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“Doctors Cannot Treat Without Touching Patient”: Kerala High Court

In Kerala
February 28, 2023

A man accused of manhandling a doctor for allegedly misbehaving with his wife while examining her at a hospital, was recently denied anticipatory bail by the Kerala High Court [Jamshid PV v State of Kerala].

Single-judge A Badharudeen took a serious view of the incident and said that it would be difficult for a doctor to pursue his profession if a patient is aggrieved by the doctor touching him or her during clinical examination.

“Doctors, who had turmoiled their energy and time to learn the method of treating patients, when examining patients clinically, cannot do the said exercise without touching the patients. If a patient, who wants treatment, is aggrieved in the matter of touch on the body of the petitioner as part of the examination, it is difficult for a doctor to do his medical profession by resorting to clinical examination. The same would include placing of Stethoscope on the left chest portion of the patient to observe and evaluate the heartbeat,” the Court said.

However, the judge also said that genuine cases of misbehavior by doctor overstepping their limits cannot be ignored.

“At the same time, this Court is conscious of the fact that all allegations on the ground of misbehavior by overstepping the limit of the doctor while examining patients are false. Genuine cases of such nature could not be ruled out in toto, “ the order stated.

The Court further said that the truth of those allegations should be evaluated based on evidence and circumstances to separate the grain from the chaff.

The Court was considering an anticipatory bail application filed by an accused charged with offences punishable under Sections 341 (wrongful restraint), 323 (voluntarily causing hurt), and 294(b) (obscene acts and songs) of the Indian Penal Code (IPC) as well as various provisions of the Kerala Healthcare Service Persons and Healthcare Service Institutions (Prevention of Violence and Damage to Property) Act, 2012.

As per the prosecution case, on January 8 around 6 PM, when the defacto complainant, who is a doctor by profession, was on-call duty, he had examined the wife of the accused, aged 27 years, at the casualty section of the hospital.

While so, the accused caught hold of the doctor’s collar and slapped him on the allegation that he touched the body of the accused man’s wife.

The counsel for the accused contended that the doctor had misbehaved with the wife of the accused due to which a complaint was lodged by the wife against the doctor under Section 354 of the IPC (assault or criminal force to woman with intent to outrage her modesty). An investigation is ongoing in the said case, the Court was told.

He further contended that the accused was innocent and that this case was registered as a counterblast to avoid legal consequences that would arise out of the case lodged by the wife of the accused.

The prosecution, on the other hand, strongly opposed the grant of anticipatory bail and contended that the accused has criminal antecedents and that various crimes have been registered against him.

The public prosecutor highlighted that attacks against doctors are on the rise alarm and, therefore, doctors are forced to function under threat and fear of physical attack and face apprehensions of implication in crimes.

Threats against doctors would be detrimental to the interest of people at large, the public prosecutor said.

After going through the case records, the Courts noted that the doctor examined the accused man’s wife in the presence of two sisters in an open space at the casualty. The misbehavior case was registered against the doctor only after the registration of the crime against the accused, it was further observed.

Therefore, the Court refused to grant anticipatory bail to the accused, stating it could create a dangerous situation, whereby, doctors, who are duty bound to treat patients as part of their oath, will not get protection and the proper maintenance of the health of the public at large would be in peril.

The accused was represented by advocates JR Prem Navas, Sumeen S and Muhammad Swadiq.

The respondent was represented by advocate PG Manu.