In a judgment highlighting the important role that nurses play in the medical system, the Kerala High Court recently ordered that nurses who are accused in medical negligence cases shall not be arrested in a routine manner unless their custody is absolutely necessary [Celinamol Mathew v. State of Kerala].
Single-judge Justice PV Kunhikrishnan opined that nurses deserve moral support from society and the government so that they can do their work without fear of malicious prosecution.
"I am of the considered opinion that the nurses in the hospital should also get protection from malicious prosecution. They should be given moral support by the society and government. They should be allowed to work without fear of any prosecution and let them (be) known as Indian nursing Nightingales," the Court said.
Therefore, the Court declared that nurses should be afforded the same protection given to doctors following the judgment of the Supreme Court in Jacob Mathew v. State of Punjab.
"In tune with the directions in Jacob Mathew’s case (supra), this Court declare that a nurse in the Government service or in private hospitals accused of alleged rashness or negligence while discharging duty, may not be arrested in a routine manner (simply because a charge has been levelled), unless his/her arrest is inevitable for furthering the investigation or for collecting evidence or the investigation officer feels satisfied that the nurse proceeded against would not make herself available to face the prosecution unless arrested," the Court stated in its judgment.
The Court also issued the following directions:
Courts shall not entertain private complaints against nurses alleging medical negligence unless the complainant produces prima facie evidence in the form of a credible opinion given by another competent authority to support the charge of rashness or negligence on the part of the nurse concerned;
Before proceeding against accused nurses, investigating officers shall obtain an independent and competent medical opinion preferably from medical experts qualified in that branch of nursing with a doctor who can normally be expected to give an impartial and unbiased opinion.
The Court also directed the State government to issue a circular in tune with these directions adopting the same principles laid down by the Supreme Court in the Jacob Mathew judgment. The same has to be done within three months, the Court added.
"I am of the considered opinion that the nurses in the Government service and in private hospitals should also get protection like the doctors, if a prosecution is initiated under Section 304A IPC alleging medical negligence. The Government should issue necessary orders/circular in tune with Jacob Mathew’s case (supra) to see that the nurse in the Government service and in private hospitals are protected from malicious and frivolous prosecutions"
Justice Kunhikrishnan also emphasised that the hard work put in by devoted nurses is appreciated by anyone who has ever been admitted or has stood as a bystander in a hospital.
"They work day and night and they spent most of the time with their patients. The time spent by a doctor with the patients is less when compared to the time spent by a nurse with a patient. An experienced nurse can do wonders to a patient than an experienced doctor in some medical emergency situations," the single-judge said.
The Court underscored that nurses do not just treat diseases but they truly care about the patients.
"Florence Nightingale, an English social reformer and the founder of modern nursing, is renowned for her dedication to healthcare reform and her compassionate approach to patient care, leaving an indelible mark on the nursing profession and public health. Her unwavering commitment to patient care portrays the fact that the nurses' role is not just to treat the disease but to care for the patients. To do what nobody else will do, in a way nobody else can do is the nurses' way," the order said.
The Court passed the order while considering a petition moved by a nurse who was accused of medical negligence under Section 304 (culpable homicide that does not amount to murder) of the Indian Penal Code.
The case was registered on the basis of a complaint filed by a man following the death of his 10-year-old daughter.
The child had been admitted by a doctor because of diarrhea and vomiting and after giving her some medicines and conducting some tests, the doctor said that she could be taken home after sometime. However, the child's temperature spiked and she passed away the same day while at the hospital.
The Court noted that the child was treated by the doctor but the nurse was the only person arrayed as an accused in the case registered by the police.
The child's father himself filed an affidavit before the Court stating that he has no complaint against the nurse and that the investigation was conducted in a poor manner in order to save those who are actually responsible for his child's death.
In light of these facts, the Court quashed the case against the petitioner but made it clear that the police can proceed against any other persons whose involvement in the crime may be unearthed later.
The petitioner (nurse) was represented by advocate Betson P Kunjappan.
Senior Public Prosecutor Noushad KA appeared for the State.
Advocates Sasi MR, NP Silpa, Kavya Krishnan, S Sajit Sanal and Dharmya MS appeared for the de-facto complainant (father).
[Read Order]