Dr. Sanjeev vs State of M.P.

R.C. Mishra, J.

This petition u/s 482 of the Code of Criminal Procedure (for short the ''Code'') has been filed for getting the prosecution for the offence punishable u/s 304-A of the IPC quashed.

The facts leading to the filing of this petition are not in serious dispute and may be summarized as under:

(i) The Petitioner runs a private hospital under the name of Radhakrishna Heart Care Hospital, at Kandeli, Narsinghpur. On 10.12.2000, at 2:00 p.m. one Yogesh Mahajan, the elder brother of complainant Vivek, complained of severe pain in chest. As per advice of the Family physician Dr. Ashok Nayak, Yogesh was taken to the Petitioner''s hospital that was situated at a distance of 8 Km. from his residence. After taking ECG, the Petitioner confirmed

that Yogesh had suffered a heart attack and accordingly treated

him. In the meanwhile, expressing that he was required to proceed to Mumbai on the same day by train in connection with his son''s admission to an educational institution, Petitioner asked Vivek to shift his brother to other hospital. He then administered one injection of calmpose; contacted Dr. G.C. Dubey the Cardiologist attached to Chouhan Memorial Hospital, Narsinghpur (for short "CM Hospital") referred the case to him and sent Yogesh in a Red-Cross Ambulance at the hospital. Dr. G.C. Dubey received Yogesh at the hospital and taking note of his serious condition, immediately gave necessary treatment. But, after a few minutes, Yogesh breathed his last.

(ii) Vivek submitted an application on 19.12.2000 before the SHO, PS Narsinghpur for initiating action against the Petitioner in respect of offences punishable under Sections 304-A and 420 IPC. However, the case against the Petitioner could be registered on 5.1.2001 only.

(iii) During investigation, statement of complainant Vivek Mahajan, Shailesh Mahajan (brothers of the deceased and other witnesses including Dr. Ashok Nayak and Dr. G. C. Dubey were recorded. The hospital in-charge of the Petitioner was inspected; relevant documents were seized and his statement was also recorded. The case was first referred to Dr. D.K. Satpathi Director of the Medico Legal Institute at Bhopal. Observing that if the statement made by the Petitioner was found to be true, no case of negligence would be made out. The Director suggested reference to Medical Board for opinion. In pursuance of the suggestion, the District Medical Board was requested to answer certain quarries about management of clinical situation by the Petitioner.

(iv) After completing the investigation, the SHO filed charge-sheet in respect of the offence punishable u/s 304-A only against the Petitioner

Learned Counsel for the Petitioner while placing reliance on the decision of the Apex Court in Dr. Suresh Gupta Vs. Govt. of N.C.T. of Delhi and Another, , has strenuously contended that there is no legal evidence to show that he was, in any way, criminally negligent in diagnosis or treatment of Yogesh. On the other hand, learned Sr. Counsel for the complainant submitted that the Petitioner was apparently guilty of culpable medical negligence resulting into death of Yogesh in view of the following facts:

a) He admitted the patient who had suffered a massive heart attack to his hospital knowing fully well that he would not be able to treat him for the next crucial 48 hours.

b) The patient was not admitted to the ICU and was treated in the corridor only.

c) Life-saving drugs such as injection Streptokinose necessary facilities for example oxygen cylinder were not available in the heart hospital managed by him.

d) The standard course of treatment was not followed by him.

e) He advised to shift the patient in the critical condition to other hospital.

To substantiate the arguments focused at the medical negligence, attention has also been invited to the decision rendered by a single Bench of this Court in State of M.P. v. Bharati Patidar 1995 (II) MPJR 347.

In his statement u/s 161 of the Code, Dr. Ashok Nayak, the consulting Physician of Mahajan Family, has clearly admitted that upon his advice only, Yogesh was brought to Petitioner''s hospital in a Maruti Van. According to him- he also rendered necessary assistance to the Petitioner who had given necessary emergency treatment to Yogesh after taking ECG and recording Blood Pressure. He has categorically stated that, at any point of time, no symptom of anoxia necessitating arrangement for providing extra oxygen to regulate breathing was noticed. As per his. version, all other patients were asked to leave and remain outside during treatment of Yogesh, who was shifted to CM Hospital in a stable condition with his consent only solely due to Petitioner''s proposed departure for Mumbai after a few hours.

The other medical expert Dr. G.C. Dubey who had the occasion to evaluate the conduct and competence of the Petitioner has also opined that the treatment given to Yogesh was appropriate. According to him. Yogesh had suffered a massive heart attack and therefore, ascertainment of his chance of survival was possible only after 48 hours. Thus, Dr. G.C. Dubey, has also not found the Petitioner guilty of medical negligence.

Amongst the answers, given by the Medical Board on 12.4.2001 with reference to the queries raised by the Investigating Officer, the following deserve reference:

a) Administration of streptokinose injection could have brought immediate improvement in the condition of the patient.

b) Availability of oxygen cylinder in a heart care clinic is utmost necessary, if a person having heart attack is connected to the cylinder by means of a tube, his condition would improve.

c) Non-availability of life saving drugs in a heart care clinic falls under negligence.

d) Treatment in the intensive care unit rather than in a verandah would have been more beneficial to the patient.

e) The advise to shift the patient to another hospital even before his condition could become satisfactory was not proper.

There is no evidence on record to suggest that a filled oxygen cylinder was not available in the hospital on 10.12.2000. On the contrary, witness R.K. Malik has stated that after 30.9.2000 he had received the oxygen cylinder for refilling on 16.10.2001 only. Moreover, the family physician Dr. Ashok Nayak has clearly belied the assertion that Yogesh had to face breathing problem for want of oxygen.

In Bharati Patidar case (supra) it was held that non-availability of Ambubag was indicative of negligence on the part of the Nursing Home Authority. However, the facts are otherwise in this case where it has been found that the Heart Care Hospital run by the Petitioner was well equipped. Moreover, neither Dr. Ashok Nayak nor Dr. G.C. Dubey, has pointed out any negligence or deficiency in the diagnosis or treatment of Yogesh by the Petitioner. Admittedly, Yogesh succumbed to the cardiac arrest in CM Hospital. His dead body was not subjected to post mortem to ascertain the exact cause of death.

In the words of Sir Lawrence Jenkins (in Emperor v. Omkar Ram Pratap (1902) 4 Bom 1.R.679)

to impose criminal liability u/s 304-A IPC it is necessary that the death should have been the direct result of a rash and negligent act of the accused and that act must be proximate and efficient cause without the intervention of another''s negligence. It must be the cause causans; It is not enough that it may have been Causa Sine qua non. [quoted with approval by the Apex Court in Kurban Hussein Mohammedali Rangwalla Vs. State of Maharashtra, ]

After taking into consideration all the leading decisions on culpable medicinal negligence, the following illuminating observations were made in Dr. Suresh Gupta''s case (Supra):

For every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment. Criminal prosecutions of doctors without adequate medical opinion pointed to their guilt would be doing great disservice to the community at large because if the Courts were to impose criminal liability on hospitals and doctors for everything that goes wrong, the doctors would be more worried about their own safety than giving all best treatment to their patients. This would lead to shaking the mutual confidence between the doctor and the patient. Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an offence of culpable negligence.

The view expressed in Dr. Suresh Gupta''s case that an act of medical negligence resulting into death of patient could attract criminal liability only when the degree of negligence is so gross and the act of doctor was so reckless as to endanger life of their patient has been reaffirmed by a larger Bench in Jacob Mathew Vs. State of Punjab and Another, .

Accordingly, even if the allegation made in the FIR and the facts mentioned in other documents submitted with the charge-sheet are taken at their face value and accepted in their entirely, no offence punishable u/s 304-A IPC would be made out against the Petitioner.

In the result, the petition is allowed and the prosecution of the Petitioner for the offence u/s 304-A IPC is quashed.