Kerala High Court
Prabha G. Nair vs Mohanan on 28 November, 2001
ORDER G. Sasidharan, J.
1. A pregnant woman was taken to hospital in connection with delivery and she died in the hospital. The husband gave a complaint to the police stating that his wife died because of the negligent act of the doctor in applying vacuum extractor, forceps and carrying out episiotomy rashly, negligently and recklessly as a result of which the uterus of the woman sustained fatal injury. On the basis of the complaint of the husband, a crime was registered against the doctor alleging the commission of the offence under Section 304-A of the Indian Penal Code. After conducting investigation and obtaining expert opinion, the Deputy Superintendent of Police submitted a final report referring the crime as mistake of fact.
2. Husband thereafter filed a complaint in Court alleging that his wife died because of the negligence of the doctor. The woman died as a result of rupture of uterus on the back. After conducting enquiry, the Court took the case on file. This petition is filed by the doctor for quashing the proceedings in the case against her in which the allegation is that she committed the offence punishable under Section 304-A of the Indian Penal Code. The petitioner, the doctor says that the wife of the 1st respondent died because of rupture of uterus on the back and that the same could not be ordinarily detected on clinical examination by ultra scan. According to the petitioner, the death was caused due to complication following rupture of gravial uterus and that can be due to complication of delivery. The submission is that in the normal course of delivery rupture of gravial uterus can happen, if the size of the body and the uterus is disproportionate and such an injury can be caused even if the doctor is careful.
3. The doctor, who conducted the postmortem examination o the dead body, was examined during the enquiry conducted by the Court and his deposition is Annexure-IV. He was working as Assistant Professor in the Department of Forensic Medicine in Medical College, Alappuzha. The opinion as to the cause of death given by the Doctor was that death was due to complication following rupture of gravial uterus. According to the 1st respondent, he told the petitioner that if there was any complication in delivery he would take his wife to the Medical college Hospital and then the doctor told him that thee was no need for taking his wife to Medical College Hospital and that some German medicine was being administered to her. Negligence is attributed to the doctor by saying that scanning was done and that if there was rupture of uterus that could be detected by doing scanning. The doctor, who conducted postmortem examination, said when he was examined in Court that by doing the postmortem examination alone he could not say whether the doctor was negligent or not. Assistant Professor of Radio Diagnosis was also examined in Court and he said that Injury No. 3 shown in the postmortem certificate could be found out by doing scanning. According to him, bleeding also could be found out by doing scanning. It is on the basis of the above statements made by the doctors that the 1st respondent would say that the petitioner was negligent in attending to the delivery of the wife of the 1st respondent. The doctor, who conducted postmortem examination, did not say that the doctor was negligent. What he said was that on doing postmortem examination one cannot say whether the doctor was negligent or not.
4. Annexure II is the compliant given by the 1st respondent in the Court. According to the petitioner, the proceedings against her have to be quashed for the reason that the complaint does not disclose any offence punishable under Section 304-A of the Indian Penal Code. It is submitted that there is absolutely no material even prima facie to show that the death was caused due to the negligence of the petitioner. An enquiry was conducted by the District Medical Officer, Alappuzha and a report was given that there is no negligence which could be attributed to the petitioner for the complication that developed during delivery and which ultimately led to the death of the woman. According to the petitioner, the complaint was given by the 1st respondent even after a refer report was filed by the police in Court only for the purpose of harassing her.
5. Section 304-A of the Indian Penal Code reads as follows:
"304-A. 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 extend to two years, or with fine, or with both".
The above section says about doing any rash or negligent act not amounting to culpable homicide. What has to be understood from the reading of this section is that doing of any rash or negligent act is necessary for attracting that provision. Negligence is the failure to take reasonable care and it is not possible to ascertain whether a person was negligent or not in doing a thing by any abstract standard. Negligence cannot be understood to mean absolute carelessness or indifference, but it means want of such a degree of care as is required in particular circumstances. When a doctor attends to delivery, if he had taken the care as is required to be taken by him, he cannot be said to be negligent. 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. Even if proper care and attention are taken and proper treatment is given to a patient; there may be circumstances in which the patient dies. Then the death can only be said to be due to reasons beyond the control of the doctor. When a doctor is sought to be made liable for the death of a patient and he is proceeded against for the commission of the offence under Section 304-A of the Indian Penal Code, it is necessary to show that he did any rash or negligent act. Illegal omission to do something which a doctor is expected to do can also be considered as an act of negligence. 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.
6. For the purpose of ascertaining whether the conduct of the doctor amounted to culpable rashness or negligence it has to be seen what is the amount of care and circumspection which a doctor would have taken when treating the patient. That has to be decided by taking into account the care which a prudent and reasonable man would have considered to be sufficient considering the circumstances of the case. There is not case that there was any intention on the part of the doctor to be criminally negligent in attending to the patient. A doctor, who treats a patient, is expected to use a fair and reasonable standard of care and competence. For making a doctor liable for the death of the patient, it has to be established that there was criminal negligence on his part.
7. The 1st respondent does not say how the doctor was negligent and rash in doing any act which resulted in the death of his wife. Here what happened was, a patient died in the hospital. Anybody can say that the doctor was negligent in causing the death of the patient. Since there is no presumption that when a patient dies in a hospital the death occurred due to the negligence of the doctor, it is for the person who attributes negligence on the part of the doctor to say what was the negligent or rash act on the part of the doctor which resulted in the death of the patient. The allegation is that when the petitioner wanted his wife to be taken to Medical College Hospital, the doctor said that there was no complication and she was being given proper treatment in the hospital. Even if what the 1st respondent says is correct, the subsequent death of his wife in the hospital cannot be said to be due to any negligent or rash act on the part of the doctor unless it is shown that there was any such act done by the doctor in the course of treating the patient. In order to attract Section 304-A of the Indian Penal Code, the death due to rash or negligent act must be direct or proximate result of the act. There must be some positive act of rashness or negligence on the part of the doctor which resulted in the death of the patient. Care should be taken before imputing criminal negligence to a doctor acting in the course of his profession. It is true that the doctor, who conducted postmortem examination, when he was examined in Court said that he cannot say whether there was negligence on the part of the doctor or not by conducting postmortem examination. Such a statement made by the doctor does not indicate that there was negligence on the part of the doctor. What he would say is that the death was due to complication following rupture of gravial uterus. The doctor would also say that in normal course of delivery the above injury can be caused if the size of the body of the child and that of the uterus is disproportionate. What has to be understood from the statement by the 1st respondent that when they said that they were prepared to take the patient to Medical College Hospital the doctor said that there was no need for taking her to the Medica College Hospital, is that the doctor was confident that the patient could be treated in the hospital. That would also indicate that the doctor was confident that she could give proper treatment to the patient and such a doctor cannot be said to have done a rash or negligent act. This is a case in which the complaint given by the 1st respondent and the other materials would not disclose any offence under Section 304-A of the Indian Penal Code. The proceedings in the case against the petitioner are liable to be quashed.
This application is allowed on quashing all proceedings in C.C. 599/1999 on the file of the Judicial Magistrate of the First Class-I, Cherthala.