Dr. Ashok Ladha vs State Of Madhya Pradesh

The applicant has preferred this petition under Section 482 of the Code of Criminal Procedure (in short the Cr.P.C.) against the order dated

7.10.2016 passed in Criminal Revision No.6/2016 whereby the order dated 7.11.2015 passed by the Judicial Magistrate First Class, Indore framing

charge under Section 304-A of the Indian Penal Code (in short IPC) against the petitioner in Criminal Case No.19223/2015 has been affirmed.

Brief facts of the case are that the petitioner is a GastroenterologySurgeon practicing in Indore. On 3.7.2012 Kamal Parmar (deceased) was

admitted as an emergency case by Dr. Manish Neema, Consultant Heamatologist at Vishesh Hospital. Kamal Parmar was suffering from severe

sickle cell anemia. He was having severe abdominal pain when he was admitted at Vishesh hospital. On 6.7.2012 Dr. Neema requested the

petitioner to surgically removed both the enlarged spleen and the gall bladder which was causing pain and fever to the deceased. On 7.7.2012 Kamal

was operated and fixed a wide bore abdominal tube drain in the left side of the upper abdomen to check for any post-operative bleeding of which

there was done. Around 7.30 p.m., Kamal Parmar became unconscious and he was shifted to I.C.U. However, he has died on 8.7.2012.

The postmortem of the deceased was performed a short gastric artery was found cut and open. The cause of death was opined as shock and

haemorrhage from one operated short gastric artery. Then, a medical Board was constituted to examine that if there was negligence in the surgery

done by the petitioner and gave a report dated 23.10.2013 that Kamal Parmar has died due to negligence of the petitioner. On the basis of this

Court, the Police filed the charge sheet against the petitioner for offence under Section 304-A of the IPC and the Judicial Magistrate First Class vide

order dated 7.11.2015 read out the substance of accusation against the petitioner. Against the aforesaid order, the petitioner has filed a criminal

revision before the Sessions Court, which was dismissed by the impugned order, which is a subject matter of challenge before this Court.

Learned counsel for the petitioner has submitted that the trial Courthas taken a very casual and cavalier approach to the entire case against the

petitioner and has failed to appreciate that the Hon'ble Supreme Court has laid down that in order to prosecute a doctor for criminal negligence under

Section 304-A of the IPC or such other proceed in a prosecution against the doctor and the evidence on record must show that there was “gross

negligence†on the part of the doctor. It is further submitted that even assuming that there any negligence on the part of the doctors then that by

itself would not be a negligence in criminal law. The element of mens rea must be shown and the degree of negligence should be much higher.Â

However, in the present case, the surgery was done by the petitioner to cure the patient, who was having severe abdominal pain due to a rapidly

enlarging spleen accompanied with fever. The material on record shows that the act of the petitioner come within the meaning of negligence or

gross negligence, which is essential for the precaution can be lodged against the erring doctor. The Review Committee of five doctors arrived at that

there was no gross negligence on the part of the petitioner, therefore, no case is made out against the petitioner under Section 304-A of the IPC.

Per Contra, learned counsel Public Prosecutor for the State hassubmitted that the patient Kamal Parmar has died due to the act of negligence of

the petitioner. Therefore, it is submitted that there is a prima-facie case made out against the petitioner.

Heard the learned counsel for the parties and perused the entirecharge sheets.

It is an admitted fact that Kamal Parmar was admitted at VisheshHospital, Indore having severe abdominal pain and on 7.7.2012 he was

operated by the petitioner/Dr. Ashok Ladha and due to excess bleeding, he died. The reason for the excess bleeding was opined as shock and

haemnorrhage from one operated short gastric artery, which was cut and open during the operation. After that the postmortem was done and the

First Information Report was lodged against the petitioner for offence under Section 304-A of the IPC. A Medical Board was constituted to

examine that there was any negligence in the surgery done by the petitioner. The Medical Board after examination, all the papers relating to the

treatment of the patent Kamal Parmar gave a conclusion, which read as under:-

As is evident from the postmortem report the patient died because of Hypovolumic shock due to uncontrolled excessive blood loss.

Hypovolumic shock was due to bleeding from the cut open short gastric vessels.

It appears that Dr. Ashok Ladha while examining the patient could not asses the situation and considered it hyperglycemia crisis rather than

hyprovolumic. It also appears that the operating surgeon focused more on treating hyperglycemia rather than searching the cause of hypotension.

Had a post operative Heamoglobin has been done or a post operative USG done, they could have approached the patient in a different way.

Hypovolumic shock following bleed from short gastric vessels following splenectomy is treated by re-exploration and ligation of the culprit bleeding

vessel.

Such patients when re-explored timely (i.e. before they go into irreversible phase of shock) can be saved.

Between 4 pm to 7 pm in the post operative period when the pulse and BP were deteriating, that was the time when patient could have been re-

explored.

Again a window of opportunity came in the ICU between 8 pm (on 07.07.12) to 2 am (08.07.2012) where pulse and BP recovered. It appears

both these opportunities were missed and finally patient went into irreversible shock.

Some times even with the best of hands and in best situations even after re-exploration the patients die, but not re explorting at all appeared to be

accountable for negligence.

The opinion of the inquiry team is that there appears to be negligence on the part of the operating surgeon, if viewed in the perspective of what is

mentioned in literature and what was actually done.

Upon the petitioner's representation, the Dean of M.G.M. MedicalCollege, Indore constituted a Review Committee to examine the correctness of

the report given by the Medical Board and after offering the opportunity of hearing to the present applicant, the Review Committee has given a report

dated 23.7.2014 and concluded as under :-

The patent Kamal Parmar, 20 years old, male was a knowncase of sickle cell disease with previous admissions. He had massive splenomegaly

with cholelithiasis and was having severe abdominal pain. He was evaluated by Dr. Ashok Ladha (suregon) and Dr. Manish Nema

(Hematologist). He was admitted in Vishesh Hospital on 3.7.2012 and was managed medically for his symptoms.

As he had massive splenomegaly with severe abdominal painand was not responding to medical treatment, it was decided by the treating doctors

that he should undergo splenectomy along with cholecystecytomy. He underwent uneventful surgery on 7.7.2012 and recovered from anesthesia.Â

He was in ward after surgery. In the evening, on the sameday, his condition deteriorated and he was shifted to ICU, where he was monitored,

treated and was seen by the operating surgeon.

Hyperglycemia was detected post operatively, which couldhave been induced because of major surgery. It was managed in ICU.

Despite of all the measures taken to manage the patient, hiscondition continued to deteriorate and he died in the morning of 8.7.2012.

According to the postmortem report provided to thecommittee, he had hemoperitoneum with bleeding from short gastric vessel. Primary internal

hemerrhage after splenectomy is a known complication, which went undetected in the post operative period in this case.

The operating surgeon did not find any major bleed from thedrain kept in the abdominal cavity. The ultrasound done bed side post operative also

did not reveal any major intra-abdominal bleed. Hence, the surgeon did not feel to re-explore the case and thus patient was continued on medical

treatment.

Looking to the documents provided and statement ofsurgeon, there seems no gross negligence on the part of team of doctors involved in this

particular case.

From the perusal of the documents, it reveals that during theinvestigation, the Police brought the conflict in opinion between the Medical Board and

the Review Committee to the notice of the Dean who thereafter gave his opinion concurring with the finding of the Medical Board that there was

negligence on the part of the petitioner.   Â

In the case of Jacob Mathew vs. State of Punjab reported in (2005) 6 SCC 9, Hon'ble Supreme Court has held thus :

 48. We sum up our conclusions as under :-

(1) Negligence is the breach of a duty caused by omission to dosomething which a reasonable man guided by those considerations which ordinarily

regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as

given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on

account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence

are three: 'duty', 'breach' and 'resulting damage'.

(2) Negligence in the context of medical profession necessarilycalls for a treatment with a difference. To infer rashness or negligence on the part of a

professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence.

A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows

a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or

method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or

procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were

taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have

prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the

practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of

negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular

time (that is, the time of the incident) at which it is suggested it should have been used.

(3) A professional may be held liable for negligence on one of thetwo findings: either he was not possessed of the requisite skill which he professed to

have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for

judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that

profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled

professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional

proceeded against on indictment of negligence.

(4) The test for determining medical negligence as laid down inBolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.

(5) The jurisprudential concept of negligence differs in civil andcriminal law. What may be negligence in civil law may not necessarily be negligence in

criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence,

the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may

provide a ground for action in civil law but cannot form the basis for prosecution.

(6) The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be

of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304A of the IPC has to be read as qualified by the

word 'grossly'.

(7) To prosecute a medical professional for negligence under criminallaw it must be shown that the accused did something or failed to do something

which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard

taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.

(8) Res ipsa loquitur is only a rule of evidence and operates in thedomain of civil law specially in cases of torts and helps in determining the onus of

proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal

law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.

In view of the principles laid down hereinabove and the precedingdiscussion, we agree with the principles of law laid down in Dr. Suresh Gupta's

case (2004) 6 SCC 422 and re-affirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the

law as stated in Dr. Suresh Gupta's case. We may not be understood as having expressed any opinion on the question whether on the facts of that

case the accused could or could not have been held guilty of criminal negligence as that question is not before us. We also approve of the passage

from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Suresh Gupta's case

(noted vide para 27 of the report).

Guidelines re: prosecuting medical professionals

As we have noticed hereinabove that the cases of doctors(surgeons and physicians) being subjected to criminal prosecution are on an increase.

Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The

investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act

of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal

process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest,

which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his

reputation cannot be compensated by any standards.

We may not be understood as holding that doctors can never beprosecuted for an offence of which rashness or negligence is an essential

ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession

renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a

complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation.

Such malicious proceedings have to be guarded against.

Statutory Rules or Executive Instructions incorporating certainguidelines need to be framed and issued by the Government of India and/or the

State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future

which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint

may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another

competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before

proceeding against the doctor accused of rash or negligent act or 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. A doctor accused of rashness or negligence, may not be arrested in a routine manner

(simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or

unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless

arrested, the arrest may be withheld.

Hon'ble Apex Court in the case of A.S.V. Narayanan Rao vs. Ratnamala reported in (2103) 10 SCC 741, after considering the report submitted

by the Medical Council of India, came to the conclusion that as per the Medical Council of India as well as the Andhra Pradesh Medical Council

“doctors seem to have made an attempt to do their best as per records†came to a conclusion that the prosecution of the doctor is uncalled for

and negligence, if any, on the part of the concerning doctor, cannot be said to be “grossâ€​.

If the facts and circumstances of the present case are considered in the light of the judgment passed by the Hon'ble Supreme Court in the cases of

Jacob Mathew (supra) and A.S.V. Narayanan Rao (supra), it is clear that no negligence much less the gross negligence has been found by the

Review Committee constituted by the Dean Medical College, Indore.

From the perusal of the medical papers of the deceased Kamal Parmar, it is clear that the patient Kamal Parmar was admitted in the Vishesh

Hospital, Indore and on the request of Dr. Manish Nema, the petitioner operated the patient Kamal Parmar on 7.7.2012. All necessary steps, which

are required to be performed, prior to the operation were done and after the operation an ultra sonography was also done, which did not indicate any

accumulation of any fluid in the abdominal cavity and the deceased was died due to the cut of short gastric artery during the surgery. The act of the

petitioner can be negligence, but there was no gross negligence on the part of the doctor, as per opinion given by the Review Committee. The

hospital where the operation done was fully equipped and the petitioner did his best to cure the patient. In these circumstances, it cannot be said that

the petitioner did not take all the precautions, which were accepted at the time of the surgery. Therefore, this Court of the considered view that the

petitioner was not negligent much less gross negligence in performing the surgery. Accordingly, the present petition is allowed. The impugned

orders passed by the Courts below are hereby set aside and proceedings pending against theapplicant Dr. Ashok Ladha before the trial Court for

offence under Section 304-A of the IPC is hereby quashed.

Let a copy of this order be sent to the concerned trial Court forinformation.