Himachal Pradesh High Court
Anita Sood & Others vs State Of H.P. & Others on 31 October, 2017
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 51 of 2017.
Reserved on: 23rd October, 2017.
.
Date of Decision: 31st October, 2017.
Anita Sood & others .....Petitioners.
Versus State of H.P. & others ....Respondents.
Coram r
The Hon'ble Mr. Justice Sureshwar Thakur,
Judge.
Whether approved for reporting? Yes.
For the petitioners: Mr. Pratap Singh Goverdhan, Advocate.
For respondent No.1: Mr. Vivek Singh Attri, Addl. A.G. For respondentS No.2 &3: Ms. Ratika Jassel vice to Mr. Anil Kumar, Advocate.
Sureshwar Thakur, Judge.
Through the instant petition cast under the provisions, of, Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Cr.P.C.), the petitioners pray for quashing of orders pronounced on ::: Downloaded on - 10/11/2017 12:51:20 :::HCHP 2 10.08.2016 by the learned trial Court upon Criminal Misc. Application No. 168/4 of 2016, whereby, the learned trial Court refused to accord relief vis-a-vis the .
petitioners, for dropping of proceedings. Furthermore, a prayer is also made in the instant petition, for quashing and setting aside, of the summoning orders, pronounced, by the learned Judicial Magistrate 1 st Class (II), Solan, upon Criminal Case No.502 of 2015.
2. In the report filed under Section 173 of Cr.P.C. by the Investigating Officer concerned, before the learned trial Court, he had made ascriptions of incriminatory role(s) vis-a-vis the accused/petitioners, for theirs committing offences constituted under the provisions of Section 304-A and 336 read with Section 34 of the IPC. Ascriptions of the aforesaid incriminatory role(s) vis-a-vis the accused/petitioners, arose, from occurrence of demise of, one, Asgari at Him Medicare Centre, The Mall Solan, manned by co-
petitioners No.1 and 2. As unfolded by Annexure P-
7/A, the aforesaid Asgari was diagnosed, for Hysterosalpingogram test (for short hereinafter referred as "HSG Test"). It is also borne in Annexure P-
::: Downloaded on - 10/11/2017 12:51:20 :::HCHP 37/A, of, hers being administered injections, named, atropine and buscopan. However, she remained unresponsive to the aforesaid medication(s) purveyed .
to her, rather as reflected by Annexure P-14, she met her end upon, hers being beset with acute haemodynamic pulmonary Odema.
3. The prosecution alleges, of, intravenous administration, by the concerned, of, injections, namely atropine and buscopan, begetting the sequel of Agsari, being entailed with acute haemodynamic pulmonary Odema. For the prosecution, to, succeed in making any espousal before this Court, of, the concerned, in making intravenous administration, of, atropine and buscopan injections vis-a-vis deceased Asgari, theirs being hence penally liable for committing gross negligence, was, enjoined to display (I) qua, upon references being made to revered medical texts and upon an allusion being made to opinion(s) recorded by the expert(s) concerned, of therein an absolute interdiction, occurring, against the accused, intravenously administering the aforesaid injections vis-a-vis deceased Asgari, (ii) nor ::: Downloaded on - 10/11/2017 12:51:20 :::HCHP 4 the aforesaid intravenous administration, constituting the practice acceptable to medical profession. Suffice to extract hereinafter, the relevant paras, of, the .
verdict of the Hon'ble Apex Court pronounced in Jacob Mathew versus State of Punjab and another, reported in (2005)6 SCC 1, especially the apt extracted portion thereof, directly appertaining, to the trite pivotal aspect, of intravenous administration of the aforesaid injections, by the concerned vis-a-vis Asgari, wherein stand propounded, the exculpating tenets, vis-a-vis prosecutorial ascription, of, penally inculpable negligence upon the accused, (iii) more so, when in tandem therewith "both" medical texts "AND"
expert opinion, hence vindicate their intravenous administration by the concerned vis-a-vis Asgari, hence render corroboration thereto. The apt underlined portion of the relevant verdict stands extracted hereinafter:-
"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 ::: Downloaded on - 10/11/2017 12:51:20 :::HCHP 5 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. The classical statement of law in Bolam Case, (1957)2 All ER 118, at page 121 D-F [ set out in para 19 herein] 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. It is not necessary for every professional to possess the highest level of expertise in that branch which he practises. Three 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. Thirdly, when it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience ::: Downloaded on - 10/11/2017 12:51:20 :::HCHP 6 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.
A person who holds himself out ready to give medical .
advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to be given or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. 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. The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.
At least three weighty considerations can be pointed out which any forum trying the issue of medical negligence in any jurisdiction must keep in mind. These are; (I) that legal and disciplinary procedures should be properly founded on firm, moral and scientific grounds; (ii) that patients will be better served if the real causes of harm are properly identified and appropriately acted upon; and (iii) that may incidents involve a contribution from more than one person, and the tendency is to blame the last identifiable element in the chain of causation, the person holding "smoking gun"."
(p.8 & 9) ::: Downloaded on - 10/11/2017 12:51:20 :::HCHP 7
4. The petitioners/accused for deriving benefit of the apt exculpatory extracted portion(s), of, the verdict rendered by the Hon'ble Apex Court, rely upon .
an opinion of the expert borne in Annexure P-6, wherein, it stands underscored, of intravenous administration, of atropine and buscopan injections vis-a-vis deceased Asgari being embodied in the apt medical texts, to constitute a norm for enabling the patient concerned, to, beget alleviation from spasms also reliance is placed upon the relevant hereinafter extracted portion, occurring in Annexure P-8, wherein, the relevant intravenous administration stands prescribed for patient(s) advised to undergo Hysterosalpingogram. The relevant apt portion whereof reads as under:
" HYSTEROSALPINGOGRAPHY The examination outlines the uterine cavity and Fallopian tubes. The indications are:
1. Infertility: to demonstrate normal patency of the Fallopian tubes and their communication with the peritoneal cavity.
2. Recurrent abortion: to demonstrate congenital abnormalities of the uterine cavity or incompetence of the internal os of the uterus.::: Downloaded on - 10/11/2017 12:51:20 :::HCHP 8
3. To monitor the effects of tubal surgery, e.g. occlusion in a sterilization procedure; or to demonstrate patency after a sterilization reversal, or after surgical intervention to restore patency of pathologically obstructed .
tubes.
The procedure of hysterosalpingography was used more extensively in the past and the appearance of a large variety of gynaecological conditions have been described (Foda et al., 1962). Since the indications for the examination are now almost entirely restricted to those given above, only a brief description of other abnormalities which may be encountered incidentally are given. The contraindications to this examination are;
1. Active pelvic sepsis. The examination may result in spread infection.
2. Severe renal or cardiac disease.
3. Sensitivity to contrast media.
4. Recent dilatation and curettage.
5. Pregnancy.
6. The week prior to, and the week folling menstruation.
The examination is best performed at about middle of the menstrual cycle. Patients should be advised to abstain from intercourse, or to use some contraceptive method, in the interval from the last menstrual period up to the examination to avoid the possibility of irradiating an early pregnancy. If the ::: Downloaded on - 10/11/2017 12:51:20 :::HCHP 9 examination is then carried out late in the cycle a diagonostic curettage can usefully follow the salpingogram.
Technique. The injunction of contrast medium is made through a cannula (or a .
small self-retaining catheter). The cannula is placed in the cervix, and two kinds are available. The Leech-Wilkinson pattern has a screw-threaded olive at its distal end which enables a water tight fit to be made easily into the cervix, and this prevents the reflux of contrast medium into vagina. It has some liability to produce cervical laceration. The everard-Williams pattern has a smooth olive near the distal end and the tip of the cannula is bent to allow easy introduction into the cervical canal. This is a satisfactory cannula, but the operator must be careful to maintain a good seal at the cervix and prevent reflux of contrast medium. In addition, contrast medium can be satisfactorily injected using a plastic cap which is held onto the cervix by suction and through which a small tube passes to enter the cervical canal.
The patient is placed in the lithotomy position at the end of the screening table. A speculum is introduced into the vagina and the canula is introduced into the cervix. The speculum is then removed and the patient carefully moved up the table so that she lies in a supine position, and the contrast medium is injected while the ::: Downloaded on - 10/11/2017 12:51:20 :::HCHP 10 radiologist screens the procedure. This allows films to be taken at the most opportune time or to note if any contrast medium is refluxing into the vagina due to a poor seal between the injecting device and .
cervical canal. One or two films may be necessary to show the cervical canal, the body of the uterus, the Fallopian tubes and the spread of contrast medium on to the peritoneum.
Any water-soluble contrast medium otherwise used for intravenous urography is satisfactory in this context.
Complications. Pain. Two types of pain can occur. The first is a hypogastric colic and is probably related to distension of the uterus. The second is more continuous generalized lower abdominal pain, most likely due to peritoneal irritation. Both are transient and are usually of nuisance value only.
Venous Intravasation. The contrast medium is accidentally injected through the endometrium and taken up by the interstitial veins which outline the thickness of the uterine wall and are seen draining through the iliac and ovarian veins. Intravasation is said to occur; a. due to excessive injection pressure; b. due to traumatization of the endometrium by the tip of the cannula; and c. if the examination is performed when the endometrium is ::: Downloaded on - 10/11/2017 12:51:20 :::HCHP 11 deficient as after curettage or menstruation.
Intravasated water- soluble contrast medium is entirely harmless. The main objection is that it obscures the picture. It is .
suggested that should venous intravasation occur, a delayed picture can be taken after a few minutes when the intravasated medium has cleared, in the hope that tubal filling and any spill onto the peritoneum nay then be visible.
Exacerbation of pelvic infection. Care
should be taken not to perform the
examination in the presence of any active inflammatory process. It is considered advisable to give prophylactic antibiotics after a hysterosalpingogram in a patient with chronic pelvic infection.
The Normal hysterosalpingogram.
The normal uterine cavity is approximately triangular, with sides of 3.7 c.m (1.5 in). The cervical canal has a length of about 2.5 cm (1 in) or less. The cornua of the uterus are often seen to have a constriction, possibly a sphincter, at each cornuotubal junction. On the screen the isthmic part of the Fallopian tubes may be difficult to identify, but their broader ampullar and infundibular parts are usually clearly seen. When spill occurs the contrast takes on an amorphous shape around the end of the tube. The medium then smears the pelvic peritoneum, producing a series of ::: Downloaded on - 10/11/2017 12:51:20 :::HCHP 12 curvilinear opacities in the recesses. The pouch of Douglas is often identifiable and the elliptical outlines of the ovaries can sometimes be distinguished. Care should be taken not to confuse residual contrast .
medium lying in the vaginal fornices.
Failure of contrast medium to pass through the tunes to the peritoneum may occasionally be due to cornual or tubal spasm. Inhalation of amyl nitrate has been recommended to relieve the spasm, but its effect is dubious. Gentle injection pressure and patience, giving the spasm time to relax are probably the most important factors in overcoming the tubal spasm. Iv.
Buscopan may also be used"
With categorical echoings, respectively, occurring in Annexure P-6 and in the relevant portion of Annexure P-8, hence, falling absolutely in line and in tandem, with, the trite proposition culled by the Hon'ble Apex Court, in its verdict rendered in Jacob Mathew's case supra, wherein, (i) adherence by the doctor concerned vis-a-vis textually prescribed acceptable medical practices, is propounded, to exculpate his purported incriminatory/inculpable medical negligence, (ii) significantly also with the prosecution ::: Downloaded on - 10/11/2017 12:51:20 :::HCHP 13 for benumbing the aforesaid procedure, hence, failing to adduce textual material of more vigorous worth, nor its placing on record any material personificatory, .
of, there being any misdiagnose(s) at Him Medicare Centre, The Mall Solan of deceased Asgari, by the accused concerned, specifically vis-a-vis hers being enjoined to undergo Hysterosalpingogram test, whereas, an ailment other than hers undergoing HSG test, befalling upon her.
r (iii) hence, renders open a firm conclusion of the accused, prima facie not being penally liable in intravenously administering buscopan AND atropine vis-a-vis the deceased Asgari.
5. Be that as it may, the learned Additional Advocate General has placed on record a text, propagating, adherence by the concerned, of certain precaution(s) in respect of intravenous administration of atropine and of buscopan onto the blood of the patient concerned, the relevant portion whereof stands extracted hereinafter:
"A hysterosalpingogram usually is done by a radiologist in the x-ray room of a hospital or clinic. A radiology technologist and a nurse may help the doctor. A gynecologist or a ::: Downloaded on - 10/11/2017 12:51:20 :::HCHP 14 doctor who specializes in infertility (reproductive endocrinologist) also may help with the test."
.
the prescription(s) held therein are (i) of the HSG test being conducted by a radiologist in the x-ray room of the hospital or clinic, during course whereof a technologist and a nurse may help the doctor. He contends that when in infraction thereof, the test was conducted by one Madan Lal also with the latter intravenously administering atropine and buscopan vis-a-vis Asgari; (ii) thereupon, he proceeds to contend qua hence accused No.1 and 2, not, adhering to the standards of due care and caution, thereupon, theirs along with co-accused No.3, hence, rendering themselves vicariously liable for penally inculpable medical negligence. However, the aforesaid submission wanes, for the reason(s) (a) it not being bed-rocked upon any hard evidentiary strata comprised in ascriptions thereof finding graphic communications, in the previous statement of Smt. Shabana; (b) the Investigating Officer belatedly rather with an inordinate delay of an year elapsing since his ::: Downloaded on - 10/11/2017 12:51:20 :::HCHP 15 recording the previous statement of the complainant, hence recording her supplementary statement under Section 161 of the Cr.P.C., with ascriptions therein, of, .
the aforesaid incriminatory role(s) vis-a-vis the accused and (c) thereupon, it being evident, of, the Investigating Officer, by sheer contrivance, hence, concerting to falsely implicate the accused/petitioners.
6. Fore the foregoing reasons, the instant petition is allowed and the impugned orders are quashed and set aside, especially, when the prosecution of the accused would encumber injustice upon them also would tantamount to gross abuse of process of law. Consequently, Cr.M.A. No. 168/4 of of 2016 is allowed and the proceedings initiated against the accused/petitioners herein in Criminal Case No. 5- 2 of 2015 are dropped. Records be sent back forthwith. All pending applications also stand disposed of.
(Sureshwar Thakur) 31 October, 2017 st Judge.
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