Gujarat High Court
Surendrabhai Ramjibhai Patel & vs State Of Gujarat & 3 on 24 March, 2017
Author: Biren Vaishnav
Bench: Biren Vaishnav
R/SCR.A/3469/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 3469 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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SURENDRABHAI RAMJIBHAI PATEL & 1....Applicant(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MS. YASHODHARA PANDYA, ADVOCATE FOR MR RAJESH K SHAH,
ADVOCATE for the Applicant(s) No. 1 - 2
MR SUDHANSHU S PATEL, ADVOCATE for the Respondent(s) No. 4
MR. HIMANSHU K PATEL, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2 - 3
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 24 /03/2017
CAV JUDGMENT
1 Petitioners of this petition are Doctor and Nurse Page 1 of 16 HC-NIC Page 1 of 16 Created On Tue Aug 15 07:39:39 IST 2017 R/SCR.A/3469/2013 CAV JUDGMENT respectively, who have approached this Court under Section 482 of the Code of Criminal Procedure with the prayer to quash and set aside the FIR bearing No. C.R No. I 119 of 2009 registered with the Songadh Police Station, District: Tapi, at Vyara under Section 304 A read with Section 114 of the Indian Penal Code. Respondent No.4 Rekhaben, daughter of Mohanbhai Shantilal Gamit sister of deceased Sunita registered the aforesaid First Information Report on 01.12.2009. 2 According to the complainant, who is respondent No.4 herein, her sister Sunita was married to one Rupesh Rupsingh Gamit. She conceived from the marriage. On 13.11.2009, according to the complainant, her sister Sunita complained of labour pains, and therefore, her father and Rupesh called for an 108 ambulance. At 4 O'clock in the evening, she along with her parents and one Deepikaben went to the Songadh Government Dispensary for the delivery of the child of Sunitaben. According to the complainant at six in the evening, Sunita delivered a normal baby. It is a case of the complainant that, after the post delivery care she found that it was a case of Intra Uterine Inverse Page 2 of 16 HC-NIC Page 2 of 16 Created On Tue Aug 15 07:39:39 IST 2017 R/SCR.A/3469/2013 CAV JUDGMENT inasmuch as the uterus came out. The complainant's case is that, it was the staff nurse who was responsible for this condition. The complaint further goes to recite that the doctor concerned at the Songadh Government Hospital called for an ambulance and referred Sunitaben to the Government Bardoli Hospital, where Sunitaben was administered intravenous drugs and subsequently shifted to the Civil Hospital at Surat. The complainant further states that the doctors at Surat opined that there were slim chances of her survival. Sunita died soon thereafter. According to the complainant, while the doctor and the nurse had undertaken the delivery procedure of the child, the uterus during the post delivery medical attention came out, which caused severe bleeding, as a result of which Sunita succumbed to that condition. Sunita's sister Rekha therefore lodged a complaint against the doctor and the nurse, the petitioners herein under Section 304A of the IPC and Section 114 of the Indian Penal Code. According to the complainant, Sunita's death occurred due to medical negligence and therefore doctor and nurse were liable and therefore she sought their prosecution under Page 3 of 16 HC-NIC Page 3 of 16 Created On Tue Aug 15 07:39:39 IST 2017 R/SCR.A/3469/2013 CAV JUDGMENT provisions of Section 304A and 114 of the Indian Penal Code as a result of their negligent act that her sister Sunita suffered inversion of uterus and the resultant death therefrom.
3 Ms Yashodhara Pandya, learned advocate for Mr. Rajesh K Shah for the petitioner has vehemently contended that the doctor and the nurse cannot be held responsible for medical negligence for the death of respondent No.4 original complainant's sister. It is the contention of the learned advocate that they were in no manner responsible for the incident of, what is in medical terms known as "Intra Uterine Inversion" as in the history that was recorded on admission of the patient it was found that two midwives Chhagniben and Vestiben, who had in order to facilitate delivery of a normal child had applied "fundal pressure" on the patient's stomach with oil massage. Having failed to induce delivery, the patient was shifted to the hospital under the care of the applicant doctor and the nurse respectively. According to the medical condition then, it was found that the patient had been administered massage with the oil and the head of the Page 4 of 16 HC-NIC Page 4 of 16 Created On Tue Aug 15 07:39:39 IST 2017 R/SCR.A/3469/2013 CAV JUDGMENT unborn child was in the Cervical Canal in the peronium. In short, it was the case of the applicant petitioner before this court, that the doctor and the nurse respectively are in no way responsible for what is in medical terms called Intra Uterine Inversion and it was only because of the untrained midwives who had applied and massaged oil to induce delivery that the consequential "fundal pressure" had caused such a medical condition.
4 Learned advocate Ms. Pandya has taken me through the chargesheet papers which have been annexed to the petition. The statement of doctor Surendra Rambhai Patel the applicant no.1 was recorded on 09.04.2010. According to the doctor, when he was at the dispensary, Sunitaben the patient arrived from village Khanjar complaining of stomach pain. She was accompanied by two midwives. She was immediately taken to the labour room together with the staff nurse and two midwives that had accompanied. On making inquiries, the patient categorically told him that, since she already had undergone labour pains earlier, in order to induce delivery her mother had called two Page 5 of 16 HC-NIC Page 5 of 16 Created On Tue Aug 15 07:39:39 IST 2017 R/SCR.A/3469/2013 CAV JUDGMENT untrained midwives so as to facilitate such delivery. She was subjected to oil massage on her stomach so that a normal delivery can be facilitated. Having failed to do so and the pain having become unbearable, she was brought to the present dispensary. The police also recorded statement of one Ramilaben and one aaya working at the dispensary. She also in her statement so recorded on 09.04.2010, supported the statement of the doctor that Sunitaben was taken to the labour room. Sunitaben informed doctor of the fact that two midwives who were accompanying her had tried to induce normal delivery by massaging her stomach with oil, and having failed to do so and the pain becoming unbearable, she was shifted to the dispensary. The doctor examined her and found that the unborn child's head was in the Cervical Canal (birth canal). Having found that she needed immediate medical attention, she was taken care of. The baby was delivered and then what occurred was in medical terms known as Intra Uterine Inversion, which is a case where the uterus comes out. Having been faced with such medical condition, it has come out from the statement of the doctor, that she was thereafter shifted to a Page 6 of 16 HC-NIC Page 6 of 16 Created On Tue Aug 15 07:39:39 IST 2017 R/SCR.A/3469/2013 CAV JUDGMENT government hospital, which had better facilities as repositioning of uterus was not possible at the local dispensary. Sunitaben died, according to the post mortem report, due to uterine inversion and what is called post partum haemorrhage. The post mortem report at page 136 and the final cause of death at page 137 of the paper book elicit this information. 5 Mr. Sudhanshu Patel , appearing for respondent No.4 original complainant, has also taken me to paper book and drawn my attention to the report of the Department of Forensic and Toxicology and pointed out that the death occurred due to the Intra Uterine Inversion and prima facie such death occurred due to medical negligence of the doctor. This, according to Mr. Sudhanshu Patel, makes it apparent that when such opinion of the department is read with the final cause of death certificate, it leaves no room of doubt to substantiate the complainant's grievance that the death occurred due to medical negligence of the doctor and the nurse respectively. The Court, therefore, should not entertain the petition.
Page 7 of 16 HC-NIC Page 7 of 16 Created On Tue Aug 15 07:39:39 IST 2017 R/SCR.A/3469/2013 CAV JUDGMENT 6 As against that, as pointed out by Ms. Pandya, learned advocate for the petitioner, the fact that the two midwives had applied "fundal pressure", the cause of death of Intra Uterine Inversion as per the statements of the doctor and the aaya respectively were a clear pointer to the fact that there was no negligence on the part of the doctor and the nurse respectively. She has invited my attention to the decision in the case of Jacob Mathew vs. State of Punjab and another reported in (2005) 6 SCC pg 1 to contend that in view of the decision of the Supreme Court in the aforesaid judgement, the doctor and the nurse respectively who are professionals cannot be fastened with "negligence" under the criminal law because the degree of negligence was not high enough or infact there wasn't any negligence on their part so as to foist charges under Sections 304A and 114 of the Indian Penal Code. She has also sought to rely on judgments of the Supreme Court in the case of Martin F D'souza vs. Mohd. Ishfaq reported in (2009) 3 SCC pg 1 and in the case of Kusum Sharma and ors. vs. Batra Hospital and Medical Research Centre and ors. reported in (2010) 3 SCC 483 to contend that there Page 8 of 16 HC-NIC Page 8 of 16 Created On Tue Aug 15 07:39:39 IST 2017 R/SCR.A/3469/2013 CAV JUDGMENT cannot be indiscriminate prosecution of medical professionals for criminal negligence, as has been held by the judgments referred to herein above. She has specifically invited my attention to the decision in the case of Jacob Mathew (supra) wherein the Hon'ble Supreme Court has considered various decisions particularly in the case of Bolam v. Friern Hospital Management Committee. According to her, there could be no negligence attributed to the doctor and the nurse respectively as long as it was found that the procedure that was adopted was one which was acceptable to medical science. According to Ms. Pandya, the Supreme Court in that judgment has also held that, no case is made out by the complainant to show negligence at the hands of the applicant. Attention is drawn to paragraph 48 of the judgment, which according to her makes out a case of quashing of the complaint. It will be in the fitness of things to reproduce the conclusions as laid down in paragraph 48 of Jacob Mathews case, which reads as under:
"48 We sum up our conclusions as under:
(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the Page 9 of 16 HC-NIC Page 9 of 16 Created On Tue Aug 15 07:39:39 IST 2017 R/SCR.A/3469/2013 CAV JUDGMENT 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 the 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 Page 10 of 16 HC-NIC Page 10 of 16 Created On Tue Aug 15 07:39:39 IST 2017 R/SCR.A/3469/2013 CAV JUDGMENT if the equipment was not generally available at that particular time (that is the time of the incident) at which it should have been used.
(3) A professional may be held liable for negligence on one of the two findings:
either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam case, WLR at p. 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 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 Page 11 of 16 HC-NIC Page 11 of 16 Created On Tue Aug 15 07:39:39 IST 2017 R/SCR.A/3469/2013 CAV JUDGMENT negligent act" as occurring in Section 304A 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 imminen.
(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 domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence." 7 According to Mr. Sudhanshu Patel, learned advocate for respondent No.4, in view of the Toxicology Report and the opinion of the doctor, who carried out the post mortem, when once prima facie the investigation attributed negligence to the doctor, guidelines summed up in the case of Jacob Mathew (supra) could not be of any help. The Investigation Report was clearly a pointer that the doctor and the nurse were negligent in attending the patient. Therefore, the cause of death was a direct factor as a result of such negligence on the part of the doctor and therefore the ingredients of Section 304 part A Page 12 of 16 HC-NIC Page 12 of 16 Created On Tue Aug 15 07:39:39 IST 2017 R/SCR.A/3469/2013 CAV JUDGMENT were attracted.
8 This Court in exercise of its power under Section 482 is conscious of the fact that the powers of section 482 have to be sparingly used. In the event, when , prima facie the investigation shows a hint of culpability of the offenders, this court should withdraw its self from exercising power under Section 482 of the Cr.P.C.
9 However, in the facts of the present case, conscious of this limitations this court considers it fit to hold otherwise for the following reasons:
A As is evident from the history recorded by doctor, which is evident from statement dated 09.04.2010, that when the patient was brought to the dispensary, in the condition that she was, the history recorded evidently shows that in order to induce normal delivery, the lady had been subjected to what is in medical terms called "fundal pressure" by massaging her stomach with oil by two untrained mid wives.
B It is also evident from the statement of the Page 13 of 16 HC-NIC Page 13 of 16 Created On Tue Aug 15 07:39:39 IST 2017 R/SCR.A/3469/2013 CAV JUDGMENT doctor and aaya of the dispensary that the head of the unborn child was in the "Cervical Canal" (birth canal).
C Medical research has shown that uterine funal pressure is traditionally applied by "daayas and some health workers" in the belief that it helps to increase expulsive efforts in labour. This is evident from an article of a consultant anaesthetist, which speaks about the age old practice of uterine funal pressure in labour. On reading the paragraph of introduction of that article, discussion and conclusions and corelating them with the statement of doctor and the aaya in the facts of the present case, it can be reasonably believed that, the act of the midwives who induced labour and increased expulsive efforts in labour contributed to the medical condition of the patient.
D Even, in a medical Journal of Perinatology where child birth practices were reviewed, on reading the introduction, it becomes evident that India suffers largest share of maternal death, where it is worthwhile to note the information that they gathered that an important reason for women preferring home Page 14 of 16 HC-NIC Page 14 of 16 Created On Tue Aug 15 07:39:39 IST 2017 R/SCR.A/3469/2013 CAV JUDGMENT deliveries was that the TBA 'touches' the woman or 'uses her hands'. This meant that she uses a massage like action to apply compressive pressure on the woman's abdomen, to help her deliver. By contrast, hospital staff nurses and doctors - were seen as having a 'handsoff' approach they merely exhorted women to 'apply strength' (bear down) while administering 'heat injections' or 'bottles' (intravenous drips). Evidently, therefore, in accordance with the prevalent practice the patient in question, i.e. respondent No. 4's sister received treatment at the hands of untrained midwives so as to expedite the expulsive efforts, which can safely be presumed to have led to the medical condition which occurred post birth.
E Keeping the above parameters in view, and in light of the fact that evidently efforts prior to the patient's admission at the dispensary was made by untrained midwives, corelating them to the medical research negligence on the part of the doctor and the nurse is evidently not possible. Merely because the department of Forensic and Toxicology and the final cause of death certificate attribute post partum Page 15 of 16 HC-NIC Page 15 of 16 Created On Tue Aug 15 07:39:39 IST 2017 R/SCR.A/3469/2013 CAV JUDGMENT haemmorrhage as the cause of death, which occurred due to Intra Uterine Inversion the doctor and the nurse the applicants/petitioners herein in the facts of the case and looking to the law laid down in the Supreme Court as referred herein in the cases of 1) Jacob Mathew vs. State of Punjab and another , 2) Martin F D'souza vs. Mohd. Ishfaq and 3) Kusum Sharma and ors. vs. Batra Hospital and Medical Research Centre and ors., cannot be held to be negligent. Therefore, the petitioners cannot as medical professionals be faced to undergo exposure to the charge of criminal negligence, for which they were not responsible. In the result, the petition succeeds. Thus, the FIR bearing No. C.R No. I 119 of 2009 registered with the Songadh Police Station, District: Tapi, at Vyara for the offences punishable under Section 304A read with Section 114 of the Indian Penal Code, is hereby quashed and set aside. Rule made absolute.
(BIREN VAISHNAV, J.) Bimal Page 16 of 16 HC-NIC Page 16 of 16 Created On Tue Aug 15 07:39:39 IST 2017