Oral Common Judgment:
How far the Doctor can be held liable for criminal action in case wherein one scissor was left in the abdominal area of the patient during the course of surgery/treatment ?
2. The facts giving rise to the above question are thus:
The complainant, who was pregnant, had delivered a child on 14.5.1999. It was cesarean operation. The operation was carried out at Anand Hospital, Ankleshwar, which is said to be run by Doctor Family Dr. Mahendrabhai Panchal (who is hereinafter referred to as âA/1â) and Dr. Rekhaben â his wife â (who is hereinafter referred to as âA/2â). Their Hospital is situated at Ankleshwar. After delivery, she was discharged from the hospital on 22.5.1999. Thereafter, she had said to have developed pain in her abdominal area. After consultation with the doctor, complainants sonography was carried out on 23.6.1999. X-ray was also carried out by Dr. Nanavati (A/3). It is the say of the complainant that in sonography report though scissor was found by Dr. Nanavati, the same was not immediately disclosed to the complainant. It is alleged that there was connivance between all the accused. Then at the instance of the sister of the complainants husband (Nanand), who appears to reside at Bombay, the complainant was referred to Bhakti Vedanta Hospital at Bombay. There X-ray/sonography was undergone by the complainant. She was operated there and a scissor was alleged to have been found from her body. Then on 27.3.2000, a private complaint came to be lodged by the complainant before the learned J.M.F.C. Ankleshwar against Dr.Mahendra G.Panchal, Dr.Rekha M.Panchal of Anand Hospital and Dr. D.N.Nanavati of X-ray and Urological Clinic, Ankleshwar, alleging that the accused have committed offences punishable under Sections 196, 197, 198, 406, 420, 337, 338 r.w. section 114 of the Indian Penal Code. The said complaint was registered as Criminal Case No. 1905/2000.
3. Pursuant to the complaint, the complainant, her husband and one Dr. Shah of Bombay were examined for framing charge. These witnesses were also cross-examined. Before framing of charge, accused had applied for discharge. The said discharge application came to be decided by the learned J.M.F.C. Ankleshwar by his order dated 16.7.2005. The learned Magistrate was pleased to hold that no case is made out for the offences under Sections 196, 197, 198 nor there is a question of offence under Sections 406 and 420 of IPC in the facts of the case. However, the trial Court had ordered that charge be framed against all the three accused for the offences punishable under sections 337 and 338 r.w. section 114 IPC.
4. The above order of learned J.M.F.C was carried in revision by the accused. A/1 and A/2 preferred Criminal Revision Application No. 96/2005 and A/3 preferred Criminal Revision Application No. 105/2005 before the Sessions Court, Ankleshwar. The learned Additional Sessions Judge (FTC-5), Ankleshwar, considered both the revision applications of all the three accused and by a common judgment and order dated 29.9.2005 was pleased to allow revision application qua A/2 (Dr. Rekhaben Panchal) and revision application of A/3 (Dr. D.N.Nanavati, Radiologist) and passed an order in the revision qua A/1 (Dr. Mahendra Panchal) that charge be framed against him for the offences punishable under Sections 337 and 338 IPC. The present three Criminal Misc. Applications arise out of the aforesaid common order passed by the learned Additional Sessions Judge.
5. Criminal Misc. Application Nos. 12500/2005 and 12490/2005 are filed by the original complainant praying to quash and set aside the common judgment and order dated 29.9.2005 passed by the learned Additional Sessions Judge in Criminal Revision Application Nos. 105/2005 and 96/2005; whereas Criminal Misc. Application No. 828/2006 is filed by Dr. Mahendra G.Panchal (A/1) praying to quash and set aside the judgment and order dated 16.7.2005 passed by learned J.M.F.C. Ankleshwar in Criminal Case No.1905/2005 and also to quash and set aside the order dated 29.9.2005 passed by the learned Additional Sessions Judge, in Criminal Revision Application No. 96/2005 to the extent it confirmed the order of the learned Magistrate against him.
6. Heard learned advocate Mr. B.C.Dave for the original complainant, learned advocate Mr. B.S.Patel for original Accused No.3, learned advocate Mr. Bomi Shethna for original accused Nos.1 and 2 and learned A.P.P. Mr. H.K.Patel for the State.
7. Learned advocate Mr. Dave for the original complainant submitted that the learned Additional Sessions Judge has committed a serious error in interfering with the order passed by the learned trial Court. It was submitted by Mr. Dave that the scope of revision is fairly limited. He further submitted that the order of the trial Court cannot be said to be perverse or prima facie bad in law and that being so, when the order was based on material available on record, the revisional Court ought not to have interfered with the order of the trial Court.
8. Learned advocate Mr. Bomi Shethna for original accused Nos.1 and 2 submitted that there is no prima facie case against either of the accused. It was submitted that the learned Additional Sessions Judge has rightly allowed the revision application qua A/2 and no interference is called for in the order of the learned Additional Sessions Judge in exercise of powers under section 482 Cr.P.C. Mr. Shethna further submitted that the learned Additional Sessions Judge has given sufficient reasons for dropping the case against A/2. Then referring to the merits of the case, it was pointed out by Mr. Shethna that there was no case for framing charge also against A/1. Referring to the Textbook of âClarks Positioning in Radiographyâ and other material, it was submitted by Mr. Shethna that in cases wherein presence of any foreign element in body is to be ascertained, then X-ray is to be taken in the method and manner pointed out/prescribed by the Expert. Further it was also urged that as per Dr. Shah of Bombay, artery scissor was found from the complainants abdominal area, while as per Dr.Shahs report mosquito forcep was found. Further it was submitted that Videography of the complainants operation was carried out by the doctor, however, no such videotape was produced before the learned trial Court. It was also submitted that Dr. Shah has not carried out sonography or X-Ray and the complainant ought to have examined the Radiologist or other Expert, who has carried out sonography. It was further submitted that no injury etc. was caused to the complainant. Mr. Shethna has referred to couple of off-quoted judgments of the Supreme Court on medical negligence and also drawn attention to one judgment of Patna High Court arisen on identical situation. Reference of the judgment may be made hereinafter.
9. Learned advocate Mr. B.S.Patel for original accused No.3 submitted that essential ingredients of Sections 337 and 338 IPC are not emerging even prima facie in the present case. It was submitted that none of the acts on the part of the accused, particularly A/3 can be said to be an âintentionalâ act. Mr. Patel further submitted that the alleged assertion of connivance of A/1, A/2 and A/3 is misconceived and incorrect, inasmuch as the complainant was not referred to A/3 either by A/1 or A/2 (doctors). That there is a finding of learned trial Court â which has become final â that the complainant had visited Dr. Surani and Dr. Surani had suggested to have sonography report. However, he also had not given the name of any doctor (Radiologist). In any case, A/1 or A/2 had not referred the complainant to A/3. Sonography Report of A/3 is on record. It was submitted that the order of learned Additional Sessions Judge does not call for any interference and the said Court had given reasons for interfering with the order of the learned trial Court. It was submitted by learned advocate Mr. Patel that in the facts and circumstances of the case allowing of revision application of A/3 was just, proper and legal.
10. Learned A.P.P. Mr. H.K.Patel, supporting the complainant, submitted that in the facts and circumstances of the case, it cannot be said that there is no prima facie case against the accused. It was submitted that there is sufficient material on record for framing charge against all the accused. Mr. Patel submitted that interference in exercise of power under section 482 Cr.P.C ought to be in the rarest of rare case. It was further submitted that while in the present case there being sufficient material on record, the Criminal Misc. Applications filed by the complainant may be allowed and the Criminal Misc. Application filed by A/3 may be dismissed.
11. I may consider the case of the parties: The ambit of power for exercise of jurisdiction under Section 482 Cr.P.C is fairly well-settled. It is held that the High Court can interfere to prevent abuse of process of Court (Parminder Kaur v. State of Uttar Pradesh and Anr., (2010)1 SCC 322) and in such like situation (Rajeswar Tiwari and Ors. v. Nanda Kishore Roy, (2010)8 SCC 442). (Also see, in this regard, recent case of J.D.Rana 2013 (1) GLR 65). However, the Court would not interfere when the FIR does disclose the commission of cognizable offence (Central Bureau of Investigation v. A.Ravishankar Prasad and Ors, 2009(4) SCC 557), nor when exercise of power would amount to stifle the legitimate proceedings (Kailashi Bai v. Aarti Arya and Anr. 2009(4) SCC 145). Much dependence on the facts and circumstances of the case. Generally speaking, it can be said that the fact-situation of a given case would be mainly determinative of whether it is permissible to interfere under Section 482 of Cr.P.C or not, but said jurisdiction in its very nature â it has to be conceded is such that subjective element â to limited extent â in every case cannot be ruled out.
12. In the present case, the limited question is, whether it can be said that in the circumstances of the present case, the complainant has made out a prima facie case and, therefore, no interference at the instance of the accused is called for As referred to above, order of the learned Additional Sessions Judge is under challenge by the complainant as well as by the accused.
13. In the case of Dr. Suresh Gupta v. Government National Capital Territory of Delhi, AIR 2004 SC 4091, doctor was facing the charge under section 304-A IPC. The complaint was on account of negligence of the doctor. The patient had died when he was operated for removing his nasal deformity. The doctor had filed an application for quashing the criminal proceedings under Section 482 Cr.P.C. The High Court had dismissed the petition. In appeal, the Supreme Court was pleased to allow the same and quash criminal proceedings against the doctor. It had held:-
â21. Thus, when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as âcriminal. It can be termed âcriminal only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patients safety and which is found to have arisen from gross ignorance or gross negligence. Where a patients death results merely from error of Judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable.â
14. Dr.Suresh Guptas case (supra) was considered in Jacob Mathew v. State of Punjab and Anr, AIR 2005 SC 3180. In fact, two learned Judges Bench of Supreme Court had felt that the case of Dr. Suresh Gupta needs consideration by the Larger Bench and that is how, Dr. Suresh Guptas case was considered in Jacob Mathews case (supra). In Jacob Mathews case, father of the complainant was admitted in a hospital in private Ward. On the day of the incident, father felt difficulty in breathing. Doctor was contacted and then Oxygen Cylinder was brought and the same was connected with the mouth of the patient. However, breathing difficulty of the patient continued. It was held that on account of the difficulty, patient had tried to get up from the bed, however, the medical staff had asked him to remain in the bed. Later on, it was found that oxygen cylinder was empty. No other gas cylinder available there. By the time doctor could make arrangement, patient had died. Offence was registered against the doctor under Section 304-A read with section 34 IPC. Process was issued. The doctor had filed an application under Section 482 Cr.P.C before High Court. The same was dismissed and review petition was also dismissed. In the elaborate judgment, the Supreme Court has laid down guidance how to appreciate the negligence, particularly medical negligence. It has considered and relied on Bolams case, (1957) 1 WLR 582 (586). The tests laid down therein â Says the Supreme Court are applied later on in several cases. Then,the Supreme Court has held as under:-
âTo prosecute a medical professional for negligence under criminal law 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. 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 an enddoes 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 a surgeon can successfully wield his lifesaving scalper to perform an essential surgery, nor can a physician successfully administer the life saving dose of medicine. Discretion being 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 the society. The purpose of holding a professional liable for his act or omission, if negligent, is to make the life safer and to eliminate the possibility of recurrence of negligence in future. Human body and medical science-both are too complex to be easily understood. To hold in favour of existence of negligence associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpabilityâ.
The Supreme Court was pleased to allow the appeal and quash the proceedings against the doctor. The Supreme Court has approved Suresh Guptas case (supra).
15. Again, thereafter in Martin F.Dsouzas case (AIR 2009 SC 2049), the question of issuance of process in case of medical negligence was considered by the Supreme Court. It had held in para 117 as under:-
âWe, 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 Mathews case (supra), otherwise the policemen will themselves have to face legal actionâ.
16. In the present case, it is important to note that the complainants complain is about pain. She had not received any apparent or external or internal injury on account of alleged leaving of scissor by the doctor. Further, she had, around this time, appendix trouble also. It is not clear that the operation carried out at Bombay was on account of appendix or it was not for that. Apart from appendix, assuming for a moment that the complainant had a pain and that pain was on account of alleged leaving of scissor by the doctor at the time of operation, in order to fasten criminal liability, if we apply the standard and the degree of care to be exercised in discharge of his duty by the medical practitioner, as envisaged in the above-referred cases by the Supreme Court, then the size of error and nature of mistake alleged to have been committed by the doctors herein â would not justify the initiation of any criminal action. Alleged act of accused, when weighed with decision of the Supreme Court, tilting of scale in favour of accused cannot be denied.
17. As to the finding under challenge, the learned Additional Sessions Judge has applied his mind â it was strenuously urged by the learned A.P.P and also by the leaned advocate for the complainant that the order of learned Additional Sessions Judge suffers from non-application of mind â contrary to the submission of the learned advocate â the learned Additional Sessions Judge has given reasons for discharging A/2 and A/3. Learned Additional Sessions Judge records that appreciating the evidence of witnesses it does not appear that there is a case against A/2 or A/3. No error of law or fact is committed by the learned Additional Sessions Judge in his order in recording the said conclusion.
18. Learned advocate Mr. Shethna has also drawn attention of the Court to an unreported judgment of Patna High Court [it is in Criminal Misc. Application No. 1666/2007 decided on 9.5.2008 (Coram: Madhavendra Saran J.) in case of Dr.V.R.Sinha v. State of Bihar]. In that case, nearly identical situation arose for consideration of the Court. The patient was operated for hernia and appendix. It was alleged that the doctor had left his forcep at the time of operation and for removal of the said forcep, second operation was carried out. A criminal complaint was lodged, process was issued for the offence under section 338 â as in this case â and for offence under section 204 IPC. The patient had also filed complaint before Consumer Forum. The High Court was pleased to quash the order of issuance of process.
19. Learned advocate Mr. Shethna has also drawn attention of the Court to the extract from the Textbook of Radiology and Imaging, edited by David Sutton, published by Churchill Livingstone, Edition 1980, wherein on page 1030 it is observed, âLocalization of a foreign body is a more difficult task. The simplest method, and the one most commonly used, is to obtain two films at right angles to each other. The position of most foreign bodies can be determined in this way. Unfortunately, when dealing with surfaces curving in three planes, for instance the skull and parts of the abdominal wall, films in two planes may not be enough. In such cases, a stereoscopic examination may be helpful provided the radiologist has taken the trouble to train his stereoscopic vision. .â
20. Relying on the aforesaid observations and similar observations made in Clarks Positioning in Radiography, it was submitted that in cases wherein some foreign element is left out in the body, two films at different angles only can give true picture. It was submitted that failure to carry out X-ray etc. in this fashion renders the assertion of the complainant unacceptable.
21. Prima facie observation made in the above referred two Books does help the accused (doctors). But, apart from the observation made in the Experts Book, it can be said that so far as A/1 is concerned, case of the prosecution does not rise upto the parameter of the tests laid down in the above referred Supreme Courts decisions. It may be added that in the case of Dr. Suresh Gupta (supra), patient had died while carrying out operation for removal of nasal deformity. The Apex Court has held in para-24 as under:-
âNo doubt in the present case, the patient was a young man with no history of any heart ailment. The operation to be performed for nasal deformity was not to so complicated or serious. He was not accompanied even by his own wife during the operation. From the medical opinions produced by the prosecution, the cause of death is stated to be ânot introducing a cuffed endotracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage. This act attributed to the doctor, even if accepted to be true, can be described as negligent act as there was lack of due care and precaution. For this act of negligence he may be liable in tort but his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable.â
22. Dr. Suresh Guptas case helps the accused (doctors). Then in Martin F.DSouzas case (supra) patient has suffered hearing loss on account of overdose of antibiotic. To recall, in Martin F. Dsouzas case (supra), it was also held that, prior to issuance of process, in case like the present one, Court is required to refer the matter to the competent doctor or committee of doctors specialized in the field and process should be issued only after receipt of report of said committee of doctors. Great value and importance of this guideline laid down in clear terms may be pressed into service fruitfully, more particularly, when the circumstances of the case on hand are not clear. The conclusion I am inclined to draw in a moment may be read subject to the rider of the law laid down in this guideline.
23. It would not be out of place to mention that at the time of hearing it was also submitted that the complainant herein had also filed complaint before Consumer Forum wherein order is made in her favour.
24. The conclusion, therefore is, the present case appears to be more closer to the case of accident and that being so, there is no prima facie case of the complainant against any accused and, therefore, interference is called for in the judgment and order impugned in the applications filed by the accused.
25. The question framed in the opening part of the judgment, in view of the above referred binding decisions, may be answered as under:-
In order to consider, whether doctor is liable for criminal action or not, tests to be applied are;-
(i) is it a case of gross lack of competence on the part of the doctor, OR is it a case of total indifference shown by doctor to patients safety; OR
(ii) is it a case of mere error of judgment OR an accident, OR
(iii) in the facts and circumstances of the case, is it possible to infer that the doctor has to gain something by showing indifference.
In other words, the doctor would be in difficulty when the case of culpability on his part is possible to infer from the material on record.
Greed â new age mantra or crass professionalism are much common human trait in present time. So if doctor, infected by such germs, treats or operates innocent patient and patient suffers thereby, or his relative, in case of fatal error â then as a natural consequence the doctor may lend in dock.
26. In view of the above discussion, Criminal Misc. Application Nos. 12500/2005 and 12490/2005 fail and are hereby dismissed. Rule is discharged.
Criminal Misc. Application NO. 828/2006 is hereby allowed. Rule is made absolute.