EVIDENCE LAW PROJECT ON

EXAMINE THE APPROACH TAKEN BY THE COURTS WITH REGARD TO

MEDICAL EXPERT OPINION IN MEDICAL NEGLIGENCE CASES
Submitted To:
Ms. Vinita Tripathi
(Faculty of Law of Evidence)

Submitted By:
Pravas Naik
Semester – VII
Section – A, Roll No: 119
B.A. LLB (HONS.)

HIDAYATULLAH NATIONAL LAW UNIVERSITY

NAYA RAIPUR, (C.G.)

[I]
 DECLARATION

I, Pravas Naik, have undergone research of the project work titled ‘Examine The Approach
Taken By The Courts With Regard To Medical Expert Opinion In Medical Negligence
Cases’, as a student of Evidence Law hereby declare that-this Research Project has been
prepared by the student for academic purpose only, and is the outcome of the investigation done
by me and also prepared by myself under the supervision of Ms. Vinita Tripathi, Hidayatullah
National Law University, Raipur. The views expressed in the report are personal to the student
and do not reflect the views of any authority or any other person, and do not bind the statute in
any manner.

I also declare that this Research Paper or any part thereof has not been or is not being submitted
elsewhere for the award of any degree or Diploma. This report is the intellectual property of the
on the part of student research work, and the same or any part thereof may not be used in any
manner whatsoever in writing.

Pravas Naik

Roll No-119

Section - A

[II]
 CERTIFICATE

This is to certify that Pravas Naik, Roll No. - 119, student of Semester - VII of B.A.LL.B.
(Hons.), Hidayatullah National Law University, New Raipur (Chhattisgarh) has undergone
research of the project work titled “Examine The Approach Taken By The Courts With
Regard To Medical Expert Opinion In Medical Negligence Cases”, in partial-fulfilment of
the subject Jurisprudence. His performance in research work is up to the level.

..……………………………..
Place: New Raipur Ms. Vinita Tripathi.
Date: 16.08.2018 (Faculty- Law of Evidence)

[III]
 ACKNOWLEDGEMENTS

I feel highly elated to work on the project “Examine the Approach Taken by The Courts with
Regard to Medical Expert Opinion in Medical Negligence Cases” The practical realization of
the project has obligated the assistance of many persons. Firstly, I express my deepest gratitude
towards Ms. Vinita Tripathi, Faculty of Law of Evidence, to provide me with the opportunity to
work on this project. Her able guidance ship and supervision in terms of his lectures were of
extreme help in understanding and carrying out the nuances of this project.

I would also like to thank The University and the Vice Chancellor for providing extensive
database resources in the library and for the internet facilities provided by the University.

Some typography or printing errors might have crept in, which are deeply regretted. I would be
grateful to receive comments and suggestions to further improve this project.

Pravas Naik

Roll No-119

Section - A

[IV]
 ABBREVIATION

& And

AIR All India Reporter

Edn. Edition

Etc. Et Citra.

Govt. Government

Hon’ble Honorable

HC High Court

P. Page Number

SC Supreme Court

SCC Supreme Court Cases

Vol. Volume

v. Versus

www world wide web

[V]
 TABLE OF CONTENTS

Declaration ………………………………………………………………................. II
Certificate……………………………………………………………………………III
Acknowledgement…………………………………………………………………..IV
Abbreviation………………………………………………………………………..V
Table Of Content…………………………………………………………………...VI

Chapter – 1 Introduction . . 1
Research Question . . 2
Hypothesis . . 2
Chapter – 2 . . 3-4
Chapter – 3 . . 5
Chapter – 4 . . 6-14
Chapter-5 . . 15
Conclusion . . 16
Bibliography/ References . . 17

[VI]
 CHAPTER- 1

INTRODUCTION

Role of expert opinion in the form of second opinion sought by the treating doctor or patient
himself and opinion by a medical board on the direction of consumer court or in case of death
due to alleged medical negligence before registration of FIR by the polish is of paramount
importance in term of outcome of the case. Section 45 of the Evidence Act 1950 (“EA”) provides
for the relevancy of expert opinion on a point of law, science or art, or as to identity or
genuineness of handwriting and finger impressions. As this specific point requires specific skill,
the court can only take into consideration the opinion by that of an expert in that specific field
and not just by an ordinary man on the street. Our scope of discussion is narrowed to “medical
expert opinion in medical negligence”. Under this scope, clearly when there is a want of opinion,
it is a want of opinion upon a point of science, well encapsulated within Section 45 of the EA. In
case of medical negligence, the tort system generally provides for compensation only when a
doctor or any other medical personnel is negligent.

Therefore, for the starting line of this discussion, we will first see the role of expert in Indian
evidence act, then the approach taken by the court to the effect that “a doctor knows best” and as
we go along we will look into selected landmark cases enumerating the change in the court’s
approach. Basically, in examining the approach taken by the courts with regard to medical expert
opinion, we will look through several landmark cases and make out the approach taken in the
different cases.

[VII]
REASEARCH QUESTIONS

THE FOLLOWING RESEARCH QUESTIONS HAVE BEEN COVERED THOUGHT THE RESEARCH:-

1. What is the role of an Expert in law of Evidence?

2. Whether the court will generally accept and adopt an expert opinion without much
reservation, or;

3. Whether the court will still retain their power to judge based on the standard they
ought to be reasonable, with expert opinion merely serve as assistance to the
decision.

HYPOTHESIS

Medical expert opinion in medical negligence cases forms an essential part of the Indian
Evidence Act. Here an opinion of an Expert is taken in matter of a medical negligence.
With the Evolution of time, Science paved its way through many of the ways where one
could even analyze the time of death for such. But, at the end of day Forensic science
cannot be considered exact medical science but then also it has its evidentiary value
through opinion of Expert.

[VIII]
 CHAPTER – 2 THE ROLE OF EXPERT IN LAW OF EVIDENCE

Who is an Expert?
He is a person who has special knowledge related to some specific field, where he has devoted
his time and has experience of the same. The Courts in India in plethora of cases, have described
that an expert is someone who has such special knowledge which need not be imparted by any
University. He a person having skills or experience in any art, trade or profession, which has
been acquired by practice, observation or careful study and which is beyond the range of
common knowledge As per the law of Indian Evidence, the Court has to form an opinion on the
following: foreign law, science, art and identity of handwriting (or finger impressions). The
opinions given on the aforesaid aspects are all relevant facts and person who give these opinions
are known as experts. In nutshell, an expert is someone who is skilled in any particular field and
having special knowledge1
All the forensic reports or opinion of experts or opinion of third party when relevant, are
admissible under Section 45 of the Evidence Act, 1872 (hereinafter referred to as the ‘Act’),
which reads as follows:
Section 45. Opinions of experts. When the court has to form an opinion upon a point of
foreign law or of science or art, or as to identity of handwriting opinions upon that point of
persons specially skilled in such foreign law, science or art, [or in questions as to identity of
handwriting [or finger impressions] are relevant facts. Such persons are called experts.
Section 45 to Section 51 of the Act deals with the expert evidence.

Subject Matters of Expert Evidence

The subject matters of expert testimony as mentioned by the Act are foreign law, science, art and
the identity of handwriting or finger impressions. Other subject matters of expert evidence can be
finger prints, brain-mapping, polygraph, DNA, ballistic, tracker dog and many more. The
medical opinions are admissible upon questions such as insanity, nature of the injuries, usage of
the weapons to injure the decease or victim; etc. As far as field of art is concerned, the testimony
of artists is admissible with respect the originality or value of a work of art and the opinion of a
photographer is admissible with respect to its execution, etc. The above list of expert testimony
is only illustrative and not exhaustive.
i. Section 473 of the Act deals with the opinion as to the handwriting. The explanation
to Section 47 elaborates the circumstances under which a person is said to have
known the disputed handwriting. A person who deposes the evidence is not necessary
to be a handwriting expert. The knowledge and general character of any person’s

1
Avtar Singh (2013). Principles of The Law of Evidence. 20th Edition, Central Law Publications, Allahabad, India,
243-245

[IX]
 handwriting which a witness has acquired incidentally and unintentionally, under no
circumstance of suspicion will be considered far more satisfactory than the most
elaborate comparison of an expert. This Section envisages that one can get acquainted
with others handwriting in many ways. For example: The former might have seen a
handwriting, or he might be receiving letter from a person regularly.
II. Section 482 of the Act refers to the opinions of persons who know the existence of a
general right or custom and when it is relevant. ii. Section 493 of the Act refers to
opinions as to usages; tenets etc. The opinions of persons having special means of
knowledge thereon are relevant.
III. Section 504 of the Act envisages that when the court has to form an opinion as to the
relationship one person with another, opinion expressed by conduct as to such
relationship by any family member or person having special means of knowledge on
that subject is relevant. For example: Whether P and Q were/are married. The
opinion regarding the same is relevant. i. Section 517 of the Act states that
whenever the opinion of a person is relevant, the grounds are also relevant on
which such opinion has been based. The grounds are the ones on which the
expert opinion has been formed; it may be called as reasoning. ii. Section 45-A of
the Act states that when the court has to form an opinion with regard to any
computer resource or any other electronic or digital form, the opinion of
Examiner of Electronic Evidence referred under Section 79-A of the Information
Technology Act, 2008 is admissible under section 45-A of the Act, being a
relevant fact.

CHAPTER – 3 THE JUDICIAL APPROACH TO LAW OF EVIDENCE

2
Indian Evidence Act (1872). Opinion as to existence of right or custom, when relevant. Reference: Section 48 of
the Indian Evidence Act, India.
3
Indian Evidence Act (1872). Opinions as to usages, tenets, etc., when relevant. Reference: Section 49 of the Indian
Evidence Act, India.
4
Indian Evidence Act (1872). Opinion on relationship, when relevant. Reference: Section 50 of the Indian Evidence
Act, India

[X]
It has been seen in the past that the expert opinions have only been limited to medical opinions.
But now with the development of forensic science and technology, it has certainly reached to
such heights that the expert evidence is not limited to the medical opinions but also extends to
experts in other relevant fields. As far as, criminal law is concerned: ballistic experts, forensic
experts, scientists, chemical examiners, psychiatrists, radiologists and even track-dogs are
playing a very vital role in investigation of crimes and their evidence is admissible in the court of
law. In plethora of cases, the Courts have asked for expert opinions.

As we are going to discuss about medical negligence let us see the approach of the Courts
towards the expert opinions in medical evidence:

The courts have treated medical evidence as an important piece of evidence. DNA is one of the
important medical blood tests, where the paternity is a disputed question, the court has ample
power to direct parties to undergo medical tests or give sample of blood for DNA to decide the
paternity. Deoxyribonucleic Analysis (DNA): Each person's genetic makeup contains DNA. This
differs from individual to individual. DNA can be obtained through blood, saliva, semen, or hair.
This helps in identifying a person. If a drop of blood or a strand of hair is found at a crime scene,
it can be compared to a person's known DNA to see if there is a match, thereby linking the
person to the crime. An expert witness can give an opinion about the likelihood that the blood
that was found at the crime scene came from the individual whose sample was compared.
Experts believe that the ability to link the culprit to the crime scene through his DNA prints is
unquestionable as unlike conventional fingerprints that can be surgically altered, DNA is found
in every tissue and no known chemical intervention can change it.

CHAPTER – 4 WHO IS RESPONSIBLE?

[XI]
 WHETHER A DOCTOR KNOWS BEST5?

The Bolam test has long been applied when a standard of care required by doctors had been of
concern. In the period where the Bolam test was prevalently used, the judge will hardly interfere
or impose any standard on medical profession. The negligence in the medical profession is not
for the judges to determine, but by fellow medical practitioners. Accordingly, medical profession
just as any other profession will have different body of opinion to what standard of care or
treatment is appropriate for certain circumstances. If the doctor had followed one of the
responsible bodies of opinion, a doctor cannot be held negligent.

In the Bolam case, during an electro-convulsive therapy, the patient was not administered with
any relaxant drugs or any manual restraints except a support the chin and shoulder. Because of
this, he suffered serious fractures. The risk of fractures was also not informed to him.
Throughout the proceeding, it occurs that there are two recognized school of thought on method
of treatment, one favored the use of relaxant drugs or manual control as a general practice, and
the other, thinking that the use of these drugs was attended by mortality risks, confined the use
of relaxant drugs only on particular cases. 

Similarly, there were two bodies of competent opinion on the question whether, if relaxant drugs

were not used, manual control should be used. There were also different views among competent
medical practitioners on the question whether a patient should be expressly warned about risk
of fracture before being treated or should be left to inquire what the risk was. The principle
enunciated in the case is that, so long that the practice was supported by a body of competent
medical opinion, it is not the business of the court to question its appropriateness. It will not
be negligent for a practitioner to follow one in preference of the other.

To answer the set of common questions we laid in the introduction part when dealing with each
case, the approach taken by the court here in Bolam is more towards the court generally
accepting and adopting an expert opinion without much reservation. It is the medical profession
which will decide on the standard of treatment.

 WHETHER A JUDGE’S RESPONSIBILITY TO DETERMINE A STANDARD6:

We will then proceed to a case where the trend that ‘Doctor knows best’ is changing. In Rogers v
Whitaker, it is no longer the concern on what a body of medical opinion ought to hold on to, but
the focus was put on the patient to decide for himself, and that the court still has the
responsibility to determine whether a standard conforms to the standard demanded by law.

In this case, a woman with her right eye becoming almost blind, had consulted an ophthalmic
surgeon. She was advised to undergo the operation which would
5
BOLAM V FRIERN HOSPITAL (1957)
6
ROGERS V WHITAKER (1992)

[XII]
probablyrestore her sight. Her sight was not improved and most unfortunate, she developed
sympathetic ophthalmia in her left eye, causing her to lose all sight in the left eye. This
recognized risk was not informed to her by her surgeon despite her inquiries to the side-effect on
her good eye. The issue is on the failure of the surgeon to inform her on the risk.

There are different body of medical opinion on this matter, one supporting and one against
informing the risk on patient. Had the court apply Bolam, the doctor will not be found negligent
for following one body of opinion over the other. However, in this case, the Court found the
surgeon to be negligent in failing to inform the risk. The court stressed the importance of
autonomous decision making of patients to decide on being informed of the risk.

Departing from the Bolam test, the court has the ultimate responsibility to determine whether a
practice conforms to the standard of reasonable care demanded by law. This responsibility
should not simply be delegated to the profession. Merely following a body of opinion will not
save a practitioner from being held negligent.

This brings to the answer of the questions laid in the introduction, that in this case the approach
is that the court will still retain their power to judge based on the standard they ought to be
reasonable, with expert opinion merely serve as assistance to the decision.

 JUDGES ALSO CAN THINK7

The principle in Rogers and Whitaker above that the court still has the responsibility to
determine the standard of practice, instead of simply delegating to the profession to create their
own standard is repeated in the Bolitho case.

In this case, a two-year-old boy, Patrick, having a history of hospital treatment for croup (loud
cough and breathing difficulty), was readmitted to the hospital. In the hospital, he suffered few
episodes of breathing difficulty. Despite calls by the nurses, no doctors came to attend the boy.
On one point of time, P suffered total respiratory failure and a cardiac arrest, resulting in severe
brain damage. P subsequently died. The defendant health authority accepted that the doctors had
acted in breach of her duty of medical negligence.

7
BOLITHO V CITY AND HACKNEY HEALTH AUTHORITY (1997)

[XIII]
 THE STANDARD IS NOT FOR THE PROFESSION TO DETERMINE8.

In this case, the appellant was a front seat passenger in a car that crashed into a tree on the night
of the 11Th of July 1982. The accident happened near Assunta Hospital where the appellant was
brought to and warded for several injuries. The most serious injury suffered by the appellant was
a closed dislocation of C4 and C5 vertebrae with bilaterally locked facets. It caused the appellant
to suffer pain to her neck each time she moved her head.

The doctor on duty, Dr. Celine Pereira gave her initial treatment by placing a cervical collar
around it. After several initial treatments failed to reduce the dislocation of the cervical
vertebrae, Dr. S.F. Mun, the first respondent performed the first operation to place the dislocated
vertebrae into their original positions by inserting a loop of wire to stabilize the spinal cord after
moving the dislocated vertebrae into the normal positions. 

Nevertheless, the operation failed, and the appellant became paralysed. The firstrespondent
called Dr. Mohandas, a neurosurgeon who confirmed that the loop of wire had put pressure on
the spinal cord and is the cause of the paralysis. A second operation was performed by the first
respondent to remove the wire loop, but the appellant continued to be paralyzed until today. The
appellant sued the respondents for medical negligence. The issue is whether the Bolam Test
should apply in relation to all aspects of medical negligence? It was held in the Court of Appeal
level that the Bolam test applied. However, in the Federal Court level, it was held that The
Bolam Test is not to be applied in cases of medical negligence, but the Rogers v Whitaker test is
the more appropriate test. The court also put an emphasis on the Bolitho case. As stated earlier,
under the Bolam Test, a doctor is not guilty of negligence if he is acting according to the
practice accepted by a responsible body of medical men skilled in that medical act. So, firstly,
the doctor must exercise reasonable care in undertaking the task associated with his professional
qualifications and secondly, the doctor will not be liable if he has complied with a responsible
professional practice although there might be different opinions on how such practice is to be
done While under the Rogers v Whitaker test, the standard of care is not solely determined by
the practice of an ordinary skilled person exercising and professing to have that special skills. In
other words, the opinion of a responsible body of opinion in the medical profession is not
conclusive in determining the practice of a particular doctor. As such, this test provides that the
court must adjudicate on what is the appropriate standard of care after giving weight to the
paramount consideration that a person is entitled to make his own decisions about his life. By
applying the principle in Rogers v Whitakers and Bolitho, the court is not automatically bound
by evidence as to the practice of the medical profession, but the court can question the
practitioner in order to scrutinize and ensure that the standard set by law is followed.

 Duty of Doctors for Exposure of Unethical Act:

8
FOO FIO NA V DR. SOO FOOK MUN (2007)

[XIV]
Medical council of India (MCI) Regulations, 2002 reads:

Para 1.6, Highest Quality Assurance in patient care: Every physician should aid in
safeguarding the profession against admission to it of those who are deficient in moral character
or education. Physician shall not employ in connection with his professional practice any
attendant who is neither registered nor enlisted under the Medical Acts in force and shall not
permit such persons to attend, treat or perform operations upon patients wherever professional
discretion or skill is required.

Para 1.7 Exposure of Unethical Conduct: A Physician should expose, without fear or favor,
incompetent or corrupt, dishonest or unethical conduct on the part of members of the profession.

 Supreme Court Directions:

Hon'ble Apex Court of India has directed the Government of India and/State Governments to
frame Statutory Rules or executive instructions incorporating certain guidelines in consultation
with Medical Council of India for prosecution of Medical Professionals under Criminal Law for
Medical negligence. Hon'ble Apex Court has also proposed certain guidelines to Government
regarding the prosecution of doctors for offence of which criminal rashness or criminal
negligence is an essential ingredient. These guidelines are as follows:

1. 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 treating doctor.

2. The investigating officer should, before proceeding against the doctor accused of rash or
negligent act of omission obtain an independent and competent medical opinion preferably from
a doctor in government service qualified in that branch of medical practice who can normally be
expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in
the investigation.

3. A doctor allegedly accused of rash or negligence, may not be arrested in routine manner
(simply because a charge has been leveled against him), unless his arrest is necessary for
furthering the investigation or for collecting evidence or unless the investigating officer feels

[XV]
satisfied that the doctor proceeded against would not make himself available to face the
prosecution unless arrested; the arrest may be withheld.

 Medical council of India (MCI) Guidelines on Expert Medical Opinion:

In view of the above guidelines proposed by the Hon'ble Supreme Court of India, the following
statutory rules/or executive instructions for prosecution of Medical Professionals under Criminal
Law for Medical Negligence are being proposed:

(i) As per "Professional Conduct, Etiquette and Ethics Regulations, 2002 adopted by
Medical Council of India, every physician shall maintain the medical records
pertaining to his indoor patients for a period of 3 years from the date of completion of
treatment.
(ii) Any request made for the medical records either by the patients/authorized attendant
or legal authorities involved, the same may be duly acknowledged and documents
shall be issued within the period of 1 (one) week.
(iii) In cases where the fellow treating doctor is accused of rash and negligent act. A
Doctor qualified and well experienced in that branch of medical practice shall not
hesitate in expressing independent, impartial and unbiased opinion against or in
favour of a fellow treating doctor.

It shall be mandatory to patient/his relative that before lodging a complaint against treating
doctor/hospital regarding rashness or negligence, he must obtain a credible opinion from a
competent doctor qualified in that branch of medical practice on the facts mentioned in the
documents supplied by the concerned doctor/hospital.

a. No complaint shall be entertained by the police or investigating agency unless the allegation is
specified and supported by a credible opinion of competent doctor qualified in that branch of
medical practice.

b. After receiving a complaint supported with a credible opinion of a competent doctors along
with supporting treatment and investigation papers against the treating doctor/hospital, police or
investigating agency before registering the Crime u/s 304A IPC or under any other relevant
section of law should seek an independent, impartial and unbiased opinion from a Committee or

[XVI]
Body constituted by Government of India or State Government comprising of uneven number of
members and such committee must include an eminent senior faculty member of that branch of
medical practice.

c. The committee formed shall examine the complaint, opinion of the doctor in support of
complaint submitted by the complainant in the light of documents related to investigation,
diagnosis and treatment considering the qualification of doctor and the circumstances of case
including time and place and shall give clear opinion about whether or not the treating doctor/s
has/have been rash and negligent in their duty in treating the patient. This shall be communicated
to police/investigating agency in minimum possible/reasonable duration.

d. The Committee if think so, shall also visit the place/hospital where patient was treated and
examine the facilities available for such treatment/operation given to the patient or not and the
treating doctor is duly qualified, registered with competent body/organization and whether the
place is recognized or not for such treatment. The police/investigating agency after receiving the
opinion of Government doctor/Committee shall register a case only when, in the opinion of
Committee the treating doctor/s has/have been found rash and negligent in act of commission or
omission.

e. If the doctor accuse is not found guilty by the Committee then no case should be registered
and in such case the patient/relative may lodge a complaint in the appropriate court if they feel so
and court should take appropriate action in the light of opinion given by the Govt.
doctor/Committee constituted for this purpose.

 Appointment and Duties of Doctor/s or Committee Constituted for Giving Opinion for
Prosecution of Medical Professionals under Criminal Law for Medical Negligence:
Duties of Treating Doctor Against the Allegation of Rashness and Negligence act:
(i) The treating doctor shall maintain a proper chronological record of treatment given
investigation advised and carried out.
(ii) The doctor shall supply the certified copies of all such documents which are related to
treatment investigations or any other specific procedure whenever requested by
patient or his relatives without delay.

[XVII]
 (iii) The treating doctor accused must produce all such original documents related to
treatment, investigation or any other specific procedure undertaken by him whenever,
required by the Committee constituted for the purpose of given opinion on a
complaint against him for criminal prosecution.
(iv) The treating doctor accuse must be given an opportunity and to be heard by the
Committee before giving any opinion in favour or contrary to the allegation.

 Formation and duties of the Committee shall be as follows:

(i) Government shall have the power to constitute a Committee to give opinion on
complaint for criminal prosecution of a doctor for rash and negligent act.
(ii) There shall be a Committee in Divisional level preferably at a place where Govt.
Medical Colleges are located and specialties in various disciplines of medical practice
are available.
(iii) The Committee should comprise of panel of doctors of various specialties of medical
field on the list from whom the required members of selected field may be called
depending upon the case entertained.
1. The Committee shall be comprised of minimum three and maximum seven members
from:
(a) One eminent senior member from that specialty/branch of medical field to
which the complaint is specifically related and he shall be the Chairman of the
Committee (selected from the panel).
(b) One member from Government Health & Medical Education Services not
below the rank of Joint Director/Dean/Professor.
(c) One member belonging to legal department preferably a Judge not below the
rank of Sessions Judge.
(d) One member from specialty of Forensic Medicine especially when the rash
and negligent act had resulted into death and autopsy was performed on the body
of deceased.
(e) Co-opted members may be appointed by the Chairman of the Committee if he
thinks that the opinion of such a member is necessary in that case for giving
opinion.

[XVIII]
(i) The Committee shall meet at least once or more time in a month or within a specified period
which shall in no case be more than 30 days.

(ii) The Chairman shall inform the other members of the Committee at least three days before the
date of meeting or giving reasonable time to the members to ensure their attendance by a letter
specifying the place and time of the meeting.

(iii) The Committee shall consider and dispose of the case within 30 days after receiving the
complaint against the doctor.

(iv) The Committee shall have power for not to consider any complaint after 30 days of receipt
of complaint to investigating agency or 90 days after the incidence. The investigating agency
should forward all the relevant documents and the evidences collected to the Committee within
30 days of receipt of the complaint.

(v) The Committee shall have power to call the treating doctor along with all original records
related to treatment, investigation or any other specific procedure for inspection for personal
hearing.

(vi) The Committee shall have power to inspect the place, facilities available, conditions of
equipments and assess the working conditions and shall give the opinion about the suitability of
place for any specific treatment.

(vii) The Committee shall have power to examine the authenticity of qualification, recognition
and registration as per rules by MCI or any other such regulatory body and about any special law
or act enacted by the Government of India or any other similar law.

(viii) The Committee shall have power to assess the reasonable competency of doctor to practice
that speciality of Medicine/Surgery, which has been used in treating the complainant.

(ix) After consideration of the facts mentioned in the complaint, hospital records including
investigation and treatment and after hearing the treating doctor, shall give a clear opinion
whether the doctor has been rash and negligent or not which resulted in harm/damage or death
along with detail report about the facts on which such opinion is based.

[XIX]
 The Duties of Police in Cases of Criminal Prosecution of Doctors for Rash and
Negligent act:
(i) No Police station or investigating agency shall register an offence under 304A IPC
for criminal negligence on the part of doctor unless the complainant clearly mentions
the specific allegation of rashness and negligent act directly and attributively resulting
in death of the patient and unless an opinion from the committee is obtained.
(ii) After receiving any complaint regarding rashness and negligent act of doctor the
investigating officer or In-charge of Police Station should forward such complaint
along with all the papers related to treatment and investigation etc. to the committee
constituted by the Government of India/State Government's for giving opinion in such
cases.
(iii) The police or investigating officer shall not arrest a person unless some prima facie
evidence about the rash and negligent act of doctor is expressed by the Committee in
opinion.
(iv) The arrest shall also not be made if the doctor against whom the allegation is made
gives reasonable assurance, by virtue of securities/bond to cooperate in the
investigation and assure his availability whenever required by the investigating
authorities.

The Police shall have power to seize all original documents relating to the treatment and
investigation of the case if the concerned doctor fails to provide the documents to the
Committee9."

9
[Page No. 284-287, Report 2007]

[XX]
 CHAPTER-5 DISADVANTAGES OF EXPERT OPINION:

 It causes enmity among medical fraternity

 It causes delay in disposal of medical negligence cases

 Due to biased medical opinion and adverse comments by the courts causes distrust among
public

 Patient died due to delay in treatment as no timely medical opinion was available due to
various reasons

It is important to create awareness about these guidelines among medical fraternity as well as in
general public so that lost trust can be restored and larger public interest of quality of health care
can be provided to masses. There is need to prepare a panel of doctors who are expert in
particular specialty and who can provide Expert Medical Opinion as the occasion arise either on
the request of patient or their legal representative or on the direction of the appropriate judicial /
quasi-judicial forum like consumer court.

[XXI]
 CONCLUSION

The above research envisages that the discretion lies solely with the court to admit the forensic
report of an expert. The reference may be given to the case of Krishan Chand v Sita Ram10 ,
wherein there was a conflict of expert opinions’, it was held that it is the Court which is
competent to form its own opinion with regard to signatures on a document. It totally depends
upon the facts and circumstances, and the opinion of the courts, which varies accordingly. As
such, there is no provision in the Indian Evidence Act, 1872, which expressly states that expert
evidence requires corroboration, but, practically stating as per my own experience; courts
generally do not rely only on expert evidence, unless it is supported by other evidence/ court
logical analysis. That is the reason, it has been
observed by the Supreme Court of India in plethora of cases that it is highly unsafe to convict a
person based on sole testimony of an expert. It is generally seen that in most of the cases, courts
ask for the medical expert opinions. But practically stating, it is well settled that medical
jurisprudence is not an exact science and it is indeed difficult for any medical expert to say with
precision and exactitude as to when a injury was caused, so it is merely the duty of the expert to
give his opinion. Thereby, it can be said as a rule, the opinions of medical experts and other
experts who has special skill in a field shall be admissible in the Court of law.

Thus, simply producing an expert opinion that agrees with the practice in question may not be
enough. However, the court should not be hasty in challenging opinions of distinguished experts.
The responsibility to determine a standard is on the judge, but with the basis of assistance by
reasonable body of medical opinion. The responsibility is not delegated to the profession, but the
profession’s reasonable expert opinion will be the one setting the standard of medical care
subject to the approval of the court, conforming the standard required by law.

Kumar M. (2005). Krishan Chand vs Sita Ram. AIR P & H 156, All India Reporter, Punjab & Haryana High
10

Court.

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 BIBLIOGRAPHY

Books

 Batuk Lal: The Law of Evidence, {CLA].

 Avtar Singh: The Law of Evidence, {EBC}
 Universal Criminal Manual, Indian Evidence Act,1872

Reference works / Leading articles

 Dr. Mukesh Yadav Editor, JIAFM. Role of Expert Opinion in Medical Negligence cases,
J Indian Acad Forensic Med. October-December 2014, Vol. 36, No. 4

 Legalserviceindia.com,. (2015). Forensic Evidence. Retrieved 15 March 2015,

from http://www.legalserviceindia.com/article/l153-Forensic-Evidence.html  

 Chadda R.K (2013), Forensic evaluations in psychiatry, Indian Journal of Psychiatry, pg.

no 393-399

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