Pasayat and B.P. Singh, on Thursday, referred to the larger Bench a case in which two doctors, not qualified to do Medical Termination of Pregnancy (MTP), performed abortion, as a result of which a woman died.

According to the MTP Rules, 1975, doctors with M.D (Gynaecology) or DGO need not have extra experience for performing an MPT. Doctors registered before 1972 should have three-year experience in gynaecology. Doctors registered after 1972 should have six-month house-surgeonship in gynaecology and one-year's experience in the field. Prem Chand Tantuway of Seoni in Madhya Pradesh alleged that Neeta Jain and Prafull Jain, who performed an MPT on his wife, did not possess the requisite qualification. A judicial magistrate issued process under this complaint. The Madhya Pradesh High Court, Jabalpur, dismissed the appeal filed by the two doctors.

In their appeal against this judgment, the doctors said there was no negligence on their part and the complainant's wife died though they made every effort to save her. Citing the 2005 apex court judgment, they prayed for quashing the High Court's order.

The vacation Bench referred the matter to the larger Bench considering the allegation that the appellants were not qualified to perform the MPT. The question raised in the appeal was of the utmost importance.