Telangana High Court
Dr. Nirmala Agarwal vs Nampally Ajay Kumar on 2 August, 2022
Author: D. Nagarjun
Bench: D. Nagarjun
THE HONOURABLE DR. JUSTICE D. NAGARJUN
CRIMINAL PETITION No.8132 OF 2019
ORDER:
This petition is filed seeking quashment of S.C.No.406 of 2017 on the file of VII Additional Metropolitan Sessions Judge, Hyderabad, cognizance of which was taken against the petitioner, a medical doctor, for the offences under Section 304- II r/w. 34 IPC.
2. The facts in brief as per the charge sheet are as under:
a. The de-facto complainant is a practicing doctor, his wife deceased Rama Devi was suffering from secondary infertility on which they have consulted the petitioner/A1 on 27.06.2012 at Morpheus Juhi Infertility Hospital and after examination, she advised her to undergo diagnostic hysteroscopy (visualizing uterine cavity with light).
b. Accordingly, both the de-facto complainant and his wife reported on 11.07.2012 at 8.00 a.m. On the date of appointment, as per the schedule, the deceased and the de- facto complainant were supposed to report at 8.30 a.m., however, they reported to the hospital at 8.00 a.m. The 2 receptionist of the hospital came at 9.30 a.m., and received Rs.10,000/- towards procedural charges and gave receipt. A1 came to the hospital at 10.30 a.m. and spent some time without patients and took the deceased into the operation theatre at 11.30 a.m. The petitioner/A1 has not followed diagnostic procedure like checking B.P., ECG, etc., of the patient/deceased. The deceased was asked to be on fasting on previous day, as on the following day surgery was to be performed. The deceased was not given pre-anaesthetic check up before hysteroscopy nor administering I.V. fluids. The patient was given general anaesthesia without conducting ECG. At the time of giving anaesthesia, consultation of cardiologist and his opinion is a must.
c. Petitioner/A1 has not given mandatory counselling to the deceased prior to performing of surgery. The petitioner/A1 did not even bother about the patient body, whether patient body and mind were prepared for operation and to know whether the patient was prepared for surgery.
d. It is also mentioned in the charge sheet that the hospital is not equipped with proper operation theatre and related 3 equipments like defibrillator for giving shocks to revive the functioning of heart in case of emergency, there was no cardiac monitor, ventilator, ICU set up, air conditioner and requisite space. There was no equipment for video recording of the operation in the hospital. It is further stated in the charge sheet that petitioner/A1, Dr. Nirmala Agarwal, has informed the de-facto complainant that the patient died on account of Vasovagal shock while performing the procedure. Only conscious patient gets Vasovagal shock and the patients, who were given general anaesthesia, will not die of Vasovagal shock. On account of doctors being negligent, the deceased died. e. The investigating officer has visited the scene of offence, conducted inquest over the dead body of the deceased and found that the deceased was lying on the operation table in hospital room in supine position, there was bleeding from the vagina, injection marks were noticed on the left hand corporal area, right wrist, multiple puncture injection marks on the chest. The dead body was sent for autopsy to Osmania General Hospital.4
f. The team of doctors lead by Dr. Hari Krishna/LW.9, Professor and Head of Department of Forensic Medicine and Dr. G.Deva Raj, Assistant Professor, Department of Forensic Medicine have conducted autopsy on the corpse of the dead body of the deceased and after receiving the chemical analysis report, the team of doctors opined the cause of death as "The chemical analysis report is negative. The histopathological findings are non specific. The clinical history and post-mortem findings are suggestive of "Vaso-Vagal shock, secondary to surgical dilatation of the cervix - a known complication". After conducting post-mortem, the dead body was handed over to the relatives.
g. Since the death of the deceased was on account of the alleged medical negligence, a reference was made to A.P. Medical Council for finding out as to whether there was any negligence on the part of the doctors, who operated upon the patient. After thorough enquiry and verification of the documents of M/s. Morpheus Juhi Fertility Gynaec Centre, Masab Tank, Hyderabad and on considering the case sheet of the deceased, the Chairman, A.P. Medical Council opined that the petitioner/Dr. Nirmala Agarwal/A1 has violated the code of 5 Medical ethics vide chapter-6 of IMC Regulations, 2002 as well as provisions contained in Section 15-D of APMP Registration (Amendment) Act read with Rule 7 of APMP Rules, 2013 and that accused No.2/Dr. Mir Liaquat Ali put inadequate efforts to revive the patient as per the anaesthesia notes and thereby both of them were censured. The medical board has confirmed that both the petitioner and other accused were negligent while operating the patient.
h. Finally, the charge sheet is concluded alleging that both the petitioner/A1 and A2 have committed offences punishable under Sections 304-II r/w. 34 IPC. Aggrieved by the same, the petitioner/A1 has filed this petition for quashment of the charge sheet.
3. Sri Pradyumna Kumar Reddy, learned Senior counsel for the petitioner has submitted that the petitioner is well qualified professional having studied MBBS, DGO and MD in Obstetrics and Gynaecology and practiced for the last two decades, she has completed the certificate course in IVF and Clinical Embryology at Manipal and Cleveland, U.S.A. and running a 6 nursing home in the name of M/s. Juhi Fertility Centre for the past 10 years.
4. It is submitted further that the deceased was having inability to conceive a child in the year 2012 and that the deceased was diagnosed with primary infertility, the condition where a patient does not conceive a child more than a year of cohabitation with partner. The deceased was advised hysteroscopy, for which the deceased and her husband have accepted and gave consent in writing for carrying out the operation under general anaesthesia. The operation "Diagnostic Hysteroscopy" was carried out as per the standard medical practices and the deceased was monitored for the vital signs during the procedure. However, suddenly the deceased suffered a cardiac arrest, the petitioner and A2 gave emergency treatment, but could not save the deceased.
5. It is submitted further that the post-mortem report dated 11.07.2012 shows the cause of death as "Vasovagal shock, secondary to surgical dilatation of the cervix - a known complication", which clearly establishes that the death was caused due to medical complications, which are inherent risk of 7 operation and not due to negligence of the petitioner. Learned Senior counsel has further submitted that she is very qualified medical practitioner and vasovagal shock is possible during the course of carrying of surgery. She followed the procedure required to be followed prior to conducting surgery and that she has made all the efforts to see that the patient survives and that there is no negligence on the part of the petitioner/A1.
6. It is submitted further that the allegations levelled against the petitioner/A1 are omnibus and there are no specific overt acts against her and the charge sheet cannot be allowed to continue against the petitioner even as per the guidelines of the Hon'ble Supreme Court in State of Haryana and others vs. Bhajan Lal and others1. Finally, the petitioner has prayed the Court to quash S.C.No.406 of 2017 against her.
7. Sri E. Viswa Prasad, learned counsel for respondent No.1 has submitted that the petitioner/A1 has not followed mandatory requirements before performing the surgery and hence, the petitioner shall be prosecuted.
1 1992 Supp. (1) SCC 335 8
8. Sri S. Ganesh, learned Assistant Public Prosecutor has submitted that the contentions raised by the petitioner/A1 can be considered only during the course of trial and hence, sought for dismissal of the petition.
9. Now, the point for determination is whether the proceedings against the petitioner in S.C.No.406 of 2017 can be quashed?
10. In order to determine whether the petitioner/A1 and A2 have taken all the precautions before performing a surgery, it is required to consider as to what are the standard operating procedures a medical practitioner is supposed to take prior to performing surgery and once that is established, the next question would be whether the petitioner and A2 have followed those protocols and basing on that the Court has to decide whether there is negligence on the part of the petitioner and A2.
11. After the opinion of an expert is received by the trial Court, the Court will have to give a finding after full fledged trial as to whether the procedures followed by the petitioner/A1 are proper or not.
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12. The dead lock as to whether really the petitioner/A1 has followed the procedure or not or whether the petitioner was negligent or not will have to be decided by the trial Court after taking into consideration the entire evidence placed before it including the opinion of expert. This Court in the petition under Section 482 Cr.P.C., summarily cannot decide that the petitioner/A1 is not negligent.
13. Learned counsel for the petitioner has cited an authority reported in Dr. Suresh Gupta (1 supra) whereunder the Hon'ble Apex Court has laid down the circumstances under which a doctor can be said to be criminally negligent so as to make him to face criminal prosecution.
14. As per the said authority, it is clear that in order to prosecute a doctor, it is required to have material that the doctor was negligent and incompetent and shows disregard for the life and safety of the patient. It is also ruled further that the doctor is found to be gross lack of competence or inaction and wanton indifference to the patient safety, criminal prosecution cannot be done without adequate medical opinion pointing out the guilt.
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15. In order to conclude that the inaction on the part of the doctor in taking proper precautions as alleged by the prosecution, the trial required to be conducted, wherein the expert opinion from the medical field will be taken during the course of evidence. The trial Court records the statement of the medical officer. The evidence of doctor, who has conducted autopsy and the opinion of doctors of the A.P. Medical Council, who have found that the petitioner is negligent are very much relevant to conclude whether or not the petitioner/A1 was negligent. Therefore, at this stage, without going for the trial, it cannot be held that the petitioner/A1 was not negligent..
16. Same is the case in respect of other authority reported in Jacob Mathew (3 supra). According to the said authority, a doctor cannot be prosecuted for negligence, unless the doctor fails to do something, which in the circumstances, no medical professional in the ordinary sense would have done or failed to do. In order to determine this aspect, trial has to be conducted. In a petition under Section 482 Cr.P.C., which will have to be decided basing on the material and the charge sheet, it cannot be held that the petitioner is not negligent. 11
17. On perusal of the rival contentions and on going through the entire material on rcord, it appears to this Court that if the surgery was performed in the presence of a cardiologist or after taking opinion of the cardiologist by keeping an equipment to revive the functioning of the heart in case of heart failure, there could not have been allegation that in case if cardiologist was present there could have been chances of surviving the patient. The lapses, as narrated in the charge sheet, would certainly demonstrate that prima facie there is negligence on the part of the petitioner/A1 and A2, which likely caused the death of the deceased.
18. However, as per the charge sheet, there is prima facie material to show that the petitioner is negligent. Therefore, the petition is liable to be dismissed.
19. In the result, the criminal petition is dismissed.
Miscellaneous petitions, if any, shall stand closed.
_____________________ Dr. D. NAGARJUN, J Date: 02.08.2022 ES