Gujarat High Court
Jyotindra P Pandit vs State Of Gujarat on 6 April, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1717 of 2014
With
R/SPECIAL CRIMINAL APPLICATION NO. 1580 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment No
?
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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JYOTINDRA P PANDIT
Versus
STATE OF GUJARAT & 1 other(s)
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SPECIAL CRIMINAL APPLICATION NO. 1717 of 2014
Appearance:
MR J.M. PANCHAL SENIOR ADVOCATE WITH MR BHARGAV
HASURKAR(5640) for the Applicant(s) No. 1
MR IH SYED SENIOR ADVOCATE WITH MR SHAAN M MUNSHAW(10825) for
the Respondent(s) No. 2
MS MAITHILI D MEHTA ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
SPECIAL CRIMINAL APPLICATION NO. 1580 of 2014
Appearance:
MR JAL UNWALA SENIOR ADVOCATE WITH MS TEJAL VASHI for the
Applicant(s) No. 1
MR IH SYED SENIOR ADVOCATE WITH MR SHAAN M MUNSHAW(10825) for
the Respondent(s) No. 2
MS MAITHILI D MEHTA ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
========================================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022
Date : 06/04/2022
ORAL JUDGMENT
1. Heard learned Senior Advocate Mr. J.M. Panchal with learned Advocate Mr. Bhargav Hasurkar on behalf of the petitioner in Special Criminal Application No. 1717 of 2014, learned Senior Advocate Mr. Jal Unwala with learned Advocate Ms. Tejal Vashi on behalf of petitioner in Special Criminal Application No. 1580 of 2014, learned Additional Public Prosecutor Ms. Maithili D. Mehta on behalf of respondent no.1- State and learned Senior Advocate Mr. I.H. Syed for learned Advocate Mr. Shaan Munshaw on behalf of respondent no.2- original complainant in both the petitions.
2. By way of these petitions, the petitioners challenge complaint being Criminal Case No. 133 of 2013 instituted before the Court of Chief Judicial Magistrate, Ahmedabad for offences punishable under Section 338 read with Section 114 of the Indian Penal Code.
3. It appears that after verification of the complainant and after examining the witnesses the learned Magistrate vide order dated 02.04.2014 had been pleased to issue process for offence punishable under Section 338 read with Section 114 of the Indian Penal Code. The said order also being questioned by way of these petitions.
4. Brief facts leading to filing of these petitions being that the complainant had been admitted to a hospital namely Sterling Hospital, Ahmedabad on 14.07.2012 for treatment of injuries in his left hip region, and had been advised operation and whereas the operation had been Page 2 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 conducted by one Dr. Rikin Shah ( Petitioner of Special Criminal Application No. 1580 of 2014) who was a Senior Surgeon assisted by one Dr. Jyotindra Pandit (Petitioner of Special Criminal Application No. 1717 of 2014) who was also called for the surgery. It appears that after the surgery, the petitioner had developed a lurch in his left leg and whereas he also had difficulty in walking and had poor balance. That since the complainant after he had visited the said doctor more particularly Dr.Rikin Shah, for follow up treatment and was not getting desired results, he had taken a second opinion and whereas it appears that in the opinion it was revealed that the operation done by the doctors concerned, was not proper and whereas a second operation was also required. It is in this context that the Criminal Complaint No. 153 of 2013 had been filed before the learned Magistrate.
5. Learned Senior Advocate Mr. J.M. Panchal with learned Advocate Mr. Bhargav Hasurkar on behalf of the petitioner, have taken this Court through the complaint in detail. Learned Senior Advocate Mr. Panchal would draw the attention of this Court to the fact that while the complainant had been admitted to the hospital on 14.07.2012 , after the operation, on 16.07.2012, which had completed without occurrence of any anomaly, the complainant had been discharged on 18.07.2012. Learned Senior Advocate Mr. Panchal would submit that the complaint inter alia states that as the operation and the follow up treatment given to him, at the hospital concerned; was negligent, the same had resulted in certain consequences as having been mentioned in the complaint. Learned Senior Advocate would submit that upon reading of the entire complaint, except for mentioning in great detail about the operation and the follow up part, there is no allegation of negligence as could be made out. At this stage learned Senior Advocate would draw the attention of this Court to the Page 3 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 decision of the Hon'ble Apex Court in case of Jacob Mathew vs. State of Punjab and another- reported in (2005) 6 SCC 1, relying upon which learned Senior Advocate would submit that insofar as prosecuting a doctor for criminal negligence, the Honble Apex Court in the aforesaid decision has set out various guidelines. Learned Senior Advocate would refer to paragraph no. 52 of the said judgement and would submit that the Hon'ble Apex Court has inter alia stated that till Statutory Rules or Executive Rules incorporating guidelines to be framed by the Government of India and/or the State Government, in consultation with the Medical Council of India are not framed, the guidelines laid down by the Hon'ble Apex Court would hold the field. Insofar as relevant to the present petitions, learned Senior Advocate would submit that according to the guidelines of the Hon'ble Apex Court a private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in form of an opinion given by another competent doctor to support the charge of rashness or negligence on part of the accused doctor. Learned Senior Advocate in this context would draw the attention of this Court to opinions which are placed along with the original complaint of one doctor Dr. Kirit M. Shah and Dr. Harshvardhan Hegde, on basis of which opinions the applicants are sought to be prosecuted.
6. Learned Senior Advocate would submit that the opinion of Dr. Kirit Shah, inter alia states the complaints of the complainant i.e. he was having a lurch while walking and that he had pain in his body and he could not walk beyond a few steps without pain. Learned Senior Advocate would emphasize on the opinion where it is observed that there is no implant failure. Learned Senior Advocate would further emphasize on the observation that fracture appears united in X-ray and CT shows partial Page 4 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 union. Learned Senior Advocate would submit that the said opinion of the doctor concerned nowhere mentions that the petitioner was in any manner negligent in conducting the operation or in follow up treatment which is as required as per the law laid down by the Hon'ble Apex Court.
7. Learned Senior Advocate would thereafter draw the attention of this Court to opinion of Dr. Harshvardhan Hegde and submit that the opinion also shows what has happened post the operation and whereas the opinion does not mention that the doctors concerned i.e the accused doctors were negligent or criminally negligent in performing their duty.
8. Learned Senior Advocate thereafter once again draws the attention of this Court to the judgement of the Hon'ble Apex Court in case of Jacob Mathew (supra) more particularly the conclusions of the Hon'ble Apex Court at paragraph no. 48(2) whereby the Hon'ble Apex Court has inter alia observed that negligence in context of medical professional, calls for a different treatment. According to the learned Senior Advocate the Hon'ble Apex Court has held that to infer rashness, other than the normal consideration, additional consideration would apply and that a simple lack of care or an error of judgment or an accident, is not proof of negligence on part of the medical professional. It is submitted that the Hon'ble Apex Court has observed that so long as an established practice, is followed by a doctor he cannot be liable for negligence, merely because a better alternative course or method of treatment was available. Furthermore insofar as the aspect of failure to take precautions has to be considered from the aspect of whether precautions were taken which the ordinary experience of men has found to be sufficient and whereas extraordinary precautions, were not required. Similarly it was also observed that in case negligence arises on Page 5 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 account of allegation that some particular equipment was not used then the said charge would not stand if the said equipment was not generally available at that particular time. Learned Senior Advocate has further emphasized on paragraph no. 48(5) of the said judgement and would submit that insofar as the criminal law, the concept of negligence as observed by the Hon'ble Apex Court is different than in civil law. Learned Senior Advocate would submit that as per the judgement of Hon'ble Apex Court for negligence to amount to an offence, there has to be an element of mens rea or a culpable state of mind which must be shown to exist. Learned Senior Advocate would emphasize on the observations that 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.
9. Learned Senior Advocate would summarize by submitting that as per decision of the Hon'ble Apex Court in case of Jacob Mathew (supra), there are three requirements, which ought to be fulfilled before a medical professional is prosecuted. Learned Senior Advocate would submit that the requirements being (1) existence of an expert opinion (2) existence of criminal negligence and (3) existence of mens rea, all of which according to learned Senior Advocate are completely absent in the instant case.
10. Learned Senior Advocate Mr. Panchal would thereafter rely upon decision of the Hon'ble Apex Court in case of P.B. Desai (Dr.) vs State of Maharashtra and another reported in 2013 (15) SCC 481. Learned Senior Advocate has emphasized on paragraphs no. 44 and 45 of the said decision and submit that Hon'ble Apex Court has observed that the state of mind of the person concerned, i.e whether he had acted in a culpable fashion, would be the relevant test to consider whether mens rea could be alleged or not.
Page 6 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 Observation which has been relied upon by learned Senior Advocate being that "the only state of mind which is deserving of punishment is that which demonstrates an intention to cause harm to others, or where there is a deliberate willingness to subject others to the risk of harm. Negligent conduct does not entail an intention to cause harm, but only involves a deliberate act subjecting another to the risk of harm where the actor is aware of the existence of the risk and, nonetheless, proceeds in the face of the risk. This, however, is the classic definition of recklessness, which is conceptually different from negligence and which is widely accepted as being a basis for criminal liability.". Learned Senior Advocate in this regard would submit that in the instant case, if the allegations made against the petitioner are accepted as a whole then also there is no negligent conduct on part of the petitioners, more particularly with the intention to cause harm to the complainant.
11. Learned Senior Advocate would thereafter rely upon a report of the All India Institute of Medical Sciences (AIIMS) dated 04.10.2016. In this regard it is submitted by learned Senior Advocate Mr. Panchal that the complainant, who had instituted criminal complaint, had also instituted a consumer complaint before the National Consumer Disputes Redressal Commission, New Delhi and whereas it appears that the Commission had sought for an expert opinion, from the AIIMS with regard to the allegations made against the petitioner and whereas a report by panel of 7 doctors according to learned Senior Advocate, has clearly absolved the present petitioners from any wrong doing. Learned Senior Advocate would submit that the panel of 7 doctors had inter alia observed that the mode of fixation is a standard one and it is the most common instrumentation system used in India. Learned Senior Advocate would further emphasize on the Page 7 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 observation that collapse, or delay in healing, is not entirely preventable and whereas it is also observed that disability status of the patients could not be opined on more particularly in view of a second surgery. Learned Senior Advocate would submit that second report, being a more comprehensive report given by a panel of doctors and where it is specifically observed that the mode of fixation used in a standard mode, clearly suggest to the fact that no negligence or rashness attributed to the present petitioners. Learned Senior Advocate would therefore submit that this Court may allow this petition and quash the impugned complaint.
12. Learned Senior Advocate Mr. Jal Unwala appearing for petitioner in Criminal Misc. Application No 1580 of 2015, has adopted the submissions of learned Senior Advocate Mr. J.M. Panchal and would further draw the attention of this Court to Section 338 of the Indian Penal Code.
12.1 Learned Senior Advocate Mr. Unwala would submit that there are no averments in the complaint, whereby it could be stated that the petitioners had either caused grievous hurt to the complainant by doing act in rash and negligent manner or have endangered human life or personal safety of the complainant.
13. Learned Senior Advocate would further rely upon the General Exceptions in the Indian Penal Code and submit that Section 81 of IPC states that nothing is an offence merely because of the reason of the same is done with the knowledge that it is likely to cause harm, whereas the same is done without any criminal intention to cause harm. Learned Senior Advocate Mr. Unwala would further submit that Section 87 of the IPC states with regard to causing death or grievous hurt, where the intention is Page 8 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 not to cause death whereas the doer does not know that death or grievous hurt may be caused on account of such act or not and where before the grievous hurt or death being caused, was with the consent of the person concerned who has taken risk of such harm in question.
14. Learned Senior Advocate would submit that Sections 81 and 87 are exceptions to the normal rule more particularly where the grievous hurt or death was caused either without any criminal intent or the same was caused while doing an act which the doer does not know that death or grievous hurt would be caused more particularly with the consent of the person concerned, then such act would not result in any penal consequences. Learned Senior Advocate would submit that since in the instant case the petitioners i.e the doctors concerned did not have any intention to cause any harm or grievous hurt to the complainant and since the act done by them was without knowledge that the same would result in grievous hurt and since the same was done with the consent of the complainant, the alleged offence, coming under the general exceptions, this Court may interfere and quash the complaint.
15. Learned Senior Advocate would further seek to rely upon decision of the Hon'ble Apex Court in case of P.B. Desai (Dr.) vs State of Maharashtra and another(supra) as relied upon by learned Senior Advocate Mr. Panchal. Learned Senior Advocate relying upon decision of Hon'ble Apex Court in case of P.B. Desai (supra) would submit that when any act in question, is done by the Doctor more particularly when the person himself has consulted the said doctor, a charge for causing grievous hurt under Section 338 of IPC, on account of rash or negligent act would not be attracted. Learned Senior Advocate would therefore submit that while it may be open Page 9 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 for the complainant to take action against the accused doctors for damages etc. under the civil law but prosecution under the criminal law would not be justified. Thus submitting learned Senior Advocate would request that this Court may quash the impugned complaint.
16. This petition is strongly opposed by the learned Additional Public Prosecutor Ms. Maithili D. Mehta on behalf of the respondent no.1- State. Learned APP would submit that a perusal of the complaint would reveal that there has been a prima facie negligence on part of the doctors concerned. Learned APP would submit that perusal of the complaint reveals that on account of the negligent approach of the doctors, the same had resulted in shortening of one of the legs of complainant. Learned APP would further emphasize on specific allegations made in the complaint that complainant, after the surgery had visited the Orthopedic surgeon (petitioner of Special Criminal Application No. 1580 of 2014) on number of occasions and whereas he had voiced his grievance with regard to pain, with regard to lurching gait etc. and whereas the doctor concerned had assured the complainant that fracture was healing well and whereas he did not give proper care or attention to the problem of the complainant. Learned APP would submit that the allegations as made in the complaint, would reveal that the requirement as laid down by the Hon'ble Apex Court in paragraph no. 48 in case of Jacob Mathew (supra) as well as paragraph no. 52 of the very judgement are fulfilled. Learned APP would submit that since serious allegations have been levelled and since there appears prima facie material in support of the allegations in the complaint by the complainant, including opinions of two senior doctors therefore this Court may not interfere with the complaint.
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17. This petition is also vehemently opposed by learned Senior Advocate Mr. I.H. Syed with learned Advocate Mr. Shan Munshaw on behalf of respondent no.2- original complainant. Learned Senior Advocate would submit that the grievance of the complainant as could be made out from the reading of the impugned complaint is that on account of negligence in the surgery, the hip screw, which was fixed, was at a different angle, than the normal recommended protocol, resulting in shortening of leg of the complainant.
17.1 Learned Senior Advocate would further submit that insofar as the opinions of the doctors, as relied upon by the petitioner in the complaint is concerned they fulfill the requirement of the guidelines set out by the Hon'ble Apex Court in case of Jacob Mathew (supra). Learned Senior Advocate would in this regard refer to the opinion of Dr. Kirit Shah which according to learned Senior Advocate would show that the concerned doctor had observed two different X- rays i.e an X ray dated 14.07.2012, which is prior to surgery and an X-ray dated 16.07.2012 i.e. post surgery. Learned Senior Advocate would submit that the first X-ray, as per the doctor concerned, reveals that the right (normal) NSA (Neck Shaft Angle) around 130 degrees whereas a fracture was noticed in the left NSA ( Neck Shaft Angle). Learned Senior Advocate would thereafter refer to the second X- ray and it is observed that Dynamic Hip Screw (DHS) is fixed at varus and whereas hip screw tilting approximately 10 degrees upward relative to neck axis. Learned Senior Advocate would submit that while the terms are absolutely medical terms but what is meant to be stated is that the hip screw, was not implanted at proper place rather it was implanted approximately at the tilt of approximately 10 degree upward.
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18. Learned Senior Advocate would thereafter emphasize on diagnosis of the doctor concerned which reads as thus: "Post operative Coxa Vara, high greater trochanter on left side; resultant left limb shortening by ¾ inch." Learned Senior Advocate would rely upon definition of the term "Coxa Vara" in a website "Wikipedia" which defines the term "Coxa Vara" as being deformity of the hip, where femoral of the neck shaft angle is decreased to show as less than 120 degree. Learned Senior would submit in this regard that if the X- ray which was taken pre- operation on 14.07.2012 and as examined by Dr. Kirit Shah, as per the report would reveal that said left shaft angle (NSA) was around 130 degrees and whereas it would reveal from the diagnosis that post operation, the femur of left shaft angle has decreased less than 120 degrees, which deformity is termed as "coxa vara". Learned Senior Advocate would submit that the report was absolutely clear and the opinion being that on account of error in operation which led the formation of "coxa vara" i.e. there had occurred deformity in the hip of the complainant which had resulted in the left limb shortened by ¾ inch. Learned Senior Advocate would submit that the same had occurred on account of the hip screw which was not inserted at the right place by the doctor concerned and whereas hip screw had been implanted at the tilt of approximately 10 degree upward.
19. Learned Senior Advocate would further rely upon the report of Dr.Harshvardhan Hegde and submit that the said doctor has opined that while the complainant had suffered a fracture, the same had been attempted to be fixed by Dynamic Hip Screw(DHS) and plate and one Cancellous screw. That though regular follow up was done with X-rays which revealed compression and 12 degrees varus at the fracture site, the same has resulted in shortening of the proximal position of the greater trochanter in Page 12 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 comparison to the fellow. Learned Senior Advocate would further emphasize on the diagnosis i.e "in post operative X rays(dated 16.07.2012) show a varus position tilting at the fracture site with the resultant proximal positioning of the greater trochanter." Learned Senior Advocate would submit that again while the terms used are medical terms what is meant to be conveyed is that wrong placement of hip screw had resulted in shortening of leg of the present complainant. Learned Senior Advocate would submit that these two opinions, fulfill the requirement as laid down by the Hon'ble Apex Court at paragraph no. 52 in case of Jacob Mathew (supra) for a private complaint to be maintainable.
20. Learned Senior Advocate would thereafter refer to a decision of the Hon'ble Apex Court in case of Madan Gopal Kakkad vs. Naval Dubey and another reported in (1992) 3 SCC 204, more particularly relying upon the observations at paragraphs no. 34 and 37 of the said judgement and submit that the opinion of the doctor i.e. medical witness is to assist the Court and whereas the opinion by the concerned medical witness is an opinion which is of an advisory character given on basis of the symptoms found on examination. Learned Senior Advocate would further emphasize on the observations that the expert witness while he is required to place all materials which has induced him to come to conclusion and enlighten the Court on the technical aspect of the case and whereas the expert is not empowered to form his own judgement on the material rather the opinion of the expert if it is accepted it become the opinion of the Court and not the medical officer. Learned Senior Advocate has emphasized that the opinion of the doctor is advisory in character and whether the act constitutes negligence or criminal negligence would be a conclusion to be arrived at by competent learned Magistrate conducting the trial whereas according to Page 13 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 learned Senior Advocate the opinion of the doctor are not required to state anything further.
21. Learned Senior Advocate has thereafter relied upon paragraph no. 48(7) of the Hon'ble Apex Court in case of Jacob Mathew (supra). Learned Advocate would submit that in paragraph no. 48(7) the Hon'ble Apex Court has observed with regard to negligence in context of a medical profession and whereas insofar as paragraph no. 48(7) it is observed by the Hon'ble Apex Court that for prosecuting medical professional for negligence under the criminal law, it must be shown that the medical professional 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. That the result of the action taken by the medical professional should be of such nature that the injury which had occurred was most likely imminent on account of the action of the doctor. Learned Senior Advocate would submit in this regard that the doctors had inserted the hip screw at a wrong angle which was not corresponding to the neck shaft angle on the right hip and whereas the doctors would have come to know of the error immediately during the operation and though the doctors could have corrected the angle on basis of the guide pin in the IITV ( Image Intensifier Television) still they had chosen not to do so. Furthermore the doctors inspite of knowing immediately after the operation that there was deviation in the angle or insertion of the hip screw which would lead 'coxa vera', have not taken any action for rectification and therefore it is clear that the doctors who had operated the complainant were prima facie guilty of negligence.
22. Learned Senior Advocate would thereafter draw the attention of this Page 14 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 Court to the report of the AIIMS, as relied upon by the learned Senior Advocate on behalf of the petitioner. Learned Senior Advocate would submit that as such the said report was called for in context of a decision of the Hon'ble Apex Court in case of Martin F. D'souza vs. Mohammad Ishfaq reported in (2009) 3 SCC 1 where at paragraph no. 106, the Hon'ble Apex Court has inter alia laid down that whenever a complaint is received against a doctor or hospital by the Consumer Fora ( District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made, the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. Learned Senior Advocate would submit that the said observations of the Hon'ble Apex Court in case of Martin D'souza (supra), being overruled by a later decision of the Hon'ble Apex Court in case of V.Kishan Rao vs Nikhil Super Speciality Hospital and another reported in (2010) 5 SCC 513, the validity of such report, should be required to be looked into only by the National Consumer Disputes Redressal Forum as and when the matter is taken up. Furthermore learned Senior Advocate would submit that medical records which were examined by the panel of doctors, is not clear. Learned Senior Advocate would further submit that the Medical Board has observed that the mode of fixation is a standard one and whereas the Board has tried to obliquely state that there is some delay and/or collapse with fractures, can not be attributed with other factors like smoking, steroid etc. Learned Senior Advocate would further submit that the opinion by the panel of doctors ought not to be considered as an opinion of all since they have not addressed the primary Page 15 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 issue of whether there was any negligence on part of the doctors conducting the operation which has led to adverse consequences being faced by the complainant. Furthermore the panel of doctors have also not opined on the status of disability in view of the second surgery. Learned Senior Advocate would submit that as such considering that the said opinion was not an opinion at all and whereas neither the Board of doctors are stating that there is any disability nor the doctors are stating that the doctors who had conducted the operation were well within the knowledge to have done whatever they have done. Learned Senior Advocate would submit that in any case, it would be for the learned Trial Court, to decide at the stage of the trial that whether the report of the Doctors, relying upon by the present petitioners, would be valid report or a report by the Board of Doctors. Learned Senior Advocate would submit that as such from bare reading of the complaint and also taking overall consideration of the issues, a prima facie case had been made out and therefore at this stage this Court may not interfere with the impugned complaint.
23. In rejoinder learned Senior Advocate Mr. Panchal on behalf of the petitioners, would draw the attention of this Court to the covering letter by the All India Institute of Medical Sciences (AIIMS) dated 04.10.2016 to the National Consumers Disputes Redressal Commission. Learned Senior Advocate would submit that on perusal of the enclosures with the said communication would reveal that the complaint, medical records had been sent by the National Consumer Disputes Redressal Commission and whereas the said medical records were returned back by the Board. Learned Senior Advocate would submit that the concerned medical records had been examined by the Board before an opinion had been issued and in such circumstances it would not be justified to contend that the report of the Page 16 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 Board, may not be taken into consideration.
24. Learned Senior Advocate would further submit that the primary aspect for consideration is whether the guidelines by the Hon'ble Apex Court in case of Jacob Mathew (supra) are followed or not. Learned Senior Advocate for the petitioner would further emphasize on the aspects as submitted by the learned Senior Advocate in his original submission that is with regard to there being a report of competent doctors, there being criminal negligence and existence of mens rea all of which are not made out upon a reading of the entire complaint. Learned Senior would therefore submit that the impugned complaint may be quashed by this Court.
25. Heard learned Senior Advocates for the respective parties as well as learned APP for the State who have not submitted anything further.
26. Upon analyzing the submissions made by the learned Senior Advocates for the parties, it appears that the complainant -respondent no.2 herein had preferred a criminal case inter alia alleging negligence by the petitioners doctors in treating the complainant that is in conducting operation and in giving post operative care to the complainant. The learned Magistrate after taking verification of the complainant and after examining the witnesses, had issued process under Section 204 of the Code of Criminal Procedure for offences punishable under Sections 338 and 114 of the Indian Penal Code. The complaint as well as the impugned order for issuance of process being challenged by the petitioners before this Court by way of these petitions.
27. The principal contention raised by the learned Senior Advocates for Page 17 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 the petitioners and which has been opposed by the learned Senior Advocate on behalf of the original complainant and learned APP being that the complaint does not fulfill the requirement as set out by the Hon'ble Apex Court in case of Jacob Mathew(supra).
27.1 In this regard it would be relevant to mention that according to learned Senior Advocates on behalf of the petitioners, the complaint should be accompanied by a report of independent doctor more particularly with regard to the rashness and negligence as alleged. According to learned Senior Advocates for the petitioners, such requirement is not fulfilled in the instant case more particularly since the opinion of the doctors submitted in support of the complaint does not in any way suggest negligence by the petitioners.
28. Learned Senior Advocate for the petitioners had further contended that even if rashness or negligence is alleged then also the same would have to be as per the ambit of criminal negligence as explained by the Hon'ble Apex Court.
29. Furthermore it is also contended that in any case as held by the Hon'ble Apex Court, there has to be existence of mens rea i.e a culpable state of mind, for alleging the said offence as required to be made out in the complaint. Independently learned Senior Advocates for the petitioner have also contended that the complaint even it is taken as its face value, along with the documents relied upon by the complainant then also it is not revealed that the petitioners had committed any act of criminal negligence with mens rea.
Page 18 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 30 . Having regard to the submissions made by learned Senior Advocates for the parties, since the decision of the Hon'ble Apex Court in case of Jacob Mathew(supra) more particularly the observations made therein, being relied upon by both the sides, therefore relevant paragraphs of the said judgment being paragraph no. 48 and paragraphs no. 50, 51 and 52 are reproduced herienbelow for benefit:
"48.
(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 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 Page 19 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India. (5) The jurisprudential concept of negligence differs in civil and criminal law.
What may be negligence 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.
50 As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the Page 20 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.
51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
52. 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." 30.1 The Hon'ble Apex Court at paragraph no. 48(1) inter alia refers to the definition of negligence being a breach of duty caused by omission to do something which a reasonable man would ordinarily do or would not do. The Hon'ble Apex Court has further observed that negligence becomes actionable on account of any injury sustained as a result of an act or omission to do an act by the person alleged to be negligent. Three essential Page 21 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 components of negligence have also been stated being 'duty', 'breach' and 'resulting damage'.
In paragraph 48(2) Hon'ble Apex Court has thereafter examined negligence in context of medical profession and whereas according to the Hon'ble Apex Court negligence in the said context has to be treated differently where additional considerations shall apply. According to Hon'ble Apex Court an error of judgement or a simple lack of care or an accident may not be proof of medical negligence if the doctor concerned follows a practice acceptable to medical profession as it existed at that time. It is also observed that merely because a better alternative was available or if a more skilled doctor may not have resorted to the practice adopted by the doctor concerned, would not be a ground to allege negligence against the doctor.
In paragraph no. 48(3) the Hon'ble Apex Court has laid down the requirement for holding a professional liable for negligence i.e. he did not have the requisite skills which he claimed to have or the professional did not exercise with reasonable competence, the skill he posses.
At paragraph no. 48(4) the Hon'ble Apex Court has observed that the test for determining the term medical negligence as laid down in Bolam case holds good in its applicability in the country. According to the Bolam case, the requirement being that when the aspect of skill or competence is to be examined then the same has to be appreciated in context of an ordinary skilled person exercising and professing to have that skill and it is not required that the person possesses the highest level of skill.
At paragraph no. 48(5) the Hon'ble Apex Court has inter alia stated the jurisprudential difference between negligence in civil and criminal law. According to the Hon'ble Apex Court what may be negligence in civil law may not necessarily be the negligence in criminal law. The Hon'ble Apex Page 22 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 Court has observed that for negligence to amount to an offence, there must be existence of mens rea. Furthermore the degree of negligence or negligence to amount to an offence should be much higher and whereas negligence which is neither gross nor of a higher degree cannot form any basis for prosecution.
At paragraph no. 48(7), the Hon'ble Apex Court observes that for prosecution to be maintainable against a medical professional for negligence under criminal law it must be shown that the medical professional did something or failed to do something which in the given facts and circumstances no medical professional of ordinary prudence would have done or failed to do. That the action of the medical professional should be of such nature that the injury which resulted was most likely and imminent.
31. The Hon'ble Apex Court after laying down the conclusions has set out guidelines for prosecuting medical professionals from paragraphs no. 50 to paragraph no. 52, Observations of the Hon'ble Apex Court at paragraph no. 52, relevant for the present purpose being that while Statutory Rules or Executive Instructions incorporating guidelines for prosecution of Doctors for offences of which rashness or criminal negligence is an ingredient such Rules/Executive instructions would be framed by the Government of India or the State Government as the case may be in consultation with the Medical Council of India and until the same is done, the guidelines issued by the Hon'ble Apex Court would hold the field. It is observed by the Hon'ble Apex Court that insofar as a private complaint against a Doctor is concerned, the same may not be entertained unless the complainant has produced prima facie evidence before the Court in form of credible opinion given by the another competent Doctor, to support the charge of rashness Page 23 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 or negligence on part of the Doctor against whom the allegations have been made.
31.1. It would be relevant to mention here that the State Government had been called upon, to submit Statutory Rules or Executive Instructions framed by them, as per the direction of the Hon'ble Apex Court in case of Jacob Mathew (supra) and whereas while there appears to be existence of some instructions, it does not appear that the same provide a comprehensive mechanism, as required in terms of decision of the Hon'ble Apex Court in case of Jacob Mathew(supra). One of the instructions being referred to appears to be in context of decision of the Hon'ble Apex Court in case of Lalita Kumari vs. Government of Uttar Pradesh and others reported in (2014) 2 SCC 1 and whereas the second instructions appearing to be an instruction by a Superintendent of Police which also inter alia mentions that as Statutory Rules or Executive Instructions as required to be framed in accordance with the dictum of Jacob Mathew(supra), does not appear to be framed and therefore the said instructions were issued. Thus it appears that there was no Statutory Rules or Executive Instructions framed by the State.
32. Having regard to the same it appears that in absence of any Statutory Rules or Executive Instruction by the Central or the State Government as the case may be, the guidelines issued by the Hon'ble Apex Court in case of Jacob Mathew (supra) would hold the field.
32.1 Considering the submissions made by learned Senior Advocates from the touchstone of the law laid down by the Hon'ble Apex Court in case of Jacob Mathew (supra) as above, it appears that the primary requirement of the complaint being required to be accompanied by opinion of competent Page 24 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 doctor supporting the allegation of rashness and negligence is fulfilled in the instant case.
32.2 As noted hereinabove the complainant had annexed copies of opinions of two doctors in support of his contention and the said doctors had been examined by learned Magistrate before issuance of process. While it is contention on behalf of the complainant that the opinion given by the doctors concerned are credible opinion and whereas according to learned Senior Advocate for respondent no.2 the said opinion supports the charge of rash and negligence on part of the petitioners.
33. On the other hand what is submitted by learned Senior Advocate on behalf of the petitioners being that the opinion does not in any manner point out to any rashness or negligence on part of the petitioners and hence the opinions do not lend any credence to the complaint and whereas since the complaint is based upon the said opinion, the complaint also deserves to be interfered with.
34. Before examining the opinions given by the doctors as relied in the complaint and furthermore before examining the complaint itself, it would be beneficial to first appreciate what would be the scope of the term "negligence" as applicable to medical profession as held by the Hon'ble Apex Court in case of Jacob Mathew(supra).
34.1 According to the Hon'ble Apex Court negligence is a breach of duty, caused by an act of commission or omission of something which should be done or not done by a reasonable man. For negligence to be actionable there has to be presence of three ingredients i.e. 'duty' , 'breach and resulting Page 25 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 damage. The Hon'ble Apex Court has further held that insofar as a medical professional is concerned, lack of care, error of judgement or accident, is not proof of negligence rather the doctor if he has followed an acceptable practice as applicable in the medical profession on that day, the doctor cannot be held liable merely because there was an alternative method available or more skilled doctor would not have resorted to the method of treatment as adopted by the Doctor concerned. Insofar as skills are concerned, the same has to be judged from the yardstick of an ordinary prudent person/professional and not a highly skilled professional. If negligence is to be alleged under the criminal law then mens rea should be stated to exist and furthermore the degree of negligence should be of a very high nature. Most importantly it is observed that as far as for prosecuting a medical professional, it must be shown that the medical professional did something or failed to do something, which under no circumstances a medical professional in his ordinary senses would do or avoid to do. It is also required to be considered that the action on part of the medical professional should be such that the injury caused was the most likely consequence.
35. In the instant case, the complainant in his complaint alleges that the petitioners doctors had operated the complainant and had fixed implant and on account of the doctors' not following the recommended protocol of positioning the hip screw, the same had resulted in the complainant having difficulty in walking and whereas while walking without a stick his left leg had poor balance and that he could neither walk more than a few steps that too with a mark limp and lurching gait, whereas he could not also climb stairs with his left leg. In support of his allegations in the complaint the complainant has relied upon opinion of one Doctor Kirit M. Shah who is Page 26 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 an Orthopedic Surgeon ( M.S. Orthopedic) and one Dr.Harshvadha Hegde who is Director, Orthopedics, Spine Surgery and Joint Replacement at Fortis Hospital, New Delhi. Dr. Kirit Shah in his opinion dated 06.02.2013 notes the history of the complainant of having a fracture on 13.07.2012 and having an operation done on 14.07.2012. The said doctor also notes the complaints of the complainant. The said doctor in his observations has perused the X-ray taken at pre-operation stage on 14.07.2012 which shows the right (normal) NSA i.e left shaft angle around 130 degree and a fracture on the left basi-cervical. The Doctor also observes the X-ray done at the post operative stage on 16.07.2012 and observes DHS fixed in varus. It also mentions that hip screw was tilting approximately 10 degree upwards relative to neck axis giving left NSA of approximately 120 degrees. The said doctor has also observed the post operative X-ray of 23.08.2012, 12.10.2012 and 23.01.2013 wherein he notes that the DHS is in-situ undistorted and in the CT scan he notes that DHS is as before and there is a varus of approximately 15 degrees. The doctor notes that there is no implant failure and whereas the fracture appears to be united in X-ray whereas in CT it is seen as partial union. Most importantly in his diagnosis the doctor states that there is post operative coxa vera and high greater trochanter on left side resulting in left limb shortening by ¾ inch. The doctor also recommends treatment being surgical correction of left coxa vera and level correction of greater trochanter for full mobility of abductor muscles and normal level arm attainment and achieving correct limb length.
36. Having regard to the opinion given by Dr. Kirit Shah it would be required to be mentioned that the operation which was carried out was for fixation of a Dynamic Hip Screw (DHS) and one Cancellous screw i.e DHS + CC screw as mentioned in the history. The Doctor has seen the pre Page 27 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 operative X-ray and notes that the neck shaft angle of the right side was at 130 degrees, which is stated to be the normal position and based upon such angle and corresponding to the same the hip screw had to be inserted in the left side and whereas upon observing subsequent X -ray the said doctor notes that the DHS is fixed in varus. At this stage it would be relevant to mention that the Merriam-Webster dictionary defines the term 'varus' as "of, relating to, or being a deformity in which an anatomical part is turned inward towards the midline of the body to an abnormal degree."
36.1. The doctor also notes that the hip screw was tilting approximately 10 degrees giving the left shaft angle a positioning of approximately 120 degrees. Most importantly while noting that neither there is any implant failure nor there is absolutely lack of union of the fracture, the doctor notes that there is post operative coxa vara. As observed hereinabove the term 'coxa vera' is described as a deformity of the hip where the femoral of the neck shaft angle is decreased usually defined as less than 120 degrees. Thus read in the context of the terms mentioned, it clearly appears that the said Dr. Kirit Shah has opined that the hip screw was fixed incorrectly at a tilting angle of approximately 10 degrees and whereas he has also noted that there is post operative coxa vara i.e. deformity of the hip where the left shaft angle is decreased as less than 120 degrees. According to the said doctor the same has resulted in shortening of the limb by ¾ th inch. The treatment suggested was surgical correction of coxa vara more particularly for attaining correct limb length.
36.2 Insofar as report of Doctor Harshvardhan Hegde is concerned, the said doctor also refers to the history of operation and has noted that the X- rays reveal 12 degrees varus i.e. 12 degree deformity at the fracture site Page 28 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 where the part is turned inward towards the midline of the body. According to doctor this has contributed to shortening and proximate positioning of greater trochanter in comparison to the fellow. The opinion of the said doctor while not being as elaborate as the opinion of the earlier doctor, also inter alia reveals that the operation had resulted in 12 degree varus.
36.3 Apart from the opinions of the doctors concerned it would also be beneficial to refer to the complaint, where the complainant has inter alia alleged that after the operation, the operating doctors had opined that everything is normal, yet on account of the physical difficulties faced by the complainant, he had visited the doctors for follow up treatment and whereas at every time he was told that everything was well. That the complainant having decided to get a second opinion since things were not getting better he had got an X ray done which shows that fixing of the plate and screws was at the lesser angle than the normal positioning . Upon his request he had been given copy of IITV ( Image Intensifier Television) given to the patient at the time of discharge and whereas the said DVD also showed that the left leg of the complainant had shortened by one centimeter. Then upon taking second opinion it was revealed that the hip screw had been implanted at an upward angle of 12 degrees, and whereas the neck shaft angle (NSA)of the left leg of the complainant was fixed at an angle of 118 degrees giving him a deformity called Coxa Vara. That the deformity was seen from day one in the IITV (Imagine Intensified Television) and whereas according to the complainant the surgeons could have corrected the alignment of the hip screw after seeing the guide pin under the IITV but did not do so. That no follow up treatment was also carried out by the doctors. That even the consulting Radiologist also saw the defects of X ray images but did not choose to report the same and all these had resulted in the complainant Page 29 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 requiring a corrective surgery. The complainant has inter alia alleged that the surgeons knowingly fixed the NSA in a serious varus and did not apply proper traction to position the greater trochanter correctly. That the surgeons know the results would make the complainant disabled and unfit for his service yet they misguided him. The Radiologist colluded with the surgeons by not reporting a defect and the treating facility being Sterling Hospital is also liable for acts of commission and omission on part of the doctors.
37. As regards the opinion given by the Doctors which is relied upon by the complainant in his complaint that having perused the complaint, in the considered opinion of this Court, the requirements as laid down by the Hon'ble Apex Court in case of Jacob Mathew (supra) are prima facie fulfilled. The primary requirement for filing of a private complaint against the medical professional being that the complainant should produce prima facie evidence in form of credible opinion given by another competent doctor to support the charge of rashness or negligence on part of the doctor. The opinion, relied upon by the complainant being of competent doctors and whereas the competence part, is not questioned even by the learned Senior Advocates appearing on behalf of the petitioners. As analyzed above, the doctors more particularly Dr. Kirit Shah in his opinion has clearly mentioned that the DHS i.e Dynamic Hip Screw and plate and Cancellous screw implant was done at 10 degrees tilting angle resulting in coxa vara which has been defined as a deformity, whereby the angle between the head and the shaft of the femoral is reduced towards the 120 degrees. The Doctors have also opined that while the fracture was healing and while there was no implant failure, yet the said deformity had occurred. It would be important to note here that the said deformity was noted by Doctor Kirit Page 30 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 Shah upon observation of the first X-ray i.e the first X- ray done after operation on 16.07.2012. To a lesser degree, the opinion of Dr. Kirit Shah has been reiterated by Dr. Harshvardhan Hegde. Thus the opinion giving doctors have clearly opined that a deformity has occurred on the basis of the negligent act on part of the petitioners doctors and whereas while the term rashness or negligence, has not been specifically mentioned by either Dr. Shah or Dr, Harshvardhan Hegde as the case may be but in the considered opinion of this Court, at that stage, i.e at the stage of filing of the private complaint, the same is not required even as per the guidelines set out by the Hon'ble Apex Court. The Hon'ble Apex Court has required that the complainant should produce "prima facie evidence", in form of "credible opinion" by another competent doctor to support the charge of rashness or negligence. Thus the requirement is not that the opinion should be clearly stating about there being a rash or negligent act on part of the accused doctors rather the requirement as set out by the Hon'ble Apex Court being that there should be prima facie material in form of credible opinion which would support "the allegation of the charge of rashness or negligence." In the considered opinion of this Court, more particularly perusing the opinion of Dr. Shah and Dr. Hegde as noted by this Court, hereinabove there is prima facie material in the opinion to support the charge of rashness and negligence.
38. Insofar as the aspect of negligence, in the context of medical professional as laid down by the Hon'ble Apex Court it requires to be mentioned that according to the Hon'ble Apex Court for negligence to become actionable, there has to be three essential components i.e. (1) duty (2) breach and (3) resulting damage. According to the Hon'ble Apex Court, while a simple lack of care or error or judgement or accident is not proof Page 31 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 of negligence whereas the doctor concerned should follow a practice which should be acceptable to the medical professional on that day. Furthermore the requirement being that the Doctor should exercise with reasonable competence the skill which he did possess and whereas the accused doctor is shown to have done 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.
39. It is also observed by the Hon'ble Apex Court that action taken by the accused doctor should be of such a nature that the injury which has resulted was most likely consequence. The Hon'ble Apex Court has also observed that negligence to amount to an offence should contain element of mens rea and whereas negligence should be of a very higher degree.
39.1 Considering the facts situation from the touchstone of the principles laid down by the Ho'nble Apex Court, it appears that petitioner doctors who had operated the present complainant more particularly to implant a Dynamic Hip Screw(DHS) and plate and one Cancellous screw were required to implant the same at a particular angle. It also appears that the doctors could have corrected the alignment with the help of the guide pin in the IITV at the time of operation but they did not do so. The X ray which is taken on the very next day after the operation shows that the doctors did not implant/ fix DHS at correct angle and whereas the DHS had been fixed/implanted at 10 degree upward angle.
40. The petitioners doctors did not insert the implant at the required angle and as observed by the opining doctor more particularly Dr. Kirit Shah who in his opinion clearly states that the X -ray on 16.07.2012 i.e. the Page 32 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 day after the operation shows that the DHS was fixed in varus. Such erroneous fixing of DHS has resulted in a deformity called coxa vara and resultantly the complainant's left leg had been shortened and he had to suffer physical difficulties requiring him to undergo a second corrective surgery. Thus prima facic the essential components of negligence being duty of fixing of the implant at the correct position, had been breached and the same had resulted in damage to the complainant.
40.1 The essential components of negligence being fulfilled it is also required to be mentioned that as far as the professional or a medical professional to be held liable for negligence, it has to be shown that he did not exercise with reasonable competence in the given case the skill which he did possess. In the instant case both the petitioners doctors stated to be Senior Surgeons are deemed to have requisite skill and whereas the doctors did not fix the implant at the correct position/alignment meaning thereby that the doctors did not exercise the skill which they did possess. That fixation of implant at a wrong angle was an act which no medical professional in his ordinary prudence would have done more particularly since such fixation of implant at a wrong angle, would result in a deformity being a reasonable consequence, which the doctors ought to have foreseen. That the action of the doctors in fixing the implant at a wrong angle, has resulted in a deformity namely coxa vara being formed resulting in great difficulties faced by the complainant. It prima facie appears to this Court that the term 'coxa vara' as defined by the Oxford Reference means a deformity of the hip joint whereby the angle between the neck and the shaft of the femur is less than normal. Thus it clearly appears that improper fixing of implant had resulted in a deformity. The act of improper fixation of a implant by the petitioners doctors, resulting in deformity of coxa vara Page 33 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 was the immediate and natural consequence of the negligent act. Viewed from the touchstone of observations of the Hon'ble Apex Court as above, it is clear that there is a prima case of criminal negligence by the petitioners doctors.
41. Furthermore insofar as existence of mens rea or negligence required to be of a higher degree for alleging criminal negligence in the considered opinion of this Court the fact that at the stage of operation itself, the fixing of implant was at a wrong angle, could not have been a fact which could be missed by the petitioners who are stated to be Senior Orthopedic Surgeons. The said fact being clear from the post operative X-ray itself, the doctors while operating more particularly relying upon the IITV images, as alleged in the complaint could have corrected the alignment of the hip screw after seeing the guide pin in the IITV but did not do so. Furthermore even at post operative stage instead of taking measures to rectify the erroneous fixation, the doctors appeared to have misguided the complainant by informing him that all was well. That inspite of the complainant facing physical difficulties in the form of not being able to walk more than a few steps his having a lurching gait and having limp when walking without stick etc. could have been deduced by the doctors as being a result of the improper fixation of the implant and whereas instead of trying to take corrective measures the doctors kept on misleading the complainant. It is only after the complainant took a second opinion that the deformity was revealed requiring him to have a corrective surgery done. Thus in the considered opinion of this Court the acts on part of the doctors reveal a culpable state of mind and whereas the negligence and recklessness being very clear and palpable in view of the overwhelming material showing the error committed by them, clearly points out to the fact that the negligence Page 34 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 and recklessness is of a higher degree and which could come under the ambit of criminal negligence. Thus in the prima facie opinion of this Court, the ingredients as mentioned by the Hon'ble Apex Court in case of Jacob Mathew (supra) are clearly fulfilled.
42. In so far as the submissions by learned Senior Advocates appearing on behalf of the petitioners that complaint does not say a word about 'mens rea' or 'culpable state of mind', this Court is unable to agree to such contention. A plain reading of the complaint more particularly the allegations at paragraphs no. (1), (2), (3) and (4) of the complaint clearly state that the surgeons knowingly fixed the NSA in varus. That the doctors at the time of operation itself would have known about the wrong alignment and whereas the same would have been rectified immediately more particularly since the doctors could have used the aid of the guide pin in the IITV, which they chose not to do. That the surgeons knew that the result would make the complainant disabled and unfit yet they misled him during post operative consultation etc. all, in the considered opinion of this Court are enough prima facie material to allege culpable state of mind. In addition thereto in the considered opinion of this Court by now it is a well settled position of law that a complaint is not required to be an encyclopedia and it is not required to state all the facts and all the allegations. Raising - prima facie facts and allegations showing commission of offence are the necessary requirements, which appear to be fulfilled in the instant case.
43. Insofar as the reliance placed by the petitioner doctors upon the report of the panel of doctors of All India Institute of Medial Sciences (AIIMS), it would be pertinent to state that as such since there are Page 35 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 conflicting opinions, since the opinions produced by the complainant of competent doctors reflect negligence and recklessness and whereas the report by the doctors of the AIIMS, not stating the same, it would be for the learned Trial Court who at the stage of evaluating the evidence would come to a conclusion as regards the evidentiary value of the certificate of the panel of doctors of the AIIMS as compared to the opinion given by doctors as relied upon by the complainant. Furthermore it would also be relevant to mention that the opinion of panel of doctors of AIIMS, does not appear to have touched upon the aspect of improper fixation of the implant more particularly the aspect of implant fixed at a tilting angle resulting in coxa vara. Rather it appears that the panel has observed that the mode of fixation used is a standard one and is the most common instrumentation system used in India. Furthermore the doctors have opined as regards the results for delay in healing and/or affect in collapse in fracture of this kind. Thus it prima facie appears that the opinion of the panel of Doctors of AIIMS, did not co-relate to the grievance raised by the original complainant.
44. Furthermore in the considered opinion of this Court though this Court does not have benefit of the order of the learned NCDRC whereby the opinion had been called for but it clearly appears from the opinion given by the panel of doctors that the opinion was clearly not on the point in issue. The fact of the mode of fixation being a standard mode most commonly used in the country, was never in question. It had never been the case of the complainant, that a wrong implant had been fixed. Rather the case of the complainant was that the implant had been fixed at a wrong position which issue has not been considered or answered by the panel of doctors of the AIIMS. Furthermore it also appears that there was no aspect Page 36 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 with regard to delay in healing of the fracture rather the aspect was varus and coxa vara and thus it appears that the opinion by the doctors of the panel of AIIMS was not on the point. At this stage it would be relevant to reflect upon one of the conclusions that is "once healed, further increase in shortening is unlikely." This being one of the conclusion it clearly appears that the panel was conscious about the fact that the operation had resulted in shortening of the leg of the complainant and while they have not opined on the cause of the shortening the opinion is given on further shortening not likely to take place. Prima facie therefore in the considered opinion of this Court the opinion of the panel doctors of AIIMS, does not further the cause of the petitioners in any manner whatsoever .
45. Insofar as the General Exceptions under the IPC, relied upon by the learned Senior Advocate for the petitioners, more particularly Sections 81 and 87, in the considered opinion of this Court, the impugned complaint would not be covered under either of the exceptions. Insofar as Section 81 of the Indian Penal Code is concerned, the same states regarding an act likely to cause harm but without criminal intent and to prevent other harm. In the instant case, the later requirement of preventing other harm is not made out, and thus the said exception would not not be applicable. Furthermore insofar as Section 87 is concerned, the said Section states regarding an act not intended and not known to be likely to cause death or grievous hurt done by consent. In the instant In the instant case , while the complainant had undoubtedly given his consent but the same was for an operation, where the doctors would exercise the requisite skill and knowledge possessed by them. While the exception may have been applicable if there was an implant failure but certainly the exception would not take into its ambit an act whereby the doctors exercising reasonable Page 37 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022 R/SCR.A/1717/2014 JUDGMENT DATED: 06/04/2022 caution and skill would have known that the insertion of the hip screw was at a wrong angle and the same would result in physical deformities to be caused to the complainant. That the scope of consent for operation could not be and ought not to be permitted to be enlarged so as to cover even negligent and reckless acts on part of the petitioners. Having regard to the same, the submission of learned Senior Advocate relying upon the exception cannot be countenanced and is hence rejected.
46. Having regard to the discussion, reasoning and conclusions as above, in the considered opinion of this Court, no case for interference being made out, the petition stands rejected.
47. The interim relief granted by this Court of staying further proceedings of Criminal Complaint No. 2779 of 2014 and stay of implementation and operation of process issued vide order dated 02.04.2014 below Exh. 1 in Criminal Inquiry Case No. 153 of 2013 arising from the Criminal complaint no. 2779 of 2014, is extended for further period of eight weeks from the date the judgement/order is uploaded on the web portal of the Gujarat High Court.
(NIKHIL S. KARIEL,J) NIRU Page 38 of 38 Downloaded on : Sat Dec 24 14:21:27 IST 2022