Delhi District Court
Sant Parmanand Hospital And Ors vs Nagendra Pal Singh on 28 May, 2025
IN THE COURT OF SH. SUSHIL ANUJ TYAGI,
ADDITIONAL SESSIONS JUDGE-04:CENTRAL,
TIS HAZARI: DELHI
CNR No. DLCT01-017711-2023
CA No. 650/2023
1. Sant Parmanand Hospital
(Through Assistant Medical Superintendent)
2. Dr. Sanjay Gupta
3. Dr. Lalit Kumar Mehta
All at :
18, Sham Nath Marg,
Civil Lines, Delhi-54.
..........Revisionists
Vs.
Nagendra Pal Singh
S/o. Late Sh. Pratap Singh,
R/o. Block-7, Qtr. No. 105,
Lodhi Colony, New Delhi-110003.
..........Respondent
Date of institution of Appeal : 18.12.2023
Date on which order reserved : 10.02.2025
Date on which order pronounced : 28.05.2025
CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 1 of 36
ORDER
1. This is a revision petition 397 Cr. P.C. filed by the appellants against the impugned summoning order dated 25.09.2023 in Ct. Case No. 523559/2016, titled as 'Nagendra Pal Singh Vs. Medical Superintendent Sant Parmanand and Ors.' passed by the Ld. MM-06, Central District, Tis Hazari Courts, Delhi, vide which the revisionists have been summoned as accused persons for the offence u/s 304 A IPC by the ld. Trial Court.
BRIEF FACTS
2. The brief facts of the case as per the complaint are that the respondent/complainant is the son of the deceased patient namely Shri Pratap Singh who expired on 29.11.2009 whereas the revisionist no.1 is the Medical Superintendent of Sant Parmanand Hospital, revisionist no.2 and 3 are the doctors working in the hospital and revisionist no.4 is the administrative official in the hospital. It is alleged by the respondent that on 28.02.2009, his father Pratap Singh became unwell for which, he got a local check up on 01.10.2009. It is further alleged that on 03.10.2009, the condition of the father of the respondent further deteriorated and thus, he got him admitted in AIIMS on 03.10.2009 and after treatment, on attaining stable condition, he was discharged in the next morning of 04.10.2009 with advice of regular follow up CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 2 of 36 in OPD. On 05.10.2009, the respondent took his father to AIIMS OPD for follow up but due to heavy rush, he decided to get his father treated at Sant Parmanand Hospital which was nearer to the office of the respondent. On the same day, i.e. on 05.10.2009, at about 1200 hrs, the respondent brought his father to Sant Parmanand Hospital Emergency wherein the attending doctor advised that the patient be kept in ICU for 2/3 days for speedy recovery. After admission, the revisionist no. 2 told the respondent that his father is suffering from mild pneumonia and he requires three days of hospitalization for his recovery. On 14.10.2009, the revisionist no.2 told the respondent that his father has been affected by a viral infection "Leptospirosis". His further examination was conducted on 16.10.2009, wherein the doctors opined that the infection was subsisting and thus, the patient could not be removed from ICU. On 18.10.2009, the revisionist no.2 went abroad to attend a seminar after instructing revisionist no.3 to take care of the respondent's father in his absence. At that moment, the respondent had protested and had sought discharge of his father from the hospital but his request was turned down. On the same day i.e. 18.10.2009, respondent was informed that the condition of his father had deteriorated and he was put on ventilator in the ICU. It is alleged that in the absence of revisionist no. 2 i.e. from 18.10.2009 to 22.10.2009, the revisionist no.3 never explained the CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 3 of 36 status/condition of the patient and never gave any proper reply to the queries made to him. On 04.11.2009, the respondent sought summary of treatment for obtaining second opinion which was provided on 05.11.2009. On 06.11.2009, the ventilator was removed in a very haphazard manner as the doctor were of the opinion that the condition of the patient was improving. However, on 08.11.2009, the patient was again placed on ventilator and the revisionist no. 2 stated that the ICU people had delayed their action by 6-8 hours due to which the condition of the patient deteriorated badly. It is also alleged that the revisionists have suppressed the material facts and did not disclose that the father of the respondent had received cardiac arrest due to low SPO-2 level and the same was revealed by the doctors of AIIMS at a later stage. On 09.11.2009, the father of the respondent was shifted to AIIMS and on 10.11.2009, AIIMS doctors demanded all X-Ray films and other relevant documents relating to the treatment at Sant Parmanand Hospital but the accused no.4 refused abruptly and stated that it is the property of Sant Parmanand Hospital and the same will not be given to him in any circumstances. Ultimately, the father of the respondent expired on 28.11.2009 at AIIMS. It is alleged that the respondent regularly visited the revisionists for complete set of documents/papers but the revisionists never supplied the documents to him. It is alleged that despite knowledge that the deceased was CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 4 of 36 allergic to Moxifloxacin, the same was administered repeatedly on 05.10.2009 and from 13.10.2009 to 17.10.2009 which disturbed the vitals of the patient. It is further alleged that in order to escape their liability, the revisionists have forged and manipulated their record. The respondent alleged that the revisionists are liable for medical negligence and are responsible for untimely demise of his father for the following reasons:-
(A) Despite knowledge of allergy from "Moxifloxacin", it had been administered repeatedly on 05/10/2009, 13/10/2009, 14/10/2009, 15/10/2009, 16/10/2009 & 17/10/2009. This act is not acceptable in Medical Practice. (Medical Negligence) (B) For personal monetary gain, Doctor had prescribed/insisted upon locally manufactured medicines, as Injection Cilanem 500mg was replaced with injection ICL (Please refer return bill PCN-1756 Dtd. 29-10-09 and sales bill P-17587 Dtd. 29-10-09) which bears MRP of Rs. 1,118/- and Rs. 1,350/-respectively, both the injections are of same composition. Cilanem is a product of Ranbaxy while ICL is manufactured locally. (Unethical Practice) (C) Daily ICU Sheets were supplied after Trumped-up/fabrication by appending fallacious statement, with the intention to exaggerate the gravity of sickness/disease, as under:
LEPTOSPIROSIS C PNEUMONITIS C ACUTE RESPIRATORY FAILURE C SEPTECEMIA (ON VENTILATOR) (This act tantamount to forgery and Unethical too) (D) H1N1 test was not carried out; despite the fact it was continued spread epidemically, at that point of time. (Medical Negligence) (E) Indiscriminately administration of excessive antibiotics of almost same bacterial coverage, that resulted in resistance to utmost antibiotics (learned from AIIMS doctors) and also, not according to culture sensitivity report, e.g. on 07/10/2009, Lizoforce + Tazopip. (Medical Negligence) (F) Tracheostomy not placed timely despite repeated suggestion/ recommendation of Chest Physician despite consent of patient attendant, which may perhaps help in developing of CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 5 of 36 Ventilator associated Pneumonia, Pseudomonas & Septicemia. (Medical Negligence) (G) CVP Line placement was delayed (done on 19/10/2009) and CVP pressure also not monitored. Therefore, fluid overloading and increase in CVP pressure (12-14 mmHg) has been observed on 08/11/2009 & 09/11/2009 (Medical Negligence) (H) Potassium supplementation started late despite Diabetes Mellitus and low K Levels. (Medical Negligence) (I) Delay in 2nd time ventilation on 08/11/2009 due to which SPO2 reached to 40%. It is dangerous and life threatening as per Medical Science. (Medical Negligence) (J) Factual prognosis was never explained to the patient attendants, except seeking signature on a sheet upon which a single word like Stable, Unstable, and Critical etc. was appended after signatures of attendants. (Unethical Practice) (K) Generic names of drugs & Medicines were not prescribed by the treating Doctors, therefore deviated from the provisions of Code of Ethics Regulations-2002, Chapter 1.5. (Unethical Practice)
3. The respondent filed a complaint before the Delhi Medical Council and vide order dated 07.12.2010, complaint was disposed of with the conclusion that no medical negligence can be attributed on the part of the doctors of Sant Parmanand Hospital. The order of DMC dated 07.10.2010 is reproduced below:-
"The Delhi Medical Council examined a complaint of Shri Nagendra Pal Singh ro. Block-7, Quarter No. 105, Lodi Colony, New Delhi-110003, forwarded by Medical Council of India, alleging medical negligence and professional misconduct on the part of Dr. Sanjay Gupta, Dr. Lalit Kumar Mehta and Sant Parmanand Hospital, in the treatment administered to complainant's father late Pratap Singh (referred hereinafter as the patient) at Sant Parmanand Hospital (referred hereainafter as the said Hospital), 18, Sham Nath Marg, Civil Lines, Delhi-110054, resulting in his death at AIIMS, where he subsequently received treatment.
CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 6 of 36 The Delhi Medical Council perused the complaint, reply thereto of Dr. S. Rajagopal, Director Medical, Sant Parmanand Hospital enclosing therewith joint reply of Dr. Sanjay Gupta and Dr L.K. Mehta made to Medical Superintendent Nursing Homes, Directorate of Health Services, copy of medical records of Sant Parmanand Hospital, All India Institute of Medical Sciences and other documents on record. The Delhi Medical Council observes that the patient Shri Pratap Singh, 62 years male, was suffering from Type 2 Diabetes Mellitus. The patient developed acute febrile illness, with thrombocytopenia. He was taken to All India Institute of Medical Sciences (AIIMS) where he received platelets transfusion and was sent back. Subsequently patient was admitted in Sant Parmanand Hospital. A diagnosis of septicemia, DIC and diabetes Mellitus was made. He was admitted in ICU and treated. Patient's condition remained critical for next one month. Again patient was shifted to AIIMS on 10.11.2009. After 10 days, he succumbed to his illness.
In light of the observations made hereinabove, it is the decision of the Delhi Medical Council that all possible care was rendered but the general condition was critical and the patient died of multi organ failure. Prima facie, no medical negligence can be attributed on the part of doctors of Sant Parmanand Hospital."
4. Thereafter, the respondent filed an appeal before the Medical Council of India and vide letter dated 01.12.2011, it was informed that the Ethics Committee constituted by the Board of Governors at its meeting held on 27.09.2011 considered the matter and made the following recommendations as under :-
"After hearing both the parties and perusing all the documents received from Delhi Medical Council, the Ethics Committee is of unanimous opinion to concur with the decision of Delhi CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 7 of 36 Medical Council. The patient was treated as per standard protocol, therefore, the complaint stands disposed of."
5. One application u/s. 156 (3) Cr. P.C. was filed by the respondent before the ld. Trial Court and the same was dismissed vide order dated 31.07.2013 on the grounds that no medical negligence has been attributed to the accused persons by DMC or MCI and as such, there is no independent opinion on record regarding the offence and the ld. Trial Court allowed the respondent to lead pre- summoning evidence.
6. In pre-summoning evidence, the respondent examined himself as CW-1 wherein he reiterated the contents of this complaint.
7. CW-2 Nand Kishore was the record clerk of Sant Parmanand Hospital who brought the hospital records relating to the patient Pratap Singh.
8. CW-3 Shankar Prasad was the Medical Record Technician from AIIMS Hospital and he brought the certified copy of the face sheet (running in three pages).
9. CW-4 Dr. Devender Kumar was the Joint Secretary who signed the letter dated 01.12.2011 of Medical Council of India vide which the conclusion of Ethics Committee was informed to the respondent. He stated that he has been practicing as a doctor since 1991 as he has done his MBBS in the year 1991. He could not answer the CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 8 of 36 question put forward by the respondent on the ground that he was in administration for the last 21 years and that he was not in medical practice at present. He stated that "Since I was not in practice, but as a doctor, I can say that if a patient is allergic to Moxifloxacin if repeatedly administered with Moxifloxacin (if proved) may deteriorate the health condition of the patient.
10. CW-5 Dr. Adarsh Kumar, Professor Forensic Medicine and Toxicology, AIIMS, stated that he is an expert in the field of forensic medicine and toxicology. He stated that "If the patient is known case of allergy, any of the drugs including moxifloxacin must be avoided to be given to such patient if the same has been told to the treating doctor by the patient before initiating treatment. However, it is the discretion of the doctor that despite knowing about the allergic condition, he must be satisfied with justified reasons to initiate such treatment. In such a case, if moxifloxacin is given, the patient may develop anaphylaxis (instant reaction) and may with continued medication land into serious complications including fatality, if not controlled/stopped. The treating doctor should stop administering moxifloxacin immediately as soon as the allergic symptom are observed. The endorsement "Allergic to moxifloxacin" on the nursing chart/treatment sheet denotes that the drug should not be administered/stopped."
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11. After considering the testimony of the complainant and the witnesses, the trial Court was of the considered opinion that the prima facie case was made out against the accused persons for the offence u/s. 304A IPC and accordingly, summons were issued to them vide impugned order dated 25.09.2023.
12. Aggrieved by the impugned order, the present revision petition has been preferred by the revisionist on several grounds which are as follows:-
i. That the Impugned Order passed by the Ld. Magistrate is a non speaking order passed in a mechanical fashion by non application of judicial mind either on the facts of the case or on the position of law.
ii. That Ld. Magistrate failed to appreciate that the patient from the time when he was brought to Sant Parmanand Hospital till when he took a transfer to AIIMS was in a serious state as is evident from the recorded facts.
iii. That Ld. Magistrate failed to appreciate that on 10.11.2009, the Complainant transferred the patient to AIIMS where again the doctors struggled with the patient for a further period of 20 days and patient succumbed to his illness on 29.11.2009. iv. That Ld. Magistrate failed to appreciate that AIIMS, where the patient unfortunately succumbed, did not put any adverse remark on the treatment and management of the patient given to the patient at Sant Parmanand Hospital. The Ld. Magistrate failed to appreciate that the final diagnosis at time of death at AIIMS was septic shock with DIC with VAP, ARDS, LEPTOSPIROSIS with Type 2 Diabetes mellitus and not anaphylaxis. Thus, there is no direct nexus between the unfortunate demise of the patient and the Inj. Moxifloxacin or any other treatment given at Sant Parmanand Hospital.
v. That the Ld. Magistrate failed to observe that there is no evidence of allergy/ hypersensitivity to Moxifloxacin to the patient. As a matter of fact, the patient tolerated Moxifloxacin very well. In any case, the noting "Give Moxif very slowly and under close supervision to look for any anaphylaxis" itself means that the same was administered as per standard protocol with due CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 10 of 36 precautions. It may not be out of place to mention here that to rule out any hypersensitivity, slow administration under supervision is the standard medical protocol which was duly followed. vi. That the Ld. Magistrate gravely erred in not perusing the clinical notings in as much as Inj. Moxifloxacin was being given under supervision of senior doctors as per standard protocol. It is submitted that the Moxifloxacin was given from 14.10.2009 to 18.10.2009 and no anaphylaxis (instant reaction) was seen. As per standard protocol, Moxifloxacin was given and stopped after its course was over. It is submitted that in case, any fatality would have occurred from Moxifloxacin, the same would have been instantaneous. The said fact that anaphylaxis is instant reaction has also been affirmed by CW5 in its statement.
vii. That the Ld. Magistrate failed to appreciate that Inj. Moxifloxacin was administered on the advice of a senior chest physician after due consideration in the best interest of the patient when the patient's condition continued to be serious. viii. That the Ld. Magistrate failed to appreciate that Inj. Moxifloxacin can be very effective to treat difficult infections with Leptospirosis and Moxifloxacin has been found to be well tolerated even in patients who are hyper sensitive to antibiotics. ix. That the Ld. Magistrate failed to appreciate that the patient tolerated Inj. Moxifloxacin well and showed no adverse reaction whatsoever. Hence, it can be concluded that the patient was not allergic to moxifloxacin.
x. That the Ld. Magistrate failed to appreciate that the Delhi Medical Council had after detailed evaluation of the case file and facts on record ruled that there was no medical negligence in the present vide its Order dated 07.10.2010. It is submitted that had there been any wrong administration of the drug Moxifloxacin, the same would have been observed by the DMC/MCI, however the same was not done.
xi. That the Ld. Magistrate failed to appreciate that Inj. Moxifloxacin has no relevance in the present case as it was not related to any adverse outcomes or death of the patient. The patient continued to be in the ICU for 24 days after administration of moxifloxacin and thereafter for a further period of 20 days in AIIMS where he succumbed to illness. There is no mention of any reaction in the medical record of Sant Parmanand Hospital or the death summary of AIIMS.
xii. That Ld. Magistrate failed to appreciate that the Medical Council of India ("MCI") vide its Order dated 01.12.2011 "unanimously" upheld the Order of the DMC and observed that CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 11 of 36 there was no medical negligence in the case. xiii. That Ld. Magistrate failed to appreciate that in the complaint the Complainant / Respondent had deliberately and malafidely concealed material facts from the Court of Ld. Magistrate especially, the proceedings and Orders passed by DMC and MCI.
xiv. That Ld. Magistrate failed to take into consideration that the Order dated 01.12.2011 "unanimously" passed by Medical Council of India ought to have been given appropriate importance / consideration. In fact, the Higher Courts have been consistently observing so that MCI is an expert body and must be given appropriate consideration especially in cases of alleged medical negligence.
xv. That Ld. Magistrate failed to appreciate that 20.10.2012, a status report dated 20.10.2012 was filed by the Police whereby it was concluded that no cognizable offence was made and no police action was required in the matter.
xvi. That Ld. Magistrate failed to appreciate that the Complainant has concealed the factum of filing multiple complaints to various authorities, the Order dated 07.10.2010 of the Delhi Medical Council and the Order dated 01.12.2011 passed by the Medical Council of India. These documents were filed along with the Status Report dated 20.10.2012. In case, the same were not filed by the Police, the Complainant would have continued to mislead the Court.
xvii. That Ld. Magistrate failed to appreciate that the Ld. Magistrate, after perusing the complete record including Status Report dated 20.10.2012, the Order dated 07.10.2010 of the Delhi Medical Council, Order dated 01.12.2011 passed by the Medical Council of India, medical documents of the patient, law on point, etc, applied her judicial mind and passed Order dated 02.04.2013 thereby dismissing the application filed by the Complainant under Section 156(3) of the Code of Criminal Procedure, 1973. xviii. That the Ld. Magistrate failed to take note of the fact that there are various clinical notings / case sheets that show that the patient was regularly and diligently monitored and was administered medication as per standard protocol. xix. That the Ld. Magistrate failed to distinguish that the present case is a Complaint case as opposed to a case on police report. In fact, the Ld. Magistrate has wrongly relied upon the judgment "Bhushan Kumar & Anr. v State & Anr." to hold that no reasons are required to be stated for passing a summoning order because the said judgment deals with cases on police report. It is humbly CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 12 of 36 submitted that in the present case, the Ld. Magistrate had to give cogent reasons for issuing summons.
xx. That the Ld. Magistrate fell in grave error in not applying the basic principles to be considered in criminal cases against doctors and medical professionals.
xxi. That he Ld. Magistrate erred in placing reliance upon Smt. Nagaawwa v Veeranna Shivalingappa Konjalgi & Anr" and U.P. Pollution Control Board v. Dr. Bhupendra Kumar Modi and Anr." as the said cases dealt with the general principles of issuing summons; Whereas, the standard of proof required before issuing summons to a medical professional stands on a much higher pedestal.
xxii. That Ld. Magistrate erred in Summoning the Revisionists in as much as the concept of negligence differs in civil and criminal law. What may be negligence in civil law, may not be negligence in criminal law. It is humbly submitted that the Ld. Magistrate has proceeded to pass the Impugned Order in a misguided interpretation of law in this regard.
xxiii. That Ld. Magistrate erred gravely in relying on CW-5 as an expert witness. It is submitted that CW-5 could not be an expert in the present case as CW-5 Dr. Adarsh Kumar is a professor in Forensic Medicine and Toxicology. This subject is not related to the subject of case at hand. Therefore, any reliance on his testimony would not be of any relevance.
xxiv. That the procedure adopted by Ld. Magistrate is in the teeth of settled proposition of law that "Merely because they are doctors by profession, what is being expressed by both of them in the affidavits filed before the Commission would not be considered to be an opinion of experts". The Hon'ble Apex Court recently in Chanda Rani Akhouri v. Μ.Α. Methusethupathi, 2022 SCC OnLine SC 481.
xxv. That Ld. Magistrate erred gravely while passing the Impugned Order dated 25.09.2023. The Ld. Magistrate, sans assigning any reasons whatsoever, was pleased Summon the Petitioners under Section 304A of the Indian Penal Code, 1860. xxvi. That Ld. Magistrate has erred gravely while passing a non- speaking order Impugned Order. It is humbly submitted that the Ld. Magistrate has failed to take into consideration the Status Report dated 20.10.2012, the Order dated 07.10.2010 of the Delhi Medical Council, Order dated 01.12.2011 passed by the Medical Council of India, and the medical record. In fact, the Order dated 02.04.2023 passed by the Ld. Magistrate itself has not been taken into consideration. The Impugned Order has been passed bereft of CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 13 of 36 any reasoning or details as required under the law while passing such order especially in alleged medical negligence cases. xxvii. That Ld. Magistrate has erred gravely while passing the Impugned Order in as much as the role of the Petitioners /Revisionists as even alleged by the Complainant / Respondent are different and distinct. For instance, Ld. Magistrate has fastened a similar criminal liability of an official of Billing department of the Hospital to a senior medical consultant. Thus, the ld. Magistrate has gravely erred in passing a non speaking blanket order. xxviii. That Ld. Magistrate has passed the Impugned Order in the teeth of settled proposition of law that sufficient satisfaction of the Judge Magistrate ought to be exercised while summoning. It is humbly submitted that in the present case, the Ld. Magistrate did not have "sufficient grounds for proceedings" for issuing summons to the Petitioners /Revisionists.
xxix. That Ld. Magistrate failed to appreciate that for imposing criminal liability under Section 304A of the Indian Penal Code, 1860, death should have been the direct result of a rash and negligent act of the accused and that act must be the proximate and efficient cause. It is submitted that on 28.09.2009, the patient was given platelet transfusion at AIIMS Delhi. On 05.10.2009, the patient came to Sant Parmanand Hospital and was then transferred to AIIMS Delhi on 10.11.2009 on the request of the Complainant. After being admitted in AIIMS Delhi for 20 days, the patient unfortunately succumbed to his illness on 29.11.2009. Thus, there is no nexus between the unfortunate death at AIIMS and treatment given at Sant Parmanand Hospital.
xxx. That the impugned Order has been passed without keeping in mind the principles of Equity and Balance of Convenience which undoubtedly lies in favour of the Petitioners / Revisionists herein.
Xxxi. That the Impugned Order is ex-facie perverse, arbitrary and unsustainable, and not in the interest of justice and needs to be set aside.
ARGUMENTS ON BEHALF OF REVISIONISTS
13. It is argued on behalf of the ld. Counsel for revisionists that there is no evidence to suggest any negligent act on part of the revisionists. It is further argued that Moxifloxacin was used as per the standard protocols of CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 14 of 36 drug administration in ICU and the same has been evaluated by the DMC and MCI who have opined that no medical negligence was made out. It is further argued that there is no proximity between the alleged act of negligence and the occurrence of death. It is further argued that the said drug was administered from 14.10.2009 to 18.10.2009 while the patient had expired on 28.11.2009 at AIIMS i.e. after 41 days. It is further argued that Anaphylactic reaction i.e. allergic reaction is an instant reaction and the death was not due to allergic reaction. It is further argued that Moxifloxacin has no relation with the death of deceased which was due to septic shock and his serious illness. It is further argued that as per settled law, no criminal proceeding shall continue against a doctor where the State Medical Council and Medical Council of India has concluded after inquiry that there is no case of medical negligence. It is further argued that the complainant has not examined any medical expert with relevant expertise and according to Jacob Mathew case, private complaint cannot be entertained without evidence of a competent doctor supporting the charge of negligence. It is further argued that CW-5 has only made general statements without any specific observation about the case of the deceased patient. It is further argued that his opinion is generic and has no value. It is further argued that the complainant has played fraud upon the Court by CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 15 of 36 suppressing the orders of DMC and MCI and therefore, no relief can be granted to him. It is further argued that the impugned order is a non speaking order which is contrary to law and therefore, it is prayed that the impugned order may kindly be set aside.
14. Ld. Counsel for revisionists has relied upon the following judgments in support of his arguments:-
(i) Jacob Mathew vs. State of Punjab, [(2005) 6 SCC 1]
(ii) Suresh Gupta vs. Govt. of NCT of Delhi, [(2004) 6 SCC 422]
(iii) Hukam Chand vs. State and Ors., [2016 SCC OnLine Del 4129]
(iv) Jayshree Ujwal Ingole vs. State of Maharashtra, [(2017) 14 SCC 571]
(v) A.S.V. Narayanan Rao vs. Ratnamala and Anr., [(2013) 10 SCC 741]
(vi) AK Banerji vs. State, [2014 SCC OnLine Del 2322]
(vii) Kusum Sharma vs. Batra Hospital, [(2010) 3 SCC 480]
(viii) MCD vs. State of Delhi and Anr., [(2005) 4 SCC 605]
(ix) Rajiv Thapar vs. Madan Lal Kapoor, [(2013) 3 SCC 330]
(x) Krishna Lal Chawla vs. State of Uttar Pradesh, [(2021) 5 SCC 435]
(xi) Dr. Chanda Rani Akhouri vs. Dr. M.A. Methusethupathi, [2022 SCC OnLine SC 481]
(xii) Pepsi Foods Ltd. vs. Special Judicial Magistrate, [(1998) 5 SCC 749]
(xiii) Sunil Bharti Mittal vs. CBI, ](2015) 4 SCC 609]
(xiv) Lalankumar Singh vs. State of Maharashtra, [2022 SCC OnLine SC 1383]
(xv) Manharibhai Muljibhai Kakadia vs. Shaileshbhai Mohanbhai Patel, [(2012) 10 SCC 517] CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 16 of 36 ARGUMENTS ON BEHALF OF RESPONDENT
15. To the contrary, the ld. Counsel for respondent argued that the ld. Trial Court had passed the order for summoning against the revisionists after hearing the arguments and perusing the pre-summoning evidence and the said order is a detailed order appreciating the evidences on record. It is further argued that in a case involving medical negligence, once the initial burden has been discharged, the onus shifts upon the hospital or the attending doctors to satisfy the Court that there was no lack of care or diligence. It is further argued that due to administration of the drug Moxifloxacin continuously to which the patient was allergic, caused injury to the organs and there was multiple organ failure since the patient when came for the first time had come only with a normal complaints which were not life threatening. It is further argued that as per the written submissions of the revisionists, the test result for Leptospirosis came positive on 13.10.2009 but it is not understandable as to how the running sheets dated 05.10.2009 to 17.10.2009 is having endorsement in diagnosis as LEPTOSPIROSIS B/W PNEUMONITIS ACUTE RESPIRATORY (ON VENTILATOR) SEPTICEMIA. It is further argued that records are manipulated on the instructions of the revisionists and it is evident from the column of treatment dated 05.09.2009 that Inj. Moxif 400 mg has been cut later on and in the sheets of 07.10.2009 to CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 17 of 36 11.10.2009 in allergic column Inj. Moxifloxacin has been mentioned but again on 13.10.2009, Moxif 400 mg IV once a day at 1.00 p.m. was administered continuously everyday till 18.10.2009. It is further argued that how the patient was allergic to Moxif came in the knowledge of the hospital and if they had knowledge why they had administered the same prior to 13.10.2009 and when Moxifloxacin was to be administered very slowly under supervision why the dose of 400 mg intravenous one day was prescribed. It is further argued that on one hand, the medical report says that the patient was allergic to Moxif and on the other hand, the revisionists conclude that the patient was not allergic to Moxifloxacin. It is further argued that the ld. Trial court has correctly summoned the revisionists as they are prima facie guilty of the offence of medical negligence. It is further argued that the revisionist will be having due opportunity to cross- examine the witnesses at the time of pre-charge evidence. It is therefore, prayed that the present revision petition may kindly be dismissed.
16. Ld. Counsel for respondent has relied upon the following judgments in support of his arguments :-
(i) Savita Garg (Smt.) vs. Director, National Heart Institute (2004) 8 SCC 56 and
(ii) Chinkeow vs. Govt. of Malasia, (1967) 1 WLR 813 PC
17. This Court has heard the rival contentions advanced on CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 18 of 36 behalf of both the parties and has perused the record.
LAW ON MEDICAL NEGLIGENCE AND SUMMONING
18. The law on medical negligence has been crystallized by the Hon'ble Apex Court in Jacob Mathew vs. State of Punjab and Anr., AIR 2005 SC 3180. The Hon'ble Court held as under:-
"Negligence by professionals
18. 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 this standard, a professional may be held liable for negligence on one of two findings:
either he was not possessed of the requisite skill CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 19 of 36 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.
19. An out quoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of Mc Nair 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 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."
20. 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 CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 20 of 36 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 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."
21. The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England:-
"35. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 21 of 36 skill would have taken had he been acting with ordinary care."
Abovesaid three tests have also been stated as determinative of negligence in professional practice by Charlesworth & Percy in their celebrated work on Negligence."
11. It is in the fitness of things to observe that Supreme Court has observed that when the medical practitioner is faced with an emergency ordinarily he 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. In the background of this fact the Supreme Court in para 48 of the judgement observed as under:
" Conclusions summed up
48. 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 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 CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 22 of 36 to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial.
Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 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 CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 23 of 36 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."
19. The Hon'ble Apex Court emphasized 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.
CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 24 of 36 It was observed that 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.
20. The Hon'ble Apex Court further observed as follows:
"Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."
21. Before embarking on a discussion as to whether CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 25 of 36 sufficient prima facie material exists for summoning of the accused persons, it becomes imperative to set-out briefly the legal benchmark that is to be satisfied for summoning of an accused. As per section Section 204 Cr. P.C., the consideration at this stage of summoning is whether there exists sufficient grounds to summon them or not. In order to decide whether to summon accused persons for trial, existence of only a prima facie case has to be seen in contrast to the standard of proof "beyond reasonable doubt" required for conviction. For scope of scrutiny permissible at the stage of summoning, one may turn to Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi and others, AIR 1976 Supreme Court 1947, wherein the Hon'ble Apex Court held as under :-
"At the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or de-merits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one."
22. So the law that has developed on medical negligence and summoning of accused persons, is that the doctors may be held liable for negligence only when 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 CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 26 of 36 possess. The standard would be that of an ordinary competent person exercising ordinary skill in that profession. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence. 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. Further, a 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 Court has to form a prima facie opinion upon the allegations in complaint and the evidence produced before it, as to whether there are sufficient grounds for summoning the accused persons. The standard is "sufficient grounds for summoning" not "sufficient evidence for conviction".
ANALYSIS AND FINDINGS
23. Now adverting to the facts of the present case, the application u/s 156(3) Cr. P.C. of the complainant was dismissed by the ld. Trial court on the ground that DMC as well as MCI has ruled out medical negligence on the part of accused persons and thus, the complainant was allowed by the Ld. Trial Court to lead pre-summoning evidence. In pre-summoning evidence, the complainant CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 27 of 36 examined himself and reiterated the contents of his compliant. Complainant also examined CW-2 to CW-5. The testimony of CW-4 and CW-5 assumes significance in the present case as they both are doctors.
24. CW-4 stated that as a doctor, he can say that if a patient is allergic to Moxifloxacin if repeatedly administered with Moxifloxacin (if proved) may deteriorate the health condition of the patient.
25. CW-5 was summoned as an expert expert in the field of forensic medicine and toxicology. He stated that "If the patient is known case of allergy, any of the drugs including Moxifloxacin must be avoided to be given to such patient if the same has been told to the treating doctor by the patient before initiating treatment. However, it is the discretion of the doctor that despite knowing about the allergic condition, he must be satisfied with justified reasons to initiate such treatment. In such a case, if Moxifloxacin is given, the patient may develop anaphylaxis (instant reaction) and may with continued medication land into serious complications including fatality, if not controlled/stopped. The treating doctor should stop administering Moxifloxacin immediately as soon as the allergic symptom are observed. The endorsement "Allergic to Moxifloxacin" on the nursing chart/treatment sheet denotes that the drug should not be administered/stopped."
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26. Thus, there is independent and competent medical opinion on record which has come from an expert in the field of forensic medicine and toxicology. There remains no doubt that if an allergic drug is administered to a patient, he may develop anaphylaxis and if drug is continued, it may land into serious complications including fatality. It has also come on record that since the patient was allergic to Moxiflaxacin the drug should not be given to the patient and if the treating doctor has recommended such drug, he must be satisfied with justified reasons for initiating such treatment and the drug must have been stopped immediately if any symptoms were observed.
27. In the instant case, there is no doubt that the deceased was reported to be allergic to Inj. Moxifloxacin. It is also not in dispute that such medication was prescribed and administered to the deceased. Now, it is the stand of the accused persons that the deceased was diagnosed with "Leptospirosis" on 13.10.09 and he was prescribed Inj. Moxifloxacin from 14.10.09 to 18.10.09 as per the standard of medical protocols which was directed to be administered slowly and no side effects were noted and there was no anaphylaxis. There seems to be discrepancy here in the stand taken and treatment sheets of the deceased. As per the accused persons, the deceased was diagnosed with Leptospirosis on 13.10.09, then how Leptospirosis was came to be written on the ICU sheets CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 29 of 36 prior to 13.10.09 is not understandable. Surprisingly, the ICU sheets starting from 05.10.09 to 12.10.09 records the diagnosis as Leptospirosis.
28. Also, the clinical note records that the Leptospirosis came positive on 14.10.09 at 1.30 pm. Such fact is recorded above the notes of 13.10.09 at 5.40 pm. There seems to be some discrepancy in the notes which has not been explained. Further, in the clinical note of 14.10.09 where Moxifloxacin has been recommended, it does not record the time. Otherwise generally there is recording of time below the date on the clinical notes. This also does not match with the ICU sheets which records that the Moxifloxacin was given to the patient since the morning of 13.10.09. The notes at the back of ICU sheet of 13.10.09 would reveal that when the Moxifloxacin was given to the patient, there was no deliberation on the fact that patient is allergic to Moxifloxacin. It is only in the later note it was noted that patient was allergic to Moxifloxacin and same was brought to the notice of the concerned doctor and thereafter, AST was advised but no result of AST is on record. There is no opinion that there was on anaphylaxis or whether anaphylaxis was ever looked for. The notes at the back of ICU sheets records that the patient complained of abdominal pain on 17.10.09 and 18.10.09 and later on 18.10.09, his SPO2 level dropped and he went drowsy. The symptoms of Anaphylaxis could be varying and they are life CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 30 of 36 threatening affecting multiple organs. The patient fought for his life for several days after 18.10.09 when he was put to ventilator and ultimately he expired on 28.11.09 in AIIMS due to multi organ failure. The fact that he was later transferred to AIIMS on 10.11.09 on ventilator and expired on 28.11.09 at AIIMS would make no difference. The proximity of administration of Moxifloxacin and the death of accused cannot be ruled out in the present case.
29. Further, as per the revisionists the Inj. Moxifloxacin was given from 14.10.09 to 18.10.09 (5 days as per protocol) but the ICU sheets reflect the the same was given on 05.10.09 as well as from 13.10.09 to 18.10.09. Here, it is also very important to note that the deceased was allergic to Moxifloxacin but such fact was noted only in the sheets from 06.10.09 to 11.10.09. Such fact of allergic to Moxifloxacin went missing in all other sheets after 11.10.09. To add, this important fact of allergic to Moxifloxacin and that he was on Moxifloxacin despite allergic to it, was not mentioned in the discharge/ Transfer summary when the deceased was being shifted to AIIMS.
30. It is the defence of the revisionists, the doctors despite knowing the the patient was allergic to Moxifloxacin, recommended the same to the patient to be administered slowly. This thing is only reflected in one of the clinical notes of Doctor on 14.10.09, however the same was CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 31 of 36 being given to the deceased from 13.10.09. It could not be a regular practice to recommend and administer such drug to the patient to which he is allergic. It could only be an exception. If the exceptional route was taken by the doctors then such route must have been reflected with some reasoning as to why this route was chosen over the alternate safe drug and there must have been some deliberation on 13.10.09 before recommending such drug and precautions must have been recorded on 13.10.09 and not on 14.10.09. It appears that the drug Moxifloxacin was given to the patient on 13.10.09 negligently and may be, as such fact of allergic to Moxifloxacin was not recorded on the ICU sheets of 12.10.09 and 13.10.09.
31. To add further, the medical records produced before that court do not reflect that consent of family/attendant of the patient obtained before giving allergic drug to the patient and the risks involved were not explained to them. No prognosis was ever explained to the family members/attendant of the deceased. It is important to see para 5 of the Consent Form of Sant Parmanand Hospital which reads as:-
"I consent to the administration of such medications and anaesthetics and may be considered necessary of advisable by the physician responsible for this service with the exception of those to which I am allergic or to which I object as follows:........".
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32. This means that even in the consent form the patient/attendant did not consent for administration of medications which are allergic to the patient.
33. The revisionists have alleged that the deceased was tolerant of the allergic drug, if that was so, it should have been recorded in the notes or clinical sheets. It is admitted fact that the medical condition of the deceased worsened till 18.10.09 upto when the allergic drug was given to him and ultimately on the same day i.e. on 18.10.09, he was shifted on ventilator. The ICU notes also reveals that he suffered from abdominal pain apart from other symptoms which may be connected to the administration of Moxifloxacin. Thus, it cannot be presumed that the deceased was acceptive of the allergic drug or that he showed improvement with such treatment. The deterioration of condition of the patient would be an indication of the fact that the allergic drug given to him was not good for him.
34. The DMC has given its opinion that the medical negligence is not attributable to the accused persons as they have given all due care and precaution and standard medical protocols have been followed. DMC has only seen the complaint, hospital records and reply of accused persons in its enquiry and as evident, the reply of accused persons have been accepted. DMC has not dealt with any of the allegations of the complainant and even the CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 33 of 36 opinion of treating doctors from AIIMS was not taken. Similarly, the order of the Ethics Committee, MCI also reveals that no details were discussed and with simple one liner the appeal has been dismissed. It is apparent that the ambit of the enquiry conducted by DMC cannot be compared with the proceedings in a criminal complaint before the Ld. Trial Court. The scope and ambit of both are different as the platforms and considerations vary considerably. The consideration before the Court is to see whether there a prima facie case and sufficient grounds exist for summoning the accused or not, while the consideration before the DMC is to see whether the standard medical protocol has been followed by the doctors. Therefore, in no eventuality, the Ld. Trial Court can be said to to be bound by the decision of DMC/MCI. The Ld. Trial is free to form its own opinion on the basis of material available on record.
35. It has transpired from records that the deceased was allergic to Moxifloxacin and such drug has been given to him negligently or recklessly. The clinical sheets reveals that such drug was given to him on 05.10.09 and from 13.10.09 to 18.10.09 and the condition of the deceased deteriorated which landed the deceased on ventilator and ultimately led to his death. The defence of the revisionists that Moxifloxacin was given slowly with precaution is not found in consistent with the records as such recommendation was recorded on 14.10.09 while the CA No. 650/2023 Sant Parmanand Hospital and Ors.Vs. Nagendra Pal Singh Page No. 34 of 36 medication was being given to the patient before that date. No precaution as to how such drug was given slowly and what side effects were checked for is not found on record.
36. It is true that the hospital and its employees may be held vicariously liable in criminal law for the acts of the treating doctors but it is also true that they can be held liable for the administrative negligence in not providing adequate information/documents and for not taking due consent of the family/doctors for the risks/prognosis, when it was a known fact that the patient was allergic to Moxifloxacin. If such drug was to be administered, consent form was a must. No consent of the family/attendant was taken and the risks/prognosis was never explained. The complainant was not allegedly not provided with the required information by the hospital even after the discharge.
37. Thus, there seems to be prima-facie case of medical negligence against the revisionists. The ld. Trial court has rightly summoned the accused persons vide the impugned order and the same is hereby upheld. No interference is called for.
38. For the foregoing reasons, the present revision petition is dismissed.
39. Copy of the revision petition be sent to the concerned Court for information.
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40. Revision file be consigned to Record Room.
Announced in the open Court on 28th May, 2025 (SUSHIL ANUJ TYAGI) ASJ-04/CENTRAL/DELHI 28.05.2025(VR) Digitally signed SUSHIL by SUSHIL ANUJ TYAGI ANUJ Date:
TYAGI 2025.05.28
14:13:42 +0530
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