Karnataka High Court
Dr M Parvathi vs State Of Karnataka on 14 September, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL PETITION No.3432 OF 2012
BETWEEN:
1. Dr. M. Parvathi
M.B.B.S., DGO, DNB,
W/o. Mr. Ravindra V.P,
Aged about 38 years,
No.178, 4th Main,
3rd Cross, Corporation Colony,
Govindrajnagar,
Bengaluru-560079.
2. Dr. N. Venkatesh
M.B.B.S., MD.,
DGO, DNB, DICOG,
S/o. Sri. K. Nagaraj,
Aged about 47 years,
No.376, 9th Main,
43rd Cross, Jayanagar V Block,
Bengaluru-560041.
3. Dr. Shoba
M.B.B.S., MD,
W/o. Late Sri. M. Sreedhar,
Aged about 49 years,
No.C-310,
Sena Vihar,
Kamnahalli Main Road,
Bengaluru-560043. ...Petitioners
(By Sri. N.C. Mohan, Advocate)
Crl.P.No.3432/2012
2
AND:
1. State of Karnataka
Rep. by Ashoknagar Police Station,
Bengaluru.
2. Sri. R. Mahesh Kumar,
S/o. Late Sri. Rangaswamy,
Aged about 42 years,
No.330/5, 6th Block,
1st Cross, Yediyur, Jayanagar,
Bengaluru-560 011. ...Respondents
(By Sri. A. Ram Mohan, Advocate for R-2;
Sri. Chetan Desai, HCGP for R-1)
This Criminal Petition is filed under Section 482 of
Cr.P.C praying to quash the charge sheet in
C.C.No.25164/2008 filed in pursuance to investigation in
Cr.No.552/03 of the 1st respondent police and all proceedings
in C.C.No.25164/2008 pending on the file of the XI A.C.M.M.,
Bengaluru.
This Petition coming on for Hearing, this day, the Court
made the following:
ORDER
A perusal of the material placed before this Court at this stage, go to show that the petitioners are medical doctors by profession and were working at St. Philomena's Hospital, Bengaluru in the relevant year Crl.P.No.3432/2012 3 i.e., 2003. A patient by name Mrs. Swapna who was pregnant, was admitted to the said hospital for treatment on 15.08.2003, on the complaint that she was bleeding. According to the petitioners she was appropriately treated and she delivered to a baby girl on 18.08.2003. Thereafter, she developed complications and died in the hospital on 27.08.2003. Respondent No.2 who is the husband of said deceased Swapna, filed a complaint with respondent No.1-Police alleging that his wife Swapna died due to negligence of the petitioners. A case was registered in Crime No.552/2003 against the present petitioners for the offence punishable under Section 304-A read with Section 34 of Indian Penal Code, 1908 (hereinafter referred as the 'IPC' for the sake of brevity). Respondent No.1-Police have also filed charge sheet against the present petitioners for the offence punishable under Section 304-A read with Section 34 of IPC. The case was numbered as Crl.P.No.3432/2012 4 C.C.No.25164/2008, which is now pending on the file of XI Additional Chief Metropolitan Magistrate, Bengaluru. The petitioners through this petition have sought for quashing of the charge sheet filed in the said C.C.No.25164/2008.
2. Learned counsel for the petitioners apart from producing a certified copy of the order passed by the Karnataka Medical Council in Enquiry No.8/2003 dated 15.11.2007, also canvassed his arguments submitting that the post mortem report in its final opinion opines that the death was due to septicaemia consequent upon the post partum infection of the uterus. However, there are no documents as to the source of infection. The alleged negligence cannot be attributed on the part of the petitioners who were the treating doctors of the deceased. Learned counsel further submitted that the Karnataka Medical Council, Crl.P.No.3432/2012 5 on the complaint filed by the present respondent No.2 and also the investigation request made by the complainant-police, have held an enquiry and has warned the doctors holding that there was deficiency in service on the part of the St. Philomena's Hospital, Bengaluru. Finally, referring to a judgment of the Hon'ble Apex Court in the case of Jacob Mathew Vs. State of Punjab and Another reported in (2005) 6 SCC 1, learned counsel submitted that the alleged act of the doctors as stated in the complaint even if it is taken as true on its facial value, would not constitute medical negligence triable under Section 304-A of IPC. As such, taking of very cognizance by the learned Magistrate, that too without any cogent reasons, deserves to be set aside.
3. Learned counsel for respondent No.2 in his argument submitted that a pregnant lady nearing to the Crl.P.No.3432/2012 6 date of delivery complaining of bleeding is not an un- common factor. As such, when the deceased was admitted to the hospital with the complaint of bleeding the doctors should have properly taken care of her, on the contrary, the doctors were so negligent in sending the said patient for scanning to a private establishment in an auto rickshaw. The medical records as well the complaint go to show that the very same doctors had advised that the deceased should not be moved or allowed to move even to attend her nature's call, in such a situation, sending her to medical scanning in an auto rickshaw is nothing but gross negligence on the part of the doctors. Learned counsel further submitted that there is no history of infection when the patient was admitted to the hospital. Even according to the medical report, the alleged infection was subsequent to the development that has taken place when the patient was under treatment. The cause for infection Crl.P.No.3432/2012 7 may be the lack of hygiene or improper sterilization of surgical instruments etc. Learned counsel further stated that the Karnataka Medical Council also has held the present petitioners as medically negligent and which finding has reached its finality, so also, the Consumer Forum which has also held that there is deficiency of service, has proved the case of the complainant that there is medical negligence on the part of the petitioners.
4. In Jacob Mathew's case (supra), wherein the issue of medical negligence is involved, the Hon'ble Apex Court at para No.48 of its judgment summed up its conclusion in the following words:
"(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 Crl.P.No.3432/2012 8 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 Crl.P.No.3432/2012 9 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:
Crl.P.No.3432/201210
either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam case, WLR at P.586 holds good in its applicability in India.
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law.Crl.P.No.3432/2012 11
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. Crl.P.No.3432/2012 12
The hazard taken by the accused doctor should be of such 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."
5. In the same case, Hon'ble Apex Court was further pleased to observe that a private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused. The Investigating Officer should, before proceeding against the doctor accused of rash and Crl.P.No.3432/2012 13 negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service. At the same time, the Hon'ble Apex Court also cautioned that it should 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 they 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.
6. Keeping the above guidelines in mind, now the case on hand is to be looked in to. It is not in dispute that Mrs. Swapna was admitted with the complaint of bleeding on 15.08.2003 to the St. Philomena's Hospital, Bengaluru. The complainant, Crl.P.No.3432/2012 14 who is none else than the husband of deceased Swapna, in his complaint, has given detailed account as to the individual role of each of the petitioners herein. He has stated that petitioner No.1-accused No.1, Smt. Dr. Parvathi suggested for scanning in a private scanning centre, which was away from the hospital. The complainant also stated that the patient was advised not to move including to attend nature's call, as such, arrangement was made for the dischargal of urine while the patient was on the cot. In such a situation, since petitioner No.1-accused No.1/doctor advised for scanning at an outside scanning centre, the relative of the deceased who was attending the patient, questioned the Doctor, for which she was not given a convincing reply. Therefore, the patient had to be carried out in an auto rickshaw to the private scanning centre. Crl.P.No.3432/2012 15
7. Further, the complainant has also stated that when the family of the patient including himself questioned the doctor as to why the patient was referred to an outside scanning centre, though such facility was available in that hospital itself, the doctor is said to have taken the name of petitioner No.2-accused No.2 as the one, on whose words they are acting. The complainant has given a detailed account with respect to the alleged role of petitioner No.2-accused No.2.
8. The complainant further stated that after the delivery of a baby girl, his wife/patient was complaining of severe stomach ache and when the same was brought to the notice of the doctor, they got her administered several medicines and ultimately stated that her liver has got infected. The complainant has also stated that on 26.08.2003, the doctor also told him that his wife is affected with mosquito bite and as per the advise of the Crl.P.No.3432/2012 16 doctor, she was tested for dengue, which result was in positive. However, on the same night Mrs. Swapna passed away. The complainant in his very complaint has also stated that even after the death of Swapna, the doctors gave a long list of medicines and drugs and asked them to bring it immediately, for which the family members of the complainant were stated to have protested stating that after the death of the patient, there is no necessity of any further medication. In these manners, the complainant in his very complaint itself has given a detailed account as to what transpired in the hospital and as to how according to him, the alleged conduct of doctors (petitioners) was with some negligent attitude. He has categorically alleged that it is due to negligence of the doctors and for the improper treatment, his wife succumbed to death. Thus, the complaint on its facial value and by prima facie reading Crl.P.No.3432/2012 17 at the out set, gives the detailed account of the alleged negligence on the part of the petitioners/accused.
9. The post mortem report, which is also produced along with the petition shows that the doctor who conducted autopsy has opined that the death is due to septicaemia consequent upon the post partum infection of the uterus. Keeping this point in front, learned counsel for the petitioners contended that nowhere the post mortem report whispers anything about the alleged medical negligence on the part of the treating doctors, and there is no material to ascertain as to what is the source of infection, as such, even prima facie also, negligence cannot be attributed on the part of the petitioners/accused. The fact that no medical records were placed before this Court go to show that the patient was not infected when she got admitted to the hospital.
Crl.P.No.3432/201218
10. The allegations made in the complaint, so also, the papers placed before this Court at this stage go to show that the alleged complication in the health condition of the patient commenced only after she was admitted to the hospital and that too, particularly after the delivery of a baby girl by her. Generally, Post mortem report need not necessarily show the cause of infection or the source of infection, unless the affected organ of the body or the injuries if any, could exhibit it. In the instant case, according to the complainant, the doctors have stated that the infection is to the part of the liver, as such, the post mortem report has only stated in its final opinion that the death is due to septicaemia consequent upon the post partum infection. How the septicaemia was resulted would be the subject matter of trial.
Crl.P.No.3432/201219
11. At this stage, based upon the available records, it cannot be concluded that the cause of septicaemia is outside the scope of the activities of treating doctors with respect to the deceased patient. As such, merely because the source of infection cannot be identified or noticed from the post mortem report, by itself it cannot be concluded that the petitioners are innocents. Further, at the same time and at this stage, it also cannot be concluded that they are guilty of negligence. But, suffice it to say that the serious allegation of medical negligence is leveled against them, which allegation has got some materials to corroborate the same.
12. One more corroboration for the alleged medical negligence on the part of the present petitioners/accused is the finding of the Karnataka Medical Council, which in its enquiry conducted against Crl.P.No.3432/2012 20 the petitioners under the Enquiry No.8/2003, by its order dated 15.11.2007, has held that the petitioners are found to be negligent. The operative portion of the order passed by the Karnataka Medical Council is reproduced herein below:
"K.M.C. after examining all the available evidences, deposition made by both the Complainant and the Respondents, considering the histopathological and P.M. report, unanimously concluded that death was due to Post Partum haemorrahage and Septicaemia due to infection in the Uterine cavity and skin. The said Respondents were casual in their approach to the patient and trying to shift the blame from one to the other and ultimately no one was totally responsible to save the patient and the patient died due to negligence on the part of the respondents. The cause of death is Septicaemia. The Hospital cannot escape the responsibility as there is clear evidence that infection of the Uterine cavity and the skin lead to Septicaemia and death. In the result, the Respondents (1), (2), (3) and (4) have been administered a Crl.P.No.3432/2012 21 "WARNING" under Section 15 of Karnataka Medical Council Act. Similarly administration of St. Philomena's Hospital have been "WARNED" for their deficiency in service resulting in the death of Smt. Swapna W/o Mr. Maheshkumar."
13. In clear terms, the Karnataka Medical Council, which is a professional regulatory body comprising of the expert doctors, has given a finding that the respondents/petitioners herein were casual in their approach to the patient and trying to shift their blame from one to the other and ultimately no one was totally responsible to save the patient and the patient died due to negligence on the part of the respondents. Thus, it cannot be lost sight of the fact that the Medical Council in its finding in unequivocal terms, has held that there is negligence on the part of the respondents/petitioners herein. The medical professional body after analysing the materials placed before it and after hearing both side, has come to a conclusion that Crl.P.No.3432/2012 22 there was negligence on the part of the respondents- petitioners herein. The said observation given by none else than the Karnataka Medical Council also cannot be ignored. The said aspect also go to show that the allegations made in the complaint finds its corroboration even in the order passed by the Karnataka Medical Council in the enquiry. Thus, there are materials to proceed further against the petitioners herein/accused for the offence alleged against them.
14. Thirdly, the fact that the alleged positive result for dengue also cannot be ignored. It is nobody's case that when the patient was admitted to the hospital she had the complaint of mosquito bite or any symptoms leading to dengue. Admittedly, she was in the hospital under treatment for not less than twelve days. It is only after ten or eleven days, the doctor suspected dengue fever with her. Incidentally, the report also Crl.P.No.3432/2012 23 came in positive. Thus, for the previous eleven days, she was in the hospital under the care and treatment of the doctors/petitioners. The alleged infection of dengue if has happened in the hospital while under treatment, also cannot be lost sight of at this stage. Therefore, all these aspects show that there are materials to subject the petitioners for trial. As such, though by virtue of Jacob Mathew's case (supra) generally the doctors shall not be subjected to harassment or frivolous criminal litigation for the alleged medical negligence, the present case appears to be an exception to it.
15. There are materials to the alleged medical negligence on the part of the present petitioners- accused to subject them for trial for the alleged offence. Thus, I do not find any reason to quash the criminal proceedings pending against them. Accordingly, while making it clear that the finding in this order would not Crl.P.No.3432/2012 24 come in the way of the trial Court coming to independent opinion/conclusion in the trial to be conducted by it, the petition stands dismissed.
Sd/-
JUDGE BMC