Telangana High Court
D.Gireesha vs The State Of Telangana on 5 October, 2023
THE HON'BLE SMT JUSTICE G.ANUPAMA CHAKRAVARTHY
CRIMINAL PETITION No.1020 OF 2023
ORDER:
This Criminal Petition is filed under Section 482 Cr.P.C. by the petitioner/sole accused seeking to quash the proceedings against her in C.C.No.59 of 2021 on the file of the Judicial First Class Magistrate at Vikarabad.
2. The facts of the case, in brief, are that on 04.01.2020, the daughter of respondent No.2 viz., Sathvika Reddy (hereinafter referred to as 'the deceased') had been to Sri Ananth Multispecialty Hospital, Vikarabad, for Laparoscopic Tubectomy and after conducing some medical tests, the doctors advised her to come on the next day. On 05.01.2020 at about 8:00 A.M., respondent No.2, his son, daughter (the deceased) and son-in-law went to Sri Ananth Multispecialty Hospital, and the deceased was admitted in the hospital; that at about 10:40 hours, the petitioner and duty nurses, on consulting with Prof. Dr.Ramachandraiah on phone, administered an unknown injection to the deceased; that after giving injection, the deceased 2 started screaming and died within fifteen minutes. Therefore, respondent No.2 lodged a complaint before the Police, Vikarabad Police Station, against the petitioner, Dr.Ramachandriah and duty doctors. Basing on the said complaint, the Police, Vikarabad Police Station registered a case against the petitioner, Dr.Ramachandriah and duty doctors vide Crime No.7 of 2020 for the offence punishable under Section 304A IPC. The Police, after conducting investigation, filed charge sheet against the petitioner only for the offence under Section 304A IPC and the Judicial Magistrate of First Class, Vikarabad, has taken cognizance of the said offence and numbered the case as C.C.No.59 of 2021.
3. Respondent No.2 has filed a detailed counter affidavit denying the petition averments and inter alia stating that the petitioner does not have adequate knowledge or requisite qualification, but she has directed the deceased to undergo Laparoscopic Tubectomy, by impersonating herself as a competent doctor, which itself amounts to gross negligence and which resulted in the death of the deceased. Therefore, he prayed to dismiss the criminal petition.
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4. Sri T. Pradyumna Kumar Reddy, the learned Senior Counsel appearing for Sri T.S.Anirudh Reddy, the learned counsel for the petitioner, contended that the death of the deceased was not due to the negligence of the petitioner, but due to severe drug reaction; that the reports of the deceased were normal and all due precautions were taken; that the petitioner did not physically administer the injection to the deceased, but the same was done by the duty nurses upon the instructions of the Consulting Specialist - Dr.Ramachandraiah; that as per the postmortem report, the cause of death of the deceased was due to "Acute hypersensitivity reaction anaphylactic shock"; that basing on the said postmortem report, a request was made to the Committee of Doctors to conduct further investigation and submit a report and accordingly, the Committee of Doctors submitted a report concluding that "appears to be a probable acute drug reaction with severe anaphylactic shock leading to death of the patient/deceased".
5. The learned Senior Counsel appearing for the petitioner further contended that though the complaint was lodged against 4 petitioner, Dr.Ramachandraiah and the staff of the hospital, charge sheet has been filed only against the petitioner arraying her as sole accused. It is further contended that basing upon the complaint of respondent No.2, the Telangana State Medical Council also sent a notice to the petitioner on 06.02.2020; that an inquiry was began by the Ethics Committee of Telangana State Medical Council and the petitioner has sent a reply to the said notice to the Telangana State Medical Council on 04.03.2020; that thereafter, the petitioner appeared before the Ethics Committee on 23.11.2022 and 14.12.2022; that without there being any element of mens rea or criminal intent or gross negligence, the petitioner has been roped into the case and she has been arrayed as sole accused. Therefore, prayed to quash the proceedings against the petitioner in C.C.No.59 of 2021.
6. In support of her contentions, the learned counsel for the petitioner relied on the judgments in Mahadev Prasad Kaushik v. State of Uttar Pradesh 1, Martin F.D'Souza v. Mohd. Ishfaq 2, 1 (2008) 14 SCC 479 2 (2009) 3 SCC 1 5 Dr.Harish Kumar Khurana v. Joginder Singh 3, Bombay Hospital & Medical Research Centre v. Asha Jaiswal 4 and Dr.P. Malathi v. The States of Telangana and Andhra Pradesh 5.
7. Sri S. Ganesh, the learned Assistant Public Prosecutor appearing for respondent No.1 - State as well as Sri Yash Gandhi, the learned counsel appearing for respondent No.2, vehemently opposed for quashing of the proceedings against the petitioner contending that the matter has to be decided only after conducting trial by the trial Court and prayed to dismiss the present Criminal Petition.
8. Coming to the citations relied upon by the learned counsel for the petitioner, in Martin F.D'Souza's case, the Hon'ble Supreme Court held as under:
"40. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the 3 (2021) 10 SCC 291 4 2021 SCC OnLine SC 1149 5 2014 SCC OnLine Hyd 483 6 professional would be at stake. A single failure may cost him dear in his lapse.
41. As observed by the Supreme Court in Jacob Mathew's case :
"A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.
If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason - whether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being the better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to society."
42. When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.
43. To fasten liability in criminal proceedings e.g. under Section 304A IPC the degree of negligence has to be higher than the negligence which is enough to fasten liability in civil proceedings. Thus for civil liability it may be enough for the complainant to prove that the doctor did not exercise reasonable care in accordance with the principles mentioned above, but for convicting a doctor in a criminal case, it must also be proved that this negligence was gross amounting to recklessness.
In Dr. Harish Kumar Khurana's case, the Supreme Court 7 held as follows:-
4. Having noted the decisions relied upon by the learned counsel for the parties, it is clear that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception. In the instant case, apart from the allegations made by the claimants before the NCDRC both in the complaint and in the affidavit filed in the proceedings, there is no other medical evidence tendered by the complainant to indicate negligence on the part of the doctors who, on their own behalf had explained their position relating to the medical process in their affidavit to explain there was no negligence. The reference made is to the answers given by Dr. Khurana to the interrogatories raised by the complainant. In respect of the first operation, it was clarified that the patient did not have any side effects/complications during the first operation which was described as uneventful. On leaving the operation theatre, the patient was in the custody of surgeon. After the operation he had not been called for any complication related to anaesthesia. Since he had written the anaesthesia notes in the register during the first operation, he did not see reason to see the hospital record after the first operation. With regard to the comment of the surgeon after the first operation in the treatment sheet regarding the patient being 'poorly tolerant to anaesthesia', he has replied that the said observation had no meaning since the first operation was uneventful and was successful. There was no anaesthesia related complication of any kind. With regard to the emergency which occurred during the second operation and the manner in which he had alerted the hospital and requisitioned the help of cardiologist, he has answered that the full operation theatre team was already there and the cardiologist was summoned by one of the members of the team and the specific details could not be answered by him since the entire team was busy in attempting to save the patient."
In Dr. P. Malathi's case, it was held as follows:- 8
"In mind the aforementioned principles, the individual liability of the doctors and hospital must be judged.
From the proposition laid down in the above referred decision, it is clear that mere negligence is not sufficient and to fasten criminal liability, gross negligence and high recklessness on the part of the doctors is required. Both State Consumer Disputes Redressal Commission and the State Medical Council found that there is no negligence on the part of doctors and the patient died due to Amniotic Fluid Embolism. There is no Post Mortem examination and the cause of death is not known except the presumptions and assumptions of the complainant. Even the sworn statements of four doctors is only their opinion in respect of case sheet, which document was already considered by Consumer Disputes Redressal commission and State Medical Council and Medical Council of India in respect of A.1., the Consumer Redressal commission and State Medical Council of India in respect of A.3 and these forums after considering the opinion of experts in the field found that there was no negligence of any kind on the part of these two doctors. Further from the material, it is clear that petitioner i.e., A.1 is not a residential doctor of Shalini Maternity Hospital and she only accommodated as she was requested by one of her colleague who happened to be classmate of husband of deceased.
Taking the facts and circumstances of the case and the material filed along with quash petition and the principle laid down by Supreme Court into consideration, I am of the view that there is no material showing gross negligence or recklessness on the part of these two petitioners for the death of deceased and the ingredients of Section 304-A I.P.C. are not at all attracted, against the petitioners.
Coming to offence under Section 201 I.P.C., according to the complainant, there is screening of the evidence by not informing local authorities for the Post Mortem examination and for making belated entries in the case sheet. For these allegations, there is absolutely no material to show that there was any falsifying of hospital record to screen away the offences. Mere suspicion or allegation however strong they may cannot be taken into consideration without any supporting material. Even otherwise those allegations reflect on the Nursing Home and its residential doctors, but not on petitioners.9
When the basic requirements are missing and the State Consumer Redressal Commission, State Medical Council and National Medical Council found no negligence from the same material then allowing such complaint to continue and compel petitioners to face rigama role of the criminal trial would be totally unjustified leading to miscarriage of justice."
9. The above judgments relied upon by the learned Senior Counsel for the petitioner applies to the present case.
10. This Court, on 01.02.2023, while issuing notice to respondent No.2, has passed an interim order dispensing with the attendance of the petitioner - accused in C.C.No.59 of 2021 pending on the file of the Judicial First Class Magistrate at Vikarabad.
11. A perusal of record discloses that the petitioner is a Dental Surgeon and she has nothing to do with regard to the injection administered to the deceased, as on consultation with Prof. Dr.Ramachandraiah on phone, injection was administered by the duty nurses to the deceased. Even the charge sheet does not disclose as to which injection was administered to the deceased and as to how the petitioner was responsible for causing the 10 death of the deceased. Furthermore, the deceased and respondent No.2 are not strangers to the petitioner and they are relatives. No explanation was given by respondent No.2 as to why the deceased has been referred to the hospital of the petitioner, who is a dental surgeon in the said hospital.
12. Furthermore, in the postmortem examination report, the cause of death of the deceased was mentioned as "acute hypersensitivity reaction anaphylactic shock" and the same has been supported by the findings of the Doctors Committee, which opined that "appears to be a probable acute drug reaction with severe anaphylactic shock leading to death of the patient/deceased".
13. Though the charge sheet discloses that the petitioner administered injection to the deceased, the complaint discloses that the duty nurses, on consultation with Prof. Ramachandraiah on phone, administered the injection to the deceased. The statements of the witnesses recorded under Section 161 Cr.P.C support the same.
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14. The Apex Court in Jacob Mathew v. State of Punjab 6 held that a private complaint may not be entertained unless the complainant produces prima facie evidence before the Court in the form of a credible opinion by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The Investigating Officer before proceeding against the doctor/accused has to obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam test to the facts collected in the investigation.
15. As per the precedents of the Hon'ble Supreme Court, the police officials shall not harass or arrest the doctors unless the allegations against them fall within the parameters laid down by the Hon'ble Supreme Court in the above said judgment, otherwise, the police officials have to face legal action. 6 (2005) 6 SCC 1 12
16. A perusal of the record discloses that the petitioner is a Dental Surgeon and she did not administer the injection to the deceased and it is the duty nurses who have administered the injunction to the deceased based upon the instructions of Consulting Specialist Dr. Ramachandraiah.
17. A reading of the complaint does not reveal any specific allegation against the petitioner with regard to the cause of the death of the deceased.
18. Further, in view of the failure of the police to adhere to the principles laid down by the Hon'ble Supreme Court in Jacob Mathew's case prior to registration of the crime against the petitioner, this Court is of the considered opinion that it is a fit case to quash all further proceedings against the petitioner in C.C.No.59 of 2021 pending on the file of the Judicial Magistrate of First Class, Vikarabad.
19. Accordingly, the Criminal Petition is allowed and the proceedings against the petitioner-sole accused in C.C.No.59 of 13 2021 on the file of the Judicial First Class Magistrate at Vikarabad, are hereby quashed.
Pending miscellaneous applications, if any, shall stand closed.
__________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 05.10.2023 va