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2017 DIGILAW 1351 (ALL)

AMIT UPADHYAY v. STATE OF U. P.

2017-05-22

MAHESH CHANDRA TRIPATHI, RAMESH SINHA

body2017
JUDGMENT By the Court.—Heard Sri Kumar Dhananjay, learned counsel for the petitioner and Sri Vikas Sahai, learned A.G.A. for the State. Sri Suhel Ahmad Azmi, learned counsel for the respondent No. 3 is not present though the matter is called in the revised list. 2. Dr. Amit Upadhyay is before this Court assailing the impugned First Information Report dated 2.5.2017 registered as Case Crime No. 288 of 2016, under Sections 336 and 326, Police Station Medical College, District Meerut. 3. Record in question reflects that the petitioner is a qualified doctor and at present he is the Head of Department of Paediatrics, L.L.R.M. Medical College, Meerut. Record in question further reflects that impugned First Information Report has been lodged by the respondent No. 3 alleging therein that her daughter ‘Falak’ was born on 3.7.2015 at Tara Chand Shastri Hospital, Hapur after operation. Thereafter, the daughter of respondent No. 3 was referred to Medical College, Meerut as she was under weight. At Medical College, Meerut the treatment was given to baby Palak by the petitioner. 4. It has been alleged that due to negligence being shown by the petitioner, the baby Falak has lost her eye sight. 5. Learned counsel for the petitioner vehemently contends that petitioner is fully qualified and competent doctor and at present he is the Head of Department of Paediatrics, L.L.R.M. Medical College, Meerut. He further submits that at the point of time, when the matter was referred to the petitioner, the daughter of respondent No. 3 was suffering from various diseases pneumonia, septicemia and malaria. When the matter was initially entertained by a coordinate Bench of this Court on 27.5.2016, this Court has proceeded to accord interim protection that the petitioner shall not be arrested pursuant to the impugned First Information Report and further directed the District Magistrate, Meerut to constitute a medical board keeping in view the guidelines laid down by the Hon’ble Apex Court in the case of Jacob Mathew v. State of Punjab and another, (2005) 6 SCC 1 . Lastly, he submits that once the inquiry report of the medical board constituted by the District Magistrate, Meerut dated 3.9.2016 is before this Court wherein it has been held that there is no negligence on the part of the petitioner, then in such circumstance, the impugned first information is liable to be quashed. 6. Lastly, he submits that once the inquiry report of the medical board constituted by the District Magistrate, Meerut dated 3.9.2016 is before this Court wherein it has been held that there is no negligence on the part of the petitioner, then in such circumstance, the impugned first information is liable to be quashed. 6. In this backdrop, Sri Vikash Sahai, learned A.G.A. for the State contends that in response to the directives so issued by this Court on 27.5.2016, the District Magistrate, Meerut has constituted high power committee consisting of experts of the field which is annexed as Annexure 2 to the affidavit of compliance. 7. We have proceeded to examine the record as well as the inquiry report dated 3.9.2016 and what we find that the inquiry report dated 3.9.2016 was submitted by the medical board consisting of Dr. M.K. Bansal, Member, Medical Board, Physician, Member, Central Working Committee, IMA Head Quarter, Ex-President IMA Meerut, Meerut, Sri Arvind Singh, Head, Medical Board, IAS (P), Joint Magistrate, Meerut, Dr. Amit Jain, Member, Medical Board, MD (Pediatrics), Secretary, Indian Academy of Pediatrics, Meerut Chapter, Meerut and Dr. Anand Prakash, Member, Medical Board, Sr. Consultant (Pediatrics), District Female Hospital, Meerut wherein the medical board unanimously concludes that neither Dr. Amit Upadhyaya or for that matter any other doctor of the Department of Pediatrics, LLRM, Medical College, Meerut can be held guilty of any act of commission or omission in the case of treatment of baby Falak, resulting in her blindness and the allegation of negligence of petitioner (Dr. Amit Upadhyay) is thus untrue. The relevant extract of the inquiry report dated 3.9.2016 reads as under : “Final Conclusion of the Medical Board: In the light of the documents, letter s, written replies of the questions sent to the parties, evidences and material facts produced or shown before the Medical Board by the parties concerned alongwith the written statement made by the concerned parties at the time of their hearing before the medical Board, this Medical Board of Inquiry unanimously concludes that the alleged negligence of Dr. Amti Upahdyay in the treatment of baby Falak, daughter of Mrs Nazrana and Mr. Aftab Khan, which finally lead to her blindness cannot be proved. Amti Upahdyay in the treatment of baby Falak, daughter of Mrs Nazrana and Mr. Aftab Khan, which finally lead to her blindness cannot be proved. It also makes it amply clear that had the advice, tendered by the doctor, both verbal and written, at the time of first discharge, been followed by the parent of baby Falak, then timely R.O.P. Screening would have saved the eyes of baby Falak. The Medical Board unanimously concludes that neither Dr. Amit Upadhyaya or for that matter any other doctor of the Department of Pediatrics, LLRM, Medical College, Meerut can be held guilty of any act of commission or omission in the case of treatment of baby Falak, resulting in her blindness. The allegation of negligence of Dr. Amit Upadhyay is thus untrue. Enclosures: 1. Video CD of the Hearing of the Parties on 3.8.2016 at Collectorate, Meerut (in two volumes) 2. Annexure as aforementioned 3. Annexure Index Dated 3.9.2016 Dr. M.K. Bansal, Member, Medical Board, Physician, Member, Central Vorking Committee, IMA Head Quarter, Ex-President IMA Meerut, Meerut. Arvind Singh, Head, Medical Board, IAS(P), Joint Magistrate, Meerut. Dr. Amit Jain, Member, Medical Board, MD (Pediatrics), Secretary, Indian Academy of Pediatrics, Meerut Chapter, Meerut. Dr. Anand Prakash, Member, Medical Board, Sr. Consultation (Pediatrics), District Female Hospital, Meerut.” 8. In the present matter, respondent No. 3 i.e. Nazrana, w/o Aftab Khan, R/o Sikandar Gate, Jama Masjid, Hapur has lodged the First Information Report on 2.5.2016 alleging therein that due to medical negligence on the part of the petitioner due to which eyesight of her daughter was lost. Complainant in her complaint has complained that by not ensuring the screening of the Retinopathy of Prematurity (ROP) of her neo-natal (less than one month old) daughter baby Falak, even though the baby was admitted just about 1 hour after her birth on 3.7.2015 and remained admitted for 22 days in the nursery (i.e. Neo Natal ICU and NICU), under the supervision of Dr. Amit Upadhyay, the vision in the eyes of infant Falak have been lost permanently. It has been alleged that if R.O.P. screening had been done within 1 month of the birth of her baby, then eyes could have been saved. Thereafter, during third time, when baby Falak was admitted in the LLRM Medical College (S.V.B.P. Hospital), Meerut, Mrs. Amit Upadhyay, the vision in the eyes of infant Falak have been lost permanently. It has been alleged that if R.O.P. screening had been done within 1 month of the birth of her baby, then eyes could have been saved. Thereafter, during third time, when baby Falak was admitted in the LLRM Medical College (S.V.B.P. Hospital), Meerut, Mrs. Nazrana went with the baby to AIIMS, New Delhi on 2.12.2015 and finally on 15.1.2016 she took her baby to LV Prasad Eye Hospital, Hyderabad after referral from AIIMS, even in such eye of baby Falak could not be saved and as such, it is alleged that by that time it was too late for the ROP screening and onus of medical negligence, leading to permanent blindness of her infant baby is on the petitioner. 9. Once such were the allegations levelled against the petitioner before the inquiry officer, the petitioner has proceeded to submit his response in writing alongwith all relevant document, reports, evidence, material facts etc, in his letter dated 16.7.2016 to the medical board and claimed full innocence. He further informed the medical board that the allegations are totally fallacious and baseless as during the first admission on 3.7.2015 (Friday), baby Falak was admitted under treatment of Dr. Ritu Mittal, Paediatrician, as per the roaster duty of Call Day. Later on 22.3.2007 baby Falak was discharged by Dr. Ritu Mittal. In support of his submission, he has brought on record the discharge slip regarding first admission of baby Falak in the Medical College, Meerut is that of Dr. Ritu Mittal wherein clear cut mention has been made to come after three days in NICU. 10. When baby Falak was admitted for the second time in the medical college (SVBP Hospital), Meerut, on 21.8.2015, she was admitted under treatment of Dr. Dharm Veer Singh, Pediatric Deptt. to which she was finally discharged on 31.8.2015. Petitioner claimed that even upto the second time admission in the hospital, petitioner being the Padiatric Incharge of the Department concerned, is nowhere in the picture. Contention of the petitioner is that only for the third time when baby Falak was brought to the S.V.B.P. Hospital of Medical College, Meerut on 17.11.2015 and by time, she was under his treatment. However, at the said point of time, baby Falak was about 4.5 months old and by that time her vision was already lost. Contention of the petitioner is that only for the third time when baby Falak was brought to the S.V.B.P. Hospital of Medical College, Meerut on 17.11.2015 and by time, she was under his treatment. However, at the said point of time, baby Falak was about 4.5 months old and by that time her vision was already lost. Even on that stage, a request was made to the parents of baby Falak to go to AIIMS and further to LV Prasad Eye Hospital, Hyderabad for advance check up of the eyes of baby Falak. 11. 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. 12. The general principles on this subject have been lucidly and elaborately explained in the three Judge Bench decision of this Court in Jacob Mathew v. State of Punjab and another, (2005) 6 SCC 1 . However, difficulties arise in the application of those general principles to specific cases. 13. 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.” 14. 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. 15. 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. 16. The law, like medicine, is an inexact science. One cannot predict with certainty an outcome of many cases. However, what is simple negligence and what is gross negligence may be a matter of dispute even among experts. 16. 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. 17. 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 counter productive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation. 18. 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. 19. 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 v. 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. 20. The basic principle relating to medical negligence is known as the BOLAM Rule. 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. 20. 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 v. 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.” 21. Bolam’s test has been approved by the Supreme Court in Jacob Mathew’s case. 22. 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. 23. According to the Supreme Court, 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, or nursing homes, hence the latter would naturally like to know about their liability. The general principles on this subject have been lucidly and elaborately explained in the three Judge Bench decisions of this Court in Jacob Mathew v. State of Punjab and another, (2005) 6 SCC 1 . However, difficulties arise in the application of those general principles to specific cases. For instance, in paragraph 41 of the decision, it was observed that: “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.” Now what is reasonable and what is unreasonable is a matter on which even experts may disagree. Neither the very highest nor a very low degree of care and competence is what the law requires.” 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. To give another example, in paragraphs 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 that 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. 24. The law, like medicine, is an inexact science. One cannot predict with certainty an outcome in many cases. It depends on the particular facts and circumstances of the case, and also the personal notions of the Judge who is hearing the case. However, the broad and general legal principles relating to medical negligence need to be understood. Before dealing with these principles two things have to be kept in mind: 1. Judges are not experts in medical science, rather they are laymen. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, Judges usually have to rely on the testimonies of other doctors, which may not be objective in all cases. 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 for a Judge, particularly in complicated medical matters 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 counter productive and are no good for society. They inhibit the free exercise of judgment by a professional in a particular situation. 25. Indiscriminate proceedings and decisions against doctors are counter productive and are no good for society. They inhibit the free exercise of judgment by a professional in a particular situation. 25. In the present matter, very detailed inquiry report (in 20 pages) has been submitted by the medical board and as per final conclusion of the medical board, the medical board is of the view that the allegation of negligence against the petitioner is untrue. 26. In the case of Indian Medical Association v. Santha, (1995) 6 SCC 651 , the Apex Court has decided that the skill of a medical practitioner differs from doctor to doctor and it is incumbent upon the complainant to prove that a doctor was negligent in the line of treatment that resulted in the life of the patient. Therefore, a Judge can find a doctor guilty only when it is proved that he has fallen short of the standard of reasonable medical care. The principle of res-ipsa-loquitur has not been generally followed by the Consumer Courts in India including the National Commission or even by the Apex Court in deciding the case under this Act. In catena of decisions, it has been held that it is for the complainant to prove the negligence or deficiency in service by adducing expert evidence or opinion and this fact is to be proved beyond all reasonable doubts. Mere allegation of negligence will be of no help to the complainant. 27. In medical negligence cases, it is for the patient/complainant to establish his case against the medical professional and not for the medical professional to prove that he acted with sufficient care and skill as has been held in the case of Madhya Pradesh High Court in the case of Smt. Sudha Gupta and others v. State of M.P. and others, 1999 (2) MPLJ 259 . 28. 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 fishes. 29. 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 fishes. 29. Once such is the factual situation that is so emerging before us, then we are of the considered opinion that impugned First Information Report is liable to be quashed. 30. The writ petition accordingly succeeds and is allowed. 31. The impugned FIR and all subsequent proceedings taken against the petitioner in pursuance thereof are hereby quashed. 32. There shall however be no order as to costs.