Gujarat High Court
State Of Gujarat vs Nituben Yogeshbhai Thakkar on 6 March, 2018
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.A/1632/2017 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CR.MA/1/2017
IN CRIMINAL APPEAL NO. 1632 of 2017
==========================================================
STATE OF GUJARAT Versus NITUBEN YOGESHBHAI THAKKAR ========================================================== Appearance:
MR HK PATEL, PUBLIC PROSECUTOR for the PETITIONER(s) No. 1 MR JITENDRA JOSHI, RESPONDENT ========================================================== CORAM: HONOURABLE MS JUSTICE SONIA GOKANI Date : 05/03/2018 IA ORDER Rule. Learned Advocate, Mr. Joshi, waives service of rule for the Respondent.
1. The applicant-State has preferred this application, challenging the judgment and order of acquittal dated 08.08.2017, passed by the Court of the learned 9th Addl. Judge, Ahmedabad Rural, Mirzapur, Ahmedabad ('trial Court', in brief), in Sessions Case No. 112 of 2014. The Court after a full-fledged trial has acquitted the original accused-Respondent, herein, of the offence punishable under Section 304A of the Indian Penal Code, 1860. Therefore, the applicant-State has preferred this application under Section 378(1) (3) of the Code of Criminal Procedure, 1973, against the judgment and order of acquittal dated 08.08.2017.
2. The vital facts leading to the present appeal deserve reference in capsulized form;
Page 1 of 41R/CR.A/1632/2017 IA ORDER 2.1 It is the case of the prosecution that one, Mukeshbhai Kunvrabhai Bharwad, i.e. the
husband of the victim, got his wife admitted on 28.06.2013, at around 10:30 a.m., in the maternity home, named Shreeji Maternity Home at Bavla, where, the respondent conducted 'C' Section operation on Jamuben and a child was born through cesarean. Respondent is said to have taken the stitches of uterus. However, due to the long gap between the stitches, according to the appellant- State, there was internal bleeding. Therefore, the wife of the first informant was required to be immediately hospitalized at Tapan Hospital, Ahmedabad, where, she was given requisite treatment. However, due to the alleged negligence on the part of the respondent, Jamuben is said to have succumbed to the internal injury that she sustained and passed away at about 09:45 p.m..
2.2 Her body was sent for post mortem, which also indicated that the death occurred due to internal bleeding, where there were long gaps between the stitches. This had happened due to the rupture of the left uterus artery and the hematoma caused, which took the toll of Jamuben. A complaint came to be filed by the husband of Jamuben, with Bavla Police Station, which was registered as I-C.R. No. 103 of 2013 for the offence punishable under Section 304 of the IPC.
Page 2 of 41R/CR.A/1632/2017 IA ORDER The respondent came to be charge-sheeted and she faced the trial.
2.3 In order to prove its case, the prosecution examined following witnesses:
PROSECUTION NAME OF THE WITNESS EXHIBIT WITNESS NUMBER NUMBER 1 Nirliptrai Anilrai, Dy.S.P., 36 (the complainant) 2 Ashaben Laxmanbhai Bharwad, 41 (Panch Witness) 3 Bakabhai Ramabhia Bharwad, 47 (Panch Witness) 4 Karmanbhai Chhanabhai 48 Bharwad, (Panch Witness) 5 Dr. Kinnar Rameshbhai Patel, 49 MO, (who had performed post mortem) 6 Mukesh Kunvrabhai Bharwad, 51 (husband of the deceased) 7 Ghelabhai Selabhai Bharwad, 52 (Brother of the deceased) 8 Kunvrabhai Harjibhai 54 Bharwad, (Father-in-law of the deceased) 9 Hemuben Kunvrabhai Bharwad, 56 (Mother-in-law of the Page 3 of 41 R/CR.A/1632/2017 IA ORDER deceased) 10 Kamuben Jagabhai Bharwad, 57 (Sister-in-law of the deceased) 11 Jagabhai Kunvrabhai Bharwad, 58 (Brother-in-law of the deceased) 12 Selabhai Revabhai Bharwad, 61 (Father of the deceased) 13 Jaluben Selabhai Bharwad, 62 (Mother of the deceased) 14 Dr. Krutarth Shaileshbhai 67 Shah, (treating doctor) 15 Dr. Jainesh Mahendrabhai 68 Shah, (treating doctor) 16 Dr. Kinnar Pravinbhai 70 Gandhi, (treating doctor) 17 Sagarbhai Ghelabhai Rabari, 71 (eyewitness) 18 Dr. Rushibhai Nitinkumar 72 Shah, (treating doctor) 19 Gigabhai Indubhai Bharwad, 75 (cousin of the deceased) 20 Ghanshyamdan Lalsing Gadhvi, 76 (Police Witness) 21 Parbat Narsinh Patel 78 22 Narvatsinh Kadkiyabhai 84 Bhamat, (Police Witness) 23 Shilpaben Gautambhai 87 Khandvi, (eyewitness) 24 Arpita Chintanbhai Patel, 90 Page 4 of 41 R/CR.A/1632/2017 IA ORDER (Investigating Officer) 25 Ashrafkhan Yusufkhan Baloch, 92 (Investigating Officer) 2.4 Over and above the oral evidence, the prosecution also adduced the following documentary evidences:
DOCUMENTARY PARTICULARS EXHIBIT EVIDENCE NUMBER NUMBER 1 Original complaint 37 2 Inquest panchnama 42 3 PM note 50 4 Police report 79 5 Police memorandum written in 80 respect of PM Note 6 Receipt issued towards 81 handing over the dead body 7 Telephone message 85 8 Sonography report of Shreeji 93 Sonography Clinic 2.5 On completion of the trial, further statement of the respondent under Section 313 of the Code came to be recorded and eventually, vide judgment and order dated 08.08.2017, the trial Court acquitted the respondent. Hence, the present application with a request to grant leave to Page 5 of 41 R/CR.A/1632/2017 IA ORDER prefer appeal against such judgment and order of acquittal.
3. This Court has heard the learned APP, Mr. Patel, for the applicant-State, for admission of the appeal, who has urged before this Court that the trial Court has committed a serious error in appreciating the evidence adduced by the prosecution. It has also misread and misinterpreted the ratio laid down in the case of 'JACOB MATHEW VS. STATE OF PUNJAB AND ANOTHER', (2005) 6 SCC 1. The factual details, which have been adduced by the prosecution by virtue of the oral as well as the documentary evidence would not have allowed the Court to give judgment and order of acquittal. He has emphasized that the gaps in stitches, while stitching uterus, were very long and undesirable, which could not have been expected from an expert. Moreover, post mortem report, according to the learned APP, is also reflective of the said aspect. He has taken this Court through the oral as well as documentary evidences to urge that due to the neglignece on the part of the respondent, the death has been caused. The testimony of Dr. Kinnar Rameshbhai Patel (Exhibit-49) is also pointed out, where also, he confirms this aspect of long gap in taking the stitches. He, further more, has pointed out relying on the deposition of Dr. Jainesh Shah (Exhibit-68) that there was no Page 6 of 41 R/CR.A/1632/2017 IA ORDER bleeding after the surgery and the subsequent bleeding had resulted due to the negligence in taking stitches, the first time when the cesarean surgery was done.
3.1 Learned APP, therefore, urged that the matter requires consideration.
4. As against that the learned Advocate, Mr. Joshi, has urged that it is very common to have blood loss to the tune of 500 ml. during normal delivery and about 1000 ml. during cesarean. It is the standard practice, which has been followed in taking the stitches and very move of the doctor was to act bona fide to save the life of the mother and the fetus. He, further, argued that it is quite common that left arteries of uterus to be ruptured during the cesarean. It is, further, his say that if one goes by Bolam's Case or that of Jacob Mathew's case, they have well laid down principles which would come to the rescue of the respondent. On the contrary, according to learned Advocate for respondent, she has done what all she was required to do as an expert. She had taken due care and caution and even in the post operative period, she had consulted other doctors and had got the patient shifted to Tapan Hospital, where, she was admitted in ICU and all possible care had been taken and that she was not left, even for a moment, without any help, attendance or medical Page 7 of 41 R/CR.A/1632/2017 IA ORDER aid.
5. Having heard the learned Advocates on both the sides and also on considering the material on record so also the impugned judgment and order, which has been delivered by the trial Court, this Court would, at the outset, notices the case laws on the subject of medical negligence.
6. The law laid down in the case of 'BOLAM V FRIERN HOSPITAL MANAGEMENT COMMITTEE', 1 WLR 582, is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals, i.e. doctors.
6.1 Mr Bolam was a voluntary patient at Friern Hospital, a mental health institution run by the Friern Hospital Management Committee. He agreed to undergo electro-convulsive therapy. He was not given any muscle relaxant, and his body was not restrained during the procedure. He flailed about violently before the procedure was stopped, and he suffered some serious injuries, including fractures of the acetabula. He sued the Committee for compensation. He argued they were negligent for (1) not issuing relaxants (2) not restraining him (3) not warning him about the risks involved. Hon'ble Justice McNair noted from Page 8 of 41 R/CR.A/1632/2017 IA ORDER the evidence that expert witnesses had confirmed, that medical opinion was opposed to the use of relaxant drugs, and that manual restraints could sometimes increase the risk of fracture. Moreover, it was the common practice of the profession to not warn patients of the risk of treatment (when it is small) unless they are asked. Bolam's test, which holds field in India, establishes that holds that a professional is not negligent, if, he or she acts in accordance with the practice accepted at the time, as appropriate by a responsible body of medical union, even though, some other practitioners adopt a different practice. Relevant findings and observations would deserve reproduction at this stage, which read thus:
"Before I turn to that, I must
explaint what we mean by
"negligence". In the ordinary case which does not invovle any special skill, neglignece in law means this:
some failure to do some act which a resaonble man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do; and if that failure or diong of that act results in injury, then there is a cause of action. Howe do you test whether this act or failure is negligence? 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 once case it has been said that you judge it by the conduct of Page 9 of 41 R/CR.A/1632/2017 IA ORDER the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which invovles the use of some speical skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham monibus, because he has not got this special skill. The stest is the standard of the ordinary skilled man exercising and professin 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 sufficent if he exercises the ordinary skill of an ordinary competent man exercising that particular art. I do not think that I quarrel much with any of the submissions in law which have been put before you by counsel. Counsel for the plaintiff put it in this way, that in the case of a medical man negligence means failure to act in accordance with the standards of reqasonabely competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards: and if a medical man confiorms with one of theose proper standards then he is not negligent. Counsel for the plaintiff was also right, in my judgment, in saying that a mere personal belief that ap articular technique is best is no defence unless that belief is based on reasonable grounds. That again is unexceptionable. But the emphasis which is laid by counsel for the defendants is no defence unless that belief is based on this aspect of Page 10 of 41 R/CR.A/1632/2017 IA ORDER neglignece.: He submitted to you that the ral question on which you have to make up your mind on each of the three major points to be considered is whether the defendants, in acting in the way in which they did, were acting in accordance with a paractice of competent respected professional opinion. Counsel for the defendants submitted that if you are satisfied that they were acting in accordance with a practice of competent body of professional opinion, then, it would be wrong for you to hold that negligence was established. I referred, before I started thse observations, to a statement which is contained in a recent Scottish Case, Hunter V. Hanley (1)([1955] S.L.T. 213 at P.217), which dealt whith medical matters, where the Lord President (Lord Clyde) said this:
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion, and one man clearly is not negligent merely because his conclusion idffers from that of other professional men, nor because he has dispalyed less skill or knowledge than others would have shown. The true test for establishing neglignece in diagnosis or treatment on the part of a doctors I whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care."
If that statemnt of the true test is qualified by the words "In all the circumstances", counsel for the Page 11 of 41 R/CR.A/1632/2017 IA ORDER plaintiff would not seek to say that that expression of opinion does not accord with English law. It is just a qustion of expression. I myself would prefer to put it this way: A doctor is not guilty of neglignece if he has acted in accordance with practice accepted as prpper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a doctor is not neglient if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a emedical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contary to what is really substantially the whole of informed medical opinion. Otherwise, you might get men today saying: "I don't believe in anaesthetics. I don't belive in antiseptics. I am going to continue to do my surgery in the way it was done in the eighteenth century ". That clearly would be wrong."
6.2 In case of 'WHITEHOUSE VS. JORDON', (1981) 1 All England Reporter, Page 267, a baby, who suffered severe brain damage, during birth. After the birth, compensation was claimed against Sr. Hospital Registrar, who, supervised the delivery in a high risk pregnancy. The mother had been in labour room for about 22 hours and there was use of forcep to assist delivery. It was held Page 12 of 41 R/CR.A/1632/2017 IA ORDER by the Court that the doctor's standard did not fall below that of the reasonable doctor in the circumstances, and therefore, there can be no compensation for the baby. Thus, the test for determining the negligence of a medical professional, as laid down in Bolam's Case, is that the "standard of the ordinary skilled man exercising and professing to have that special skill," and not of "the highest expert skill."
6.3 In case of 'JACOB MATHEW' (Supra), the first informant's father was admitted in a private ward of CMC Hospital, Ludhiana. Since, he started having difficulty in breathing, the brother of the first informant contacted the duty nurse, who, in turn, called some doctor to attend the patient, who did not attend for about 20 to 25 minutes. Then, Dr. Jacob Mathew and Dr. Allen Joseph went to the room of the father of the first informant. An oxygen cylinder was brought and attached to the mouth of the patient, but, he continued to have difficulty in breathing, as the oxygen cylinder was empty. There was no other gas cylinder available in that room. Brother of the first informant, therefore, went to the adjoining room and brought a gas cylinder therefrom. However, there was no arrangement to make the gas cylinder functional and in-between, 5 to 7 minutes were wasted. By that time, another doctor came who declared that the patient was dead. The first Page 13 of 41 R/CR.A/1632/2017 IA ORDER informant, hence, lodged the FIR inter alia alleging that the death of his father had occurred due to the carelessness of doctors and nurses and non-availability of oxygen cylinder. An FIR under Section 304A read with Section 34 of the IPC came to be lodged against the doctors.
6.4 The Apex Court in 'JACOB MATHEW' (Supra), discussed at length, law on medical negligence and held that while negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do; criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. It, further, held that the factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree. The relevant observations read thus:
"Negligence by professionals Page 14 of 41 R/CR.A/1632/2017 IA ORDER
19. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by Page 15 of 41 R/CR.A/1632/2017 IA ORDER this standard, a professional may be held liable for negligence on one of 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 necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charlesworth & Percy, ibid, Para 8.03)
20. Oft'quoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair J. in Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582, 586 in the following words: "Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The Page 16 of 41 R/CR.A/1632/2017 IA ORDER test is the standard of the ordinary skilled man exercising and professing to have that special skill . . . A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art." (Charlesworth & Percy, ibid, Para 8.02)
21. The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and well- condensed one. After a review of various authorities Bingham L.J. in his speech in Eckersley v. Binnie, [1988] 18 Con.L.R. 1, 79 summarised the Bolam test in the following words:- "From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession Page 17 of 41 R/CR.A/1632/2017 IA ORDER would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet." (Charlesworth & Percy, ibid, Para 8.04).
22. The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (Fourth Edition, Vol.30, Para
35):-
"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence.Page 18 of 41
R/CR.A/1632/2017 IA ORDER To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
Above said three tests have also been stated as determinative of negligence in professional practice by Charlesworth & Percy in their celebrated work on Negligence (ibid, para 8.110).
23. In the opinion of Lord Denning, as expressed in Hucks v. Cole, [1968] 118 New LJ 469, a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
24. The decision of House of Lords in Maynard v. West Midlands Regional Health Authority, [1985] 1 All ER 635 (HL) by a Bench consisting of five Law Lords has been accepted as having settled the law on the point by holding that it is not enough to show that there is a body of competent professional opinion which considers that decision of the defendant professional was a wrong decision, if there also exists a body of Page 19 of 41 R/CR.A/1632/2017 IA ORDER professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken, it was reasonable, in the sense that a responsible body of medical opinion would have accepted it as proper. Lord Scarman who recorded the leading speech with which other four Lords agreed quoted the following words of Lord President (Clyde) in Hunter v. Hanley 1955 SLT 213 at 217, observing that the words cannot be bettered "In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional menThe true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care". Lord Scarman added "a doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence." His Lordship further added "that a judge's 'preference' for one body of distinguished Page 20 of 41 R/CR.A/1632/2017 IA ORDER professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred."
25. The classical statement of law in Bolam's case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before Courts in India and applied to as touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when 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. Secondly, 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 point of time on which it is suggested as should have been used.
Page 21 of 41R/CR.A/1632/2017 IA ORDER
26. A mere deviation from normal professional practice is not necessarily evidence of negligence.
Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. 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. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person incharge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.
27. No sensible professional would intentionally commit an act or omission which would result in loss Page 22 of 41 R/CR.A/1632/2017 IA ORDER or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.
28. Res ipsa loquitur is a rule of evidence which in reality belongs to the law of torts. Inference as to negligence may be drawn from proved circumstances by applying the rule if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. In criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies on the prosecution. Such ingredient cannot be said to have been proved or made out by resorting to the said rule (See Syad Kabar v. State of Karnataka (1980) 1 SCC 30). Incidentally, it may be noted that in Krishnan and Anr. v. State of Kerala (1996) 10 SCC 508 the Court has observed that there may be a case where the proved facts would themselves speak of sharing of common intention and while making such observation one of the learned judges constituting the Bench has in his Page 23 of 41 R/CR.A/1632/2017 IA ORDER concurring opinion merely stated "res ipsa loquitur'. Nowhere it has been stated that the rule has applicability in a criminal case and an inference as to an essential ingredient of an offence can be found proved by resorting to the said rule. In our opinion, a case under Section 304A IPC cannot be decided solely by applying the rule of res ipsa loquitur.
29. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end- dose of medicine to his patient."
6.5 Thus, it is quite apparent from the aforesaid decision and the plethora of other decisions that the negligence laid down in Bolam's Case is well accepted in the Indian law, as well. What is expected of a competent medical practitioner is the standard of care and the skill of an ordinary medical practitioner, exercising the ordinary degree of professional skill. While, assessing the practice, as adopted, is in light of Page 24 of 41 R/CR.A/1632/2017 IA ORDER the knowledge available at the time of the incident and not at the time of trial. Again, a mere deviation from normal professional practice is not the evidence of negligence. Hence, the error of judgment on the part of the professional cannot be termed as negligence, per se, as held by the Apex Court, sometimes a choice is to be made between the devil and the deep sea and the lesser destructive method is to be adopted. Thus, with the two schools of thoughts available, if, the expert follows a particular school of thoughts, which is accepted by the standard literature, merely because he did not follow another school of though that by itself, would not be a ground to held the person concerned guilty of negligence.
6.6 The Apex Court in the case of 'JACOB MATHEW' (Supra) further held and observed as under
:
"Conclusions summed up
49. We sum up our conclusions as under:-
(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and Page 25 of 41 R/CR.A/1632/2017 IA ORDER 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 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 Page 26 of 41 R/CR.A/1632/2017 IA ORDER negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. (3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 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 Page 27 of 41 R/CR.A/1632/2017 IA ORDER 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 Page 28 of 41 R/CR.A/1632/2017 IA ORDER 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.
50. In view of the principles laid down hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr. Suresh Gupta's case (2004) 6 SCC 422 and re-affirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh Gupta's case. We may not be understood as having expressed any opinion on the question whether on the facts of that case the accused could or could not have been held guilty of criminal negligence as that question is not before us. We also approve of the passage from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Suresh Gupta's case (noted vide para 27 of the report).
Guidelines re: prosecuting medical professionals
51. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed Page 29 of 41 R/CR.A/1632/2017 IA ORDER to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.
52. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
53. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in Page 30 of 41 R/CR.A/1632/2017 IA ORDER consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."
6.7 The term 'Gross Negligence' is not defined anywhere in law. But, it is a trite law Page 31 of 41 R/CR.A/1632/2017 IA ORDER that for proving the criminality, the negligence is to be gross.
6.8 The Apex Court in case of 'DR. SURESH GUPTA VS. GOVERNMENT OF NCT, DELHI, & ANOTHER', (2004) 6 SCC 42, held that negligence or recklessness being gross is not the requirement of Section 304A of the IPC. However, the word 'Gross' have to be read in Section 304A of the IPC for fixing the criminal liability of a doctor and what is to be seen is, whether the impugned act was grossly rash or grossly negligent.
7. Going by this well laid down law and applying the well laid down principles of law to the facts of the present case, it can be noticed that the evidence reveals that the opponent is a skilled practitioner, who has performed more than 1000 operations. She has her own unit, which she independently handled with her professional degree as a Gynecologist.
7.1 Dr. Krutarth Shaileshbhai Shah is an anesthetist, who was called by the respondent on regular basis. He was called on 28.06.2013, in the early morning at about 06:30 a.m. to 07:00 a.m., by Dr. Jainesh Shah, who informed him that cesarean needs to be performed on a patient. He, therefore, left from Ahmedabad and reached Shreeji Hospital at about 07:30 a.m.. The name of Page 32 of 41 R/CR.A/1632/2017 IA ORDER the patient was Jamuben Mukeshbhai Bharwad. After preparing the patient and the instruments for surgery, the doctor had performed cesarean. She was given local anesthesia. The child was born and the condition of both the child and the mother was good. For contraction of the uterus medicine was given to her and thereby, she was treated accordingly.
7.2 However, from the left side of the uterus blood started oozing out. Therefore, stitches were taken immediately for stopping the blood. It was rupture of left uterus artery, which was needed to be stitched. Dr. Jainesh Shah was immediately called and since, he had gone away from Ahmedabad, Dr. Rushi Shah was called. However, since, he was also away from Bavla at Ahmedabad, all the attempts were made by the respondent to stop the bleeding. The patient was, then, decided to be taken to Tapan Hospital and an ambulance was also called, accordingly. Since, there was no ambulance available at Bavla, Dr. Krutarth Shah took the patient and her relatives in his own car to Tapan Hospital. Since, the son of the respondent had suffered epilepsy three days prior to the date of the incident, she could not accompany the patient to Ahmedabad.
7.3 They reached Tapan Hospital, Ahmedabad, at about 10:15 a.m. and during this period, the Page 33 of 41 R/CR.A/1632/2017 IA ORDER condition of the patient was stable, her heart beat and blood pressure was also normal. On their way to Tapan Hospital, he had called Dr. Kinnar Gandhi to make the arrangements for operation. The consent of the relative of the deceased was also taken and the blood bottles were also kept ready. Dr. Rushi Shah had decided to keep the uterus as it is and the patient was admitted in ICU for compensating the blood loss that she had suffered. The patient was given two bottles of blood. This doctor had left Tapan Hospital at about 01:00 p.m. after being satisfied of her stable condition and at around 06:30 p.m., he received the unfortunate news that the patient had passed away. He agreed that the respondent doctor could have accompanied the patient to Ahmedabad and according to this doctor, possibly on account of rupture of left uterus artery and blood loss that the patient expired.
7.4 In his cross-examination, this witness confirmed that till the patient was removed to Tapan Hospital, her condition was good. When Dr. Rushi Shah operated the patient, he was present all throughout the surgery of the patient and no blood was found. After observing the patient for about 15 to 20 minutes, as there was no enhancement of hematoma, after consulting another expert, Dr. Rushi Shah decided to keep the left uterus as it is. After the respondent performed Page 34 of 41 R/CR.A/1632/2017 IA ORDER the surgery on the patient at about 08:30 a.m. and Dr. Rushi Shah again performed surgery at about 11:30 a.m., there was no enhancement in hematoma.
7.5 Dr. Jainesh Shah, who is running the maternity home in the name of Shreeji Hospital at Bavla and is a Gynecologist, left Bavla on 28.06.2013 at about 06:30 a.m., as he had to go to Udaipur for attending a conference. While he was on the way to Udaipur, he received a phone call that there was an emergency. He had, therefore, called Dr. Rushi Shah, but, since, he also had gone to Ahmedabad, he had called the respondent. Since, the patient was having labour pain, respondent had agreed to operate her at Shreeji Hospital. On reaching hospital, respondent had intimated him about the condition of the patient and he had also agreed to her suggestion of cesarean. After about 45 minutes of cesarean, she had informed him that the blood was not stopping. He had, therefore, called Dr. Aalap Parekh to help the respondent. However, by the time Dr. Aalap Parekh reached hospital, there was a move to shift the patient to Ahmedabad. Dr. Rushi had also called this doctor and had informed him that, since, there was no ambulance available, he, himself, was taking the patient to Ahmedabad. In the afternoon, at about 12:30, this doctor was informed by Dr. Rushi Shah that there was hematoma of about 5 cms. on the left uterus of the patient, Page 35 of 41 R/CR.A/1632/2017 IA ORDER which is not increasing and the bleeding has stopped and the condition of the patient was stable and she was being shifted to ICU. Thereafter, in the evening, sonography of the patient was done to see whether the hematoma increased or not and after the sonography test, the patient was found dead.
7.6 In his cross-examination, this doctor stated that there are about 10 to 12 hospital in Bavla and out of them, there are 5 gynec hospitals. He agreed that the respondent is also a practicing gynecologist and has her own hospital at Bavla.
7.7 This witness did not have personal knowledge, however, he knew the patient and all the details, since the patient was admitted in his hospital and due to his non-availability he had requested the respondent to attend his patient.
7.8 Dr. Kinnar Gandhi, who acted as anesthetist at Tapan Hospital has been examined as PW-16. He had gone with Dr. Krutarth Shah in the operation theater and Dr. Rushi Shah had performed surgery. There are about four big stitches on her stomach. The stitches of surgery were opened by Dr. Rushi Shah and there was about 5 to 6 c.m. Of hematoma on the left uterus. There being no active bleeding at the time of opening of the stitches, Page 36 of 41 R/CR.A/1632/2017 IA ORDER they waited for about half an hour for observing the condition of the patient and when it was found stable with no bleeding, Dr. Rushi Shah did not find the need to operate. The blood pressure and heart beats of the patient also were normal, and therefore, the patient was shifted to ICU. In the evening, he was called at Tapan Hospital and he found that the patient was quite serious and she passed away at about 09:30 p.m.. During the course of her first surgery there was profuse bleeding, and therefore, she was shifted to Tapan Hospital.
7.9 In his cross-examination, this doctor specifically confided that, while at Tapan Hospital, they had attempted their best to ensure that there was no active bleeding. He urged that during the course of normal delivery about 500 ml. and during the course of cesarean about 1000 ml. blood loss is common.
7.10 Vital it would be refer to the evidence of Dr. Rushi Shah (PW-18), who is a Gynecologist and is having Tapan Hospital. He was contacted by Dr. Jainesh Shah on 28.06.2013. However, he had denied to visit Bavla, as he had to mourn death of one of his friends. He was, once again, called that left uterus artery was ruptured, after the cesarean was performed in his hospital and a small hematoma was there and despite the stitches taken, Page 37 of 41 R/CR.A/1632/2017 IA ORDER the blood was not stopped. Therefore, the patient was shifted to his hospital and he had opened the stitches of the stomach, which were about four to five in numbers. There was about 100 ml. to 200 ml. blood in the stomach, which was on the left side uterus, there was hematoma on the left side of uterus of broad ligament, but, there was no bleeding found. They had observed the patient for about 45 minutes and as there was no active bleeding, the surgery was not done. He had observed that there was also no enhancement in hematoma. Dr. Jaynesh Shah also had called up two to three times. The patient, since, was stable, she was shifted to ICU, where necessary care was taken. It was only in the evening that he was intimated that the heartbeats of the patient were increasing and the patient complained of stomach ache. The treatment had also been given in consultation with Dr. Maniar. According to this witness, during the cesarean, due to rupture of left uterus artery, the blood could not be stopped.
7.11 In the post mortem report, there was presence of blood found in abdomen. There was free fluid also seen in the abdomen in the Sonography report. The size of the hematoma was 8 X 6 cms., which was the report done at 08:40 p.m..
7.12 If, one looks at the Journal of
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Obstetrics and Gynecology of India, it says that left uterus artery rupture is quite common in cesareans. It is not an uncommon thing to notice. Moreover, when this Court is considering the criminal negligence or negligence on the part of the doctor concerned, the grossness of negligence is neither emerging from oral evidence nor from any other material on record. None of the expert witnesses, who is independent and has no connection with this process has been examined by the prosecution to bring home this point. Even, Dr. Rushi Shah, who was later on treating doctor, at the request of Dr. Jainesh Shah (PW-18) had opined that there was no bleeding after she was shifted to Tapan Hospital and her condition was normal. Both, the treating doctors and the anesthetists also had continued to observe the patient for 30 to 45 minutes. The gap between the stitches was noticed in the abdomen. The uterus was not touched, as there was no blood seen. The body part, which was otherwise sensitive and had caused hematoma, doctors had chosen not to touch that part possibly because neither the hematoma had increased nor had they found any active bleeding nor any other abnormality was found for continuous period of 30-45 minutes when they had observed the patient. The trial Court has, therefore, rightly applied the Bolam's Test, which holds field in India so also the decision in the case of 'JACOB MATHEW' (Supra) and has Page 39 of 41 R/CR.A/1632/2017 IA ORDER unequivocally arrived at conclusion that the prosecution failed to establish criminal negligence on the part of the respondent. Respondent being a gynecologist followed a practice acceptable to the medical profession of that day, she cannot be held guilty because a better alternative method of treatment is available or more skilled doctor would not have chosen that method or could have chosen another method of another school of thought. As an ordinary competent expert, a professional person must have a reasonable degree of knowledge and skill and requisite care, he / she should exhibit which another competent and skilled professional of that field would exhibit. Thus, the standard is of reasonable average. Deviation from normal practice is also not negligence unless it is shown that the course adopted is one which no professional man, acting with ordinary care, would have adopted. Prosecution, as rightly held by the Court below, failed to establish any gross act which could be termed as medical negligence and what she exhibited was the ordinary care of a professional person having reasonable degree of knowledge and skill. Damage to left uterus artery, while performing cesarean, with her skill and experience and post occurrence care and treatment given to the patient would nowhere take the case nearer to the term medical negligence.
Page 40 of 41R/CR.A/1632/2017 IA ORDER 7.13 Under the circumstances, this Court finds
no need to grant leave to prefer appeal, as there being material on record to so do.
8. Resultantly, this application fails and is REJECTED, while CONFIRMING the judgment and order of the trial Court dated 08.08.2017, rendered in Sessions Case No. 112 of 2014.
8.1 While parting the heirs of the victim are directed to be paid compensation under the Victim Compensation Scheme, 2016, as contemplated under Section 357A of the Code. Let such exercise be completed EXPEDITIOUSLY. Rule is discharged.
(MS SONIA GOKANI,J) UMESH/-
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