(Prayer: This Criminal Petition filed under Section 482 of the Criminal Procedure, 1973, praying to quash the charge sheet filed by the first respondent in C.C.No.24548/2011 Annexure-A arising out of Crime No.158/2010 of the second respondent police; quash the committal order dated 19.10.2011 Annexure-B passed by the XI Additional Chief Metropolitan Magistrate, Bangalore in C.C.No.24548/2008 and quash all further proceedings in S.C.No.1544/2011 pending on the file of the Presiding Officer, Fast Track Court-VII, Bangalore.
This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, read with Section 482 of the Code of Criminal Procedure, 1973, praying to a) call for the records in S.C.No.1544/2011 pending on the file of the II Additional City Civil and Sessions Judge, Bangalore City; b) quash the charge sheet filed by the first respondent in C.C.No.24548/2011 at Annexure-A pending on the file of the II Additional City Civil and Sessions Judge, Bangalore City in S.C.No.1544/2011 and etc;)
1. These petitions are heard and disposed of together, as the primary ground of challenge to the pending proceedings against the petitioners are identical.
2. The petitioner in the petition in Crl.P 3686/2013 is a Gynaecologist and Obstetrician, she is arrayed as accused no.1 and has been charge-sheeted for offences punishable under Sections 304A,201, 315 read with Section 34 of the Indian Penal Code, 1860. (Hereinafter referred to as the 'IPC' for brevity) in case no.CC 24548/2011, on the file of the Court of XI Additional Chief Metropolitan Magistrate, Bangalore. The case has been committed to the Court of Sessions and is numbered as SC 1544/2011. The petitioners have sought that the charge sheets filed, the committal order by the Magistrate and further proceedings before the Sessions Court be quashed. The petitioner's application seeking discharge, under Section 227 of the Code of Criminal Procedure, 1973, (Hereinafter referred to as the 'CrPC', for brevity) having been rejected, the petitioners have not chosen to question the same in the present petitions. However, there is a general prayer that all further proceedings be quashed.
The petitioner in the writ petition in WP 12723/2015 is a Radiologist by profession and he is arrayed as accused no.7 in the very case involving the petitioner in the first of these petitions. Hisapplication seeking discharge also having been rejected by the Sessions Court, the present petition is filed.
The facts and circumstances of the case, as stated, are as follows.
The complainant, Parikshit Dalal, had filed a complaint before the Pulakeshinagar Police, Bangalore, as on 16-4-2010, to the effect that he had admitted his wife, Kapali Patne to Santosh Hospital for elective Caesarean Section on the same day. That at about 9.30 AM, the patient was taken to the Operation Theatre (OT). At about 10.15 AM, while he was waiting outside the OT, he noticed that suddenly there was a flurry of activity and all the senior doctors of the hospital, including the Chief Medical Officer, appeared to rush into the OT. On enquiring with one of the personnel attending, the complainant is said to have been informed that the operation was yet to commence. It is stated that at about 10.40 AM, Dr.Indira Rao, the petitioner in the first of these petitions, is said to have called the complainant to a room adjoining the OT and had informed him that they hadadministered a general anaesthetic drug to his wife and though it was a one in a million case of adverse reaction, the patient is said to have reacted violently and that she had a severe anaphylactic attack and frantic efforts were being made to revive her and that they would be shortly moving her into an Intensive Care Unit (ICU). Dr Rao is also said to have informed the complainant that the patient's heart beat was very low.
The patient was said to have been taken to the ICU at about 10.50 AM. At about 12.10 PM, the Complainant is said to have been informed that both the mother and child (in her womb) could not be saved.
The complainant is said to have lodged a police complaint alleging that the doctors, staff and management, including these petitioners were responsible for the untimely death of his wife and unborn child. The police having registered a case and after investigation having charge-sheeted the petitioners and after further proceedings as already noted, the present petition is filed.
Incidentally, the complainant has also approached the Karnataka Medical Council seeking action against the petitioner and other doctors. The said proceedings which had commenced have, however, been stayed in view of the complainant himself having preferred a writ petition before this court in WP 1336- 1337/2012, and by virtue of an order of stay granted therein. The said petition is pending consideration.
The Complainant has also filed a claim for compensation in a sum of Rs.24.91 Crore against the hospital, pending before the National Consumer Disputes Redressal Commission.
In the above background, the primary contention in these petitions is that on the face of it, the allegations attributed to the petitioners even if accepted to be true, can at best be described as a negligent act for want of due care and precaution. For the said act of negligence, the petitioners may be liable in tort. But the alleged carelessness or want of due attention and skill cannot be described as being so reckless or grossly negligent as to make her criminally liable.
It is further elaborated that the charges levelled against Dr.Rao, as seen in the summary of the charge sheet, is that she and other accused persons had negligently allowed the patient to fall off the stretcher or the operation table, resulting in a fracture and internal bleeding. And in not readily providing efficacious treatment. Secondly, that she had failed to conduct a post mortem Caesarean Section, within 4 to 5 minutes of cardiac arrest, to save the intra uterine foetus. And in conspiracy with others having tampered with and altered the medical records particularly with reference to the time at which particular action was taken or as to the condition of the patient, during the crucial period of the attempt to revive the fast sinking patient, and to make it seem that the patient died at 11.50 AM.
3. It is contended that it is the settled legal position that in circumstances such as are alleged, even if the charges levelled against the accused are accepted as true, they would not constitute criminal acts - in the light of the law laid down by the apex court in the case of Dr. Suresh Gupta v. Govt. of NCT of Delhi, AIR 2004 SC 4091 and which position of law has been affirmed subsequently by a three judge bench of the apex court in the case of Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.
It is contended, given that the petitioner, Dr. Rao, could not be criminally prosecuted even if all the allegations were true, a prima facie perusal of the admitted medical reports and documents on record would disclose the complete innocence and lack of liability both in civil and criminal law, on facts.
It is pointed out that as seen from the medical records, Dr.Rao was present when the patient's vital parameters started to fail, Dr.Rao was actively assisting in the resuscitation process, the team was joined by several senior doctors, even according to the complainant. It is asserted that the complications had manifested on the administration of the anaesthetic drug and induction agents and certainly before the intervention by Dr.Rao, the Obstetrician. The anaesthetist was frantically managing the patient with the assistance of senior doctors, including a Physician, yet another anaesthetist, medical staff and the Chief Medical Officer of the hospital. In other words, the patient was in the hands of appropriate specialists and particularly the anaesthetist, who was primarily responsible for management of the patient after onset of complications which was before the intervention by the Obstetrician. And unless the patient was resuscitated and the anaesthetist indicated the patient's fitness for intervention by the Obstetrician, she could not have intervened even to save the unborn child's life at the cost of the mother's safety.
It is sought to be emphasized that the record indicates the manner in which the anaesthetist had sought to manage the patient to resuscitate her, till she was ultimately declared dead at 11.50 AM. And from the notes made by Dr.Rao, it is seen that she had called the ultrasonologist at 11.30 AM, by way of prudence to confirm her diagnosis that there was no foetal heart sound. Hence, it is contended that it could not be expected of Dr.Rao to intervene during the desperate bid to save the patient, and to attempt to deliver the unborn child, when saving the patient's life was the foremost object. Therefore, there was no occasion to deliver the child prior to 11.50 AM.
In other words, the allegation that the petitioner had failed to save the unborn child, which she could have done within 5 minutes of the death of the mother, was a possibility. But given the circumstances, the petitioner had no window of opportunity, as the baby had died before the mother had been declared dead.
In the circumstances, it is contended that the allegations as against Dr.Rao , could at best be described as an accident and an error of judgment and would not call for criminal prosecution.
4. In so far as the petitioner in the second of the petitions is concerned, it is pointed out that he had come to the ICU on the instruction of Dr. Rao. Apparently he was not aware of what had transpired immediately prior thereto. He had been called for the specific purpose of conducting a pregnancy scan, in order to determine whether the foetus was alive. He had in fact conducted a scan of the abdomen of the patient to check for heart sounds of the foetus. He was not in any manner concerned with the medical status of the patient. His report had been accepted by an expert Committee which had occasion to examine the sequence of events to address the allegations of negligence.
Any involvement of the said petitioner in an alleged conspiracy to alter the timing indicated in the medical records and alleged deletion of data from the equipment used by the said petitioner is imaginary and is not substantiated.
The counsel has placed reliance on a large number of authorities in support of the contention that the present petitions are indeed maintainable to quash the criminal proceedings.
5. On the other hand, the learned counsel for the complainant - respondent would contend the instant petitions are not maintainable in law and the grounds urged are unsound and thus deserve to be dismissed. Both the petitions are in effect a challenge to the trial court's order refusing the discharge of the petitioners. However, when Section 397 of the CrPC provides for a specific remedy to challenge the order of the trial court, the recourse to Section 482 is unjustified. Neither the order dated 24.11.2012 dismissing the discharge petition by Dr.Indira Rao nor the order dated 7.11.2014 against accused no.7 have been challenged in this proceeding and they have as such attained finality and hence, the court would be circumspect in entertaining the petitions.
It is contended that the final cause of death upon perusal of the Preliminary Post-Mortem Report, Histopathological Report and the Report of the Forensic Science Laboratory by the autopsy doctor is "shock and haemorrhage as a result of the injury to the pelvis sustained."
It is contended that accused no.1 in her frantic efforts to cover up for the gross recklessness that caused the death of the mother, chose not to conduct either an exploratory laprotomy, concomitantly to resuscitating the mother or to conduct a post mortem C Section to save the life of the unborn child, thereby eliminating the chances of both the mother and the child to survive. It is contended that it is also apposite to note that the Medical Expert Committee had opined that a post mortem C Section should have been performed within four to five minutes to save the life of the unborn child. The omission of accused no.1 is indicative of criminal intent on her part and the subsequent act of covering up and setting up a fabricated cause of death is shocking and highly unbecoming of a medical professional.
It is contended that in so far as Dr.Indira Rao is concerned, there is clear documentary evidence at Page 75 of the charge sheet, where accused no.1 had falsified the cause of death of the deceased as "anaphylactic shock". The post mortem report has clearly recorded the cause of death to be due to haemorrhage resulting from fracture of left sacroiliac joint. Further, there is no explanation forthcoming as to how the deceased who was perfectly healthy when admitted could suffer such injuries after she was wheeled into the OT. The cause of such injuries on the deceased is a fact especially within the knowledge of accused no.1 and others who were present in the OT. Further, the expert committee has also stated that the patient was in the care inter alia of the surgeon even at the OT. Therefore, accused no.1 cannot shift the blame at this stage on to the Anaesthetist and other doctors. With an intent and with a clear conspiracy to hide what had transpired in the OT, the resultant omission of medical attention has directly resulted in the death of the mother and children and thereby committing an act of grave criminality.
It is contended that the complicity of accused no.1 and others are further unveiled from the fact that there are several interpolations in the hospital records, pertaining to the deceased, which were seized by the Police acting on the complaint of the husband of the deceased. It is seen from these records that there were deliberate efforts to correct the time of the patient being shifted to the ICU from 10.30 am to 10.50am, by writing over the numeral '3' to make look like '5'. Further, the time of death is also seen corrected from 10.50am to 11.50am. the medical committee constituted has opined that the cause of death could have happened at around 10.55am which lends credence to thefact that interpolations were made to suppress the actual time of death.
It is contended that the aforementioned interpolations in the case sheets, the missing medical records from the hospital data server, the deletion of ultrasound scan taken 20 minutes after being declared dead and various other insertions in the hospital case sheets clearly indicates the overwhelming motive of accused no.1 and others to save their own skin and the criminal intent to achieve that objective had completely taken over their primordial and sacrosanct duty as medical professions to save the lives of the mother and child. The commission and omissions of accused no.1 and others certainly necessitates a trial to unearth the conspiracy behind the same. It is contended that the facts actually disclose an offence of culpable homicide amounting to murder.
It is contended that the say of the petitioners that they have not been found fault with by the Expert Committee is entirely misplaced and a poor attempt to exculpate themselves from their reckless act that caused the death of the mother and child as well as the complicity in covering up the actual cause of death. The committee is not sitting in judgment of the doctors; it is only expected to give an objective analysis as to what a reasonably proficient medical practitioner would do in a given set of circumstances. Due adherence of procedure laid down by the apex court in Jacob Mathew vs. State of Punjab, (2005) 6 SCC 1 and Martin F D'Souza vs. Mohd. Ishfaq, AIR 2009 SC 2049 while addressing the sensitivity associated with prosecuting Medical professionals, have been followed by the investigating agency before taking any further steps in the case. A government appointed Medical Committee, under a Government Hospital, comprising of all disciplines required to deliberate medically, i.e., Gynaecology, General Surgery, Anaesthesiology, Orthopaedics and Radiology was put together by BMRCI at the behest of the CID, Karnataka, and only upon procurement of Medical Opinion, Reports and Extended Medical Opinions and Conclusions, did the investigating agency file a comprehensive charge-sheet and the accused being charged with the said offences. The Committee has clearly opined that the death was a result of haemorrhage following a trauma clearly contradicting the petitioners' version of death due to anaphylactic shock. The Committee further opined that a post mortem C section ought to have been conducted within 4-5 minutes to save the intra uterine foetus which undisputedly was not done in this case as efforts of the concerned persons in charge at that stage were directed only to cover up for their acts of recklessness. After the threshold enquiry by the committee that pointed out the omissions of the accused, it is the trial court that ought to sit in judgment to determine the complicity of these individuals.
It is further contended that the reference to the decision of the apex court in Jacob Mathew vs. State of Punjab, supra, is again misplaced as the said decision does not lay down a blanket immunity to all medical professionals accused of negligence. There is no infirmity in proceeding against practitioners who fail in their duty to exercise their skill as ordinary medical professionals. Before submitting the charge sheet, the investigating officer in compliance with the apex court's guidelines has also taken the opinion of the expert committee, which has pointed out the omissions of the accused persons. Accordingly, it cannot be said that the proceedings against the accused falls foul of the dictum in Jacob Mathew's case.
It is contended that the law is well settled insofar as the framing of charges is concerned that a strong suspicion is sufficient to proceed against the accused persons. The fracture on the body of the deceased, the motivated attempts to suppress the fact of such fracture and the act of setting up a charade of taking the body of the deceased to the ICU long after the death instead of attending to such fracture or saving the child creates a strong suspicion about the conduct of the accused and their complicity in the offence. At this stage, the court cannot be called upon to make a roving inquiry and hold a mini trial. The said proposition has been reiterated in numerous decisions, namely: Union of India vs. Prafulla Kumar Samal, (1979)3 SCC 4, Sajjan Kumar vs. CBI, (2010)9 SCC 368, Sheoraj Singh Ahlawat vs. State of U.P., (2013)11 SCC 476, to name a few.
It is contended that insofar as accused no.7 is concerned, his defence that he was unaware whether the patient was alive or dead when he conducted the ultrasound scan, seems highly improbable as it is unlikely that any Radiologist would conduct an ultra sound scan without knowing if the patient is alive or dead. This innocence seems to stem out of convenience than as a matter of fact. This very reason is the fundamental basis for making him a co-conspirator in the death of mother and child. It is obvious that he was participating in a drama orchestrated by accused nos.1 to 6. It is a fact that the digital copy of the printed scan is deleted by the accused from the server of the hospital. The Central Forensic Science Laboratory, Hyderabad report has digital copies of the ultrasound scans stored from more than three years prior to the incident and till the server was seized by the police a few months after the incident. Hence, the reason that he is being made a co-conspirator in the cause of death of Kapali and her unborn child is that he indeed possessed the knowledge that the patient on whom he conducted the scan was dead or alive. It is clearly demonstrated in the charge sheet that by not revealing the real status of the patient, he is helping to shelter the other co-accused. Further, in his statement under section 161 as well as in arguments on discharge, accused no.7 had stated that the time reflected in the print out of the ultrasound scan was not the time of capture of the scan, but the time of print out and that scan was taken at 11.30am, but printouts were taken later at 12.05pm and 12.08 pm. This fact is found to be false by the medical committee which has categorically found that it is the time of scan that is captured even in the print out. This in fact also raises strong suspicion on the real role played by accused no.7.
It is contended further that the apex court in State of Haryana vs. Bhajan Lala, 1992 Supp (1) SCC 335, has laid down that quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. From the documents on record, there is nothing to indicate that this is a case warranting interference by this court.
It is contended that on a conspectus, there are no exceptional circumstances made out in the present petitions for exercise of the inherent power of this court under Section 482 of the CrPC and accordingly, the same merits to be dismissed.
It is further contended that even six years after the death of his wife, charges have not yet been framed and the doctors have managed to prevent the civil proceedings for compensation from proceedings on the plea that progress of the same would necessitate the disclosure of their defence in the trial. It is therefore prayed that this is a just case where this court ought to consider directing expedition of the trial proceedings.
6. By way of reply, the learned counsel for the petitioners would contend that the complainant's understanding of the concept of medical negligence is incorrect. They are unable to make a distinction between negligence that is culpable on the one side and a mere accident or an error of judgment on the other side. They are unable to appreciate the reasons for placing medical professionals "on a pedestal different from ordinary mortals." The reasoning for the conclusions in Jacob Mathew's case at para 48 can be fully appreciated on a reading of the judgment.
The role of the committee is a very important one and in fact forms the pivotal basis for prosecution. The foundation for the prosecution of the medical practitioners is based on the opinion of the medical expert committee. The Supreme Court in para 52 (page 61) has issued directions to Investigating Officers to obtain an independent and competent medical opinion by applying the "Bolam test" to "the facts collected in the investigation". This the Supreme Court has done in order to ensure that doctors are not put to unnecessary harassment as this will not only be detrimental to the interests of medical practitioners, but also to the society in general. This sentiment of the Supreme Court is reflected in paras 29, 47(i), (iii), (v) and 51 of Jacob Mathew's case.
It is contended that in the instant case, the committee has nowhere opined that the doctors were "negligent". The committee was said to have been given copies of the medical records only, and it has recorded certain observations, as reflected therein and not given to the committee "the facts collected in the investigation", that the committee was not given the statements of the doctors recorded by him which are explanations as to their decisions in the course of treatment, which would have been crucial for the committee to come to an opinion as to negligence. This is a blatant error, hence the investigation is faulty and the charge sheet defective.
It is contended that the opinion of the committee is like 'a cat on the wall', and even this has to be said with a lot of reservation. The committee records that, "Following a cardiac arrest of the mother, a post mortem caesarean section should be done within 4 to 5 minutes...". The emphasis here is on the word 'post mortem' which means it should have been conduced after the death of the mother and not after the cardiac arrest. There are limitations on the Obstetrician to determine death of the pregnant lady when the patient is being resuscitated by other specialists and she has to wait for the Anaesthetist to declare it and he has done it only at 11.50 am. The decision of the Obstetrician to wait for the Anaesthetist to declare death of the patient, at best can be ascribed as an error of judgment, there is no element of mens rea, and her act cannot be said to be rash or reckless showing total disregard to human life that warrants criminal action.
It is pointed out that two important issues arise here, (i) whether not conducting a post mortem caesarean section within 4 to 5 minutes (when she has not felt the heart sounds of the child) would amount to negligence on the part of the Obstetrician in the given scenario, if so is the element of mens rea shown to exist and is it so grave that it should invite criminal prosecution; (ii) whether there could be justifiable reasons for not attempting to conduct a post mortem caesarean section. The committee should have made these aspects clear in its report, failure to do so cannot be a reasons for the Investigating Officer (IO) to proceed to file a charge sheet. The fact that the IO also did not bother to get these clarifications from the committee despite writing to them twice assumes importance. He has written to the committee on two occasions and yet not asked for the appropriate clarifications which would have clinched the issue. There is failure on the part of the IO in not having asked for the crucial and correct clarifications, but has substituted his opinion. When the Committee's Report is not indicative of negligence; when it is possible for drawing more than one conclusion from the report and when there is failure on the part of the Investigating Officer to follow the guidelines of the Supreme Court, the charge sheet becomes faulty and deserves to be quashed.
Yet another important aspect is the fact that the proceedings before the Medical Council (which would have been the best forum for determining questions of negligence, it having the powers of a Civil Court and proceedings being Judicial in nature) have been stayed at the behest of the complainant on 28.3.2012 in W.P.5285/2012 and connected Writ Petitions and this in spite of the Orders of this Court in W.P.Nos.33337-33338/2011, directing the Council to dispose the main matter within three months. The Karnataka Medical Council would have heard both the parties unlike the Committee and given a correct opinion. This is indicative of the obsessive nature and the line of thinking of the complainant who only wants to extract unjust compensation from the petitioners.
The answer as to why there is no clear opinion and indication as to negligence in the committee's report lies in the fact that an objective investigation has not been done. To say that there are reasons for suspicion and that the accused will have to answer during trial is admitting the fact that the charge sheet is wanting in material. The IO, in the course of asking for clarifications should have asked direct and objective questions that would have had the effect of clinching the issues; instead he has sought for clarifications, answers to which are not determinative of negligence and thereafter he has substituted his interpretation and has come to a wrong conclusion. The Committee should have given an objective opinion regarding negligence in the background of the decision of the Supreme Court.
In the clarification to post mortem report, it is stated that the exact time of death cannot be determined since the body was preserved in the body cooler. Further, no post mortem is conducted on the unborn child or the placenta. The cause and time of its death has not been determined. This was the only manner in which negligence if any could have been determined. Since it has not been done, the charge sheet is faulty and deserves to be quashed and nothing can be expected to come out even if the accused are subjected to trial. The cause and time of death of the child in the womb would be different in the event the mother dies due to anaphylaxis and in the event the mother dies due to a fall, autopsy of the child would have brought to light these aspects, it has not been done and these essentials cannot now be determined. To fix liability on the doctors, the Post Mortem report ought to have indicated that the unborn child died after the mother died.
The entire theory of the complainant is faulty. In the event of a situation warranting a post mortem caesarean section, the Obstetrician would have made two vertical incisions, one on the abdomen and another on the uterus with no need for a laborious cosmetic incision, no need to worry for the bleeders, no need to open the abdomen in layers and thereafter closed it with a single layer suturing of the uterus and then the abdomen, all of which would have taken about five minutes. It is contended that if at all, the Obstetrician wanted to play mischief, it would have been easier for her to put up such show by expelling a still baby in minutes and claim that it had died in the womb. The obstetrician could have herself declared the death of unborn child and it would have been well within her competence to do so and there is no legal, medical or other requirement to engage the services of a Radiologist. The fact that the obstetrician called the Radiologist, accused no.7 and the fact that there are corrections of time in the medical records are all indicative of the earnest efforts at giving the right treatment.
It is contended that the medical records are only incidental to treatment. Form a doctor's perspective especially during treatment of an emergency, it does not become indispensable, meaning thereby that priority is treatment and not the writing of medical records. Medical records are written after treatment and not during treatment. The last thing in the mind of a medical professional is to use the medical records as a proof his innocence. Nowhere in the charge, has it been alleged that the notes made in the case sheet have been tampered with. The specific allegation in the charge sheet is that the timings have been altered. It is contended that there could be corrections made and this necessarily does not amount to a crime. The corrections are because of inadvertent errors which are only human in nature and do not amount to crime.
Even the complainant states that he was informed about the death at about 11.50 pm to 12 noon and then changes it to 1200 hors to 1210 hors. The complainant has made a correction of the date. The IO in column No.17 of the charge sheet has mentioned the sequence of events to have occurred on 16.4.2011. All these are also equally errors which are human and not a crime. It is pertinent to state that the nurse has recorded that the patient was shifted to ICU at 10.50am. There is no overwriting here, which is indicative of the fact that there were less pressures on the nurse during resuscitation.
It is contended that the case of the Radiologist is even more distinct. The prosecution is holding him responsible simply because the data in the Ultrasound Scanning machine is not available. It is not their case that he is the owner or custodian of the machines or that he was the sole user of the machines or that the premises belongs to him. On the contrary, he is just one amongst the many consultants, who use the machine in the Hospital. Further, there is nothing in the material collected by the IO to show when the alleged disappearance was caused, who saw it, and how absence of data can be attributed to accused no.7. The machine itself has inherent limitations in terms of storage of data.
It is contended that to accuse the Radiologist, accused no.7 of the offences, it must be shown from the records that he has made a statement about the status of the pregnant lady or at the least that he has such an obligation which he did not comply. Accused no.7 has nowhere stated that the patient was alive at the time he conducted the scan, equally true is the fact that he has also not stated that she was dead. On the contrary, the Committee has said that his report is in order. The report of Ultrasonologist is in order, wherein all necessary particulars have been indicated. To accuse accused no.7 of negligence, there must be a duty and there must be a breach. Both these are not forth coming from the records and hence the charge sheet against accused no.7 deserves to be quashed.
It is contended that the material available in the charge sheet and the report of the Central Forensic Science Laboratory are self explanatory in the matter of non availability of data and hence the charge sheet against accused no.7 is unsustainable. It is also seen that the articles examined at the Laboratory as Exhibits - A to D being two monitors and two hard disks were seized on 21.12.2010 and 5.1.2011 after eight and nine months after the event.
It is pointed out that the complainant has claimed compensation in a sum of Rs.24,91,30,000/- before the National Commission. According to the allegations of the complainant, accused no.7 is a proper and necessary party in the matter of determining negligence, and despite this, he has deleted accused no.7 before the National Commission.
The decisions relied by the petitioners in support of their arguments regarding the maintainability of the petitions adequately answer the contentions of the complainant regarding exercise of powers under Section 482 CrPC.
The State has remained unrepresented despite a Special Public Prosecutor having been appointed and the Complainant has not raised any reservations. The complainant has not filed any Statement of Objections to the Petitions thereby acknowledging that he does not have a good case on merits.
The learned Counsel would therefore seek that the present petitions be allowed.
7. As the primary argument canvassed in support of the petitions is that, even assuming that all the allegations made by the complainant and the material sought to be relied upon by the prosecution, in laying the charge sheet, are to be accepted as being true, the petitioners being medical professionals could not be fastened with any criminal liability and hence the criminal proceedings are misconceived and are liable to be quashed. Reliance is placed on the legal principles discussed and the guidelines issued by the Apex court in Jacob Mathews' case for the above proposition.
It would therefore be useful to briefly refer to the said decision, to consider whether the petitioners are completely insulated from any criminal proceedings in respect of omissions commissions in the course of discharge of their professional duties.
The facts of the case in Jacob Mathew was that the complainant's father therein, was terminally ill with cancer. He was admitted in the CMC Hospital, Ludhiana, as a special case. It transpires that the patient developed a breathing problem, late at night. A doctor could arrive attend to the patient only after a delay of 25 minutes. Dr. Jacob Mathew and another are said to have come and an oxygen cylinder was connected to the mouth of the patient, it transpires the breathing problem only got aggravated and the patient tried to get up, but the medical staff prevented it. The oxygen cylinder was found to be empty. Though another cylinder was brought, there was a further delay of 7 minutes in getting the oxygen to flow. By then it was found that the patient had died. It was alleged in the complaint that the carelessness of the doctors and nurses and non-availability of an oxygen cylinder and the callous act of having connected an empty gas cylinder, and thereby preventing the patient to breathe, had resulted in his death.
On the magistrate having framed charges under Section 304A of the IPC, the two doctors involved are said to have challenged the same in a revision petition before the court of Sessions Judge. On the revision petition being dismissed, a petition under Section 482 CrPC was said to have been filed before the High Court. The High Court had dismissed the petition and thus the appeal was filed before the Apex Court.
The appellant had sought to place reliance on the decision of Suresh Gupta v. Govt. Of NCT Delhi, (2004) 6 SCC 422. The Bench consisting of two judges who heard the appeal, doubted the correctness of the view taken in Dr. Suresh Gupta's case, and had referred the matter to be considered by a larger bench and it was then posted before a Three judge bench, which has rendered the decision.
The Apex court has made an in depth analysis of the concept of "negligence", in particular "professional negligence".
Relying on Charlesworth and Percy on Negligence (10th Edn., 2001), it is stated that the essential components of negligence are three : "duty", "breach and "resulting damage ", that is to say:
(1) the existence of a duty to take care, which is owed by the defendant to the complainant;
(2) the failure to attain the standard of care, prescribed by the law, thereby committing a breach of such duty; and (3) damage, which is both causally connected with such breach and recognised by the law, has been suffered by the complainant.
If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence.
In distinguishing negligence as a tort and as a crime, it was held that the amount of damages incurred is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. The essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence.
The following statement of law is made by Lord Atkin in Andrews v. Director of Public Prosecutions , (1937) 2 All ER 552 (HL) :
"Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence , and a very high degree of negligence is required to be proved before the felony is established"
While referring to the above statement with approval, the Apex Court in, Syed Akbar v. State of Karnataka, (1980) 1 SCC 30, has held that there is a marked difference as to the effect of evidence viz., the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
The following passage defining negligence by professionals, not necessarily confined to doctors, is cited with approval by the Apex Court. McNair, J. in Bolam v. Friern Hospital Management Committee, (1957) 2 All ER 118 ( QBD).
"[W]here 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 exercise the ordinary skill of an ordinary competent man exercising that particular act." (Charlesworth and Percy,ibid., para 8.02)"
The Apex Court has also cited with approval the following passage from Halsbury's Laws of England (4th Edition, Vol. 30 para 35)"
"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."
The following opinion by the House of Lords, expressed by a Bench consisting of five Law Lords, in Maynard v. West Midlands Regional Health Authority, (1985)1 All ER 635, has been quoted with approval in Jacob Mathew, to the effect that it is not enough to show that there is a body of competent professional opinion which considers that decision of the defendant professional was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken, it was reasonable, in the sense that a responsible body of medical opinion would have accepted it as proper. Lord Scarman who recorded the leading speech with which the other four Lords agreed quoted, the following words of Lord President (Clyde) in Hunter v. Hanley, 1955 SLT 213 at 217, observing that the words cannot be bettered:
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men......The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.....".
Lord Scarman added:
"A doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence."
His Lordship further added " that [A] judge's 'preference' for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred."
The Apex court has concluded thus:
"24. The classical statement of law in Bolam's case, (1957)2 ALL ER 118 (QBD), has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before Courts in India and applied to as touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge."
As regards medical professionals in criminal law is concerned, the Apex court has stated thus:-
"The criminal law has invariably placed the medical professionals on a pedestal different from ordinary mortals. The Indian Penal code enacted as far back as in the year 1860 sets out a few vocal examples. Section 88 in the Chapter on General Exceptions provides exemption for acts not intended to cause death, done by consent in good faith for person's benefit. Section 92 provides for exemption for acts done in good faith for the benefit of a person without his consent though the acts cause harm to a person and that person has not consented to suffer such harm. There are four exceptions listed in the Section which is not necessary in this context to deal with. Section 93 saves from criminality certain communications made in good faith."
The question of degree of negligence has always been considered as relevant to a distinction between negligence in civil law and negligence in criminal law. In Kurban Hussein Mohammedali Rangwalla v. State of Maharashtra, (1965)2 CriLJ 550, while dealing with Section 304A IPC, the following statement of law in Emperor v. Omkar Rampratap, (1902)4 Bom. LR 679 was cited with approval by the apex court :
"To impose criminal liability under Section 304A, Indian Penal Code, 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 the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non."
K.N. Wanchoo, J. (as he then was), speaking for the Court, observed that the abovesaid view of the law has been generally followed by High Courts in India and was the correct view to take of the meaning of Section 304A. "
The Supreme Court has summed up its conclusions as under:
" (1) Negligence is the breach of a duty caused by omission to do something 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 and 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 necessarily calls 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 the two 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 in Bolam's case [1957]1 WLR 582, 586 holds good in its applicability in India.
(5) The jurisprudential concept of negligence differs in civil and criminal 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 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.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain 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. " The Supreme Court has also laid down the following Guidelines as regards the prosecution of 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.
51. We may not be understood as holding that doctors can never be prosecuted 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.
52. 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. "
8. Keeping in view the exceptions to be made in the case of involvement of medical professionals in cases alleging professional negligence and having regard to the facts and circumstances as sought to be projected with reference to the material on record. It is to be noticed that there is a serious controversy as to whether the records available truly and correctly indicate the actual sequence of events, especially the glaring inconsistency as to the cause and time of death of the patient, as stated by Dr. Rao and as reflected in the Post mortem report. In that, the final cause of death upon perusal of the preliminary post mortem report, the histopathological report and the report of the Forensic Science Laboratory is, "shock and haemorrhage as a result of an injury to the pelvis" . This is indeed perplexing. The hospital record does not indicate as to how the patient had suffered any such injury from the time she was admitted to hospital and till the time of her death. No doubt the author of the post mortem report has been cross-examined at length, in proceedings before the Karnataka Medical Council and the inaccuracies in the reports and the very competence of the concerned doctor have been sought to be discredited, however, the finding of the said doctor in the post mortem report of "haemorrhage resulting from fracture of the left sacroiliac joint" could not have been a figment of the doctor's imagination. The cause of such injury, if at all, has apparently occasioned after the patient was taken in to the OT. This is a fact especially with in the knowledge of accused no.1 and others who were present in the OT.
Or could it be that death was caused by both, an anaphylactic shock and haemorrhage resulting from fracture of the left sacroiliac joint, possibly from a fall from the operation table or the stretcher, which may have been overlooked and ignored, since the patient was already in a crisis from the violent reaction to the anaesthetic drug ?.
Since any such accident of a fall, while the patient was in the OT is not reflected in the hospital records, is there an attempt at concealment of true facts? The contention on the part of the petitioner that even if the patient had suffered a fall, it could only be construed as an accident and not indicate recklessness or negligence of such a degree so as to avoid criminality, is not a tenable argument, as the accused have not made a clean breast of any such accident.
Another area of serious controversy is whether there was a failure on the part of the Obstetrician in attempting to save the foetus when the mother was fast sinking and immediately after she was declared dead. In this regard, the contention that the unborn child had died prior to the death of the mother as was evident from the ultrasound scan, is vehemently contested with reference to what are termed as "interpolations" in the hospital records, whereby the time at which the patient was shifted from the OT to the ICU is sought to be corrected as "10:50 " instead of "10:30 ". And the time of death from "10:50" to "11:50". This is a very serious area of controversy. For if the time of death was actually 10: 50 AM, then it was quite possible that the unborn child could have been saved by recourse to a post mortem C section , within 5 minutes after the death of the mother.
In so far as the Radiologist, who is one of the petitioners herein, is concerned. It is unlikely that he was unaware whether the patient was alive or dead, as claimed by him. His claim that the time reflected in the print out of the ultra sound scan was not the time of capture of the scan, which was made at 11.30 AM, but the printouts were taken later, for the purposes of record, at 12.05 PM and 12.08 PM. But the Medical Committee appointed by the Government at the behest of the CID, has found that the time of scan and printout are the same. Added to this, the complete deletion of the digital copy of the printed scan from the server of the hospital , in respect of this particular case, is a curiosity. This is because the Central Forensic Science Laboratory report has digital copies of the ultra sound scans stored from more than three years prior to the incident, till the server was seized by the police some time after the incident.
It is also noticed that there is adherence to the procedure laid down in Jacob Mathew's case, in the investigative agency having requisitioned the appointment of a Medical Committee of experts, by the State Government and based on the medical opinion, reports and conclusions of the said Committee , the investigative agency has filed a charge sheet.
Given the above circumstances, it cannot be said that the proceedings against the accused falls foul of the dictum of the Apex court in Jacob Mathew's case.
The petitions are accordingly dismissed. The interim order of stay of further proceedings stands vacated.