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2012 DIGILAW 657 (KER)

Sivananda N. R. v. State of Kerala

2012-07-13

S.S.SATHEESACHANDRAN

body2012
JUDGMENT 1. Petitioner is the 1st accused in a case pending on the file of the Chief Judicial Magistrate Court, Kasaragod. The above case arose from crime registered by the Kasaragod police station for the offence punishable under Section 304(A) read with Section 34 of the Indian Penal Code. 2. One Vijayan, husband of the de facto complainant, was admitted in Kasaragod United Hospital to undergo surgery for hernia on 04.01.2008. Allegedly, due to complications arising from the application of anesthesia by the petitioner, who is an anesthesiologist, on the same day, just preceding the operation fixed, condition of Vijayan became critical and his operation could not be performed and he had to be rushed for better care to a hospital in Mangalore and, later, to another hospital in Manipal. On account of the anesthetic complications arising from the reckless application of anesthesia by the petitioner, it is alleged, Vijayan breathed his last on 14.01.2008 while undergoing treatment in a hospital in Manipal. Petitioner, when engaged by the 2nd accused to administer anesthesia to Vijayan, had not fully recovered after having undergone a surgery on his right shoulder and was not fit for performing the professional duty cast upon him. Though he was unfit at that point of time he administered anesthesia to Vijayan without even having an assistant with him. The 2nd accused, Managing Director of the hospital in engaging the petitioner while he was unfit to discharge his professional duties and allowing him to administer anesthesia to Vijayan without even having an assistant with him was also reckless and culpable of criminal negligence. Both the accused by their reckless and negligent acts caused the death of Vijayan, is the charge imputed to indict them for the offence punishable under Section 304(A) read with Section 34 of the Indian Penal Code. Annexure A2 is the charge laid before the court under Section 173 (2) of the Code of Criminal Procedure, for short, the 'Code' after completing the investigation of the crime by the Deputy Superintendent of Police, Kasaragod. Annexure A2 charge is assailed in the petition invoking the inherent jurisdiction of this Court under Section 482 of the Code contending that it is an abuse of process of the court and it is liable to be quashed. 3. Annexure A2 charge is assailed in the petition invoking the inherent jurisdiction of this Court under Section 482 of the Code contending that it is an abuse of process of the court and it is liable to be quashed. 3. Learned Senior counsel appearing for the petitioner urged that the allegations against the petitioner in Annexure A2 final report are totally incorrect and contrary to the facts involved in the case. Though the petitioner had undergone surgery on his right shoulder, he was perfectly fit to perform his duties and that is borne out by Annexure A3 certificate issued by the doctor, who conducted surgery for dislocation of his right shoulder, is the submission of the learned senior counsel. The allegation imputed that he was unfit on the day when he performed his duty as an anesthesiologist and that on account of his unfitness there was negligent and reckless application of anesthesia to Vijayan, is totally baseless and unworthy of any credence, is the further submission of the learned senior counsel. Though the District Level Expert panel, to which a reference was made by the Investigating Officer to examine whether there was professional negligence on the part of the petitioner in the application of anesthesia to Vijayan, gave an adverse report, in the appeal filed by the petitioner, the Apex Body Committee, after looking into all aspects involved, has unequivocally and categorically held that there is no wilfull negligence. Annexure A4 report given by the Apex Body Committee is relied by the counsel contending that that Committee has concluded so after taking note that the cause of death of Vijayan is on account of anesthetic complication. Mere fact that the death of Vijayan was on account of anesthetic complication is no ground to prosecute the petitioner for the grave offence imputed when the Apex Body Committee has opined that there is no wilful negligence on his part, is the submission of the learned senior counsel. The learned senior counsel for the petitioner has relied on Jacob Mathew v. State of Punjab (2005 (3) KLT 965 (SC)), Martin F. D'Souza v. Mohd. The learned senior counsel for the petitioner has relied on Jacob Mathew v. State of Punjab (2005 (3) KLT 965 (SC)), Martin F. D'Souza v. Mohd. Ishfaq ((2009) 3 SCC 1), V.Kishan Rao v. Nikhil Super Speciality Hospital and another ((2010) 5 SCC 513) and an unreported decision rendered by a learned Single Judge of this Court in Crl.M.C.No.3404 of 2011 by order dated 7th December, 2011 to contend that the opinion given by the Apex Body Committee constituted by the Government as per the Circular published thereof that there was no wilful negligence should have been accepted and acted upon by the Investigating officer to conclude that the petitioner cannot be prosecuted imputing him of culpable criminal negligence in discharge of his professional duty as an anesthesiologist when he applied anesthesia to Vijayan, to facilitate his operation. Annexure A2 report filed by the Investigating agency and cognizance of the offence imputed thereunder against the petitioner are ab initio bad in law and that report is liable to be quashed ordering cessation of all criminal proceedings thereof against the petitioner invoking the inherent powers of this Court, is the submission of the learned senior counsel. Learned Public prosecutor opposing the petition submitted that the facts involved in the case would show that there was callous and culpable criminal negligence on the part of the petitioner when he had applied anesthesia to Vijayan. Petitioner was then unfit to perform duties as an anesthesiologist. He had not fully recovered from a surgery which he had a few days back for the dislocation of his right shoulder. Anesthetic application required injunction to the spinal cord to facilitate the operation for hernia on Vijayan but the petitioner, anesthesiologist, who was unfit after the surgery for the dislocation of his right shoulder, and at a time when his right arm was kept in slings, gave anesthetic injunction to the patient. Anesthetic complication by the introduction of sensorcaine into the blood vessels of Vijayan due to the culpable rash and negligent acts of the petitioner, while he was unfit to administer anesthesia in performance of his professional duties, caused the death of the patient. In such a case, the opinion given by the Apex Body Committee that there was no 'wilful negligence' even after noticing that death of Vijayan was on account of anesthetic complications cannot be given much significance, submits the Public prosecutor. 4. In such a case, the opinion given by the Apex Body Committee that there was no 'wilful negligence' even after noticing that death of Vijayan was on account of anesthetic complications cannot be given much significance, submits the Public prosecutor. 4. In Jacob Mathew's case, cited supra, the Apex Court has laid down certain norms rather guidelines to be followed for prosecuting medical professionals when they are imputed of medical negligence. To prosecute a medical professional for negligence under criminal law, it is held, it must be shown that the accused did something or failed to do something, which, in the given facts and circumstances, no medical professional in his ordinary senses and prudence would have done or failed to do. The Apex Court has observed thus: "To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent." In the given facts of the case where the petitioner, who had undergone a surgery for dislocation of his right shoulder a few days back, was he fit to discharge the function as an anesthesiologist when he applied anesthesia, which had to be administered to the spinal cord of Vijayan, is the question that may have to be considered to determine whether there was culpable criminal negligence on his part and also that of the 2nd accused in engaging him for the application of anesthesia to a patient in his hospital. Annexure A3 certificate produced by the petitioner would only show the period which had to elapse, to enable him to do his professional works gradually after the operation, as opined by the doctor who conducted surgery over his right shoulder. Period of rest advised by the doctor was also not over when he had attended on Vijayan and applied anesthesia to him. Period of rest advised by the doctor was also not over when he had attended on Vijayan and applied anesthesia to him. The fact that he had surgery over his right shoulder a few days back, and application of anesthesia required administration of an injunction to the spinal cord of the patient and later the patient died on account of anesthetic complication followed by the introduction of sensorcaine into his blood vessels and the petitioner did not have an assistant for the application of anesthesia are circumstances which cannot at all be ignored in examining the question over his prosecution in forming an opinion whether the hazard taken by the doctor was of such a nature that the resultant injury to the patient was most imminent. The Apex Body Committee, after taking note of the cause of death of Vijayan was from anesthetic complications, has held that no wilful negligence of the Doctor (Anesthesiologist) could be noticed of, is not final, decisive and binding on the investigating officer since he has to form an independent opinion on the materials collected in the case whether the prosecution of the doctor for medical negligence is called for. In doing so, no doubt, he has to take into account the opinion of the Apex Body Committee also. In Jacob Mathew's case, cited supra, the Apex Court has unequivocally stated thus: "We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions." The Apex Court expressing so has laid down certain guidelines to be followed in the prosecution, arrest etc. of a doctor when he is imputed of medical negligence observing that such guidelines have to be followed till statutory rules or executive instructions incorporating certain guidelines are framed and issued by the Government of India or by the State Governments in consultation with the Medical Council of India. Two Circulars issued by the Government one preceding the above decision and the other later have been produced by the petitioner as Ext.P5 in the case. Two Circulars issued by the Government one preceding the above decision and the other later have been produced by the petitioner as Ext.P5 in the case. Those Circulars would show that the investigating officer has to consider the views expressed by the Expert Panel/Apex Body Committee and he will continue further investigation. He is also empowered to seek additional expert opinion in the event of any clarification required over the opinion given by the Expert Panel/Apex Body Committee. It can never be stated that whatever opinion expressed by the Expert Panel/Apex Body Committee will be the decisive factor in forming the conclusion by the investigating officer whether prosecution of a doctor imputed of criminal negligence in performing his duties is to be proceeded with or not. If it is so held, that would lead to a strange and anomalous situation. In a private complaint satisfying the requirements covered by Jacob Mathew's case, cited supra, a complainant could prosecute a doctor for medical negligence provided cognizance of such offence is taken by the learned Magistrate on the materials placed by him. But, when a crime is registered and investigated by the police, the investigating officer has to form his conclusion solely on the opinion expressed by the Expert Panel/Apex Body Committee in the prosecution of the doctor who is imputed of having committed medical negligence. Further more, it is for the investigating officer, he alone, to form an opinion on the materials collected in the investigation whether prosecution of the doctor is required or not, and in doing so, no doubt, the opinion given by the Expert Panel/Apex Body Committee has to be respected but it is not decisive and final in deciding whether prosecution is to be proceeded or not. Observations made in paragraph 106 in Martin F. D'Souza's case, cited supra, it has been clarified by a later decision of the Apex Court in V.Kishan Rao's case run counter to what has been laid down by the larger bench in Jacob Mathew's case, cited supra, and as such, the former decision is per incuriam and is not binding. Observations made in paragraph 106 in Martin F. D'Souza's case, cited supra, it has been clarified by a later decision of the Apex Court in V.Kishan Rao's case run counter to what has been laid down by the larger bench in Jacob Mathew's case, cited supra, and as such, the former decision is per incuriam and is not binding. The learned senior counsel for the petitioner drawing a distinction that in Martin F. D'Souza's case and V.Kishan Rao's case, medical negligence presented before the Consumer Forum and competency of that Forum were involved, would contend that the observations made in paragraph 106 in Martin F. D'Souza's case, cited supra, that a criminal court should first refer the matter to a competent committee of doctors, and only on a report that a prima facie case is made out then alone it should order notice is still relevant and binding. That proposition cannot be accepted in the light of the observations of the larger bench in Jacob Mathew's case, cited supra, wherein it has been stated that guidelines are given only to prevent malicious prosecution against the doctors but never as an interdiction from prosecuting doctors for an offence of which rashness or negligence is an essential ingredient. What has been enunciated by the Apex Court is a guideline to avoid malicious prosecution of doctors to prevent their harassment and prosecution from frivolous complaints taking into account the risk and hazards involved in the professional service rendered by them. But to say that the Expert Panel or the Apex Body Committee constituted under the Circulars issued by the Government, to examine whether the doctor was medically negligent or not, is the decisive authority to determine whether prosecution has to be proceeded or not against a doctor imputed of medical negligence, is not correct. Even under the Circulars issued by the Government constituting the above bodies, it is made clear that the investigating officer, after getting the opinion of the Committee, can continue the investigation, seek clarification over the opinion of the Expert Panel/Apex Body Committee, if so required, and, thus, form an independent opinion whether prosecution of the doctor is required. Of course that has to be done giving due consideration and respect to the opinion of the Expert Panel/Apex Body Committee. 5. Of course that has to be done giving due consideration and respect to the opinion of the Expert Panel/Apex Body Committee. 5. The Apex Body Committee in Annexure A4 report has stated thus: "Both the patient, who had cough and respiratory tract infection at the time of surgery and the Anesthesiologist who had sling in his right hand at the time of surgery, were not fully fit for surgery. The hospital authorities should have employed another Anesthesiologist to support Dr.Sivananda in performing in duties considering his physical disability." After making observations as above, it has given opinion that there was some sort of non professional approach from the Hospital authorities, who have conducted the surgery. The Apex Body Committee stating further that the cause of death is from anesthetic complication gave further opinion that no wilful negligence can be noticed. Negligence is the absence of care, skill and diligence which is expected from the duty of the person in the performance of his work. Negligence is a negative term and it does not postulate of any wilful act from the party. Whether the person was criminally negligent in the performance of his duty or was it only a case of absence of care or skill is a matter that has to be determined on the basis of the facts presented and materials collected in the case. In the given facts of the case, the investigating officer, after getting Annexure A4 report and on the basis of the materials collected has come to the conclusion that the petitioner has to be prosecuted for the offences imputed. The learned Magistrate has also taken cognizance of the offence after being satisfied from the materials produced that the prosecution of the accused in the given facts of the case and circumstances presented and also the materials tendered with the report, is essential to meet the ends of justice. I find in such circumstances, the expression given in Annexure A4 report by the Apex Body Committee that there was no 'wilful negligence' cannot be given any unmerited consideration. I find no merit in the challenges raised against Annexure A2 charge, and the Crl.M.C. is dismissed.