NO ARREST OF DOCTOR OVER COMPLAINTS OF MEDICAL NEGLIGENCE WITHOUT PRIMA FACIE EVIDENCE.
Topic
Complaints against Doctors
That in today`s world frivolous
complaints against doctors have increased by leaps and bounds, The patients
have started raising fingers on the doctors, in few cases there might be some
logic but most of the times the complaints are found false. The Hon`ble Supreme Court on 17th February 2009 held that the
police cannot arrest doctors over complaints of medical negligence without
prima facie evidence. The apex court also restrained courts, including consumer
forums, from issuing notices to doctors for alleged medical negligence without seeking
an opinion from experts but still
nothing have changed much, that frivolous complaints against doctors have
increased by leaps and bounds in our country particularly after the medical
profession was placed within the purview of the Consumer Protection Act,” the
court said. A bench of
Justices Markandeya Katju & R M Lodha clearly laid that courts must first
refer complaints of medical negligence to a competent doctor or a panel of
experts in the field before issuing notice to the allegedly negligent doctor.
“This is necessary to avoid harassment to doctors who are not found to be
negligent. That as per the provisions of clearly laid parameter in Jacob
Mathew’s case, the police officials should also avoid arresting doctors on
petty complaints otherwise the policemen will themselves have to face legal
action,” the apex court said.
In the Supreme Court of India
Civil Appellate Jurisdiction: Civil Appeal No. 3541 of 2002
Martin F. D’souza …Appellant Vs Mohd. Ishfaq …Respondent
Judgment: Markandey Katju, J.
New Delhi; February 17, 2009
1. This appeal against the judgment of the National Consumer
Disputes Redressal Commission, New Delhi dated 22.3.2002 has been filed under
Section 23 of the Consumer Protection Act,1986.
2. Heard learned counsel for the parties and perused the record.
3. The brief facts of the case are narrated below:
4. In March 1991, the respondent who was suffering from chronic
renal failure was referred by the Director, Health Services to the Nanavati
Hospital, Mumbai for the purpose of a kidney transplant.
5. On or about 24.4.1991, the respondent reached Nanavati
Hospital, Bombay and was under the treatment of the appellant Doctor. At that
stage, the respondent was undergoing haemodialysis twice a week on account of
chronic renal failure. Investigations were underway to find a suitable donor.
The respondent wanted to be operated by Dr. Sonawala alone who was out of India
from 1.6.1991 to 1.7.1991.
6. On 20.5.1991, the respondent approached the appellant Doctor.
At the time, the respondent, who was suffering from high fever, did not want to
be admitted to the Hospital despite the advice of the appellant. Hence, a broad
spectrum antibiotic was prescribed to him.
7. From 20.5.1991 to 29.5.1991, the respondent attended the
Haemodialysis Unit at Nanavati Hospital on three occasions. At that time, his
fever remained between 1010-1040F. The appellant constantly requested the
complainant to get admitted to hospital but the respondent refused.
8. On 29.5.1991 the respondent who had high fever of 1040F
finally agreed to get admitted to hospital due to his serious condition.
9. On 30.5.1991 the respondent was investigated for renal
package. The medical report showed high creatinine 13 mg, blood urea 180 mg.
The Haemoglobin of the respondent was 4.3%. The following chart indicates the
results of the study in comparison to the normal range :-
Normal Range
S. Creatinine 13.0 mgs. % 0.7 – 1.5 mgs. %
Blood Urea 180 mgs. % 10-50 mgs. %
Haemoglobin 4.3 gms. % 11.5-13.5 gms. %
10. On 30.5.1991, the respondent was investigated for typhoid
fever, which was negative. He was also investigated for ESR, which was
expectedly high in view of renal failure and anemia infection. Urine analysis
was also carried out which showed the presence of bacteria.
11. On 3.6.1991, the reports of the urine culture and
sensitivity were received. The report showed severe urinary tract infection due
to Klebsiella species (1 lac/ml.). The report also showed that the infection
could be treated by Amikacin and Methenamine Mandelate and that the infection
was resistant to other antibiotics. Methnamine Mandelate cannot be used in
patients suffering from renal failure.
12. On 4.6.1991, the blood culture report of the respondent was
received, which showed a serious infection of the blood stream (staphylococcus
species).
13. On 5.6.1991, Amikacin injection was administered to the
respondent for three days (from 5th to 7th June, 1991), since the urinary
infection of the respondent was sensitive to Amikacin. Cap. Augmentin (375 mg.)
was administered three times a day for the blood infection and the respondent
was transfused one unit of blood during dialysis. Consequent upon the
treatment, the temperature of the respondent rapidly subsided.
14. From 5.6.1991 to 8.6.1991, the respondent insisted on immediate
kidney transplant even though the respondent had advised him that in view of
his blood and urine infection no transplant could take place for six weeks.
15. On 8.6.1991, the respondent, despite the appellant’s advice,
got himself discharged from Nanavati Hospital. Since the respondent was
suffering from blood and urinary infection and had refused to come for
haemodialysis on alternate days, the appellant suggested Injection Amikacin
(500 mg.) twice a day. Certain other drugs were also specified to be taken
under the supervision of the appellant when he visited the Dialysis Unit.
16. On 11.6.1991, the respondent attended the Haemodialysis Unit
and complained to the appellant that he had slight tinnitus (ringing in the
ear). The appellant has alleged that he immediately told the respondent to stop
taking the Amikacin and Augmentin and scored out the treatment on the discharge
card. However, despite express instructions from the appellant, the respondent
continued to take Amikacin till 17.6.1991. Thereafter, the appellant was not
under the treatment of the appellant.
17. On 14.6.1991, 18.6.1991 and 20.6.1991 the respondent
received haemodialysis at Nanavati Hospital and allegedly did not complain of
deafness during this period.
18. On 25.6.1991, the respondent, on his own accord, was
admitted to Prince Aly Khan Hospital, where he was also treated with
antibiotics. The complainant allegedly did not complain of deafness during this
period and conversed with doctors normally, as is evident from their evidence.
19. On 30.7.1991, the respondent was operated upon for
transplant after he had ceased to be under the treatment of the appellant. On
13.8.1991, the respondent was discharged from Prince Aly Khan Hospital after
his transplant. The respondent returned to Delhi on 14.8.1991, after discharge.
20. On 7.7.1992, the respondent filed a complaint before the
National Consumer Disputes Redressal Commission, New Delhi (being Original
Petition No.178 of 1992) claiming compensation of an amount of Rs.12,00,000/-
as his hearing had been affected. The appellant filed his reply stating, inter
alia, that there was no material brought on record by the respondent to show
any co relationship between the drugs prescribed and the state of his health.
Rejoinder was filed by the respondent.
21. The National Consumer Disputes Redressal Commission
(hereinafter referred to as `the Commission’) passed an order on 6.10.1993
directing the nomination of an expert from the All India Institute of Medical
Sciences, New Delhi (AIIMS) to examine the complaint and give an opinion. This
was done in order to get an unbiased and neutral opinion.
22. AIIMS nominated Dr. P. Ghosh, and the report of Dr. P. Ghosh
of the All India Institute of Medical Sciences was submitted before the
Commission, after examining the respondent. Dr. Ghosh was of the opinion that
the drug Amikacin was administered by the appellant as a life-saving measure
and was rightly used. It is submitted by the appellant that the said report
further makes it clear that there has been no negligence on the part of the
appellant.
23. Evidence was thereupon led before the Commission. Two
affidavits by way of evidence were filed on behalf of the respondent, being
that of his wife and himself. The witnesses for the respondent were:-
i) The respondent Mohd. Ishfaq
ii) The wife of the respondent
iii) Dr. Ashok Sareen
iv) Dr. Vindu Amitabh
24. On behalf of the appellant, six affidavits by way of
evidence were filed. These were of the appellant himself, Dr. Danbar (a doctor
attached to the Haemodialysis Department of Nanavati Hospital), Dr. Abhijit
Joshi (a Resident Senior Houseman of Nanavati Hospital), Mrs. Mukta Kalekar (a
Senior sister at Nanavati Hospital), Dr. Sonawala (the Urologist who referred
the respondent to the appellant) and Dr. Ashique Ali Rawal (a Urologist
attached to Prince Aly Khan Hospital). The witnesses for the appellant were:-
i) The appellant-Dr. M.F. D’Souza
ii) Dr. Danbar
iii) Dr. Upadhyay
iv) Mrs. Mukta Kalekar
v) Dr. Ashique Ali Rawal
25. The respondent also filed an opinion of the Chief of
Nephrology at Fairview General Hospital, Cleveland, Ohlo, which was heavily
relied upon in the impugned judgment. The appellant has alleged that the said
opinion was written without examining the respondent and, in any case, the
appellant was not afforded an opportunity of cross-examining the person who
gave the opinion.
26. The case of the respondent, in brief, is that the appellant
was negligent in prescribing Amikacin to the respondent of 500 mg twice a day
for 14 days as such dosage was excessive and caused hearing impairment. It is
also the case of the respondent that the infection he was suffering from was
not of a nature as to warrant administration of Amikacin to him.
27. The appellant submitted before the Commission that at the
time of admission of the respondent on 29.5.1991 to the hospital, he had fever
of 1040F and, after investigation, it was found that his serum Creatinine level
was 13 mg%, blood urea 180 mg% and Hemoglobin 4.3 mg. Amikacin was prescribed
to him only after obtaining blood and urine culture reports on 3rd and 4th
June, 1991, which showed the respondent resistant to other antibiotics. Even
the witness of the respondent (Dr. Sareen) conceded that he would have prescribed
Amikacin in the facts of the case. However, the Commission allowed the
complaint of the respondent by way of the impugned order dated 9.4.2002 and
awarded Rs.4 lakh with interest @ 12% from 1.8.1992 as well as Rs.3 lakh as
compensation as well as Rs.5000/- as costs.
28. Before discussing the facts of the case, we would like to
state the law regarding Medical Negligence in India.
29. Cases, both civil and criminal as well as in Consumer Fora,
are often filed against medical practitioners and hospitals, complaining of
medical negligence against doctors/hospitals/ nursing homes and hence the
latter naturally would like to know about their liability.
30. The general principles on this subject have been lucidly and
elaborately explained in the three Judge Bench decision of this Court in Jacob
Mathew vs. State of Punjab and Anr. (2005) 6 SCC 1. However, difficulties arise
in the application of those general principles to specific cases.
31. For instance, in para 41 of the aforesaid decision it was
observed : “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 is what the law
requires.”
32. Now what is reasonable and what is unreasonable is a matter
on which even experts may disagree. Also, they may disagree on what is a high
level of care and what is a low level of care.
33. To give another example, in paragraph 12 to 16 of Jacob
Mathew’s case (Supra), it has been stated that simple negligence may result
only in civil liability, but gross negligence or recklessness may result in
criminal liability as well. For civil liability only damages can be imposed by
the Court but for criminal liability the Doctor can also be sent to jail (apart
from damages which may be imposed on him in a civil suit or by the Consumer
Fora). However, what is simple negligence and what is gross negligence may be a
matter of dispute even among experts.
34. The law, like medicine, is an inexact science. One cannot
predict with certainty an outcome of many cases. It depends on the particular
facts and circumstances of the case, and also the personal notions of the Judge
concerned who is hearing the case. However, the broad and general legal principles
relating to medical negligence need to be understood.
35. Before dealing with these principles two things have to be
kept in mind : (1) Judges are not experts in medical science, rather they are
lay men. This itself often makes it somewhat difficult for them to decide cases
relating to medical negligence. Moreover, Judges have usually to rely on
testimonies of other doctors which may not necessarily in all cases be
objective, since like in all professions and services, doctors too sometimes have
a tendency to support their own colleagues who are charged with medical
negligence. The testimony may also be difficult to understand,particularly in
complicated medical matters, for a layman in medical matters like a Judge; and
(2) A balance has to be struck in such cases. While doctors who cause death or
agony due to medical negligence should certainly be penalized, it must also be
remembered that like all professionals doctors too can make errors of judgment
but if they are punished for this no doctor can practice his vocation with
equanimity. Indiscriminate proceedings and decisions against doctors are
counterproductive and serve society no good. They inhibit the free exercise of
judgment by a professional in a particular situation.
36. Keeping the above two notions in mind we may discuss the
broad general principles relating to medical negligence.
General Principles Relating to Medical Negligence
37. As already stated above, the broad general principles of
medical negligence have been laid down in the Supreme Court Judgment in Jacob
Mathew vs. State of Punjab and Anr. (supra). However, these principles can be
indicated briefly here:
38. The basic principle relating to medical negligence is 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 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.” Bolam’s test has been approved by the Supreme Court in Jacob
Mathew’s case.
39. In Halsbury’s Laws of England the degree of skill and care
required by a medical practitioner is stated as follows:
“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
had he been acting with ordinary care.”
(Emphasis supplied)
40. Eckersley vs. Binnie (1988) 18 Con LR 1 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 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 ordinarily 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.”
41. A medical practitioner is not liable to be held negligent
simply because things went wrong from 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. For instance, he
would be liable if he leaves a surgical gauze inside the patient after an
operation vide Achutrao Haribhau Khodwa & others vs. State of Maharashtra
& others, AIR 1996 SC 2377 or operates on the wrong part of the body, and
he would be also criminally liable if he operates on someone for removing an
organ for illegitimate trade.
42. There is a tendency to confuse a reasonable person with an
error free person. An error of judgment may or may not be negligent. It depends
on the nature of the error.
43. It is not enough to show that there is a body of competent
professional opinion which considers that the decision of the accused
professional was a wrong decision, provided there also exists a body of
professional opinion, equally competent, which supports the decision as
reasonable in the circumstances. As Lord Clyde stated in Hunter vs. Hanley 1955
SLT 213 : “In the realm of diagnosis and treatment there is ample scope for
genuine difference of opinion and one man clearly is not negligent merely
because his conclusion differs from that of other professional men…. The true
test for establishing negligence in diagnosis or treatment on the part of a
doctor is whether he has been proved to be guilty of such failure as no doctor
of ordinary skill would be guilty of if acting with ordinary care….”
(Emphasis supplied)
44. 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 equipment, the charge would fail if the equipment was not generally
available at that point of time.
45. The higher the acuteness in an emergency and the higher the
complication, the more are the chances of error of judgment. At times, the
professional is confronted with making a choice between the devil and the deep
sea and has to choose the lesser evil. The doctor is often called upon to adopt
a procedure which involves higher element of risk, but which he honestly
believes as providing greater chances of success for the patient rather than a
procedure involving lesser risk but higher chances of failure. Which course is
more appropriate to follow, would depend on the facts and circumstances of a
given case but a doctor cannot be penalized if he adopts the former procedure,
even if it results in a failure. The usual practice prevalent nowadays is to
obtain the consent of the patient or of the person in-charge of the patient if
the patient is not in a position to give consent before adopting a given
procedure.
46. There may be a few cases where an exceptionally brilliant
doctor performs an operation or prescribes a treatment which has never been
tried before to save the life of a patient when no known method of treatment is
available. If the patient dies or suffers some serious harm, should the doctor be
held liable? In our opinion he should not. Science advances by experimentation,
but experiments sometime end in failure e.g. the operation on the Iranian twin
sisters who were joined at the head since birth or the first heart transplant
by Dr. Barnard in South Africa. However, in such cases it is advisable for the
doctor to explain the situation to the patient and take his written consent.
47. Simply because a patient has not favorably 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 professional would be at stake. A single failure
may cost him dear in his lapse.
48. 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 velour, 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.”
49. 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.
50. 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.
51. The difference between simple negligence and gross
negligence has broadly been explained in paragraphs 12 to 16 of Jacob Mathew’s
case, though difficulties may arise in the application of the principle in
particular cases. For instance, if a mop is left behind in the stomach of a
patient while doing an operation, would it be simple negligence or gross
negligence? If a scissors or sharp edged medical instrument is left in the
patient’s body while doing the operation would that make a difference from
merely leaving a mop?
52. The professional is one who professes to have some special
skill. A professional impliedly assures the person dealing with him (i) that he
has the skill which he professes to possess, (ii) that skill shall be exercised
with reasonable care and caution.
53. Judged by this standard, the professional may be held liable
for negligence on the ground that he was not possessed of the requisite skill
which he professes to have. Thus a doctor who has a qualification in Ayurvedic
or Homeopathic medicine will be liable if he prescribes Allopathic treatment
which causes some harm vide Poonam Verma vs. Ashwin Patel & Ors. (1996) 4
SCC 332. In Dr. Shiv Kumar Gautam vs. Alima, Revision Petition No.586 of 1999
decided on 10.10.2006, the National Consumer Commission held a homeopath liable
for negligence for prescribing allopathic medicines and administering glucose
drip and giving injections. Protection to Doctors in Criminal Cases
54. In para 52 of Jacob Mathew’s case the Supreme Court
realizing that doctors have to be protected from frivolous complaints of
medical negligence, has laid down certain rules in this connection:
(i) A private complaint should not be entertained unless the
complainant has produced prima facie evidence before the court in the form of a
credible opinion given by another competent doctor to support the charge of
rashness or negligence on the part of the accused doctor.
(ii) The investigating officer should, before proceeding against
the doctor accused of rash or negligent act or omission, obtain an independent
and competent medical opinion, preferably from a doctor in government service,
qualified in that branch of medical practice who can normally be expected to
give an impartial opinion applying the Bolam test.
(iii) A doctor accused of negligence should not be arrested in a
routine manner simply because a charge has been leveled against him. Unless his
arrest is necessary for furthering the investigation or for collecting evidence
or unless the investigating officer feels satisfied that the doctor proceeded
against would not make himself available to face the prosecution unless
arrested, the arrest should be withheld. Precautions which
Doctor/Hospitals/Nursing Homes should take:
(a) Current practices, infrastructure, paramedical and other
staff, hygiene and sterility should be observed strictly. Thus, in Sarwat Ali
Khan vs. Prof. R. Gogi and others Original Petition No.181 of 1997, decided on
18.7.2007 by the National Consumer Commission, the facts were that out of 52
cataract operations performed between 26th and 28th September, 1995 in an eye
hospital 14 persons lost their vision in the operated eye. An enquiry revealed
that in the Operation Theatre two autoclaves were not working properly. This
equipment is absolutely necessary to carry out sterilization of instruments,
cotton, pads, linen, etc., and the damage occurred because of its absence in
working condition. The doctors were held liable.
(b) No prescription should ordinarily be given without actual
examination. The tendency to give prescription over the telephone, except in an
acute emergency, should be avoided.
(c) A doctor should not merely go by the version of the patient
regarding his symptoms, but should also make his own analysis including tests
and investigations where necessary.
(d) A doctor should not experiment unless necessary and even
then he should ordinarily get a written consent from the patient.
(e) An expert should be consulted in case of any doubt. Thus, in
Smt. Indrani Bhattacharjee, Original Petition No.233 of 1996 decided by the
National Consumer Commission on 9.8.2007, the patient was diagnosed as having
`Mild Lateral Wall Eschemia’. The doctor prescribed medicine for
gastro-entiritis, but he expired. It was held that the doctor was negligent as
he should have advised consulting a Cardiologist in writing.
(f) Full record of the diagnosis, treatment, etc. should be
maintained. Application of the above mentioned general principles to particular
cases:
Decisions of the Court
55. In Pt. Parmanand Katara vs. Union of India & Others AIR
1989 SC 2039, the petitioner referred to a report published in the newspaper
“The Hindustan Times” in which it was mentioned that a scooterist was knocked
down by a speeding car. Seeing the profusely bleeding scooterist, a person who
was on the road, picked up the injured and took him to the nearest hospital.
The doctors refused to attend and told the man that he should take the patient
to another hospital located 20 kilometers away authorized to handle medico-legal
cases. The injured was then taken to that hospital but by the time he could
reach, the victim succumbed to his injuries.
56. The Supreme Court referred to the Code of Medical Ethics
drawn up with the approval of the Central Government under Section 33 of the
Indian Council Medical Act and observed “Every doctor whether at a Government
Hospital or otherwise has the professional obligation to extend his services
for protecting life. The obligation being total, absolute and paramount, laws
of procedure whether in statutes or otherwise cannot be sustained and,
therefore, must give way.”
57. The Supreme Court held that it is the duty of the doctor in
an emergency to begin treatment of the patient and he should not await the
arrival of the police or to complete the legal formalities. The life of a
person is far more important than legal formalities. This view is in accordance
with the Hippocratic Oath of doctors.
58. Although this decision has laid down that it is the duty of
a doctor to attend to a patient who is brought to him in an emergency, it does
not state what penalty will be imposed on a doctor who refuses to attend the
said patient. Consequently it will
depend on the fact and circumstances of the case. However, this case is
important because nowadays health care has often become a business, as is
mentioned in George Bernard Shaw’s play “The Doctor’s Dilemma”. The medical
profession is a noble profession and it should not be brought down to the level
of a simple business or commerce. The truth of the matter, sadly, is that today
in India many doctors (though not all) have become totally money-minded, and
have forgotten their Hippocratic Oath. Since most people in India are poor the
consequence is that for them proper medical treatment is next to impossible,
and hence they have to rely on quacks. This is a disgrace to a noble
profession.
59. In Paschim Banga Khet Mazdoor Samity and others vs. State of
West Bengal and Another AIR 1996 SC 2426, the Supreme Court held that the
denial of emergency aid to the petitioner due to the non availability of bed in
the Government Hospital amounts to the violation of the right to life under
Article 21 of the Constitution. The Court went on to say that the
Constitutional obligation imposed on the State by Article 21 cannot be
abdicated on the ground of financial constraint.
60. In Md. Suleman Ansari (D.M.S.) vs. Shankar Bhandari (2005)
12 SCC 430 the respondent suffered a fracture of his hand. He went to the
appellant who held himself out to be a qualified medical practitioner. The
appellant bandaged the respondent’s hand and prescribed certain medicines. He
was ultimately taken to another doctor but by this time the damage to his hand
was permanent. It was found that the appellant was not a qualified doctor to
give treatment to the respondent. The Supreme Court had directed him to pay
Rs.80,000 as compensation to the respondent.
61. In Surendra Chauhan vs. State of M.P. (2000) 4 SCC 110, the
appellant was having a degree of Bachelor of Medicine in Electrohomoeopathy
from the Board of Electrohomoeopathy Systems of Medicines, Jabalpur (M.P.). He
did not possess any recognized medical qualification as defined in the Indian
Medical Council Act, 1956. Yet he performed an operation to terminate the three
month pregnancy in a woman, who died in the clinic due to shock due to non
application of anesthesia. The Supreme Court confirmed his sentence but reduced
it to one and a half years rigorous imprisonment under Section 314/34 IPC and a
fine of Rs.25000 payable to the mother of the deceased.
62. In State of Haryana and others vs. Raj Rani (2005) 7 SCC 22
it was held that if a child is born to a woman even after she had undergone a
sterilization operation by a surgeon, the doctor was not liable because there
cannot be a 100% certainty that no child will be born after a sterilization
operation. The Court followed the earlier view of another three Judge Bench in
State of Punjab vs. Shiv Ram & others (2005) 7 SCC 1. These decisions will
be deemed to have overruled the two Judge Bench decision in State of Haryana
and Others vs. Smt. Santra AIR 2000 SC 1888 in which it was held that if a
child is born after the sterilization operation the surgeon will be liable for
negligence.
63. In P.N. Rao vs. G. Jayaprakasu AIR 1990 AP 207, the
plaintiff was a brilliant young boy who had passed the pre-University course
securing 100% marks in Mathematics and 93.5% in physical sciences. He was also
getting a monthly scholarship. He was offered a seat in B.E. Degree course in
four Engineering Colleges. He had a minor ailment – chronic nasal discharge –
for which his mother took him to a doctor for consultation who diagnosed the
disease as Nasal Allergy and suggested operation for removal of tonsils. He was
admitted in the Government General Hospital, Guntur and the operation was
performed. He did not regain consciousness even after three days and thereafter
for another 15 days he was not able to speak coherently. When he was discharged
from hospital, he could only utter a few words and could not read or write and
lost all his knowledge and learning. His father took him to Vellore where he
was examined by a Professor of Neuro-Surgery and it was found that his brain
had suffered due to cerebral anoxia, which was a result of improper induction of
anaesthetics and failure to take immediate steps to reduce anaesthesia. The
court after examining the witnesses including the Professor of Anaesthesiology
held that defendants were clearly negligent in discharging their duties and the
State Government was vicariously liable.
64. In Dr. Laxman Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole
and Another AIR 1969 SC 128, a patient had suffered from fracture of the femur.
The accused doctor while putting the leg in plaster used manual traction and
used excessive force for this purpose, with the help of three men, although
such traction is never done under morphia alone but done under proper general
anaesthesia. This gave a tremendous shock causing the death of the boy. On
these facts the Supreme Court held that the doctor was liable to pay damages to
the parents of the boy.
65. In Dr. Suresh Gupta vs. Government of N.C.T. of Delhi and
another AIR 2004 SC 4091, the appellant was a doctor accused under Section 304A
IPC for causing death of his patient. The operation performed by him was for
removing his nasal deformity. The Magistrate who charged the appellant stated
in his judgment that the appellant while conducting the operation for removal
of the nasal deformity gave incision in a wrong part and due to that blood
seeped into the respiratory passage and because of that the patient collapsed
and died. The High Court upheld the
order of the Magistrate observing that adequate care was not
taken to prevent seepage of blood resulting in asphyxia. The Supreme Court held
that from the medical opinions adduced by the prosecution the cause of death
was stated to be `not introducing a cuffed endotracheal tube of proper size as
to prevent aspiration of blood from the wound in the respiratory passage.’ The
Supreme Court held that this act attributed to the doctor, even if accepted to
be true, can be described as a negligent act as there was a lack of care and
precaution. For this act of negligence he was held liable in a civil case but
it cannot be described to be so reckless or grossly negligent as to make him
liable in a criminal case. For conviction in a criminal case the negligence and
rashness should be of such a high degree which can be described as totally
apathetic towards the patient.
66. In Dr. Sr. Louie and Anr. vs. Smt. Kannolil Pathumma &
Anr. the National Consumer Commission held that Dr. Louie showed herself as an
M.D. although she was only M.D. Freiburg, a German Degree which is equivalent
to an M.B.B.S. degree in India. She was guilty of negligence in treating a
woman and her baby which died. There was vacuum slip, and the baby was
delivered in an asphyxiated condition.
67. In Nihal Kaur vs. Director, P.G.I.M.S.R. (1996) CPJ 112 a
patient died a day after surgery and the relatives found a pair of scissors
utilized by the surgeon while collecting the last remains. The doctor was held
liable and a compensation of Rs.1.20 lakhs was awarded by the State Consumer
Forum, Chandigarh.
68. In Spring Medows Hospital & Another vs. Harjol Ahluwalia
thr’ K.S. Ahluwalia & Another (1998) CPJ 1, a minor child was admitted by
his parents to a nursing home as he was suffering fever. The patient was
admitted and the doctor diagnosed typhoid and gave medicines for typhoid fever.
A nurse asked the father of the patient to get an injection Lariago which was
administered by the nurse to the patient who immediately collapsed. The doctor
was examined and testified that the child suffered a cardiac arrest on account
of the medicine having being injected which led to brain damage. The National
Commission held that the cause of cardiac arrest was intravenous injection of
Lariago of such a high dose. The doctor was negligent in performing his duty
because instead of administering the injection himself he permitted the nurse
to give the injection. There was clear dereliction of duty on the part of the
nurse who was not even a qualified nurse and was not registered with any
nursing council of any State. Both the doctor and nurse and the hospital were
found liable and Rs.12.5 lakhs was awarded as compensation to the parents.
69. In Consumer Protection Council and Others vs. Dr. M.
Sundaram and Another (1998) CPJ 3, the facts were that one Mrs. Rajalaxmi was
admitted to a nursing home which diagnosed the ailment as Hodgkin’s Lymphoma.
She was administered Endoxan injection five doses in five days. She was
referred to another doctor who was an ENT specialist, who after examination
opined that no lymph glands were seen. A sample of her bone marrow was sent to
an Oncologist who opined that the picture does not fit with Hodgkin’s disease
but the patient had megaloblastic anemia in the bone marrow. Subsequently she
was discharged from the nursing home and was advised to visit CMC Vellore for
treatment. The patient consulted another doctor who diagnosed the same as renal
failure. The complainant alleged that the first doctor failed and neglected to
refer the matter to a Cancer Specialist but wrongly diagnosed the ailment of
the patient as Hodgkin’s Lymphoma and had unnecessarily administered injection
of Endoxan and because of the toxicity of that drug the kidney cells of the
patient got destroyed resulting in renal failure for which she had to undergo
kidney transplantation which led to her death. The National Commission,
upholding the State Commission decision, held that there was no negligence on
the part of the doctor who had consulted a pathologist, and in the light of discussion
with him and on inspection of some more slides of bone marrow specimens which
also revealed the same finding, namely, existence of deposits of Hodgkin’s
Lymphoma, proceeded to administer the patient injections of Endoxan. It was
held on the basis of medical opinion that any prudent consultant physician
would not delay the commencement of chemotherapy where repeated examination of
the bone marrow slides had yielded the report that the Hodgkin’s deposits were
present. Endoxan is a drug of choice in the treatment of Hodgkin’s Lymphoma and
there was no negligence on the part of the doctor.
70. In Sethuraman Subramaniam Iyer vs. Triveni Nursing Home and
Another (1998) CPJ 110, the complainant’s wife suffered from Sinusitis and was
advised surgery by the doctor. She had suffered a massive heart attack while in
the operation theatre. The State Commission found that necessary precautions
and effective measures were taken to save the deceased and dismissed the
complaint. The State Commission relied on the affidavits of four doctors who
opined that there was no negligence. The complainant had not given any expert
evidence to support his allegation and in these circumstances it was held that
no case was made out against the doctor.
71. In A. S. Mittal & Anr. vs. State of U.P. & Ors. JT
1989 (2) SC 419, 1989 (3) SCC 223 a free eye camp was organized for ophthalmic
surgical treatment to patients. However, the eyes of several patients after
operation were irreversibly damaged, owing to post-operative infection of the
intra ocular cavities of the eyes, caused by normal saline used at the time of
surgery. The Supreme Court directed the State Government to pay Rs.12,500/- as
compensation to each victim as there was a clear negligence.
72. In Indian Medical Association vs. V.P. Shantha 1995(6) SCC
651 (vide para 37) it has been held that the following acts are clearly due to
negligence:
(i) Removal of the wrong limb;
(ii) Performance of an operation on the wrong patient;
(iii) Giving injection of a drug to which the patient is
allergic without looking into the outpatient card containing the warning;
(iv) Use of wrong gas during the course of an anaesthetic, etc.
73. From the aforementioned principles and decisions relating to
medical negligence, with which we agree, it is evident that doctors and nursing
homes/hospitals need not be unduly worried about the performance of their
functions. The law is a watchdog, and not a bloodhound, and as long as doctors
do their duty with reasonable care they will not be held liable even if their
treatment was unsuccessful.
74. However, every doctor should, for his own interest,
carefully read the Code of Medical Ethics which is part of the Indian Medical
Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 issued
by the Medical Council of India under Section 20A read with Section 3(m) of the
Indian Medical Council Act. 1956.
75. Having mentioned the principles and some decisions relating
to medical negligence (with which we respectfully agree), we may now consider
whether the impugned judgment of the Commission is sustainable. In our opinion
the judgment of the Commission cannot be sustained and deserves to be set
aside.
76. The basic principle relating to the law of medical
negligence is the Bolam Rule which has been quoted above. The test in fixing
negligence is the standard of the ordinary skilled doctor exercising and
professing to have that special skill, but a doctor need not possess the
highest expert skill. Considering the facts of the case we cannot hold that the
appellant was guilty of medical negligence.
77. The facts of the case reveal that the respondent was
suffering from chronic renal failure and was undergoing haemodialysis twice a
week on that account. He was suffering from high fever which remained between
1010-1040F. He refused to get admitted to hospital despite the advice of the
appellant. The appellant prescribed antibiotics for him. The respondent was
also suffering from severe urinary tract infection which could only be treated
by Amikacin or Methenamine Mandelate. Since Methenamine Mandelate cannot be
used in patients suffering from renal failure, Amikacin injection was
administered to him.
78. A perusal of the complaint filed by the respondent before
the National Commission shows that his main allegation is that he suffered
hearing impairment due to the negligence of the appellant herein who allegedly
prescribed overdose of Amikacin injections without caring about the critical
condition of the respondent which did not warrant that much dose. The
complainant (respondent herein) has alleged that due to this medical negligence
the complainant has suffered mental torture and frustration and other signs of
helplessness and is feeling totally handicapped, and his efficiency in office
has got adversely affected. It may be mentioned that the respondent is working
as Export Promotion Officer in the Ministry of Commerce, Udyog Bhawan, New
Delhi.
79. The case of the appellant, however, is that the complainant
was referred to the appellant by Dr. F. P. Soonawalla, the renowned Urologist
of Bombay. The complainant had consulted Dr. F. P. Soonawalla who had referred
the complainant to the appellant for routine Haemodialysis and pretransplant
treatment. In our opinion, the very fact that Dr. Soonawalla referred the
complainant to the appellant is an indication that the appellant has a good
reputation in his field, because Dr. Soonawalla is an eminent doctor of India
of international repute, and he would not have ordinarily referred a patient to
an incompetent doctor. This is one factor which goes in favour of the
appellant, though of course it is not conclusive.
80. It appears that after the complainant was referred to the
appellant by Dr. Soonawalla he met the appellant for the first time on 24.4.1991
as an outdoor patient in the Haemodialysis Unit attached to Bulabhai Nanavati
Hospital, Bombay. After examining the complainant, the appellant found that the
complainant was a patient of Chronic Renal Failure due to Bilateral Poly Cystic
Kidneys. Hence the appellant suggested to the complainant to have Haemodialysis
twice a week as an outdoor patient. The complainant was also investigated to
find a suitable kidney donor.
81. The appellant has alleged in his written statement filed
before the National Commission that the complainant was in a hurry to have a
quick kidney transplant by Dr. Soonawalla and he was very obstinate, stubborn
and short- tempered. Dr. Soonawalla was out of India from 1.6.1991 to 1.7.1991.
On 20.5.1991, the complainant approached the appellant with high fever of 101-
103OF, and the appellant suggested immediate admission of the complainant in
the hospital for detailed investigation and treatment but the complainant
refused to get himself admitted and refused to comply with the advice. Hence
the appellant was obliged to put the complainant on a Broad Spectrum Antibiotic
Ampoxim 500 mg four times a day and Tab. Crocin – SOS fever.
82. From 21.5.1991, the complainant attended the Haemodialysis
unit of the hospital on three occasions and informed the appellant that the
fever had not yet remitted. The appellant again advised the complainant to get
admitted in hospital, but he refused the advice on account of his obstinacy.
83. On 29.5.1991, the complainant was in a serious condition
having high fever of 104OF. After much persuasion he finally agreed to be
admitted for final investigation and got admitted in the hospital on 29.5.1991.
84. The complainant was investigated on 30.5.1991 and his report
showed High Creatinine – 13 mg. Blood Urea – 180 mg and Haemoglobin 4.3% which
was 5 days prior to the commencement of the injection Amikacin and not after
the said injection.
85. In our opinion it is clear that the respondent already had
high Blood Creatinine, Blood Urea and low Haemoglobin before the injection of
Amikacin. He had also high fever which was on account of serious blood and
urinary tract infection. The appellant was of the view that the respondent’s
infection could only be treated by injection of Amikacin, as Methenamine Mandelate
could not be used due to his chronic renal failure. The respondent’s report
also established his resistance to all other antibiotics. Gastroscopy was done
on 4.6.1991 and Amikacin was administered after test dosage only from 5.6.1991.
Amikacin was administered on 5th, 6th and 7th June, 1991 and at this stage he
did not complain of any side effects and his temperature subsided rapidly. On
5.6.1991, he was administered Cap. Augmentin 375 mg three times a day for his
serious Blood Infection and he was also transferred one Unit of Blood during
dialysis and his temperature subsided rapidly and he felt much better.
86. The appellant advised the respondent in view of his blood
infection that he should not get transplanted for six weeks, but the
complainant/respondent insisted on getting the transplant although he was not
medically in fit condition. Hence the appellant advised the respondent to
further stay in the hospital for some time, but the respondent did not agree
and he started shouting at the top of his voice and insisted to be discharged
from the hospital on his own on 8.6.1991 at 9 a.m..
87. In view of his insistence the respondent was discharged from
the hospital on his own on 8.6.1991 at 9 a.m.. The appellant suggested
alternate day Haemodialysis but the respondent refused saying that he was
staying too far away and could not come three times a week for Haemodialysis.
In this situation, the appellant was left with no choice but to suggest
Injection Amikacin (500 mg) twice a day in view of the respondent’s infection
and delicate condition and his refusal to visit the Haemodialysis facility on
alternate dates. The appellant also suggested the following drugs under the
supervision of the doctor when he would visit the dialysis unit:
1. Injection Amikacin 500 mg twice a day x 10 days for urinary
tract infection.
2. Cap. Augmentine 375 mg 3 times a day for 6 weeks for blood
infection
3. Cap. Becosule tab daily
4. Tab. Folvite 1 tab. Daily
5. Syrup Alludux
6. Injection Engrex once a month for 2 months
7. Cap. Bantes 100 mg twice a day”
88. It appears that the respondent attended the Haemodyalsis
unit where he met the appellant on 11th, 14th, 18th and 20th June, 1991.
Thereafter the respondent did not come to the hospital.
89. On 11.6.1991 the respondent complained to the appellant of
slight tinnitus or ringing in the ear. The appellant immediately reviewed the
treatment on the discharge card in possession of the respondent and asked the
said respondent and also asked his attendant i.e. his wife to stop Injection
Amikacin and Cap. Augmantine verbally and also marked `X’ on the discharge card
in his own hand writing on 11.6.1991 i.e. 3 days after discharge. Hence, as per
direction of the appellant the respondent should have stopped receiving
Injection Amikacin after 10.6.1991, but on his own he kept on taking Amikacin
Injections. The Discharge Card as per the respondent’s complaint clearly shows
that the said injection had been `X’ crossed, and he was directed not to take
the said injection from 11.6.1991 i.e. on his very first complaint when he made
mention of ringing in the ears or tinnitus.
90. On perusal of the Xerox copies of the papers of the Cash
Memo supplied by the respondent as per annexure `4′ it is in our opinion evident
that the respondent continued to take the medicine against the advice of the
appellant, and had unilaterally been getting injected as late as 17.6.1991,
i.e. 7 days after he had been instructed verbally and in writing in the
presence of his attendant i.e. his wife and staff members of the said hospital
to stop Injection Amikacin/Cap. Augmantine because of tinnitus as early as on
11.6.1991
91. On 19.6.1991 a relative of the respondent who identified
himself on the phone as one Mr. Khan from Byculla rang up and stated that the
said respondent was once again running high fever. The appellant once again
immediately advised him urgent admission to the said hospital which the
respondent refused to comply and said that he would go elsewhere.
92. From the above facts it is evident that the appellant was
not to blame in any way and it was the non-cooperative attitude of the
respondent, and his continuing with the Amikacin injection even after 11.6.1991
which was the cause of his ailment, i.e. the impairment of his hearing. A
patient who does not listen to his doctor’s advice often has to face the
adverse consequences.
93. It is evident from the fact that the respondent was already
seriously ill before he met the appellant. There is nothing to show from the
evidence that the appellant was in any way negligent, rather it appears that
the appellant did his best to give good treatment to the respondent to save his
life but the respondent himself did not cooperate.
94. Several doctors have been examined by the National
Commission and we have read their evidence which is on record. Apart from that,
there is also the opinion of Prof. P. Ghosh of All India Institute of Medical
Sciences who had been nominated by AIIMS as requested by the Commission, which
is also on record. It has been stated by Dr. Ghosh that many factors in the
case of renal diseases may cause hearing loss. Prof. Ghosh has stated that it
is impossible to foretell about the sensitivity of a patient to a drug, thereby
making it difficult to assess the contributions towards toxicity by the other
factors involved. Hearing loss in renal patients is a complex problem which is
a result of many adverse and unrelated factors. Generally, the state of hearing
of a renal patient at any time is more likely to be the result of a
multifactorial effect than the response to a single agent.
95. Prof Ghosh has no doubt mentioned that concomitant use of
Aminoglycoside antibiotics (e.g. Amikacin) and loop diuretic may lead to
summation and potentiation of ototoxic effect, and the patient has a higher
risk factor of hearing impairment if there is a higher dose of Amikacin.
However, he has stated that such gross impairment of the balancing function has
perhaps been wrought by a combination of factors.
96. Prof Ghosh has also opined that the Amikacin dose of 500 mg
twice a day for 14 days prescribed by the doctor was a life saving measure and
the appellant did not have any option but to take this step. Life is more
important than saving the function of the ear. Prof Ghosh was of the view that
antibiotic was rightly given on the report of the sensitivity test which showed
that the organisms were sensitive to Amikacin. Hence the antibiotic was not
blindly used on a speculation or as a clinical experiment.
97. Prof Ghosh mentioned that in the literature on Amikacin it
has been mentioned that in a life threatening infection adult dosage may be
increased to 500 mg every eight hours but should not be administered for longer
than 10 days.
98. In view of the opinion of Prof Ghosh, who is an expert of
the All India Institute of Medical Sciences, we are clearly of the view that
the appellant was not guilty of medical negligence and rather wanted to save
the life of the respondent. The appellant was faced with a situation where not
only was there kidney failure of the patient, but also urinary tract infection
and blood infection. In this grave situation threatening the life of the
patient the appellant had to take drastic steps. Even if he prescribed Amikacin
for a longer period than is normally done, he obviously did it to save the life
of the respondent.
99. We have also seen the evidence of other doctors as well as
the affidavits filed before the National Commission. No doubt some of the
doctors who have deposed in this case have given different opinions, but in
cases relating to allegations of medical negligence this Court has to exercise
great caution.
100. Dr. Ashok Sareen who is MD in medicine and trained in
Nephrology has in his evidence stated that for Kidney failure patients one has
to be very careful with the drug Amikacin. He stated that he uses the drug only
when other antibiotics have failed or cannot be used. It should be used with
wide intervals and only when absolutely necessary and when no other drug is
available. When asked whether Amikacin should be given to a patient with 10
days stretch, as was prescribed by the appellant in this case, Dr. Sareen
replied that it was difficult to give an answer to that question because it
depends entirely on the treating physician. Dr. Sareen has admitted that giving
Amikacin injection twice a day for 14 days can cause nerve deafness which means
losing one’s hearing. No doubt, Dr. Sareen in his cross- examination stated
that he would have prescribed the dose given to the respondent differently but
he has not stated what would be the dose he would have prescribed.
101. We have also perused the evidence of Dr. Vindu Amitabh, who
is a MD in medicine in Safdarjung hospital and looking after Nephrology also.
He has stated that normally Amikacin is given for 5 to 7 days twice daily.
However, he has also stated that in severe circumstances it can be given for a
longer period but if the patient is developing complications then the doses
should be stopped immediately. If there is no substitute for it then Amikacin
should be given in a very guarded dose. He has admitted that Amikacin can lead
to deafness.
102. In the affidavit of Dr. Raval of the Bombay Indian
Inhabitant, who has been practicing in Urology for several years it is stated
that the respondent had undergone a kidney transplant operation under Dr.
Raval’s supervision on 30th July 1991 at the Prince Alikhan Hospital, Bombay
and he was discharged on 13th August, 1991. Dr. Raval has stated in his
affidavit that during the time the respondent was under his care he had a free
conversation in English and Urdu without the aid of interpreter and he did not
complain of suffering any hearing problem until he was discharged in the middle
of August 1991. An affidavit to the same effect has been given by Dr. Kirti L.
Upadhyaya, of Bombay Indian Inhabitant, who is also a Nephrologist. He stated
that the respondent did not complain of any hearing problem to him also.
103. An affidavit has also been filed by Dr. Sharad M. Sheth, of
Bombay Indian Inhabitant who is also MD qualified in Nephrology. He also stated
in paragraph 3 of his affidavit as follows:-
“I state that in the circumstances of the case when Klebsiella
Organism was found resistant to all powerful drugs inclusive of Augmentin with
the exception of Amikacin any nephrologist of a reasonable standard of
proficiency would have prescribed “Amikacin” drug in measured doses as a life
saving drug despite the well established fact that this drug might cause
`tinnitus’ or partial hearing impairment which is reversible, to almost
complete extent in most of the cases after discontinuation of the drug as soon
as any of the above symptoms makes its appearance. I state
that in this situation, `Amikacin’ could not have been avoided
if the danger to the life of the patient had to be thwarted. The diagnosis of
Dr. M.F. D’Souza and the line of treatment adopted and administered to the said
Shri Mohd. Ishaq, who was suffering from a renal failure in addition to the
above specific infections, appears to be correct.”
104. The appellant has also filed his own affidavit before the
National Consumer Commission which we have perused. We have also seen the
affidavit of Dr. Ashok L. Kirpalani of Lady Ratan Tata Medical Centre, Bombay,
who is MD in Nephrology. He stated that the medicine prescribed by the
appellant was absolutely right in the circumstances in view of the fact, that
the patient was suffering serious life threatening infection.
105. We may also refer to the affidavit of Mrs. Mukta Kolekar of
Bombay Indian Inhabitant, who is a Senior Sister attached to the hospital. She
has stated in her affidavit as follows:-
“I know Dr. Martin F.D’Souza who is a Nephrologist and who is
attached to the said hospital since 1984. I say that I know Mr. Mohd. Ishaq. I
distinctly remember him, as very few patients are as ill-tempered arrogant and
obstinate like him. The said Mohd. Ishaq came to the said hospital as an
outdoor as well as indoor patient for Haemodialysis on a number of occasions
commencing from the month of April, 14th 1991 till 20th June, 1991 till 8th
June, 1991 until suo moto he left the hospital. I say that on 11th June, 1991
the said Mohd. Ishaq came to the hospital for the purpose of Haemodialysis. He
had come of his own and he had no problem either in walking or in hearing.
Nothing abnormal was found in him. However, during Haemodialysis, he complained
to the Doctor of ringing in the ears and thereupon Dr. Martin F.D’Souza called
for the Discharge Card of the said Mohd. Ishaq and verified the medicine and injections
which were prescribed and on verification, Dr. Martin F.D’Souza immediately
deleted injection Amikacine and Cap. Augmentin and put a cross against the
prescription of the said injection, and immediately gave instructions to me as
well as to the other staff members not to give that injection at all, and also
told the said Mohd. Ishaq and his wife who had accompanied him, not to take or
get administered the said injection. I say that after 11th June, 1991, the said
ohd. Ishaq came to the hospital as an outdoor patient on 14th June, 17th June
and 20th June, 1991 and did not make any complaint of any nature whatsoever
with regard to his hearing faculties. On the contrary, he used to have
conversation and used to respond to the same as an ordinary man. The said Mohd.
Ishaq used to come to hospital on his own without the assistance or help of
anybody and after the dialysis also he used to go on his own. Thus, until 20th
June, 1991, the said Mohd. Ishaq had no problems either in hearing or in
movement of the limbs or parts of his body or in lifting parts of his body or
in walking.”
106. From these deposition and affidavits it cannot be said that
the appellant was negligent. In fact most of the doctors who have deposed or
given their affidavits before the Commission have stated that the appellant was
not negligent.
107. In his written statement filed before the National
Commission the appellant has stated in paragraph 9 (q-r) as follows:
“(q) On the 11th June,1991 the Complainant complained to
Opposite Party of slight tinnitus or ringing in the ear. Opposite Party
immediately reviewed the treatment on the discharge card in possession of the
Complainant and asked the said Complainant and also made his attendant i.e. his
wife to understand and asked her also to stop Injection Amikacin and Cap.
Augmentin verbally as well as marked `X’ on the discharge card in his own hand
writing i.e. on 11th June, 1991 i.e. 3 days after discharge. Therefore, as per
direction Opposite Party Complainant could have taken or received Injection
Amikacin only upto 10th June, 1991 when he showed the very first and
Preliminary side effect of Injection Amikacin. Discharge Card as per the
Complainant’s Complaint Annexure `3′speaks clearly that the said Injection has
been `X’ crossed and he was directed not to take the said Injection from 11th
June, 1991 i.e. on his very first complaint he made of ringing in the ears, or
tinnitus.
(r) On perusal of the Xerox copies of the papers of the Cash
Memo supplied by the Complainant as per Annexure `4′ it is evident that the
Complainant against the advice of the Opposite Party and in breach of
assurances, high handedly and unilaterally had been getting injected as late as
17th June, 1991 i.e. 7 days after he had been instructed verbally and in
writing in the presence of his attendant i.e. his wife and staff members of the
said hospital to stop Injection Amikacin/Cap. Augmentin because of tinnitus as
early as 11th June, 1991″
108. We see no reason to disbelieve the above allegations of the
appellant that on 11.6.1991 he had asked the respondent to stop taking Amikacin
injections, and in fact this version is corroborated by the testimony of the Senior
Sister Mukta Kolekar in her affidavit, relevant part of which has been quoted
above. Hence, it was the respondent himself who is to blame for having
continued Amikacin after 11.6.1991against the advice of the appellant.
109. Moreover, in the statement of Dr. Ghosh before the National
Consumer Dispute Redressal Commission it has been stated that it is by no means
established that Amikacin alone can cause deafness. Dr. Ghosh stated that there
are 8 factors that can cause loss of hearing. Moreover, there are conflicting
versions about the deafness of the respondent. While the respondent stated that
he became deaf in June 1991, most of the Doctors who filed affidavits before
the Commission have stated that they freely conversed with him in several meetings
much after 21st June and in fact up to the middle of August 1991.
110. The National Commission had sought the assistance of AIIMS
to give a report about the allegations of medical negligence against the
appellant. AIIMS had appointed Dr. Ghosh to investigate the case and submit a
report and Dr. Ghosh submitted a report in favour of appellant. Surprisingly,
the Commission has not placed much reliance on the report of Dr. Ghosh,
although he is an outstanding ENT specialist of international repute.
111. We have carefully perused the judgment of the National
Commission and we regret that we are unable to concur with the views expressed
therein. The Commission, which consists of laymen in the field of medicine, has
sought to substitute its own views over that of medical experts, and has
practically acted as super-specialists in medicine. Moreover, it has
practically brushed aside the evidence of Dr. Ghosh, whose opinion was sought
on its own direction, as well as the affidavits of several other doctors (referred
to above) who have stated that the appellant acted correctly in the situation
he was faced. 112. The Commission should have realized that different doctors
have different approaches, for instance, some have more radical while some have
more conservative approaches. All doctors cannot be fitted into a
straight-jacketed formula, and cannot be penalized for departing from that
formula.
113. While this Court has no sympathy for doctors who are
negligent, it must also be said that frivolous complaints against doctors have
increased by leaps and bounds in our country particularly after the medical
profession was placed within the purview of the Consumer Protection Act. To
give an example, earlier when a patient who had a symptom of having a heart
attack would come to a doctor, the doctor would immediately inject him with
Morphia or Pethidine injection before sending him to the Cardiac Care Unit
(CCU) because in cases of heart attack time is the essence of the matter.
However, in some cases the patient died before he reached the hospital. After
the medical profession was brought under the Consumer Protection Act vide
Indian Medical Association vs. V.P. Shantha 1995 (6) SCC 651 doctors who
administer the Morphia or Pethidine injection are often blamed and cases of
medical negligence are filed against them. The result is that many doctors have
stopped giving (even as family physicians) Morphia or Pethidine injection even
in emergencies despite the fact that from the symptoms the doctor honestly
thought that the patient was having a heart attack. This was out of fear that
if the patient died the doctor would have to face legal proceedings.
114. Similarly in cases of head injuries (which are very common
in road side accidents in Delhi and other cities) earlier the doctor who was
first approached would started giving first aid and apply stitches to stop the
bleeding. However, now what is often seen is that doctors out of fear of facing
legal proceedings do not give first aid to the patient, and instead tell him to
proceed to the hospital by which time the patient may develop other
complications.
115. Hence Courts/Consumer Fora should keep the above factors in
mind when deciding cases related to medical negligence, and not take a view
which would be in fact a disservice to the public. The decision of this Court
in Indian Medical Association vs. V.P. Shantha (Supra) should not be understood
to mean that doctors should be harassed merely because their treatment was
unsuccessful or caused some mishap which was not necessarily due to negligence.
In fact in the aforesaid decision it has been observed (vide para 22) :-
“In the matter of professional liability professions differ from
other occupations for the reason that professions operate in spheres where
success cannot be achieved in every case and very often success or failure
depends upon factors beyond the professional man’s control.”
116. It may be mentioned that the All India Institute of
Sciences has been doing outstanding research in Stem Cell Therapy for the last
eight years or so for treating patients suffering from paralysis, terminal
cardiac condition, parkinsonism, etc, though not yet with very notable success.
This does not mean that the work of Stem Cell Therapy should stop, otherwise
science cannot progress.
117. We, therefore, direct that whenever a complaint is received
against a doctor or hospital by the Consumer Fora (whether District, State or
National) or by the Criminal Court then before issuing notice to the doctor or
hospital against whom the complaint was made the Consumer Forum or Criminal
Court should first refer the matter to a competent doctor or committee of
doctors, specialized in the field relating to which the medical negligence is
attributed, and only after that doctor or committee reports that there is a
prima facie case of medical negligence should notice be then issued to the
concerned doctor/hospital. This is necessary to avoid harassment to doctors who
may not be ultimately found to be negligent. We further warn the police
officials not to arrest or harass doctors unless the facts clearly come within
the parameters laid down in Jacob Mathew’s case (supra), otherwise the
policemen will themselves have to face legal action.
118. In the present case the appellant was faced with an
extremely serious situation. Had the appellant been only suffering from renal
failure it is possible that a view could be taken that the dose prescribed for
the appellant was excessive. However, the respondent was not only suffering
from renal failure but he was also suffering from urinary tract infection and
also blood infection i.e Septicaemia which is blood poisoning caused by
bacteria or a toxin. He had also extremely high urea. In this extremely serious
situation, the appellant had naturally to take a drastic measure to attempt to
save the life of the respondent. The situation was aggravated by the
non-cooperation of the respondent who seems to be of an assertive nature as
deposed by the witnesses. Extraordinary situations require extraordinary
remedies. Even assuming that such a high dose of Amikacin would ordinarily lead
to hearing impairment, the appellant was faced with a situation between the
devil and the deep sea. If he chose to save the life of the patient rather than
his hearing surely he cannot faulted.
119. In the present case the blood urea of the respondent was
found to be 180 mgs.% whereas normally it should not exceed 10-50 mgs.%. This
shows that very serious infection in the kidney of the respondent was taking
place which required drastic measures.
120. The allegation against the appellant is that he gave
overdose of the antibiotic. In this connection it may be mentioned that
antibiotics are usually given for a minimum of five days, but there is no upper
limit to the number of days for which they should continue, and it all depends
on the condition of the patient. Giving lesser dose of antibiotic may create
other complications because it can cause resistance in the bacteria to the
drug, and then it will be more difficult to treat.
121. As regards the impairment of hearing of the respondent it
may be mentioned that there is no known antibiotic drug which has no side
effect. Hence merely because there was impairment in the hearing of the
respondent that does not mean that the appellant was negligent. The appellant
was desperately trying to save the life of the respondent, which he succeeded
in doing. Life is surely more important than side effects.
122. For example many Anti Tubercular drugs (e.g. Streptomycin)
can cause impairment of hearing. Does this mean that TB patients should be
allowed to die and not be given the Anti Tubercular drug because it impairs the
hearing? Surely the answer will be in the negative.
123. The courts and Consumer Fora are not experts in medical
science, and must not substitute their own views over that of specialists. It
is true that the medical profession has to an extent become commercialized and
there are many doctors who depart from their Hippocratic Oath for their selfish
ends of making money. However, the entire medical fraternity cannot be blamed
or branded as lacking in integrity or competence just because of some bad
apples.
124. It must be remembered that sometimes despite their best
efforts the treatment of a doctor fails. For instance, sometimes despite the best
effort of a surgeon, the patient dies. That does not mean that the doctor or
the surgeon must be held to be guilty of medical negligence, unless there is
some strong evidence to suggest that he is.
125. On the facts of this particular case, we are of the opinion
that the appellant was not guilty of medical negligence. Resultantly, the
appeal is allowed; the impugned judgment and order of the National Commission
is set aside. No costs.
………………….J.
[Markandey Katju]
…………………J.
[R.M. Lodha]
New Delhi; February 17, 2009
Section 304A of IPC on 4th August 2004
CASE NO.: Appeal (crl.)
778 of 2004
PETITIONER: Dr. Suresh Gupta
RESPONDENT: Govt. of N.C.T. of Delhi & Anr.
DATE OF JUDGMENT: 04/08/2004
BENCH: Y. K. Sabharwal & D. M. Dharmadhikari
JUDGMENT: JUDGMENT (Arising out of SLP (Crl.) No. 2931 of 2003)
Dharmadhikari J.
Leave to appeal is granted.
The appellant who is a Doctor (Plastic Surgeon) is in the dock
as an accused on the charge under Section 304 A of the Indian Penal Code [for
short the 'IPC'] for causing death of his patient on 18.4.1994. The patient was
operated by him for removing his nasal deformity. It may be mentioned at the
outset, that the Anesthetist who was assisting the surgeon in the operation was
also made co-accused but it is reported that he died pending the trial. The
proceedings, therefore, stand abated against him.
The appellant urged before the Magistrate that the medical
evidence produced by the prosecution, does not make out any case against him to
proceed with the trial. The learned magistrate in deciding to proceed with the
trial recorded following reasons in the impugned order dated 28.11.1998 passed
by him:-
“Postmortem report is very categorical and very clear and it has
been clearly mentioned therein that death was due to the complication arising
out of the operation. That operation was conducted by both the accused persons.
It is also clear from the material on
record that deceased was young man of 38 years having no cardiac problem at all
and because of the negligence of the doctors while conducting minor operation
for removing nasal deformity, gave incision at wrong part due to that blood
seeped into the respiratory passage and because of that patient immediately collapsed and died and it was
also attempted to show by the accused persons that he was alive at that time
and was taken to Sri Ganga Ram Hospital for further medical attention. It is
clear from the record that patient had actually died at the clinic of the
accused and therefore, I am of the opinion that there are sufficient grounds on
record to make out a prima facie case against both the accused for commission
of offence under Section 304A IPC. Let notice be served accordingly.”
[Emphasis supplied]
As the Magistrate decided to proceed with the trial, the doctor
approached the High Court by petition under Section 482 of the Code of Criminal
Procedure. The High Court refused to quash the criminal proceedings and upheld
the order of the Magistrate, although it records that the Metropolitan Magistrate
was obviously wrong, in the absence of any medical opinion, in coming to a
conclusion that the surgeon had given a cut at wrong place of the body of the
patient at the time of operation leading to blood seeping into the respiratory
passage and blocking it resulting in his death. The High Court, however,
declined to quash the proceedings against the doctor for the alleged criminal
liability. In the impugned order dated
1.4.2003, it recorded its reasons thus:-
“In the present case two doctors who conducted the post-mortem
examination have taken an emphatic stand which they have reiterated even after
the Special Medical Board opinion, that death in this case was due to ‘asphyxia
resulting from blockage of respiratory passage by aspirated blood consequent
upon surgically incised margin of nasal septum.’ This indicates that adequate
care was not taken to prevent seepage of blood down the respiratory passage
which resulted in asphyxia. The opinion of the Special
Medical Board is not free from ambiguity for the reasons already
given. Such ambiguity can be explained by the concerned doctors when they are
examined during the trial.”
Learned senior counsel Shri Ashok Desai appearing for the
doctor, has taken us through the contents of the medical opinions produced by
the prosecution with the complaint and some medical books and decided cases to
submit that accepting the entire case of the prosecution, as has been laid
before the trial magistrate, to be true, no case for convicting the doctor for
criminal negligence under section 304A IPC has been made out. He submits that
in the larger interest of medical profession, the criminal proceedings
instituted against his client deserve to be quashed.
Reliance is placed on the House of Lords decision in the case of
R. vs. Adomako [1994 (3) All E. R. 79]; Suleman Rehman Mulani vs. State of
Maharashtra
[1968 (2) SCR 515] and Laxman Balkrishna
Joshi vs. Trimbak Bapu Godbole [1969 (1) SCR 206].
We have also heard learned senior counsel Shri Harish Chandra
for the prosecution, who supported the view taken by the Magistrate and the
High Court that the surgeon was guilty of gross negligence in giving an
incision at the wrong place and did not take necessary precautions in the
course of surgical operation to prevent seepage of blood down the respiratory
passage of the patient and the resultant death by asphyxia.
It is settled position in law that the inherent power of the
High Court under section 482 Criminal Procedure Code for quashing criminal
proceedings can be invoked only in cases where on the face of the complaint or
the papers accompanying the same no offence is made out for proceeding with the
trial. In other words, the test is that taking the allegations and the
complaint, as they are, without adding or subtracting anything, if no offence
is made out, the High Court will be justified in quashing the proceedings [See
Municipal Corporation of Delhi vs. Ram Kishan Rohtagi (AIR 1983 SC 67); and
Durgs Inspector vs. B.K. Krishnaiah (AIR 1981 SC 1164)]
To decide whether on the basis of the complaint and the medical
opinion produced along with it, any offence is made out or not, it is necessary
to examine the papers produced with the complaint. The patient died in the
course of surgical operation on 18.4.1994, but the post-mortem was conducted on
21.4.1994. By that time rigor mortis had almost passed off. The post-mortem
report gave opinion on the cause of death by recording thus:-
“Asphyxia resulting from blockage of respiratory passage by
aspirated blood consequent upon surgically incised margin of nasal septum. The
cause of death to the best of my knowledge and answers to the question put by
IO.”
A Special Medical Board of four eminent doctors was constituted
by the investigating agency out of which three recorded their unanimous opinion
as under:-
After the perusal of all the documents produced before the
Committee, we are of the view that the death of Mr. Siavash Karim Arbab,
occurred due to sudden cardiac arrest, the direct cause of which (Cardiac
Arrest) cannot be ascertained. However, possible cause leading to cardiac
arrest can be as follows:-
Hypotension due Head-up-Position
Adverse drug reaction
Hypoxia
Death due to Asphyxia resulting from blockage of air passage
secondary to ante-mortem aspiration of blood from the wound is not likely in
the presence of cuffed endo-tracheal tube of proper size (8.5), which was
introduced before the operation and remained in position till the patient was
declared dead in Sir Ganga Ram Hospital, as per statements of members of the
operating team and available records. In the post-mortem report there is
presence of clotted fluid blood in respiratory passage, which invariably occurs
ante-mortem due to aspiration from operation site. However, the presence of
fluid and clotted blood in the respiratory passage, as noted in the post-mortem
report, due to trickling of decomposition bloody fluid and some clot present in
the nostril from the site of incision in the nose, cannot be ruled out after
the tube is taken out. It is worth mentioning in the present case that the
death occurred on 18.4.1994 at 2.30 p.m. and the post-mortem was conducted on
21.4.1994 at 12.20 p.m. when sufficient degree of decomposition had started.
Sd/- Dr. Bharat Singh Sd/- Dr. Rizvi Sd/- P.L. Dhingra
Chairman
Member Member
[Emphasis supplied]
One of the members of the doctors team Prof. Jagannatham gave a
separate report which reads as under:-
“After going through he relevant papers/documents and surgery
and anesthesia notes, it was observed that, what medical care was actually
extended to the patient from 5 a.m. to 8.30 a.m. on 18.4.1994 at Delhi Plastic
Surgery Clinic. It is surprising that
the patient’s physical status belonged to ASA Grade-I. The actual cause of
cardiac arrest on the table noticed immediately after the start of operation,
was not clear and it still stands as enigmas whether the surgeon had given any
adrenaline infiltration to the patient or originally planned to do the surgery
under local anesthesia could not be decided. There is no mention about the use
of inhalation anesthesia during the surgical procedure under the general anesthesia.
However, both anesthetics and the surgeon immediately noticed
the cardiac arrest and started resuscitative measures well-in time to save the
patient’s life. With all good intentions and team spirit, they transported the
patient under manual ventilation (supporting respirations) and shifted the
patient to Ganga Ram Hospital’s ICU.
Sd/-
(Dr. Jagannatham)
15.11.1995″
It is on these medical papers produced by the prosecution, we
have to decide whether the High Court was right in holding that criminal
liability prima facie has arisen against the surgeon and he must face the
trial. 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 reckless as
to endanger the life of the patient, he would also be made criminally liable
for offence under section 304A of IPC.
Section 304A of IPC reads thus:-
“304A. Causing death by negligence: Whoever causes the death of
any person by doing any rash or negligent act not amounting to culpable
homicide, shall be punished with imprisonment of either Description for a term
which may extent to two years, or with fine, or with both.”
On behalf of the doctor learned counsel referred to section 80
and section 88 of the IPC to contend that in various kinds of medical treatment
and surgical operation, likelihood of an accident or misfortune leading to
death cannot be ruled out. A patient willingly takes such a risk. This is part
of doctor patient relationship and mutual trust between them.
Section 80 and 88 read as under:-
“80. Accident in doing a lawful act: Nothing is an offence which
is done by accident or misfortune and without any criminal intention or
knowledge in the doing of a lawful act in a lawful manner by lawful means and
with proper care and caution.
“88. Act not intended to cause death, done by consent in good
faith for person’s benefit. Nothing
which is not intended to cause death, is an offence by reason of any harm which
it may cause, or be intended by the doer to cause, or be known by the doer to
cause, or be known by the doer to be likely to cause, to any person for whose
benefit it is done in good faith, and who has given a consent, whether express
or implied, to suffer that harm, or to take the risk of that harm.”
Applying the laid down test for quashing or refusing to quash
the criminal proceedings under section 482 of the Criminal Procedure Code, we
have to find out whether from the complaint and the accompanying medical papers
and by accepting the entire case alleged by the prosecution to be true, an
order of conviction of the doctor for offence under section 304A of IPC can be
passed.
The operation was performed on 18.4.1994 and the patient is
alleged to have died on the same day. The post-mortem was performed after three
days i.e. on 21.4.1994. According to the post-mortem report, the cause of death
was: “blockage of respiratory passage by aspirated blood consequent upon
surgically incised margin of nasal septum.”
The medical experts constituting the Special Medical Board set
up by the investigation have opined that “the blockage of air passage was due
to aspiration of blood from the wound and it was not likely in the presence of
cuffed endo-tracheal tube of proper size being introduced before the operation
and remained in position.” The team of experts also opined that ‘presence of
fluid and clotted blood in respiratory passage is likely, as it invariably
occurs ante-mortem due to aspiration from operation site.’ But they also opined that ‘presence of fluid
and clotted blood in the respiratory passage, as noted in the post-mortem
report, due to trickling of decomposition bloody fluid and some clot present in
the nostril from the site of incision in the nose, cannot be ruled out after
the tube is taken out.’
Dr. Jagannatham, one of the members of the Special Medical Team
constituted during investigation has, however, given separate opinion, the
details of which we have quoted above. It seems to be to some extent in favour
of the accused surgeon. From the post-mortem report and the opinion of the
three medical experts of the medical team specially constituted, the case of
the prosecution laid against the surgeon is that there was negligence in ‘not
putting a cuffed endo-tracheal tube of proper size’ and in a manner so as to
prevent aspiration of blood blocking respiratory passage. For fixing criminal
liability on a doctor or surgeon, the standard of negligence required to be
proved should be as high as can be described as “gross negligence” or
recklessness”. It is not merely lack of necessary care, attention and skill.
The decision of the House of Lords in R. Vs. Adomako (Supra) relied upon on
behalf of the doctor elucidates the said legal position and contains following
observations:-
“Thus a doctor cannot be held criminally responsible for
patient’s death unless his negligence or incompetence showed such disregard for
life and safety of his patient as to amount to a crime against the State.”
Thus, when a patient agrees to go for medical treatment or
surgical operation, every careless act of the medical man cannot be termed as
‘criminal’. It can be termed ‘criminal’ only when the medical man exhibits a
gross lack of competence or inaction and wanton indifference to his patient’s
safety and which is found to have arisen from gross ignorance or gross
negligence, where a patient’s death results merely from error of judgment or an
accident, no criminal liability should be attached to it. Mere inadvertence or
some degree of want of adequate care and caution might create civil liability
but would not suffice to hold him criminally liable.
This approach of the courts in the matter of fixing criminal
liability on the doctors, in the course of medical treatment given by them to their
patients, is necessary so that the hazards of medical men in medical profession
being exposed to civil liability, may not unreasonably extend to criminal
liability and expose them to risk of landing themselves in prison for alleged
criminal negligence.
For every mishap or death during medical treatment, the medical
man cannot be proceeded against for punishment. Criminal prosecutions of
doctors without adequate medical opinion pointing to their guilt would be doing
great disservice to the community at large because if the courts were to impose
criminal liability on hospitals and doctors for everything that goes wrong, the
doctors would be more worried about their own safety than giving all best
treatment to their patients. This would lead to shaking the mutual confidence
between the doctor and patient. Every mishap or misfortune in the hospital or
clinic of a doctor is not a gross act of negligence to try him for an offence
of culpable negligence.
No doubt in the present case, the patient was a young man with
any history of any heart ailment. The operation to be performed for nasal
deformity was not so complicated or serious. He was not accompanied even by his
own wife during the operation. From the medical opinions produced by the
prosecution, the cause of death is stated to be ‘not introducing a cuffed
endo-tracheal tube of proper size as to prevent aspiration of blood from the
wound in the respiratory passage’. This act attributed to the doctor, even if
accepted to be true, can be described as negligent act as there was lack of due
care and precaution. 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.
Between civil and criminal liability of a doctor causing death
of his patient the court has a difficult task of weighing the degree of
carelessness and negligence alleged on the part of the doctor. For conviction
of a doctor for alleged criminal offence, the standard should be proof of
recklessness and deliberate wrong doing i.e. a higher degree of morally
blameworthy conduct.
To convict, therefore, a doctor, the prosecution has to come out
with a case of high degree of negligence on the part of the doctor. Mere lack
of proper care, precaution and attention or inadvertence might create civil
liability but not a criminal one. The courts have, therefore, always insisted
in the case of alleged criminal offence against doctor causing death of his
patient during treatment, that the act complained against the doctor must show
negligence or rashness of such a higher degree as to indicate a mental state
which can be described as totally apathetic towards the patient. Such gross
negligence alone is punishable.
See the following concluding observations of the learned authors
in their book on medical negligence under the title ‘Errors, Medicine and the
Law’ [by Alan Merry and Alexander McCall Smith at pg. 247-248]. The
observations are apt on the subject and a useful guide to the courts in dealing
with the doctors guilty of negligence leading to death of their patients:-
“Criminal punishment carries substantial moral overtones. The
doctrine of strict liability allows for criminal conviction in the absence of
moral blameworthiness only in very limited circumstances. Conviction of any
substantial criminal offence requires that the accused person should have acted
with a morally blameworthy state of mind. Recklessness and deliberate wrong
doing, levels four and five are classification of blame, are normally
blameworthy but any conduct falling short of that should not be the subject of
criminal liability. Common-law systems have traditionally only made negligence
the subject of criminal sanction when the level of negligence has been high a
standard traditionally described as gross negligence.
Blame is a powerful weapon. When used appropriately and
according to morally defensible criteria, it has an indispensable role in human
affairs. Its inappropriate use, however, distorts tolerant and constructive
relations between people. Some of life’s misfortunes are accidents for which
nobody is morally responsible. Others are wrongs for which responsibility is
diffuse. Yet others are instances of culpable conduct, and constitute grounds
for compensation and at times, for punishment. Distinguishing between these
various categories requires careful, morally sensitive and scientifically informed analysis.”
After examining all the medical papers accompanying the
complaint, we find that no case of recklessness or gross negligence has been
made out against the doctor to compel him to face the trial for offence under
section 304A of the IPC. As a result of the discussion aforesaid on the factual
and legal aspect, we allow this appeal and by setting aside the impugned orders
of the Magistrate and of the High Court, quash the criminal proceedings pending
against the present doctor who is accused and appellant before us.
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