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2014 DIGILAW 281 (TRI)

Pratap Sanyal v. State of Tripura

2014-07-18

DEEPAK GUPTA

body2014
JUDGMENT Deepak Gupta, C.J.:-- 1. By means of this petition filed under Section 482 of the Code of Criminal Procedure, the petitioner has prayed that the proceedings against the petitioner initiated under Section 338 of the Indian Penal Code (IPC) be quashed and set aside. 2. Briefly stated the facts of the case are that a complaint of medical negligence was lodged against the petitioner on the allegation that he had while performing operation on Smt. Sarbani Deb, wife of Sri Bapi Roy Choudhury acted in a grossly negligent manner which amounts to criminal negligence. The allegation of criminal negligence is that while performing a laparoscopic internal cholecystecetomy on the patient the petitioner left behind a corrugated drainage tube inside the body of the patient. After operation, stitches were done. The patient complained of severe pain in the abdomen and contacted the petitioner. Despite various visits the petitioner only advised medicines. Finally, the patient and her husband went to the Government hospital where C.T. Scan was done and it was found that a foreign body was lodged in the right lower abdominal wall. When the patient with her husband approached the petitioner with this report he behaved roughly and did not believe the report. Not satisfied with the treatment, the patient and her husband went to Calcutta where she was admitted in the ILS Multispeciality Clinic. Surgery was performed by two other doctors, who then took out a corrugated drain pipe measuring 8 inches in length from the body of the patient. 3. The trial Court on the basis of this complaint initiated proceedings and rejected the petition of the petitioner-doctor filed under Section 231 Cr.P.C. for discharging him. It is against this order that the petitioner has approached this Court. 4. I have heard Sri P.K. Biswas, learned counsel for the petitioner and Sri B. Deb and Ms. S. Deb Gupta, learned counsel for the complainants. 5. On behalf of the petitioner, reliance has been placed on the Judgment of the Apex Court in Jacob Methew v. State of Punjab & Another in (2005) 6 SCC 1 , wherein the Apex Court held that indiscriminate prosecution of medical professionals for criminal negligence is counter-productive and does no service or good to society. 5. On behalf of the petitioner, reliance has been placed on the Judgment of the Apex Court in Jacob Methew v. State of Punjab & Another in (2005) 6 SCC 1 , wherein the Apex Court held that indiscriminate prosecution of medical professionals for criminal negligence is counter-productive and does no service or good to society. The Court held that it will be for the complainant to clearly make out a case of negligence before a medical practitioner can be charged with or proceeded against in criminal proceedings. The relevant observations of the apex Court are as follows:- 48.(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. (6) The word “gross” has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be “gross”. The expression “rash or negligent act” as occurring in Section 304-A IPC has to be read as qualified by the word “grossly”. (7) 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. 6. Thereafter, the Apex Court went on to hold as follows:- 51. 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 emphasise 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. Many a complainant prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. 52. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. Such malicious proceedings have to be guarded against. 52. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may 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. 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 and unbiased opinion applying the Bolam (Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582) test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled 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 may be withheld. 7. It is thus obvious that the Apex Court held that before initiating process in criminal proceedings, the Court should be satisfied that the case is one of gross negligence that is negligence which is writ large and the accused medical professional is guilty of doing or omitting to do something which no prudent doctor would do. The case lays down various guidelines and one of the guidelines is that normally criminal proceedings against medical practitioners should only be permitted to continue when there is opinion of some medical professionals that the act is one of negligence. 8. Sri P.K. Biswas, learned counsel has also placed reliance on the Judgment of the Apex Court in (2010) 3 SCC 480 (Kusum Sharma And Others v. Batra Hospital And Medical Research Centre And Others), wherein the Apex Court held as follows:- 62. 8. Sri P.K. Biswas, learned counsel has also placed reliance on the Judgment of the Apex Court in (2010) 3 SCC 480 (Kusum Sharma And Others v. Batra Hospital And Medical Research Centre And Others), wherein the Apex Court held as follows:- 62. We are here concerned with criminal negligence. We have to find out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. 9. The Court also approved the law laid down in the Jacob Mathew’s (supra) case and went on to hold as follows:- 72. The ratio of Bolam case (Bolam v. Friern Hospital Management committee, (1957) 1 WLR 582) is that it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that the respondent charged with negligence acted in accordance with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used. 10. The Apex Court then laid down the following principles:- 89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:- I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. II. II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. III. The medical professional is expected to bring 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. IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. VI. The medical professional 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. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck. IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurising the medical professionals/hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurising the medical professionals/hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals. 90. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind. 11. Reliance has also been placed on the Judgment of the Apex Court in 2013 CRILJ 4892 (A.S.V. Narayanan Rao v. Ratnamala & another), wherein also the same principle was followed. 12. On the other hand, Sri B. Deb, learned counsel for the complainant has placed reliance on another Judgment of the Apex Court in B. Jagdish And Another v. State of Andhra Pradesh And Another (2009) 1 SCC 681 , wherein in a case of medical negligence, the question before the Apex Court was whether the High Court should interfere at the interim stage or not. The Apex Court held as follows:- 24. The question is as to whether the High Court should have interfered with the order summoning the appellant at this stage? It is now a well-settled principle of law that at the stage of quashing of an order taking cognizance, an accused cannot be permitted to use the material which would be available to him only as his defence. In his defence, the court would be left to consider and weigh materials brought on record by the parties for the purpose of marshalling and appreciating the evidence. The jurisdiction of the courts, at this stage, is limited as whether a case of reckless/gross negligence has been made out or not will depend upon the facts of each case. 28. In his defence, the court would be left to consider and weigh materials brought on record by the parties for the purpose of marshalling and appreciating the evidence. The jurisdiction of the courts, at this stage, is limited as whether a case of reckless/gross negligence has been made out or not will depend upon the facts of each case. 28. Keeping in view the facts and circumstances of this case, we are of the opinion that it cannot be said that the materials brought on record by the complainant, even if given face value and taken to be correct in their entirety do not disclose an offence. We say so because there are two sets of opinions; one in favour of the complainant and another in favour of the appellants. Which opinion would ultimately prevail is essentially a question to be determined by the learned trial Judge upon considering the evidence adduced by the parties hereto in their entirety. 13. Criminal cases have to be decided on their own facts. There can be no quarrel with the settled law that in cases of criminal negligence against medical professionals, the Court should be very careful before issuing process or framing charge. Doctors perform onerous duties. If a doctor is always scared that criminal proceedings may be initiated against him he would not be able to give proper treatment. This is a rule of prudence to prevent malicious or frivolous prosecutions of doctors. However, if the facts establish that the prosecution has made out a reasonable case of negligence then the case must be prosecuted and should not be thrown out at the initial stage. While looking at the opinion of other doctors, this Court cannot be oblivious to the fact that ‘brethren in the profession’ seldom stand up against their own co. professionals. It is in the light of these principles that the cases have to be decided. 14. In Jacob Mathew’s (supra) case, the deceased was suffering from cancer in an advanced stage. He was got admitted into hospital at the instance of the influential sons. The patient was treated as well as he could be but unfortunately the patient died and prosecution was lodged. The patient died because of non-availability of oxygen cylinder and the Court held that the liability may be of the hospital under civil law, but the doctor could not be criminally liable. The patient was treated as well as he could be but unfortunately the patient died and prosecution was lodged. The patient died because of non-availability of oxygen cylinder and the Court held that the liability may be of the hospital under civil law, but the doctor could not be criminally liable. It is in the light of the facts of that case that the Apex Court held that even according to the allegations made in the complainant no case for criminal rashness or negligence was made out. 15. In Kusum Sarma’s (supra) case, the allegation was that the patient was suffering from blood pressure. He was very obese. After he had consulted 2/3 doctors he was admitted in the hospital. Ultrasound and CT Scan of abdomen was done and some growth was found making surgery necessary. Consent of the relatives was taken for removal of the tumor. On test the tumor was found to be malignant. Another surgery was carried out, but the deceased unfortunately died on account of meningitis. This was a case filed for compensation under the Consumer Protection and after the entire evidence was laid, the Apex Court held that this was not a case of medical negligence. This case has no applicability to the facts of the present case. 16. In Narayanan Rao’s (supra) case, angioplasty was performed on the patient. The same was not successful since the blockades in the arteries were calcified. After about 5 hours bypass surgery was performed, but unfortunately, the patient died. The case of the petitioners was that when the angioplasty was done there should have been alternative arrangements for carrying out by-pass surgery and the delay of 5 hours in conducting the bypass cause the death of the deceased. There was a difference of medical opinion, but even the doctor, who had alleged that failure of angioplasty compromised the position of the heart further went on to hold that the time gap between angioplasty failure and surgery was not the factor for the death of the patient. Therefore, the Apex Court held that negligence was not made out. 17. The present case stands on a different foot. It is not disputed that the patient underwent operation at the hands of the petitioner. As per the allegations, an 8 inch long corrugated drain pipe was left inside the body. Therefore, the Apex Court held that negligence was not made out. 17. The present case stands on a different foot. It is not disputed that the patient underwent operation at the hands of the petitioner. As per the allegations, an 8 inch long corrugated drain pipe was left inside the body. Thereafter, the patient went to the doctor and complained, but he did not take any proper steps. She then went to the Government hospital where a CT Scan was conducted and foreign body was detected in the abdomen. Operation was performed in Calcutta where the broken piece of corrugated drain pipe was removed from the abdomen of the patient. Sri P.K. Biswas, learned counsel has relied upon the inquiry report issued by the inquiry committee. A perusal of the inquiry report shows that the patient and her husband did not want to make any statement before the inquiry committee and they only wanted the criminal case to go on. In the concluding part, the committee has recorded that a rubber drain in abdomen operation may be found missing or displaced in rare circumstances. According to this report, the petitioner Dr. Sanyal was quick to react to the situation and handled the problem with proper skill and tact. This finding of the report does not appear to be absolutely correct because the operation was performed on 08.01.2006 and the foreign body was detected by CT Scan on 15.10.2007. Thereafter, according to the complainant, the petitioner did not accept the correctness of this report and operation was performed on the patient on 29.10.2007 when this tube was removed. I fail to understand how the inquiry committee has recorded that when the petitioner Dr. Pratap Sanyal did not find the corrugated rubber drain in place on the next day of operations, he informed the patient’s husband of the fact without losing time and advised USG and CT Scan immediately. While coming to this conclusion, the committee has relied upon some reference made by Dr. Pratap Sanyal to the Teresa Diagnostic Centre. However, in the earlier part of the report, the committee itself has noticed that the USG and CT Scan of the patient done on 11.01.2006 at Teresa Diagnostic Centre are not available for study. Without seeing those scans how could reliance be placed on the same. 18. Pratap Sanyal to the Teresa Diagnostic Centre. However, in the earlier part of the report, the committee itself has noticed that the USG and CT Scan of the patient done on 11.01.2006 at Teresa Diagnostic Centre are not available for study. Without seeing those scans how could reliance be placed on the same. 18. Be that as it may, I am of the considered opinion that leaving a long corrugated rubber drain in the abdomen of the patient and taking no steps for almost 9 months thereafter, for removal of the same when the patient was complaining of severe abdominal pain, prima facie establishes a case of gross criminal negligence and therefore, I am clearly of the opinion that this petition has no merit and the proceedings initiated against the petitioner cannot be quashed. It is however, made clear that any observation made herein have been made only for the purpose of deciding whether a case has been made out for continuing criminal proceedings against the accused. This may not be taken as expressing any final opinion of the matter and the trial Court after recording evidence shall on the basis of the evidence decide whether the accused is guilty of criminal negligence or not.