Delhi District Court
State vs . Omkar Parmar Etc. on 22 November, 2007
IN THE COURT OF SHRI J.P. NAHAR : M. M.
NEW DELHI
STATE VS. OMKAR PARMAR ETC.
FIR NO. : 212/95
P.S. : G.K.I
U.S. : 304A IPC
JUDGMENT :
1.Sr. No. of the Case : 74/2
2.Name of complainant : P.K. Batra
3.Date of incident : 13.6.1995
4.Date of Institution of case : 03.02.1997
5.Name of accused :1. Dr. Omkar M. Parmar s/o Sh.
Motilal Parmar
R/o H-73-C, Saket,
New Delhi.
2. Dr. N. Dutta s/o
Late Sh. P.N. Dutta
R/o 216, Ashoka
Enclave Extn.I, Sector -34,
Faridabad,
Haryana.
6.Offence complained of : U/s 304A IPC
7.Plea of accused : Pleaded not guilty
8.Final order : Convicted
9. Date of Reservation of judgment:22.11.2007
10.Date of such Order : 22.11.2007
11.BRIEF REASONS FOR SUCH DECISION :
The accused Dr. Omkar M. Parmar and Dr. N. Dutta were sent up for trial on the allegation that on 13.6.1995 between 9.45 to 11.30 p.m. at Sukhda Hospital, LSC Near R Block, Greater Kailash-I New Delhi within the jurisdiction of P.S. Greater Kailash-I, New Delhi, Dr. Omkar M. Parmar was being surgeon in the hospital conducted operation upon the child Gaurav, aged about 13 years for Tonsillitis in a rash and negligent manner and Dr. Nirpendra Dutta being an Anesthetist in the hospital administered anesthesia to the patient and child did not regain consciousness after the operation and died at about 1.30 p.m. and caused his death, not amounting to culpable homicide.
2. After the registration of the FIR, the police conducted necessary investigation and filed the challan u/s 304A/34 IPC against the accused.
3. After the filing of the challan, both accused persons were summoned, copies were supplied to the accused and notices for the offence punishable u/s 304A/34 IPC was framed against the accused by my Ld. Predecessor Court on 05.09.98, to which, they pleaded not guilty and claimed trial.
4. In support of its case, the prosecution has examined PW1 HC Shrikishan Gupta, PW 2 Dr. Prashant Kulshrestha, PW 3 Dr. SK Bhattacharya, PW4 Dr. O.P. Murty, PW5 Dr. R.K. Gupta, PW6 K.S. Rana, PW7 Sh. Prem Kumar Batra, PW8 Krishan Kumar Batra and PW9 Dr. LC Gupta, PW10 Ct. Kushal Singh, PW11 Dr. Anita Sarkar, PW12 Ct. Shyam Lal, PW13 ASI Dablu Oraon PW14 SI Rishipal Sharma and PW15 Insp. Govind Sharma.
5. After closer of prosecution evidence, statement of accused u/s 313 Cr.P.C. was recorded, wherein, accused have denied the allegations, alleged. Two witnesses have been examined by accused N. Dutta in defence.
6. I have heard the arguments of Ld. APP on behalf of the State and the Ld. Defence Counsel on behalf of the accused and have gone through the documents on record, carefully.
7. U/s.304A IPC the prosecution has to prove as under;
8. In the treatise of Ratanlal and Dhirajlal's in Law of Crimes the 24th Ed., described following main ingredients: - The following requirements must be satisfied before this section will apply;
(1) Death of any person must have been caused.
(2) It must have been caused by rash and negligent act.
(3) Such act must not amount to culpable homicide.
9. The prosecution has to prove that the act of the accused person is a negligent act. The accused Omkar M Parmar had conducted the surgery and the accused Nripendra Nath Dutta had administered the dose of anesthesia.
10.The conduct of both the accused is examined.
11.PW7 is the complainant in the case. He has deposed that on advise of family and friend he contacted the accused for treatment of his child Gaurav Batra aged about 13 years. From time to time he contacted the doctor and advise for treatment of his son through conducting an operation was given on 03.06.1995. He has deposed that on 13.06.1995 he took his son at Sukhda hospital opposite Pamposh Enclave G.K.-I, Delhi for the purpose of conducting of operation of tonsillitis. PW7 reached along with his son Gaurav at the Hospital at about 9:00 AM. The child was taken into the operation theatre around 9:45 AM by the accused Omkar and his operating team. Around 10:30 am the accused Omkar came out of the Operation Theatre (hereinafter referred as OT) and informed the PW7 that the child was fine after the conducting of operation. The child was brought out of the OT only about 11:45 AM on a stature for shifting to Room No.210 already allotted to the guardians of the child Gaurav who is PW7 in the present case.
12.It is deposed by PW7 that the child was brought in an unconscious state out of OT and remained in unconscious condition till he was declared dead by the doctor/accused Omkar at about 1:30 PM. It is deposed that before the examination of the child the finger nails of the child were noticed by PW7 which had turned blue. PW7 has deposed that his brother Mr.K.K.Batra was also there. It is submitted that a show of resuscitation was done by the accused after asking the family members of the victim to go out of the room.
13.It is deposed by PW7 that he gave his complaint to police station G.K.-I on the same day which is proved by him as Exhibit PW7/A which is running into three pages and bears his signature at the encircled point A. It is deposed by PW7 that no cause of death was told to them by the Administration of Sukhda Hospital and keeping in view the conduct of the Sukhda Hospital he gave the hospital prescription, diagnostic report and the death certificate to the police with a request of conducting of post mortem of the child Gaurav at an independent Hospital or AIIMS. The body of the child was taken by the complainant to his house with permission and reported on next day at AIIMS Hospital as per instructions of the police i.e., 14.06.1995. The body was handed over to the complainant's family after conducting of post mortem and the dead body was identified by PW7 vide his statement Exhibit PW7/B bearing his signatures at point A. The receiving of the dead body is identified by PW7 vide Exhibit PW7/C bearing his signatures at point A. The papers given by the complainant along with the complaint are proved on record as Mark A1 to Mark A5. The accused Dr.Omkar Parmar and Dr.N.Dutta were identified by the complainant/PW7 in the Court.
14.PW8 / Sh. Krishan Kumar Batra has deposed that on 13.06.1995 he had gone to Sukhda Hospital at about 10:45 AM where his nephew Gaurav Batra was being operated for tonsillitis operation. He met his brother PW7 and wife of PW7 outside the operation theatre. He waited outside the operation theatre and about 11:45 AM he had seen that the operated child was brought out of the operation theatre. PW8 tried to speak to the child but the child was not responding. The PW7 and his wife also tried to talk with the child in his presence but the child was not responding. From lift the child was taken to the room and they went by stairs to the room where the child was shifted. In the shifted room the doctor Parmar along with Dr.Dutta came in whose presence the child was unconscious and the child developed involuntary movements of legs and Dr.Parmar assured that the child was coming out of unconsciousness. Both the doctors left the room and around 12:30 to 12:45 PM the person present in the room including PW8 had noticed that the child's nail were turning blue. The PW7 ran out of the room to call the doctor. One lady doctor came along with one nurse and after some instructions to Nurse by that doctor all the attendants to the patients were asked to leave the room. Thereafter several other doctor and staff entered the room. At about 1:15 PM Dr.Parmar came and went into the room. Dr.Parmar came out of the room and told PW7 in the presence of PW8 that the doctor is sorry that PW7 has lost his son.. PW8 has deposed that he informed the police of police station Greater Kailash about the fact and circumstances of the case. The police took dead body for post mortem after collecting the same from the home of PW7 and next day PW8 also went to AIIMS Hospital, Delhi. He identified the dead body of his nephew in the AIIMS Hospital and gave his statement which is Exhibit PW8/A on the record and PW8 had identified his signatures at point A. The receipt of dead body is proved by PW8 as Exhibit PW7/C bearing his signature at point B.
15.Before proceeding further it is useful to refer the medical text referred by both the parties.
16.Scott-Brown's treatise on Diseases of the Ear, Nose and Throat, Fourth Edition, Volume 4 at page 154 how post operative treatment be provided to a patient is mentioned which is as follows.:
17.Protection of airway.
Retain patient in operating theatre area until conscious.
(1) Until patient has recovered sufficiently to cough spontaneously and protect his own airway, the laryngeal inlet must be kept clear of blood or vomit.
(a) Turn patient on side immediately after operation without a pillow so that larynx is higher than operation site. It is further mentioned in the book that the position immediately following extubation should be such that if any bleeding does occur the blood will run out of the mouth and nose and not into an unprotected larynx. Thus the child should lie on his side with his head below the level of the shoulders.
(b) Insert artificial airway in mouth.
(c) Hold mandible forwards, closed on airway to keep base of tongue clear of posterior pharyngeal wall.
(d) Have electrical suction apparatus near patient with catheter that will pass down the artificial airway, together with a Yankauer's suction tube.
(2) Relief of laryngeal spasm. If patient goes into spasm and cyanosis develops:
(a) Make sure artificial airway is in correct position with mandible held forward and closed. If this fails:
(b) Apply oxygen mask an attempt manual inflation with bag. If this fails:
(c) Insert laryngoscope. Aspirate clot, mucus, or other matter from larynx (usual cause of spasm). If spasm continues inject suxamethonium ( 10mg/6.5 kg [1 stone]) incubate and artificially respire with oxygen.
18. Control of reactionary haemorrhage Recurrence of bleeding soon after the return of the patient from the operating theatre, although relatively uncommon, may constitute a grave danger if unrecognized. Blood may be swallowed and not dribble, as a warming, from nose or mouth. The utmost skilled nursing vigilance is necessary, with:
(1) Quarter-hourly pulse recording for first two hours. Half-hourly pulse recording for next four hours. Hourly pulse recording for subsequent six hours, and four hourly pulse recording for following 12 hours. Thereafter the pulse should be taken six-hourly.
A pulse that remains high or is rising should be regarded as a sign of bleeding until proved otherwise by inspection of pharynx. (2) Close watch for swallowing movements. A semiconscious patient may betray the presence of bleeding by repeated swallowing movements. (3) Listen for 'rattle' in the breathing. Air passing in and out through blood in the pharynx cannot have the desirable quiet dry quality.
19. Bailey and Love's treatise on Short Practice of Surgery in Nineteenth Edition at page 574 under the heading of operation describe it as follows.:
" tonsils are removed by dissection. Pre-operative treatment with penicillin and for several days after operation, is a wise precaution, as 30% patients develop bacteraemia and are in danger of developing infective lesions elsewhere in the body (e.g. bacterial endocarditis, pyelonephritis).
20.Either local or general anaesthesia can be employed. The mouth is kept open and the tongue depressed with a Davis's gag. The tonsil is seized with vulsellum forceps. An incision is made through the mucous membrane, and the capsule of the tonsil is exposed. The tonsil is removed by dissecton, starting at the upper (palatal) pole. When the pedicle is defined, it is severed by a wire snare. Bleeding can be accurately stopped by ligating any bleeding vessels, arteries or veins, so that the patient does not leave the operating table until all bleeding has ceased. Until the patient has recovered consciousness he should be kept with his head low and well over to one side. On no account should he be permitted to lie on his back or be left unattended.
21.Complications after tonsillectomy.:
1. Obstruction of the airway, e.g. blood clot or the tongue falling back.
2. Inhalation of foreign material, e.g., blood, vomitus, broken teeth.
3. Haemorrhage. Reactionary haemorrhage occurs within the first hours. It may be recognized by the blood appearing from the corner of the mouth or nostrils, a rising pulse rate, generalized irritability. Immediate measures to be taken are:
(a) Removal of clot from the tonsillar bed.
(b) The application of pressure by means of a swab on a holder.
..........................
22.Reactionary haemorrhage may be stopped by sitting the patient blot upright. As a last resort; the nasopharynx may have to be packed. .........................
23.The accused Omkar Parmar has relied upon the treatise Scott-Brown Otolaryngology , Fifth edition in the chapter Laryngology and the relevant portions of the same are as follows.:
Postoperative.:
Haemorrhage.
The most significant immediate complication of tonsiliectomy is so-called reactionary haemorrhage . By definition this occurs up to 24 hours postoperatively, but the vast majority of reactionary or primary haemorrhages occur within the first 8 hours.
24. Reactionary haemorrhage is dangerous in two ways.:
First, in the phase during which the patient is recovering from anaesthesia before the cough reflex is fully established, blood in the airway can result in laryngeal spasm or can asphyxiate the patient by mechanically occluding the airway.
Second, haemorrhage results in hypovolaemia which, if not corrected, results in peripheral circulatory failure (shock) and eventually death.
25.Reactionary haemorrhage after tonsillectomy is unusual, occurring in about ) 0.5% -1% of operations. The cause is unknown but it must represent bleeding from an artery or vein which had stopped bleeding at the time of surgery. The possible cause of renewed bleeding may be dislodgement of the blood clot from the lumen of the vessel or vasodilatation of a the lumen of the vessel or vasodilatation of a vessel which was in spasm at the time of surgery. This is probably a local problem but it is possible that changes in blood pressure or state of vessels by anesthetic agents may play a part. Bleeding from a vein postoperatively may be due to excessive venous pressure induced by coughing or retching. However much one speculates on the causes of reactionary hemorrhage, it must be admitted that the precise cause in the vast majority of patients is unknown.
26.In order to avoid disaster any bleeding following tonsillectomy must be taken very seriously. Blood must be cross-matched at the first sign of hemorrhage. The tonsillar fossae must be inspected with great care, the clot removed if possible and a bleeding point may be seen. If the bleeding is minor it may cease once the clot has been removed or it may stop with a little pressure with a swab, possibly soaked in 1:1000 adrenaline. Even if all hemorrhage then ceases the fossac should be inspected from time to time over the next few hours as bleeding can start again. If there is any doubt, the patient must be prepared for a second anesthetic and the bleeding point ligated under general anesthesia. This second anesthetic is hazardous and carries a significant mortality because the patient has already had one anesthetic, has blood in his airway, is hypovolaemic from blood loss and also may have a stomach full of blood.
27.Anaesthesia.:
The anaesthetic complications in the immediate postoperative period relate to the maintenance of an adequate airway, free of secretions and particularly of blood. A swab left in the airway may obviously lead to asphyxiation and it is the surgeon's responsibility to be certain that no such oversight occurs.
28.The accused Dr.N Dutta has relied upon the treatise Associated Problems in Paediatric Anaesthesia by Montoyama and Davis 6th edition though complete chapter in copy nor the relevant page number is supplied. The para relied upon mentions that.:
29."Typically the anesthesiologist's duty continues until the time the patient is released from the postanesthetic recovery room. However, if the patient has been given medications for postoperative pain management, such as neuraxial opiates, which have the potential for delayed respiratory depression, the anesthesiologist has the obligation to ensure the patient's well-being on the hospital ward until free of the medications's effects, unless this responsibility has been assumed by another, such as a pain service. Failure to provide such care may constitute abandonment or a negligent disregard of the patient's continuing need for care.............................
30.The second element of proof that the plaintiff/patient must provide is that of breach of duty.....It must be shown that the anesthesioogist's conduct fell below a level that society considers unacceptable.
The citation AIR 2005 SUPREME COURT 3180 "Jacob Mathew v. State of Punjab"(From : Punjab and Haryana)* Coram : 3 R. C. LAHOTI, C.J.I., G. P. MATHUR AND P. K. BALASUBRAMANYAN, JJ. - TORT - is referred to as a guide wherein it was held as follows.:
MEDICAL NEGLIGENCE - Torts - Negligence in context of medical profession - Necessarily calls for treatment with difference - Professional may be held liable, on one of two findings either he was not possessed of requisite skill which he professed to have possessed - Or he did not exercise with reasonable competence in given case, the skill which he did possess.
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 on 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 incident) at which it is suggested it should have been used.
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.
(Paras 19, 49) Torts - Negligence - Jurisprudential concept - Differs in civil and criminal law - What may be negligence in civil law may not necessarily be negligence in criminal law.
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 of prosecution. (Para 49) Penal Code (45 of 1860), S.304A - NEGLIGENCE - Terms "Rash or negligent act" - Has to be read as qualified by word "grossly". The word "gross" has not been used in S. 304-A 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 S. 304-A of the IPC has to be read as qualified by the word 'grossly'. (Para 49) 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.
(Para 49) 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 quivering physician cannot administer an end-dose of medicine to his patient. 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 a surgeon can successfully wield his life-saving scalper to perform an essential surgery, nor can a physician successfully administer the life saving dose of medicine. Discretion being 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 the society.
The purpose of holding a professional liable for his act or omission, if negligent, is to make the life safer and to eliminate the possibility of recurrence of negligence in future. Human body and medical science - both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability. (Paras 29, 30, 31) Penal Code (45 of 1860), S.304A - MEDICAL NEGLIGENCE - Rashness and negligence - Patient admitted in private hospital - Suffered difficulty in breathing - Oxygen cylinder connected to mouth of patient found to be empty - Death of patient during making of arrangement for another oxygen cylinder - Criminal complaint against doctor - Doctor was not alleged to be not qualified to treat patient whom he agreed to treat - It is case of non-availability of oxygen cylinder either because of hospital having failed to keep available gas cylinder or because of gas cylinder being found empty - In circumstances doctors cannot be proceeded against under S. 304-A on parameters of Bolam's test, (1957) 1 WLR 582.
Cri. Misc. No. 21940-M of 1999 and Cri. Misc. No. 1984 of 2003, D/- 18-12-2002 and 24-1-2003 (Punj and Har), Reversed. (Para
54) Negligence - as a tort and as a crime
13. The term 'negligence' is used for the purpose of fastening the defendant with liability under the Civil Law and, at times, under the Criminal Law. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence upto the modern times. Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in 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 when the charge in a criminal court consists of criminal negligence. In R. v. Lawrence, [1981] 1 All ER 974 (HL), Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him. He reiterated his opinion in R. v. Caldwell 1981(1) All ER 961 (HL) and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship warned against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being "subjective" or "objective", and said "Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognized that there was such risk, he nevertheless goes on to do it."
14. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do not occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimizing violations, may be motivated by thrill-seeking. These are clearly reckless.
15. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was 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. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions, [1937] AC 576, stated, "Simple lack of care - such as will constitute civil liability is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established." Thus, a clear distinction exists between "simple lack of care" incurring civil liability and "very high degree of negligence"
which is required in criminal cases. Lord Porter said in his speech in the same case - "A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability. (Charlesworth and Percy, ibid, Para 1.13) Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
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." (Charlesworth and Percy, ibid, Para 8.02) Bingham, L.J. in his speech in Eckersley v. Binnie, [1988] 18 Con LR 1, 79 summarised the Bolam test in the following words :-
"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." (Charles-worth and Percy, ibid, Para 8.04) Two things are pertinent to be noted.
Firstly, the standard of care, when 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.
Secondly, 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 point of time on which it is suggested as should have been used.
At least three weighty considerations can be pointed out which any forum trying the issue of medical negligence in any jurisdiction must keep in mind. These are: (i) that legal and disciplinary procedures should be properly founded on firm, moral and scientific grounds;
(ii) that patients will be better served if the real causes of harm are properly identified and appropriately acted upon; and (iii) that many incidents involve a contribution from more than one person, and the tendency is to blame the last identifiable element in the chain of causation - the person holding the 'smoking gun'.
Accident during the course of medical or surgical treatment has a wider meaning. Ordinarily, an accident means an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated (See, Black's Law Dictionary, 7th Edition). Care has to be taken to see that the result of an accident which is exculpatory may not persuade the human mind to confuse it with the consequence of negligence.
the Privy Council in John Oni Akerele v. The King, AIR 1943 PC 72 their Lordships have held can be summed up as under :- "(i) That a doctor is not criminally responsible for a patient's death unless his negligence or incompetence went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State.
(ii) That the degree of negligence required is that it should be gross, and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation. ...... There is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime.
(iii) It is impossible to define culpable or criminal negligence, and it is not possible to make the distinction between actionable negligence and criminal negligence intelligible, except by means of illustrations drawn from actual judicial opinion. ... The most favourable view of the conduct of an accused medical man has to be taken, for it would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck." (Emphasis supplied) The question of degree has always been considered as relevant to a distinction between negligence in civil law and negligence in criminal law. In Kurban Hussein Mohamedalli Rangawalla v. State of Maha-rashtra (1965) 2 SCR 622, while dealing with Section 304A of IPC, the following statement of law by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap 4 Bom LR 679, was cited with approval :- AIR 1965 SC 1616 : 1965 (2) Cri LJ 550, para 4 "To impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non."
40. K. N. Wanchoo, J. (as he then was), speaking for the Court, observed that the abovesaid view of the law has been generally followed by High Courts in India and was the correct view to take of the meaning of Section 304A. The same view has been reiterated in Kishan Chand and Anr. v. The State of Haryana (1970) 3 SCC 904.
49. We sum up our conclusions as under :-
(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal and Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three : 'duty','breach' and 'resulting damage'. (2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also 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 WLR 582, 586 holds good in its applicability in India.
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree.
Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
(6) The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. 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.
AIR 2004 SUPREME COURT 4091 "Suresh Gupta v. Govt. of N. C. T. of Delhi"= 2004 AIR SCW 4442(From : Punjab and Haryana)* Coram : 2 Y. K. SABHARWAL AND D. M. DHARMADHIKARI, JJ.-
Penal Code (45 of 1860), S.304A, S.88 - Criminal P.C. (2 of 1974), S.482 - MEDICAL NEGLIGENCE - Death by negligence - Criminal liability on doctor or surgeon - Prosecution has to come out with a case of high degree of negligence on part of doctor - Accused, a doctor (plastic surgeon) charged for offence under S.304A for causing death of his patient who was operated by him for removing his nasal deformity - Opinion of medical experts that there was negligence on part of accused in "not putting a cuffed endotracheal tube of proper size" and in a manner so as to prevent aspiration of blood blocking respiratory passage - Act attributed to doctor though can be described as negligent act but not so reckless or grossly negligent as to make him criminally liable - Criminal proceedings quashed.
Cri. Revn. Petn. No. 100 of 2003, D/- 1-4-2003 (Punj and Har), Reversed.
31.PW1 is H.C. Shri Krishan Gupta, who was posted at P.S. G.K.I on 26.6.95 on duty from 4 P.M. to 12 midnight. At about 10.52 P.M. SI Goving Sharma gave him tehrir of his case on the basis of which, he recorded the FIR. Carbon copy of which is on record as Ex. PW 1/A and PW1 has identified his signatures at point A. Cross examination of the present witness is nil after giving of opportunity.
32.PW10 has deposed that on 13.6.95 he was posted at P.S. G.K.I. He alongwith SI Govind Sharma had went to hospital at AIIMS on a call and the deadbody was not tampered in any manner till it remained in his possession. During cross examination of the said witness by Ld. APP it is deposed that IO had seized certain articles at Sukhda hospital on 14.6.95 and PW10 had signed seizure memo Ex. PW 10/A, bearing his signature at point A and he accompanied investigation team and other documents were also seized in his presence vide Ex. PW 10/B signed by him at point A. During cross examination the witness has deposed that the seizure memo was prepared in his presence.
33.PW12 has deposed that on 13.6.95 he had gone to H.No. 69, Hauz Khas Enclave and from where, they had taken the deadbody of one person namely Gaurav alongwith SI Govind Ram and till the dead body remained in their possession, it was not tampered. Cross examination of the present witness is nil by accused Omkar and accused Narender has cross examined regarding the time when they had received information and reached the house, which the witness was not able to depose. However, due to passage of time, the said omission is not considered as material omission.
34.PW13 is ASI Dabloo, who had deposed that on 9.8.95 he had taken post mortem report alongwith viscera box to Calcutta, CFSL from malkhana of P.S. G.K.I, which was not deposited due to incomplete papers and he went again on 15.9.95 and on 4.11.95 and due to objections, the same could not be deposited again and he deposited the said case property in the malkhana of P.S. G.K.I. Cross examination of the present witness is nil after giving of opportunity. PW14 is SI Rishi Pal Sharma, who has deposed that on 21.12.95 he received the investigation of the present case and viscera was sent to CFL, Lodhi Colony and the result of the said investigation had not been obtained till he filed the challan. The said witness is not cross examined on the material aspect of testimony deposed by him.
35.PW15 is IO in the case, who has deposed that on 13.6.95 when he was posted at P.S. G.K.I, then a person namely Mr. P.K. Batra came to him and gave his complaint, Ex. PW 7/A and complained that his son died due to negligence of doctors, who conducted operation at Sukhda hospital on his son. PW15 alongwith Ct. Kushal Pal and Ct. Shyamlal went to the hospital at K-69, Hauz Khas and filled the form of inquest. The deadbody was sent to AIIMS through Ct. Kushal Pal and Shyam Lal vide application Ex. PW 15/A. PW15 has deposed that he had prepared the inquest paper on 14.6.95 and got conducted the post mortem of the body at AIIMS hospital and has also got conducted the identification of dead body. PW15 has deposed that he went to Sukhda hospital and seized the documents relating to the treatment of the expired child. His application to the same effect is Ex. PW 15/A and seizure memo Ex. PW 10/A. On 15.6.95 on his request the Doctors of AIIMS hospital had visited Sukhda Hospital, R Block, G.K. I and prepared their report Ex. PW 9/A. PW15 had deposed that he had also obtained papers from Sukhda hospital and obtained statement of doctors Ex. PW 15/C and handed over the documents to Autopsy sergeon for consideration. On 26.6.95 he collected post mortem report on viscera with the sample seal vide seizure memo Ex. PW 10/B and deposited the same in the malkhana of P.S. G.K. I. In post mortem report the negligence of accused was opined, after which he endorsed on the rukka Ex. PW 15/D bearing his signature at point A and gave to Duty Officer for registration of the case. On 29.6.95 accused Narender was arrested and on 4.7.95 accused Omkar was arrested. IO/PW15 had deposed that he prepared a questioner Ex. PW 9/C for opinion, which was obtained from Dr. L.C. Gupta, Dr. O.P. Murty and other and the report is Ex. PW 9/D1 to D5. He had made efforts to deposit the viscera at CFSL, Calcutta. The inquest papers are collectively Ex. PW 15/G bearing signature of IO at point A. The documents collected by IO are Ex. PW 19/B1 to B19 and the case sheet related to operation of child is Ex. PW 11/A. PW15 has deposed that he was transferred on 15.12.95 during the investigation of the case. During cross examination of PW15 by accused Omkar through counsel the accused seeks to take advantage of late registration of FIR but in the present matter, when other documents are on record, i.e. Post mortem report and conducting of operation are sufficiently proved and when the conducting of operation itself is proved beyond reasonable doubt reading together with Complaint Ex. PW 7/A then even though the FIR is registered late does not have material effect on the case of the prosecution. During cross examination of PW15 nothing incriminating or inconsistent came out in his deposition and the statement of the witness is reliable.
36.The Post- Mortem report alongwith the other documents on record are perused. The Post-mortem report on record is Ex. PW. 4/A which is proved by PW4 by identifying the signature at point A. According the PW 4 the death had occurred due to suffocation because of aspiration of blood and blood clots , in consequence of surgical operation of Tonsillectomy. As per deposition of PW4 in cross examination he had found patient in no under doze or over doze of drug in the present case which were administered to the patient.
37.The PW4 has deposed regarding the fact of gaining consciousness by the deceased which observation of PW4 is irrelevant being not the eye witness. PW 4 has deposed that the bleeding in Tonsillectomy Operation can happen within 24 hours and in majority of cases i.e. 2/3rd of the cases, bleeding occurs in first 12 hours. The said deposition is not supported by any statistics. The PW 4 is asked generally about the standard condition observed in operation and opinion during and after the time of conducting of operation. The Post- mortem report Ex. PW. 4/A mentions that the mouth of the body was found open. Oral cavity and tongue was found stained with blood and two teeth bite mark present on cross lateral aspect of tongue, with a distance of 1&1/2 cm apart. Nasopharynx and Osopharanx contains blood and blood clots of bright red colour and each clot measuring about 15gm were found.
38. As per deposition of PW7 , the child was brought out of Operation theater at 11.45 A.M. and around 1.15 p.m. Dr. Parmar came back. Dr. N.Dutta has reportedly not come back even at the time of death and not till the time the child was declared dead by Dr. Parmar. As per the deposition of PW7 and PW8 Dr. Parmar and Dr. N.Dutta were not present near the child and they were absent between 11.45 a.m. till 1.15 p.m. which is time of about 1 and half hour during which both the accused absented.
39.The cross examination of PW 7 perused. In the above deposition of PW7 it is deposed that the prescription and it's report on the child/deceased was submitted by PW 7 to Dr. Parmar and no suggestion from Dr. Parmar regarding the said documents that they were not handed over to him. Dr.Parmar has not even suggested that he had handed over the said document to the police. Thus , the said documents containing report immediately before the conducting of Operation on the child about the health and the nature of disease is thus with in the possession of the accused. PW 7 has denied the suggestion that Dr. Parmar or Dr. N.Dutta had intimated him regarding post operative complications. He denied that any advice was given to PW7 by the Doctors regarding precautions to be taken. Suggestions were given to PW7 that Dr.Parmar had asked PW7 to bring blood for the operation but it is for the Doctors to see much before the operation is conducted that blood for the patient is suitably arranged. In cross examination of PW7 suggestion was given that the Doctors had advised the patient some medicines , but PW7 has denied the suggestion. No document is brought by Dr. Parmar or Dr. Dutta on record to show that what medicines they had advised to be given to the patient which would be relevant factor to determine and to see that whether such medicines can be given when the child regained consciousness or such medicines has been given when the child is in unconscious or conscious state. It is general condition in hospital that the documents of treatment of patient are not handed over to the patient by the hospital or Doctors except the test report and X-ray plates etc. alongwith discharge summary. The documents are not handed over to the patient. The same rule is presumed in the present case for Dr. Parmar and Dr. N.Dutta to show that what medicines were prescribed to the child. No such document are produced by the above two doctors on the record. This goes against the both the two accused. Dr. Parmar, in cross examination of PW4 has suggested that reactionary haemorrage is known complication after operation of Tonsillectomy and it occurs within 24 hours. PW 4 has deposed in cross examination that a normal person does not get block in the wind pipe as the suction cough reflex usually expels it out. Around 12.45 P.M. PW7 had noticed that the body of the child was turning blue and around that time a Lady doctor visited and asked about health of the child to which PW 7 has deposed to have seen that the child was not showing any movement. PW7 has deposed that he called Dr. Parmar on telephone immediately after the visit of the lady Doctor, to whom he had already told that the body of the child was turning blue. Dr. Parmar was intimated of the situation and it is deposed by PW7 that Dr. Parmar was intimated at his residence. This is further deposed by PW 7 that Dr.Parmar reached the hospital after about 20 minutes. No contradictory suggestion was given to the said fact of absence of Dr. Parmar and Dr. N.Dutta from the spot in the hospital. If Dr. Parmar reached hospital back in 20 minutes then it should have taken 20 minutes to Dr. Parmar to reach back to home after conducting the operation which means that during that 40 minutes period Dr. Parmar or Dr. Dutta has not examined the patient. The period of absence is from 11.45 A.M. till 1.15 P.M as per deposition of PW7 and the said deposition is unrebutted and uncontroverted. In the cross examinaton of PW7, he has also deposed that he reached the hospital around 9.00 A.M. in the morning and no test was conducting on the child/patient before operation . Around 9.45 A.M. child was taken inside the operation theater. PW7 has deposed that he had signed a form of consent for conducting operation, being guardian of the child, the said form must be filled in the presence of Dr. Parmar/accused. Suggestions were given to PW 7 that when the patient was taken out from the operation theater then he was responding to painful stimuli, which are denied. It was not shown to have been recorded by the accused person, in any of their documents, the position of the patient after operation and that how and on which part of the body of the patient was responding to painful stimuli and in what manner. PW7 has deposed that child remained unconscious after coming out of operation theater and never responded to any call of the attendant at the time when the child was shifted to room. PW7 has deposed that Doctor was intimated that the child is receiving convulsions to which Dr. Parmar told to PW7 that child is trying to regain consciousness. No suggestions is given that said assurance was not given by Dr. Parmar to the PW7 and the said suggestion in itself negative the claim of Dr. Parmar that the child regained consciousness after the operation.
40.The PW7 has deposed that the accused Parmar had told him that the patient will be discharged within four hours after conducting the operation shows that the condition of the patient was not of serious nature and further that the accused himself had suggested that the bleeding could also occur within 12 hours of conducting the operation which is required to be managed by the specialist and which if not managed properly could be life threatening . No suggestion to the contrary is given to PW7.
41.In cross examination of the PW8 the position of the child is asked and deposed in that the the child was lying in the bed in straight position facing towards ceiling to which no contrary suggestion is put. PW8 has deposed that he also noted around 12:30 that the nails of the patient were turning blue and the PW7 had went out to call the doctor. Thus the child was not in lateral position and not monitored regularly for the said purpose.
42.PW5 is the then medical Director of the Sukhda Hospital where the operation of the child was conducted. He has deposed that accused Omkar Parmar is an ENT Surgeon who occasionally brought his patients for treatment in the Hospital. He had independent private practice and he was not the employee of the Hospital. As a consultant and specialist the accused Parmar had exercised his own sense of judgment from the time of admission till the discharge of the patient and even the instructions regarding the discharge of the patient are to be given by Dr.Omkar Parmar. He and his staff do not interfere in the conducting of the treatment of the patient except during their absence in dire emergency on ethical ground. The staff assists the doctor/accused for conducting the inspection only. It is further deposed that the Dr.Omkar is the surgeon who booked operation theatre on 13.06.1995 at 9:30 AM in the Hospital and Dr.N Dutta was the anaestheist of the choice of Dr.Omkar having no interference from the Hospital. As per the information of PW5 the operation was concluded at 11 AM and the nursing staff was advised to nurse the patient in the lateral position and to remove secretions from mouth and nostril with a piece of gauge. It is deposed by PW5 that around 1:10 PM the patient had breathing problem on which Dr.Parmar and Dr.N Dutta were called immediately and the patient was attended by the duty doctor Smt.Anita. Dr.Bhatacharya an anasethetic was asked to rush to the patient and he had performed oral suction, IPPR cardiac massage and only about 1:25 PM the accused Omkar could reach at the spot. In cross examination the suggestion is admitted that immediately after the operation accused had left instructing the doctor and staff present at the spot to look after the patient. This has been done having in knowledge of the accused that services of the other doctors available in the hospital are not available to them nor they have any responsibility if anything goes wrong. It is deposed by PW5 that the staff had looked after the patient between 11:50 AM till 1:10 PM to which no cross suggestion was given though the operation was concluded at about 11:00 AM thus no look after to the patient was given till 11:50 AM and a time about 40 crucial minutes were allowed to pass away without any observation. Since both the doctors who conducted the operation had independent liability and not to the Hospital the documents of treatment and conducting of entire operation are presumed to be with them. The suggestion to PW5 about status of the patient immediately after the operation are irrelevant as he is not shown to be present at the spot at that time and when he reached at the spot along with Dr.Bhattacharya when the patient was administered mouth suction along with cardiac massage.
43.PW6 is the witness who is OT Technician at the relevant time and assisted the accused person in conducting the operation. He has deposed only about the post operation condition of the patient in that he was asked by the doctor to bring trolley of stretcher and Dr.N.Dutta had patted on the cheek of the child and on asking by the doctor the child had shown his tongue after opening the eyes. Thereafter he along with staff nurse shifted the patient to the Room No.210 and he had left for the other job. The present witness does not talk about presence of Dr.Omkar at all at the spot after the patient was taken out nor the said fact was told by the witness to the police during giving of his statement. He had went with the patient to the Room No.210 but it is not deposed that how the OT Technician is supposed to carry the patients to the respective rooms and whether it is the generally accepted practice. It is not shown so and nor it is generally seen in hospital that during shifting of patient to the room the OT Technician accompany them. PW6 has deposed that the patient was examined in OT itself by the doctor to which only he and the doctors are the witness. The condition of the patient has to be shown to be normal when the patient is shifted to the room in the Ward. PW6 is not witness to the said fact. The statement Mark A is proved by PW6 where his signatures are identified at point A where it is reported that the disposable endotrachial tube and residual consumables were dumped to the main garbage trolley, Operation Theater was cleaned and made ready to use. Thus the consumables including the medicine given to the patient and the empty covers and bottles of medicine applied were consigned to the garbage even before the patient was shown to be in no danger situation and was under observation with no other written record being maintained of the same.
44.PW11 is Dr.Anita who worked as Senior Resident Medical Officer at the relevant time and has deposed that around 11:30 AM the child was examined by both the accused doctors in stable condition in the room in the Ward and thereafter she followed the instruction strictly as given by both the doctors till the child was having breathing difficulty about 1:10 PM and called the reception to inform both the doctors about the status of the child. There is no deposition to the fact that what was stable in the child and what documents were recorded regarding the stability of the doctor as in medical profession the treatment goes on the basis of record and not on the basis of memory, keeping in view the vast variation in the statistics and the mass of statistics. PW11 is silent to the fact that at which part of the body of the patient the painful stimuli was given and of what kind and how and in which portion of the body the child was reacted in absence of which there is nothing on record to show that any kind of painful stimuli was given to the child/patient. There is no record that how many other patients were examined by PW11 on the said day between 10:00 AM till 1:30 PM and what was their nature of disease and that whether the witness could have satisfactorily monitored the patient's health in her absence. PW11 has not deposed that she had prepared any record regarding the health of the child. It is negligent on the part of both the accused to leave the health of the child in the hand of another doctor who is not responsible to the patient but to both the accused as per deposition of PW5. In her statement Exhibit PW11/B it is stated that the patient was sleepy, responding to painful stimuli and breathing normally by mouth. The witness has deposed that she got instructions from the duty nurse in that what is to be monitored on the patient and since it is so recorded in her statement immediately after the incident means that she did not get instructions directly from the accused Omkar.
45. It appears that all the witness from the Sukhda hospital are trying to prove the good health of the patient when he was shifted to the room without any basis or record and thus it appears as an attempt to save the conduct of both the accused person.
46.The documents obtained from Sukhda Hospital are seen on record. In the report dated 13.06.1995 it is mentioned by the accused Omkar that the patient was transferred to room around 11:10 AM who was examined by him and Dr.N Dutta at 11:30 AM. The patient was partially recovered from anesthesia. The reflex was normal and the patient was in awakened condition. In the temperature, pulse and the respiratory chart available on the record not even a single recording is made to the said fact which is duly attested by IO and the Deptt. Of Forensic Medicine. In the chart measuring pulse, respiration and blood pressure including temperature there is cutting everywhere from AM to PM after the first time of 9 AM and that there is appearing addition after the number 1 at all the three middle reading between 09:00 AM to 1:00 PM.
47.PW3 is Dr.S.K.Bhattacharya who has deposed that on the fateful day he received a call that a patient is in a serious condition and PW5 had asked him to see the patient. He tried to resuscitate the boy presumably in unconscious state and that he had failed to revive the boy. No cross examination of the witness is done on the said material point and the deposition of the witness to the said fact is uncontroversial and unrebutted.
48.PW2 is Dr.Prashant Kulshreshta Jr.Resident Deptt. Of Forensic Medicine and Toxicology AIIMS, Delhi who has and proved the postmortem report No.454/95 which is exhibited on record as Exhibit PW4/A which is signed by Dr.Anand Kumar at point A and opinion to the death is given at point B. The signature of Dr.Anand Kumar are proved having been done in ordinary course of nature and that PW2 knew the doctor personally. Cross-examination of the said witness is nil despite of giving of opportunity. The postmortem report is prepared by two doctors.
49. PW4 has proved the same postmortem report on the record as Exhibit PW4/A bearing his signatures at point A. He had conducted the postmortem examination on the patient on 14.06.1995 and had given the opinion that the death in the matter has occurred due to suffocation because of aspiration of blood and blood clots in consequence of surgical operation of Tonsillectomy. In cross examination by accused Omkar it is deposed by the witness that in a normal person when a foreign body struck in the wind pipe then a strong cough reflex usually expels it out. The suggestion is admitted that the most significant immediate complication of the operation of Tonsillectomy is so called reactionary haemorrhage which occurs within 24 hours of the conduction of the operation. Regarding the accused N.Dutta the witness PW4 has deposed that there is no under or overdose is seen but the test basis of the same is not disclosed but being from the field of science the exact dose must have been described along with the measures from which it is derived during the postmortem. Thus the opinion to the said fact is irrelevant. There is nothing on record showing the confronting of the witness with the figures in the postmortem report and nor the standard text is exhibited on the record. Thus for the proper appreciation of the facts the postmortem report is referred.
50.The postmortem report Exhibit PW4/A is read out as under.:
51.Dried up clotted blood present over both lips, both nostrils, nasal cavity contained blood of red colour. Nasopharynx and Oropharynix ( including tonsillar fossa) contain blood and blood clots of bright red colour and weight of these clots is 15 gm each. ...On cutting of these sutures in both of the tonsillar bed bright red colour clot present....Larynx, trachea both bronchus and all bronchiolls contain blood froth and blood clots of bright red colour. On keeping both lungs upside down position blood came and dribbled in form of froth and liquid of red colour. Both lungs congested and oedematous, sub pleural surface of these showing small to large pinkish red clotted patches all over at places and more at dependant parts, patechial haemorrages present over sub pleural surface at places more near root and in the interlobar fissure. ...From the rest of the lung substance blood mixed reddish froth appearing on squeezing. ...Opinion to the cause of death to the best of knowledge and belief of the doctors who conducted postmortem it suffocation because of asphiration of blood and blood clots which are directly resulting from surgical operation i.e., adeno tonsillectomy which is sufficient to cause death in ordinary course of nature.
52.PW9 is Dr.L.C.Gupta Specialist in Forensic Medicine and who headed the conducting the postmortem along with Dr. Anand and Dr.O.P.Murti has deposed that during conducting of postmortem he found rigor mortis was present all over the body, post mortem staining was present at back and chest, abdomen and dependent parts, except area of contact pressure which was very faint in colour.Cornea was hazy. There was dried up blood, clotted blood present over both the lips, both nostrils, nasal cavity containing blood and blood clots of red colour, both lips and all nail beds were blueish in colour, super nmerai and irregular teeth in upper jaw, no external injury was present all over the body except injection niddle marks present 6 cm above the base of left index finger.No mark of resuscitation present at any area in the form of defibrillator, no oral or nasal tube was present with the dead body. No gauge peacock present in the mouth. In right consular fossil two and in left side consular fosse three black silk suture present, in cutting of these sutures in both tonsillar bed bright red clots present and both tonsillar mass absent from there, side epiglottis was contused at its tips and side, sub pleural surface of both the lungs showing small to large pinkish red mottled patches all over the places and more at dependent parts, haemorrhages were present all over sub plural surface at places more near root and in intgerfissurfal area. On cut wedges shaped area of reddish pinkish colour at places were present in peripheral tissue mass of lungs from where free escape of serosangious material in form of liquour detected, PH gastric contents also detected out, blood in oropharynx and mouth was 5.5 and blood in tracheal bronchical tree was 5.8.Head subscalp and sub eponeurotic petechial haemorrhages were present at places all over, meningies were congested, cereberal vessels were dilated and engorged and brain was oedamtus and congested. Chest oesophagus was stained with blood of red colour, Heart subepicardial peteachials were present at places all over but more marked along with coronary marking, Abdomen- stomach was containing altered blood and blood clouts of dark black colour of about 200 gms and intestinal loops were containing altered blood clouts of dark black colour of about 200 grams, liver and spleen were congested alongwith both side kidney and surface of both kidney showing pin point haemorrhages. It is deposed that the anastheist specialist Dr.Rajeshwari and ENT specialist was consulted at the time of autopsy and noted that bleeding and its aspiration in the lungs is neither unforeseen and nor unexpected during and after the operation but it is well avoidable occurrence by surgeon and anaesthetic concern. The witness has proved Exhibit PW4/A by identifying his signatures at point C and the report submitted after inspection of the site is Exhibit PW9/A bearing his signatures at point A. He had given opinion on 19 sheets given by the IO bearing his signatures at point A and collectively Exhibited as PW9/B1 to B 19. The questionnaire containing 21 questions submitted by the IO is proved as Exhibit PW9/C and PW9 has proved his signatures at point A. The answers to the same are proved as Exhibit PW9/D1 to D5 . It is deposed that the amount of bleeding can easily be recognized and its aspiration can be avoided by early deduction of bleeders and proper medical care by anasteheist and surgeon as mentioned in portion A to A. Operating surgeon is responsible to stop bleeding from the operating side but as far as the matter of recognition of bleeding and further its complication is concerned it was the cumulative duty of both, surgeon and the anastheist as mentioned in portion B to B. The PW9 has deposed in answer to question No.8 that bleeding from post operative side could be preventable if the treating doctor concerned would have reasonably and diligently used their knowledge and skill to first identify the risk and in the present case the nature of the case is deposed of the kind of non-complication. The duty of both surgeon and the anastheist is explained in answer to question No.11 from portion D to D.The notes of other doctor at 11:45 AM , 12:15 PM and then at 12:30 PM mentions that the patient was as before and in the beginning both the accused person have taken the stand that the patient was sleepy, responding to painful stimuli, breathing normally by mouth and little ozz sound from nostrils and left angle of the mouth was present. This shows that the deceased patient remained unconscious from the time of shifting to the room upto the time of his death. According to PW9 the death was preventable as the common complication in these cases and also in the present case is suffocation which blocked the air passage because of bleeding from the known operative side. The present witness was recalled for cross examination by the State to remove typographical errors in the examination in chief. I do not agree with the submission of the defence counsel for the accused Omkar that PW9 has not mentioned the word gross negligence therefore criminal liability does not arise as it has to be seen from the facts and circumstances of the case. On the question of post operative complication the witness has deposed that reactionary haemorrhage is the most common complication and it be checked by going through repeated check of pulse, blood pressure, respiratory distress and clots in Tonsillar Fossa. On the question that in how much time the patient may die due to bleeding the witness has replied that it totally depend upon the degree and gravity of bleeding. In this type of case, it generally varies. Initially patient goes in different stages of asphaxia and finally he will enter in complete Anoxia. The suggestion is admitted that very small amount of blood if trickled in larynx could cause laryngeal spasm and finally could lead to death and it is added further that in the present case the Maxim is not applicable as both side of wind pipe was found full of blood up to pharynx. The suggestion is denied that the blood could have entered the wind pipe during resuscitation process. It is deposed that it is duty of the surgeon and the anastheist to find out source of active bleeding before leaving the patient alone. Answer to the possibility of life in the patient from 10:30 AM to 1:30 PM is bleeding is occurring is given in "yes" depending upon the degree of bleeding occurring in the patient and that bluishness and cyanosis occurs only in living beings and this is foremost sing of asphxial death.
53.The death of the child is proved vide the postmortem report Exhibit PW4/A, the PW11 has proved the death certificate Exhibit PW11/C. The identification of the dead body is done vide Exhibit PW7/B and Exhibit PW8/A wherein PW7 and PW8 have identified their signatures at point A and point A respectively.
54.In the statement of accused Omkar U/s.313 Cr.P.C he has preferred not to lead evidence in his defence and generally denied the evidence specifically been put to him. Accused himself has stated that reactionary haemorrhage occurred to the child/patient after the surgery and which is known complication which can cause death instantaneously and the average time for causing death is between 4 to 5 minutes. He had found three doctors of the hospital attending to the patient but none of the doctor is named by him.
55.The PW9 has deposed in the cross examination conducted on behalf of accused N.Dutta that the doses in which the drugs were administered by the Anaesthetist were as per prescribed protocol and within specified limits. The suggestion is denied that once the patient was responding to painful stimuli then it implies that the patient has been reversed from the effect of Anaesthesia and replied in that it suggests that the patient is in first stage of reversal of Anesthesia and still unconscious. The degree of protective gag reflex has to be noted by Anastheist which is shown to be absent in the present case and left the patient unattended. The suggestion is denied that if the patient is in unconscious state then he cannot respond to painful stimuli but that it depend on the degree of unconsciousness and its stage.
56.In the statement U/s.313 Cr.P.C recorded of the accused N.Dutta he had generally denied whole of the allegation of the prosecution and sought to bring his evidence in defence. The accused has stated that he left the patient in conscious state but the basis of the same is not disclosed.
57.DW1 is the first witness who is Dr.O.P.Trikha Addl. Professor from the Deptt. of Anesthesia from AIIMS has deposed that it is accepted norm to shift a patient from operation theatre to the Ward if the patient is responding to painful stimuli but the basis of the said norm is not stated anywhere. It is deposed that the Anesthetist should remain by the side of the patient in the operation theatre till the time patient's pulse rate and blood pressure are within normal limit for a reasonable length of time. In the present case the said measurements which are supposed to be in possession of the accused person is absent and the chart produced on record shows that no such measurements are taken except filling of time of examination in a separate chart which itself is of doubtful nature keeping in view the fact that everywhere after first examination the PM is appearing to have been written as AM and there is overwriting and also that everywhere after the number 1 the next word is appearing to have been written with a pen of different ink the said document is appearing as doubtful. In cross examination of the witness at question No.3 the text book of Scott Browns on ENT is referred at page No.152 where it is mentioned to retain patient in operation theatre until the patient has recovered sufficiently to cough spontaneously and protected his vomiting. To the said question the witness has given opinion to refer the text and that in the present case the patient was awake but in the entire testimony of the witness it has come out on record that the patient was not awake at the time he was shifted to the Ward room. Further the chart filled regarding the measurement of pulse, respiration, blood pressure and the temperature of the patient is overwritten at the time when it was recorded. Secondly the patient is reportedly shifted to the room in the ward around 11:10 AM and thus has to examined every fifteen minutes for the first two hours as per the text referred above but admittedly two examination are missing between 11:30 AM till 12:15 PM and when the child was declared dead at about 1:25 PM then two examination are again missing after 12:30 PM which means that not only the monitoring chart of the patient is tempered but also that the negligence is still rampant in the said assessment .The cross examination of the said witness was deferred who did not appeared for the remaining cross examination.
58.DW2 has deposed about the bleeding after postmortem is suggestive of oxygenated blood due to the active pumping of the heart but it is not clear how it helps the accused and that how the accused is not negligent. Cross examination of the present witness is nil after giving of opportunity.
59.The accused person have vehemently emphasised on the concept of painful stimuli. The said concept of painful stimuli has not been found mention in the test book referred. Further it also cannot be claimed that a person may not respond to painful stimuli when anestheia has been given but the degree under which the patient is under unconsciousness determines the response of the patient and as far as reflex of the patient is concerned, it has to be determined with reference to the consciousness of the patient and not with reference to the reflex produced if any by the patient during unconsciousness.
60.Further, in the entire deposition of the witness it has consistently came out that the patient was not conscious and the defence of the accused person was also not that the patient was conscious but was in stable condition and as per text book referred above written by Scott Brown the measures required for the protection of airway is mentioned are not taken and that the patient be retained in operation theatre until conscious. In the present case the prosecution has proved beyond reasonable doubt that the patient was never been conscious as understood in common parlance which would be a person who could have reacted to an action upon him or on the conditions surrounding him but in the present case the consistent defence of both the accused is that the patient was responding to painful stimuli and even the degree of response to the degree of pain given has not been recorded. The instruments of after care operation and the empty pouch/bottle of medicine given are disposed off and not been handed over to the prosecution and which are presumably in the de jure possession of both the accused over whom they had control.
61.In view of the above discussion it is held that both the accused are found negligent among other things discussed above in that they were not present in Hospital immediately after the shifting of the patient in the room in the Ward and knowing that the Hospital and its staff including the doctors are not supposed to provide urgent after care to the patient and that they have no responsibility except moral to look after the patient. The death is the imminent result of such injury i.e., the post operative bleeding as the blood coming out from the body of unconscious patient has nowhere to go but in the lungs and consequentially leading to death. PW7 and PW8 has deposed that the child was not in lateral position but was facing towards the ceiling shows that the child was left totally unattended at the mercy of chance with a firm drawn line for the relatives of the patient to stay away in the name of best treatment to ensure that any help to the unattended child does not come. The body of the child turned blue around 12: 30 to 12:45 PM as per deposition of PW7 and PW8 which is further supported by PW9 shows that the child suffered a slow death and even the resuscitation help could reach after about more than half hour when the nails and body of the child were reportedly turning blue. In such circumstances of the case the ingredients which outline criminal negligence is repeated again as follows.:
62.The evidence of DW1 and DW2 is mainly related to the conditions as observed by the said Doctors during their practice without having exhibiting the relevant tests and not in reference to the factual situation of the case in hand. The said depositions therefore does not give much help to the defence.
63.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. (Para 49).
64.In the present case the hazard of absence of post operative care and shifting the patient in the Ward room in unconscious state is the direct and the most likely imminent cause of the death of the patient which a man of ordinary prudence would not have done and no medical professional is expected to do. Had any of the doctor being vigilant in their duty then the case would have had a different end. It is to be looked from the side of the parents/guardians of the patients and also keeping in view the fact that they totally restrained themselves to come forward for any help of their patient in view of the assurance from the mouth of the doctor and that nothing will happen to their patient and when the patient is left unattended in breach of the well laid down text book conditions by the doctor themselves. Both the accused are hence found guilty U/s.304 A IPC and hence convicted therein.
Announced & dictated in ( J.P. NAHAR )
the open Court on 22.11.2007 MM: NEW DELHI
IN THE COURT OF SHRI J.P. NAHAR : M. M.
NEW DELHI
STATE VS. OMKAR PARMAR ETC.
FIR NO. : 212/95
P.S. : G.K.I
U.S. : 304A IPC
ORDER ON SENTENCE
The present order shall pronounce the order on sentence upon conviction of accused Dr. Omkar Parmar/surgeon and Dr. Narender Dutta in the present case for the conviction U/S 304A IPC, pronounced vide separate judgment dated 22.11.2007.
The argument on behalf of accused Omkar is that he is not a previous convict and he is of 68 years of age having no other case against him. It is submitted that he had already undergone trial for the last 12 years and lenient view may be taken while awaring sentence against him.
Accused Narender Dutta has submitted that he is 73 years old, who has experience in medical profession for about 44 years and except the present case no other case is against him. He has been awarded many fellowship and he is suffering from brain stroke. He is a heart patient and also suffering from ulcerous colitis. His wife is also suffering from heard disease and he also has faced trial since about last 12 years and suffered financially and in reputation due to wide publication given to the present case on the date of incident.
Ld. APP has submitted that the accused persons had worked in a commercial hospital and operated for commercial purpose on the patient in the present case. Death of a child who is 13 years and severest punishment should be given to both the accused person that message should go to the society and even though the person, belong to medical community he will not be spared. It is further submitted that the accused person has no feeling of remotes and they do not deserve leniency.
It is observed that in the present case death of a child about 13 years of aged has been caused and the complainant in the present case has regularly attended the case so that the guilty may be brought to the book. It is time and again argued by the complainant that he had been rendered childless due to the act of the accused person in utter negligence. Apart from that death of a young person has been caused when he could be productive to the state and many formative years were available had if the child been alive to render service to the nation. Having faced trial for long time may be considered in petty offences but not where the life of family together is affected for years.
Keeping in view the facts and circumstances of the case, I award sentence of rigorous imprisonment of two years to each of the accused with fine of Rs.10,000/- on each of the accused, in default of payment of fine, they have to go further sentence of rigorous imprisonment for six months u/s 304A IPC. Fine has to be deposited within a week from tomorrow. Both the sentence to run concurrently.
An application u/s 389(3) Cr.P.C. is moved by both the convict, which is heard and bail is granted to both the convict on personal bond of Rs. 15,000/- and a surety bond of like amount, failing which, they be sent to J/C. Bail bonds are furnished and are accepted only till 29.12.2007 and both the convict have to surrender by 10 A.M. on the same day in the event of not having been obtained bail from the appellant Court. Copy of the judgment and order on sentence be supplied to both the convict free of cost.
( J.P. NAHAR ) M.M. : NEW DELHI 29.11.2007