Karnataka High Court
Dr.Alex @ Alexander Thomas vs State Of Karnataka on 16 July, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16TH DAY OF JULY 2013
BEFORE
THE HON'BLE MR JUSTICE K. N. KESHAVANARAYANA
CRIMINAL PETITION No.5343/2009
Along with
Misc. Crl. 3357/2010
BETWEEN:
1. Dr.Alex @ Alexander Thomas,
Director,
The Bangalore Baptist Hospital,
Bellary Road,
Bangalore.
2. Dr.Padmaja,
Consultant Gynecologist,
The Bangalore Baptist Hospital,
Bellary Road,
Bangalore.
3. Dr.Nirmala,
Consultant Gynecologist,
The Bangalore Baptist Hospital,
Bellary Road,
Bangalore. ... Petitioners
(By Sri.Mohd.Sheriff, Advocate)
AND:
1. State of Karnataka,
By Hebbal Police Station,
Bangalore.
2. Syed Idayathulla,
S/o. S.Samiulla,
2
Aged about 38 years,
R/at New Bus Stand Road,
Vijayapura,
Devanahalli Taluk,
Bangalore Rural. ... Respondents
(By Sri.K.Dilip Kumar HCGP for R-1;
Sri.S.N.Sanjeeva, Advocate for R-2 (Absent))
This Criminal Petition is filed under Section 482 of the
Cr.P.C praying to quash the FIR and entire proceedings in
Crime No.45/2009 of Hebbal Police Station for the offence
punishable under Section 304 (A) of IPC against the
petitioners.
Misc. Crl. 3357/2010 is filed under Section 482 of
Cr.P.C. praying to allow production of additional documents,
in the interest of justice.
This Criminal Petition coming for admission along with
Misc. Crl. 3357/2010 on this day, the Court made the
following:
ORDER
In this petition filed under Section 482 of Cr.P.C., the petitioners have sought for quashing the FIR registered against them by Hebbal Police in Crime No.45/2009 for the offence punishable under Section 304-A of IPC.
2) The 1st petitioner is the Director, Petitioner Nos. 2 & 3 are the Consultant Gynaecologists working in Baptist Hospital, Bellary Road, Bangalore. 3
3) Smt.Syeeda Muneera Khanum, wife of the 2nd respondent was admitted to the Baptist Hospital on 18.03.2009 for delivery. In the intervening night of 19/20.03.2009, she was taken to Labour Ward and thereafter the 2nd respondent was informed that his wife is required to undergo caesarean section immediately as the foetus is in distress and if immediately surgery is not conducted, it may result in danger to the life of both the child and the mother. The 2nd respondent gave consent for the caesarean section by signing the prescribed forms and thereafter caesarean section was carried-out, however, the child did not survive. The 2nd respondent was informed about the same.
4) At about 10.30 am. on 20.03.2009, the 2nd respondent lodged a report before the police alleging medical negligence punishable under Section 304-A of IPC, based on which, the police registered the case in Crime No.45/2009 against Petitioner Nos. 1 & 2 and a Duty 4 Doctor, arraigning them as accused Nos. 1 to 3 and submitted the FIR to the jurisdictional Magistrate.
5) During investigation, the dead body of the child was subjected to post-mortem examination. During post- mortem examination, viscera was preserved and submitted to Histopathological examination. After receipt of the Histopathology report, the Doctor, who conducted post- mortem examination furnished his opinion that it is a case of still born child, intra partem death. The Doctor further opined that the child did not breathe, that there was no signs of life noted after the foetus being extracted by cesarean section, but alive in uterus and died during the process of birth intra partum death. On receipt of this opinion, the Investigating Officer sought certain clarifications from the Doctor. The Doctor furnished his answers to those queries raised by the Investigating Officer. According to these answers, the death of the child has occurred during the process of birth and there was no indication of death having occurred on account of caesarean section or after the caesarean section. According 5 to the petitioners since the foetus was in distress, caesarean section was carried-out.
6) On coming to know of the registration of the case by the police, the petitioners presented this petition and also sought for stay of the investigation. By order dated 02.12.2009 this court stayed the investigation for a period of six weeks, which was extended from time to time.
7) In this petition, it is contended by the petitioners that there is absolutely no circumstance to indicate that the petitioners were in any way responsible for the death of the child and as Doctors, they have done whatever the best in the circumstances of the case, hence, no rashness or negligence can be attributed against them, as such, the offence under Section 304-A of IPC is not attracted to the facts and circumstances of the case. It is also their contention that even according to the opinion of the Doctor, who conducted post-mortem examination, the death of the child was not either on account of caesarean section or subsequent to caesarean section, but on the 6 other hand, the death has occurred during the process of birth, for which the petitioners, as Doctors, are not responsible. The petitioners subsequently filed an application seeking permission for production of the opinion of the Karnataka Medical Council dated 04.02.2010, wherein the Medical Council after holding a detailed enquiry as to the allegations made against these petitioners, has come to an unanimous opinion that there was no negligence on the part of these Doctors, as such, they were exonerated. Under these circumstances, the petitioners have sought for quashing the FIR and the investigation thereon.
8) In support of the case of the petitioners, learned counsel for the petitioners has placed a reliance on the decision of the Apex Court in Jacob Mathew Vs. State of Punjab [AIR 2005 SC 3180].
9) I have heard the learned counsel for the petitioners as well as the learned Government Pleader 7 appearing for Respondent No.1. Though Respondent No.2 is represented by his counsel, the counsel is absent.
10) As noticed supra, the wife of the 2nd respondent was admitted to the hospital for delivery on 18.03.2009 and in the intervening night of 19/20.03.2009, she was taken to the Labour Ward and since according to the petitioners, the foetus was in distress, caesarean section was undertaken. However, the 2nd respondent alleges negligence on the part of the petitioners as being responsible for the death of the child.
11) In Jacob Mathew's case referred to supra, the Supreme Court has considered the case of medical negligence and after reviewing the case law on the point, has summed-up the conclusion as under in Paragraph-49, which reads as under:-
"49. We sum-up our conclusions as under:-
(1) Negligence is the breach of a duty caused by omission to do something which a 8 reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good.
Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily 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 9 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.
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(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not 11 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 12 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."
(Underlining by me)
12) The Apex Court has also laid down certain guidelines to be followed until Statutory Rules or Executive Instructions are issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. Those guidelines are found in Para-53, which reads as under:-
"53. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State 13 Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for 14 furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."
13) As observed by the Apex Court, to prosecute the medical professionals 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,
14) In the case on hand, as could be seen from the opinion of the Doctor, who conducted post-mortem examination, the death of the child has occurred during the process of the birth and since the foetus was in distress, the Doctors were of the opinion that immediately caesarean section should be undertaken. Therefore, it cannot be said that the step taken by the petitioners was of such a nature 15 that the death would be the most likely imminent and it also cannot be said that the course adopted by the petitioners was something which in the given facts and circumstances of the case, no medical professional in his ordinary senses and prudence would have done. Having regard to the fact that the foetus was in distress, it was quite natural for the petitioner-Doctors to immediately undertake caesarean section to save the lives of baby and the mother. For that reason, if the petitioners had taken steps to carry-out caesarean section, it cannot be attributed that the petitioners have acted with negligence attracting the ingredients of the offence punishable under Section 304-A of IPC.
15) As noticed supra, the death of the child was not on account of the caesarean operation nor the death was subsequent to caesarean operation, on the other hand, the death has occurred during the process of birth. Therefore, no rashness or negligence can be attributed against the petitioners. Perusal of the enquiry report of the Karnataka Medical Council, a copy of which is produced, would clearly 16 indicate that the petitioners have not committed any acts of rashness or negligence. The petitioners have been exonerated by the Karnataka Medical Council. Taking all these factors into consideration, I am of the opinion that the registration of criminal case by the 2nd respondent and the investigation thereon are superfluous and without any basis. Therefore, the criminal case registered against the petitioners is required to be quashed.
16) In the result, the petition is allowed. The FIR registered by the 1st Respondent-Hebbal Police in Crime No.45/2009 and the investigation thereon are hereby quashed.
In view of the disposal of this petition, the application-Misc. Crl. No.3357/2010 filed for production of additional documents, also stands disposed of.
SD/-
JUDGE KGR*