Kerala High Court
Suvarna Rajendran vs State Of Kerala on 5 August, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
MONDAY, THE 18TH DAY OF DECEMBER 2017 / 27TH AGRAHAYANA, 1939
WP(C).No. 3894 of 2017
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PETITIONER(S):
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SUVARNA RAJENDRAN,
AGED:45 YEARS, W/O RAJENDRAN V.K,
'VISAKAM', EDAMALI MURI,
PARAKKARA P.O, THATTAYIL,
PATHANAMTHITTA (DIST).
BY ADVS.SRI.JACOB P.ALEX
SRI.JOSEPH P.ALEX.
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. STATE LEVEL APEX BODY IN RESPECT OF
INVESTIGATION OF COMPLAINTS AGAINST DOCTORS
FOR ACTS OF COMMISSION OR OMISSION IN MEDICAL CARE,
REPRESENTED BY ITS CONVENER,
DIRECTOR OF HEALTH SERVICES,
GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM - 695 001.
3. PATHANAMTHITTA DISTRICT LEVEL EXPERT PANEL IN
RESPECT OF INVESTIGATION OF COMPLAINTS AGAINST
DOCTORS FOR ACTS OF COMMISSION OR OMISSION IN
MEDICAL CARE,REPRESENTED BY ITS CONVENER,
DISTRICT MEDICAL OFFICER,
OFFICE OF DISTRICT MEDICAL OFFICER,
PATHANAMTHITTA-689 711.
4. DEPUTY SUPERINTENDENT OF POLICE,
ADOOR, PATHANAMTHITTA.
5. CHRISTIAN MISSION HOSPITAL,
REPRESENTED BY ITS SUPERINTENDENT,
PANDALAM P.O, PATHANAMTHITTA-689 501.
6. DR.RENI PHILIP,
S/O EASO PHILIP, C.M COTTAGE,
PANDALAM P.O, PATHANAMTHITTA-589 501.
WP(C).No. 3894 of 2017
7. DR. SUMA JOHN,
W/O DR.JOHN VARGHESE,
CHRISTIAN MISSION HOSPITAL,
PANDALAM P.O, PATHANAMTHITTA-689 501.
R1 TO R4 BY GOVT. PLEADER SMT.M.K. PUSHPALATHA.
R5 BY ADVS.SRI.P.CHANDRASEKHAR,
SRI.SOORAJ T.ELENJICKAL.
R6 & R7 BY DR.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE.
ADVS. SRI.P.A.MOHAMMED SHAH,
SRI.K.ARJUN VENUGOPAL,
SMT.MARY RESHMA GEORGE,
SMT.V.A.HARITHA,
SMT.SANDHYA R.NAIR,
SMT.P.M.MAZNA MANSOOR.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 14/11/2017, THE COURT ON 18/12/2017 DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 3894 of 2017 (J)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1 TRUE COPY OF THE FIR IN DATED 05/08/2010 IN
CRIME NO.808/2010 OF PANDALAM POLICE STATION.
EXT.P1(A) TRUE COPY OF THE FIS IN DATED 05/08/2010 IN
CRIME NO.808/2010 OF PANDALAM POLICE STATION.
EXT.P2 TRUE COPY OF THE RELEVANT PAGES OF OP RECORD
(CASUALTY NOTE) OF MEGHA SAID TO HAVE BEEN
MAINTAINED BY THE 5TH RESPONDENT.
EXT.P3 TRUE COPY OF THE POSTMORTEM CERTIFICATE
BEARING NO. PM 1042/10 DATED 06/08/2010.
EXT.P3(A) TRUE COPY OF THE CERTIFICATE OF CHEMICAL
ANALYSIS BEARING NO.4075 DATED 29/10/2010.
EXT.P3(B) TRUE COPY OF THE PATHOLOGICAL REPORT BEARING
NO. PM/35/10 DATED 30/12/2010.
EXT.P4 TRUE COPY OF THE CIRCULAR MEMORANDUM
BEARING NO.73304/SSB3/2007/HOME DATED 16/06/2008.
EXT.P4(A) TRUE COPY OF THE CIRCULAR MEMORANDUM
BEARING NO. 73304/SSB3/2007/HOME DATED 08/08/2008.
EXT.P5 TRUE COPY OF THE REPORT OF THE 3RD RESPONDENT
DATED 18/01/2011.
EXT.P6 TRUE COPY OF THE FINAL REPORT DATED 29/03/2011 IN
CRIME NO. 808/2010 OF PANDALAM POLICE STATION
ALONG WITH CONNECTED REPORTS, MAHASSAR AND
STATEMENT OF WITNESSES SUBMITTED BY THE 4TH
RESPONDENT BEFORE THE JUDICIAL FIRST CLASS
MAGISTRATE COURT, ADOOR.
EXT.P7 TRUE COPY OF THE JUDGMENT DATED 29/02/2012 IN
W.P.(C)NO.5017 OF 2012.
EXT.P8 TRUE COPY OF THE JUDGMENT DATED 10/04/2012 IN
W.P.(C)NO.6921 OF 2012.
EXT.P9 TRUE COPY OF THE LETTER BEARING NO. 759/IDP/16
ASD DATED 13/10/2016.
EXT.P10 TRUE COPY OF THE REPORT OF STATE LEVEL APEX
BODY BEARING FILE NO.EC5-55087/2011/DHS.
RESPONDENT'S EXHIBITS: NIL.
//TRUE COPY//
P.S. TO JUDGE
rs.
SUNIL THOMAS, J.
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W.P.(C).No. 3894 of 2017
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Dated this the 18th day of December, 2017
JUDGMENT
The petitioner herein is the defacto complainant in Ext.P1 Crime No.808/2010 of Pandalam police station for offences punishable under sections 304A read with section 34 IPC.
2. The ten year old daughter of the petitioner herein was admitted in the 5th respondent hospital on 2/8/2010 with complaints of abdominal pain and vomiting. She was seen by CMO in the causality and at 10.20.a.m., she was administered injection. Since the patient showed discomfort, she was admitted as impatient at 1.20.p.m. At 2.20.p.m., on the advise of the doctor who was treating her, injection Bigtum 600 m.g. IV and injection Rantac 0.5 cc IV were administered. At 2.25 p.m., the patient showed generalized discomfort and the duty doctor was called. She was immediately shifted to the critical care unit at 2.30 p.m. Since the condition of the girl W.P.(C) No.3894/2017 2 worsened, she was shifted for expert management, to the Medical Trust Hospital, Ernakulam on 3/8/2010 along with mechanical ventilation. The child continued to be in the critical care, unit, till 5/8/2010. On that day, at 9.50 p.m. she expired. On the same day, at 11.30 a. m, considering the condition of the child, the petitioner laid a complaint to the police alleging that, there was patent criminal negligence on the part 5th respondent hospital and the doctors who had attended her.
3. Autopsy was conducted on the body of the child and Ext.P3 is the report. It showed the presence of a gauze blocking the pharynx and upper part of trachea. On the basis of it, the autopsy doctors concluded that death was due to chocking. The 4th respondent, who is the Dy.S.P. conducted investigation. He called for the views of the experts in accordance with Ext.P4 and P4(a) memorandum, issued by the Government of Kerala. The 3rd respondent, which is the District Level Expert Panel in respect of investigation of complaints against doctors for acts of commission or omission in medical care, gave report as follows:
1. Medical record keeping appeared improper.
2. Tampering could be observed in the case record given W.P.(C) No.3894/2017 3 for perusal.
3. Reasonable care had not been found exercised in administering intravenous drugs given at 2.20 pm on 2/8/2010
4. The source of the gauze in the pharynx and trachea seen during postmortem could not be traced from the case sheet.
5. There was no evidence of injection mark suggestive of a test dose as per the postmortem findings.
6. The attending doctors and nursing staff who had administered the injection are liable in this case.
4. The investigation officer, took note of the above opinion, completed the investigation and filed Ext.P6 final report for offences alleged under section 304A and section 34 IPC against the 6th and 7th respondents along with others, who had attended the patient. The 6th and 7th respondents filed an appeal to the 2nd respondent- State Level Apex Body in respect of investigation of the complaint filed against the doctors for acts of commission or omission in medical treatment. The Apex Body, on a re-evaluation of the available materials and also the inputs that were made available, by Ext.P-10 concluded that the quality of evidence necessary for attributing criminal negligence against the doctors and the nursing staff of the concerned hospital was totally absent in the present case and hence, there was no scope for criminal prosecution.
W.P.(C) No.3894/2017 4
5. The petitioner herein, aggrieved by the above part of the order to the extent of giving a conclusion that there was no material to conclude that doctors are liable for criminal prosecution, has approached this court with the writ petition.
6. It was vehemently contended by the learned counsel for the petitioner that, the second respondent - State Level Apex Body exceeded its authority in arriving at improper conclusions. It was contended that the Apex Body arrived at conclusions touching upon the merits of investigation, which was not expected from the committee. It was also contended that the Committee, by exceeding its jurisdiction and by addressing itself to questions, which it was not expected to answer, exceeded its authority and set at naught the prosecution.
7. Per contra, the learned senior counsel for the contesting respondents 5 & 6 contended that the report of the Apex Body, which was a multi member specialized body, consisting of experts, is not justiciable in a proceeding of this nature. It was contended that, this court cannot go into the factual conclusions arrived at by the Apex Body, which would amount to nullifying the conclusions drawn by the expert body W.P.(C) No.3894/2017 5 based on the medical records. It was contended that there was no scope for judicial review of the opinion given by an expert body. It was contended that the Apex Body was competent to enter into the question of criminal negligence, since the Apex Body included the Director General of Prosecution, which indicated that, it was expected to answer intrinsic legal aspects, directly linked with medical issues also.
8. In the light of the above rival contentions regarding the scope and ambit of the State District Level Expert Panel and the State Level Apex Body, it is essential to consider the scope of those bodies. Ext.P4 memorandum dated 16/6/2008, contemplated the constitution of an expert body to express its views in regard to investigation into complaints against doctors in the private hospitals, for the acts of commission or omission, in the medical care to patients. The District Level Body consist of four members, including the District Medical Officer of Health, District Government Pleader, Senior Government Doctor in the concerned specialty recommended by the DMO and Forensic Expert from the nearest Medical College. There is a provision for appeal to the Apex Body against the views offered by the Apex Body.
W.P.(C) No.3894/2017 6
9. The Committee is expected to submit its "views on the incident", as evident from the above Government memorandum. It also binds the investigating officer to consider the views and to continue the investigation, in the light of the view expressed. It also empowers the investigating officer to seek additional expert opinion, if it was felt required. There is a rider that the Expert Panel/Apex Body shall not in any manner interfere with or impede the smooth investigation of any case by the police.
10. The Supreme Court had occasion to consider the issues arising of indiscriminate registration of criminal cases on medical negligence, as against the doctors and medical practitioners. The Apex Court, considering the intricate and complex medical issues involved therein, felt that an independent and competent medical opinion was mandatory, before the investigating officer proceeds against the doctor, for any alleged rash and negligent act or omission. The Supreme Court in Jacob Mathew v. State of Punjab (2005 KHC 1045), after a lengthy discussion of the various medical, legal and ethical issues involved, concluded that, negligence in the context of medical profession necessarily calls for a W.P.(C) No.3894/2017 7 treatment with a difference. It was held that to infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations have to apply. The Court noticed that a case of occupational negligence was 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. The Court opined that, as 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 had followed. The apex court approved that the test for determining negligence as laid down in Bolam v. Friern Hospital Management Committee (1957 (1) WLR 582, 586) applied to Indian context also. It was held that, 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 W.P.(C) No.3894/2017 8 would have done or failed to do. It was hence held that before proceeding against the doctor accused of rash or negligent act or omission, the investigating officer should 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. The principles laid down in Jacob Mathew's case was affirmed by the supreme Court in Srimannarayana v Dasari Santakumari and Another (2013) 9 Supreme Court Cases 496) and in A.S.V.Narayan Rao v. Ratnamala and another(2013) 10 SCC 741)
11. It appears that, the petitioner herein had approached this Court earlier in relation to the same incident, which was the subject matter of the decision in Suvarna v. Dr.Reni Philip and Others (2014 (1) KHC 112). The Division Bench of this Court had considered the various aspects of the investigation into the cases of medical negligence and the scope and ambit of the Government Memoranda relating to expert bodies, issued from time to time.
W.P.(C) No.3894/2017 9
12. The scope of the Expert Body and Apex Body is clear from the memorandum and the decision of this Court as mentioned above. The expert Body is to give "its views" on the question, which may involve complicated medical issues. The Hon'ble Supreme Court, in Jacob Mathew's case though did not explain in wide terms the scope of the medical opinion to be obtained, but has clearly stated at para 52 that medical opinion should be to give an independent and competent medical opinion applying Bolam's test, to the facts collected in investigation. This was explicitly explained in Suvarna's case (supra) at para 24. It was held that, investigating officer should be equipped with sound knowledge to take proper decision as to whether a Criminal prosecution will lie or not against a doctor, which will be possible with the aid of Expert Panel. These observations, coupled with Ext.P4, suggest that expert panel should suggest its view on the incident and that the panel should not interfere or impede with investigation. It clearly shows that it is not expected to give final word regarding the investigation or whether prosecution will lie or not.
13. The learned counsel for the petitioner contended W.P.(C) No.3894/2017 10 that, the Apex Body rightly rejected the findings in the postmortem report that the death of the child was due to choking. This is evident from the views expressed by the Apex Body which held that choking due to gauze piece as the cause of death was unlikely for the following reasons:
1. An already intubated patient will have a gauze piece only on dislodging on the tube, the child was on continuous ventilation, supported by Blood levels of Oxygen saturation.
2. A choking leading to death would cause a lung collapse which is seen only focally which again does not support this as a reason .
The medical opinion of the Apex Body was that, Microscopic Autopsy findings of scalp hemorrhage, lung, kidney and adrenal hemorrhage spots were consistent with disseminated intra Vascular Coagulation and Septic Shock which could be due to Anaphylaxis.
14. The learned counsel for the petitioner, relying on the medical authorities, contended that, Anaphylaxis is a serious allergic reaction that is rapid in onset and may cause death. It was contended that, the common causes for anaphylaxis include insect bites and sting food and medications. The learned counsel relied on Davidson's Principles and Practice of Medicine (22nd Edition) which refers to Anaphylaxis as a W.P.(C) No.3894/2017 11 potentially life-threatening, systemic allergic reaction, caused by the release of histamine and other vasoactive mediators from mast cells. The risk of death is increased in patients with pre-existing asthma. Learned counsel contended that, the materials available on record show that, the child collapsed immediately after administering the antibiotic.
15. It appears that, the Apex Body after indicating that Anaphylaxis may be the cause for the symptoms found in autopsy proceeded to discuss the legal issues of the case, under a separate heading "Legal Analysis". It refers to the evidence of one Dr.Sreedevi; Professor and Head of the Department of Forensic Science, Govt. Medical College, Alleppy, who was examined before the apex body at the instance of the respondents 6 and 7 herein. She had stated before the Apex Body that, in the instant case, choking might have caused minutes prior to the death and if so, the alleged criminal negligence on the appellant who had admittedly treated the deceased three days prior to death cannot be attributed. She further deposed that, as per the entries in Ext.A-10(Pathology Report), there was only congestion in the brain. The report of the Apex Body does not clearly show W.P.(C) No.3894/2017 12 whether Apex Body accepted the version of Dr. Sreedevi. However, after referring to the statement of Dr.Sreedevi, the Apex Body straight away proceeded to hold that, it is trite law that for negligence to amount to an offence, the element of mens rea must be shown to exist. Apex body opined that, for an act to amount to criminal negligence, the degree of negligence should be much higher. A negligence which is not of such a high degree may provide a ground for action in civil law, but cannot form the basis for criminal prosecution, for which, nature of negligence must be culpable, without which, no conclusion for criminal negligence could be arrived at. The Apex Body concluded that, they were of the considered opinion that quality of evience necessary for attributing criminal negligence against the doctors and nursing staff who had attended the patient were totally absent in the case and hence, there was no scope for criminal prosecution pursuant to the Fir No.808/2010 of Pandalam Police station.
16. It appears from the above narration of the Apex Body that it has virtually accepted the version of Dr.Sreedevi that the choking might have happened minutes before death, which was contrary to its own conclusion, based on her own W.P.(C) No.3894/2017 13 version, that the victim had suffered anaphylaxis. The postmortem report had shown that, there was multi functional failure. The body of the child had also shown several abrasions and contusions, which have not been explained by any of the experts. Available records also show that, there was change in the condition of the child at 2.20 p.m. within five minutes from administering Antibiotic. Records show a Cardio Respiratory Arrest, efforts to resuscitation by C.P. Resuscitation, intubation and immediate shifting into Ventilator. She remained critical, unresponsive and supported by ventilator, was seen by Paediatrician, Cardiologist and Neurologist, and at 12.45 a.m. on 3/8/2010, she was shifted to Medical Trust Hospital, Ernakulam.
17. The above facts directly militates against the conclusion of the apex body. Definitely, the Apex Body seems to have erred in arriving at the above contradictory conclusions. The Apex Body is expected to offer its view on the medical aspects involved. It cannot have a concluded legal analysis, as was done under a separate heading "legal analysis". Ultimately, it went to give a final opinion that the doctors and nursing staff who attended the child cannot be W.P.(C) No.3894/2017 14 attributed with criminal negligence and went on to hold that there was no scope for criminal prosecution pursuant to the FIR No. 808/2010 of Pandalam Police station. This clearly impeded the investigation and set it at naught.
18. It is clear that, though this Court in exercise of its powers under writ jurisdiction cannot go into the intrinsic medical aspects and substitute its own view, however, if conclusions arrived at by the Apex Body are perverse and not based on materials, definitely this Court is entitled to exercise its jurisdiction. The legal analysis and the conclusions drawn by the Apex Body are liable to be eschewed. However, that part of the report forms an inseparable and intrinsic part of the report of the Apex Body. Hence, I feel that the Apex Body needs to have a re-look into the issues involved on the basis of materials on record and to give its view strictly within the contours of the Law laid down by the Supreme Court in Jacob Mathew's case and within the para meters laid down by the Government Memorandum.
19. In the light of the above, I am inclined to direct that the above part of the final opinion as well as the conclusion drawn by the Apex Body in the legal analysis will have no legal W.P.(C) No.3894/2017 15 effect and to direct the Apex Body with same members if available, or as constituted by the competent authority to have re-look into the entire issue thereon and to pass appropriate orders within two months from the date of receipt of this judgment, in accordance with law, on the basis of the materials already available on record. The Apex Body shall intimate both sides regarding the final decision rendered by it.
The writ petition is allowed to the above extent.
Sd/-
SUNIL THOMAS Judge dpk /true copy/ PS to Judge.