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Judgment
This criminal petition is filed by the petitioners/A-1 and A-2 under Section 482 of Cr.P.C. to quash the proceedings in C.C. No.578 of 2012 on the file of the Court of the Munsiff Magistrate at Metpalli, Karimnagar District taken on file for the offence under Section 304-A IPC based on the protest petition against the final report in Crime No.162 of 2009 on the file of the Metpalli Police Station, Karimnagar district filed against them.
The case of the petitioners, in brief, was that the 2nd respondent filed a protest petition against them contending that his wife Smt. Sudhamala, aged 40 years, was suffering from uterus problem. The petitioner No.1/A-1 was a Doctor/Gynaecologist running a hospital, by name, Nitya Sai Hospital at Metpalli. Petitioner No.2/A-2 was an Anaesthetist. The respondent No.2 approached the petitioner No.1 for the uterus problem of his wife and she was informed that there were fibroids in the uterus and that it should be operated. He then took his wife for tests to Rainbow Hospital and Global Hospital at Hyderabad and then brought her back to the hospital of petitioner No.1. The test reports from Hyderabad made out that his wife was having a 12 x 8 cm size fibroid. He then brought back his wife to the petitioner No.1 who conducted tests on her in her hospital on 11.06.2009 and informed the complainant that surgery was required to remove such fibroids.
On 12.06.2009, the 2nd respondent admitted his wife in Nitya Sai Hospital. Two bottles of blood too was kept ready for any emergency requirements. At about 5.00 PM, on 12.06.2009, she was taken into the operation theatre and till that time she was in good health. An hour after the operation started, the petitioner No.1 came and informed that his wife was having bleeding problem and that she suffered a cardioc arrest. The complainant discussed with the husband of the petitioner No.1 who was also a doctor in the same hospital, and after discussions, the petitioners shifted her from the operation theatre into ambulance and took her to Apollo Hospital at Karimnagar. The husband of the petitioner No.1 followed the ambulance in a car along with an advocate. The patient was on ventilator for nearly two hours at the hospital at Karimnagar. The husband of the petitioner No.1 requested the complainant not to give any complaint against the doctors, but the complainant insisted to save his wife and take whatever amount he wanted. At 2.00 AM, the duty doctor at the hospital at Karimnagar informed the 2nd respondent that his wife died. At that stage, the 2nd respondent-complainant understood that his wife died due to rashness and negligence on the part of the petitioners in conducting operation wherein heavy bleeding occurred within a short period and her heart beat came down because of which she died. The 2nd respondent lodged a complaint with the Police Metpalli, who registered as Crime No.162 of 2009 under Section 304-A IPC and sent the dead body to Government Hospital for post-mortem examination. On 13.06.2009 post-mortem was conducted. After obtaining reports from KMC, Warangal, doctors issued final opinion that the cause of death was due to "Cardio respiratory arrest".
During the course of investigation, the Police addressed a letter to the District Medical and Health Officer, Karimnagar to refer the issue to an expert with a view to know whether there was any negligence on the part of the petitioners, who inturn requested the Director of Medical Education, A.P. The Director of Medical Education, A.P. constituted an expert committee with two senior Forensic Professors, who after a thorough enquiry and having gone through all the medical records of the deceased including case sheets and post-mortem records opined that there was no negligence on the part of the doctors. Based on the said opinion, the Police issued notice to the 2nd respondent that they were going to file final report in the case as mistake of fact.
Aggrieved by the said final report filed by the Police, the 2nd respondent filed the protest petition contending that the expert committee should be constituted by the expert doctors in Gynaecology, who would be proper persons to assess the negligence on the part of the other Gynaecologists. He contended that the Police did not correctly assess the evidence collected during the investigation and did not correlate the records and statements of the witnesses. Along with the protest petition, the 2nd respondent got himself examined along with two others.
On the protest petition, the Junior Civil Judge, Metpalli took cognizance under Section 304-A IPC and issued summons to the petitioners herein. The petitioners filed the present petition seeking to quash the said proceedings against them.
Heard the learned counsel for the petitioners and the learned Public Prosecutor. There is no representation for the 2nd respondent.
The learned counsel for the petitioners submitted that either the original complaint dated 13.06.2009 or the protest petition dated 18.06.2010 given by the complainant would not show on what material on record the complainant attributed negligence on the part of the petitioners, who performed the operation, for the death of his wife. Except baseless and vague allegations, there was no material on record to substantiate any of the allegations made by the complainant. Even as per the complaint, the 1st petitioner advised all the necessary tests to the wife of the complainant when she had been suffering for the past 4 to 5 years with fibroids in her uterus and only after having all the necessary tests done and after the 2nd petitioner cleared her for surgery it was decided to have the operation conducted for the removal of fibroids in the uterus. As seen from the complaint itself when the patient suddenly became critical and serious during the operation and suffered a cardiac arrest the petitioners gave her the fast available medical treatment and aid and as it was felt that she was in need of ventilator support and as the said facility was not available in their hospital, under intimation to her husband, the complainant herein, she was immediately shifted to the more specialised Apollo Hospital at Karimnagar. The 1st petitioner's husband, who was also a medical doctor and the 2nd petitioner, who was also an Anaesthetist and another Anaesthetist, by name, Dr.Ramesh went along with the patient to the higher medical centre at Karimnagar and got her admitted there. As per the case sheet, it was clear that they followed the normal medical and surgical protocol as was performed in all the cases of removal of fibroids and performed the operation. But it was unfortunate that during the operation, she suffered a cardiac arrest. They immediately gave her medical treatment and aid and as the situation warranted a higher medical care, she was immediately shifted in an ambulance with medical care and aid to the speciality hospital at Karimnagar. The allegations made by the complainant attributing negligence on the part of the petitioners had been examined by an independent committee of medical experts constituting two Forensic Professors, appointed by the Director of Medical Education, A.P. After a thorough enquiry, the experts gave a considered opinion that there was no negligence on the part of the doctors in the issue i.e. the petitioners herein. The said committee was formed on the basis of a request of the local Investigating Police Agency to the District Medial Health Officer to refer the issue for expert opinion. The said two Forensic Doctors were top specialists and professionals of eminent stature and authority.
He further submitted that the respondent No.2 filed a complaint before the A.P. State Consumer Disputes Redressal Commission at Hyderabad vide C.C. No.64 of 2011 against the petitioners herein and the said complaint was dismissed holding that there was no professional negligence on the part of the petitioners in treating the patient. Aggrieved by the same, the respondent No.2 preferred an appeal before the National Consumer Disputes Redressal Commission, New Delhi and the said appeal was also dismissed concurring with the orders of the State Commission. In view of the report of the expert committee and the findings of the State Consumer Redressal Forum and the National Consumer Redressal Forum, the continuation of the proceedings against the petitioners was sheer abuse of process of law and prayed to quash the proceedings against them.
The learned Public Prosecutor reported to decide the petition on merits as the Police after obtaining a legal opinion, filed a final report as 'mistake of fact'.
Perused the record. The record would disclose that the respondent No.2 lodged a report with the police on 13-06-2009 at 08-00 AM alleging that his wife died due to the medical negligence of the petitioners 1 & 2 herein and that they neglected their duty while conducting the operation. The police got conducted post-mortem examination of the deceased by a team of doctors. The team of doctors, who conducted the PME, preserved the heart and lungs and sent the same to KMC Warangal and after obtaining the reports issued final opinion that the cause of the death was due to "cardio-respiratory arrest". Further, the police also addressed a letter to the District Medical & Health Officer, Karimnagar to refer the issue to an expert and the DME constituted an expert committee with two senior Forensic Professors. The Forensic Professors, after a thorough enquiry gave their opinion on 17-11-2009 stating that:
"1. The case sheets of the three hospitals relating to the deceased as patient do not disclose any evidence to suggest that there was either negligence or rashness on the part of the doctors in discharging their professional duties with reasonable degree of care and caution.
The patient's condition warranted the diagnostic procedures and the surgical procedures for the treatment of the disease with which she was suffering.
The doctors who discharged the duties are qualified and competent for discharging those duties.
The death appears to be due to an inherent non-preventable complication of the surgical procedure for which the doctors cannot be accused of criminal negligence.
The post-mortem report is not revealing any clues regarding the cause of death.
We are of the opinion that from a perusal of the above mentioned documents, there is no sufficient cause to accuse those doctors of criminal negligence in the discharge of their professional duties."
These two experts are one a Professor and Head of the Department of Forensic Medicine, Gandhi Medical College/Gandhi Hospital Secunderabad and the other Professor and Head of the Department of Forensic Medicine, Osmania Medical College/ Osmania General Hospital, Hyderabad. Their professional competence cannot be suspected. After considering their expert opinion and after obtaining the opinion of the Senior Additional Public Prosecutor, the police referred the case as "Mistake of Fact".
The A.P. State Consumers Redressal Commission at Hyderabad in C.C. No.64 of 2011 in its Order dated 30-12-2013 observed that merely because there had been a death, it could not be inferred that there was professional negligence or deficiency in service on the part of the Opposite Parties. None of the documents exhibited by the complainant clinchingly established that the Opposite Parties rendered deficient service while conducting operation to the deceased patient and that the death was a direct result of the action or inaction of the Opposite Parties to hold that they were negligent in treating the patient or in conducting the operation so as to make them liable to answer the claim of the complainants and there was no expert opinion on their behalf.
The National Consumer Disputes Redressal Commission vide Appeal No.117 of 2014 dated 17-11-2021 observed that:
"10. The medical record and the operative notes revealed us that admittedly on 12-06-2009 the patient underwent hysterectomy operation at about 05-30 PM, there was huge fibroid. Post operatively at 07-30 PM the patient suffered cardiac arrest. Though the patient was transfused two units of blood but the BP was not recordable, pulse was feeble. The doctors initiated CPR. The blood was continued, oxygen supply was continuous and the Dopamine dip was started. Injection Atropine and Adrenaline were given. The patient was incubated and connected to Boyle's and ventilation continued. At 8-00 PM the doctors noticed that the patient was not responding to painful stimuli. As the ventilator support facility was not available in the Opposite Party No. 3 hospital, the patient was shifted to higher center Apollo Hospital for further cardiac management with the Ambu-bag and oxygen support. At Apollo Hospital the relatives of the patient were explained about the serious condition of the patient, the doctors continued the resuscitation as per ACLS guidelines; however, the patient could not survive and declared dead at 02-00 AM on 13-06-2009.
We would like to rely upon the catena of judgments from the Hon'ble Supreme Court which held that the medical practitioner cannot be held liable for medical negligence simply because the things went wrong as the doctors performed their duties with ordinary degree of professional skill and competence. We further note that the AP Medical Board appointed an expert Committee consisting of two doctors- Professor and Head Forensic Medicine namely, Dr. Surender Reddy, from Gandhi Hospital, Secunderabad and Dr. M. Narayan Reddy from Osmania General Hospital, Hyderabad who in their report, dated 17.11.2009 opined that there was no negligence of the operating doctors.
In the instant case we are of considered view that the doctors followed the reasonable standard of care and there was neither deviation nor deficiency in service during operation or handling the post-operative complication. Considering the entirety of the case the Complainants failed to prove their allegations of excessive anaesthesia or excessive bleeding during the operation."
Thus, the State Commission as well as the National Commission after considering the history of the case opined that there was no negligence on the part of the petitioners herein.
The Hon'ble Apex Court in Martin F. D' Souza vs Mohd. Ishfaq (2009) 3 SCC 1 had laid down the general principles relating to Medical Negligence as:
"37. The broad general principles of medical negligence have been laid down in the Supreme Court Judgment in Jacob Mathew vs. State of Punjab and Anr. (2005) 6 SCC 1. However, these principles can be indicated briefly here :
The basic principle relating to medical negligence is known as the BOLAM Rule. This was laid down in the judgment of Justice McNair in Bolam vs. Friern Hospital Management Committee (1957) 1 WLR 582 as follows :
"Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill..... It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."
Bolam's test has been approved by the Supreme Court in Jacob Mathew's case.
In Halsbury's Laws of England the degree of skill and care required by a medical practitioner is stated as follows:
"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care.
Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC 2377 or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.
The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time.
The higher the acuteness in an emergency and the higher the complication, the more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and has to choose the lesser evil. The doctor is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case but a doctor cannot be penalized if he adopts the former procedure, even if it results in a failure. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not in a position to give consent before adopting a given procedure.
Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
As observed by the Supreme Court in Jacob Mathew's case :
"A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.
If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason - whether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being the better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to society."
When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.
To fasten liability in criminal proceedings e.g. under Section 304A IPC the degree of negligence has to be higher than the negligence which is enough to fasten liability in civil proceedings. Thus for civil liability it may be enough for the complainant to prove that the doctor did not exercise reasonable care in accordance with the principles mentioned above, but for convicting a doctor in a criminal case, it must also be proved that this negligence was gross amounting to recklessness.
Judged by this standard, the professional may be held liable for negligence on the ground that he was not possessed of the requisite skill which he professes to have. Thus a doctor who has a qualification in Ayurvedic or Homeopathic medicine will be liable if he prescribes Allopathic treatment which causes some harm vide Poonam Verma vs. Ashwin Patel & Ors. (1996)
4 SCC 332. In Dr. Shiv Kumar Gautam vs. Alima, Revision Petition No.586 of 1999 decided on 10.10.2006, the National Consumer Commission held a homeopath liable for negligence for prescribing allopathic medicines and administering glucose drip and giving injections.
Protection to Doctors in Criminal Cases
In para 52 of Jacob Mathew's case the Supreme Court realizing that doctors have to be protected from frivolous complaints of medical negligence, has laid down certain rules in this connection:
(i) A private complaint should 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.
(ii) 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 opinion applying the Bolam test.
(iii) A doctor accused of negligence should not be arrested in a 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 satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest should be withheld."
Considering the principles laid down in the above case, the facts of this case and the opinion of experts, it cannot be said that there was any rashness or negligence on the part of the petitioners in conducting the operation on the deceased. Considering the opinion of the State Commission and the National Commission wherein they observed that there was no professional negligence on the part of the petitioners herein, the continuation of proceedings against the petitioners in taking cognizance by the Court and issuing summons is considered as an abuse of process of law and hence, liable to be quashed.
In the result, the criminal petition is allowed quashing the proceedings against the petitioners in C.C. No.578 of 2012 on the file of the Court of the Munisff Magistrate at Metpally, Karimnagar District.
Miscellaneous petitions pending, if any, shall stand closed.