Karnataka High Court
Dr.B Vasanthkumar S/O. Late. C. Basappa vs The State Of Karnataka on 17 September, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF SEPTEMBER, 2013
BEFORE
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.11088/2013
BETWEEN:
Dr.B.Vasanthkumar S/o Late C.Basappa,
Age: 43 years, Occ: Medical Officer,
R/o PHC Bailur, Bailhongal Taluk,
Dist: Belgaum.
...PETITIONER
(By Shri.K.L.Patil, Advocate)
AND:
1. The State of Karnataka,
Rep.by SPP High Court of Karnataka,
Dharwad.
2. Rudrappa S/o Hanumant Karkad,
Age: 38 Occ: Coolie,
R/o At/Post Gundyanatti, Tq.Khanapur,
Dist: Belgaum.
...RESPONDENTS
(By Shri.V.M.Banakar, Additional State Public Prosecutor for R1,
R2 served)
---
2
This Criminal Petition is filed under Section 482 of Criminal
Procedure Code, 1973 seeking to quash the entire proceedings on the
file of the Additional Civil Judge & JMFC, Bailhongal sitting at
Kittur in C.C.No.815/2013 for the offence punishable under Section
304-A of IPC.
This petition coming on for admission this day, the Court made
the following:
ORDER
Heard the learned counsel for the petitioner and the learned Additional State Public Prosecutor.
2. Respondent No.2, the complainant having been served remains un-represented. It is in the following background the present petition is filed.
3. It was the case of the complainant that, on 28.01.2010, he had visited the Bailur Government Hospital along with his wife to make enquiry as regards a proposed mini lap operation being carried out on his wife, and had met the petitioner in this regard. The petitioner who is the Medical Officer stationed at the Primary Health Centre, Bailur, had conducted a routine check up and informed the complainant that an operation camp was being conducted for this 3 purpose and directed the complainant and his wife to come on the next day. On 29.01.2010, the complainant and his wife came to the hospital and the complainant's wife had undergone the operation. She was admitted for the purpose of operation and was administered a test dose of a drug and was taken to the operation theatre. After some time, the complainant was informed that his wife had fallen unconscious and was not responding to any kind of treatment. Immediately, his wife was shifted to the District Government Hospital, Belgaum and she was declared brought dead. It is in this background that the complainant had filed a case against the petitioner alleging that it was on account of negligence on his part that the complainant's wife had died. The case was registered as Crime No.40/2010 by the Kittur Police Station for an offence punishable under Section 304-A of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.', for brevity). The investigation was taken up on the basis of the said complaint and after recording the statement of witnesses and obtaining the opinion of the forensic science department, and on completion of the investigation, the police 4 had filed a 'B' final report before the jurisdictional Magistrate. On filing of such a report, the complainant had filed a memo, and the Court after hearing the complainant had set aside the 'B' final report and registered a case and had issued summons to the petitioner by an order dated 08.03.2013. It is that which is under challenge in the present petition.
4. The learned counsel for the petitioner would point out that the investigating authorities had left no stone unturned and had conducted a detailed enquiry, and it was only on a close examination of the material documents and evidence gathered, that they had filed 'B' final report, as regards the fact that there was no prima facie case made out against the petitioner for the offences alleged. However, the Court below having accepted the protest memo and having set aside the 'B' final report, without assigning any reasons to come to a different conclusion has resulted in a miscarriage of justice, as the petitioner is now faced with the prospect of a trial, which cannot be sustained, on the face of it. On the basis of the material already placed on record, it is pointed out that the postmortem report, which 5 is produced in the case on hand clearly reveals that there are no positive findings either in the postmortem or on HPE, which could pin point or confirm the exact cause of death and that the cause of death remains undetermined. Therefore, the allegation that the petitioner was negligent in administering any drug to the patient resulting in her death, is not established by any material document or other evidence that is available. The forensic expert had also furnished his report to the effect that, all the drugs and other dosage administered to the deceased prior to the operation fall in line with the regular drug and dose for mini lap operation. Therefore, it is evident that the petitioner had taken due care and caution in administering the drugs in the prescribed manner and it could not be attributed to the petitioner of having given an overdose of any medicine and the patient having suffered any adverse reaction on account of the same. Further, the investigating officer has also obtained an independent medical opinion from a qualified medical practitioner, who had stated that there was no positive evidence to confirm that death was due to an adverse drug reaction. Hence, it is 6 contended that overwhelming material to indicate that there was no sign of any want of diligence or any overt act committed by the petitioner, which could be characterized as a negligent act thereby causing the death of the patient, it cannot be said that there was any prima facie material for the Court below to reverse the 'B' final report filed on behalf of the prosecution and to pursue the matter further. No reasons are assigned by the Court below in accepting the protest memo filed by the complainant. The learned counsel also places reliance on the judgment in the case of Jacob Mathew Vs. State of Punjab AIR Supreme Court 3180, wherein the Apex Court while considering the tort of negligence has spelt out the essential components of negligence. That a finding of negligence in the context of the medical profession could be found only on two findings, either that the medical practitioner was not possessed of the requisite skill which he professed to have possessed, or he did not exercise with reasonable competence in given case, the skill which he did possess. In the absence of these two ingredients, it cannot be held that the medical practitioner was guilty of negligence. This has been 7 completely overlooked by the trial Court, as it is evident that the trial Court has not chosen to indicate the reasons as to how the petitioner could be proceeded with, in spite of lack of any material to implicate him. Reference is also made to the case of Martin F. D'Souza V. Mohd. Ishfaq AIR 2009 Supreme Court 2049, as regards the proof of negligence and that the medical practitioner could not be held negligent simply because there was mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. It would not be sufficient to show that there is a body of competent profession opinion which considers that the decision of the accused professional was a wrong decision, provided thee also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular 8 equipment, the charge would fail if the equipment was not generally available at that point of time, etc. Reference is also placed on Jacob Mathew's case in the said decision. The Apex Court has also referred to the basic principles relating to the medical negligence known as the BOLAM Rule. This was laid down in the judgment of Justice McNair in Bolam vs. Friern Hospital Management Committee (1957) 1 WLR 582, which as follows:' "Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill.
The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill.... It is well- established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."
5. The said test has been approved by the Apex Court in Jacob Mathew's case. Reference is also made to the degree of skill 9 required by a medical practitioner as stated in Halsbury's Laws of England, thus:
"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken and he been acting with ordinary care."10
6. Further, in Eckersley vs. Binnie (1988) 18 Con LR, summarized the Bolam test in the following words:
"From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinary competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of a polymath and prophet."11
7. The Supreme Court has reiterated the observations in Jacob Mathew's case. Thus, and has concluded as follows:
"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 12 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.
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."
8. In the light of these general principles and given the facts and circumstances of this case, the petitioner has made out a case for the relief as prayed for. Consequently, the petition is allowed. The proceedings on the file of the Additional Civil Judge and JMFC, Bailhongal sitting at Kittur in C.C.No.815/2013 stands quashed.
Sd/-
JUDGE MBS/-