A judge has confirmed that a doctor’s death following weeks in intensive care at Mater Dei Hospital did not merit a magisterial inquiry.

That decision was delivered by the Criminal Court, turning down an appeal by the widow and children of doctor Naged Megally who died on July 5 last year after developing medical complications.

Megally, a specialist in foetal medicine, was admitted to hospital in critical condition in May and after a number of surgeries, his condition took a turn for the worse. He passed away a few days later.

His family filed an application, calling for a magisterial inquiry into whether the patient’s death could have been caused by certain shortcomings or whether certain aspects of healthcare may have contributed to his death.

They claimed that they had not been consulted about a number of life or death decisions and nor were they granted immediate access to the patient’s medical file, attributing this to “hidden interests.”

They also claimed that hospital authorities had viewed Megally more as an inconvenience rather than a patient.

The family called for a post-mortem but that procedure was never carried out.

Earlier this month those claims were rejected by a Magistrates’ Court which, after hearing numerous witnesses and on the basis of documentary evidence, concluded that a cause of death existed and that there was no prima facie evidence meriting a magisterial inquiry to delve further into the doctor’s death.

The court confirmed that the hospital had prepared all necessary documentation for an autopsy but the patient’s family never put their signature to it.

Later they explained that they were acting upon legal advice when insisting that the post-mortem was to be carried out within the ambit of a magisterial inquiry.

When all was considered, Magistrate Lara Lanfranco turned down the family’s request to order an in genere inquiry.

Megally’s family filed an appeal.

After hearing final submissions last week, the Criminal Court delivered its decision on Tuesday.

Madam Justice Consuelo Scerri Herrera concluded that the first court was right in stating that the necessary elements for a magisterial inquiry were lacking.

All that this court was to do was assess whether the magistrate could legally and reasonably reach a decision, taking into consideration a number of elements, including whether a suspect was clearly indicated.

Several times, the applicants reiterated that they did not know who to target in their criminal complaint nor did they know who was to answer for the doctor’s death, thus failing to indicate any particular individual or individuals.

Court is not a fishing expedition

The applicants’ lawyer argued that it was the Magistrates’ Court that was to investigate and to find out the suspect linked to the alleged crime.

“With all due respect, this was not correct,” observed the judge, stating that these proceedings were not meant to serve as “a fishing expedition” by the court to find out who, if anyone at all, was to face charges.

The court would be usurping functions which it did not have, added the judge.

A person filing a criminal report has to indicate the suspect and the law is “crystal clear” on that.

Moreover, Megally’s family argued that the Magistrates’ Court was to determine whether this was a case of death through negligence or a case of wilful murder.

But the court disagreed, declaring that it was certainly not the duty of the Magistrates’ Court to investigate what crime might have been committed, if any.

This was more so when, as in this case, the family were alleging two “totally contrasting crimes,” namely involuntary homicide which related to negligence (culpa) and wilful homicide that was based on criminal intent (dolo).

The court would have to determine whether there was prima facie evidence that the suspect had a specific intent to kill or to place Megally’s life in clear danger.

Based on the evidence put forward, this was certainly not the case, said the judge.

The appellants did not even know exactly what crime was allegedly committed, if at all, and who might have been responsible for this “alleged unknown crime.”

“This is certainly not what the legislator intended when introducing this legal provision in 2006,” stated the court, making reference to article 546 of the Criminal Code that was amended 18 years ago to grant civilians the faculty of reporting a suspected crime directly to an inquiring magistrate.

When all was considered, the court concluded that the necessary requisites for an in genere inquiry were not satisfied and thus turned down the family’s appeal.

Lawyers Michael Sciriha and Ingrid Zammit Young represented the hospital authorities and consultants in the proceedings.