Dr. Rohini Mahendranath Jindal vs State Of Gujarat on 22 February, 2018

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Gujarat High Court

Dr. Rohini Mahendranath Jindal vs State Of Gujarat on 22 February, 2018

1. As the issues raised in both the captioned applications are the same and the prayer is also to quash the selfsame first information report, those were heard analogously and are being disposed of by this common judgment and order.

2. The medical profession is one of the oldest professions of the world and is the most humanitarian one. There is no better service than to serve the suffering, wounded and the sick. Inherent in the concept of any profession is a code of conduct, containing the basic ethics that underline the moral values that govern the professional practice and is aimed at upholding its dignity. The medical Ethics underpins the values at the heart of the practitioner-client relationship. In the recent times, professionals are developing a tendency to forget that the self- regulation which is at the heart of their profession is a privilege and not a right and the profession obtains this privilege in return for an implicit contract with society to provide good, competent and accountable service to the public. It must always be kept in mind that a Doctor is a noble profession and the aim must be to serve the humanity, otherwise, the dignified profession will lose its true worth.

3. Having regard to the facts of this case which I shall narrate hereinafter, I am tempted to preface my judgment with the above referred observations of the Supreme Court made in the State of Punjab vs. Shiv Ram & Ors., IV (2005) CPJ 14 (SC).

4. The two applicants before this Court are practicing ophthalmologists. They seek to invoke the inherent powers of this Court under section 482 of the Code of Criminal Page 2 of 50 R/CR.MA/17743/2013 JUDGMENT Procedure, 1973 with a prayer to quash the first information report registered as I-C.R. No.118 of 2012 with the Anand Rural Police Station, District: Anand for the offence punishable under sections 338 read with 114 of the Indian Penal Code.

5. The true English translation of the first information report is extracted hereunder;

"With reference to the above mentioned subject, it is to be informed that Param Poojya Ravi Shankar Maharaj Eye Hospital is situated at Village: Chikhodara, District: Ananad. In this hospital, since long, they conduct check-up of eye related problems and treatment is being given, among which, examination of cataract problem is done and operations are being performed. This hospital is arranging eye camps. On 14/7/2012, in the eye camp held at Alarsa village, the complainants nos: 1,2 and 3 presented themselves for the eye check-up, during which, the doctors informed them that their eyes have cataract and for the operation thereof they will have to come to the eye hospital situated at village: Chikhodara. The complainants no: 1,2 and 3 went to the aforesaid hospital as per the suggestion of the doctors for the cataract operation where they were kept for two days for treatment.

Thereafter on 16/7/2012 the eye surgeon of the charitable hospital at village Chikhodhara viz. Dipak Pradhan was not present. He therefore did not perform the operation but the operation was performed by Dr. Mrs. Rohini Jindal of the Kiran Eye Hospital, at the Chikhodara hospital. On that day after the operation of the complainants nos: 1,2 and 3 they went back to their village. Thereafter, on 17/18 and 19 they suffered severe pain. Therefore, for further treatment they came to Param Poojya Ravi Shankar Maharaj Hospital on 20/7/2012. The Doctors sent them to the Nutan Eye Hospital where it was noticed that the condition was serious. They were taken to a well renowned doctor of Asia and Gold Medallist Dr. P.L. Nagpal at Ahmedabad at 3.30 Hours in the Page 3 of 50 R/CR.MA/17743/2013 JUDGMENT afternoon without informing the relatives of the complainants. Thereafter, our relatives came to know about this fact and they reached the hospital. Dr. Nagpal after carrying out the eye check-up, informed that in the eye where the cataract operation had been performed, the chances of getting back the vision is only 1%. He informed that the vision had been lost. Thereafter at 9:30 P.M. they were brought back to Chikhodara Hospital. The relatives of the patients got furious and the news of the entire incident became known to the press media and journalist, therefore, they reached there and they exposed the negligence of the doctors in the newspapers, and T.V. media also reached there and exposed the negligence. The trustees of the hospital and the doctors had given an evasive reply to the allegation.

Dr. Dipak Pradhan gave an evasive reply and a statement that this had happened because the eyes of the patients got infected. Since, the complainants nos: 1, 2 and 3 came to know that they had lost the vision, upon further inquiry, it came to the knowledge that apart from the complainants nos: 1,2 and 3, the same thing had happened with the Complainants nos: 4 to 10 who had also lost the vision of their eyes after the cataract operation due to the aforesaid negligence. The relatives of the patients informed the District Collector Mrs. Avantika Singh about the entire incident. She ,therefore, called the officers concerned from the Health and Other departments to Poojya Ravi Shankar Maharaj Hospital and they visited the hospital and the Joint Director Dr. Jesalpara from Gandhinagar reached their for investigation and he applied seals to the operation theatre and the medicines.

Thereafter, the complainants were given false excuses that they would be taken to the Nadiad Civil Hospital for further treatment. The complainants no: 1,2,3,4,5,6 and 9 were taken to Nadiad at 9:30 P.M. and no: 3,7,8 and 10 were told that they would be taken subsequently and they were kept at Chikhodara. Thereafter at late night, six patients were also Page 4 of 50 R/CR.MA/17743/2013 JUDGMENT shifted to Nadiad Hospital. After the cataract operation, within a short time ten persons lost the vision in their eye simultaneously. Without informing the relatives of the patient they were shifted to Nadiad Civil Hospital where the treatment was found to be difficult and therefore they were shifted to Ahmedabad Civil Hospital at 22/7/2012 7:30 Hours. There also the relatives of the patient were not informed but they reached Ahmedabad upon coming to knew the fact. At Ahmedabad Civil Hospital, the Director Dipak was there and upon inquiry the Doctor Officers informed that they were doing their best however, the damage caused to the eyes upon the cataract operation are not likely to be retrieved and the chances of getting back the vision are almost nil and eyes have failed and they were helpless to do anything and thereby they escaped from their responsibility and they had also shown negligence. At present six patients are taking treatment at Ahmedabad Civil Hospital whereas four patient are in Chikhodara Hospital. Eyes are very important organs of human beings and their life. Only those persons who are leading very poor life, such persons participate in the camps. Such poor patients have lost their vision in the eyes on account of negligence of the opponent persons and therefore we all complainants are filing this complaint jointly.

We therefore, request, you to take appropriate legal action against the opponents by arresting them. Moreover, it is informed to you that if our complaint is not looked into, the relatives of patients will not hesitate to hold agitations which may kindly be noted. "

6. Thus, the first information report came to be lodged by the respondent No.2 herein (one of the victims) against, in all, seven persons and also those whose role may surface in the course of the investigation. Prima facie, it appears that Shri Ravishankar Maharaj Eye Hospital, situated at Chikhodara, Anand is a Public Charitable Hospital. The first informant and Page 5 of 50 R/CR.MA/17743/2013 JUDGMENT the other victims visited an eye camp on 14th July, 2012 as they were advised to get themselves operated for the extraction of cataract. After a formal check up at the camp organized by the Charitable Institution, they all were asked to come on a particular date at the Ravishankar Maharaj Eye Hospital, Chikhodara. The surgeries for the removal of the cataract were performed by the two applicants herein as well as the other doctors named in the first information report. The surgeries were performed on 16th July, 2012. It appears that Dr. Rohini Jindal, the applicant of the Criminal Misc. Application No.17743 of 2013 operated upon seven patients, whereas Dr. Hitesh Shah, the applicant of the Criminal Misc. Application No.14827 of 2012 operated upon three patients. On the very next day, i.e., on 17th July, 2012, the victims, who had undergone cataract surgery, experienced severe pain and infection in their eyes. They all were sent to one Nutan Eye Hospital and from there, they were referred to the hospital of a well renowned Ophthalmologist, namely, Dr. Nagpal, practicing in Ahmedabad. On examination, all the patients were given to understand that they had contracted infection in their eye, in which, the surgery was performed and, therefore, they had lost vision in that particular eye. The operated eyes of the patients were irreversibly damaged, owing to a post- operative infection of the intra ocular cavities of the operated eyes. It appears that the Collector, Anand was informed about what happened with the patients who had undergone cataract extraction surgery, and the Collector, in turn, informed the Health Department of the State Government at Gandhinagar and the other concerned departments. The Joint Director of the Heath Department visited Shri Ravishankar Maharaj Eye Hospital, Chikhodara and directed that the operation theater Page 6 of 50 R/CR.MA/17743/2013 JUDGMENT be sealed and the medicines also be packed and sealed. The whole program, however, laudable the intentions with which it might have been launched, proved a disastrous medical misadventure for the patients.

7. This is how the first information report came to be lodged by one of the victims. The two applicants before me, being aggrieved with the registration of the first information report against them for the offence punishable under sections 338 read with 114 of the IPC, are here before this Court with a prayer that the first information report be quashed.

8. Mr. Pandya, the learned counsel appearing for the applicants vehemently submitted that even if the entire case put up by the first informant in her first information report is believed or accepted to be true, his clients cannot be held responsible in any manner for the loss of vision. Mr. Pandya submitted that both the applicants are well renowned Ophthalmologists. Both are practicing past couple of years. Both are having their own independent eye hospitals. However, quite frequently, they render voluntary services free of charge by visiting different Charitable Hospitals for the purpose of performing surgeries on the poor patients who cannot afford to get themselves admitted and operated in a private eye hospital. Mr. Pandya submitted that the victims lost their vision on account of lack of post operative care. No fault is found with the skill, ability or competency of the two applicants, who performed the operations. He submitted that the surgeries were performed with due care and skill. If during the post operative stage, due care is not taken, and on account of which, infection is contracted, then the doctors should not Page 7 of 50 R/CR.MA/17743/2013 JUDGMENT be held responsible for the same. Mr. Pandya conceded to the fact that the hospital authorities exhibited complete negligence in the maintenance of hygiene etc. In such circumstances, referred to above, Mr. Pandya, the learned counsel, prays that there being merit in the two applications, they be allowed and the first information report be quashed.

9. On the other hand, both these applications have been vehemently opposed by Mr. Amit R. Joshi, the learned counsel appearing for the respondent No.2-original first informant and Ms. Moxa Thakkar, the learned APP appearing for the State of Gujarat.

10. Both submitted that no case is made out for quashing of the first information report as the police should be permitted to complete the investigation in accordance with law. It is submitted that more than a prima facie case is made out, at least, for the purpose of permitting the police to carry out the investigation in accordance with law. It is submitted that the two applicants might have rendered their free voluntary services, but that by itself, does not mean that they are not supposed to take due care of the patients at the post operative stage. It is pointed out that the dressing in the operated eyes was undertaken by a nurse who had just studied upto standard 12th. It is further pointed out that the solution, with which, the dressing was done, contained some organism like fungus, and for this, not only the hospital authorities and the management is responsible, but even the doctors are responsible because the doctors are supposed to ensure that the surgery is being performed in the most hygienic conditions, the instruments are well sterilized and free of any infection of any type etc. It is Page 8 of 50 R/CR.MA/17743/2013 JUDGMENT submitted that the doctors cannot run away by merely saying that their job was to perform the surgery and nothing beyond that. It is submitted that how far the lack of intensive post- operative institutional care contributed to the infection or the aggravation of its effects is a matter which cannot be decided in these proceedings. These are technical matters for professional medical assessments. In such circumstances, referred to above, both the learned counsel prays that there being no merit in the two applications, they be rejected.

11. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the first information report should be quashed.

12. Having regard to the nature of the allegations levelled in the first information report, I would have rejected both the applications only on the ground that the first information report deserves to be investigated in accordance with law. However, there are materials on record, which indicate that the two applicants herein are not directly responsible for what happened and they should not be put on trial for the offence punishable under sections 338 read with 114 of the Indian Penal Code. In such circumstances, I examined the matter in details and would like to assign my reasons as to why the first information report deserves to be quashed so far as the two applicants are concerned.

13. Laying down the scope of interference by the High Court in the matters of quashing of the FIR or complaint, the Supreme Court, in the State of Haryana & ors. vs. Bhajanlal & ors., reported in 1992 Supp (1) SCC 335, laid Page 9 of 50 R/CR.MA/17743/2013 JUDGMENT down as follows :-

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the inherent powers under section 482 of the Code, which we have extracted and reproduced above, we give the following categories of cases by way of illustration, wherein such power could be exercised either to prevent abuse of the process of the any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines of rigid formulae and to give an exhaustive list of myriad kinds of cases, wherein such power should be exercised :-

(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirely, do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations made in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegation in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion Page 10 of 50 R/CR.MA/17743/2013 JUDGMENT that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned act (under which criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance of the accused and with a view to spite him due to private and personal private grudge."

14. In the case of Bhajanlal (supra), the Supreme Court gave a note of caution, on the powers of quashing of the criminal proceedings, in the following words :-

"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extra ordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice."

15. It is clear from a close reading of the principles laid down, in the case of R.P.Kapur vs. State of Punjab, 1960 AIR (SC) 866 and Bhajanlal (supra), that broadly speaking, quashing of a First Information Report or a complaint is possible (a) when the allegations made, in the First Information Report or the complaint, even if taken at their face value and accepted in their entirely as true, do not prima facie constitute any offence or make out a case against the accused; (b) when the Page 11 of 50 R/CR.MA/17743/2013 JUDGMENT uncontroverted allegations, made in the FIR or complaint and evidence collected in support of the same, do not disclose the commission of any offence and/or make out a case against the accused; and (c) when the allegations made in the FIR or complaint are so absurd and inherently improbable that on the basis of such absurd and inherently improbable allegations, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

16. In other words, when the allegations, made in an FIR, disclose commission of a cognizable offence, such an FIR cannot, ordinarily, be quashed by relying upon some other materials on which will depend the defence of the accused, for, in such cases, truthfulness or otherwise of the allegations contained in the FIR or the probability of the defence plea can be determined only by effective investigation or at the trial.

17. However, in Harshendra Kumar D. vs. Rebatilata Kiley & Ors., reported in (2011) 3 SCC 351, the Supreme Court has made it clear that it is not an absolute rule of law that the High Court, while exercising its jurisdiction under Section 482 CrPC, or, while exercising its revisional jurisdiction under Section 397 CrPC, cannot, under any circumstances, look into the nature of public document or such materials, which are beyond suspicion or doubt, in order to ascertain if the criminal prosecution should or should not be allowed to proceed. In fact, the Supreme Court has also made it clear, in Harshendra Kumar D. (supra), that no greater damage can be done to the reputation of a person than dragging him in a criminal case. The Supreme Court has, therefore, held, in Harshendra Kumar D. (supra), that the High Court fell into Page 12 of 50 R/CR.MA/17743/2013 JUDGMENT grave error in not taking into consideration the uncontroverted documents relating to the appellant‟s resignation from the post of director of the company, which, if looked into, would have made it clear that the appellant‟s resignation from the post of director of the company was much before the cheques had been issued by the company. The relevant observations, which appear, in this regard, at paragraph 25 and 26, in Harshendra Kumar D. (supra), read as under:

"25. In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused, which are in the nature of public documents or the materials which are beyond suspension or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an inquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents - which are beyond suspension or doubt - placed by the accused, the accusations against him cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage.

26. Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant‟s resignation from the post of Director of the Company.

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R/CR.MA/17743/2013 JUDGMENT Had these documents been considered by the High Court, it would have been apparent that the appellant has resigned much before the cheques were issued by the Company."

18. From the law laid down in Harshendra Kumar D. (supra), it becomes clear that when the High Court is approached for quashing of a criminal prosecution in exercise of its extra- ordinary jurisdiction under Section 482 CrPC, or in exercise of its revisional jurisdiction under Section 397 Cr.P.C, the High Court has to bear in mind that criminal prosecution affects the liberty of a person and there can be no greater damage done to the reputation of a person than dragging him in a criminal case. There is, therefore, no absolute bar, on the High Court‟s power, to take into consideration any uncontroverted document, which may have come on record, for the purpose of arriving at a decision as to whether a criminal prosecution should or should not be allowed to continue and, if the Court, on the basis of any public or uncontroverted document, comes to the conclusion that allowing the criminal prosecution to proceed, in such a case, would amount to abuse of the process of the Court, the High Court has the duty to quash such a proceeding.

19. It is, no doubt, true that while exercising its inherent jurisdiction under Section 482 CrPC, or its revisional jurisdiction, under Section 397 CrPC, where a complaint or FIR is sought to be quashed, it is not proper, on the part of the High Court, to consider the defence of the accused or enquire into the correctness or veracity of the accusations made against the accused. Nonetheless, in appropriate cases, if, in the face of the documents placed by the accused, which are beyond suspicion or doubt, the accusations against the Page 14 of 50 R/CR.MA/17743/2013 JUDGMENT accused cannot stand, it would be travesty of justice if the accused is asked to face trial, for, if it is so done, it would amount to denial of justice and would be tantamount to preventing justice from being done. This would be nothing short of abuse of the process of the Court.

20. It appears that no sooner the Health Department of the State Government learnt about what had happened at the Ravishankar Maharaj Eye Hospital, Chikhodara, District: Anand, then a Committee of experts was constituted to probe into the matter. The following were the members of the Inquiry Committee;

 Sr.                 NAME                        DESIGNATION
 No.
  1           Dr. D.C. Mehta              Director & Professor, M & J
                                             WRIO, Civil Hospital,
                                                 Ahmedabad.
  2         Dr. S.V. Aggarwal                Associate Professor
                                          M & J WRIO, Civil Hospital,
                                                 Ahmedabad.
  3        Dr. Nimitt Kubavat                    Civil Surgeon
  4     Dr. Lajvantiben Shukla             Cl. I Eye Surgeon, Petlad.
  5       Dr. Devika Motwani             Cl.I Eye Surgeon, Vadodara.
  6           Shri L.S. Desai              Administrator Officer-
                                        Additional Director of Health,
                                                Gandhinagar.

21. One Dr. Seema Bhatt, Associate Professor & Head, Ocular Microbiology Dept., M & J W RIO, Ahmedabad carried out all the necessary microbiological investigations. The Committee, after a thorough inquiry, filed its report dated. 09.08.2012 stating as under;

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"Sequence of Events

1) 9/07/12 to 17/7/12 33 patients were operated for cataract extraction with IOL implantation.

2) 3 patients- endophthalmitis- Operatign Surgeon-Dr. Hitesh Shah 7 patients-endophthalmitis-Operating Surgeon- Dr. Rohini Jidal Total 10 patients developed endopthalmitis

3) 4 patients- Vitrectomy operation at Vadodara/Chikhodara

4) 6 patients- shifted to M & J Institute, Ahmedabad on 22/7/12 Of these, on 22/07/12, 5 patients-Intravitreal Inj/Vitrectomy done. 1 patient-Evisceration operation was done on 31/07/12. All these 6 patients were discharged on 3/08/12.

____________________________ The Committee visited Ravishankar Maharaj Eye Hospital, Chikhodara on 24/07/12 & 26/07/12.

The Committee Action Plan A committee consisting of 6 members was instructed to investigate the 10 cases of cluster endophthalmitis at Ravishanker Maharaj Eye Hospital, Chikhodara, Dist, Anand. One member Dr. L Shukla could join only for first visit to Chikhodara on 24/07/12. Later on, she was on earned leave. The committee sought the help of Dr. Seema Bhatt- Associate Professor of Ocular Microbiology at M & J W RIO and her laboratory staff for necessary investigation work up.

The Committee members visited Ravishanker Maharaj Eye Hospital on 24/07/12 and again on 26/07/12. During these 2 visits, written statements from all the Doctors, staff members, as well as Honorary secretary of the trust were gathered. The sealed operation theatre was opened. The Operation theatre facilities were examined Page 16 of 50 R/CR.MA/17743/2013 JUDGMENT in detail.

The Committee inspected all the different areas of the Ravishanker Maharaj Eye Hospital e.g. male ward, female ward, stores room, examination room, operation theatre 1 & operation theatre -2, Septic operation theatre, Scrub room Sterilization room etc in detail. The committee members inspected 4 patients admitted in the Chikhodara hospital. They also talked to their relatives and all the relevant information was gathered. The microbiology team led by Dr. Seema Bhatt - Associate Professor of Ocular Microbiology took all the necessary samples. The official Photographer of M & J Institute took necessary photographs, The operation theatre was resealed.

The operation theater samples and other documents were carefully sealed in three (3) boxes and were transported safely to M & J Institute, Ahmedabad for further necessary action.

As per instruction from higher authority, a team from M & J Institute had gone to the civil hospital, Nadiyad, where 6 patients from Chikhodara were brought for check up. Later on these 6 patients were p admitted to M & J Institute, Ahmedabad on 22/07/12 (Sunday) The committee members checked these 6 patients in detail. These six patients and their attendants gave all the relevant details to the committee members.

Observations , Analysis & Discussion The committee members held several meetings. The relevant issues were discussed at length. All the relevant documents were carefully examined. in particular, the committee gathered all the relevant details from 4 doctors-1.Dr. Deepak Pradhan, 2. Dr. Rohini Jjndal, 3. Dr. Hitesh Shah, 4.Dr. Anil Patil the Retina surgeon, also the hospital staff & honorary secretary of the trust Shri Girishbhai Patel were interviewed detail all the relevant record were collected.

MlCROBlOLOGY Lab REPORTS Page 17 of 50 R/CR.MA/17743/2013 JUDGMENT These are extremely important evidences. The committee carefully reviewed Lab reports from 3 sources in close consultation with Dr. Seemaa Bhatt.

1. Dr. Sanjay Laboratory, Anand. Anand.

2. Toprani advanced Lab systems. Vadodara.

3. M & J Institute of ophthalmology, Ahmedabad. Pseudomonas Aruginosa-this extremely fulminating organism emerged as the cause for the catastrophe. Dettol solution bottle recovered from sealed operation theatre must have been responsible for transfer of these deadly organisms to many eyes Operated during the period from 9th July 2012 to 17th July 2012. Chitel forceps are kept in this Dettol solution. The forceps are used to supply gowns, masks, gloves, instruments, cannulas from one sterile area to another one. As the source was contaminated, the infection could spread quickly. Operation Theatre Issues Operation theatre in charge is not a qualified person. Smt. Chhayaaben is only Xll standard pass. She has not taken any formal training or refresher courses. Her concepts about autoclaving, Sterilization and operation theatre maintenance are very weak & vague. Septic Operation theatre is just next to Main clean Operation theatre resulting in to gross contamination risks. Even sterilization room, scrub room are common resulting in to more risks.

Biomedical waste segregation concept is not there. The bio-medical register sheet had comments for irregular pick up. It was not duly signed by hospital staff. Gujarat pollution control Board certificate document not procured till 26/07/2012.

Windows close to main Operation theatre are not sealed. We saw birds on the outside of window net increasing the risk of infection.

Lack of Security persons outside operation theatre. We did not see even a single securities person/CC TV system Page 18 of 50 R/CR.MA/17743/2013 JUDGMENT for the big complex of Ravishanker Maharaj Eye Hospital, Chikhidara.

Service Delivery Related issues A-Scan Biometry done on the day of the surgery. This can be a source for infection. Very important first day postoperative dressing- always done by the nursing staff, The doctor is alerted only if there are major complaints by the patient. The hospital ward in charge doctor is not Ophthalmologist.

Electric supply is cut off quite often. This can result in to incomplete and faulty sterilization. Managing committee has only one medical doctor Dr. Galgali as a member but he did not come during our visits Only Shri Girishbhai Patel Honorary secretary attends the hospital for one hour on alternate days Staff presence registers show "P" sign which is not correct. Signature in the register are not available. Visiting doctors come only for performing operations. Their appointment letters are vague/not available. Their duties & responsibilities are not defined.

Patients related issues

1. Mostly socio economically weak, old patients with poor/fair nourishment. They are mostly illiterate or semi- literate with poor hygiene concepts.

2. One patient ~Shyamlal claimed he was advised both eyes operation but he gave consent only for one eye Surgery.

Summary

1.The managing committee seems to have only one active person, i.e., Honorary secretary Shri Girishbhai Patel. He has failed in discharging his duties resulting into to 10 cluster endophthalmitis. His one hour round every alternate day is of no use. The managing committee lists a medical Doctor-Dr. Galgali but we never met him or anybody else except the Honorary secretary.

2. The first post operative dressing must be carried out Page 19 of 50 R/CR.MA/17743/2013 JUDGMENT by ophthalmologist. This dressing is left to untrained nursing staff. This 1st dressing & check up on slit lamp & indirect ophthalmoscope can diagnose infection in early stage with good chances for recovery.

Once alerted, the complete management of diagnose infection of all cases was done by. Dr. Anil Patil, Dr. R M Bharawada, Dr. Anuj Amin, Dr. somesh Agrawal ,Dr. Sonali Shah, Dr. Anil Patil & Dr. P.N. Nagpal, Ahmedabad.

CONCLUSlONS The committee unanimously recommends * Strong suitable action against Management- Honorary secretary for employing unqualified staff for operation theatre. This mistake led to the catastrophe of cluster endophthalmitis.

* Suitable action against all doctors for failing to see the cases on the first post operative day.

1. Dr. Deepak Pradhan.

2. Dr. Rohini Jindal.

3. Dr. Hitesh Shah."

22. Thus, the plain reading of the report, referred to above, is indicative of the fact that what has been attributed to the doctors who had performed the surgeries, is the negligence on their part to examine the patients at the stage of first post operative day care. To put it in other words, the failure to examine the patients on the first post operative day. Probably, what is sought to be conveyed in the report is that the responsibility of the doctor would not come to an end as soon as the surgery is completed. The doctor owes a duty to examine his patients upon whom the surgery has been performed on the next day as a part of the post operative care. If the doctors would have been little vigilant or alert, then the Page 20 of 50 R/CR.MA/17743/2013 JUDGMENT infection could have been averted.

23. I also take notice of the proceedings which were initiated by the Gujarat Medical Council in this regard against the two applicants herein. The Gujarat Medical Council closed the matter with instructions to the two applicants herein to ensure that in future, pre and post operative surgical protocols are maintained at the institution/hospital in the interest of the patients. The communication of the Gujarat Medical Councill, in this regard, is extracted hereunder;

"GUJARAT MEDICAL COUNCIL No.GMC/7/1637-40 of 2016 1st Floor, Old Nursing College, Building , Nr. M.P. Shah Cancer Hospital, Civil Hospital Campus,Awarwa, Ahmedabad-380016.

Date: 01.06.2016.

Tele-Fax: 079-22680534 E mail: [email protected] REGISTERED.

To, (1) Dr. Deepakbhai P. Pradhan, M.S. (Ophth.), Gulmohar Park, Opp: Satyam Society, College Road. (2) Dr. Hitesh H. Shah, M.S. (Ophth.) 103, Nariman Complex, Opp: J.S. Mistry & Sons, Nr. Laxmi Talkies, Juna- Rasta, Anand-388001.

(3) Dr. Rohini Jindal, 99, Aaksdhdeep Bunglows, Anand-

Borsad Road, Anand-388001.



      Subject::-       Complaint      against      you   for   professional


                                   Page 21 of 50
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negligence made by Commissioner, Health           Medical
Services and Medical Education (Health            Dept.),
Gandhinagar.


Sir,

With reference to your personal appearance before the Executive Committee Meeting held on 09-05-2014, and taking into consideration your Explanation letters dtd. 12.03.2013, dtd: 19.08.2013 and dtd: 12.08.2013 respectively and complaint papers with its enclosures etc. received from the Complainant Commissioner, Health Medical Services and Medical Education (Health Dept.). The Executive Committee Meeting held on 03.03.2016 has adopted the following Resolution unanimously.

RESOLVED It may recommended to the Council:

(1) That all the three doctors of Ravishankar Maharaj Eye Hospital, Chikhodara, be hereby instructed to ensure henceforth in future that pre and post operative surgical protocols are maintain at the institution/hospital and otherwise in the interest of the patient. (2) XXXX The recommendation of the Executive Committee is been accepted at the council meeting held on 28.04.2016 for the above respective complaint.

Therefore, according to the said Resolution, the complaint is been treated as closed and connected papers of complaint etc. are filed.

Yours Faithfully, Sd/-

I/C REGISTRAR, GUJARAT MEDICAL COUNCIL.

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       R/CR.MA/17743/2013                                 JUDGMENT




      Copy forwarded for      information to the complainant
      Commissioner, Health Medical        Services and Medical

Education (Health Dept.), Block No.5, Dr. Jivraj Mehta Bhavan, Gandhinagar, in reference to his complaint dated- 31.01.2013 against Dr. Deepakbhai P. Pradhan, Dr. Hitesh H. Shah and Dr. Rohini Jindal."

24. Thus, it appears that the Gujarat Medical Council also arrived at the conclusion that it was the lack of post operative care, which led to the patients contracting infection in their eyes and consequently, the loss of vision.

25. In the aforesaid background, I need to now examine the matter whether the two applicants herein could be said to have committed an offence under section 338 of the IPC. Section 338 IPC is extracted hereunder;

"338. Causing grievous hurt by act endangering life or personal safety of others.-Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both."

26. Two questions fall for my determination;(i) whether the alleged role of the applicants amount to "doing any act" and whether it was so rash or negligent as to endanger the life of the patient.

27. The provisions of section 338, IPC have already been reproduced in the earlier part of this judgment. A perusal thereof would clearly demonstrate that before a person is held guilty of the offence, the following ingredients need to be Page 23 of 50 R/CR.MA/17743/2013 JUDGMENT established.

a)    Causing grievous hurt to a person.

b)    Grievous hurt should be the result of an act.

c)    Such act ought to have been rash and negligent.

d)    The intensity of commission of such an act ought to

endanger the human life or the personal safety of others.

28. In re, Nidamurthi Nagabhushanam, 7 Mad H C R 119, Holloway and Kindersley, JJ. defined "culpable rashness" and "culpable negligence" thus.;

"Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness (luxuria). Culpable negligence is. acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that if he had lie would have had the consciousness. The imputability arises from the neglect of the civic duty, of circumspection."

29. It is apparent that an injury caused consciously or intentionally will not come within the purview of either of these categories. Rashness implies an awareness of the mind and the Possible consequence, the person concerned, nevertheless, persisting in an act in the expectation that it is in his power to meet an emergency or he has taken steps to avoid or prevent any mischance or mischievous or injurious thing happening.

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30. The essence of rashness lies in the consciousness or awareness of the mind with reference to the act done and Indulging in the act with a foolhardy hope or expectation against anything untoward happening. On the other hand, negligence presupposes a negative state of mind, an absence of awareness or consciousness of what should be done or omitted to be done, such state of mind being consequent upon failure to apply or exercise the requisite caution or precaution. As a result of not exercising the requisite caution or precaution, a person slips into a mental condition in which he does an act or fails to do an act little foreseeing its consequences or effects.

31. The essence of criminal liability under S. 337 or 338, I.P.C. is culpable rashness or negligence and not any rashness or negligence,. The difference between the two is what marks off a civil from a criminal liability. The distinction is often an intricate matter and depends on the particular time, place and circumstances. In civil law, negligence means inadvertence, which, 11 it resulted injurious consequences to person or property, may involve liability the compensate for damage. in Halsbury's Laws of England, 3rd Edn. Vol. 28, paragraph 1, it is stated:

"Negligence-is a specific tort and in any given circumstances is the failure to exercise that care with which the circumstances demand. What amounts to negligence, depends on the facts of each particular case and the categories of negligence are never closed. It may consist in omitting to do something which ought to be done or in doing something which ought to be done, either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to Page 25 of 50 R/CR.MA/17743/2013 JUDGMENT exercise care, reasonable care, must be taken to avoid acts or omissions which can he reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the accompanying circumstances, and may vary according to the amount of the risk to lie encountered and to the magnitude of the prospective injury"

32. The consequence flows from a state of mind which is blank or devoid of any advertence, and the liability for such consequence is to be judged from the standpoint of reasonable foreseeability and the failure to exercise the care which such foreseeability necessarily implies. That I conceive to be the principle of tortious liability for negligence. Kenny in his "Outlines of Criminal Law" at page 29 observes, "But if the reasonable man would have avoided the harm then there is liability and the perpetrator of the harm is said to be guilty of negligence The word 'negligence', therefore, in our jurisprudence, is used to denote blameworthy inadvertence and the man who through his negligence has brought harm upon another is under a legal obligation to make. reparation for it to the victim of the injury, who may sue him in tort for damages. But it should now be recognised that at common 1aw there is no criminal liability for harm thus caused by inadvertence............... The truth may be that he did not foresee the consequences as a reasonable man would have done, and that he was negligent in the true sense of the word and therefore civilly, although not criminally, liable."

33. Kenny further points out that for criminal liability for negligence, there must he something more than such blameworthy inadvertence. This aspect is also adverted to in paragraph 1374 of Halsbury's Laws of England, 3rd Edn. Volume 10;

"A higher degree of negligence is necessary, to render a Page 26 of 50 R/CR.MA/17743/2013 JUDGMENT person guilty of manslaughter than to establish civil liability against him. Mere careless-ness is not enough. Negligence in order render person guilty of manslaughter must be more than matter of compensation between subjects; it must show such disregard for the lifts and safety of others as to amount to a crime against the State. Whether negligence is to be regarded as of such a nature is a question for the jury, after they have been properly directed by the judge as to the standard to be applied, and depends on the facts of the particular case. The number of persons affected by a single, act, of negligence does not affect the decree of negligence."

34. Mere negligence or rashness is, therefore, not enough to bring a case within the ambit of Sections 337 or 338, I.P.C. Negligence or rashness proved by evidence mast be such as should necessarily carry with it a criminal liability. Whether such liability is present may depend on the degree of culpability having regard in each case, to the particular time. place and circumstances.

35. The case of the prosecution is that the doctors did not take the trouble to examine the patients on the next day as a part of the post operative care and omitted or rather failed to ensure that they were performing the surgery in hygienic conditions and everything was in order so far as the surgical equipments etc. was concerned. Therefore, the question arises in the context of the second ingredient, as to whether "omission to act", would also be covered by the expression "act" occurring therein. For this purpose, I would like to refer and rely upon a decision of the Supreme Court in the case of P.B. Desai vs. State of Maharashtra, AIR 2014 SC 795. The relevant observations of the Supreme Court, in this regard, are extracted hereunder;

Page 27 of 50

R/CR.MA/17743/2013 JUDGMENT "29. Whether "act" includes "omission"? Though this aspects needs elaboration alongwith discussion with regard to other ingredients as these are inextricably mixed up and can't be discussed in isolation and, therefore, we have proceeded in that manner at appropriate stage. Here, we are narrating the legal position only. In this behalf, we may point out that there may be various circumstances where "act" would include "omission to act" as well. This is so recognized even in Sections 32, 33 & 36 of I.P.C.

These provisions are reproduced below:

"32. Words referring to acts include illegal omissions. - In every part of the said code, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions. -

33. "Act", "Omission". - The word "act" denotes as well a series of acts as a single act: the word "omission"

denotes as well a series of omissions as a single omission.

36. Effect caused partly by act and partly by omission. - Wherever the causing of certain effect, or an attempt to cause that effect, by an act or by an omission, is an offence, it is to be understood that the causing of that effect partly by an act and partly by an omission is the same offence."

30. The legal understanding of omission is indispensable at the juncture. An omission is sometimes called a negative act, but this seems dangerous practice, for it too easily permits an omission to be substituted for an act without requiring the special requirement for omission liability such as legal duty and the physical capacity to perform the act. Criminal liability for an omission is also well accepted where the actor has a legal duty and the capacity to act. It is said that this rather fundamental exception to the act requirement is permitted because an actor's failure to perform a legal duty of which he is capable, satisfies the purposes of the act requirement or at least satisfies them as well as an act does. Specifically these two special requirements for omission liability help to exclude from liability cases of

-fantasizing and irresolute intentions, important purposes of the act requirement.

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31. However, a failure to act, by itself does nothing to screen out mere fantasies. It is the actor's failure to act in the light of his capacity to do so that suggests the actor's willingness to go beyond mere fantasizing and to have the harm or evil of the offence occur. Even then, however, the screening effect seems weak; "letting something happen" simply does not carry the same implication of resolute intention that is shown in causing something to happen by affirmative action. While an actor's failure to perform a legal duty provides some evidentiary support for the existence of an intention to have the harm or evil occur, the force of the implication is similarly weak. Inaction often carries no implication of intention unless it is shown that the actor knows of his or her duty to act and the opportunity to do so.

32. Liability for an omission requires a legal duty to act; a moral duty to act is not sufficient. The duty may arise either from the offence definition itself or from some other provision of criminal or civil law. A duty arises from the former when an offence is defined in terms of omission. This is the -situation where the legislature has made it an offence. A legal duty to act may also be created by a provision of either criminal or civil separate from the offence charged. For example, a duty under the Maharashtra Medical Council's Code of Ethics and Maharashtra Medical Council Act, 1965.

33. Since there is no moral difference between (i) a positive act and (ii) an omission when a duty is established, it is to be borne in mind that cases of omissions, the liability should be exceptional and needs to be adequately justified in each instance. Secondly, when it is imposed this should be done by clear statutory language. Verbs primarily denoting (and forbidding) active conduct should not be construed to include omissions except when the statute contains a genuine implication to this effect. Thirdly, maximum penalties applied to active wrongdoing should not automatically be transferred to corresponding omissions; penalties for omissions should be re- thought in each case. Indeed, the Indian Penal Code, 1860 does include explicitly the liability due to omissions. And even Indian courts have affirmed so. In the case of Latifkhan (1895) 20 Bom 394, wherein the law imposes a duty to act on a person, his illegal omission to act renders him liable to punishment. While dealing with the imposition of liability for -omission, Page 29 of 50 R/CR.MA/17743/2013 JUDGMENT certain considerations are required to be kept in mind. Does section 338 of the I.P.C recognize that the particular offence may be committed by omission? Some category of offences may, some may not; Does it include medical profession? If the offence is capable of being committed by omission, who all were under a duty to act? Who owed the primary duty? What are the criteria for selecting the culprit? Where the definition of the crime requires proof that the actor caused a certain result, and can he be said to have caused that result by doing nothing? These questions cannot be completely separated and sometimes few or all three of them would arise in the same material which follows. Each of them, perhaps, also gives rise to yet another question: Is actor's conduct properly categorized as an omission, or an act? Indeed section 338 of the I.P.C does recognize unambiguously that the particular offence can be committed by omission. More so, the medical profession is included in it. The offence under section 338 of the I.P.C is capable of being committed by omission.

34. We reiterate that we have stated, explained and clarified the meaning of expression "act" occurring in Section 338 IPC, to include acts of omission as well. Its applicability in the instant case has been discussed elaborately at the relevant portion of this judgment so as not to lose the continuum.

35. As we find that "omission" on the part of the appellant would also be treated as "act" in the given circumstances, the issue is as to whether this act of omission was rash & negligent. This is a pivotal & central issue which needs elaborate and all pervasive attention of the court. To create the edifice, brick by brick, we intend to proceed in the following order:

1. The Doctor-Patient Relationship.

2. Duty of care which a doctor owes towards his patient.

3. When this breach of duty would amount to negligence.

4. Consequences of negligence: Civil and Criminal.

5. When criminal liability is attracted.

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6. Whether appellant criminally liable u/s 338 IPC, in the present case?

(1) The Doctor- Patient relationship

36. Since ancient times, certain duties and responsibilities have been cast on persons who adopt the sacred profession as exemplified by Charak's Oath (1000 BC) and the Hippocracic Oath (460 BC).

37. It is the responsibilities that emerge from the doctor- patient relationship that forms the cornerstone of the legal implications emerging from medical practice. The existence of a doctor-patient relationship presupposes any obligations and consequent liability of the doctor to the patient.

38. It was Talcott Parsons, a social scientist, who first theorized the doctor-patient relationship. He worked on the hypothesis that illness was a form of dysfunctional deviance that required re- integration with social organism. Maintaining the social order required the development of a legitimized sick role to control this deviance, and make illness a transitional state back to normal role performance. In this process, the physician, who has mastered a body of technical knowledge, on a functional role to control the deviance of sick persons who was to be guided by an egalitarian universalism rather than a personalized particularism. While this basic notion has remained robust, over a period of time there have been numerous qualifications to the theory of Parsons. For instance, physicians and the public consider some illnesses to be the responsibility of the ill, such as lung cancer, AIDA and obesity.

39. It is not necessary for us to divulge this theoretical approach to the doctor-patient relationship, as that may be based on model foundation. Fact remains that when a physician agrees to attend a patient, there is an unwritten contract between the two. The patient entrusts himself to the doctor and that doctor agrees to do his best, at all times, for the patient. Such doctor-patient contract is almost always an implied contract, except when written informed consent is obtained. While a doctor cannot be forced to treat any person, he/she has Page 31 of 50 R/CR.MA/17743/2013 JUDGMENT certain responsibilities for those whom he/she accepts as patients. Some of these responsibilities may be recapitulated, in brief:

(a) to continue to treat, except under certain circumstances when doctor can abandon his patient;

(b) to take reasonable care of his patient;

(c) to exhibit reasonable skill: The degree of skill a doctor undertakes is the average degree of skill possessed by his professional brethren of the same standing as himself. The best form of treatment may differ when different choices are available. There is an implied contract between the doctor and patient where the patient is told, in effect, "Medicine is not an exact science. I shall use my experience and best judgment and you take the risk that I may be wrong.

I guarantee nothing."-

(d) Not to undertake any procedure beyond his control: This depends on his qualifications, special training and experience. The doctor must always ensure that he is reasonably skilled before undertaking any special procedure/treating a complicated case.

(e) Professional secrets: A doctor is under a moral and legal obligation not to divulge the information/knowledge which he comes to learn in confidence from his patient and such a communication is privileged communication.

Conclusion: The formation of a doctor-patient relationship is integral to the formation of a legal relationship and consequent rights and duties, forming the basis of liability of a medical practitioner. Due to the very nature of the medical profession, the degree of responsibility on the practitioner is higher than that of any other service provider. The concept of a doctor -patient relationship forms the foundation of legal obligations between the doctor and the patient.

In the present case, as already held above, doctor- patient relationship stood established, contractually, between the patient and the appellant.

(2) Duty of Care which a doctor owes towards his Page 32 of 50 R/CR.MA/17743/2013 JUDGMENT patient.-

40. Once, it is found that there is 'duty to treat' there would be a corresponding 'duty to take care' upon the doctor qua/his patient. In certain context, the duty acquires ethical character and in certain other situations, a legal character. Whenever the principle of 'duty to take care' is founded on a contractual relationship, it acquires a legal character. Contextually speaking, legal 'duty to treat' may arise in a contractual relationship or governmental hospital or hospital located in a public sector undertaking. Ethical 'duty to treat' on the part of doctors is clearly covered by Code of Medical Ethics, 1972. Clause 10 of this Code deals with 'Obligation to the Sick' and Clause 13 cast obligation on the part of the doctors with the captioned "Patient must not be neglected". Whenever there is a breach of the aforesaid Code, the aggrieved patient or the party can file a petition before relevant Disciplinary Committee constituted by the concerned State Medical Council. (3) When this breach of duty would amount to negligence?

41. When reasonable care, expected of the medical professional, is not rendered and the action on the part of the medical practitioner comes within the mischief of negligence, it can be safely concluded that the said doctor -did not perform his duty properly which was expected of him under the law and breached his duty to take care of the patient. Such a duty which a doctor owes to the patient and if not rendered appropriately and when it would amount to negligence is lucidly narrated by this Court in Kusum Sharma and others v. Batra Hospital and Medical Research Centre and Others; (2010) 3 SCC 480. The relevant discussions therefrom are reproduced hereinbelow:

"45. According to Halsbury's Laws of England, 4th Edn., Vol. 26 pp. 17-18, the definition of negligence is as under:

22. Negligence.--Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose.

Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, Page 33 of 50 R/CR.MA/17743/2013 JUDGMENT owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient."

46. In a celebrated and oft cited judgment in Bolam v. Friern Hospital Management Committee (Queen's Bench Division) McNair, L.J. observed:

(i) A doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular

-art, merely because there is a body of such opinion that takes a contrary view.

"The direction that, where there are two different schools of medical practice, both having recognition among practitioners, it is not negligent for a practitioner to follow one in preference to the other accords also with American law; see 70 Corpus Juris Secundum (1951) 952, 953, Para 44. Moreover, it seems that by American law a failure to warn the patient of dangers of treatment is not, of itself, negligence McNair, L.J. also observed:

Before I turn to that, I must explain what in law we mean by 'negligence'. In the ordinary case which does not involve any special skill, negligence in law means this: some failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is generally said, that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been Page 34 of 50 R/CR.MA/17743/2013 JUDGMENT negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this man exercising and professing to have that special skill. ... A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."

(4) Breach of Duty to Take Care: Consequences

42. If the patient has suffered because of negligent act/ omission of the doctor, it undoubtedly gives right to the patient to sue the doctor for damages. This would be a civil liability of the doctor under the law tort and/ or contract. This concept of negligence as a tort is explained in Jacob Mathews v. State of Punjab and Another 2005(6) SCC1, in the following manner:

"10. The jurisprudential concept of negligence defines any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well stated in the Law of Torts, Ratanlal & Dhirajlal (24th Edn., 2002, edited by Justice G.P. Singh).

Negligence is the breach of a duty caused by the 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. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.... The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said; and (3) consequential damage. Cause of -action for negligence arises only when Page 35 of 50 R/CR.MA/17743/2013 JUDGMENT damage occurs; for, damage is a necessary ingredient of this tort."

43. Such a negligent act, normally a tort, may also give rise to criminal liability as well, though it was made clear by this Court in Jacob's Case (supra) that jurisprudentially the distinction has to be drawn between negligence under Civil Law and negligence under Criminal Law. This distinction is lucidly explained in Jacob's Case, as can be seen from the following paragraphs:

"12. The term "negligence" is used for the purpose of fastening the defendant with liability under the civil law and, at times, under the criminal law. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence up to the modern times. Generally speaking, it is the amount of damages incurred which 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. In R. v. Lawrence Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him. He reiterated his opinion in R. v. Caldwell3 and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship warned against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being "subjective" or "objective", and said: (All ER p. 982e-f) "Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual Page 36 of 50 R/CR.MA/17743/2013 JUDGMENT to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it."

13. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do not occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimising violations,

-may be motivated by thrill-seeking. These are clearly reckless.

14. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions4 stated:

(All ER p. 556 C) "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." Thus, a clear distinction exists between "simple lack of care"

incurring civil liability and "very high degree of negligence" which is required in criminal cases. In Page 37 of 50 R/CR.MA/17743/2013 JUDGMENT Riddell v. Reid4a (AC at p. 31) Lord Porter said in his speech -- "A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability."

15. The fore-quoted statement of law in Andrews has been noted with approval by this Court in Syad Akbar v. State of Karnataka5. The Supreme Court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. Their Lordships have opined 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."

44. Thus, in the civil context while we consider the moral implications of negligent conduct, a clear view of the state of mind of the negligent doctor might not require strictly. This is for the reason the law of tort is ultimately not concerned with the moral culpability of the defendant, even if the language of fault is used in determining the standard of care. From the point of view of civil law it may be appropriate to impose liability irrespective of moral blameworthiness. This is because in civil law two questions are at issue: Was the defendant negligent? If so, should the defendant bear the loss in this particular set of circumstances? In most cases where negligence has been established, the answer to the second question will be in the affirmative, unless the doctrine of remoteness or lack of foresee ability militates against a finding of liability, or where there is some policy reason precluding compensation. The question in the civil context is, therefore, not about moral blame, even though there will be many cases where the civilly liable defendant is also morally culpable."

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36. Considering the report of the Expert Committee, referred to above, as well as the communication of the Gujarat Medical Council, the alleged negligent conduct in the nature of omission of the applicants is not so gross as to entail the criminal liability on the applicants under section 338 of the IPC. As observed by the Supreme Court in P.B. Desai (supra) that the crime as mentioned in section 338, IPC requires proof that the applicants caused the condition of the patient to the acute stage. To put it in other words, proof that the applicants omission to act led to the loss of vision. Can the two applicants be said to have caused such a result by their omission to act? I do not find it to be so, considering the report of the expert committee.

37. In the common law case R v Adomako [1994] 3 WLR 288 wherein, Lord Mackay LC set the test for gross negligence in manslaughter:

"On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal."

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38. In the case of Dr. Suresh Gupta v. Government National Capital Territory of Delhi, AIR 2004 SC 4091, the charge against the doctor was one under section 304- A IPC. The complaint was on account of negligence of the doctor. The patient had died when he was operated for removing his nasal deformity. The doctor had filed an application for quashing the criminal proceedings under Section 482 Cr.P.C. The High Court had rejected the petition. In appeal, the Supreme Court was pleased to allow the same and quash the criminal proceedings against the doctor. It had held :-

"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 Judgement or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable.

39. Dr. Suresh Gupta's case (supra) was considered in Jacob Mathew v. State of Punjab and Anr, AIR 2005 SC 3180. In fact a two Judges Bench of the Supreme Court had felt that the case of Dr. Suresh Gupta needed consideration by a Larger Bench and that is how, Dr. Suresh Gupta's case was considered in Jacob Mathew's case (supra). In Jacob Mathew's case, the father of the complainant was admitted in a hospital in a private Ward. On the day of the incident, the father felt difficulty in breathing. Doctor was contacted and then Oxygen Cylinder was brought and the same was connected with the mouth of the patient. However, breathing difficulty of the Page 40 of 50 R/CR.MA/17743/2013 JUDGMENT patient continued. It was held that on account of the difficulty, patient had tried to get up from the bed, however, the medical staff had asked him to remain in the bed. Later on, it was found that the oxygen cylinder was empty. No other gas cylinder was available over there. By the time the doctor could make the necessary arrangement, the patient died. Offence was registered against the doctor under Section 304A read with section 34 IPC. Process was issued. The doctor had filed an application under Section 482 Cr.P.C before the High Court. The same was rejected and review petition was also rejected. In the elaborate judgment, the Supreme Court has explained how to appreciate the negligence, particularly medical negligence. It has considered and relied on Bolam's case, (1957) 1 WLR 582 (586). The tests laid down therein by the Supreme Court were applied later in several other cases. The Supreme Court held as under:-

"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. "

40. The final conclusions drawn by the Supreme Court in Jacob Mathew (supra) are extracted hereunder;

(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 & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence Page 41 of 50 R/CR.MA/17743/2013 JUDGMENT 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 Page 42 of 50 R/CR.MA/17743/2013 JUDGMENT 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 W.L.R. 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. "

41. In Kusum Sharma and others Vs. Batra Hospital and Medical Research Centre and others (2010) 3 SCC 480", the Page 43 of 50 R/CR.MA/17743/2013 JUDGMENT Apex Court reiterated the legal position after taking survey of catena of case-law. In the context of issue pertaining to criminal liability of a medical practitioner, Hon'ble Mr. Justice Dalveer Bhandari speaking for the Bench, laid down that the prosecution of a medical practitioner would be liable to be quashed if the evidence on record does not project substratum enough to infer gross or excessive degree of negligence on his/her part. The observations may be usefully quoted as follows:-

"89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well-known principles must be kept in view:

I. Negligence is the breach of a duty exercised 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.

II. 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.

III. The medical professional is expected to bring 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.

IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

V. In the realm of diagnosis and treatment there is Page 44 of 50 R/CR.MA/17743/2013 JUDGMENT scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

VIII. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.

IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.

X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurising the medical professionals/hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.

XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients Page 45 of 50 R/CR.MA/17743/2013 JUDGMENT have to be paramount for the medical professionals."

42. The purpose of holding a professional liable for his act or omission, if negligent, is to make the life safer and to eliminate the possibility of recurrence of negligence in future. Human body and medical science-both are too complex to be easily understood. To hold in favour of existence of negligence associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability. The recent trend appearing from the authoratative pronouncements of the Apex Court is that the criminal liability cannot be fastened on the Medical Practitioner unless the negligence is so obvious and of such high degree that it would be culpable by applying the settled norms. The Medical Practitioner would be liable only where his conduct falls below that of a reasonably competent doctor. It is further held that divergence of opinion with other doctors by itself is not sufficient to inter negligence.

43. Again, thereafter in Martin F.D souza s case (AIR 2009 SC 2049), the question of issuance of process in case of medical negligence was considered by the Supreme Court. It had held in para 117 as under:-

"We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made, the Consumer Forum, or Criminal Court should first refer the matter to a competent doctor or committee of doctors, Page 46 of 50 R/CR.MA/17743/2013 JUDGMENT specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew s case (supra), otherwise the policemen will themselves have to face legal action ".

44. In the matters of the present type, wherein two Ophthalmologists are sought to be prosecuted for the offence under section 338 of the IPC, the approach of the Court should be keeping in mind three things;

(I) is it a case of gross lack of competence on the part of the doctor, OR is it a case of total indifference shown by a doctor to the patient's safety; OR (II) is it a case of mere error of judgment OR an accident, OR (III) in the facts and circumstances of the case, is it possible to infer that the doctor has to gain something by showing indifference.

45. In the overall view of the matter, I have reached to the conclusion that the first information report deserves to be quashed so far as the two applicants are concerned.

46. Cataract extraction is by far the most common intra ocular surgery performed worldwide. It is estimated that in India alone, more than 5.1 million patients have cataract surgery annually. Post operative endophthalmitis is a rare but dreaded complication of cataract surgery, with a reported incidence currently in the range of 0.04% to 0.41%. In most Page 47 of 50 R/CR.MA/17743/2013 JUDGMENT cases, this complication is unforeseeable, its progression is unpredictable, and the visual outcome can be devastating. With a projected steep rise in the already sizeable global volume of cataract surgery, minimizing the rate of endophthalmitis is extremely important.

47. As observed in the earlier part of the judgment that however laudable the intentions with which the concerned hospital launched the program, it proved to be a disastrous medical misadventure for the patients hailing from a poor strata of the society. Why this indifferent treatment towards such a class of society?. The case on hand is not one of mere cases of eyesight of the patients not having been restored, in the sense, that the surgical operations on them, although otherwise successful, yet did not yield the desired result because of lack of post operative care and unhygienic conditions on the part of the hospital authorities. No positive benefit was derived by them from the surgery. On the contrary, they lost their vision. The unfortunate patients did not derive any benefit from the surgery but were greatly worse off, than they were before the surgery, owing to the post operative intra ocular infection that damaged the operated eyes beyond redemption. Any doctor, rendering voluntary free service in the eye camps, or the charitable hospitals, is always welcome and something worth appreciating, but at the same time, the doctors even while rendering their voluntary free service, should ensure that the hospital, in which, they are performing the surgery, has maintained the necessary hygiene etc. They are expected to check the patients on the next day of the surgery and ensure that they don't contract any Page 48 of 50 R/CR.MA/17743/2013 JUDGMENT infection. They are expected to do dressing etc. with their own hands and should not leave the patients at the mercy of unqualified staff of the hospital.

48. Way back in the year 1989, the Supreme Court, in the case of A.S. Mittal & Anr. vs. State of U.P. & Ors., (1989) 3 SCC 223, had observed in para-30 as under;

"30. The necessity of maintenance of the highest standards of a septic and sterile conditions at places where Ophthalmic surgery--or any surgery--is conducted cannot be over-emphasised. It is not merely on the formulation of the theoretical standards but really on the professional commitment with which the prescriptions are implemented that the ultimate result rests. Government, States and Union, incur enormous expenditure of public money on health care, But, the standards of cleanliness and hygiene in public hospitals unfortunately, leave greatly to be desired. The maintenance of steriles, aseptic conditions in hospitals to prevent cross-infections should be ordinary, routine and minimal incidents of maintenance of hospitals. Purity of the drugs and medicines intended for man-use would have to be ensued by prior tests and inspection. But, owing to a general air of cynical irreverence towards values that has, unfortunately, developed and to the mood of complacence with the continuing deterioration of standards, the very concept of standards and the imperatives of their observance tend to be impaired. This is a disturbing feature. The remedy lies in a ruthless adherence to the virtue of method and laying down practical procedures in the minutes of detail and by exacting not merely expecting-strict adherence to these procedures. "

49. Whether the Guidelines, as on date, prescribing the norms and conditions for the conduct of 'eye-camps' or surgeries at the small centers in a public charitable eye hospital are sufficiently comprehensive to ensure the protection of the patients who are generally drawn from the Page 49 of 50 R/CR.MA/17743/2013 JUDGMENT poorer and less affluent section of society or whether any further guidelines would require to be evolved is a matter which the Government should take up for consideration at the earliest and very seriously.

50. In the result, both the applications are allowed. The first information report being C.R. No.I-118 of 2012 registered with the Anand Rural Police Station, Anand is hereby quashed so far as the two applicants are concerned. So far as the other co- accused are concerned, more particularly, the hospital authorities are concerned, the investigation, if not yet completed, should be completed at the earliest in accordance with law. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(J.B.PARDIWALA,J) Vahid Page 50 of 50

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