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2008 DIGILAW 256 (AP)

Dr. M. Sulochana v. State of Andhra Pradesh

2008-04-04

G.BHAVANI PRASAD

body2008
ORDER :- This criminal petition has been filed for quashing the proceedings in C.C. No.88 of 2005 on the file of the Court of IV Metropolitan Magistrate, Cyberabad at Ibrahimpatnam by the sole accused in the case. 2. Sri P.V. Sanjeeva Rao, learned Counsel for the petitioner, Sri P.S.P. Sureshkumar, learned Counsel for the second respondent, and Sri A. Ramesh, learned Counsel representing the Public Prosecutor-first respondent are heard. 3. The factual background leading to this criminal petition is that written report of one Mantri Parvathamma on 9.1.2000 was alleging that her daughter-in-law Andalu was admitted in the hospital of the petitioner on 8.1.2000 for getting treatment for abdominal pain and that after she underwent surgery, she did not speak at all. She further alleged that in the next morning, the petitioner informed the condition of Andalu to be serious and on the way to Osmania General Hospital, Hyderabad, she was taken to Kamineni Hospital where she was pronounced dead. She alleged that the doctor acted negligently leading to the death of Andalu, due to which action should be taken against her. It should be noted that there was no specific elaboration about the manner in which the petitioner was though, by the de facto complainant to be guilty of negligence leading to the death of Andalu in the earliest version itself. 4. On such report, Ibrahimpatnam police registered Crime No.8 of 2000 and investigated into the same during the course of which they recorded the statements of witnesses, the copies of which are made available on record. The statements of the persons related to or connected with the deceased about the happenings leading to the death of Andalu are versions of laymen not throwing any scientific or technical light on the possibility or otherwise of the negligence of the petitioner in the surgery or treatment to Andalu which can be construed as the undoubted cause for her death. The statement of Anaesthetist recorded by the police also only speaks of his being summoned to the hospital of the petitioner for the purpose of administering anesthesia before surgery to Andalu and the happenings thereafter. 5. The incriminating material, if any, against the petitioner appears to be the circumstances noted by the Professor of Forensic Medicine, Osmania General Hospital, Hyderabad, cited as LW8 in the charge-sheet. 5. The incriminating material, if any, against the petitioner appears to be the circumstances noted by the Professor of Forensic Medicine, Osmania General Hospital, Hyderabad, cited as LW8 in the charge-sheet. The said Forensic Expert in answer to the questionnaire issued to him by the investigating officer appears to have referred to seven circumstances in his reply dated 4.12.2000, which could amount to negligence on the part of the doctors attending the patient. In the said letter, the Professor also explained that attribution of the cause of death in the post-mortem report to sudden cardiac arrest being one of the inherent complications of the surgery and anesthesia is only for the purpose of finding the cause of death and not to find the negligence on the part of the doctors conducting the surgery or assisting the surgery. Therefore, the contents of the post-mortem report by themselves do not exclude the possibility of the negligence on the part of the doctors involved, which could have led to the death of the victim. 6. The seven circumstances so noted by the Professor are : (1) Failure of the surgeon and anaesthetist to adequately investigate and confirm the diagnosis. (2) Failure to establish the necessity of surgery and the anesthesia. (3) Failure to preserve the uterus for histopathological studies for confirmation of diagnoses. (4) Failure to inform the patient of the restes (risk?) and complications involved in the surgery and anesthesia (5) Failure to detect the seriousness of the case after the operation and provide adequate postoperative care and attention and shift the patient on time to a better equipped hospital. (6) Failure to maintain proper hospital record, notes of progress anesthesia notes (loose sheets submitted as case sheets and records). (7) Failure to sign the entries made in these loose sheets by any of the doctors attending the patient. 7. If there was inadequacy In investigation, absence of establishment of unavoidable necessity of surgery and anesthesia and failure to detect the serious condition of the patient after the surgery, to meet, which adequate postoperative care and attention should have been provided and the patient should have been shifted to better equipped hospital may be the circumstances indicating the existence of negligence. The said probability can be considered further aggravated by the failure to preserve the uterus for histopathological studies, failure to inform the patient of the restes (risks?) and complications involved, failure to maintain proper hospital record, and failure to sign the entries made in the loose sheets projected as case sheets of the patient. While clarifying that the reference to these aspects herein is only for the purpose of considering the need to quash the criminal case and for no other purpose, the competency of the Professor of Forensic Medicine to arrive at such conclusions, the truth or otherwise of the existence of such circumstances as stated by the Professor of Forensic Medicine, and the cumulative effect of such circumstances amounting or not amounting to such gross negligence as would make a medical professional guilty of punishable culpable negligence under Section 304-A IPC are all questions to be gone into in detail and determined on merits by the trial Court on the direct and circumstantial evidence, both oral and documentary, to be placed before it during trial and cannot be even remotely or, prima facie, pre-judged in this consideration. 8. With this factual background, it may also be further noted that there was no variation in the basic theme of the relations of the deceased about the death of Andalu being caused due to the suspected negligence of the petitioner. The basic details of their version did not vary or conflict in between the First Information Report and the charges sheet, while some scientific basis for their suspicion appears to have been provided by the opinion of the Professor of Forensic Medicine. The charge-sheet refers to the investigating office obtaining the opinion of the Assistant Public Prosecutor concerned about the tenability of prosecuting the petitioner, but any such legal opinion by itself may not be germane in considering the tenability of the prosecution, ex facie, just like the opinion of the panch witnesses for the inquest alleging the petitioner's negligence to be the cause of death of the victim without explaining any scientific basis for such opinion or any experience or qualification for the said panch witnesses to come to such opinion. 9. 9. Therefore, the corroboration afforded by the opinion of the Forensic Medicine expert to the suspicion of the de facto complainant and other witnesses about the negligence of the petitioner leading to the death of Andalu provided the factual basis for the prosecution of the petitioner. The question is whether such prosecution can be thrown out at the inception on any ground. The criminal petition alleges that illegal gain, professional rivalry, private vengeance, personal grudge and male fides are the motives behind the prosecution of the petitioner, but no specific averments have been made or probabilised about any such factors for any persons connected with the crime or the charge-sheet, and even if any such oblique motives persuaded the prosecution of the petitioner by the police, if the allegations are otherwise true, the criminal case cannot be tm-own out on these grounds. It is further contended that the death was solely due to sudden cardiac arrest as stated in the post-mortem report and that even at face value, there are no ingredients to constitute the offence under Section 304-A IPC. As already stated, the Forensic Medicine Professor explained the opinion in the post-mortem report and referred to the other circumstances, which may amount to negligence. The qualification, experience, acceptability and credibility of the Professor of Forensic Medicine have to be assessed by the trial Court during and at the trial and not at this premature stage. 10. The decision reported in Dr. Suresh Gupta v. Government of NCT of Delhi and another, 2004 (2) ALD (Crl.) 739 (SC) = 2004 SCC (Crl.) 1785, rightly relied on by Sri P. V. Sanjeeva Rao, learned Counsel for the petitioner, of course, clearly cautions against the criminal prosecutions of doctors without adequate medical opinion pointing to their guilt which may be doing great disservice to the community at large, because the doctors may be more worried about their own safety then giving best treatment to their patients and further as the mutual confidence between the doctor and patient will be shaken. While it is true that 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, whether the present case presents a case of high degree of negligence on the part of a doctor or mere lack of proper care, precaution and attention of inadvertence is not such simplistic as to be decided at this stage in the light of, prima facie, material in the shape of opinion of the Professors of Forensic Medicine and has to be advisedly left open to be determined on merits by the trial Court. Even in Raghava Rao and another v. Oruganti Bechi Reddy and another, by a learned Single Judge of this Court, identical principles were reiterated with particular reference to the decision of the apex Court in Jacob Mathew v. State of Punjab, 2005 (2) ALD (Crl.) 334 (SC) = 2005 (6) SCC 1 . In the said decision, the apex Court in effect and substance concluded that to prosecute a medical professional for negligence under criminal law, it must be shown that the accused died something or failed to do something which is the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do and the circumstances noted by the Forensic Medicine Doctor in this case mayor may not answer the said test but the answer to that question has to be arrived at after trial by the trial Court. The learned Single Judge observed that so long as the doctor follows a practice acceptable to the medical profession on that day irrespective of his possessing the requisite skills or exercising such skills with reasonable competence, the negligence cannot attract Section 304-A IPC unless gross negligence of a very high degree was shown. The principles are unexceptionable, but their application to the facts of the present case need not result in quashing the proceedings at the inception under the circumstances referred to in detail above, and hence, this does not appear to be a case for exercise of the jurisdiction under Section 482 of the Code of Criminal Procedure exercisable only in the rarest of rare cases. 11. In the result, the criminal petition is dismissed. 11. In the result, the criminal petition is dismissed. But, it is made clear that the entire discussion and observations made in this order are purely for the purpose of determining the susceptibility of the criminal case for quashing at this stage and the determination of the criminal case on merits shall be totally uninfluenced by any part of this order.