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2023 DIGILAW 422 (TS)

M. Radha Rani v. State of Andhra Pradesh

2023-06-08

G.ANUPAMA CHAKRAVARTHY

body2023
JUDGMENT 1. This Criminal Petition is filed to quash all further proceedings in Crime.No.86 of 2014 dtd. 28/1/2014 on the file of Sanjeeva Reddy Nagar Police Station, Hyderabad. 2. The petitioners are arrayed as Accused Nos.1 and 2 in Crime No.86 of 2014 for the offence punishable under Sec. 338 of IPC. Basing on the complaint of the 2nd respondent, the Police have registered a case against the petitioners. The petitioners are Doctors by profession. 3. It is the case of the prosecution that the wife of the 2nd respondent aged about 36 years was suffering with 'hesterectomy' and 'hernia' and he consulted their family Doctors i.e., Dr.M.Srihari Rao and Dr.M.Radhika Rani i.e., petitioner Nos.1 and 2. On 20/5/2013, the 2nd respondent admitted his wife in Raghava Multi Specialty Hospital and got operated on 21/5/2013. In the middle of the operation, they arranged drain pipe but it fell down after few minutes. Though they tried to arrange it again, it could not be fixed and then their staff started pressing his wife's stomach, which got burst at operation place. Doctors requested the 2nd respondent not to complain about the same to any one and that they will cure the same. Immediately, the 2nd respondent shifted his wife to Osmania General Hospital for treatment but she could not recover. From there, on 8/6/2013, he again shifted his wife to Raja Nursing Home for treatment. For the above said negligence, the present complaint was filed by the 2nd respondent against the petitioners. As stated supra, basing on the said complaint, a case was registered against both the petitioners. 4. Heard Smt. M.Vidyavathi, learned counsel for the petitioners, Sri S.Ganesh, learned Assistant Public Prosecutor for 1st respondent and Sri V.Sreemanarayna learned counsel for the respondent No.2. 5. It is the contention of the learned counsel for the petitioners that they are innocent of the offences alleged against them and they have been falsely implicated in the case and the ingredients of Sec. 338 Cr.P.C are not at all attracted. It is further contended that no case is made out in medical terminology and no oral or documentary evidence was enclosed in the complaint against the petitioners. It is further contended by the counsel that the allegations made by the 2nd respondent are general in nature, false and baseless. It is further contended that no case is made out in medical terminology and no oral or documentary evidence was enclosed in the complaint against the petitioners. It is further contended by the counsel that the allegations made by the 2nd respondent are general in nature, false and baseless. The 2nd respondent suppressed the facts by not stating the whole health condition of the patient before operation. Further, the 2nd respondent demanded the petitioners to pay Rs.2.00 lakhs and as the said amount was not paid by them, to pressurize and harass them, filed a false complaint against them and therefore, prayed to quash the complaint. 6. It is further contended by the learned counsel for the petitioners that the patient, who was the wife of the 2nd respondent was the patient of 1st petitioner while she was working in Vijayawada. The patient was suffering from obesity and overweight while she gave birth to one male baby a few years back. Thereafter, she consulted the 1st petitioner, who was a good Gynecologist for the 2nd issue in the initial stage itself and accordingly, the 1st petitioner gave good treatment to her for nine months and the wife of the 2nd respondent gave birth to a healthy baby. Thereafter, the 1st petitioner got transferred to MNJ Cancer Hospital. After eight years, the 2nd respondent consulted the 1st petitioner asking her to do operation of 'Hysterectomy and Abdominal Hernia for Mesh Repair'. When the wife of the 2nd respondent approached the 1st petitioner for the said operation, she was overweight i.e., above 90 kgs and the 1st petitioner counselled her patient about the complications intra and post operative period. Accepting the said risk, they gave consent for surgery. The 1st and 2nd petitioners are qualified Doctors and performed many surgeries successfully for the past fifteen years. In order to help the family of the 2nd respondent, the petitioners suggested them to select a Hospital to do operation. Accordingly, the 2nd respondent himself has selected M/s.Raghava Hospital as it covers insurance for the operation. Thereafter, the petitioners have agreed to do operation in the said hospital. In order to help the family of the 2nd respondent, the petitioners suggested them to select a Hospital to do operation. Accordingly, the 2nd respondent himself has selected M/s.Raghava Hospital as it covers insurance for the operation. Thereafter, the petitioners have agreed to do operation in the said hospital. While so, the wife of the 2nd respondent failed to follow the instructions of the petitioners throughout five days of post operative period because of which she had developed 'burst abdomen' which is a known complication of any major abdominal surgery and is described standard in the medical profession. To rectify the said problem, by taking second opinion from the experts, the 2nd respondent was suggested to join his wife in NIMS Hospital. But due to financial problems, 2nd respondent could not join her in the said hospital instead joined her in the Osmania Hospital where her abdominal problem was corrected by doing surgery called 'tension suturing of abdominal wall' and was treated in I.C.U. for twelve days. After shifting her to General Ward, the 2nd petitioner and his team suggested the 2nd respondent not to discharge her from the hospital till she completely recovers. Against their advice, she left the hospital and the same was recorded in the records of Osmania Hospital. Thereafter, the 2nd respondent contacted one Veeranki Dangi Kumar, Corporator of Vijayawada Corporation, who is also the relative of 1st petitioner and demanded the petitioners to pay two lakhs rupees through him, otherwise he would register a case against them. Accordingly, the 2nd respondent after a month registered a false complaint against them. 7. In support of her contentions, learned counsel for the petitioners relied on the following judgments:- 1. Jacob Mathew vs. State of Punjab And Another, (2005) 6 SCC 1 . wherein it held as follows:- "(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 and 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'. The definition of negligence as given in Law of Torts, Ratanlal and 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. 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. 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. 2. Lalitha Kumari vs. Government of Uttar Pradesh, (2014) 2 SCC 1 . wherein it is held as follows:- "Although, we, in unequivocal terms, hold that Sec. 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offence, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint. 107) In the context of medical negligence cases, in Jacob Mathew (supra), it was held by this Court as under: "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. 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. 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 Bolam9 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." 3. Rakesh Ranjan Gupta vs. State of U.P. And Another, (1999) 1 SCC 188 . wherein it is held as follows:- "The above allegations do not disclose, prima facie, a case of rash or negligent act, on the part of the appellant so as to attract the penal provision under Sec. 304A, IPC. If there was delay on the part of the Doctor to attend on the patient that may at the worst be a case of civil negligence and not one of culpable negligence falling under the above Sec. . That apart, the cause of death has now been disclosed, from the report of the Chemical Examiner, as one of consuming poison. The viscera examined in the chemical laboratory showed that result. It is no body's case that the appellant has administered poison to the patient. It is now apparently clear that death was not on account of anything which the appellant did to the patient. It was primarily due to the poison being consumed by the deceased. Therefore, by no stretch of imagination, can it be said that death of the deceased was caused by any act done by the appellant. It is now apparently clear that death was not on account of anything which the appellant did to the patient. It was primarily due to the poison being consumed by the deceased. Therefore, by no stretch of imagination, can it be said that death of the deceased was caused by any act done by the appellant. 4. Admitted facts being thus, this is not a case to proceed against the appellant in criminal Court for offence under Sec. 304A, IPC. The chargesheet is liable to be quashed or else the appellant is likely to be subjected to unnecessary harassment for facing the criminal prosecution. We quash it without prejudice to the right of the legal representatives of the deceased to resort to any other action permissible under law." 4. Dommati Siva Kumar vs. State,2014 Lawsuit (Hyd) 1164. wherein it is held as under:- "To convict, therefore, a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The courts have, therefore, always insisted in the case of alleged criminal offence against the doctor causing death of his patient during treatment, that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable. 157. There cannot be, however, any doubt or dispute that for establishing medical negligence or deficiency in service, the courts would determine the following:- (i) No guarantee is given by the doctor or surgeon would be cured. (ii) The doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill. (iii) Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution not constitute any negligence. (iv) Failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute a negligence. However, a medical practioner must exercise the reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence. (iv) Failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute a negligence. However, a medical practioner must exercise the reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence. (v) In a complicated case, the court would be slow in contributing negligence on the part of the doctor, if he is performing his duties to the best of his ability. Bearing in mind the aforesaid principles, the individual liability of the doctors and hospital must be judged. 15. Admittedly, in the case on hand, the second respondent is not a competent person to say that her husband died due to the negligent act of the petitioner. Even if the allegations made in the complaint exfacie taken to be true and correct, no prima facie case is made out against the petitioner accused for the offence punishable under Sec. 304-A of IPC." 5. Dr. P. Malathi v. State of Andhra Pradesh and another,2014 (2) ALD (CRl.) 924. wherein it is held as follows:- "In mind the aforementioned principles, the individual liability of the doctors and hospital must be judged. From the proposition laid down in the above referred decision, it is clear that mere negligence is not sufficient and to fasten criminal liability, gross negligence and high recklessness on the part of the doctors is required. Both State Consumer Disputes Redressal Commission and the State Medical Council found that there is no negligence on the part of doctors and the patient died due to Amniotic Fluid Embolism. There is no Post Mortem examination and the cause of death is not known except the presumptions and assumptions of the complainant. Even the sworn statements of four doctors is only their opinion in respect of case sheet, which document was already considered by Consumer Disputes Redressal commission and State Medical Council and Medical Council of India in respect of A.1., the Consumer Redressal commission and State Medical Council of India in respect of A.3 and these forums after considering the opinion of experts in the field found that there was no negligence of any kind on the part of these two doctors. Further from the material, it is clear that petitioner i.e., A.1 is not a residential doctor of Shalini Maternity Hospital and she only accommodated as she was requested by one of her colleague who happened to be classmate of husband of deceased. Taking the facts and circumstances of the case and the material filed along with quash petition and the principle laid down by Supreme Court into consideration, I am of the view that there is no material showing gross negligence or recklessness on the part of these two petitioners for the death of deceased and the ingredients of Sec. 304-A I.P.C. are not at all attracted, against the petitioners. Coming to offence under Sec. 201 I.P.C., according to the complainant, there is screening of the evidence by not informing local authorities for the Post Mortem examination and for making belated entries in the case sheet. For these allegations, there is absolutely no material to show that there was any falsifying of hospital record to screen away the offences. Mere suspicion or allegation however strong they may cannot be taken into consideration without any supporting material. Even otherwise those allegations reflects on the Nursing Home and its residential doctors, but not on petitioners. When the basic requirements are missing and the State Consumer Redressal Commission, State Medical Council and National Medical Council found no negligence from the same material then allowing such complaint to continue and compel petitioners to face rigama role of the criminal trial would be totally unjustified leading to miscarriage of justice." 8. This Court at the stage of admission of the case, vide order dtd. 10/2/2014 granted interim stay of further investigation in Crime No.86 of 2014. 9. A detailed counter was filed by the 2nd respondent and it was contended that the case is at the stage of the investigation and if the investigation is conducted, the truth will come out and it is not proper to stay the investigation. 10. The Apex Court in Jacob Mathew's case (1 supra), held that when a private complaint may not be entertained unless the complainant produces prima facie evidence before the Court in the form of a credible opinion by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. 10. The Apex Court in Jacob Mathew's case (1 supra), held that when a private complaint may not be entertained unless the complainant produces prima facie evidence before the Court in the form of a credible opinion by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer before proceeding against the doctor/accused has to 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 Bolam test to the facts collected in the investigation. 11. In the instant case, the 1st respondent/Investigating Officer without obtaining medical opinion registered a crime against the petitioners vide Crime No.86 of 2014 for the offence punishable under Sec. 338 of IPC on 28/1/2014. The alleged incident took place on 21/5/2013 i.e., after a span of eight months which is against the ruling of Apex Court in Medico Legal Cases. As per the precedents of Apex Court, FIR has to be filed within six months from the date of occurrence of the incident. In the present case, it is beyond six months. The Apex Court has also observed that whenever a complaint is received against a doctor or hospital by the Consumer Forum (whether District, State or National) or by the Criminal Court, then, before issuing notice to the Doctor or Hospital against whom the complaint was made, the Consumer Forum or the Criminal Court should first refer the matter to a competent Doctor or Committee of Doctors, specialised in the field relating to which the medical negligence is attributed, and only after that Doctor or Committee reports that there is a prima facie case of medical negligence should notice be then issued to the Doctor/Hospital concerned. This is necessary to avoid harassment to Doctors who may not be ultimately found to be negligent. It is further held that the Police officials shall not harass or arrest the Doctors unless the facts clearly come within the parameters laid down in the above said judgment, otherwise, the Police officials have to face legal action. 12. Admittedly, the guidelines of the Apex Court are not followed in this case and without following the same, a case was registered against the petitioners. 12. Admittedly, the guidelines of the Apex Court are not followed in this case and without following the same, a case was registered against the petitioners. It is relevant to mention that the Telangana State Medical Council has examined the petitioners basing on the complaint of the 2nd respondent and also the recommendations of the Executive Committee and observed as follows:- "The General Body of Telangana State Medical Council in its meeting held on 27/2/2019 after goind through the notes provided under this item, material on record, explanations submitted by Dr. Srihari Rao, the Council felt that the Burst Abdomen case is a known complication, as this patient is obese with weal abdominal musculature (height 5.1 and weight 89 kgs). Dr. Srihari Rao had tried to help the patient in Osmania General Hospital particiapting as a part of surgical team for second surgery. But the patient left the hospital against the medical advice and they kept on changing the hospitals against the medical advices. However, Dr.Srihari Rao is cautioned not to operate such high risk cases in hospitals with limited facilities. Therefore, the General Body has accepted the recommendation of Executive Committee to warn Dr.Srihari Rao and the case is closed". 13. In view of the above, the decision of the General Body of Telangana State Medical Council is final and binding as it is an autonomous body. 14. It is needless to say that the criminal complaint lodged against the petitioners by the 2nd respondent is entirely different. In view of failure to adhere to the principles laid down by the Apex Court, prior to registration of crime in this case, this Court is of the opinion that it is fit case to quash all further proceedings, in Crime No. 86 of 2014 dtd. 28/1/2014 on the file of Sanjeevreddy Nagar Police Station, Hyderabad. 15. In the result, this Criminal Petition is allowed. Pending miscellaneous applications, if any, shall stand closed.