Delhi High Court - Orders
Ashok Rajgopal vs State & Anr on 1 December, 2020
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
$~6 to 8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 1440/2020 & CRL.M.A. 12538/2020
ASHOK RAJGOPAL ..... Petitioner
Through Mr Dayan Krishnan, Senior Advocate
with Mr Sukrit Seth, Mr Sanjeevi Seshadri,
Advocates.
versus
STATE & ANR. ..... Respondents
Through Ms Nandita Rao, ASC for State
Mr N. Hariharan, Senior Advocate with
Ms Radhika Chandrashekhar, Mr Siddharth
Yadav, Mr Samarth Luthra, Advocate for R2.
WITH
$~7
+ W.P.(CRL) 1446/2020 & CRL.M.A. 12582/2020
SUMIT KUMAR ..... Petitioner
Through Mr Narinder Mann, Advocate
Mr Sanjeevi Seshadri, Advocate
versus
STATE & ANR. ..... Respondents
Through Ms Nandita Rao, ASC for
Mr R.S. Kundu, ASC for State
Mr N. Hariharan, Senior Advocate with
Ms Radhika Chandrashekhar, Mr Siddharth
Yadav, Mr Samarth Luthra, Advocate for R2.
AND
$~8
+ W.P.(CRL) 1447/2020 & CRL.M.A. 12584/2020
S M SHARMA ..... Petitioner
Signature Not Verified
digitally signed
by:DUSHYANT
RAWAL
Through Mr Mohit Mathur, Senior Advocate with
Mr Sanjeevi Seshadri, Advocate
versus
STATE & ANR. ..... Respondents
Through Ms Nandita Rao, ASC for
Mr R.S. Kundu, ASC for State
Mr N. Hariharan, Senior Advocate with
Ms Radhika Chandrashekhar, Mr Siddharth
Yadav, Mr Samarth Luthra, Advocate for R2.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 01.12.2020 [Hearing held through videoconferencing]
1. The petitioners have filed these petitions, inter alia, praying that the FIR No. 125/2020 under Section 120-B/304A/34 of the IPC registered with PS Model Town and all proceedings emanating therefrom be quashed.
2. The said FIR was registered at the instance of respondent no.2 (complainant). He had alleged that the petitioners, who are medical practitioners, were negligent in treating his daughter and the same had resulted in her demise.
3. The deceased was a medical doctor practicing in Australia. It is stated that on or about 03.02.2019, she had twisted her knee and consequently ruptured her left knee's ligament. At the material time she was in Australia. She was advised bed rest along with medication to reduce inflammation and to undergo arthroscopic surgery after 5-6 weeks. She forwarded the report to Signature Not Verified digitally signed by:DUSHYANT RAWAL her father (the complainant) who met Dr Ashok Rajgopal (the petitioner in W.P.(CRL) 1440/2020 - hereafter „the Petitioner‟) and showed him the MRI of his daughter (the deceased). The Petitioner advised that the patient should undergo arthroscopic surgery for re-construction of her Anterior Cruciate Ligament. The complainant states that he was advised that the surgery was of a minor procedure and could be performed at Fortis Escorts Heart Institute. At the material time the Petitioner was associated with the said Hospital. The date of surgery was fixed on 05.03.2019 and Dr Rajgopal wanted the complainant's daughter to be admitted on 04.03.2019. It is stated that the complainant and his daughter relied on the reputation and experience of the petitioner and the complainant's daughter and her husband arrived at Delhi on 01.03.2019 for the proposed surgical procedure. The complainant's daughter was examined on 04.03.2019 by the Petitioner and his team. It is stated that she had fully disclosed all relevant facts including that she had travelled to Delhi on 01.03.2019 on a long haul flight. She also disclosed that she was on oral contraceptive pills for the past two years and anti-depressant medicines for the last ten years. She had no other co- morbidities.
4. It is alleged that she was admitted for surgery at about 5.00 p.m. on 04.03.2019 and the surgical procedure was carried out on the next day.
5. Mr Hariharan, learned Senior Counsel appearing for the complainant submits that Pre-Anaesthetic Check-up (PAC) was done, however, Dr S.M. Sharma (the petitioner in W.P. (Crl) 1447/202020) did not wait for the test results, but cleared her for surgery. He states that the report, which was received subsequently indicated that the blood platelets of the patient were Signature Not Verified digitally signed by:DUSHYANT RAWAL very high, however, that was not considered.
6. The complainant alleges that the necessary pre-operative care to ensure that Deep Venous Thrombosis (DVT) does not occur was not provided. According to the complainant, the Petitioner was also negligent inasmuch as the necessary prophylaxis for DVT was not provided ever during post-operative period.
7. The complainant's daughter was discharged on 06.03.2019. The complainant alleges that neither his daughter nor his other family members were cautioned regarding the possible complications during the post- operative period. No chemical prophylaxis was provided although DVT Pump was used for some minutes during the post-operative period, while the deceased was still in hospital.
8. Mr Krishnan, learned Senior Counsel appearing for the petitioner submits that the FIR has been registered on an erroneous premise that there has been negligence on the part of the petitioner. He, however, has restricted the present petition to impugn the registration of the FIR only on the ground that the procedure as prescribed in terms of the decision of the Supreme Court in Jacob Mathew v State of Punjab and Another : (2005) 6 SCC 1 has not been followed. He contends that the concerned police officials do not have any expert opinion to the effect that the Petitioner and his other team members were negligent.
9. Mr Hariharan countered the submissions made on behalf of the petitioners. He earnestly contended that there is ample material on record to clearly establish that there was negligence on the part of the Petitioner and Signature Not Verified digitally signed by:DUSHYANT RAWAL his accompanying doctors. He submitted that the Petitioner completely disregarded multiple factors, which increased the risk of DVT. These facets included the fact that the patient was on oral contraceptive pills and antidepressant medication; her blood platelet count was high; and she had taken a long flight from Australia to India two days prior to her admission in the hospital. He contends that ignoring such factors is sheer negligence.
10. At this stage, it is not necessary for this Court to examine the allegations made by the complainant or the defence raised by the Petitioner in any detail. The examination in this petition is limited to examining whether the procedure as set out by the Supreme Court in Jacob Mathew v State of Punjab and Another (Supra) has been followed.
11. In Jacob Mathew v State of Punjab and Another (supra) the Supreme Court had observed as under:
"We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it Signature Not Verified digitally signed by:DUSHYANT RAWAL 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 the Bolam 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 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."
12. Indisputably, an FIR in a case of medical negligence cannot be registered without an expert opinion supporting such an allegation.
13. The status report filed by the concerned IO, indicates that the investigation agency had proceeded to register the FIR on the basis of a medical opinion received from Dr RML Hospital, New Delhi on 12.02.2020. Concededly, there is no other expert opinion obtained by the concerned IO prior to registering the said FIR. The said letter dated 12.02.2020 is set out below:-
Signature Not Verified digitally signed by:DUSHYANT RAWAL"To, Sh. Manjeet Singh, Sub-Inspector, Police Station - Model Town, Delhi (Mob.9582131425) Sub:- Medical Opinion regarding Medical Negligence allegedly committed by doctors at Fortis Escorts (Okhla Road, New Delhi) patent Dr. Shruti Maitri, 32 yrs.
Sir, I am directed to refer to your letter dated 13.11.2019 & this office letter No. 13-52/2019- RMLH(H-A.-I)/7685 dated 06.12.2019 and request of Sh. Arun Maitri (complainant) dated 03.01.2020, on the above mentioned subject and to inform you that a meeting of the Medical Board was held on 30.01.2020. All the documents and records provided regarding Dr. Shruti Maitri were examined in detail.
After going through all documents and records provided and based upon the same, it can be derived that Dr. Shruti Maitri was having several risk factors for developing DVT. At the same time, Dr. Shruti Maitri was not provided any prophylaxis for DVT, either preoperatively or postoperatively.
This issues with approval of the Competent Authority.
Yours faithfully, (Dr. Nutan Mehta) I/c Accident & Emergency Services, & Officer I/C, Complaint & Grievances"
14. It is apparent from the above that the Medical Board constituted by Signature Not Verified digitally signed by:DUSHYANT RAWAL RML Hospital had proceeded on the basis that the deceased was not provided any prophylaxis for DVT, either preoperatively or postoperatively. The Petitioner contests the said observations. Apart from contesting the same, Mr Krishnan also pointed out that the said opinion does not expressly state that the Petitioner was negligent and in absence of any such unequivocally expressed opinion, the FIR could not have been registered.
15. It was contended on behalf of the petitioner that in fact DVT Pump (mechanical prophylaxis) was provided. In addition, it was also contended that "GameReady" - which is mechanical device used as a prophylaxis - was also applied.
16. In view of the aforesaid controversy, this Court had in the order dated 17.09.2020 observed that it was necessary for the Medical Board constituted at RML Hospital to consider the aforesaid contention and clearly opine whether providing DVT Pump for limited time was sufficient, as contended by the Petitioner. The said order is set out below:
"1. The petitioner has filed the present petition, inter alia, praying that the FIR No. 125/2020 under Sections 304- A/120-B/34 of the IPC registered with PS Model Town, be quashed.
2. The petitioner is a surgeon and at the material time was engaged with Fortis Hospital. It is contended on behalf of the petitioner that the said FIR has been registered without following the pre-registration compliances, as directed by the Supreme Court in its decision in Jacob Mathew v. State of Punjab and Another : (2005) 6 SCC 1.
3. Mr Krishnan, learned Senior Counsel appearing for Signature Not Verified digitally signed by:DUSHYANT RAWAL the petitioner contended that the principal allegation against the petitioner is that he had not provided prophylaxis pre-operatively or post operatively and the same constitutes an act of gross negligence. He submits that in fact post operatively, DVT pump was provided to the patient (the daughter of the complainant who is since deceased), while she was in the hospital.
4. He further states, on instructions, that chemical prophylaxis was not required to be administered to the patient notwithstanding the risk factors. This is contested by the complainant. He states that given the past history of the patient, as is mentioned in the FIR, it was necessary for the concerned doctors to take adequate precautions. The Medical Board constituted by the RML Hospital has furnished its opinion indicating that despite many factors indicating that the patient was at risk of developing DVT, she was not provided any prophylaxis for DVT either pre-operatively or post-operatively.
5. Mr Krishnan also referred to a document captioned "Post Operative Care Advice" and drew the attention to a tick against an a printed entry at serial no. 8 mentioning "DVT Pump; Active toes and Ankle movements" in a document captioned "Post Operative Care Advice" . He further submitted that the Nurse‟s Chart of 06.03.2020 also contains an entry of 12PM recording: "patient complaint of pain. Gameready applied". According to Mr Krishanan the same was applied for about fifteen minutes. Although, the nurse‟s chart does not clearly indicate the same.
6. Mr Krishnan submits that in view of the aforesaid mechanical prophylaxis was provided for DVT. According to the complainant the contention that chemical prophylaxis was not to be administered is unacceptable.
7. In the given circumstances, it would be necessary for Signature Not Verified digitally signed by:DUSHYANT RAWAL the Medical Board to consider the aforesaid contention and clearly opine whether providing DVT Pump for limited time was sufficient, as is contended on behalf of the petitioner.
8. The complainant has also alleged that the blood report of the patient, which was generated at 7.53 PM indicated that her parameters of Blood Count and RBC and Platelets were outside the normal range and in view of the said report, it was not advisable to undertake the elective surgery. He submits that the concerned doctors had already cleared the patient for surgery prior to reviewing the said report.
9. The Medical Board constituted by Dr Ram Manohar Lohia Hospital shall also consider the above same and render their opinion. The Medical Board is requested to give an opinion as expeditiously as possible and preferably within a period of four weeks from today.
10. List for further consideration on 06.11.2020."
17. In compliance with the said order, Dr RML Hospital once again reconvened the Medical Board and referred the issues for its consideration.
18. The IO had specifically framed four queries for consideration of the Medical Board. The said four queries are set out below:-
"i. Please opine whether chemical prophylaxis was not required to be administered to the patient Dr. Shruti Maitri notwithstanding the risk factor.
ii. Please opine whether providing DVT pump for limited time was sufficient or not.
iii. Please opine whether parameter of blood counts and RBC and platelets of Dr. Shruti Maitri were outside Signature Not Verified digitally signed by:DUSHYANT RAWAL the normal range to undertake the elective surgery.
iv. Any other document or information which may assist the investigation. "
19. The Medical Board considered the said queries and has opined as under:-
"a) The American Academy of Orthopaedic Surgeons (AAOS) has issued guidelines for Chemical Prophylaxis against VTE for Joint Replacement Surgeries and Trauma. However, it has issued no guidelines/recommendations for prophylaxis against VTE in Arthroscopic Surgeries. According to American College of Chest Physicians (ACCP) guidelines, chemical prophylaxis for DUT in arthroscopic knee surgery including for ACL Reconstruction is not indicated on a routine basis. The ACCP recommendation is "For patients undergoing knee arthroscopy without history of prior VTE, we suggest no thromboprophylaxis rather than prophylaxis" .
b) According to several guidelines mechanical prophylaxis is given until the patient is made mobile.
c) Platelet counts were outside the normal range.
The value in this case indicated mild, secondary thrombocytosis. Anaesthetists usually postpone surgery/advice further tests prior to surgery if the count is above 10lakh per micro litre or in some cases above 7 lakh per micro litre, i.e. in severe or moderate thrombocytosis & especially when it is a case of primary thrombocytosis. Anaesthetists in this case had decided to go ahead with anaesthesia.
As far as the arthroscopic knee surgery is concerned, several studies have found no increased risk for DVT in patients of high platelet count Signature Not Verified digitally signed by:DUSHYANT RAWAL versus those with low platelet count."
20. It is apparent from the above that the Medical Board was of the opinion that the chemical prophylaxis was not recommended on a routine basis in a case of arthroscopic knee surgery. The Medical Board had also noted that there are several guidelines which provide that mechanical prophylaxis be given to the patient until the patient is mobile. According to the Petitioner, this had been done.
21. Mr Hariharan contended that the Medical Board did not consider all the risk factors, which were peculiar to the complainant's daughter. In particular, the fact that she was on anti-depressant medication and oral contraceptive pills, was completely ignored. In addition, the complainant's daughter had undergone a long flight prior to admission. Her platelets were also very high. He contended that the surgical procedure was an elective one and there was no necessity for taking any unnecessary risk. He submitted that whereas the medical opinion given on 22.02.2020 clearly mentioned the risk factors, the same has not been mentioned in the supplementary opinion given subsequently.
22. Mr Krishnan, learned Senior Counsel states that the Petitioner has no difficulty if specific queries are framed and referred to the experts of any apex medical institution. After some discussions, the learned counsel for the parties (the petitioners as well as the complainant) state that reference be made to Deen Dayal Upadhyay Hospital (DDU Hospital) for giving a specific opinion on the question of the medical treatment of the deceased in the present matter.
Signature Not Verified digitally signed by:DUSHYANT RAWAL23. Undeniably, there is no expert opinion on record, which expressly states that the petitioners were negligent or, prima facie, appear to have been negligent in this case. Thus, this Court is of the view that the procedure as prescribed in by the Supreme Court in Jacob Mathew v State of Punjab and Another (Supra) has not been followed. In terms of the said decision, the FIR in question could not have been registered. Accordingly, the same is quashed.
24. Having stated the above, this Court is also of the view that the decision to set aside the FIR should not in any manner impede the investigating agency to make the necessary inquiries. Since there is a consensus between the learned counsel for the parties that the matter can be referred to DDU Hospital for an expert opinion, this Court also considers it apposite to direct the investigating officer to draw up a specific case for opinion and refer it to DDU Hospital. Ms Rao, the learned ASC appearing in this case is requested to vet the case for opinion so as to ensure that it comprehensively sets out the allegations of the complainant along with the necessary documents.
25. The Superintendent DDU Hospital is directed to constitute a Medical Board, which would include experts in anaesthesia and orthopaedics. It is directed that the Medical Board shall give its opinion as expeditiously as possible and in any event within a period of eight weeks from the date when the case for opinion is forwarded to the Superintendent DDU Hospital. Depending on the opinion rendered by the Medical Board, the IO may take further steps as necessary. It is also expressly clarified that the fact that the FIR has been quashed would not preclude the IO from registering the same Signature Not Verified digitally signed by:DUSHYANT RAWAL if an opinion adverse to the concerned doctors is issued by the Medical Board.
26. The petition is disposed of in the aforesaid terms. All pending applications are also disposed of.
VIBHU BAKHRU, J DECEMBER 1, 2020 pkv Signature Not Verified digitally signed by:DUSHYANT RAWAL