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Judgment
This criminal original petition has been filed under Section 482 of Cr.P.C., seeking to quash the proceedings in C.C.No.222 of 2010 on the file
of the Judicial Magistrate No.2, Nagercoil.
It is averred in the petition that the respondent''s wife Tmt.Vimala Rani was admitted in the petitioners'' hospital on 16.05.2008 for right hip pain,
which was present for five years. After preliminary investigation and treatment, she was suggested right hip replacement surgery as other measures
had failed. After getting consent and proper fitness, surgery was performed on 25.05.2008 under anesthesia. During reaming of femur, thigh bone,
so as to fit into the joint cavity, fat present in femur got dislodged and resulted in fatt embolism. Fat embolism caused pulmonary embolism finally
ending up with disseminated intra vascular coagulation, by which the blood looses its potency to clot and all the blood vessels of the body start to
bleed uninterreupted. The best possible treatment was given and many bottles of blood were transfused. Inspite of herculean efforts, the patient
died later in ICU.
The respondent/complainant preferred a private complaint before the Judicial Magistrate No.2, Nagercoil on 09.09.2008. The Judicial
Magistrate instructed the DSP to submit an enquiry report. On the request of DSP, the Dean, Kanniyakumari Government Medical College
Hospital constituted an enquiry committee consisting of head of department of orthopedics, medicine and anesthesia. The committee gave a finding
that patient was given all the necessary treatment and there is no negligence on the part of medical personnel as per the records of the hospital.
However, the Judicial Magistrate sent notice to the petitioners, taking the case on file as C.C.No.222 of 2010. The Judicial Magistrate is in error
to have taken the complaint on file. The Judicial Magistrate has not followed the judgment of the Hon''ble Supreme Court, which exfacie illegal.
Therefore, the proceedings as against the petitioners are to be quashed.
The learned counsel for the petitioners contends that as per the decisions of the Hon''ble Supreme Court, there should be a credible opinion
given by another competent doctor to support the charge and then only, the complaint can be taken on file by the Judicial Magistrate. But, contrary
to the decision, the Judicial Magistrate took the case on file and therefore, the same is liable to be quashed.
The learned counsel for the respondent interalia contends that primafacie there are sufficient materials to make out a case for the offence of
medical negligence and after considering the complaint and other materials, the Judicial Magistrate has rightly took the case on file and the same
does not require any interference.
The learned counsel for the respondent cited the judgments of the Hon''ble Supreme Court in Malay Kumar Ganguly Vs. Dr.Sukumar
Mukherjee reported in (2009) 9 Supreme Court Cases 221 and Kusum Sharma and Others Vs. Batra Hospital reported in (2010) 3 Supreme
Court Cases 480, for the proposition that the jurisprudential concept of negligence differs in civil and criminal law and for negligence to amount to
an offence, the element of mens rea must be shown to exist and for an act to amount to criminal negligence, the decree of negligence should be
much high degree. There is no dispute with this.
The point for consideration in this case is whether the Judicial Magistrate is right in taking the case on file after getting a report from a committee
of doctors opining that there is no negligence on the part of the doctors, who gave treatment.
In the instant case, the petitioners treated the patient by name Tmt.Vimala Rani, wife of the complainant and during surgery, complication arose
and she passed away. The complainant preferred a private complaint before the Judicial Magistrate. As per the instructions of the Judicial
Magistrate, DSP approached the Dean of Kanyakumari Medical College Hospital for an enquiry report. The Dean constituted an enquiry
committee consisting of Head of Department of Orthopedics, Medicine and Anesthesia.
They gave a report and the finding is given in the concluding paragraph, which reads thus:
Patient was given all the necessary treatment for the above said condition and there is no negligence on the part of Medical Personnel as per the
records of the hospital.
After getting the above report, the Judicial Magistrate took the case on file and issued summons to the petitioners. It is pertinent to note that no
other opinion from any other competent doctor has been filed by the complainant to support the charge of rashness or negligence on the part of the
petitioners.
The learned counsel for the petitioners cited the judgment of the Hon''ble Supreme Court in (i)Jacob Mathew V. State of Punjab and another
reported in 2005(3) CPR 70 (SC) and (ii) Martin F.D''souza V. Mohd. Ishfaq reported in 1(2009) CPJ 32 (SC) and argued that before issuance
of summons to the accused in a case of medical negligence, there should be a report from another competent doctor to strengthen the charge of
negligence or rashness. In the first judgment, it has been held as follows:
53.Statutory Rules or Executive Instructions incorporating certain guidelines 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.
In the second judgment, it has been held as follows:
54.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.
Precautions which Doctor/Hospitals/Nursing Homes should take :
(a) Current practices, infrastructure, paramedical and other staff, hygiene and sterility should be observed strictly. Thus, in Sarwat Ali Khan vs.
Prof. R. Gogi and others Original Petition No.181 of 1997, decided on 18.7.2007 by the National Consumer Commission, the facts were that out
of 52 cataract operations performed between 26th and 28th September, 1995 in an eye hospital 14 persons lost their vision in the operated eye.
An enquiry revealed that in the Operation Theatre two autoclaves were not working properly. This equipment is absolutely necessary to carry out
sterilization of instruments, cotton, pads, linen, etc., and the damage occurred because of its absence in working condition. The doctors were held
liable.
(b) No prescription should ordinarily be given without actual examination. The tendency to give prescription over the telephone, except in an acute
emergency, should be avoided.
(c) A doctor should not merely go by the version of the patient regarding his symptoms, but should also make his own analysis including tests and
investigations where necessary.
(d) A doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient.
(e) An expert should be consulted in case of any doubt. Thus, in Smt. Indrani Bhattacharjee, Original Petition No.233 of 1996 decided by the
National Consumer Commission on 9.8.2007, the patient was diagnosed as having `Mild Lateral Wall Eschemia''. The doctor prescribed medicine
for gastro-entiritis, but he expired. It was held that the doctor was negligent as he should have advised consulting a Cardiologist in writing.
(f) Full record of the diagnosis, treatment, etc. should be maintained.
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117.We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or
National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum
or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical
negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then
issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We
further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew''s
case (supra), otherwise the policemen will themselves have to face legal action.
Either the statutory rules or executive instructions as to the guidelines is yet to be framed by the Government of India and/0r the State
Governments in consultation with the Medical Council of India. Therefore, as per the above judgments of the Hon''ble Supreme Court, a private
complaint is entertainable only when the complainant produce primafacie evidence before the Court in the form of credible opinion given by
another competent doctor to support the charge of rashness or negligence on the part of the accused doctors.
In this case on hand, as already pointed out, the opinion obtained by the Court from a committee of doctors is not supporting the charge of
rashness or negligence. The complainant has also not produced any other evidence in the form of credible opinion given by another competent
doctor to support the charge. Therefore, the complaint taken on file by the Judicial Magistrate as against the petitioners is not inconsonance with
the above dictum of the Hon''ble Supreme Court. Putting the petitioners under ordeal of trial is nothing but harassment to the petitioners and abuse
of process of court.
For the aforesaid reasons, the proceedings in C.C.No.222 of 2010 on the file of the Judicial Magistrate No.2, Nagercoil is liable to be
quashed.
In the result, this criminal petition is allowed and the proceedings in C.C.No.222 of 2010 on the file of the Judicial Magistrate No.2, Nagercoil
against the petitioners are quashed. Consequently, connected miscellaneous petition is closed.