Gujarat High Court
Zubedaben Bachubhai Desai & 3 vs State Of Gujarat & on 23 June, 2017
Author: Biren Vaishnav
Bench: Biren Vaishnav
R/CR.MA/1412/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 1412 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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ZUBEDABEN BACHUBHAI DESAI & 3....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR RUSHABH R SHAH, ADVOCATE for the Applicant(s) No. 1 - 4
MR. NILAY A THAKER, ADVOCATE for the Respondent(s) No. 2
MR NISARG P RAVAL, ADVOCATE for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 23/06/2017
ORAL JUDGMENT
1. Present application has been filed by the doctors. They are constrained to approach this Court as criminal proceedings were Page 1 of 17 HC-NIC Page 1 of 17 Created On Sun Aug 20 05:33:51 IST 2017 R/CR.MA/1412/2010 JUDGMENT initiated against them. They have come forth for quashing of Criminal Case No. 608 of 2005 pending before the learned Metropolitan Magistrate, Court No. 13, Ahmedabad.
2. Facts in the nutshell are as under:
Memunaben Salar was ill for sometime. She had gynaec problem. In order to avail medical treatment, the patient Memunaben consulted applicant No.1, Dr. Zubedaben Bachubhai Desai. After examining the patient, accused No.1- applicant No.1 adviced that Memunaben should undergo hysterectomy. On such advice, Memunaben-respondent No.2, complainant's wife got herself admitted at Samved Hospital on 20.10.2004. Dr. Kashyap Shah, applicant No.2-accused No.2 examined her in his capacity as anaesthetist and adviced her not to take any food. On 20.10.2004, at around 9.15 she was taken to the operation theater. Hysterectomy was to be performed. At 12 O'clock in the afternoon she was shifted to the ICU. Since Memunaben, the patient could not speak and was unconscious, the complainant-first informant and his sister-in-law approached the doctors to find out the reason of such state of patient. It appears that the patient Memunaben went into coma and was discharged by the doctors of the Samved Hospital and shifted to the Civil Hospital on 11.11.2004. While undergoing treatment, wife of the complainant, respondent No.2 died on 18.11.2005 at the Civil Hospital. The complainant-husband therefore, initiated criminal action against the doctors, accused Nos. 1 to 4, the applicants herein, by filing First Information Report on Page 2 of 17 HC-NIC Page 2 of 17 Created On Sun Aug 20 05:33:51 IST 2017 R/CR.MA/1412/2010 JUDGMENT 10.11.2004. Reading of the first information report indicates that it is a case of the complainant that deceased Memunaben was suffering from gynaec problem for the last two to three years. On the advice of the applicant, accused No.1 she was admitted to the Samved Hospital on 20.10.2004. On 21.10.2004 surgical intervention was carried out without taking pre-
operative care and tests, as required. Memunaben was brought out of the operation theater in an unconscious state. She slipped into coma. The doctors, as alleged in the complaint, admitted that they had committed a mistake and therefore, promised not to charge fees for the surgical intervention. According to the complainant, Memunaben went into coma as a result of the negligence of the doctors. The First Information Report was, therefore, filed against the doctors invoking sections 337 and 114 of the IPC.
3. Since Memunaben died on 18.11.2005, an application was moved before the Magisterial Court to include section 304 of IPC.
4. An application was moved by the accused doctors, applicants herein, for discharge before the Metropolitan Magistrate, Ahmedabad. By an order under challenge dated 29.09.2009, the learned Magistrate dismissed the application for discharge on the ground that the Court cannot discharge such an accused without leading evidence.
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5. According to the Magistrate unless the trial was conducted and evidence led, it cannot be concluded that the doctors have committed negligence. The discharge application was therefore rejected. Aggrieved by this order, the present application has been filed by the doctors seeking quashing of the criminal proceedings.
6. Learned senior advocate Mr. Anandjiwala for the applicant has contended that it was on the advice of the applicant No.1 Dr. Zubedaben Desai that the patient was admitted to the hospital on 20.10.2004. After due pre-operative tests on 14.10.2004, it was decided that surgical intervention would be necessary and to be performed on 21.10.2004. The patient Memunaben was taken to the operation theater. The Anaesthetist, accused No.2 Kashyap Shah, who had examined the patient on the previous night, administered the spinal injection anaesthesia based on the postoperative notes which are part of the papers of the charge sheet. It was pointed out by learned advocate Mr. Anandjiwala that during the surgery and administration of the Anaesthetist the patient had a cardiac arrest. Measures were taken for resuscitation of the patient. After taking due care and caution and taking such measures of resuscitation, the patient was shifted to the ICU.
Mr. Anandjiwala for the applicant has taken the medical literature, according to which, spinal anesthesia when conducted, has proved to be extremely safe. However, in some Page 4 of 17 HC-NIC Page 4 of 17 Created On Sun Aug 20 05:33:51 IST 2017 R/CR.MA/1412/2010 JUDGMENT cases it would cause hypoxemia, hypoxia of the brain. Such hypoxia cannot be attributed to the negligence of the anesthetist or the team of the doctors performing surgery so as to attribute charge of negligence on part of such doctors. According to Mr. Anandjiwala it would therefore not be in the fitness of things that criminal proceedings initiated against the doctors particularly, section 304 to be continued. Medical professional when found to have taken reasonable care and caution, cannot be exposed to criminal prosecution more particularly, under section 304A of IPC, according to Mr. Anandjiwala when they have taken due care and caution. According to him, papers alongwith charge sheet particularly the post operative notes indicate that care has been taken for the patient. The note reflects that resuscitation measures were started immediately and it cannot be said that the doctors at the hospital were negligent. Moreover, the complainant's wife, deceased Memunaben died on 18.11.2005 nearly after one year of the operation. The complaint was filed 20 days after the surgery was undertaken. Mr. Anandjiwala has relied on the judgement of the Supreme Court in case of Jacob Mathew vs. State of Punjab reported in (2005) 6 SCC 1. Heavy reliance is placed on paras 11 and 12 of the judgement to contend that in case of medical professionals it is not reasonable to fasten liability under the criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. The essential ingredient of mens rea cannot be excluded from consideration. According to Mr. Page 5 of 17 HC-NIC Page 5 of 17 Created On Sun Aug 20 05:33:51 IST 2017 R/CR.MA/1412/2010 JUDGMENT Anandjiwala in order to hold the existence of criminal rashness or criminal negligence, it shall have to be found that the rashness is of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. Taking recourse of the medical literature on record, it is submitted by Mr. Aanandjiwala that in case of spinal anesthesia administered it could in some cases, result in hypoxia and could result caridac arrest. Necessary follow up and medical attention was provided to the patient and it can not be a case where the doctors can be held to be culpable for the offence under section 304A of the IPC.
7. Mr. Nisarg Raval appearing for the complainant original respondent no.2 has contended that if the first information report is read, it is evident that no pre-operative procedure was carried out vis-a-vis the patient and therefore culpability of the doctors was eloquent in as much as the feasibility and the result of the patient slipping into coma and then the death occurred on 18.11.2005 was a direct fall out of the medical negligence that the doctors on hand. Taking note of the contents of the first information report Mr. Raval has contended that it is apparent on reading the first information report and chargesheet in question filed by the Investigating Officer that anesthesia was administered to the patient. No pre- operative care was taken. Therefore, the doctors concerned were culpable for gross negligence and carelessness and therefore liable for prosecution under sections 337, 304A and 114 of IPC. He has relied upon Page 6 of 17 HC-NIC Page 6 of 17 Created On Sun Aug 20 05:33:51 IST 2017 R/CR.MA/1412/2010 JUDGMENT judgement of Supreme Court reported in case of Mahadev Prasad Kaushik vs. State of U.P and anr reported in 2009 (1) GLH 220. Mr. Raval has drawn my attention to the relevant portion of the judgement and pointed out that in a case where allegations are made including section 304A of IPC and when prima facie it has been established that it is a case of medical negligence on part of the doctors merely because of the parameters laid down in the case of Jacob Mathew (supra) doctors cannot be let off the hork and not exempted from facing criminal investigation. Mr. Raval has also relied on the decision of Supreme Court in case of B.Jadish and anr vs. State of Andra Pradesh and anr reported in (2009) 1 SCC 681 to contend that the Court has the limited jurisdiction in exercise of powers under section 482 of the Code of Criminal Procedure and in absence of further investigation and trial, this Court in exercise of powers under section 482 of the Code of Criminal Procedure cannot quash the complaint. Judgement in case of State of Rajasthan vs. Fatehkaran Mehdu reported in (2017) 3 SCC 198 was cited by Mr. Raval in support of his contention that the Court should not exercise extraordinary discretion powers under Article 482 to quash the proceedings. Mr Raval supported the order of the Magistrate rejecting the discharge application.
8. Having heard learned counsel for the parties and having perused the papers annexed to the charge sheet which have been made available to the Court, the question that needs to be answered is Page 7 of 17 HC-NIC Page 7 of 17 Created On Sun Aug 20 05:33:51 IST 2017 R/CR.MA/1412/2010 JUDGMENT whether the doctors should be exposed to prosecution under section 304A of IPC when in their due discharge of duties as medical professional, it cannot be held that there was negligence in performance of the duty as medical professionals. From the facts on hand, it is evident that the patient deceased Memunaben was suffering from a gynaec problem for the last two to three years as is evident from the complaint itself. That on the advice of accused No.1-applicant No.1, she was admitted to the Samved Hospital on 20.10.2004 to undergo a surgery on 21.10.2004. Looking to the medical case papers it reveals that though the complainant has stated that no pre operative care or tests were carried, medical papers do reveal that pre-operative tests were carried out of the patient. Spinal injection was administered by the anesthetist which, according to the doctors and the papers of the post-operative care, indicates resulted in cardiac arrest. The doctor, as indicated from the post operative papers, tried to resuscitate and sufficient measures were taken to see that the patient comes out of such a situation. It appears that as a result of Hypoxia of the brain which was as a result of such administering of the anesthesia, the patient was slipping into coma. Subsequently patient died on 18.11.2005.
9. Can the team of doctors who performed a surgery held to be culpable gross or negligence is the question that needs to be answered.
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10. As extensively considered in case of Jacob Mathew, the term "negligence" in case of medical professional needs to be established with reasonable degree of care and caution. To fasten the liability in criminal law as far as criminal professionals are concerned the degree of negligence has to be higher than that of ordinary negligence as in case of civil law. The Supreme Court while relying on several judgements has stated as under:
"Negligence by professionals
18. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a Page 9 of 17 HC-NIC Page 9 of 17 Created On Sun Aug 20 05:33:51 IST 2017 R/CR.MA/1412/2010 JUDGMENT professional may be held liable for negligence on one of 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 necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable.
19. An Oftquoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair J. in Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582, 586 in the following words: "Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill A man need not possess the highest expert skill. . . It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."
20. The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and well- condensed one. After a review of various authorities Bingham L.J. in his speech in Eckersley v. Binnie, [1988] 18 Con.L.R. 1, 79 summarised the Bolam test in the following words:-
Page 10 of 17HC-NIC Page 10 of 17 Created On Sun Aug 20 05:33:51 IST 2017 R/CR.MA/1412/2010 JUDGMENT "From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet."
21. The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England:-
"35. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the Page 11 of 17 HC-NIC Page 11 of 17 Created On Sun Aug 20 05:33:51 IST 2017 R/CR.MA/1412/2010 JUDGMENT defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
Abovesaid three tests have also been stated as determinative of negligence in professional practice by Charlesworth & Percy in their celebrated work on Negligence."
11. It is in the fitness of things to observe that Supreme Court has observed that when the medical practitioner is faced with an emergency ordinarily he 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. In the background of this fact the Supreme Court in para 48 of the judgement observed as under:
" 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'.
(2) Negligence in the context of medical profession necessarily
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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 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 Page 13 of 17 HC-NIC Page 13 of 17 Created On Sun Aug 20 05:33:51 IST 2017 R/CR.MA/1412/2010 JUDGMENT applicability in India.
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
(6) The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304A of the IPC has to be read as qualified by the word 'grossly'.
(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence."
12. As is evident from the facts on hand and on perusal of the medical papers which according to Mr. Raval suggest of culpability, it is evident that all due care and measures were Page 14 of 17 HC-NIC Page 14 of 17 Created On Sun Aug 20 05:33:51 IST 2017 R/CR.MA/1412/2010 JUDGMENT taken to resuscitate the patient after the cardiac arrest. The doctors made an attempt to see that the patient is revived. Merely because the patient was then adviced to be shifted to the civil hospital would not indicate the admission of their culpability in their case. It is not the case of the complainant that such culpability of the doctors was as a result of something that they did which they were not qualified to do. The professional can be held liable for negligence when the doctors did not exercise with reasonable care in a given case the skill which he did possess. Facts on hand suggests that it is not a case where the doctor did not exercise due care and caution so as to culpability of offence under section 304A of the IPC.
13. Further the case of Jacob Mathew has been followed by the Supreme Court in case of A.S.V.Narayanan Rao vs. Ratnamala reported in 2013 (0) GLHEL SC 54425 and in case of Dr. Sou Jayshree Ujwal Ingole vs. State of Maharashtra and anr reported in AIR 2017 SC 2078. The Supreme Court in case of Dr. Sou Jayshree Ujwal Ingole vs. State of Maharashtra and anr (supa) has observed as under:
"9. Applying the law laid down in Jacob Mathew's case (supra), we are of the view that this is not a case where the appellant should face trial especially when 20 years have already elapsed. The only allegation against the appellant is that she left the patient. We must remember that the appellant was a Surgeon on Call. She came to the hospital when she was called and examined the patient. As per her judgment, she could find no evidence of bleeding or injury and, therefore, she had noted Page 15 of 17 HC-NIC Page 15 of 17 Created On Sun Aug 20 05:33:51 IST 2017 R/CR.MA/1412/2010 JUDGMENT that a Physician be called. Thereafter, she left the hospital at about 11.00 p.m. True it is that she did not wait for the Physician to come, but it can be assumed that she would have expected that the Physician would come soon. This may be an error in judgment but is definitely not a rash and negligent act contemplated under Section 304-A IPC. It is nobody's case that she was called again by the Nursing staff on duty. If the condition of the patient had worsened between 11.00 p.m. and 5.00 a.m., the next morning, the Nursing staff could have again called for the appellant, but they did not do so. Next morning, the doctor on Emergency Duty, Dr. Mohod attended upon the patient but, unfortunately, he died."
14. The support led by learned advocate Mr. Nisarg Raval on the judgements referred hereinabove when examined the facts of the case to indicate as under:
In case of Mahadev Prasad Kaushik vs. State of U.P and anr (supra) the patient had complained of pain. Doctor administered three injections as a result of which, the colour of the body of the patient turned blue and within half an hour, the patient died.
On facts the Court found the allegations that the doctor was stocking poisonous injections and illegal drugs in his clinic. In the background of these facts the Supreme Court observed that there may be cases where the parameters of the case of Jacob Mathew could not be followed and could be susceptible the under section 304A of IPC.
15. Facts on hand indicate that such was not a case. As far as judgements relied upon by Shri Raval limiting the scope of Page 16 of 17 HC-NIC Page 16 of 17 Created On Sun Aug 20 05:33:51 IST 2017 R/CR.MA/1412/2010 JUDGMENT interference under section 482 of the Criminal Procedure regarding quashing of complaint is concerned when it is evident from the facts on hand that the doctors had taken due care and caution and therefore should not be exposed to criminal prosecution for the act which cannot be termed as negligence as indicated in the judgement of the Supreme Court in case of Jacob Mathew (supra), it will be futile for the doctors to undergo rigors of criminal investigation and face prosecution.
16. In the result, the petition is allowed. Order dated 29.09.2009 passed by the Metropolitan Magistrate, Court No. 13 Ahmedabad in Criminal Case No. 608 of 2005 is quashed and set aside. The criminal proceedings initiated against the applicants should not therefore proceed. Direct service is permitted. Direct service is permitted.
(BIREN VAISHNAV, J.) Jyoti Page 17 of 17 HC-NIC Page 17 of 17 Created On Sun Aug 20 05:33:51 IST 2017