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2015 DIGILAW 520 (KER)

Suhara K. v. State of Kerala

2015-05-25

K.HARILAL

body2015
ORDER : K. Harilal, J. 1. The petitioner is the de facto complainant and the respondents are the accused in CMP No. 1513 of 2013 on the files of the Judicial First Class Magistrate's Court-I, Hosdurg. The above complaint was filed under Sections 190(a), 200 of the Code of Criminal Procedure alleging the offence punishable under Section 304(A) of the Indian Penal Code, against the respondent Nos. 1 and 2. The allegations in the complaint are as follows: The complainant's son Askar was suffering from Hernia and he was treated by the 1st accused at the District Hospital, Kanhangad. A preliminary laboratory test was conducted on 22/04/2009 and found that the patient was suffering from lungs infection also. Even then the 1st accused had taken a decision to conduct a surgery and the patient was admitted for Herniotomy surgery on 30/04/2009. The 2nd accused is the Anaesthetist attached to the hospital and he administered spinal anaesthesia to the patient Askar and the surgery was conducted by the 1st accused. Due to the complication in anaesthesia Askar became permanently unconscious, according to the complainant. The 1st and 2nd accused referred the patient to the Medical College, Pariyaram, even though the complainant requested them to refer the patient to Unity hospital, Mangalore for treatment. The patient was taken to the Medical College Hospital, Pariyaram, on the same day itself and made an attempt to rescue the said patient. On 08/05/2009 the patient was taken to Unity hospital, Mangalore for treatment. He was treated there for 91 days by a team of expert doctors. Finally the patient died on 08/08/2009 at Manzoor Hospital, Kanhangad. The post-mortem was conducted by a Police Surgeon from Pariyaram Medical College. The cause of death shown in the post-mortem certificate was "infective complication of the lungs following anaesthesia induced hypoxic brain damage". The 2nd accused administered spinal anaesthesia instead of general anaesthesia. The 2nd accused should not have administered spinal anaesthesia when the patient was suffering from lungs infection as disclosed by the lab report. Hence the death was caused by the negligent treatment by the accused. 2. On the basis of the complaint filed by the petitioner an FIR was lodged against the accused alleging the offence punishable under Section 304A of IPC as Crime No. 340 of 2009. Hence the death was caused by the negligent treatment by the accused. 2. On the basis of the complaint filed by the petitioner an FIR was lodged against the accused alleging the offence punishable under Section 304A of IPC as Crime No. 340 of 2009. An expert panel was constituted as per the requisition of the Investigating Officer in compliance with the directions of the Supreme Court of India in Jacob Mathew v. State of Punjab and Another 2005 KHC 1045 : 2005 (3) KLT 965 (SC) : 2005 (6) SCC 1 : AIR 2005 SC 3180 : 2005 (2) KLD 219 : 2005 CriLJ 3710. The expert panel after examining the medical records found that there was no negligence on the part of the accused. On the basis of the expert opinion, the Investigating Officer filed a referral report before the Court as RC No. 424 of 2010 to drop the prosecution against the accused. Notice was issued to the de facto complainant on the referral report. Pursuantly the de facto complainant filed the above protest complaint alleging the offence under Section 304A of the IPC. The petitioner was allowed to adduce evidence in the enquiry under 202. The petitioner was examined as PW 1 and the Forensic Surgeon who conducted the post-mortem was examined as PW 2. 3. After considering the evidence adduced in the enquiry, the Court below dismissed the complaint, on a finding that the prosecution failed to bring out a prima facie case of negligence of accused Nos. 1 and 2 that caused the death, to take cognizance for the offence under Section 304A IPC. The legality, propriety and correctness of the findings whereby the Court below dismissed the complaint are under challenge in this revision petition. 4. The learned counsel for the revision petitioner advanced arguments in extenso contending that the averments in the complaint supported by the prosecution records and the evidence of PWs 1 and 2 would disclose the offence alleged against the accused for the offence under Section 304A IPC. The learned counsel further submits that, before the surgery, by conducting various tests found that he was infected with bacteria, so the doctor should not have ventured to go forward with the surgery at that stage. The learned counsel further submits that, before the surgery, by conducting various tests found that he was infected with bacteria, so the doctor should not have ventured to go forward with the surgery at that stage. Secondly, the evidence of PW 2 is sufficient enough to disclose the act of negligence which caused the death of the de facto complainant's son, but the Court below miserably failed to consider the above points in its correct perspective. 5. The short question that arises for consideration is whether there is any illegality or jurisdictional error in dismissing the protest complaint on a finding that there is no sufficient ground to proceed against accused Nos. 1 and 2 for the offence under Section304A of the IPC. 6. Let us examine the question, what is the standard and degree of 'negligence' required to prosecute the Medical Practitioners under Section 304A of the IPC. In the Law of Torts, Ratanlal and Dhirajlal (Twenty fourth Edition, 2002, edited by Justice G.P. Singh), it is stated that "negligence is the breach of a duty caused by the 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". 7. Though, literally no distinction can be drawn between negligence under civil law and negligence under criminal law, the extent of damages incurred is determinative of the extent of liability in civil law and in the criminal law, the amount of degree of negligence is determinative of liability. To fasten the liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. 'Simple lack of care' is not enough to constitute negligence in criminal law. The factor of grossness is required to constitute negligence punishable as a crime, unlike negligence actionable in tort. The essential ingredients of mens rea cannot be excluded from consideration in a charge of criminal negligence. In short, higher degree of negligence has always been demanded in order to establish criminal offence of negligence. This is the universally accepted and followed jurisprudential view as regards standard and degree of negligence punishable under criminal law. 8. In the realm of criminal negligence, professional negligence has been placed on a different footing than that of ordinary concept of negligence. This is the universally accepted and followed jurisprudential view as regards standard and degree of negligence punishable under criminal law. 8. In the realm of criminal negligence, professional negligence has been placed on a different footing than that of ordinary concept of negligence. Universally, legal authorities and the classical decisions of the eminent Jurists and Judges have invariably placed medical professionals on a pedestal different from other professionals considering the particular nature of work the profession of Medical Practitioners demand. 9. In Halsbury's Laws of England (Fourth Edition, Vol. 30, Para 35), 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." 10. Lord Denning, in Hacks v. Cole 1968 (118) New LJ 469 opined as follows: "A medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field." 11. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field." 11. In Maynard v. West Midlands Regional Health Authority 1985(1) All ER 635 (HL), a Bench consisting of five Law Lords, held as follows: "It is not enough to show that there is a body of competent professional opinion which considers that decision of the defendant professional was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken, it was reasonable, in the sense that a responsible body of medical opinion would have accepted it as proper". 12. Lord President (Clyde) in Hunter v. Hanley 1955 SLT 213 at 217, observed as follows: "The words cannot be bettered - 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...". Lord Scarman added - "a doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A Court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence." His Lordship further added "that a Judge's 'preference' for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred." 13. Relying on the above classical decisions, a three Judge Bench of the Supreme Court, on a reference, in Jacob Mathew v. State of Punjab 2005 KHC 1045 : 2005 (3) KLT 965 : 2005 (6) SCC 1 : AIR 2005 SC 3180 : 2005 (2) KLD 219 : 2005 CriLJ 3710, elaborately considered the various legal aspects that centre around professional negligence of Medical Practitioner in criminal law and all earlier judicial precedents laid down by the Supreme Court pertaining to the professional negligence of Medical Practitioners and observed as follows: "26. A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, 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 he has to choose the lesser evil. 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. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. 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 be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure. 29. 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. 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." 14. In view of the observations, the Supreme Court sum up the conclusions as under: "49. CONCLUSIONS SUMMED UP. We sum up our conclusions as under: (1) Negligence is the breach of a duty caused 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'. (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. 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. (3) A professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam's case, 1957 (1) WLR 582, 586holds good in its applicability in India. (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. 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 Section304A of 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 304A of the 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. (8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence." 15. In the absence of statutory rules or executive instructions incorporating guidelines to determine professional negligence of Medical Practitioners, the Supreme Court laid down certain guidelines to govern the prosecution of Doctors for offences of which criminal rashness or criminal negligence is an ingredient. The first clause reads as given below: "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." 16. The first clause reads as given below: "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." 16. Bearing the observations and the guidelines formulated thereunder by the Supreme Court in the above decision, in the mind, I have examined the point whether the allegations in the complaint "and the statement on oath given by the witness and the materials produced in the enquiry under Section 202 of the Cr.P.C. would disclose sufficient grounds to proceed against the accused for the offence under Section 304A of the IPC. 17. Going by the impugned order, it is seen that, the death of the de facto complainant's son after the surgery conducted by the accused is not disputed. It is also not disputed that the surgery was conducted after obtaining full consent from the complainant. The question is whether the documents and evidence produced in the enquiry under Section202 of Cr.P.C., disclose any ground which indicate the complicity of the accused by way of negligence punishable in criminal law, in causing the death of the petitioner's son. On a consideration of the impugned order as well as the protest complaint, the crux of the complainant's case is that 2nd accused wrongly administered spinal anaesthesia instead of general anaesthesia particularly when the deceased was suffering from lung infection. It is pertinent to note that an expert panel was constituted as per the requisition of the Investigating Officer as mandated by the Supreme Court in 2005 (3) KLT 965 (SC) : 2005 KHC 1045 : 2005 (6) SCC 1 : AIR 2005 SC 3180 : 2005 (2) KLD 219 : 2005 CriLJ 3710 (cited supra) and the said committee opined that there was no negligence on the part of the accused. No doubt, in an enquiry under Section 202of the Cr.P.C., on a protest complaint filed against a referral report the de facto complainant has the right to adduce independent evidence which would falsify or make doubtful the expert opinion or indicate elements of criminal negligence that gave rise to the cause of death, notwithstanding the opinion of the expert panel, on which the Investigating Officer relied. But in the instant case, no such alternative expert opinion or evidence either documentary or oral has been brought out in the enquiry contrary to the report of the expert panel, where no negligence was found. Needless to say, the petitioner failed to satisfy the first clause in the guidelines laid down by the Supreme Court, which is referred above. On a marshalling of evidence adduced by the petitioner it is seen that the evidence is confined to the oral evidence of PWs 1 and 2, the complainant and the Forensic Surgeon, who conducted autopsy. 18. The learned counsel for the petitioner pointed out that the evidence of PW 1 and PW 2 is sufficient to disclose the offence alleged against the accused. But I am unable to agree with such submission. The statement on oath given by PW 1 is confined to his grievance only. PW 2 deposed that the patient died due to infective complication of the lungs following anaesthesia induced hypoxic brain damage. As rightly held by the Court below from the autopsy report it cannot be held that the death was caused by any kind of negligence from the part of PWs 1 and 2. It follows that the version of the PW 2 that the death was following anaesthesia induced hypoxic brain damage, by itself does not disclose any kind of negligence from the part of the 2nd accused in the absence of any medical evidence or expert opinion to establish the same. In this context it is pertinent to note that expert panel constituted as per the direction of the Apex Court opined that there was no negligence on the part of the accused and as long as the said opinion stands un-impeached, a contrary opinion cannot be formed in the absence of any other evidence from the part of a complainant. It is significant to note that the doctor, who treated the patient on his last days in other hospitals, was not examined, to establish the cause of death and negligence in treatment, if any, according to their version. Though, summons was issued to that doctor, the same was not returned and in that context the learned counsel appearing for the complainant submitted that since the concerned doctor was not available, the complainant does not intend to adduce further evidence. Though, summons was issued to that doctor, the same was not returned and in that context the learned counsel appearing for the complainant submitted that since the concerned doctor was not available, the complainant does not intend to adduce further evidence. If that be so, in the absence of any evidence contrary to the expert opinion, even if the allegation in the complaint are taken at its face value no offence could be made out against the accused. The crux of the complainant's case is that the 1st accused should not have given spinal anaesthesia to the patient, who was suffering from lungs infection, instead of general anaesthesia. Needless to say, no evidence had been adduced to substantiate the contention that the spinal anaesthesia caused the death of the de facto complainant's son. 19. Even if the complainant's case is admitted, the death was caused by a wrong decision to conduct a surgery or by adoption of one method to administer anaesthesia in preference to other. That is, spinal anaesthesia in preference to general anaesthesia. In the absence of an element of gross negligence or rashness, in the procedure which gives rise to a wrong decision to conduct surgery or to adopt one method in preference to other, no prosecution can be launched against the doctor for the offence under Section304A of the Indian Penal Code alleging negligence or rashness during the course of treatment. Even if diagnosis is wrong, if it was made without any kind of gross negligence or gross rashness and it was caused by a wrong judgment bona fide made, such acts or omissions of Medical Practitioners, which may be subsequently found wrong by a second opinion or an expert opinion are protected as errors committed by chance under wrong understandings or wrong perception, without culpability. Where alternative methods or course of treatments are available, a Medical Practitioner cannot be fastened with negligence punishable under the criminal law on the reason that a better alternative method was also available and that method would have been adopted. To prosecute the Medical Practitioner for negligence in diagnosis, the diagnosis made by the Medical Practitioner would be one that no professional man of ordinary skill or knowledge would have taken, had he been acting, with ordinary care. To prosecute the Medical Practitioner for negligence in diagnosis, the diagnosis made by the Medical Practitioner would be one that no professional man of ordinary skill or knowledge would have taken, had he been acting, with ordinary care. In short, an element of gross negligence is sine qua non, to prosecute the Medical Practitioner, for the offence under Section 304A of the IPC. This is the proposition that can be culled out from the above decision of the Apex Court. On an analysis of the impugned order under challenge passed on the basis of the materials produced before the Court below in the enquiry under Section 202 of the Cr.P.C., I also concur with the findings of the Court below that complainant miserably failed to adduce evidence which would disclose any ground to proceed against the accused for the offence under Section 304A of the IPC. In the result, I find that, there is no illegality or impropriety in the findings whereby the Court below dismissed the complaint. This revision petition is devoid of merits and it is dismissed in limine.