Andhra HC (Pre-Telangana)
Mr. Sanjay Mutha S/O Prem Raj Mutha vs Dr. Mrs. Jayasree Desai, Dr. Sampath ... on 8 June, 2007
Author: Bilal Nazki
Bench: Bilal Nazki, R. Subhash Reddy
JUDGMENT Bilal Nazki, J.
1. Criminal Revision Case No. 1168 of 2005 is a taken up Revision on the representation of the complainant in C.C. No. 1 of 2001 on the file of the XVII Metropolitan Magistrate, Hyderabad. Transfer Criminal Appeal No. 1 of 2005 has been preferred by the accused in the above C.C. No. 1 of 2001 against their conviction and sentence. Criminal Appeal No. 1539 of 2005 has been filed by the Public Prosecutor against the sufficiency of sentence in that case. All these matters are being disposed of together by this common judgment.
2. This is a case of an unfortunate young lady who was mother of a child and wanted to have a second child and while undergoing investigations at the hands of the accused persons, ended up in a state of health which can only be described as vegetative. The complainant-her husband, a chartered accountant, filed a complaint against the accused persons under Section 200 of Cr.P.C., submitting that he had married Rupa Mutha on 17.01.1987. She is also a Chartered Accountant. She had a brilliant academic record, she was a swimmer and was only 35 years old on the date of the occurrence. After marriage, a daughter was born to the couple on 29th of March 1988. Both the husband and wife were practicing in Hyderabad as Chartered Accountants. After a gap of many years from the date of birth of their first child, the couple decided to have another child and they consulted A-1, who advised the complainant's wife to undergo a Fallopian Tube test. The complainant maintained that Mrs. Rupa Mutha was reluctant to undergo the test, but A-1 reassured the complainant and his wife that the test was simple and it would take few minutes and there was no risk involved. On such assurances by A-1, Smt. Rupa Mutha agreed to undergo the test. She was advised by A-1 to come to her clinic on 19.07.1999 in the morning. She went to the hospital by 7.30 a.m. on 19.07.1999. It was expected that she will return to her home within an hour. As she did not return back even by 8.40 a.m., her husband the complainant, went to the hospital to pick her up. When the complainant reached the hospital, he was informed that Smt. Rupa Mutha had been taken inside the room and would be back soon. He waited for some time. He was not given any information, but he noticed that a Nurse was running here and there and the Nurse went into the theatre with a pulse oxymeter. Thereafter, A-1 came out of the theatre. She tried to contact Medi Citi hospital and informed the complainant that Smt. Rupa Mutha was getting a Cardiac arrest. A-1 was not able to get a Doctor even though an hour had elapsed. The complainant himself tried to get in touch with some doctors and ultimately he was able to get in touch with Dr. Sridhar and Dr. Raghu. These doctors were known to the complainant and at his request, both the doctors came to the hospital and examined Smt. Rupa Mutha. She was then shifted to Care hospital, Mozamjahi Market, Hyderabad at about 11.30 a.m. in an ambulance. She was accompanied by A-1 and A-2 and during the transit from the hospital of A-1 to Care hospital, continuous supply of oxygen was ensured. She was admitted in Care hospital and according to the discharge summary given by Care hospital, Smt. Rupa Mutha was brought to the hospital in a Comatose condition. She remained in intensive care until 30th of July 1999. Thereafter, she was shifted to a room in the Care hospital and she remained in the hospital till 16th of August 1999. Thereafter, the complainant shifted her to Chennai for further care, but till the complaint was filed, there was no improvement in the condition of Smt. Rupa Mutha and she was living as a vegetable.
3. The complainant, in his complaint, further maintained that Smt.Rupa Mutha was hale and healthy before going to the hospital of A-1 for the purpose of undergoing Fallopian Tube Test, but thereafter, she never regained her consciousness. The condition in which Smt. Rupa Mutha landed was on account of brain damage, which in turn, was on account of Hypoxia of brain and the inadequate supply of oxygen to brain was caused to Smt. Rupa Mutha by A-1 and A-2 while she was undergoing the Fallopian Tube test in the hospital of A-1. A-1 performed the test while A-2 was the Anaesthetist during the procedure.
4. On the basis of these allegations, the complainant prayed the Court that the accused be punished for having committed the offence under Section 338 of I.P.C. The accused denied the charges and pleaded not guilty. Thereafter, during the trial, the complainant examined 3 witnesses and exhibited 44 documents. No witness was examined on behalf of defence, but exhibited 44 documents.
5. The trial Court came to the conclusion that Smt. Rupa Mutha suffered brain damage in the hospital of A-1 while undergoing Rubins test because of non-supply of oxygen for more than 10 minutes, which led to Cardiac arrest. The trial Court also came to the conclusion that accused had insufflated gas negligently without regulating the inflow of gas much gas got pumped into the Fallopian Tubes, which caused embolism which led to gasping, brain damage and Cardiac arrest. The trial Court was also of the view that the Cardiac arrest was caused as the accused had failed to detect vaso vagal reflex leading to bradicardia and hypotention which led to gasping, brain damage and Cardiac arrest. The trial Court sentenced both the accused to pay a fine of Rs. 1,000/- each and in default, to undergo simple imprisonment for a period of one month.
6. The judgment was pronounced by the trial Court on 25th of April 2005 and a letter was received by the Chief Justice of this Court from the complainant on 20th of July 2005, in which, the complainant had pleaded that although the trial Court had found the accused guilty, but a sentence of Rs. 1,000/- to each of the accused was given which was inadequate. The Chief Justice directed that the matter be listed as a suo motu revision and eventually notices were issued to the accused persons. When they appeared before the Court, they pointed out that they had filed an appeal against the conviction, which was pending before the learned Sessions Judge. Therefore the Court, on 29th of July 2005, ordered transfer of the appeal from the Court of M.S.J., Hyderabad to High Court. On 01.09.2005, the Court noted that the appeal filed by the appellants before the M.S.J., Hyderabad, was barred by limitation, therefore, the M.S.J, had not numbered the appeal and the Registry had directed the return of the file, but the Court, in its order dated 1st of September 2005, recorded, "Main objection is that the appeal is barred by limitation. This Court would address this question when the appeal comes up for hearing along with the revision. The file need not be returned to the appellants". Eventually, on 8th of September 2005, the delay in filing the appeal was condoned. Also Criminal Appeal No. 1539 of 2005 has been filed by the State against the sufficiency of sentence.
7. The matters were heard together. Since there is an appeal against the conviction, this Court will have to go into the question of legality of conviction as well and if the conviction is upheld, then the question of sufficiency of sentence would also be addressed. We have heard at length the counsel appearing for the accused Mr. T.Bali Reddy and Mr. M.R.K. Choudary, Senior Advocates, Mr. C. Padmanabha Reddy, Senior Advocate as Amicus Curiae, and Mr.E.Uma Maheswara Rao for the complainant, and also the learned Public Prosecutor.
8. The facts as mentioned by the complainant in his complaint have been narrated already, therefore, we will try to analyze the evidence.
9. PW-1 is the complainant. In his statement, he stated that his wife was perfectly healthy and as a matter of fact, she was very keen to remain fit and was also a good swimmer. At the time of occurrence she was 35 years old. The witness was married to Smt. Rupa Mutha and the couple had a child. They wanted another child, therefore, they approached A-1. A-1 was a gynaecologist and was practicing as such. A-1 has a Nursing Home under the name 'Desai Maternity Nursing Home' at Hyderguda. A-1 advised his wife to undergo Fallopian Tube test. This test is carried to know the patency of the Fallopian Tubes. His wife was reluctant to undergo such a test, but A-1 told her that the test was simple and had no risk and the test could be carried in just two minutes. The witness and his wife agreed for the test. She was called for the test on 19.07.1999 at 7.30 a.m. On the appointed date and time, his wife went to the Clinic of A-1. She went on her own as she was perfectly healthy. Even A-1 noted in the case sheet the condition of health of his wife. However, his wife did not return and at about 8.40 a.m., the witness went to see his wife in the hospital. He was told that his wife had been taken inside the theatre and would be back soon. He waited in the hospital and noticed that a Nurse coming from the operation theatre was moving here and there. After some time, he saw A-1 was trying to contact some doctors from Medi Citi hospital on phone. Then A-1 told him that his wife had got Cardiac arrest and she was trying to get some help from outside. Then the complainant himself tried to get doctors. He was able to contact one Dr. Sridhar and one Dr. Raghu. Both the doctors came to the Clinic of A-1. They went inside the theatre and saw his wife. Dr. Sridhar is a Neurologist and Dr. Raghu is a Cardiologist. Both the doctors were of the opinion that patient needed to be put on ventilator support and there was no such facility in the hospital. Then she was shifted to Care hospital at about 11.30 a.m. in an ambulance. She was accompanied by A-2. A-2 is an Anesthesiologist and he had assisted A-1 while his wife was undergoing the procedure. During the transit in the ambulance, A-2 administered oxygen to the patient. This fact was mentioned in the notes of A-2 and also in the discharge summary issued by A-1. His wife was in comatose condition when she was brought to the Care hospital. She was immediately admitted to the intensive care unit where she remained till 30 of July 1999. Thereafter she was shifted to a room where she was kept till 16 of August 1999 when she was shifted to Chennai. On 19th of July 1999 when she went for investigation to A-1, she was healthy, but now she continues to be in coma and lives like a dead body. She cannot move, she cannot talk and for all practical purposes, she is dead and her condition is the result of brain damage which was caused to her on account of lack of oxygen for more than five minutes at the hospital of A-1. His wife was under the care and custody of A-1 and A-2. Both the accused were responsible for the condition of his wife. A-1 and A-2 had not taken proper care. They were reckless in performing their duties in carrying out the test and in case of any complications during the Fallopian Tube test, they had no back up system and there was no system which could monitor the condition of his wife during or after the test. Immediately after the incident, the witness had himself to take care of his wife. After some time of the episode, he asked A-1 to furnish him the records pertaining to the treatment of his wife. He sent a copy of Ex. P-1 and sought details from her on 12 of April 2000, but the accused did not reply. Thereafter he addressed another letter through registered post which was Ex. P-4, which was received by A-1. Ex.P-5 was die acknowledgement. A-1, belatedly, after repeated requests, sent the records relating to the treatment of his wife through registered post. Ex. P-6 was the registered envelop in which A-1 had sent the records. A-1 had also sent him the xerox copies of Nurse's records, Anaesthetist note, operation notes, admission records and the discharge summary. Care hospital authorities also gave a certificate regarding the treatment given to his wife. He received record pertaining to the treatment given to his wife from A-1 along with covering letter dated 10th of May 2000. Ex. P-7 was the covering letter, Ex. P-8 was the admission record of A-1-hospital, Ex.P-9 was the Anaesthetist note, Ex.P-10 was the operation note, Ex. P-11 was the nursing record, Ex. P-12 was the discharge summary given by A-1, Ex. P-13 was the certificate given by Care hospital on 10th of May 2000. He also filed the photographs of his wife with negatives. These photographs were taken after the episode. Exs. P-14 to P-16 were the photographs, Exs. P-17 to P-19 were the corresponding negatives. The condition of his wife was that she was living like a corpse. She cannot move, she cannot breathe, she cannot talk and she cannot think. She does not respond to any stimuli. As the accused did not give oxygen at the time of procedure for more than five minutes, his wife's brain got damaged. He further stated that if the doctors had taken care and given oxygen to his wife during the procedure, she would have not been paralyzed. The tube test which was conducted by A-1 on his wife was an outdated test and had only a historical value. There were modern and reliable tests by which A-1 could have found whether the Fallopian Tubes had any problems or not. The tests carried now to test the patent of the Fallopian Tubes are many. Even a laparoscopic test is in vogue and A-1 had described herself as an expert in laparoscopic procedures. The Rubins test is not only an outmoded and outdated, but is also an unreliable test.
10. In his cross-examination, he stated that he did not have any medical knowledge. He had gone through the complaint and it had been drafted at his instructions, but he took the help of some doctors while instructing the drafting of the complaint. After the draft was complete, he read it and signed it. His wife was a Chartered Accountant. He himself knew A-1 for seven or eight years. His sister also gave a delivery in the hospital of A-1 about 15 years before. The mother-in-law of A-1 was also a doctor and at that time she was incharge of the hospital. The witness' first child was not born in the hospital of A-1, but was born in Chennai. They wanted to have another child, therefore, they approached A-1. In the month of November 1998, he approached A-1 for consultation. At times his wife would go alone and some times he would accompany her. On 16th of July 1999, his wife was advised to undergo the Tube patent test. On 19th of July 1999, when the test was carried, he did not accompany his wife. He did not know as to what food she had taken on that day before going to the hospital and perhaps she had not taken anything before going to the hospital. He denied the suggestion that his wife had been advised to come to the hospital with empty stomach by the doctor. At about 8.40 a.m., he reached the hospital. He saw his wife only at 11.30 a.m. on a stretcher in the hospital. He knew Dr. Raghu and Dr. Sridhar. For 10 to 12 years, they were his friends. At about 11.30 a.m., he reached Care hospital along with his wife. Dr. Shyamsunder attended his wife in the Care hospital. Shyamsunder is a specialist. He did not know the other doctors who attended to his wife. Several doctors attended to his wife in the Care hospital. Some of them are; Dr. Narasimhan, Dr. Swamy and Dr. Kiret Farekh. His father had been admitted to Care hospital earlier. He came to know Dr. Shyamsunder on 19th of July 1999. Dr. Shyamsunder also accompanied him and his wife to Chennai. He denied the suggestion that Dr. Shyamsunder was his friend, therefore, he accompanied him and his wife to Chennai. Since his in laws live in Chennai and he thought something may happen to the condition of his wife, therefore, he shifted her to Chennai. He did not write any letter to A-1 after A-1 sent the medical records. He has also filed a complaint before the National Consumer Disputes Redressal Commission, New Delhi for compensation. He has filed all the documents sent to him by A-1, in the National Commission, New Delhi. Ex. P-13 was given by Dr. Shyamsunder. There was a paper along with Ex. P-13 which he has not filed in the Court. Ex.D-1 was the second paper sent by A-1 along with Ex. P-13. He denied the suggestion that Ex.P-13 was against him, therefore, he had not filed the same. He could recognize his wife's signature. Ex. D-2 contains the signature of his wife. Ex. D-2 was the consent given by his wife. The 2nd page of Ex. P-8 was Ex. D-2. He had not filed the first page of Ex. P-8. Ex. P-13 was issued at his request. He denied the suggestion that Ex. P-13 was not issued by Care hospital, but was issued by Dr. Shyamsunder on his own. He also did not know whether Dr. Shyamsunder was authorized to issue Ex. P-13 and Ex. D-1. On 28th and 29th of July 1999 M.R.I. was conducted on his wife. Exs. P-14 to P-16 were taken at Chennai after his wife was shifted there. Apart from the allopathic system of medicine, the patient was administered Homaeo medicine, Sidha medicine and some other alternative medicines. He did not know under what condition his wife was brought to Care hospital from A-1's hospital, but he knows that his wife was not moving, she was not talking, she was not opening her eyes and she was on a stretcher. He did not know whether his wife was given any sedatives at the time of shifting to Care hospital. He did not know the difference between Coma, sedation and paralysis. At present his wife was breathing on her own. He had not mentioned in his complaint that his wife could not talk and also could not move, but he had mentioned that his wife was living like a corpse. He knew that the father-in-law, mother-in-law and son of A-1 are also doctors. His wife had consulted A-1 at the time of first delivery. On 19th of July 1999, he did not see his wife in the operation theatre of A-1. He did not know what medicines were given to his wife. A-1 and A-2 came to Care hospital along with his wife. Even after 19th of July 1999, the accused were coming to Care hospital regularly. She tried to approach Medi Citi hospital, but she was not getting any response from Medi Citi hospital, therefore, he contacted his brother who contacted Dr. Raghu. Meanwhile he was himself able to contact Dr. Sridhar and after these two doctors came and at their advice, his wife was shifted to Care hospital. He did not know who were the doctors who attended her in ICU in Care hospital, because he was not permitted to go inside ICU. He took help from the doctors while drafting the complaint, but he did not remember their names. Dr. Shyamsunder was incharge of the ICU at Care hospital. His wife was in ICU for 15 days. He also did not know what treatment was given to his wife while she was being treated at ICU. A-1 and her son who is also a doctor, visited his wife in ICU and after they came out of ICU, they informed that his wife was on ventilator.
11. PW-2 is a doctor, who was working in Care hospital since 1997. He was an M.D. in Anaesthesiology. He stated that Smt. Rupa Mutha was admitted in Care hospital and she was under his treatment. He identified the case sheet of Smt. Rupa Mutha. She was admitted in Care hospital on 19th of July 1999 at 12.30 p.m. and she was discharged on 16th of August 1999. When he saw the patient on admission, she was Comatose with coma scale of 7. According to this doctor, the patient was diagnosed as Comatose, which would mean; (a) she was not opening the eyes on verbal command, (b) movement of limbs on painful stimulous and (c) she was having tonic clonic contractions. She was on spontaneous respiration that means she was breathing on her own. He further stated that on the same day he got a phone from Laxmi Desai hospital, stating that a young lady underwent tubal patent test in the morning and sustained Cardiac arrest following tubal patent test and they wanted to shift the patient for Post-Cardiac-arrest management. He was asked about the availability of ventilator. As the ventilator was available in the hospital, he agreed for admission. When the patient came, she was accompanied by Dr. Sampath, Anesthesiologist i.e. A-2 and Dr. Jayasree Desai (A-1). He could identify A-1, who was present in the Court when the witness was examined. A-2 was not present. He was told by A-1 and A-2 that Mrs. Rupa Mutha was under their treatment before coming to Care hospital. A-1 and A-2 had given him the details of the treatment at the Laxmi Desai hospital. A-1 and A-2 had told him that Mrs.Rupa Mutha was tested for tubal patent for secondary infertility. They performed Rubins test. They also told him that they insufflated air to test the patency of the tubes. They told him that immediately after the test, Mrs. Rupa Mutha had suffered Cardiac arrest and resuscitation was done and her spontaneous respiration and pulse were restored after five minutes. She had Cardiac arrest for three minutes and later she restored to spontaneous respiration. She had two episodes of Cardiac arrest. The duration of 2nd episode was not informed to him. Following this, she had low blood pressure and she got fits. The fits were treated by injecting eptoin and diazopham. Low blood pressure was treated with dopamine which was being given when she reached Care hospital. Immediately after treatment in Care hospital, she was examined by Cardiologist Dr. Narasimhan and Aanesthesiologist Dr. Swamy. On admission, the diagnosis of all the doctors was Hypoxic Encephalopathy. This was also mentioned in the case record of the hospital. The meaning of Hypoxic Encephalopathy is lack of oxygen supply to the brain for a period of more than ten minutes. The signs of the condition which was observed by them were mentioned on the admission note. The said condition can occur on account of damage to the brain due to lack of blood supply. The condition of the patient with regard to brain damage did not improve till her discharge from the hospital. As soon as she was brought to the Care hospital, she was stabilized by connecting to life support system through ventilator. The team of doctors attending on her were of the view that the likely causes of her Cardiac arrest were; (1) Idio Synchrotic reaction to Thiopentone (2) Vaso Vagal reaction and (3) Air Embolism. The information was given by Dr.Sampath Kumar (A-2) with regard to use of Thiopentone inducing Anaesthesia. The Vaso Vagal reaction was because of cervical dilation done during the test. The third cause of Air Embolism was because of air insufflation. The doctor further was of the opinion that if the patient suffers from Cardiac arrest and the same is detected immediately and oxygen is administered, there would not be any damage to the brain, but however, if no oxygen is supplied for the initial ten minutes of suffering of Cardiac arrest, it would definitely lead to brain damage. During Anaesthesia, it is mandatory to monitor blood pressure, ECG and oxygenation through Pulse Oximeter. With these safeguards, the doctor can detect fall in oxygenation immediately if there is any fall. If 100% oxygen had been given soon after detection of Cardiac arrest along with proper Cardiac massage, even after three minutes of Cardiac arrest, the condition in which the patient was brought to the Care hospital would have not arisen. If Cardiac resusutation was given even within three minutes, the accident of brain damage (coma scale 7) could have been avoided. Resusutation means maintenance of air ways breathing through mask or tube with 100% oxygen. It is difficult to know the degree of oxygen desaturation without pulse oximetre. It is mandatory to record oxygen saturation levels when the patient is under anaesthesia. He can, as an expert, distinguish between sedation and coma scale 7. His opinion and the opinion of Neurologist was that the patient was in coma scale 7. when she was brought to the Care hospital. The reasons which the Care hospital documented in the case sheet for Cardiac arrest were discussed by him with the accused. The causes which they have documented are in conformity with the notes of A-1. A-1 had seen the patient in the Care hospital on 19.07.1999 at 7.45 a.m. which is born by the record and A-1 has signed the case sheet to that effect. Air embolism is a known complication of Rubins test. A-1 and A-2 informed him that air is pumped into the Fallopian tubes of the patient with the help of B.P. apparatus. Vaso Vagal reflex can be a cause of Cardiac arrest in the patient, if the patient was not deeply anaesthised. No analgesic was administered, Cervical dilatation was done. 6 mg of obopine does not prevent vaso vagal reflex. Nitrozen Oxide will not act as analgesic within few minutes. Thiopenton (anaesthetic agent) cause spasm. Laryn Thiopenton is avoided in Hypo Thyroid patient. If Thiopenton causes Cardiac arrest, it occurs during giving of anaesthesia and not during recovery from anaesthesia. Thyroid test was done in Care hospital, but thyroid was normal. The accused had informed him that the patient had Hypothyroid, but on performing thyroid function test, it was found to be normal. Ex.P-20 was the case sheet of the patient Mrs. Rupa Mutha, maintained at Care hospital. They also gave a discharge summary while discharging the patient. Ex.D-1 was issued by him. Patient did not suffer with brain damage during her stay in Care hospital for one month. Whatever damage the patient had suffered, it had been suffered by her before admission in the Care hospital. It was mentioned in Ex.P-9 that Pentothal was given at about 8.30 a.m. for inducing anaesthesia. The name of the drug in Pentothal is Thiopentona Sodium. The duration of action of Pentothal is eight minutes for standard dose. The test lasted from 8.30 a.m. to 8.55 a.m. The drug was given only once as per the record. The effect of Pentothal could have not last for whole of the procedure which was carried for 25 minutes, according to the record. In anaesthesia charts, the routine parameters that are documented are; pulse rate, blood pressure, respiratory rate and oxygen saturation. Said parameters are necessary to know hemodynamic stability of the patient throughout. The above parameters were mentioned in Ex. P-9. Occurring of fits is a common name of seizures. According to the discharge summary, the patient suffered with fits. It was mentioned in Ex. P-12 that Phenytoin injection was given to prevent and control seizures. The reason for fits is secondary to Cardiac arrest and Cerebral Hypoxia. Hypoxia, independent of Cardiac arrest, can cause fits. When the patient was taken to Care hospital, the history of the patient was taken from the treating gynaecologist. It was stated that air was injected to know the tubal patency. Injecting air can cause embolism if it is in large quantity. The amount of air that is injected to know the patency of tubes is sufficient to cause air embolism. The air embolism is treated if it is detected early. The case sheet and discharge summary did not disclose the treatment given for air embolism. Injecting Corbandioxide can also lead to air embolism. Air and Corbandioxide are both risky if administered in large doses. Out of the two, Corbandioxide is less risky. According to Ex. P-12, Cervix was dilated. Cervical dilatation can cause vagal reflex, which can lead to bradycardia and hypotension. If Vaso Vagal reflex is undetected, it would lead to Cardiac arrest. Harrison's Principles of Internal Medicine is a standard text on the subject. He agreed with the opinion expressed in passage at page No. 2050 of the text book relating to the topic Anoxic-ischemic Encephalopathy and it is marked as Ex. P-21. 'Brain Diseases of Nervous System, is the standard text of Neurology. He also agreed with the opinion expressed in a passage at page No. 166 of the text book that, "Cessation of oxygenated blood flow to the brain for more than 3-5 minutes is likely to cause long term cerebral anoxic injury". It is marked as Ex. P-22. 'Desk reference for Critical Care Nursing' is the standard text for critical care for nursing. He agreed with a passage at pages 170 and 171. The relevant passage was marked as Ex. P-23. He also agreed with opinions expressed by various authors relating to the subject and they were marked as Exs. P-21 to P-23.
12. He further stated that Bradycardia is reduction in the heart pulse rate less than 60 beats per minute. Bradycardia precedes Cardiac arrest. He further stated that when the blood pressure and the pulse rate fall down, the brain receives less blood and oxygen which leads to depression of the respiratory centre. If there is Bradycardia during anaesthesia, it is because of Hypoxia unless proved otherwise. Failing to recognize Bradycardia and gasping before the Cardiac arrest can lead to Cerebral Hypoxia and the result would be Cardiac arrest. The Cardiac arrest can be prevented if treated promptly. In this connection he also agree with an author's opinion expressed in the book titled "Clinical Anaesthesia" by Paul G. Barash. The opinion was marked as Ex. P-24. The moment Bradycardia is recognized, appropriate medicine is Atropine. According to Ex. P-9, Atropine was given during induction of anaesthesia. According to Ex. P-9, Atropine was given after Cardiac arrest and according to Ex. P-12, Atropine was given before Cardiac arrest. According to Ex. P-9, patient was gasping before Cardiac arrest. If 100% oxygen was given during anaesthesia, the patient would not have developed gasping. The doctor agreed with the opinion of an author mentioned in the book "Harrisons Principles of Internal Medicine". The opinion was marked as Ex. P-29. Cardiac asystole means cessation of the heart beats, which is one of the forms of Cardiac arrest. As per Ex. P-9, the patient was found to have developed gasping followed by Cardiac Pulmonary arrest. According to Ex. P-12, Bradycardia leads to Cardiac Asystole. According to Exs. P-9 and P-12, there was Bradycardia and gasping, which developed before Cardiac arrest, which were signs of Hypoxia, which led to Cardiac arrest. If sustained, Bradycardia and Hyper tension can lead to Hypoxia. He also agreed with an opinion of an author mentioned in "Shaws Text book of Gynecology" that the use of air is obsolete, condemned because of the danger of causing air embolism. It was exhibited as Ex. P-26. He was also of the opinion that there were better tests in the form of Hystero-Salpingography or Laparoscopy. According to Ex. P-10, the standard parameters before shifting of the patient outside the theatre were not noted. The dosage of the medicine given Post Cardiac arrest were not mentioned in Ex. P-9.
13. In his cross-examination he stated that he was practicing in Critical care for about ten years. He was continuously working in Care hospital in Critical care as incharge of ICU. He was now a consultant in Care hospital. He did Post Doctoral Critical Care and Cardiac Anaesthesia. He completed the course in 1992-93 in Madras Medical Machine in Chennai with Dr. Chenian. Previously he had worked in Medi Citi hospital. Later he resigned and joined Care hospital in 1997. When Mrs. Rupa Mutha was brought to the Care hospital, Dr. C. Narasimhan-Cardialogist and Dr. Swamy the Neurologist and he himself were present. Dr. Narasimhan and Dr. Swamy were never in Medi Citi. Ex. P-20 was the attested xerox copy of the case sheet. He started recording Ex. P-20 at about 11.30 a.m. on 19.07.1999. He knew D and C (Dilatation and Curratage) are usually done to take piece of tissue for biopsy. The procedure of D and C is done under anaesthesia by dilating cervix by dilators of various sizes and then currate is passed through cervix to take the tissue. Duration wise the D and C is minor one and is a short procedure. He had given anaesthesia to many patients undergoing D and C test. Rubin's test is also a very short and minor procedure. Rubin's test would take 15 to 20 minutes. He knew how the Rubins test is being conducted. Rubins test is done after the patient is kept in lithotomic position after giving anaesthesia. Rubins cannula is passed into the cervix and carbondioxide is insufflated and the sounds heard over the abdomen to know the patency of the Fallopian tubes. In terms of surgical stimulation, Rubins test and the D and C are almost same except for the size of cannula. If the size of cannula is big, the trauma to cervix is more. The difference between the surgical stimulation and trauma is that in surgical stimulation, there is more of trauma. He denied the suggestion that he was not informed when the patient was brought to Care hospital. The air was pumped into the tubes by A-1. Ms. Esther had signed Ex. P-20. Some notings at page Nos. 2, 9, 10, 13, 14 and 15 on Ex. P-20 are not visible. He could only say whether anything is written on these pages only after seeing Ex. P-20. "A Synopsis of Anaesthesia" by R.S. Atkinson and G.B. Rushman is not a text book. It is only a synopsis but not a standard text. E.L.B.S. is a standard publisher. Mr. J. Alfred Lee who is the contributing Editor, is renowned editor. He agreed with passages at page Nos. 128, 129, 130 and 131 relating to the uses of atropine and its action on circulatory system. He agreed with various opinions expressed by various authors which were put to him by the defence. The rest of the cross-examination of this doctor relates only to the opinions expressed by various authors with respect to the effect of the medicines administered on the patient and the necessary answers will be discussed when the evidence is discussed.
14. PW-3 is another Doctor, who is a Neuro-Physician. He stated that he was practicing as a Neuro-Physician for twenty years. He knew PW-1 and his wife. They were his neighbours and he had treated the father of PW-1. The complainant was also his auditor. On 19.07.1999 at 9.30 a.m., he had received a phone call from PW-1, who had told him that his wife was in critical condition in "Jayasree Desai Hospital". The hospital is at three furlongs from his house. So, he rushed to die hospital. He saw PW-1 inside the compound of the hospital and he informed that his wife was inside the theatre for some critical problem. He took permission and entered the theatre. At that time, A-1 and A-2 were present in the theatre. He enquired from A-1 and A-2 as to what was the problem. They informed him that the wife of PW-1 underwent some gynaec procedure and she had a Cardiac arrest. He saw die wife of PW-1 on the table. She was being incubated and given oxygen. She was also having myoclonic seizures. He suggested some medicines and A-1 and A-2 told him that they had already given Diazepam to maintain blood pressure. They were also giving medicines like Dopamine. On seeing the whole situation, he along with A-1 and A-2, decided to shift the patient to a bigger hospital where atleast a ventilator support was available. He suggested to the accused to give her Eptoin for controlling the myoclonic seizures. Before shifting her to another hospital. The medicine was not available in the hospital. He himself stayed in the hospital for about fifteen minutes. Thereafter, the patient was shifted to the Care hospital. His observation was that she was being given oxygen by Ambu-Ventilation. The B.P. was maintained by drugs and she was having myoclonic seizures, Cardiac arrest, leading to the Hypotension, Hypoxia and brain damage. Myoclonic seizures occur on account of brain damage. Decerebrating rigidity reflects severe brain damage. When he saw the wife of PW-1, she had already suffered the brain damage.
15. In his cross-examination, he stated that to support Hypoxic brain damage, MRI test is conclusive proof apart from clinical diagnosis. He further stated that if the condition of patient was critical, the investigative procedures could be delayed to save the life of the patient. When he entered the operation room, the patient was incubated and oxygen was pumped because the patient was not in a position to breath herself. The patient was in the same position till he left the hospital of A-1. He denied the suggestion that when he entered the operation theatre, patient was not having myoclonic seizures. He denied the suggestion that he had not suggested any medicine.
16. After a brief resume of the evidence, it will be necessary to refer to certain documents placed before the trial Court by the parties. Exs. D-2 and D-3 are the records of the clinic of A-1. It bears the consent by Mrs. Rupa Mutha for the procedure. She has signed the consent on 19.07.1999 at 7.10 a.m. It bears also a note to the following effect, "Tube Test done on 19.07.1999 at 8.30 a.m." Against the column 'Date of Discharge', it mentions, "patient shifted to Care hospital". Ex.P-9 is another important and admitted document. This document bears the notes of the doctor at A-1's clinic. Pre-operative parameters are noted which are all normal. It also notes down that general anaestiiesia was given. The note further mentions, "around 8.55 a.m., after procedure of tube testing was over, patient was found to develop gasping, which was of a sudden onset followed by cardio pulmonary arrest". The treatment given after this, is also mentioned and it is also mentioned that Cardiologist and ambulance were called for, pupils were dilated and sluggishly reacting to light. It is also mentioned that Cardiologist Dr. Raghu came, examined the patient and suggested to continue with the management of the patient. It also mentions that the patient was shifted in an ambulance to the hospital. The notes recorded at 8.30 a.m. in Ex. P-10 reveal that Tube Testing was done through Rubins test and Corbandioxide was dumped with B.P. Manometre and tubes were not found to be blocked and patient returned back to normal sleeping position. As patient was about to be shifted, it was found that she was having breathing difficulty. Ex. P-12 is the discharge summary issued by A-1. It mentions that Rubins test was performed under general anaesthesia with pulse Oximetre and Cardiac monitoring. During recovery from anaesthesia, the patient developed difficulty in breathing. She was incubated immediately by the anaesthetist in head low position. Bradycardia ensued and despite injection Atropine, she developed cardiac asystole. External cardiac massage was started, medicines were administered, ABG was done, which revealed satisfactory oxygenation. B.P. was restored by 4 to 5 minutes with femotals being pulpable. By ten minutes B.P. was 140/90, but there was again an episode of hypotension and blood pressure came down to 90/60. Pupils were reacting to light in 20 minutes and spontaneous respiration was restored in 25 minutes. Patient started fighting the tubes. Myoclonic jerks of the forefingers of both hands were noted and also patient started reaching for the tube. Injection Diazepam and Phenytoin were given. Availability of ventilator was confirmed at Care hospital and patient was shifted to Care hospital with AMBU ventilation with oxygen on Pulse Oximetre on Dopamine under the supervision of Anaesthetist A-2 and Dr. Raghu, a prosecution witness.
17. In the light of the evidence and the documents to which a reference has been made, the learned Counsel for the complainant made the following submissions-
18. The victim was not sick at all and Ex. P-9 would show that before the procedure, all the parameters regarding health of Smt. Rupa Mutha were normal and there was no chance of Smt. Rupa Mutha landing into the situation in which she landed. It is also submitted mat Smt. Rupa Mutha had not gone for any treatment to the hospital of A-1, on the other hand, A-1 had suggested a procedure to ensure whether the Fallopian Tubes were open or blocked. The learned Counsel further submitted that there was no prima facie evidence for A-1 to even suggest a Fallopian Tube test and the defence has not at all given any explanation as to why A-1 decided to go for the test of Fallopian Tubes. Prima facie, the tubes could have not been blocked as Smt. Rupa Mutha had already conceived and given birth to one child. There was no evidence at that stage to come to a prima facie conclusion that the Tubes were defective and it suggests only gross negligence of A-1. He further submits that the test conducted by the doctor was an obsolete test and had only a historical value. A doctor with so much of experience, would not at all go for this test had she been careful and had she known the developments in the field. In this connection, reliance is placed on opinions of well known authors. "The Principles of Gynaecology" by Sir Norman Jeffcoate is considered to be an authority on matters related to gynaecology. On this test, at page 591 in 4th Edition, under the head of "Insufflation", the author stated, This procedure, which is associated with the name of Rubin, who described it in 1920, is now of more historical interest than practical value. It involves injecting air or Carbondioxide through the cervix and uterus to see if the gas passes into the abdominal cavity. Its passage is determined by (1) pressure changes in the apparatus, (2) auscultation for sounds of the gas bubbling through the tubes, (3) shoulder pain experienced by the patient when the gas irritates the diaphragm, and (4) radiography to show the gas beneath the diaphragm. One or both of the last two signs must be positive before it can be reliably concluded that one or other tube is patent.
Insufflation requires aseptic precautions but is often carried out as an out-patient procedure on the unanaesthetized patient. Nevertheless, general anaesthesia is preferable in that it reduces the chance of corneal spasm which is otherwise unavoidable; it also eliminates shock and collapse which some patients experience from peritoneal irritation or from instrumentation of the uterus.
19. The author further states at page 593, Tubal insufflation as a diagnostic procedure gives such incomplete, unreliable and misleading findings that it has now been virtually abandoned in those clinics possessing proper facilities for salpingography and peritoneal endoscopy.
20. Another author to whom a reference is made is Mr. V.R. Tindall, who had been a Professor of Obstetrics and Gynaecology, University of Manchester. In his 5th Edition of Jeffcoate's Principles of Gynaecology, at page No. 585, the author described the procedure in the following terms-
This procedure which is associated with the name of Rubin who described it in 1920, is now of more historical interest than practical value. It involved injecting air or carbon dioxide through the cervix and uterus to see if the gas passes into the abdominal cavity. Its passage is determined by pressure changes in the apparatus, auscultation for sounds of the gas bubbling through the tubes, shoulder pain experienced by the patient which the gas irritates the diaphragm. Insufflation and culdoscopy have been replaced by hysterosalpingography and laparoscopy, respectively.
21. The argument based on the opinion of these experts is that in the first instance, there was no evidence to suggest any defect in the Fallopian tubes and in the second instance, the test itself was obsolete. This test was devised by Rubin in 1920 and in the Century thereafter, the test had become obsolete for two reasons - firstly, it was not safe and secondly, it was not even giving correct results. Therefore, there was no need for going into such a test. This argument was not at all replied to by the counsel for the accused. The accused has given a 55 page written arguments, but this aspect of the matter has not been addressed at all, although the accused noted the arguments of the counsel for the complainant in his written arguments in para 1.5, but the arguments were not at all answered.
22. The second argument which is connected to the first argument was that the test involves insufflating of air or Corbandioxide into the Fallopian tubes with an apparatus which can control the volume and pressure of the gas or air which is inserted into the tubes and the accused pumped indiscriminately the Corbandioxide without proper apparatus, which resulted in embolism. Again, reference has been made to the experts. In 'Principles of Gynaecology' in 4th Edition at page No. 591, the author stated-
Many different types of apparatus are available for carrying out the test with either air or carbon dioxide. Use of the latter is preferable because, if the blood stream is invaded, it is soluble in plasma. Nevertheless, it takes time to dissolve and fatal embolism can still result if large amounts of carbon dioxide enter the circulation quickly. The maximum safe pressure to use with either air or gas is 200 mm Hg; more than this greatly increases the risk of intravasation and might rupture closed tubes. So the only acceptable apparatus is one which controls the volume, rate of flow and pressure of the test agent. This is delivered into the genital tract by a cannula which fits into the cervix and sometimes into the lower part of the uterus.
23. In 'Shaw's Textbook of Gynaecology' 10th Edition at page No. 218, the author wrote-
The apparatus used for conducting the test consists of a cylinder of carbondioxide which supplies a steady flow of gas through a reducing valve, a control valve by which the rate is determined and a safety valve which prevents the pressure exceeding 200 mm of mercury. The pressure at the delivery end of the system is recorded by a kymograph.
24. While mentioning how the test is carried, the author says, "Kymograph is started and is set to deliver gas at a rate of 60 ml per minute".
25. According to the notes of A-1 and A-2, no such metre was used and only a B.P. Manometre was used. It has been suggested that the precautions to be taken while pumping air or corbandioxide to maintain the pressure, supply and the volume cannot be measured by the Manometre and a special instrument called Kymograph has to be used. The learned Counsel for the complainant submitted that it is not at all possible to administer Corbandioxide with B.P. apparatus, therefore, the doctors were negligent. This argument is also not answered by the respondents.
26. It is also submitted that according to the records maintained by the accused, Smt.Rupa Mutha was given anaesthesia at 8.30 a.m. The effect of anaesthesia should have lasted for eight minutes. So, by about 8.38 a.m., she should have been again conscious. But Ex. P-9 shows that Smt. Rupa Mutha did not get consciousness at any time from 8.38 to 8.55 a.m., i.e. for 17 minutes, nothing was done by the doctors and during this period, even the vitals and necessary parameters were also not monitored by the accused. These 17 minutes were crucial and according to the learned Counsel for the complainant, during this period, she suffered brain damage because of brain not getting sufficient supply of blood on account of deficiency in getting oxygen for more than ten minutes. This aspect of the matter has not at all been contested by the respondents. Therefore, this Court has no doubt that A-1 has been negligent, in the first instance, in deciding to go for an obsolete test, which even if carried successfully, would not give correct results, and secondly, for opting a test which was almost 100 year old test and was obsolete and thirdly, for not administering the test in a way it should have been administered, by using a Manometre which could not control the volume and the pressure of the gas that was pumped into the body of the victim. The accused, in their notes, mentioned that they had pumped corbandioxide through B.P. Manometre. In grounds of appeal, they stated that it was pumped manually and in the written arguments, they stated mat the gas need not be pumped and corbandioxide cylinder was opened directly.
27. The medical evidence of PWs. 2 and 3 and the records of the hospital of the accused conclusively prove that the damage occurred to the victim because of cardiac arrest. The learned Counsel for respondents has submitted that the direct cause of cardiac arrest could not be ascertained on the basis of the evidence produced by the complainant before the trial Court. He suggests that the cardiac arrest could have been caused either through vaso vagal reflex or by gas or air embolism or hypoxia and unless the cause of the cardiac arrest was known, no responsibility could be fixed on the accused persons.
28. Before going to the causes which could have resulted in cardiac arrest, this Court feels convinced that the test itself was carried negligently, which has been mentioned by us hereinabove. It was immaterial as to whether vaso vagal reflex or air embolism or hypoxia was responsible for the cardiac arrest and in any case, in terms of Section 6 of the Indian Evidence Act, 1872, it was the responsibility of the accused persons to tell the Court the whole truth, which they have not stated.
29. Now, coming to the reasons, let us go one by one to analyze the three possible reasons leading to cardiac arrest. At page No. 170 of "Desk Reference for Critical Care Nursing", the author says-
Under certain conditions entrance of air into the circulatory system can result in the same pathological changes found when the embolus is solid. A 100 cc dose of air is lethal. Even though this is a large amount, smaller amounts can occlude small vessels if introduced into the system rapidly. Lesser amounts of air can also lead to frothing in the circulatory system.
30. Hypoxia is a condition which is the result of inadequate supply of oxygen to brain, and bradycardia is secondary to hypoxia for a prolonged period of time and PW-2 submitted that the lack of oxygen remained uncorrected from 8.38 to 8.55 a.m. Bradycardia and gasping are signs of hypoxia and gasping was even noted by A-1. As a matter of fact, bradycardia and gasping could lead to cardiac arrest. The occurrence of myoclonic jerks and seizures was admitted by the accused in Ex. P-12 and seizures which were seen by A-1 are a symptom of brain damage because of hypoxia. PW-3, who is a Neuro-Physician, had seen the victim at the hospital of the accused, having seizures and he had deposed that while in the hospital of A-1, Smt. Rupa Mutha had suffered brain damage.
31. The trial Court has also gone into these aspects of the matter and in paragraphs 68 and 73 of its judgment, the trial Court noted-
68. It is admitted fact that the air embolism is known complication of Rubins Test. When it is complication of air or gas embolism, it is the primary duty of the doctors to take care of prevention of air or gas embolism. It is also admitted fact that the accused have insufflated Carbon dioxide through B.P. manometer, after dilation of cervix under general anaesthesia. As already discussed, Carbon dioxide cannot be insufflated through B.P. manometer. Even if it is insufflated as stated by the accused, there is no mention in Ex. P-9, the rate, pressure and volume of Carbon dioxide is insufflated for conducting Rubins Test. The said test is lasted from 8.30 am to 8.55 am till the accused found gasping. The Ex.P-9 to P-12 are also silent in respect of insufflation of gas. The said test is though simple and minor, it is very important to document the timings when gas is insufflated. The amount of air or gas usually used in Rubins test will not cause embolism, but, a large bolus of air or gas can cause embolism. As per Ex. P-10, the patient was put lithotomic position at 8.30 am. Thiopentone and Atropine is given for general anaesthesia, cervix dilated, and Carbon dioxide is pumped. It is also noted that after the procedure, they found develop of gasping. The gasping is out come of brain damage as earlier stated supra. It means, there is no supply of oxygen for more than 10 minutes to the brain which lead to hypo tension, hypoxia and tachycardia. It shows that the accused might have insufflated Carbon dioxide between 8-30 and 8-45 am. Gasping is earliest visible sign. The symptoms of air embolism are mill wheel murmur, engorged neck veins, Hypotention, drop in oxygen saturation, Tachycardia and fall in end tidal Carbon dioxide. The said symptoms can easily detected if properly monitored the patient. There is also treatment provided for air or gas embolism such as prevention of further gas into circulation, place the patient on her left side so that bubbles are kept away from the mount of the pulmonary artery, 100% oxygen should be given including other treatment. But, the earlier signs of gasping as stated above are not noted and treatment given to air or gas embolism also not noted in Ex.P-9. It shows that there is no monitor at all, till they found develop gasping at 8-55 am. The Ex.P-9 and P-10 show that as soon as gasping was observed, head of the patient was lowered down, endotrachial incubation was done, 100% oxygen is given and cardiac massage started and thereafter, Adroline, decadran and Atropine injections are given, cardio pulmonary rescisitation continued. Ex. P-9 shows that patient developed gasping, whereas Ex. P-10 shows that the patient developed difficulty in breathing. The Ex. P-12 also silent the word gasping. It is only difficulty in breathing and therefore, there is no gasping and thereby observing the early symptoms of gasping does not arise. There is no satisfactory reason found for denying their own documents. Moreover, the said Ex.P-9 and P-10 clearly show that the accused have stalled treatment for gasping, which is result of severe air embolism, only after develop gasping. The accused ought to have detected the earlier signs of gasping by monitoring the patient and should have started the above mentioned treatment which are necessary for air embolism which includes giving of 100% oxygen at earliest stage. The evidence of PW-2 and Ex. P-9 to P-12 clearly establishes that the accused have given 100% oxygen only after finding gasping and cardiac arrest, but not before, therefore, even if 100% oxygen is given at this stage, there will not be any use, because already brain is damaged which is sign of gasping which is in turn result of severe air embolism. It is already discussed that develop of gasping is found at 8-55 am. Gasping is sign of brain damage which will happen when there is no supply of oxygen for more than 10 minutes to the brain. It means, there was no supply of oxygen from 8-45 am or before that time. Therefore, it can be easily inferred that there was air or gas embolism between 8.30 am and 8.45 am and it is the cause for gasping and cardiac arrest preceded by hypotention, drop in oxygen and tachicardia. But, the accused did not monitor the above factors and not detected by the accused till 8.55 am. All the above said factors show that severe air embolism is occurred when the accused insufflated large bolus of gas at high pressure and volume.
73. The very admitted facts of the case are that Smt. Rupa Mutha went to the hospital of A-1 to know whether she can give birth to another child and therefore, the accused have insufflated Carbon dioxide into the fallopian tubes and while conducting the said test, she developed gasping which was of a sudden onset followed by cardiac pulmonary arrest according to Ex.P-9 and as soon as gasping was observed, during recovery from anaesthesia, the patient developed difficulty in breathing, she was incubated immediately, placed in head low position, bradicardia ensued and despite injection Atropine, she developed cardiac asystole, and the accused also found myoclonic jerks of the fore fingers of both hands and she was given Diazepam 10 mg and injection Phnytoin was also given to control and prevent seizures. Thereafter, she was shifted to Care Hospital with AMBU ventilation with Oxygen on pulse oximeter on Dopamine under supervision of A-2 according to Ex. P-2. As seen from the said Ex. P-9 and P-12 and also from the evidence of. PW-2 it is proved that the patient Smt. Rupa Mutha had cardiac arrest in the hospital of A-1 while conducting Rubins Test. It is also proved that the patient was never regained consciousness after inducting anaesthesia at 8.30 a.m., till shifting to Care Hospital or till today i.e. as on this day. It is also discussed that bradicardia is reduction in heart rate less than 50 beats per minute and it led to cardiac asystole as documented in Ex.P-12 and it is caused by prolonged hypoxia (non-supply of oxygen for more than 10 minutes to brain). It is also discussed that the patient was developed gasping at 8.55 a.m., and it was developed before cardiac arrest and it reflects brain stem damage. The another factor is that the patient was found myoclonic seizures in her fore fingers of both hands before shifting to Care hospital. It is also discussed that myoclonic seizures are on account of brain damage. All these things were happened in the hospital of A-1, before shifting to Care hospital. The evidence of PW-2 and Ex. P-20 clearly established that on admission, the patient was found that she was comatose with Coma scale of 7, not opening eyes on verbal command, movements of limbs on painful stimulus, was having tonic clonic contractions and on spontaneous respiration. It is also seen that immediately on admission, the patient was seen by cardiologist and neurologist and diagnosed as Hypoxia encephalopathy (lack of oxygen to the brain more than 10 minutes) and all these conditions are noted on admission in Care hospital which are on account of brain damage. According to the evidence and documents, it is proved that the said condition was not improved till her discharge from Care hospital. Therefore, the question of brain damage occurred in Care hospital does not arise particularly due to the negligence of PW-2 as stated by the accused. Whatever brain damage was caused was happened in the hospital of A-1.
32. The other defence putforth is that the condition in which the patient landed, was not the result of the procedure or the treatment given at the hospital of A-1, but at the Care hospital, which is belied by the documents prepared at the hospital of A-1 and also by the evidence of PWs. 2 and 3. Therefore, it does not need a long discussion.
33. For the reasons given hereinabove, we do not have any doubt in our mind that the accused have been negligent while conducting the test on Smt. Rupa Mutha. The summary of our conclusions would be;
1. The accused decided to have a procedure on the victim which was obsolete;
2. The victim did not regain consciousness within the normal time after she was administered anaesthesia;
3. The accused did not give any explanation as to the reasons which led to the victim suffering from brain damage, as admittedly she was hail and healthy when she entered the hospital and whatever happened to her, had happened in the hospital of A-1;
4. As experts, the accused should have been able to say as to what were the reasons for the lady to have suffered;
5. The gas or air which was pumped into the tubes was not controlled by the metre which was required to be used in carrying such a test; and
6. The Corbandioxide cannot be given by a B.P. apparatus because Corbandioxide is lighter than air and as soon as it is released, it will go into air and atmosphere.
7. That starting with hypoxia, one condition lead to other, causing brain damage.
8. That brain did not receive oxygen for more than ten minutes.
9. The hospital had no back up system to manage complications.
34. Now coming to the question whether the negligence which is proved against the accused persons would constitute criminal negligence as to constitute an offence under Section 338 of I.P.C., the learned Counsel for respondents/accused has placed reliance on various judgments of the Supreme Court. The learned Amicus Curiae also submitted that the negligence of the doctors is proved in the case, but to hold them guilty under Section 338 of I.P.C., this Court would have to conform to the decisions of the Supreme Court, which laid down the principles in order to fix the liability of doctors in cases of negligence.
35. The learned Counsel for the complainant has placed reliance on a judgment in the case of R v. Adomako (1994) 3 All. E.R. 79. In this case, an Anaesthetist had failed to notice that a ventilator tube to the patient was disconnected and as a result, the patient had died. The material fact in the case was, "At approximately 11.05 a.m., a disconnection occurred at the endotracheal tube connection. The supply Of oxygen to the patient ceased and this led to cardiac arrest at 11.14 a.m. During this period the appellant failed to notice or remedy the disconnection." The judgment noted the opinion of the experts in the following terms-
Two expert witnesses gave evidence for the prosecution. Professor Payne described the standard of care as 'abysmal' while Professor Adams stated that in his view a competent anaesthetist should have recognized the signs of disconnection within 15 seconds and that the appellant's conduct amounted to a gross dereliction of care.
36. While referring to the earlier judgments, the learned Judge gave his opinion, In my opinion the law as stated in these two authorities is satisfactory as providing a proper basis for describing the crime of involuntary manslaughter. Since the decision in Andrews v. DPP [1937] 2 All. E.R. 552, [1937] A.C. 576 was a decision of your Lordships' House, it remains the most authoritative statement of the present law which I have been able to find and although its relationship to R v. Seymour [1983] 2 All. E.R. 1058, [1983] 2 A.C. 493 is a matter to which I shall have to return, it is a decision which has not been departed from. On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterized as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.
It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterized as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely as I think likely to achieve only a spurious precision. The essence of the matter, which is supremely a jury question, is whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.
My Lords die view which I have stated of the correct basis in law for the crime of involuntary manslaughter accords. I consider with the criteria stated by counsel although I have not reached the degree of precision in definition which he required, but in my opinion it has been reached so far as practicable and with a result which leaves the matter properly stated for a jury's determination.
37. In Dr. Suresh Gupta v. Govt, of NCT of Delhi , the Supreme Court held, The legal position is almost firmly established that where a patient dies due to the negligent medical treatment of the doctor, the doctor can be made liable in civil law for paying compensation and damages in tort and at the same time, if the degree of negligence is so gross and his act was so reckless as to endanger the life of the patient, he would also be made criminally liable for offence under Section 304-A IPC.
38. Then came the judgment of Supreme Court in Jacob Mathew v. State of Punjab. This case is important as it considered the question of criminal negligence of doctors in detail. Therefore, the relevant facts are necessary to be mentioned. One Jiwan Lal Sharma was admitted as a patient in a private ward of CMC Hospital, Ludhiana. On 22-2-1995 at about 11 p.m., Jiwan Lal felt difficulty in breathing. The complainant's elder brother, Vijay Sharma who was present in the room contacted the duty nurse, who in her turn called some doctor to attend to the patient. No doctor turned up for about 20 to 25 minutes. Then, Dr. Jacob Mathew, the appellant and Dr. Allen Joseph came to the room of the patient. An oxygen cylinder was brought and connected to the mouth of the patient but the breating problem increased further. The patient tried to get up but the medical staff asked him to remain in bed. The oxygen cylinder was found to be empty. There was no other gas cylinder available in the room. Vijay Sharma went to the adjoining room and brought a gas cylinder therefrom. However, there was no arrangement to make the gas cylinder functional and in between, 5 to 7 minutes were wasted. By this time, another doctor came and declared the patient dead. A complaint was filed under Section 304-A of IPC and the Judicial First Class Magistrate, Ludhiana, framed charges against the doctors. They filed a revision before the Court of Sessions. Revision was dismissed. A petition was filed before the High Court under Section 482 of the Code of Criminal Procedure for quashing of the criminal proceedings. However, the petition was dismissed. The matter went to the Supreme Court. Certain other facts which are necessary to be mentioned are that the patient Jiwan Lal was suffering from Cancer in an advanced stage and as per the records, he was not being admitted by any hospital in the country because of his being a case of Cancer at the terminal stage. He was advised to be kept at home and given proper nursing, food, care and solace coupled with prayers. But his sons were very influential persons occupying important positions in the Government and they requested the hospital authorities that on compassionate grounds, their father be admitted in the hospital for regulated medical treatment and proper management of diet. It was abundantly made clear to the sons of the deceased mat the disease was of such a nature and had attained such gravity that nothing could be done for him and he only needed peace and solace, which he could get at his home. Patient was treated with utmost care and caution and given all required medical assistance by the doctors and paramedical staff. Every conceivable effort was made by all the attending staff comprising doctors and nurses and other paramedicals to give appropriate medical treatment. The complainant and his relations, who were misguided or were under mistaken belief as to the facts, lodged a Police report against the accused persons. The matter was first taken up by a Two-Judge-Bench of the Supreme Court. The Bench expressed doubts about the correctness of the view taken by the Supreme Court in Dr. Suresh Gupta's case (2 supra). Therefore, the matter was placed before a Three-Judge-Bench. The Bench, which referred the matter to the Larger Bench, had expressed two reasons for not agreeing with the opinion expressed in Dr. Suresh Gupta's case (2 supra). The statement of Law made in Dr. Suresh Gupta's case was, "For this act of negligence he may be liable in tort but his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable". The Bench of Two-Judges which expressed doubts about this statement of Law, gave two reasons in their order of reference. They are-
(1) Negligence or recklessness being "gross" is not a requirement of Section 304-A IPC and if the view taken in Dr. Suresh Gupta case [(2004) 6 SCC 422] is to be followed then the word "gross" shall have to be read into Section 304-A IPC for fixing criminal liability on a doctor. Such an approach cannot be countenanced.
(2) Different standards cannot be applied to doctors and others. In all cases it has to be seen whether the impugned act was rash or negligent. By carrying out a separate treatment for doctors by introducing degrees of rashness or negligence, violence would be done to the plain and unambiguous language of Section 304-A. If by adducing evidence it is proved, that there was no rashness or negligence involved, the trial Court dealing with the matter shall decide appropriately. But a doctor cannot be placed at a different pedestal for finding out whether rashness or negligence was involved.
39. So, the question before the Supreme Court, as a matter of fact, was whether for the purpose of criminal negligence under Section 304-A or 338 of IPC, committed by a doctor, could be placed under a different pedestal. After discussing the case law in India and elsewhere, the Supreme Court came to the conclusions in para 48 of the judgment and in para 48(2) it is held-
Negligence in the context of the 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.
40. In paragraphs 50 and 51 of the judgment, the Supreme Court however, recorded some notes of wisdom, and caution as under-
50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by the Police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to a rash or negligent act within the domain of criminal law under Section 304-A IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered to his reputation cannot be compensated by any standards.
51. 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 emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer 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.
41. The test laid down by the Supreme Court which is conclusive because it is a judgment by a Three-Judge-Bench and holds the field presently, is that doctors can be prosecuted for an offence of which rashness and negligence is an essential ingredient. However, the negligence in the context of doctors calls for a treatment with a difference. We have already mentioned hereinabove the various steps taken by the accused in the present case at the time of the procedure and after the procedure and which leave no doubt in our mind that the doctors in this case have been rash and negligent to the extent of criminal liability. The reasons given by us in the summary of conclusions, if tested on the touch stone of principles laid down by the Supreme Court, the accused cannot escape conviction.
42. One of the judgments cited by the accused persons is in the case of Bolam v. Friern Hospital Management Committee (1957) 2 All. E.R. 118. The principles laid down in this judgment are the principles adhered to by the Supreme Court referred to hereinabove that if there are two recognized schools of thought on the method of treatment, if the doctor adopts one and discards the other and as a result damage is caused to the patient, it would not be medical negligence.
43. The respondents/accused have also relied on the following judgments-
1. Juggankhan v. State of Madhya Pradesh
2. Kurban Hussein Mohammedali Rangwalla v. State of Maharashtra
3. Suleman Rahiman Mulani v. State of Maharashtra
4. Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole
5. Kishan Chand v. The State of Haryana
6. R v. Adomako (1 supra)
7. Indian Medical Association v. V.P. Shantha
8. Achutrao Haribhau Khodwa v. State of Maharashtra
9. Poonam Verma v. Ashwin Patel
10. Spring Meadows Hospital v. HKarjol Ahluwalia
11. State of Haryana v. Santra
12. Dr. Suresh Gupta v. Govt, of NCT of Delhi (2 supra)
13. Jacob Mathew v. State of Punjab (3 supra)
44. In view of the latest judgment which has been discussed hereinabove in Jacob Mathew's case (3 supra), it is not necessary to refer to all the above judgments. For these reasons, we dismiss the appeal filed by the accused i.e. Transfer Criminal Appeal No. 1 of 2005.
45. Now, coming to the question of the sufficiency of sentence, Section 338 of IPC prescribes a maximum punishment of two years and a fine which may extend to Rs. 1,000/-. The trial Court has sentenced the accused persons to a fine of Rs. 1,000/- which is the maximum fine which could be imposed under Section 338 of IPC. But for the reasons given by the learned Magistrate in his judgment, he has not given any sentence of imprisonment. The reasons given for taking a lenient view as regards A-1 was that she was a lady doctor and she had to maintain her family and also hospital, and for A-2, the reasons were given that he had an unmarried daughter. These reasons were not sufficient for not giving adequate sentence to the accused persons. We have seen the photographs of the lady who was hail and hearty, before she went for the medical procedure to A-1. She was a Chartered Accountant, was only 35-year old at the time of the occurrence and she had a whole future before her. She had a minor daughter also. From the day she went to A-1 for examination and investigations, she is as good as dead and perhaps even worse. Without showing any disrespect to the sentiments of the complainant and his daughter, had Smt. Rupa Mutha died during the procedure, it would have not given such a trauma to her husband and daughter, who must be dying every day and experiencing the trauma everyday and every minute while attending to the lady, who is not conscious, who is immobile and who is just a vegetable, only breathing. Therefore, we would have enhanced the sentence of the accused persons to the maximum provided under Section 338 of IPC, but during the hearing of this case, the accused persons appeared before the Court and they offered an amount of rupees forty lakhs by way of compensation, which was not accepted by the complainant on the ground that he had already filed a case for compensation before the National Consumer Disputes Redressal Commission and which was pending. The accused had offered to compound the offence in lieu of a compensation of rupees forty lakhs irrespective of the quantum of compensation that may be granted by the National Commission. This act would show that the doctors, who are the accused in this case, were repentant on what had happened to Smt. Rupa Mutha. We could not have forced a compromise between the parties, but in the hope that the parties might enter into a compromise, we delayed the disposal of this case for some time.
46. Since there are no signs of compromise and there is no other way by which the offenders can avoid the punishment and certainly not by paying a fine of rupees one thousand, we dismiss the appeal of the accused i.e. Transfer Criminal Appeal No. 1 of 2005, allow the revision filed by the complainant i.e. Criminal Revision Case No. 1168 of 2005 and also allow Criminal Appeal No. 1539 of 2005 filed by the State for enhancement of the sentence, and sentence each accused to three months' Simple Imprisonment. The sentence as far as fine is concerned, is confirmed. Since there are some important questions involved in the matter and the accused persons might like to go to the Supreme Court, we are suspending the sentence of imprisonment for a period of two months.
47. Before parting with the case, we would like to keep on record that there is necessity of making amendments in the Code of Criminal Procedure to enable the Courts to order payment of compensation to the aggrieved persons in lieu of sentencing the accused. Section 357 of the Code of Criminal Procedure relates to order to pay compensation and Sub-section (3) of this Section gives a power to the Court to order payment of compensation by the accused to a person who suffered any loss or injury even in a case where fine does not form part of sentence imposed by the Court. In the present case under Section 338 of the Indian Penal Code a maximum fine of Rs. 1,000/- can be imposed. So paying compensation out of this amount would not be possible in terms of Section 357 (1) of the Code which lays down that when a Court imposes sentence of fine or any other sentence of which fine forms a part, the Court may order the whole or any part of fine recovered to be given by way of compensation. This restriction is not on Sub-section (3) of Section 357 of the Code, but the compensation ordered to be paid under Section 357(3) of the Code would be in addition to the sentence. There is no other interpretation possible on Section 357 of the Code in view of a judgment of the Supreme Court reported in Hari Kishan & State of Haryana v. Sukhbir Singh . In para-10 it considered the import of Sub-section (3) of Section 357 of the Code in the following words, Sub-Section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.
48. Therefore, it is high time to consider that in appropriate cases like the present one, the court should be able to award compensation by way of punishment in lieu of sentence of imprisonment.