Madras High Court
Dr. Lakshmanan Prakash vs The State Rep. By Its Inspector Of Police ... on 15 March, 1999
Equivalent citations: 2001ACJ1204, 1999CRILJ2348, 1999(2)CTC29
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER
1. Dr. L. Prakash, seeking to quash the proceedings in CC.No. 3711 of 1998 on the file of II Metropolitan Magistrate, Egmore, Chennai, for the offence under Section 304-A I.P.C., has approached this Court with this application filed under Section 482 Cr.P.C.
2. The petitioner is arrayed as A3 in this case. The accusation contained in the charge sheet against Al to A3 is as follows:
"On 24.5.1997 at about 12.00 hours at Padmini Nursing Home situated at Pachayappas College Hostel Road, Chennai. Dr. Parthasarathy (A1), Dr. Rajagopal (A2) and Dr. L. Prakash (A3) acted in a rash and negligent manner in conducting the operation on the person by name Jayakumar for his fractured injuries sustained on his right leg in a road accident, the first accused Dr. Parthasarathy being the Anaesthetist, the second accused Dr. Rajagopal and the third accused Dr.L. Prakash being in charge of the operation fixed for the patient, during which process the second accused abruptly left the operation theatre on some reason for a short duration leaving the third accused and after the administration of anesthesia by A1, as a result of which the patient died of acute respiratory failure. Therefore, all the three doctors being neglect in their duties are liable to be punished for the offence under Section 304-A of I.P.C.
3. Mr. Karuppan, the counsel for the petitioner (A3) would mainly contend that the charge as against the petitioner under Section 304-A I.P.C. is not made out, since he was in no way connected with the cause of death, which is said to have caused out of complications that had arisen due to spinal anaesthesia administered by Dr. Parthasarathy (Al) who is an Anaesthetist. He would also submit that the post-mortem report did not specify that the cause of death was due to any negligence on the part of any one involved in the operation except for stating that the cause of death was due to lung shock. He would also point out that the second opinion which was sought from Dr. Celia, Head of the Department of Forensic Sciences would certify that the cause of death was due to acute respiratory failure-a sequel to spinal anaesthesia administration and that therefore, the person answerable to the charge is only Al, the Anaesthetist and the petitioner (A3) could not be charged of contributing the said act. According to the counsel, the petitioner could not be attributed with any sort of negligence, as there are no materials to show that he was in any way responsible for the death of the deceased.
4. I have heard Mr. Elango, the learned Government Advocate appearing for the respondents.
5. A perusal of the records would give the following details:
(a) One Jayakumar aged about 24 years is a student of HI year B.E. in B.M.S. Engineering College, Bangalore. He met with a road accident on 14.5.1997, due to which he sustained injuries on his hand, leg and head.
Initially he took treatment at Manipal Hospital, Bangalore. Since his father Sethuraman and his family are residing at Madras, the said Jayakumar was brought to Madras for further treatment. On 16.5.1997 the patient was taken to Dr. Rajagopalan (A2), Ortho Surgeon, who is the family doctor of the said Sethuraman, at his Clinic, who in turn got the patient admitted in the Padmini Nursing Home on the same day. Thereupon, Dr. Rajagopalan (A2) and his son-in-law Dr.L. Prakash (A3) the petitioner, both being the Ortho Surgeons and visiting consultants of Padmini Nursing Home attended over the patient Jayakumar and com-menced the treatment. On 23.5.1997 both the Doctors decided to conduct surgical operation on the right leg of the patient for compound fracture. They had also promised the father of the patient that it was a minor operation in which they have planned to adopt and carry out a foreign method of treatment and that there was nothing to worry about.
(b) On 24.5.1997 at 8.30 a.m. the patient was taken to operation theatre. Dr. Rajagopalan and Dr. Prakash, Ortho Surgeons and Dr. Parthasarathy, Anaesthetist arrived at the Operation theatre. At that time, the patient was fully conscious, hale and healthy. He was in normal health condition on speaking terms, except for the compound fracture and other superfi-cial injuries on the body, before being taken to the operation theatre. All the three doctors were attending to the patient. They were trying a new method called spring method. The patient was administered 3 ml. of Sensorcaine, an anaesthesia by Dr. Parthasarathy by injecting through the spinal cord of the patient before commencement of the operation, in the presence of Dr. Rajagopal and Dr.L. Prakash. Both of them were preparing the patient for the operation.
(c) At this juncture, one of the theatre attendants, Staff Nurse Shakuntala suddenly had chest pain. Immediately, both Dr. Rajagopal and Dr. Prakash attended on her and soon she became normal. Thereafter, Dr. Prakash under the guidance of Dr. Rajagopal commenced the operation by surgically cutting open below the right knee for about 4 cms. length. Just when they observed that bleeding was not normal, and the blood was clotted inside, both the Surgeons A2 and A3 enquired with Dr. Parthasarathy (Al) about the condition of the patient after anaesthesia. On being checked up, it was found that there is a slow drop in blood pressure, which was at that stage 100/60 mg. Dr. Parthasarathy attempted certain medical steps to revive the patient, but then the pulse rate started coming down vigorously. Dr. Rajagopal and Dr. Prakash (A2 and A3) immediately summoned a Cardiologist to check up the heart beat of the patient and to revive the same. Accordingly, Dr. Vijayalakshmi, Cardi-ologist came and examined the patient and found that he was dead. Thereafter, both Dr. Rajagopal and Dr. Prakash cameout of the operation theatre and informed the father of the patient that the son died due to cardiac arrest. Since the father of the patient felt that his son died due to negligence of the doctors, as there was no heart problem for him earlier, gave complaint to the police against all the doctors for the offence under Section 304-A , I.P.C.
6. The investigation conducted by the police revealed that Dr. Rajagopal was mainly responsible for the medical treatment of the patient for fracture and he also being the family doctor for the family of the patient was responsible in admitting the patient in Padmini Nursing Home. Similar responsibility and liability rest upon Dr. L. Prakash (A3) being the Associate Doctor of Dr. Rajagopal as he did not check up the medical formalities before commencing the operation. The responsibility and liability for the death of the patient would in a major way lie upon Dr. Parthasarathy, Anaesthetist for negligence by not carefully preparing the patient for the operation through the administration of the required amount of anaesthesia drug. He also failed to check up during pre-operative anesthesia steps as to whether the patient would withstand 3 ml. heavy local anaesthesia drug Sensorcaine which was given through spinal cord to the patient. Suffering from multiple injuries being accident victim who had also sustained head injury. The Doctor who conducted post-mortem gave opinion on the basis of Histopathology report that the deceased died due to lung shock. Dr. Cecilia Cyril, Head of the Department, Forensic Medicine in her second opinion would state that the deceased would appear to have died of acute respiratory failure - a sequalae to spinal anaesthesia administration.
7. In the light of the above materials, the charge sheet has been filed against all the three accused for the offence under Section 304-A, I.P.C.
8. From the materials it is seen, as pointed out earlier, that all the three doctors were in charge of the patient, who was to be operated upon. The patient Jayakumar was given medical treatment from 16.5.1997 to 23.5.1997 under the direct supervision of Dr. Rajagopal in consultation with Dr. Prakash, the Ortho Surgeons. It was decided to conduct operation on 24.5.1997. Accordingly, the patient was taken to the main operation theatre on the said date. Dr. Parthasarathy administered the spinal anaesthesia drug. Then, Dr. Prakash under the guidance of the Dr. Rajagopal prepared to commence the operation after cleaning and positioning the patient. At that point of time, the Staff Nurse assisting Dr. Rajagopal, suddenly had chest pain and Swooned. On seeing this, both Dr. Prakash and Dr. Rajagopal attended on her. However, the said Staff Nurse became normal soon. Thereafter, operation was commenced. Now, the opinion given by the doctors is that the death was due to the lung shock and the acute respiratory failure - a sequalae to spinal anaesthesia administration. So, the cause of death is directly attributed to the act of A1.
9. It is also the case of the prosecution that Dr. Parthasarathy failed to check up during the pre-operative anaesthesia test as to whether the patient would withstand 3 ml. of local anaesthesia drug Sensorcaine which was given through spinal cord to the patient, who met with an accident sustaining injuries not only on leg but also on the head.
10. In the light of the above fact situation, the counsel for the petitioner would contend that the petitioner, who has no connection in relation to the death of the deceased, could not be an accused of having acted in any manner with any sort of negligence and as such, the proceedings as against the petitioner (A3) are liable to be quashed.
11. On a perusal of the statements of all the witnesses and other materials produced by the prosecution, in my considered view, it cannot be said that there was no negligence at all on the part of the accused which contributed the death of the deceased.
12. According to prosecution, Dr. Rajagopal (A2), the family doctor of the patient was mainly responsible for the medical treatment of the patient for fracture. Similar responsibility rests upon the petitioner Dr.L. Prakash (A3) being the Associate Doctor of Dr. Rajagopal. Before commencing the operation, 3 ml of local heavy anaesthesia was administered by A1 Dr. Parthasarathy, Anaesthetist through spinal cord to the patient.
13. It is also the prosecution case that Al failed to check up during pre-operative anaesthesia steps as to whether the patient would withstand 3 ml. of Sensocaine given to him who was suffering from multiple injuries including the head injury. It is stated in the charge sheet that both A2 and A3. Dr. Rajagopal and Dr. L. Prakash did not check up the medical formalities before commencing the operation. Therefore, the materials available in this case would clearly show that there was negligence on the part of every doctor.
14. However, the degree of negligence attributed to each of the doctors would certainly vary especially when the case of the prosecution through doctor's opinion is that the death was due to acute respiratory failure - a sequalae to spinal anaesthesia administration, which is attributed to A1.
15. In this context, as pointed out by the counsel for both, there are prima facie materials for the charge of offence under Section 304-A I.P.C. as against A1, but not against A3, the petitioner.
16. As indicated earlier, the negligence is explicit on the part of every doctor. But, it shall be seen whether the negligence attributed to the doctors (A2 and A3), who were in charge of operation, would be termed to be criminal negligence which would attract the ingredients of Section 304-A I.P.C.
17. Section 304-A I.P.C. provides thus:
"Causing death by negligence - Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
18. The reading of the above section would show that the following ingredients are required to be established to prove an offence under Section 304-A I.P.C:
(i) death of the person in question;
(ii) accused caused such death; and
(iii) such act of the accused was rash or negligent, although it did not amount to culpable homicide.
19. In the instant case, we are concerned with the criminal negligence, as there is no indication with reference to the rashness. This section, like other sections of the Indian Penal Code, requires a mens rea or guilty mind and the negligence must be such as can fairly be described criminal. Mere carelessness and simple lack of care may constitute civil liability and it cannot be treated to be enough to prove a charge of homicide by negligence.
20. In order to perform an operation, surgical interference is necessary. In the instant case, the surgical interference by A3, the petitioner who commenced the operation has not been attributed as the reason of the death.
21. Negligence is acting without the awareness that harmful or mischievous consequences will follows, but in circumstances which would show that had the person acted by exercise of the condition incumbent on him, he would have had awareness of the consequences of his act.
22. The standard of negligence must be rated in terms of the circumstances, such as would be accepted as criminal negligence by an intelligent and sensible community.
23. The facts and the materials collected by the prosecution in this case may amount to negligence in civil law, but not culpable negligence under criminal law. For civil liability, the simple lack of care is enough. But, in criminal law, a very high degree of negligence is required to be proved. In civil suit, it is sufficient to prove neglect of duty by consideration of the probabilities of the case. But, in criminal law, it is necessary to prove beyond reasonable doubt the negligent act of the accused.
24. To impose criminal liability under Section 304-A I.P.C., it is necessary that the death would be direct result of a negligent act of the accused, and that act must be proximate and efficient cause without the intervention of another's negligence. It must be the causa causans and it is not enough that it may have the causa sine qua non. There must be direct nexus between the death of a person and the negligent act of the accused.
25. The death of the person in the operation table by itself is not sufficient to prove negligence against the doctor. The criminality lies in running the risk of doing such an act with recklessness and indifference to the consequences. In other words, a Doctor is not criminally responsible for the patient's death, unless his negligence OF incompetence showed such disregard for life and safety as to amount to a crime against the State.
26. These principles have been laid down in Ranghavalla (KHM) v. State, A.I.R. 1965 S.C. 616; Satnarain v. Emperor, A.I.R. 1933 All. 232; New India Assurance Co, ltd, v. Dr. Kiritkumar S. Sheth, 1977 A.C.J. 1103; Ghanshyamdas Bhagwandas v. State of Madhya Pradesh, 1977 A.C.J. 182; Dr. Krishna Prasad v. State of Karnataka, 1989 A.C.J. 393 and John Oni Akerele v. The King, A.I.R. 1943 PC 72.
27. Admittedly, A2, Dr. Rajagopal is the family doctor of the patient. He is an highly qualified Ortho Surgeon practicing orthopedics for the past 38 years. He has also been responsible enough to prepare number of patients for surgical operation. The first informant Sethuraman, the father of the patient himself would state in his statement that his family members had taken similar treatment from Dr. Rajagopal previously. It is also an admitted fact that Dr. Prakash, the petitioner, the son-in-law of A2, Dr. Rajagopal has been practicing orthopaedics for more than 11 years.
28. It is not the case of the prosecution that the accused doctors A2 and A3 are the incompetent Surgeons and the preparation made by these doctors for commencement of the operation on the patient would not have been made by the other competent doctors. In this situation, it could not be said that A3 Dr. Prakash, the petitioner, commenced operation under the supervision of A2 Dr. Rajagopal with criminal negligence.
29. It shall be noted in this context that the doctor is not presumed to have given guarantee to cure. He is required to exercise the degree of care and skill expected of a reasonable and prudent medical practitioner. It is a matter of common sense that a medical practitioner is not obliged and can never be expected to achieve success in all cases. His duty like other professionals is to exercise reasonable care, caution and skill. If he is found failing in exercise of such things, obviously then, he is to be visited with legal consequences either under the civil law or under criminal law. Even a best surgeon is likely to make honest error in judgment. Therefore, what is required to be judged is causation, nexus of injury with the action alleged to be negligent.
30. A doctor is never presumed to be infallible. He is also not obliged to achieve success in every clinical case that he treats. Doctor cannot be held negligent simply because something goes wrong. Doctor can be found guilty only if he falls short of standard of reasonable skilful medical practice.
31. As pointed out earlier, the part played by Al Dr. Parthasarathy, Anaesthetist by having failed to check up during the pre-operative anesthesia test as to whether the patient would withstand 3 ml. local anaesthesia drug which was administered through spinal cord to the patient, especially when he had sustained injuries both on the head and leg, may amount to criminal negligence which would warrant Al facing the proceeding under Section 304-A, I.P.C. But, such a criminal negligence cannot be attributed to the petitioner (A3) as well as A2, though it is stated by the prosecution that both the doctors A2 and A3, who were responsible for the medical treatment for the patient, have not checked whether all medical check-up formalities including anaesthesia test was properly performed by Al before the operation.
32. As stated earlier, the responsibility of those doctors A2 and A3, who were in charge of operation, and their failure to check-up the performance of the medical formalities through Anaesthetist before commencing operation, might reflect negligence, which may attract civil law and certainly not criminal law.
33. Therefore, under these circumstances, the materials on record collected by the respondent-police placed before the trial Court are, in my view, would not be sufficient to fix the criminal liability with reference to the criminal negligence as against the petitioner (A3). Consequently, the proceedings as against the petitioner (A3) are liable to be quashed.
34. Similarly, in my view, Dr. Rajagopal (A2) under whose supervision, A3 Dr. Prakash commenced operation also would stand in the same footing and consequently, the proceedings as against A2 are also to be quashed. Though A2 has not filed any application, the benefit accrues to A3 would also be applicable to A2. Therefore, the proceedings, as indicated earlier, as against A2 and A3 are hereby quashed.
35. The trial Court is directed to go on with further proceedings as against Al. However, it is made clear that any of the observations made by me in the above paragraphs as against Al would not influence the mind of the trial Court in considering A1's case after trial is over. The trial Court is also directed to consider the materials placed before it during the course of trial both by the prosecution and the defence as regards Al and decide the case in its own way in accordance with law.
36. With the above observations, the petition is allowed. Consequently, no separate order is necessary in Crl.M.P.No. 10727 of 1998.
37. However, it is to be mentioned that the allowing of this petition and quashing of the proceedings as against A2 and A3 would not preclude the first informant, the father of the deceased from approaching proper forum to claim damages from all the doctors (Al to A3) by invoking civil law on the basis of the negligence attributed to these doctors in handling the patient who died at the operation theatre.
38. Before parting with this case, I shall mention one thing. After the instant case was reported in the newspaper, immediately after the registration of the case, there was a fear both in the mind of the public and in the mind of the doctors. The doctors became reluctant to conduct even emergent operations apprehending the criminal prosecution. The people also began to afraid to go to the doctors to undergo operation apprehending the mismanagement by the doctors. Though this fear got subsided in course of time, this Court feels that the fear psychosis developed in the mind of the doctors apprehending the arrest and prosecution, has got to be erased. At the same time, the doctors also should be reminded of their duties, so that the fear of the public for the doctors mishandling could be alleviated.
39. The prime object of the medical profession is to render service to humanity with full respect for the dignity of man. The reward of financial gain is only a subordinate consideration. Who-so-ever chooses this profession, assumes the obligation to conduct himself in accordance with its ideals, viz., "A physician should be an upright man, instructed in the art of healings". Physicians should merit the confidence of patients entrusted to their care, rendering to each a full measure of service and devotion. Physician should try continuously to improve medical knowledge and skill and should make available to their patients and colleagues the benefits of their professional attainments. In his management, the physician should never forget that the health and the lives of those entrusted to his care depend on his skill and attention.
40. A physician is expected to uphold the dignity and honour of his profession. Once having undertaken a case, the physician should not neglect the patient. The doctors declare, while taking their pledge at the time of registration, that they would maintain the utmost respect for human life and practice their profession with conscience and dignity, and that the health of the patients would be their first consideration.
41. The doctors, especially Tamil Nadu Doctors are known for the above qualities. When these qualities are shown in the profession, there is no difficulty in removing the fear of the public in approaching the doctors for entrusting their entire body and life to the hands of the doctors. The people also should not go for prosecution against the doctors in each and every case. Then only the fear in the mind of the doctors in conducting operation, can be erased. Thus, this is purely mutual.