Karnataka High Court
Sri. Vikas M. Dev vs The Commissioner Of Police on 25 June, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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Reserved on : 16.06.2025
R
Pronounced on : 25.06.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.24162 OF 2024 (GM - POLICE)
BETWEEN:
SRI VIKAS M.DEV
S/O LATE MR. M.C.MAHADEVA
AGED ABOUT 31 YEARS
RESIDING AT NO.39, 2ND 'A' CROSS
NAGARBHAVI VILLAGE
BENGALURU - 560 072.
... PETITIONER
(BY SRI SAMEER SHARMA, ADVOCATE)
AND:
1. THE COMMISSIONER OF POLICE
OFFICE OF THE COMMISSIONER OF POLICE
INFANTRY ROAD, BENGALURU - 560 001.
2. DEPUTY COMMISSIONER OF POLICE
WEST DIVISION, NO.13
TANK BUND ROAD
UPPARPETE CHICKPET
BENGALURU - 560 053.
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3. ASSISTANT COMMISSIONER OF POLICE
KENGERI SUB - DIVISION
JNANABHARATHI POLICE STATION
BANGALORE UNIVERSITY CAMPUS
MYSORE ROAD, BENGALURU - 560 056.
4. SUB-INSPECTOR OF POLICE
ANNAPOORNESHWARINAGAR POLICE STATION
KENGERI GATE SUB-DIVISION
10TH BLOCK, 5TH BLOCK, 2ND STAGE
NAGARABHAAVI, BENGALURU - 560 072.
... RESPONDENTS
(BY SRI SPOORTHY HEGDE N., HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS
HEREIN TO CONDUCT A PRELIMINARY ENQUIRY INTO THE
COMPLAINTS DTD. 18.06.2024 AND 26.06.2024 PREFERRED
BEFORE THE R-2 TO 4 BY THE PETITIONER (ANNX-A1 TO A3) AND
THEREBY CALL FOR A MEDICAL REPORT / OPINION FROM AN
INDEPENDENT EXPERT BODY / AUTHORITY AS TO THE
COMMISSION OF MEDICAL NEGLIGENCE AS DETAILED IN THE SAID
COMPLAINTS, IN TERMS OF THE DICTA LAID DOWN BY THE
HONBLE SUPREME COURT IN THE CASES OF JACOB MATHEW V.
STATE OF PUNJAB AND ANR.(2005) 6 SCC 1), MARTIN F. D'SOUZ
V. MOHD.ISHFAQ (2009)3 SCC1) AND LALITA KUMARI V.
GOVERNMENT OF UTTAR PRADESH AND ORS. (2014) 2 SCC 1)
(ANNX-B1 TO B3) AND THEREBY TAKE CONSEQUENTIAL STEPS IN
ACCORDANCE WITH THE PRINCIPLES LAID DOWN IN THE SAID
CASES.
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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 16.06.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner, bereaved and aggrieved, approaches
this Court invoking its writ jurisdiction, seeking justice for a
lamentable demise - the untimely death of his father,
allegedly occasioned by medical negligence. In furtherance
whereof, seeks the following prayer:
"
A. Issue a writ of mandamus or any other writ, order or
direction directing the respondents herein to conduct a
preliminary enquiry into the complaints dated
18.06.2024 and 26-06-2024 preferred before the
respondent Nos. 2 to 4 by the petitioner (Annexures
'A1' to 'A3') and thereby call for a medical report/
opinion from an independent expert body/authority as
to the commission of medical negligence as detained
in the said complaints, in terms of the dicta laid down
by the Hon'ble Supreme Court in the case of Jacob
Mathew v. State of Punjab and another [(2005) 6 SCC
1], Martin F.D'Souza v. Mohd. Ishfaq [(2009) 3 SCC 1]
and Lalita Kumari v. Government of Uttar Pradesh and
others [(2014) 2 SCC 1] (Annexures 'B1' to 'B3') and
thereby take consequential steps in accordance with
the principles laid down in the said cases."
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2. Heard Sri Sameer Sharma, learned counsel appearing for
the petitioner and Sri Spoorthy Hegde N., learned High Court
Government Pleader appearing for the respondents.
3. Facts, in brief, germane are as follows: -
The substratum of the facts unfolds a poignant tale.
The petitioner's father late M.C. Mahadeva was diagnosed with
Hiatus Hernia. During the treatment of Hiatus Hernia, develops a
complication of watermelon stomach and then becomes a patient of
Chronic Kidney Disease ('CKD'). A man reliant on dialysis for
survival became ensnared in the vortex of medical interventions
where hope turns into horror. For a patient of CKD regular dialysis
is imperative. For the purpose of dialysis, insertion of HD Catheter
is again a necessity, as the problem aggravates during dialysis
taking place other than through catheter. To the father of the
petitioner, one Dr. Veerabhadra Gupta, in charge of dialysis facility
at G.M.Hospitals, inserted HD Catheter on 19-02-2024.
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4. On 29-03-2024, on consultation with the same Doctor, the
Doctor suggested removing of the previously inserted HD catheter
on the score that it may lead to complications in the long run and
suggested insertion of a Perma Catheter which is a permanent
catheter. The petitioner's father was then advised to approach
Dr. Sumanth Raj K.B., a vascular surgeon at G.M. Hospitals to take
the process forward - the process of insertion of Perma Catheter.
The petitioner with his family and his father met the said Doctor on
01-04-2024. The surgery for insertion of Perma Catheter was
scheduled on 04-04-2024. Before commencement of the surgery,
all protocols were taken including consent of the petitioner who was
the son of patient, with regard to Perma Catheter procedure. The
assurance, according to the averment in the petition was, it was a
small procedure of insertion of a Perma Catheter and the surgery
would last for about 30 minutes, but for 4 hours the surgery is said
to have gone on. The consent given by the petitioner for insertion
of Perma Catheter was to be on the right side, but the procedure
that was done on the father of the petitioner was a left Catheter
insertion. This change was never intimated to the petitioner.
Therefore, what was taken as consent was insertion of Perma
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Catheter on the right side, but what was done as procedure was on
the left side.
5. Post-surgery, the father of the petitioner was
tormented by excruciating pain and discomfort. On
examination it was found that there was no blood back-flow
through the Catheter. He was immediately shifted to Fortis Hospital
for corrective procedure on the next day i.e., on 05-04-2024. He
was again operated, during the operation the condition of the father
of the petitioner deteriorated and suffered cardiac arrest.
Thereafter, the father of the petitioner succumbed to all the
aforesaid procedures on 15-04-2024. It is the case of the
petitioner-son that life of the father of the petitioner is now lost on
account of negligence and callous act of Doctors at G.M. Hospital
and Fortis Hospital who did not take consent of anybody for the
operation. The nature of the operation intended to the carried out
on the father of the petitioner in Fortis Hospital was changed from
right hand side of the body to the left-hand side of the body. This
procedure after procedure has led to cardiac arrest, is the averment
in the petition.
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6. The petitioner, on the death of his father due to alleged
gross medical negligence, approached the jurisdictional police to
register a complaint on 18-06-2024. The complaint was summarily
rejected by rendering a non-cognizable report, as according to the
Police, it was a case to be preferred before the Karnataka Medical
Council. The petitioner then knocks at the doors of higher ups -
respondents 2 and 3, the Assistant Commissioner of Police and the
Deputy Commissioner of Police who also did not take any action
whatsoever. It is then the petitioner is before this Court in the
subject petition, seeking the aforesaid registration of crime, at least
against the Doctors who were completely negligent.
7. The learned counsel appearing for the petitioner would
vehemently contend that there is gross negligence on the part of
Doctors who inserted the Catheter at a wrong place and blocked the
jugular vein. Blocking of the jugular vein led to stoppage of blood
flow back from the Catheter. He would contend that if this cannot
be a prima facie medical negligence, what else could it be. The life
of a breadwinner of the family is lost by a wrong insertion of the
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Perma Catheter. It is his submission that it is a different
circumstance if the father of the petitioner had succumbed to other
problems that would emerge from the consequence of CKD patient,
but that is not the issue. He would also submit that a preliminary
inquiry or a report was sought from the Victoria Hospital, which has
clearly opined that the Doctor who operated for the purpose of
Perma Catheter is responsible. He would seek a mandamus for
registration of crime by placing reliance upon several judgments of
the Apex Court.
8. Per-contra, the learned High Court Government Pleader
would vehemently refute the submissions in contending that the
complaint cannot become a crime for criminal negligence on the
part of Doctors, but at best it can be a complaint before the
Karnataka Medical Council under the Karnataka Medical Registration
Act, 1961. He would submit that a complaint is registered before
the Karnataka Medical Council and a notice is issued to the Doctors
both of G.M. Hospital and Fortis Hospital on 10-6-2025. He would,
therefore, seek dismissal of the petition, holding that it does not
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amount to criminal negligence and no crime should be permitted to
be registered against the Doctors.
9. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
10. The afore-narrated facts are not in dispute. They are a
matter of record. Five facets starkly emerge from the complaint.
The consent of the petitioner was not obtained for
the change of type of surgery;
Catheter is inserted on the wrong side without the
consent of the petitioner;
H.D. Catheter was again inserted when
permission/consent was obtained for perma
Catheter;
Surgery was performed by the duty Doctor
instead of the surgeon; and
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The Doctors have allegedly failed to take
corrective measures to alleviate the deteriorating
condition of the patient in the emergency.
11. Heavy reliance is placed on the judgment of the Apex
Court in the case of JACOB MATHEW v. STATE OF PUNJAB1. In
the said judgment the Apex Court has laid down certain guidelines
for prosecuting medical professionals. The guidelines are found at
paragraphs 48 to 52. They read as follows:
"..... .... ....
Conclusions summed up
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 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".
1
(2005) 6 SCC 1
11
(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 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
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
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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 [(1957) 1 WLR 582:
(1957) 2 All ER 118 (QBD)] , WLR at p. 586 [ [Ed.:
Also at All ER p. 121 D-F and set out in para 19, p. 19
herein.]] 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 304-A 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 304-A
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, especially in
cases of torts and helps in determining the onus of
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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.
49. In view of the principles laid down hereinabove
and the preceding discussion, we agree with the principles of
law laid down in Dr. Suresh Gupta case [(2004) 6 SCC 422:
2004 SCC (Cri) 1785] and reaffirm the same. Ex abundanti
cautela, we clarify that what we are affirming are the legal
principles laid down and the law as stated in Dr. Suresh
Gupta case [(2004) 6 SCC 422: 2004 SCC (Cri) 1785]. We
may not be understood as having expressed any opinion on
the question whether on the facts of that case the accused
could or could not have been held guilty of criminal
negligence as that question is not before us. We also
approve of the passagefrom Errors, Medicine and the Law by
Alan Merry and Alexander McCall Smith which has been cited
with approval in Dr. Suresh Gupta case [(2004) 6 SCC 422:
2004 SCC (Cri) 1785] (noted vide para 27 of the Report).
Guidelines -- Re: prosecuting medical professionals
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 the 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 a rash or negligent
act within the domain of criminal law under Section 304-A
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 to his reputation cannot be compensated by any
standards.
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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 emphasise 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 prefer recourse to criminal
process as a tool for pressurising 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 the Bolam [(1957) 1 WLR
582 : (1957) 2 All ER 118 (QBD)] 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 investigating officer feels
satisfied that the doctor proceeded against would not
15
make himself available to face the prosecution unless
arrested, the arrest may be withheld."
(Emphasis supplied)
The Apex Court delineates the delicate balance between holding
medical professionals accountable and shielding them from
vexatious prosecution.
12. Subsequently, in the case of MARTIN F.D'SOUZA v.
MOHD. ISHFAQ2, the Apex Court clarified that whenever a
complaint is filed against a Doctor, the criminal Court should refer
the matter to a competent Doctor or committee of Doctors,
specialized in the field, relating to which the medical negligence is
attributed. The Apex Court holds as follows:
"41. As observed by the Supreme Court in Jacob
Mathew case [(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] : (SCC
pp. 22-23, paras 28-29)
"28. A medical practitioner faced with an
emergency ordinarily tries his best to redeem the
patient out of his suffering. He does not gain anything
by acting with negligence or by omitting to do an act.
Obviously, therefore, it will be for the complainant to
clearly make out a case of negligence before a medical
practitioner is charged with or proceeded against
criminally. A surgeon with shaky hands under fear of
legal action cannot perform a successful operation and a
2
(2009) 3 SCC 1
16
quivering physician cannot administer the end-dose of
medicine to his patient.
29. If the hands be trembling with the dangling
fear of facing a criminal prosecution in the event of
failure for whatever reason--whether attributable to
himself or not, neither can a surgeon successfully wield
his life-saving scalpel to perform an essential surgery,
nor can a physician successfully administer the life-
saving dose of medicine. Discretion being the better part
of valour, a medical professional would feel better
advised to leave a terminal patient to his own fate in the
case of emergency where the chance of success may be
10% (or so), rather than taking the risk of making a last
ditch effort towards saving the subject and facing a
criminal prosecution if his effort fails. Such timidity
forced upon a doctor would be a disservice to society."
... ... ....
Protection to doctors in criminal cases
47. In para 52 of Jacob Mathew case [(2005) 6 SCC 1
: 2005 SCC (Cri) 1369] the Supreme Court realising that
doctors have to be protected from frivolous complaints of
medical negligence, has laid down certain rules in this
connection : (SCC p. 35)
"(i) A private complaint should 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.
(ii) 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 opinion applying the Bolam [(1957) 1
WLR 582 : (1957) 2 All ER 118] test.
(iii) A doctor accused of negligence should not
be arrested in a routine manner simply because a
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charge has been levelled against him. Unless his arrest
is necessary for furthering the investigation or for
collecting evidence or unless the investigating officer
feels satisfied that the doctor proceeded against would
not make himself available to face the prosecution
unless arrested, the arrest should be withheld.
Precautions which doctors/hospitals/nursing homes
should take
(a) Current practices, infrastructure,
paramedical and other staff, hygiene and sterility
should be observed strictly. Thus, in Sarwat Ali
Khan v. Prof. R. Gogi [ OP No. 181 of 1997 decided on
18-7-2007 (NC)] the facts were that out of 52 cataract
operations performed between 26-9-1995 and 28-9-
1995 in an eye hospital, 14 persons lost their vision in
the operated eye. An enquiry revealed that in the
operation theatre two autoclaves were not working
properly. This equipment is absolutely necessary to
carry out sterilisation of instruments, cotton, pads,
linen, etc. and the damage occurred because of its
absence in working condition. The doctors were held
liable.
(b) No prescription should ordinarily be given
without actual examination. The tendency to give
prescription over the telephone, except in an acute
emergency, should be avoided.
(c) A doctor should not merely go by the
version of the patient regarding his symptoms, but
should also make his own analysis including tests and
investigations where necessary.
(d) A doctor should not experiment unless
necessary and even then he should ordinarily get a
written consent from the patient.
(e) An expert should be consulted in case of any
doubt. Thus, in Indrani Bhattacharjee [ OP No. 233 of
1996 decided on 9-8-2007 (NC)] , the patient was
diagnosed as having "mild lateral wall ischaemia". The
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doctor prescribed medicine for gastroenteritis, but he
expired. It was held that the doctor was negligent as
he should have advised consulting a cardiologist in
writing.
(f) Full record of the diagnosis, treatment, etc.
should be maintained.
... ... ....
65. From the aforementioned principles and decisions
relating to medical negligence, with which we agree, it is
evident that doctors and nursing homes/hospitals need not
be unduly worried about the performance of their
functions. The law is a watchdog, and not a bloodhound, and
as long as doctors do their duty with reasonable care they
will not be held liable even if their treatment was
unsuccessful. However, every doctor should, for his own
interest, carefully read the Code of Medical Ethics which is
part of the Indian Medical Council (Professional Conduct,
Etiquette and Ethics) Regulations, 2002 issued by the
Medical Council of India under Section 20-A read with
Section 3(m) of the Indian Medical Council Act, 1956.
... ... ...
102. While this Court has no sympathy for doctors
who are negligent, it must also be said that frivolous
complaints against doctors have increased by leaps and
bounds in our country particularly after the medical
profession was placed within the purview of the Consumer
Protection Act. To give an example, earlier when a patient
who had a symptom of having a heart attack would come to
a doctor, the doctor would immediately inject him with
morphia or pethidine injection before sending him to the
Cardiac Care Unit (CCU) because in cases of heart attack
time is the essence of the matter. However, in some cases
the patient died before he reached the hospital. After the
medical profession was brought under the Consumer
Protection Act vide Indian Medical Assn. v. V.P.
Shantha [(1995) 6 SCC 651] , doctors who administer
morphia or pethidine injection are often blamed and cases of
medical negligence are filed against them. The result is that
many doctors have stopped giving (even as family
physicians) morphia or pethidine injection even in
emergencies despite the fact that from the symptoms the
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doctor honestly thought that the patient was having a heart
attack. This was out of fear that if the patient died the doctor
would have to face legal proceedings.
103. Similarly in cases of head injuries (which are
very common in roadside accidents in Delhi and other cities)
earlier the doctor who was first approached would start
giving first aid and apply stitches to stop the bleeding.
However, now what is often seen is that doctors out of fear
of facing legal proceedings do not give first aid to the
patient, and instead tell him to proceed to the hospital by
which time the patient may develop other complications.
104. Hence courts/Consumer Fora should keep the
above factors in mind when deciding cases related to medical
negligence, and not take a view which would be in fact a
disservice to the public. The decision of this Court in Indian
Medical Assn. v. V.P. Shantha [(1995) 6 SCC 651] should not
be understood to mean that doctors should be harassed
merely because their treatment was unsuccessful or caused
some mishap which was not necessarily due to negligence.
In fact in the aforesaid decision it has been observed (vide
SCC para 22): (V.P. Shantha case [(1995) 6 SCC 651] , SCC
p. 665)
"22. In the matter of professional liability
professions differ from other occupations for the reason
that professions operate in spheres where success
cannot be achieved in every case and very often success
or failure depends upon factors beyond the professional
man's control."
105. It may be mentioned that All India Institute of
Medical Sciences has been doing outstanding research in
stem cell therapy for the last eight years or so for treating
patients suffering from paralysis, terminal cardiac condition,
parkinsonism, etc. though not yet with very notable success.
This does not mean that the work of stem cell therapy should
stop, otherwise science cannot progress.
106. We, therefore, direct that whenever a
complaint is received against a doctor or hospital by
the Consumer Fora (whether District, State or
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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 the
criminal court should first refer the matter to a
competent doctor or committee of doctors, specialised
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
doctor/hospital concerned. This is necessary to avoid
harassment to doctors who may not be ultimately
found to be negligent. We further warn the police
officials not to arrest or harass doctors unless the
facts clearly come within the parameters laid down
in Jacob Mathew case [(2005) 6 SCC 1 : 2005 SCC (Cri)
1369] , otherwise the policemen will themselves have
to face legal action.
...... ...... ......
111. The courts and the Consumer Fora are not
experts in medical science, and must not substitute their own
views over that of specialists. It is true that the medical
profession has to an extent become commercialised and
there are many doctors who depart from their Hippocratic
oath for their selfish ends of making money. However, the
entire medical fraternity cannot be blamed or branded as
lacking in integrity or competence just because of some bad
apples.
112. It must be remembered that sometimes despite
their best efforts the treatment of a doctor fails. For
instance, sometimes despite the best effort of a surgeon, the
patient dies. That does not mean that the doctor or the
surgeon must be held to be guilty of medical negligence,
unless there is some strong evidence to suggest that he is."
(Emphasis supplied)
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The Apex Court holds about precaution that has to be taken by a
Doctor. The Apex Court further enshrines the principle that no
Doctor should face ignominy of criminal process, unless credible
medical opinion supports the allegation.
13. The other issue that would emerge is not obtaining of the
consent from the petitioner for change in the procedure. The Apex
Court in the case of SAMIRA KOHLI v. DR. PRABHA
MANCHANDA3 has summarized the principles of consent. The
Apex Court holds as follows:
".... .... ....
48. Having regard to the conditions obtaining in India,
as also the settled and recognised practices of medical
fraternity in India, we are of the view that to nurture the
doctor-patient relationship on the basis of trust, the extent
and nature of information required to be given by doctors
should continue to be governed by the Bolam test rather
than the "reasonably prudential patient" test evolved
in Canterbury [464 F 2d 772 : 150 US App DC 263 (1972)] .
It is for the doctor to decide, with reference to the condition
of the patient, nature of illness, and the prevailing
established practices, how much information regarding risks
and consequences should be given to the patients, and how
they should be couched, having the best interests of the
patient. A doctor cannot be held negligent either in regard to
diagnosis or treatment or in disclosing the risks involved in a
particular surgical procedure or treatment, if the doctor has
acted with normal care, in accordance with a recognised
3
(2008) 2 SCC 1
22
practice accepted as proper by a responsible body of medical
men skilled in that particular field, even though there may be
a body of opinion that takes a contrary view. Where there
are more than one recognised school of established medical
practice, it is not negligence for a doctor to follow any one of
those practices, in preference to the others.
49. We may now summarise principles relating to
consent as follows:
(i) A doctor has to seek and secure the consent
of the patient before commencing a "treatment" (the
term "treatment" includes surgery also). The consent
so obtained should be real and valid, which means
that: the patient should have the capacity and
competence to consent; his consent should be
voluntary; and his consent should be on the basis of
adequate information concerning the nature of the
treatment procedure, so that he knows what he is
consenting to.
(ii) The "adequate information" to be furnished
by the doctor (or a member of his team) who treats
the patient, should enable the patient to make a
balanced judgment as to whether he should submit
himself to the particular treatment or not. This means
that the doctor should disclose (a) nature and
procedure of the treatment and its purpose, benefits
and effect; (b) alternatives if any available; (c) an
outline of the substantial risks; and (d) adverse
consequences of refusing treatment. But there is no
need to explain remote or theoretical risks involved,
which may frighten or confuse a patient and result in
refusal of consent for the necessary treatment.
Similarly, there is no need to explain the remote or
theoretical risks of refusal to take treatment which
may persuade a patient to undergo a fanciful or
unnecessary treatment. A balance should be achieved
between the need for disclosing necessary and
adequate information and at the same time avoid the
possibility of the patient being deterred from agreeing
to a necessary treatment or offering to undergo an
unnecessary treatment.
23
(iii) Consent given only for a diagnostic
procedure, cannot be considered as consent for
therapeutic treatment. Consent given for a
specific treatment procedure will not be valid for
conducting some other treatment procedure. The
fact that the unauthorised additional surgery is
beneficial to the patient, or that it would save
considerable time and expense to the patient, or
would relieve the patient from pain and suffering
in future, are not grounds of defence in an action
in tort for negligence or assault and battery. The
only exception to this rule is where the
additional procedure though unauthorised, is
necessary in order to save the life or preserve
the health of the patient and it would be
unreasonable to delay such unauthorised
procedure until patient regains consciousness
and takes a decision.
(iv) There can be a common consent for
diagnostic and operative procedures where they are
contemplated. There can also be a common consent
for a particular surgical procedure and an additional or
further procedure that may become necessary during
the course of surgery.
(v) The nature and extent of information to be
furnished by the doctor to the patient to secure the
consent need not be of the stringent and high degree
mentioned in Canterbury [464 F 2d 772 : 150 US App
DC 263 (1972)] but should be of the extent which is
accepted as normal and proper by a body of medical
men skilled and experienced in the particular field. It
will depend upon the physical and mental condition of
the patient, the nature of treatment, and the risk and
consequences attached to the treatment.
50. We may note here that courts in Canada and
Australia have moved towards Canterbury [464 F 2d 772 :
150 US App DC 263 (1972)] standard of disclosure and
informed consent, vide Reibl v. Hughes [(1980) 114 DLR 3d
1 : (1980) 2 SCR 880 : (1980) 2 RSC 880 (Can SC)] decided
24
by the Canadian Supreme Court
and Rogers v. Whitaker [109 ALR 625 : 67 ALJR 47 : (1993)
4 Medical Law Rep 79 (1992)] decided by the High Court of
Australia. Even in England there is a tendency to make the
doctor's duty to inform more stringent than Bolam test
adopted in Sidaway [1985 AC 871: (1985) 2 WLR 480:
(1985) 1 All ER 643 (HL)]. Lord Scarman's minority view
in Sidaway [1985 AC 871: (1985) 2 WLR 480: (1985) 1 All
ER 643 (HL)] favouring Canterbury [464 F 2d 772: 150 US
App DC 263 (1972)], in course of time, may ultimately
become the law in England. A beginning has been made
in Bolitho v. City and Hackney Health Authority [1998 AC
232 : (1997) 3 WLR 115 : (1997) 4 All ER 771 (HL)]
and Pearce v. United Bristol Healthcare NHS Trust [(1999)
48 BMLR 118 : (1999) PIQR 53 : (1999) ECC 167] . We
have, however, consciously preferred the "real consent"
concept evolved in Bolam [(1957) 1 WLR 582 : (1957) 2 All
ER 118] and Sidaway [1985 AC 871 : (1985) 2 WLR 480 :
(1985) 1 All ER 643 (HL)] in preference to the "reasonably
prudent patient test" in Canterbury [464 F 2d 772: 150 US
App DC 263 (1972)] , having regard to the ground realities
in medical and health care in India. But if medical
practitioners and private hospitals become more and more
commercialised, and if there is a corresponding increase in
the awareness of patient's rights among the public,
inevitably, a day may come when we may have to move
towards Canterbury [464 F 2d 772: 150 US App DC 263
(1972)] . But not for the present."
(Emphasis supplied)
The Apex Court reaffirms the sanctity of informed consent and
holds that no deviation from an agreed procedure is permissible,
save for dire emergencies. It holds that consent given for a specific
treatment/procedure cannot be taken for conducting some other
treatment or procedure.
25
14. The Apex Court, further, in the case of NIZAM'S
INSTITUTE OF MEDICAL SCIENCES v. PRASANTH S.
DHANANKA4 holds that consent given for excision biopsy does not
mean consent for removal of tumour mass and it cannot be implied.
The Apex Court holds as follows:-
".... .... ....
39. Allied to this finding is the question as to whether
the required consent for the excision of the tumour had been
taken from the complainant or his parents. The Commission
has noted that some discussion between the complainant, his
parents and Dr. Satyanarayana had taken place in the OPD
and the possibility of deferring the operation had been
mooted but notwithstanding this discussion, the complainant
had been admitted to the hospital on 19-10-1990 and
operated upon on 23-10-1990.
40. The Commission has observed that as blood had
been donated by the relatives of the complainant, it was
likely that they had the information that a surgery was
planned, as they were educated and enlightened persons.
The Commission has, accordingly, held on the basis of
the evidence of Dr. Satyanarayana "that once the
consent for excision biopsy through thoracotomy was
given, the consent for a moment (sic removal) of the
mass was implied".
41. We see from the cross-examination of the
complainant that no consent for the operation had been
taken. Moreover, it is significant that even though the record
of the case had been produced before the Commission, it
was with some reluctance and after several specific orders,
4
(2009) 6 SCC 1
26
but the written consent which had allegedly been taken is
not a part of the record.
42. It is equally significant that in the written
submissions which had been filed, a copy of the consent form
of NIMS has been appended but not the actual consent taken
from the complainant. It must, therefore, be held that the
withholding of the aforesaid document raises a presumption
against NIMS and the attending doctors. We find that the
consent given by the complainant for the excision biopsy
cannot, by inference, be taken as an implied consent for a
surgery (save in exceptional cases), as held by this Court
in Samira Kohli v. Dr. Prabha Manchanda [(2008) 2 SCC 1] .
43. The two issues in Samira Kohli case [(2008) 2
SCC 1] which are relevant for our purpose and raised before
the Bench were: (SCC p. 15, para 17)
"(i) Whether informed consent of a patient is
necessary for surgical procedure involving removal of
reproductive organs? If so, what is the nature of such
consent?
(ii) When a patient consults a medical
practitioner, whether consent given for diagnostic
surgery can be construed as consent for performing
additional or further surgical procedure--either as
conservative treatment or as radical treatment--without
the specific consent for such additional or further
surgery?"
These two questions were answered in the following terms:
(SCC pp. 16-18, paras 18 & 21)
"18. Consent in the context of a doctor-
patient relationship, means the grant of
permission by the patient for an act to be carried
out by the doctor, such as a diagnostic, surgical or
therapeutic procedure. Consent can be implied in
some circumstances from the action of the patient.
For example, when a patient enters a dentist's
clinic and sits in the dental chair, his consent is
implied for examination, diagnosis and
consultation. Except where consent can be clearly
and obviously implied, there should be express
27
consent. There is, however, a significant difference
in the nature of express consent of the patient,
known as 'real consent' in UK and as 'informed
consent' in America. In UK, the elements of
consent are defined with reference to the patient
and a consent is considered to be valid and 'real'
when (i) the patient gives it voluntarily without
any coercion; (ii) the patient has the capacity and
competence to give consent; and (iii) the patient
has the minimum of adequate level of information
about the nature of the procedure to which he is
consenting to. On the other hand, the concept of
'informed consent' developed by American courts,
while retaining the basic requirements of consent,
shifts the emphasis on the doctor's duty to
disclose the necessary information to the patient
to secure his consent. 'Informed consent' is defined
in Taber's Cyclopedic Medical Dictionary thus:
'Consent that is given by a person after receipt
of the following information: the nature and purpose of
the proposed procedure or treatment; the expected
outcome and the likelihood of success; the risks; the
alternatives to the procedure and supporting
information regarding those alternatives; and the
effect of no treatment or procedure, including the
effect on the prognosis and the material risks
associated with no treatment. Also included are
instructions concerning what should be done if the
procedure turns out to be harmful or unsuccessful.'
(emphasis supplied)
* * *
21. The next question is whether in an action for
negligence/battery for performance of an unauthorised
surgical procedure, the doctor can put forth as defence
the consent given for a particular operative procedure,
as consent for any additional or further operative
procedures performed in the interests of the patient.
In Murray v. McMurchy[(1949) 2 DLR 442: (1949) 1
WWR 989] the Supreme Court of British Columbia,
Canada, was considering a claim for battery by a patient
who underwent a caesarean section. During the course
of caesarean section, the doctor found fibroid tumours in
the patient's uterus. Being of the view that such
tumours would be a danger in case of future pregnancy,
he performed a sterilisation operation. The Court upheld
28
the claim for damages for battery. It held that
sterilisation could not be justified under the principle of
necessity, as there was no immediate threat or danger
to the patient's health or life and it would not have been
unreasonable to postpone the operation to secure the
patient's consent. The fact that the doctor found it
convenient to perform the sterilisation operation without
consent as the patient was already under general
anaesthesia, was held to be not a valid defence. A
somewhat similar view was expressed by the Court of
Appeal in England in F. (Mental Patient: Sterilisation), In
re [(1990) 2 AC 1 : (1989) 2 WLR 1025 : (1989) 2 All
ER 545 (HL)] , and the Supreme Court of Nova Scotia,
Canada in Marshall v. Curry [(1933) 3 DLR 260 : 60 CCC
136] . It was held that the additional or further
treatment which can be given (outside the consented
procedure) should be confined to only such treatment as
is necessary to meet the emergency, and as such needs
to be carried out at once and before the patient is likely
to be in a position to make a decision for himself. Lord
Goff observed: (AC pp. 76 H-77 B)
'... Where, for example, a surgeon performs an
operation without his consent on a patient temporarily
rendered unconscious in an accident, he should do no
more than is reasonably required, in the best interests
of the patient, before he recovers consciousness. I can
see no practical difficulty arising from this
requirement, which derives from the fact that the
patient is expected before long to regain consciousness
and can then be consulted about longer term
measures.' "
44. The Court in Samira Kohli case [(2008) 2 SCC
1] also considered the possibility that had the patient
been conscious during surgery and in a position to
give his consent, he might have done so to avoid a
second surgery but observed that this was a non-issue
as the patient's right to decide whether he should
undergo surgery was inviolable. This is what the Court
had to say: (Samira Kohli case [(2008) 2 SCC 1] , SCC pp.
18-19, para 23)
"23. It is quite possible that had the patient been
conscious, and informed about the need for the
additional procedure, the patient might have agreed to
it. It may be that the additional procedure is beneficial
29
and in the interests of the patient. It may be that
postponement of the additional procedure (say removal
of an organ) may require another surgery, whereas
removal of the affected organ during the initial
diagnostic or exploratory surgery, would save the
patient from the pain and cost of a second operation.
Howsoever practical or convenient the reasons may be,
they are not relevant. What is relevant and of
importance is the inviolable nature of the patient's right
in regard to his body and his right to decide whether he
should undergo the particular treatment or surgery or
not. Therefore at the risk of repetition, we may add that
unless the unauthorised additional or further procedure
is necessary in order to save the life or preserve the
health of the patient and it would be unreasonable (as
contrasted from being merely inconvenient) to delay the
further procedure until the patient regains consciousness
and takes a decision, a doctor cannot perform such
procedure without the consent of the patient."
45. It is clear from the evidence in the case before us
that there was no urgency in the matter as the record shows
that discussions for the deferment of the proposed excision
biopsy had taken place between the complainant, his parents
and Dr. Satyanarayana in the OPD and the consent for the
procedure had been obtained. Also in the light of the
observations in the cited cases, any implied consent for the
excision of the tumour cannot be inferred."
(Emphasis supplied)
15. The Apex Court has further held that consent is not
required in exceptional circumstances, when surgery is required to
be performed for saving the life or health of a patient in the case of
30
S.K. JHUNJHUNWALA v. DHANWANTI KAUR5, wherein it is held
as follows:
"..... .... ....
27. According to Respondent 1, the appellant could
not have done so because she had not given her consent to
him to perform this surgery on her. In other words,
according to Respondent 1, she had given her express
consent in writing to perform only "laparoscopy surgery" but
the appellant instead of performing "laparoscopy surgery"
proceeded to perform conventional surgery and in that
process removed her gall bladder. It is due to this reason,
according to Respondent 1, a clear case of negligence on the
part of the appellant is made out which entitles Respondent
1 to claim compensation in terms of money.
28. The State Commission did not accept the
aforementioned submission of Respondent 1 but this
submission found favour to the National Commission for
holding the appellant guilty of negligence in performance of
his duty in performing the surgery. We do not agree with the
reasoning of the National Commission on this issue for more
than one reason mentioned below.
29. First, Clause 4 of the Consent Form dated 7-8-
1996 at p. 282 of the SLP paper book, which is duly signed
by Respondent 1, in clear terms, empowers the performing
doctor to perform such additional operation or procedure
including the administration of a blood transfusion or blood
plasma as they or he may consider substitute necessary or
proper in the event of any emergency or if any anticipated
condition is discovered during the course of the operation.
30. Second, in terms of Clause 4 of the Consent
Form, the appellant was entitled to perform the
conventional surgery as a substitute to the former one
having noticed some abnormalities at the time of
performing laparoscopy that it would not be possible
5
(2019) 2 SCC 282
31
for the team of doctors attending Respondent 1 to
continue further with laparoscopy of the gall bladder.
31. In other words, we are of the view that there
was no need to have another consent form to do the
conventional surgery in the light of authorisation
contained in Clause 4 itself because the substitute
operation was of the same organ for which the former
one was advised except with a difference of another
well-known method known in medical subject to get
rid of the malady.
32. Third, there is an evidence on record and we are
inclined to accept the evidence that the appellant having
noticed while performing laparoscopy that there was some
inflammation, adhesion and swelling on gall bladder, he
came out of operation theatre and informed Respondent 1's
husband who was sitting outside the operation theatre about
what the condition of Respondent 1's gall bladder was, and
sought his consent to perform the substitute operation. It is
only after the consent was given by the husband of
Respondent 1, the appellant proceeded to do conventional
surgery.
33. In our opinion, there is no reason to
disbelieve this fact stated by the appellant in his
evidence. It is, in our opinion, a natural conduct and
the behaviour of any prudent doctor, who is
performing the operation to apprise the attending
persons of what he noticed in the patient and then go
ahead accordingly to complete the operation.
34. It is not the case of Respondent 1 that her
husband was neither present in the hospital on that day nor
was he not sitting outside the Operation Theatre and nor he
ever met the appellant on that day. In our opinion, a clear
case of grant of consent to the appellant to perform the
substituted operation of gall bladder of Respondent 1 was,
therefore, made out to enable the appellant to perform the
conventional surgery, which he actually performed.
35. The National Commission while recording the
finding on the issue of consent against the appellant
32
relied upon the decision of this Court in Samira
Kohli v. Prabha Manchanda [Samira Kohli v. Prabha
Manchanda, (2008) 2 SCC 1 : (2008) 1 SCC (Civ) 421] .
In our view, the said decision itself has made an
exception to the cases observing in para 49 of the
judgment which reads as under : (SCC p. 29)
"49. ... (iii) ... The only exception to this rule
is where the additional procedure though
unauthorised, is necessary in order to save the life
or preserve the health of the patient and it would
be unreasonable to delay such unauthorised
procedure until patient regains consciousness and
takes a decision."
36. In our opinion, the case of the appellant also
falls in the excepted category mentioned by this Court
because the appellant having noticed the
abnormalities in the gall bladder while performing
laparoscopy surgery proceeded to perform the
conventional surgery and that too after obtaining fresh
consent of Respondent 1's husband. In other words, it
was not an unauthorised act of the appellant and he
could legally perform on the basis of original consent
(Clause 4) of Respondent 1 as also on the basis of the
further consent given by Respondent 1's husband.
37. That apart, we also find that Respondent 1 never
raised the objection of "consent issue" to the appellant
or/and opposite party Respondent 2 hospital and it was for
the first time in the complaint, she raised this issue and
made a foundation to claim compensation from the
appellant. Nothing prevented her or her husband to
raise the issue of consent immediately after
performance of the surgery while she was in hospital
as an indoor patient and even after discharge that
being the natural conduct of any patient. It was,
however, not done."
(Emphasis supplied)
33
16. If the principles summarised by the Apex Court from
JACOB MATHEW to S.K.JHUNJHUNWALA are considered on the
bedrock of the facts obtaining in the case at hand, they
undoubtedly meet the guidelines so laid down qua prima facie
medical negligence. Whether the crime should be directed to be
registered in such a case is also considered by the 5 Judge Bench of
the Apex Court in the case of LALITA KUMARI v. GOVERNMENT
OF U.P.6 The Apex Court holds as follows:
"Exceptions
115. Although, we, in unequivocal terms, hold that
Section 154 of the Code postulates the mandatory
registration of FIRs on receipt of all cognizable offences, yet,
there may be instances where preliminary inquiry may be
required owing to the change in genesis and novelty of
crimes with the passage of time. One such instance is in the
case of allegations relating to medical negligence on the part
of doctors. It will be unfair and inequitable to prosecute a
medical professional only on the basis of the allegations in
the complaint.
... ... ...
Conclusion/Directions
120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under
Section 154 of the Code, if the information discloses
commission of a cognizable offence and no preliminary
inquiry is permissible in such a situation.
6
(2014) 2 SCC 1
34
120.2. If the information received does not disclose a
cognizable offence but indicates the necessity for an inquiry,
a preliminary inquiry may be conducted only to ascertain
whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a
cognizable offence, the FIR must be registered. In cases
where preliminary inquiry ends in closing the complaint, a
copy of the entry of such closure must be supplied to the
first informant forthwith and not later than one week. It must
disclose reasons in brief for closing the complaint and not
proceeding further.
120.4. The police officer cannot avoid his duty of
registering offence if cognizable offence is disclosed. Action
must be taken against erring officers who do not register the
FIR if information received by him discloses a cognizable
offence.
120.5. The scope of preliminary inquiry is not to verify
the veracity or otherwise of the information received but only
to ascertain whether the information reveals any cognizable
offence.
120.6. As to what type and in which cases
preliminary inquiry is to be conducted will depend on
the facts and circumstances of each case. The category
of cases in which preliminary inquiry may be made are
as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in
initiating criminal prosecution, for example, over
3 months' delay in reporting the matter without
satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant preliminary inquiry.
35
120.7 While ensuring and protecting the rights of the
accused and the complainant, a preliminary inquiry should be
made time-bound and in any case it should not exceed
fifteen days generally and in exceptional cases, by giving
adequate reasons, six weeks' time is provided. The fact of
such delay and the causes of it must be reflected in the
General Diary entry.
120.8. Since the General Diary/Station Diary/Daily
Diary is the record of all information received in a police
station, we direct that all information relating to cognizable
offences, whether resulting in registration of FIR or leading
to an inquiry, must be mandatorily and meticulously
reflected in the said diary and the decision to conduct a
preliminary inquiry must also be reflected, as mentioned
above."
(Emphasis supplied)
The Apex Court holds that a preliminary inquiry would be required
in six categories of cases. One such category is medical negligence
case. Whether the preliminary inquiry is conducted or not in the
case at hand, is again a matter of record.
17. In the wake of the petitioner's insistence for registration
of a crime, a Committee is constituted/appointed by the
respondents to look into the problem as to whether there is
negligence or not. The report of the Committee is as follows:
"Committee has gone through the records and
following are the observations:
36
Mr. M.C. Mahadeva aged about 65 years male is
diagnosed as Chronic Kidney Disease (Renal Biopsy
proven Chronic interstitial Nephritis) undergoing
hemodialysis through temporary right internal jugular
vein catheter.
He was admitted at G.M. Hospital on 04-04-2024 at
11.08 a.m. for Permacath insertion which is necessary for all
Chronic Kidney Disease patients who are undergoing
hemodialysis before AV fistula creation.
As per the records he was posted for Permacath
insertion on the same day at 3.00 pm.
Nurse's note (Page No.15) revealed that patients
received from 1st floor OT at 3.45 p.m. Right permacath
insertion by Vascular Surgeon was abandoned due to
presence of thrombus in Right Jugular vein which was
informed to Nephrologists.
At MICU left lJC insertion done at 6.30 p.m. then
shifted to ward.
Post procedure, Chest X-ray page No.29 provided
by G.M. Hospital showed ectopic position of left lJC
(our observation).
For the above procedure proper consent form
was not available in the records provided.
Hemodialysis order was given by Nephrologist on
same day. No records were available in the documents
whether HD done or not.
On 05-04-2024 patient was discharged with stable
vitals.
Patient got admitted at Fortis Hospital on 05-04-2024.
(Document showed that he was referred for Permacath
insertion by outside hospital without reference letter from
GM hospital).
After proper consent patient was taken up for
Permacath insertion in Cath lab.
37
Left lJV was canulated under ultrasound and
fluoroscopic guidance with left lJV HD catheter in situ (which
was put at outside hospital) and Permacath was inserted by
vascular surgeon at Fortis hospital on 05-04-2024.
During this procedure priorly inserted left lJV HD
Catheter at outside hospital slipped out. Patient
immediately developed Hemopneumothorax with fall
of blood pressure.
They suspected tear in subclavian vein with
punctured pleura.
Emergency left lCD insertion was done by CTVS
team.
Patient was intubated and taken immediately to
Cath Lab for Left Subclavian vein stenting. During the
procedure patient had 2 episodes of Cardiac asystole
(page No.25) which was treated appropriately.
Subsequently patient developed post Hypoxic
sequele then patient managed with hemodialysis and
other proper measures.
Patient had Gl Bleeding & Malena which was managed
by medical gastroenterologist and also septicemia which was
treated appropriately.
Patient continued to deteriorate and died on
15-04-2024 at 8.50 p.m. due to possibility of sepsis with
septic shock.
Opinion:
Hemopneumothorax is well known complication
of internal jugular vein catheter insertion.
Permacath is necessary for all CKD patients who
are undergoing dialysis. Photocopy of Chest X-ray
provided in the documents showed that left lJC was
not in proper position. (This can be confirmed by
Radiologist).
38
And how to manage this improperly positioned
lJC situation can be obtained by Vascular Surgeon."
(Emphasis added)
The Medical Committee constituted post facto, observes inter alia
that the left internal jugular catheter was incorrectly positioned - a
deviation not minor, but potentially fatal. When a jugular vein is
cut or ruptured, most immediate symptom would be severe
bleeding and is in medical domain that it would result in low blood
pressure, difficulty in breathing and can sometimes lead to coronary
thrombus. The report opines that Hemopneumothorax is well
known complication of internal jugular vein catheter insertion.
Permacath is necessary for all CKD patients and left lJC was not in
proper position. Therefore, there is a rupture in the jugular vein.
18. It is further germane to notice the opinion of the Victoria
Hospital dated 07-12-2024, which is rendered pursuant to a
direction of this Court. The report is as follows:
"Hemopneumothorax is well known complication
of internal jugular vein catheter insertion.
39
Permacath is necessary for all CKD patients who
are undergoing dialysis photocopy of chest X-ray
provided in the documents showed that Left IJC was
IJC was not in proper position. (This can be confirmed
by Radiologist)".
(Emphasis added)
The report confirms that the catheter caused Hemopneumothorax,
a complication known, but avoidable with proper care.
19. When the sanctity of medical care is breached by
alleged negligence, it is not merely a lapse of procedure, but
a desecration of dignity inherent in human life. The patient,
entrusting their vulnerability to the hands of the Doctor,
becomes the silent victim of apathy. Their right to life of
dignity gets extinguished, not by fate but by failure. In the
mosaic of facts and the binding precedents quoted
hereinabove, this Court finds it imperative to uphold the
dignity of human life. The petitioner who has lost his father,
under circumstances that cry for an investigation, cannot be
left remediless. The petition thus deserves to succeed.
40
20. For the aforesaid reasons, the following:
ORDER
(i) Writ petition is allowed.
(ii) Mandamus issues to the jurisdictional police -
respondent No.4 to register a First Information Report on the basis of the petitioner's complaint and proceed further in accordance with law, within 2 weeks from the date of receipt of a copy of this order.
Sd/-
(M.NAGAPRASANNA) JUDGE bkp CT:SS