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PART - II
Criminal P.C. (2 of 1.974), S. 482 — Medical negligence — Capability
can be established only on proper analysis of expert evidence and only
by scanning material that may be adduced by complainant —
Complainant not getting full opportunity to produce evidence before
Magistrate —Quashment of complaint at threshold —Not proper.
(Para 2)
R. Satish and M Joseph. Advocates, for Appellant; Roy Abraham, Mrs.
Seema Jain, Himinder Lal, Ramesh Babu M. R. and Ms. Anupania Madanar
Vivocaies. for Respondents.
ORDER :— The appellant herein filed a criminal complaint before
Judicial Magistrate, First Class. C erthala alleging that the
respondent who is . Gynecologist attached to the private hospital at
Cherlhala had shown medical negligence of such a degree and thereby
the appellant’s wife died on 8th December. 1995. The appellant's wife
was pregnant and he con sulted the first respondent from the seventh
month of pregnancy and on 4th December. 1995 appellant's wife was
admitted in the first respondent's hospital for the delivery of t e
child. On 5th December. 1995 with medical intervention of first
respondent she delivered a dead child and
there was profuse bleeding. She was under the continued treat lent of
tile first respondent. On 5th December, 1995 she died. The appellant
alleged that in spite of repeated request to take his wife to the
medical college hospital, the first respondent told him that the
patient lias no problem and everything would be alright w him short
time. The appellant Hied a competent before the police and after
Investigation he police filed a report. There after, the appellant
filed a criminal complaint before the magistrate. Apart from the
statement given by he complainant, he also got examined the doctor.
who conducted the post-mortem explanation and also a Radiologist. The
Magistrate i.e took cognizance of the offence punishable under Section
304-A. IPC.
Thereafter, the first respondent filed a criminal miscellaneous
application before the High
Court under Section 482 of the Cr. P.C. to quash the criminal
proceedings alleging that
the allegations ma e in the complaint along with the sworn statement
and other material before tile Court. did not make out an offence and
the con plaint and other proceeding were liable to i.e quashed. The
learned single Judge held that:
The mere fact that a patient dies in a hospital does not lead to the
presumption that the death occurred due to the negligence of the
doctor and in order to make a doctor criminally responsible for death
of his patient, it must be established that there was negligence or
incompetence on his part which went beyond a mere matter of
compensation on the basis of some civil liability and that he did
something in disregard for the life and safety of the patient."
2. It must be noticed that the appellant herein did not get the full
opportunity to produce evidence before the Magistrate. The negligence
of the Doctor could be ascertained only by scanning the material if
any and the expert evidence that may be adduced. Having regard to the
facts of this case, we feel that the appellant-complainant should have
been given an opportunity to present the case before the Magistrate.
The learned single Judge was not justified in quashing the complaint
at the threshold, especially in a case where the culpability could be
established only on proper analysis of the expert evidence that may be
adduced by the complainant. In the result, we set aside the judgment
of the learned single Judge and direct the Magistrate to consider the
matter in accordance with law. We may hasten to add that the first
respondent being a Medical Practitioner, if any application for bail
is 1'ilecl. the same shall be favorably considered by the Magistrate.
3. The appeal is disposed of Order accordingly.
(2004) 29 OCR (SC)— 38
Criminal appeal No. 778 of 2004 (Arising out of SLP (Crl). No. 2931 of
2003),
Decided on 4th August. 2004
Y. K. SABHARWAL & D. M. DHARMADHIKARI, JJ.
Dr. Suresh Gupta ... Appellant
Govt. of N. C. T. of Delhi & Anr. ... Respondents
A. PENAL CODE, 1860—Sections 304A, 80 and 88—Medical Negligence
causing death. Criminal liability of a doctor or surgeon—Standard of
negligence required to be proved. Patient was operated by appellant, a
Plastic Surgeon for removing his nasal deformity. Patient is alleged
to have died on the same day—Post-mortem was performed after three
days. According to post-mortem report, cause of death was blockage of
respiratory passage by aspirated blood consequent upon surgically
incised margin of nasal septum'—Medical experts opined that it was not
likely in the presence of cuffed endo-tracheal tube of proper size
being introduced but it cannot be ruled out after the tube is taken
out No case of recklessness or gross negligence made out against the
doctor to compel him to face the trial for offence under Section 304A,
IPC—Act attributed to the doctor, even if accepted, can be described
as negligent act as there was lack of due care and precaution—Doctor
may be held liable in tort. 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—Code of Criminal Procedure,
1973—Section 482.
(Paras 21 to 26 and 28)
B. CODE OF CRIMINAL PROCEDURE, 1973—Section 482—Penal Code,
1860—Section 304A—Medical Negligence—Quashing of prosecution—Petition
filed by the doctor—High Court refused to quash criminal proceedings
and upheld order of Magistrate—However, it records that the Magistrate
was wronq. in absence of any medical opinion, in coming to a
conclusion that the surgeon had given a cut at wrong place of body of
the patient at the time of operational leading to blood seeping into
respiratory passage—Whether High Court was right in sustaining
prosecution of the doctor—(No).
(Paras 8 and 12)
Referred to:
(i) 199-1 (3) All. E.R. 79: R. v. Adomako
(ii) 1968 (2) SCR 515: Sulomnn v. Slalo
(iii) 1969(1) SCR 206: Laxman v. Trimbak
(iv) AIR 1983 SC 67^ Municipal V Ram Krishan
(v) 1981 SC 1164 : DurijS Inspector v. O.K. Krishnaiah
JUDGMENT
DHARMADH1KARI,J.—Leave to appeal is granted.
2. The appellant who is a Doctor (Plastic Surgeon) is in the dock as
an accused on the charge under Section 304A of the Indian Penal Code
(for short the 'IPC'} for causing death of his patient on 18.4.1994.
The patient was operated by him for removing his nasal deformity. It
may be mentioned at the outset, that the Anesthetist who was assisting
the surgeon in the operation was also made co-accused but it is
reported that he died pending the trial. The proceedings, therefore,
stand abated against him.
3. The appellant urged before the Magistrate that the medical evidence
produced by the prosecution, does not make out any case against him to
proceed with the trial. The learned magistrate in deciding to proceed
with the trial recorded following reasons in the impugned order dated
28.11.1998 passed by him :-
"Postmortem report is very categorical and very dear and it has been
clearly mentioned therein that death was due to the complication
arising out of the operation. That operation was conducted by both the
accused persons. It is also clear from the material on record that
deceased was young man or38 years having no cardiac problem at all
• and because of the negligence of the doctors while conducting minor
operation for removing nasal deformity, gave incision at wrong part
due to that blood seeped into the respiratory passage and because of
that patient immediately collapsed and died and it was a also
attempted to show by the accused persons that he was alive at that
time and was taken to Ganga Ram Hospital for further medical attention
.... It is clear from the record that patient had actually died at the
clinic of the accused and therefore, I am of the opinion that there
are sufficient grounds on record to make out a prima facie case
against both the accused for commission of offence under Section 304A
IPC. Let notice be served accordingly".
[Emphasis supplied]
4. As the Magistrate decided to proceed with the trial, the doctor
Procedure. The High Court refused to quash the criminal proceedings
and upheld the order of the Magistrate, although it records that the
Metropolitan Magistrate .was obviously wrong, in the absence of any
medical opinion, in coming to a Conclusion that trie surgeon had given
a cut at wrong place of the body of the patient at the time of
operation leading to blood seeping into the respiratory passage and
blocking it resulting in his death. The High Court, however, declined;
to quash the proceedings against the doctor for the alleged criminal
liability. In the impugned order dated 1.4.2003, it recorded its
reasons thus-
"In the present case two doctors who conducted the post-mortem
examination have taken an emphatic stand which they have reiterated
haven after the Special Medical Board opinion, that death in this case
was to 'asphyxia resulting from blockage of respiratory passage by "
aspirated blood consequent upon surgically incised margin of nasal
septum'. This indicates that adequate care was not taken to prevent
seepage of blood down the respirator/passage which resulted in
asphyxia. The opinion of. the Special Medical Board is not free from
ambiguity for the reasons already given. Such ambiguity can be
explained by the concerned doctors when they are examined during the
trial".
5. Learned senior counsel Shri Ashok Desai appearing for the doctor,
has taken us through the contents of the medical opinions produced by
the prosecution with the complaint and some medical books and decided
cases to submit that accepting the entire case of the prosecution, as
has been laid before the trial magistrate, to be true, no case for
convicting the doctor for criminal negligence under section 304A IPC
has been made out. He submits that in the larger interest of medical
profession, the criminal proceedings instituted against his client
deserve to be quashed
6. Reliance is placed on the House of Lords decision in the case of R.
Vs. Adomako [1994 (3) All E.R. 79]; Suleman Rehman Mulani vs. State of
Maharastra [1968 (2) SCR 515] and Laxman Balkrishna JoshI vs. Trimbak
Bapu Godbole [1969 (1) SCR 206].
7. We have also heard learned senior counsel Shri Harish Chandra for
the prosecution, who supported the view taken by the Magistrate and
the High Court that the surgeon was guilty of gross negligence in
giving an incision at the wrong place and did not take necessary
precautions in the course of surgical operation to prevent seepage of
blood down the respiratory passage of the patient and the resultant
death by asphyxia.
8. It was settled position in law that the inherent power of the High
Court under section 482 Criminal Procedure Code for quashing criminal
proceedings can be invoked only in cases where on the face of the
complaint or the papers accompanying the same no offence is made out
for proceeding with the trial. In other words, the test is that taking
the allegations and the complaint, as they are, without adding or
subtracting anything, if no offence is made out, the High Court will
be justified in quashing the proceedings. [See Municipal Corporation
of Delhi vs. Ram Kishna Rohtagi (AIR -(983 SC 67); and Drugs Inspector
vs. B.K. Krishnaiah (AIR 1981 SC 1164) 9. To decide whether on the
basis of the complaint and the medical opinion produced along with it,
any offence is made out or not, it is necessary to examine the papers
produced with the complaint. The patient died in the course of
surgical operation on 18.4.1994, but the post-mortem was conducted
21.4.1994. By that time rigor mortis had almost passed off. The
post-mortem report gave opinion on the cause of death by recording
thus;- "Asphyxia resulting from blockage of respiratory passage by
aspirated blood consequent upon surgically incised margin of nasal
septum. The cause of death to the best of my knowledge and answers. "
to the question put by l0".
10. A Special Medical Board of four eminent doctors was constituted by
the investigating agency out of which three recorded their unanimous
opinion as under:-
After the perusal of all the documents produced before the Committee,
we are of the view that the death of Mr. Siavash Karirrf Arbab,
occurred due to sudden cardiac arrest, the direct cause of which (Cadiac
Arrest) cannot be ascertained. However, possible cause leading .
to cardiac arrest can be as follows :-
1. Hypotension due Head-up-Position.
2. Adverse drug reaction.
3.Hypoxia,
Death to Asphyxia resulting from blockage of air passage secondary to
ante-mortem aspiration of blood from the wound is not likely in the
presence of cuffed endo-tracheal tube of proper size (8.5), which was
introduced before the operation and remained in position till the
patient
was declared dead in Sir Ganga Ram Hospital, as per statements of
members of the operating team and available records. In the postmortem
report there is presence of clotted fluid blood in respiratory
passage, which invariably occurs ante-mortem due to aspiration from
operation site. However, the presence of fluid and clotted blood in
the respiratory passage as noted in the post-mortem report, due to
trickling of decomposition bloody fluid and some clot present in the
nostril from the site of incision in the nose, cannot be ruled out
after the tube is taken out. It is worth mentioning in the present
case that the death occurred on 18.4.1994 at 2.30 p.m. and the
post-mortem was conducted on 21.4.1994 at 12.20 p.m. when sufficient
degree of decomposition
had started.
Sd/-/Dr. Bharat Singh Chairman
Sd/-Dr. Rizvi Member
Sd/-P.L Dhingra Member
[Emphasis supplied]
11. One of the members of the doctors team Prof. Jagannatham gave a
separate report which reads as under:
"After going through he relevant papers/documents and surgery and
anesthesia notes, it was observed that, what medical care was actually
extended to the patient from 5 a.m. to 8.30 a.m. on 18.4.1994 at Delhi
Plastic Surgery Clinic. It is surprising that the patient's physical
Ega- status belonged to ASA Grade-l. The actual cause of cardiac
arrest on the table noticed immediately after the start of operation,
was not clear and it still stands as enigmas whether the surgeon had
given any , adrenaline infiltration to the patient or originally
planned to do the surgery . under local anesthesia could not be
decided. There is no mention about the use of inhalation-anesthesia
during the surgical procedure under the general anesthesia. However,
both anaesthetics arid the surgeon immediately noticed the cardiac
arrest and started resuscitative measures well-in time to save the
patient's life. With all good intentions the team spirit, they
transported the patient under manual ventilation (supporting
respirations) and shifted the patient to Ganga Ram Hospital's ICU.
Sd/-
(Dr. Jagannatham)
15.11.1995"
12. It is on these medical papers produced by the prosecution, we have
to decide whether the High Court was right in holding that criminal
liability prima facie has arisen against the surgeon and ha must face
the trial. The legal position is almost firmly established that where
a patient dies due to the negligent medical treatment of the doctor,
the doctor can be made liable in civil law for paying compensation and
damages in tort and at the same time, if the degree of negligence is
so gross and his act was reckless as to endanger the life of the
patient, he would also be made criminally liable for offence under
section 304A of I PC.
13. Section 304A of IPC reads thus :-
"304A, Causing death by negligence-Whoever causes the death of any
person by doing any rash or negligent act not amounting to culpable
homicide, shall be punished with imprisonment of either description
for a term which may extent to two years, or with fine, or with both."
14. On behalf of the doctor learned counsel referred to Section 80 and
Section 88 of the IPC to contend that in various kinds of medical
treatment and surgical operation likelihood of an accident or
misfortune leading to death cannot be ruled out. A patient willingly
takes such a risk. This is part of doctor patient relationship and
mutual trust between them.
15. Section 80 and 88 read as under:-
"80, Accident in doing a lawful act. -Nothing is an offence which is
done by accident or misfortune, and without any criminal intention or
knowledge in the doing of a lawful act in a lawful manner by lawful
means and with proper care and caution.
88. Act not intended to cause death, done by consent in good faith for
person's benefit.—Nothing which is not intended to cause death, is an
offence by reason of any harm which it may cause, or be intended by
the doer to cause, or be known by the doer to cause, or be known by
the doer to be likely to cause, to any person for whose benefit it is
done in good faith, and who has given a consent, whether express or
implied, to suffer that harm, or to take the risk of that harm".
16. Applying the laid down test for quashing or refusing to quash the
criminal proceeding under Section 482 of the Criminal Procedure Code,
we 'have to find out whether from the complaint and the accompanying
medical 'papers and by accepting the entire case alleged by the
prosecution to be true, an order of conviction of the doctor for
offence under Section 304A of IPC can
be passed.
17. The operation was performed on 18.4.1994 and the patient is
alleged to ;have died on the same day. The post-mortem was performed
after three days i.e. ;on 21.4.1994. According to the post-mortem
report, the cause of death was : blockage of respiratory passage by
aspirated blood consequent upon surgically incised margin of nasal
septum".
18. The medical experts constituting the Special Medical Board set up
the investigation have opined that "the blockage of air passage was
due to aspiration of blood from the wound and it was not likely in the
presence of Fcuffed endo-tracheal tube of proper size being.
introduced before the operation and remained in position." The term of
experts also opined that presence of fluid and clotted blood in
respiratory passage is likely, as it invariably occurs postmortem due
to aspiration from operation site'. But they also opined that presence
of fluid and clotted blood in the respiratory passage, as noted in the
post-mortem report, due to trickling of decomposition bloody fluid and
some clot present in the nostril from the site of incision in the
nose, cannot be ruled out after the tube is taken out.
19. Dr. Jagannatham, one of the members of the Special Medical Team
constituted during investigation has, however, given separate opinion,
the details of which we have quoted above. It seems to be to some
extent in favour of the accused surgeon. From the post-mortem report
and the opinion of the three medical experts of the medical team
specially constituted, the case of the prosecution laid against the
surgeon is that there was negligence in not putting a cuffed endo-tracheal
tube of proper size' and in a manner so as to prevent aspiration of
blood blocking respiratory passage.
20. For fixing criminal liability on a doctor or surgeon, the standard
of negligence required to be proved should be so high as can be
described as gross negligence " or recklessness". It is not merely
lack of necessary care, attention and skill. The decision of the House
of Lords in R. Vs. Adomako(supra) relied upon on behalf of the doctor
elucidates the said legal position and contains following
observations:-
"Thus a doctor cannot be held criminally responsible for patient's
death unless his negligence or incompetence showed such disregard for
life and safety of his patient as to amount to a crime " against tho
State".
21. Thus, when a patient agrees to go for medical treatment or
surgical operation, every careless act of the medical man cannot be
termed as 'criminal'. It can be termed 'criminal' only when the
medical man exhibits a gross lack of competence or inaction and wanton
indifference to his patient's safety and which is found to have arisen
from gross ignorance or gross negligence. Where a patient's 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
would not suffice to hold him criminally liable.
22. This approach of the courts in the matter of fixing criminal
liability on the doctors, in the course of medical treatment given by
them to their patients, is necessary so that the hazards of medical
men in medical profession being exposed to civil, liability, may not
unreasonably extend to criminal liability and expose them to risk of
landing themselves in prison for alleged criminal negligence.
23. For every mishap or death during medical treatment, the medical
man cannot be proceeded against for punishment. Criminal prosecutions
of doctors without adequate medical opinion pointing to their guilt
would be doing great disservice to the community at large because if
the courts were to impose criminal liability on hospitals and doctors
for everything that goes wrong, the doctors would be more worried
about their own safety than giving all best treatment to their
patients. This would lead to shaking the mutual confidence between the
doctor and patient. Every mishap or misfortune in the hospital or
clinic of a doctor is not a gross act of negligence to try him for an
offence of culpable negligence.
24. .No 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 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 'not
introducing a cuffed endo-tracheal 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 careless or want of due attention and skill cannot be described to
be so reckless or grossly negligent as to make him criminally liable.
25. Between civil and criminal liability of a doctor causing death of
his patient the court has a difficult task of weighing the degree of
carelessness and negligence alleged on the part of the doctor. For
conviction of a doctor for alleged criminal offence, the standard
should be proof of recklessness and deliberate wrong doing i. e. a
higher degree of morally blameworthy conduct.
26. To convict, therefore, a doctor, the prosecution has to come out
with a case of high degree of negligence on the part of the doctor.
Mere lack of proper [care, precaution and attention or inadvertence
might create civil liability but not a criminal one. The courts have,
therefore, always insteted in the case of alleged ''criminal offence
against doctor causing death of his patient during treatment, that the
act complained against the doctor must show negligence or rashness of
Infact a higher degree as to indicate a mental state which can be
described as [totally apathetic towards the patient. Such gross
negligence alone is punishable.
27. See the following concluding observations of the learned authors
in Itheir book on medical negligence under the title 'Errors, Medicine
and the Law by [Alan Merry and Alexander McCall Smith at pg. 247-248].
The observations are apt on the subject and a useful guide to the
courts in dealing with the doctors guilty of negligence leading to
death of their patients:—
"Criminal punishment carries substantial moral overtones. The doctrine
of strict liability allows for criminal conviction in the absence of
moral blameworthiness only in very limited circumstances. Conviction
of any substantial criminal offence requires that the accused person
should have acted with a morally blameworthy state of mind,
Recklessness and deliberate wrong doing, levels four and five are
classification of blame, are normally blameworthy but any conduct
falling short of that should not be the subject of criminal liability.
Common-law systems have traditionally only made negligence the subject
of criminal sanction when the level of negligence has been high - a
standard traditionally described as gross negligence......
Blame is a powerful weapon. When used appropriately and according to
morally defensible criteria, it has an indispensable role in human
affairs. Its inappropriate use, however, distorts tolerant and
constructive, relations between people. Some of life's misfortunes are
accidents for which nobcdy is morally responsible. Others are wrongs
for which responsibility is diffuse. Yet others are instances of
culpable conduct, and constitute qrounds for comnpnc-not punianmeni.
Distinguishing between these various categories requires careful,
morally sensitive and scientifically informed analysis".
28. After examining all the medical papers accompanying the complaint,
find that no case-of recklessness or gross negligence has been made
out against the doctor to compel him to face the trial for offence
under section 304A of the IPC. As a result of the discussion aforesaid
on the factual and legal aspect, We allow this appeal and by setting
aside the impugned orders of the Magistrate of the High Court, quash
the criminal proceedings pending against the present
doctor who is accused and appellant before us. |
