Delhi District Court
Mathew vs State Of Punjab & Anr."(2005) 6 Scc 1. It ... on 25 January, 2016
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT
FIR No.318/10
PS Paschim Vihar
ORDER ON PROTEST PETITION
1.By this order, the court shall decide the protest petition moved by the complainant Amit Khanna against the Cancellation report filed by the IO.
2. Briefly stated facts as per the charge-sheet are that Sh. Anand Khanna, father of the complainant, had undergone liposuction surgery on 12.03.2007, which was conducted by the accused Dr. V. S. Malik. An amount of Rs.40,000/- was paid by the complainant for the said surgery. Complainant's father was discharged on the same day with advice for medication etc. The accused also told them to come on 15.03.2009 for removal of the bandage. No instruction was given by the accused regarding any complication. The whole night complainant's father made complaint of pain. On the next day i.e 13.03.2009, he complained of uneasiness and poor urine output. His body temperature had also become low and he was feeling uncomfortable. He told the complainant that he has been cheated by Dr. V. S. Malik as he had never explained to him that any such trouble could be caused to him due to the surgery. He also said that he would never have undergone the procedure, had he been aware of the repercussion of the same. On 15.3.09, the complainant and his father tried to contact Dr. V. S. Malik many times but he did not attend their call. Once he State v. Cancellation U/s 304 A IPC 1/7 FIR No.318/10 PS Paschim Vihar attended their call and told them not to worry and assured that everything would be okay in two days. However the condition of complainant's father was getting very serious and there was no response from the accused. Hence, he was taken to Khetrapal hospital. Doctors checked him and told the complainant that his father was having low blood pressure. He was immediately shifted to ICU and was treated as an emergency case. On 15.03.2009 he was shifted to Apollo Hospital, ICU where he remained till 28.03.2009. On 28.03.2009 he was declared dead.
3. It has been averred that as per the death summary of Anand Khanna, the cause of death was post liposuction wounds, cellulite, multiple organ failure and septic shock. It has been alleged by the complainant that his father has died due to fungal and bacterial infection which has developed after the procedure of liposuction. The complainant lodged a complaint at PS Paschim Vihar but no action was taken. Thereafter, he moved an application under Section 156 (3) Cr.P.C which was allowed by the court on 04.11.2009 and SHO PS Paschim Vihar was directed to register the FIR. The present FIR was registered under Section 304 A IPC and investigation commenced. The matter was referred to Delhi Medical Council for opinion. The Delhi Medical Council has opined, "No medical negligence can be attributed on part of Dr. V. S. Malik. However he should have taken adequate measure at the time of discharge in advising the patient about reporting back in case problem occurred and the State v. Cancellation U/s 304 A IPC 2/7 FIR No.318/10 PS Paschim Vihar same should have been reflected in the discharge papers. Hence, Delhi Medical Council is of the opinion that no medical negligence could be attributed to Dr. V. S. Malik."
4. Thereafter, the matter was also sent for opinion of Medical Council of India. However, the same was denied vide letter of Medical Council of India dated 19.01.2012, on the ground that it was not a competent body for opinion in this case and that the police can approach the appropriate authorities i.e any of Government hospital in that regard. Thereafter, request was sent for constitution of Medical Board to opine about medical negligence.
5. The medical board under the chairmanship of Dr. S. K. Khanna comprising of Dr. Vijay Dhankar and Dr. Akash Jhanjee was constituted for the said purpose. The medical board submitted its report stating that Delhi Medical Council has already examined the matter and given its findings. Any further opinion could be taken from expert from general/plastic surgeon in that case. No specific opinion was given by the medical board.
6. IO has filed the cancellation report in the present case stating that no medical negligence could be found on the part of the accused.
7. Pursuant to the cancellation report, a protest petition was filed by the complainant wherein he has prayed that the cancellation report be rejected and the accused be summoned for facing the trial. It has submitted that police had sent the matter to Delhi Medical Council only to avoid any controversy. The State v. Cancellation U/s 304 A IPC 3/7 FIR No.318/10 PS Paschim Vihar complainant has alleged that Dr. V.S.Malik had not explained to the complainant or his father about the repercussions/reactions/dangers of the procedure nor had he given any instruction for any urgent situation. Also he had not mentioned anything on the discharge paper regarding change of dressing or wearing of corset etc. It has been alleged that the IO has not conducted the investigation in a fair and proper manner.
8. I have heard the submissions made by the Learned counsel for the complainant and perused the record carefully.
9. At this stage, it would be appropriate to discuss the law on medical negligence e, which has been discussed at length by the Hon'ble Supreme Court in "Jacob Mathew vs State of Punjab & Anr."(2005) 6 SCC 1. It was held by the Hon'ble Court, "The essential components of negligence, as recognized are three: "duty", "breach" and "resulting damage", i.e to say:-
1. The existence of a duty to take care, which is owed by the defendant to the complainant;
2. The failure to attain that standard of care, prescribed by law, thereby committing a breach of such duty; and
3. Damage which is both causally connected with such breach and recognized by the law, has been suffered by the complainant."
10. The Hon'ble court observed that, in case of professionals such as lawyers, State v. Cancellation U/s 304 A IPC 4/7 FIR No.318/10 PS Paschim Vihar doctors, architects etc who exercise some special skill, the test to determine negligence 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. The Hon'ble Court referred to the Halsbury's Laws of England(fourth Edition, volume 13, Para-35) wherein it was observed:-
"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."
11. A mere deviation from the normal professional practice or an error of judgment are not necessarily an evidence of negligence. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. No such sensible practitioner commits an act or omission which State v. Cancellation U/s 304 A IPC 5/7 FIR No.318/10 PS Paschim Vihar would result in lose or injury to the patient as the professional reputation of the person is at stake. He would be liable only where his conduct fall below the standard of a reasonable competence practitioner in his field; when he had done something or omitted to do something which in given set of circumstances no medical professional in his ordinary senses and prudence would have done or omitted to do.
12. In its judgment in case titled "John Oni Akerele Vs. King" AIR 1943 PC 72, Privy Counsel had held that -
"1. A doctor is not criminally responsible for a patient's death unless his negligence or incompetence went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the state;
2. That the degree of negligence required is that it should be gross, and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation. There is difference in kind between a negligence which gives a right to compensation and the negligence which is a crime.
3. It is impossible to define culpable or criminal negligence, and it is not possible to make the distinction between actionable negligence and criminal negligence intelligible, accept by means of illustration drawn from actual judicial opinion......The most favourable view of State v. Cancellation U/s 304 A IPC 6/7 FIR No.318/10 PS Paschim Vihar the conduct of an accused medical man has to be taken, for it would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck"
13. In the case at hand, the IO has conducted the investigation in a fair and proper manner. As per the report of the Delhi Medical Council, no negligence was found on part of the accused. From the perusal of the Final report and the documents filed therewith, there is nothing to suggest that the accused had acted in a grossly negligent manner, nor does it appear that the death of complainant's father was a result of the rash and negligent act of the accused.
14. In view of the above discussion and in light of the above stated cases, the Court is of the view that the cancellation report has been filed by the IO after proper investigation from all the angels. Accordingly, same is accepted.
15. However, the protest petition is being treated as a complaint under Section 200 Cr.P.C and the complainant is at liberty to lead evidence on his complaint.
16. Be listed for Complainant's evidence on 05.03.2016.
(SAUMYA CHAUHAN) MM-07 (West) THC, Delhi 25.01.2016 State v. Cancellation U/s 304 A IPC 7/7 FIR No.318/10 PS Paschim Vihar