Karnataka High Court
Dr. Surekha W/O. Shadaksharappa ... vs The State on 30 January, 2024
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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NC: 2024:KHC-D:2131
WP No. 101341 of 2021
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 30TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE N.S.SANJAY GOWDA
WRIT PETITION NO. 101341 OF 2021 (GM-RES)
BETWEEN:
1. DR. SUREKHA W/O. SHADAKSHARAPPA HANDRAL,
AGE. 50 YEARS, OCC. MEDICAL PRACTITIONER,
HANDRAL NURSING HOME,RAJENDRA NAGAR,
HAVERI-581110, TQ/ DIST. HAVERI.
2. SMT. SHRIDEVI W/O. SURESH,
AGE. 31 YEARS, OCC. STAFF NURSE,
HANDRAL NURSING HOME, RAJENDRA NAGAR,
HAVERI-581110, TQ./DIST. HAVERI.
... PETITIONERS
(BY SMT. POONAM PATIL, ADVOCATE)
AND:
1. THE STATE, BY HAVERI TOWN POLICE STATION,
NOW R/BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD-580008.
2. SHASHIDHAR M. S/O. MUNIKRISHNAIAH,
Digitally
signed by
MANJANNA
AGE. 36 YEARS, OCC. ENGINEER,
MANJANNA E
E Date:
2024.01.31
14:36:59
R/O. C/O. MUDAKANNANAVAR, OPP: VIVEKANADA
+0530
SCHOOL, 12TH B CROSS, BASAVESHWARA NAGAR,
HAVERI-581101, TQ./DIST. HAVERI.
... RESPONDENTS
(BY SRI. P.N. HATTI, HCGP FOR R1;
SRI.M. AMAREGOUDA, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER
OR DIRECTION TO QUASH THE COMPLAINT DATED 24.12.2019 IN P.C.
NO.447/2019 AS PER ANNEXURE-D AND ALL THE CONSEQUENTIAL
PROCEEDINGS PURSUANT TO THE SAID COMPLAINT PENDING ON THE
FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN) AND JMFC COURT AT
HAVERI & ETC,.
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NC: 2024:KHC-D:2131
WP No. 101341 of 2021
THIS PETITION, COMING ON FOR PRL. HEARING B-GROUP,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. On 24.12.2019, a complaint under Section 200 of the Cr.P.C. was presented before the learned Magistrate against the petitioners complaining that they were guilty of offences under Section 304-A of the IPC and Section 75 of the Juvenile Justice (Care and Protection of Children) Act. The Learned Magistrate referred the matter for investigation to the Police under Section 156(3) of the Cr.P.C. and the Police thereafter proceeded to register an FIR.
2. The allegations in the complaint was that, the first petitioner was the Gynecologist and the second petitioner was the Staff Nurse working under her and the first petitioner had delivered a baby girl on 31.08.2019 and thereafter, the mother and the baby were shifted to the Ward, wherein the new born baby was also fed and was healthy for about 7:00 hours. It was alleged that thereafter, suddenly, the baby started crying with breathing problem in the early morning of the 1st September 2019 and since -3- NC: 2024:KHC-D:2131 WP No. 101341 of 2021 there were no Pediatricians available, the guardians were asked to take the baby to Pediatricians' Hospital immediately and thereafter, the baby was taken to the Government District Hospital, Haveri, who in turn suggested that the baby be shifted to a Hospital, which had ventilator facility immediately as the condition of the baby was critical. It was stated that the Government Doctor gave them a reference letter stating that the baby was suffering from Meconium Aspiration Syndrome (MAS) and needed NICU with ventilation. It was stated that thereafter the baby was taken to the Bapuji Children's Hospital, Davanagere, but despite the best efforts, the baby passed away on the same day at 2:00 p.m.
3. It was alleged that the death summary report indicated that the baby had developed with severe Meconimum Aspiration Syndrome (MAS) at the time of delivery, and this had resulted in respiratory distress, which ultimately resulted in the baby losing its life. -4-
NC: 2024:KHC-D:2131 WP No. 101341 of 2021
4. It was alleged that the reason for the baby contracting MAS was that because of negligence in handling by the first petitioner and the staff at her Hospital. It was contended that since there was negligence on the part of the first petitioner, she was liable to be prosecuted under Section 304-A of the IPC.
5. The complainant had in fact approached the District Health Officer, who in turn sought for a report from the KIMS, Hubballi and the KIMS, Hubballi after constituting the Committee, examined the matter and ultimately gave a report, in the following terms:
According to records available following points are noted Mrs. Malati Shashidhar Kolar Indoor No.1089, aged 29 years was admitted on 30.08.2019 at 05.25 pm. Patient went into spontaneous labour on 31.08.2019. Progressed normally and delivered a female baby of 2.7 kg at 11.30pm which cried immediately at birth with apger score 8/10 at min, 9/10 at 5th minute, 10/10 at 10 minutes and was shifted to mother side and was taking feeds. On 1.9.2019 at 7.00 am baby shifted to NICU. Birth -5- NC: 2024:KHC-D:2131 WP No. 101341 of 2021 records indicates baby had cried immediately after birth with a wery good APGAR score of 9/10 at 5th minute. The cause for respiratory /feeding difficulty has not been assessed or mentioned at Handral Nursing Home before referral. The referral letter (DOC-c) has two hand writings, one indicating liquor was clear and another of different handwriting indicating mild mecoinum. This creates confusion in interpreting whether mecoinum aspiration was the reason for the respiratory distress which was the reason for the deterioration in the baby's condition after 6-8 hours after birth. So we require clarity of whether liquor was stained with meconium or not, for giving an impression regarding the cause of death.
Death summery from Bapuji Hospital mentiones the cause as meconium aspiration which cannot be taken as final without the clarity regarding liquor staining at birth.
6. It is also admitted by both the counsel that a complaint has also been lodged by the complainant before the Karnataka Medical Council and the matter is still pending adjudication.
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NC: 2024:KHC-D:2131 WP No. 101341 of 2021
7. The above set of facts are narrated only to indicate the course of action that was taken after the baby passed away.
8. The Hon'ble Supreme Court in the case of Jacob Mathew Vs. State of Punjab and another1 while considering a case relating to medical negligence has laid down guidelines for the manner in which the Police Officers are required to follow in the case of medical negligence, which are as follows:
"Guidelines - re: prosecuting medical professionals
51. 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 1 AIR 2005 SC 3180 -7- NC: 2024:KHC-D:2131 WP No. 101341 of 2021 IPC. The criminal process once initiated subjects the 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.
52. 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.
53 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 -8- NC: 2024:KHC-D:2131 WP No. 101341 of 2021 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."
9. As could be seen from the above, the Investigating Officer before proceeding against the Doctor -9- NC: 2024:KHC-D:2131 WP No. 101341 of 2021 should secure an independent and competent medical opinion preferably from the Doctor in a Government Service qualified in that branch of medical practice, who can normally be expected to give an impartial and unbiased opinion.
10. In fact, the Hon'ble Supreme Court has stated that the Doctors should not be arrested unnecessarily for furthering the investigation or for collecting evidence.
11. In the instant case, as could be seen from the report obtained by the DHO, there are no allegations of rashness or negligence attributed to the first petitioner and in fact the report is inconclusive as regards the reasons for the MAS suffered by the baby.
12. The Hon'ble Supreme Court has also concluded in the aforementioned case as to what exactly would amount to negligence as contemplated under Section 304-A of the IPC vis-à-vis the allegation of the medical negligence in the following terms:
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NC: 2024:KHC-D:2131 WP No. 101341 of 2021 "49. 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 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
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NC: 2024:KHC-D:2131 WP No. 101341 of 2021 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 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
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NC: 2024:KHC-D:2131 WP No. 101341 of 2021 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'.
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NC: 2024:KHC-D:2131 WP No. 101341 of 2021 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."
13. In the light of the above, it is clear that the Committee's report, which was obtained by the DHO, does not indicate that there was any negligent act by the petitioners, let alone a high degree of negligence on the
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NC: 2024:KHC-D:2131 WP No. 101341 of 2021 part of the petitioners, which would warrant initiation of the criminal proceedings for the commission of offence under Section 304-A of the IPC. In the background of the fact that a complaint is pending adjudication before the Medical Council and in the absence of any material to indicate there was gross negligence on the part of the petitioners in the unfortunate death of the baby, it is clear that the initiation of criminal proceedings for an offence under S. 304A would be unjustified.
14. I am therefore of the view that the proceedings against the petitioners are not sustainable and are accordingly quashed. The petition is therefore allowed.
15. However, it is made clear that the complainant would be at liberty to initiate an appropriate proceeding after the conclusion of the proceeding pending before the Karnataka Medical Council if it is found that there was gross negligence in the delivery conducted by the first petitioner.
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16. It is needless to state that any observations made herein above have been made only for the purpose of considering the validity of the initiation of the criminal proceedings and this order does not in any way render any opinion on the merits of the claim of the complainant.
Sd/-
JUDGE VNP List No.: 1 Sl No.: 139