CRL.M.C.No.2445/2008 Page 1 of 36 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C.No.981/2007 % Date of decision : 24.10.2008 Dr.Ritu Rawat and Another ….… Petitioners Through: Mr.Siddharth Luthra, Sr. Advocate with Mr.Samarjit Pattnaik, Mr.Jai Singh and Ms.Pallavi Sharma, Advocates for the petitioner.. Versus Tej Singh and Others ......... Respondents Through : Ms.Rebecca John, Advocate for the respondents. SI G.S. Rawat, I.O., P.S. Sarita Vihar. CORAM :- * HON’BLE MR. JUSTICE ANIL KUMAR 1. Whether reporters of Local papers may YES be allowed to see the judgment? 2. To be referred to the reporter or not? YES 3. Whether the judgment should be reported YES in the Digest? ANIL KUMAR, J. * 1. The petitioners, Dr.Ritu Rawat, Medical Superintendent, Indraprastha Apollo Hospitals and Dr.Rajeev Puri, Consultant ENT seek quashing of complaint in case No.495/1/2007 and orders dated 2nd CRL.M.C.No.2445/2008 Page 2 of 36 March, 2007 and 17th March, 2007 passed in the said complaint case under Section 304(II)/304A/34 IPC. 2. The complainants are respondents No.1 & 2, grandfather and mother of Late Aditya Pal who was suffering from Recurrent Laryngeal Papillomatosis. He was undergoing treatment at Indraprastha Apollo Hospital since November, 2004 and he underwent multiple laserisation of his papillomata on 25th November, 2004, 7th March, 2005, 22nd April, 2005 and 28th July, 2005. 3. The respondents contended in their complaint that on 3rd October, 2005 late Aditya Pal was again admitted in Indraprastha Apollo Hospital and during the procedure one of the pulses caused a luminescence in the airway leading to withdrawal of the procedure as the deceased suffered laser burns in the airway and he was shifted to ventilator support in Paediatric Intensive Care Unit (PICU). For the laser burns during the procedure, he was stabilized initially in O.T and then shifted to ICU for further management where he was put on mechanical ventilator and allegedly started on IV antibiotics and vigorous supportive care (inotopes and IV fluids). CRL.M.C.No.2445/2008 Page 3 of 36 4. The complainants have alleged that the child continued to remain under the treatment till 26th October, 2005 on which day he ultimately expired. It has been contended that the Trachestomy suction was found to be blood stained and volume was increasing. The complainants categorically asserted that the laser equipment operated by petitioner No.2 and maintained by petitioner No.1 and other accused, Indraprashtha Medical Corporation Limited and Anne Moncure, Managing Director, was unfit and defective. It was contended that its poor upkeep and maintenance along with deficient knowledge in running the machine, both at the time of procedure during its normal usage and after its mall-function during the course of operation, caused serious burn injuries. Some of the relevant allegations made in the complaint under Section 200 of Code of Criminal Procedure against the petitioners are as under:- “6. That the laser equipment operated by the accused No.4 and maintained by accused Nos.1-3 was unfit and defective. Its poor upkeep and maintenance along with deficient knowledge in running the machine both at the time of procedure during its normal usage and after its malfunction during the course of operation caused serious burn injuries leading to a hole in the traches of the child Aditya Pal which led to further secondary complication and his untimely death. 7. That the accused No.1 is a company running Indraprastha Apollo Hospital and Accused No.2 is its Managing Director whereas accused No.3 is its Medical Superintendent and both the accused No.2 and 3 are directly and vicariously responsible for the day to day affairs, maintenance and upkeep of the hospital, its equipments and further to ensure that the services being CRL.M.C.No.2445/2008 Page 4 of 36 rendered are upto the mark and of good standard quality as per established medical norms. 8. That accused No.4 who performed the procedure was criminally negligent and incompetent to carry the operation of the given nature. Moreover, due to grossly negligent and inapt handling of the situation, the child was not treated properly and rather suffered serious injuries leading to his death at his hands. 9. That even after the serious burn injuries which resulted from culpable negligence at the hospital there was dismal failure to take necessary care warranted by the situation having arisen from lack of exercise of proper care and due precaution incumbent on the accused. The child was ignored, no proper treatment was offered and eventually the child expired due to the acts and omissions of the accused. In fact, the attending doctor lacked the kind of skill required for handling such spoilt cases as also requisite remedial treatment was not administered despite the complainant having agreed and offered to bear all possible expenses to save the most precious life of the only son and the only hope of a widowed mother.” 5. The respondents no.1 & 2 has categorically asserted that the petitioner No.2 was grossly negligent and his inapt handling of the situation, as the child was not treated properly and he suffered serious injuries and even after that he was not looked after properly, ultimately led to his death. The respondents are categorical that even after the serious burn injuries which resulted from culpable negligence there was dismal failure to take necessary care warranted by the situation having arisen from lack of exercise of proper care and due precaution incumbent on the accused. It was stated that no proper treatment was offered resulting in the untimely death of the only son of respondent No.2. CRL.M.C.No.2445/2008 Page 5 of 36 6. After the demise of Aditya Pal post mortem on his body was conducted at AIIMS by a board consisting of Dr.Sudhir Gupta, Associate Professor, Dr.B.L.Chaudhary, Senior Resident and Dr.Raghvinder, Junior Resident who gave a post mortem report No.1313/2005. The relevant observations of the post mortem report as detailed in the complaint are as follows:- “Alleged h/o death in Apollo Hospital while he was receiving laser resection under general anesthesia. Note: However, the alleged blast of laser machine, its model and type, type of anesthesia used and clinical facts should be evaluated by investigating agency. Ante-Mortem injuries over the body: 1.) Therepeutic (during the treatment) Surgical trancheostomy wound of size of 1.5 cm x 4.5 cm red in color. Tracheostomy wound was packed with a gauze piece. 2.) On dissection of neck and wind pipe severe burn injury with granulation tissue, with charred tissue material and carbon soot present from Oropharynx, full supraglottis, larynx and tracheal wall upto C-7 vertebral level. One trachea-oesophageal fistula present on posterior wall of trachea. 3.) Burn healed injury of size 004 x 4 cm present in anterior surface of neck on right side. Another injury (burn) seen 1 cm below injury no.20.5 cm x 0.3 cm. 4.) Healed burn maker on right cheek of size 5 x 1.5 cm whitish in colour. CRL.M.C.No.2445/2008 Page 6 of 36 Other findings:- 1) Pleural Cavity: Serosanginous fluid/oedematous/congested 2) Lungs: pus oozing on pressure 3) Burn healed injury of size 0.4 x 4 cm present in anterior surface of neck on right side. Another injury (burn) seen 1 cm below injury no.20.5 cm x 0.3 cm. 4) Healed burn mark on right cheek of size 5 x 1.5 cm whitish in colour. 5) Other findings i) Pleural Cavity: Serozanguinous fluid/oedematous/congested. Pleural cavity is jhilli kind of thing which surround lungs, when it gets infected it discharge fluid (serosanguinous) oedema is swelling, congestion is increase of blood supply a normal body response. ii. Lungs: Pus oozing on pressure (lung infection). Cause of Death Extensive ante-mortem laser burn injuries to:- iii. Oropharnx iv. Nasopharnx v. Suppraglottis vi. Larngeal Cavity vii. Trachea upto cervical C-7 level Resulting into R.T.I (Respiratory Track Infection), Lung Infection with Septicaemia. Opinion The mentioned burn injury which is primary cause of death was unwarranted. This speaks failure of taking required precautions, care and skill in adopted procedure. CRL.M.C.No.2445/2008 Page 7 of 36 This is res ispa loquitur/a case of gross medical negligence (common man language of Medical finding during the post mortem) Ante-mortem injury over body:- 1. Therapeutic (during treatment) Surgical tracheostomy wound of size of 1.5 cm x 4.5 cm red in colour. Tracheostomy wound was packed with a gauze piece.” 7. The complainant further asserted that the reference was made to Delhi Medical Council but the same was not dealt with properly and since no action was initiated against the petitioners they filed the complaint under Section 200 of Code of Criminal Procedure, 1973 and sought action against the petitioners for complaints under Section 304(Part-II), 304A/34 IPC. 8. On 3rd March, 2007 the learned Metropolitan Magistrate passed the following order:- “Fresh complaint received by way of assignment. It be checked and registered. I take cognizance. Complainant with the learned counsel Sh.Puneet Mittal. Heard. As it is submitted by the counsel that a complaint was made to the SHO P.S.Sarita Vihar regarding the death of child Aditya Pal due to gross medical negligence of the accused persons but no action was taken by the police. Issue notice to the SHO P.S.Sarita Vihar to give the status report. The copy of the complaint is supplied to constable Ratan. CRL.M.C.No.2445/2008 Page 8 of 36 Put up for 17.3.2007 at 2 PM at the request of the counsel.” 9. After the complaint was filed, the learned M.M directed the SHO, P.S. Sarita Vihar to give the status report. After the post mortem report the police had sought an opinion from All India Institute of Medical Sciences, pursuant to which a board was constituted to examine the laser machines and treatment papers of the deceased. The medical board comprised of Dr.Sudhir Bahadur, Professor of ENT, Chairman; Dr.Adarsh Kumar, Assistant Professor of Forensic Medicine, Member; Dr.Biplab Mishra, Assistant Prop. of Surgery; Mr.S.K.Kamboj, Senior Technical Officer and Dr.Raja Dutta, Department of Hospital Administration which held various meetings on 12th June, 18th July, 25th July and 29th July, 2006. The medical board also sought few clarifications from Dr. Sudhir Gupta who was the Chairman of the board which had conducted post mortem on the body of the deceased. The medical board also obtained the YAG Laser Systems MY30/MY60 which was evaluated by Sh.S.K.Kamboj, Senior Technical Officer. The report dated 18th July, 2006 was given by a Senior Technical Officer of the All India Institute of Medical Sciences stipulating that he had received the laser machine Model No.Martine MY60 Serial No.MY- 600102951035 with its accessories on 15th June, 2006 for examination from Sub Inspector Hari Prakash, Police Station Sarita Vihar, New CRL.M.C.No.2445/2008 Page 9 of 36 Delhi. On 17th July, 2006 machine was tested and it was found to be functioning normally and all the accessories were also found to be working properly and correct as per its functions. 10. The report dated 29th July, 2006 was given by All India Institute of Medical Science by the Medical Board of All India Institute of Medical Sciences consisting of Dr.Sudhir Bahadur, Professor of ENT; Dr. Adarsh Kumar, Assistant Professor of Forensic Medicine; Dr. Biplab Mishra, Assistant Professor of Surgery; Mr.S.K. Kamboj, Sr. Technical Officer and Dr. Raja Dutta, Department of Hospital Administration. The Medical Board in the said report stipulated that in view of the post mortem report No. 1313/05 of the deceased and of the request of Investigating Officer by letter No.NIL dated 5th June, 2006, few clarifications were to be sought from Dr.Sudhir Gupta, Associate Professor of Forensic Medicine, who was the Chairman of the Board which had conducted the post-mortem and had held the case to be res ipsa loquitur/a case of gross medical negligence and requested Dr.Sudhir Gupta to attend the meeting on 18th July, 2006. Despite the request of the Medical Board to Dr.Sudhir Gupta to appear, he did not attend the meeting. Thereafter, the Board obtained the legible and complete copy of post mortem report and after considering the post mortem report and the report of technical examination of YAG Laser System opined as under:- CRL.M.C.No.2445/2008 Page 10 of 36 “Apparently the patient suffered from recurrent laryngeal papilloma. It is well known that this condition affects young children and is treated by micro-laryngeal surgery using conventional instruments or laser. There is some evidence in literature to suggest that use of laser may result in fewer recurrences. However, there is always an inherent risk in using laser surgery and accidental laser fire is a known but rare complication, even if the machine is functioning normally (as appears to have happened in the instant case). Nevertheless, there are standard laid down guidelines to prevent and manage these complications.” 11. On the basis of representation from the office of DCP Headquarters, Delhi, forwarded by Government of NCT, a hearing was given to the accused and the complainant/respondent No.1 and 2 by the Delhi Medical Council and on the basis of these statements and the record, a report dated 15th September, 2006 was also given. It was held that laser spark which occurred in the airway at the time of surgery which caused burn injuries in the airway though rare is known to occur with the incidence of 0.5% to 1.5% in the USA. Delhi Medical Council board of Dr.Praveen Khilani, Dr.K.Lathita and Dr.Sanjay Durari held that post explosion treatment including treatment provided in PICU and the ward was as per the standard treatment protocol. It further opined that explicit/specific information about probability of such complications during such procedures should be made available to the patient in the consent form. “It has been observed that the preoperative, intraoperative and postoperative treatment provided to Master Aditya was fully in consonance with the known standard protocol of CRL.M.C.No.2445/2008 Page 11 of 36 treatment in such cases. The laser equipment used was also in working order as per inspection report dated 9.11.205. It was unfortunate that after having successful laser resection in four consecutive occasions, accidental fire occurred during the fifth session which resulted in laser burn of the airway of Master Aditya leading to secondary complications and he finally succumbed to them. After going through all the records and also examining the doctors associated with this case, the Council did not observe any negligence in the management of the entire episode. The laser spark which occurred in the airway at the site of surgery and which caused burn injuries in the airway, although very rare, is known to occur with the incidence of 0.5% to 1.5% in the U.S.A. Post explosion treatment including treatment provided in the PICU and the ward was as per standard treatment protocol. However, it is felt that explicit/specific information about probability of such complications during such procedures should be made available to the patient in the consent form. The same may be recommended to the Government in all Delhi hospitals. 12. The SHO filed the status report before the learned M.M on 17th March, 2007. The SHO relied on opinion of the Board of Directors constituted by All India Institute of Medical Sciences which was obtained on account of adverse remarks regarding cause of death in the post mortem report. According to the report, the Board of Doctors had examined the laser machine and treatment papers of the deceased and on inspection laser machine was found to be in normal working condition. The SHO had also referred to the opinion obtained from Delhi Medical Council which had opined that the case of the deceased was of accidental burn. On the basis of these reports, it was stated that the Doctor who had treated the patient is guilty for treatment procedure CRL.M.C.No.2445/2008 Page 12 of 36 even though the Medical Council of Delhi has not observed any negligence in the management of the entire episode. 13. The status report was filed before the learned M.M along with the report of the medical board and technical examination report. The learned Magistrate after considering the status report and the allegations made in the complaint and the post mortem report issued by the medical board of All India Medical Sciences held that there is sufficient material on record which suggests that there is a commission of cognizable offence and, therefore, SHO P.S.Sarita Vihar was directed to register the FIR by its order dated 17th March, 2007. The order dated 2nd March, 2007 and 17th March, 2007 along with the complaint are challenged by the petitioners who are accused Nos.3 & 4 in the complaint filed by respondent Nos.1 & 2. 14. The petitioners seek setting aside of order dated 2nd March, 2007 and 17th March, 2007 on the grounds that they are incorrect and bad in law. It was also asserted that the learned M.M after taking cognizance under Section 200 of the Criminal Procedure Code and issuing a direction for filing of inquiry/status report under Section 202 of the Criminal Procedure Code could not have reverted to the pre-cognizance stage and issued directions under Section 156(3) of Cr.P.C by order CRL.M.C.No.2445/2008 Page 13 of 36 dated 17th March, 2007 and, therefore, the orders and procedures are bad in law. The petitioners further asserted that the findings of the post mortem relied upon by the complainant were preliminary in nature and rather records a note that the investigating agency should examine the machine and anesthesia and clinical facts and since the findings of the post mortem board were not findings of the medical board constituted later on and the opinion of Delhi Medical Council pursuant to the representation from the office of DCP reflect that there was no negligence and the death occurred due to unforeseen complications as recorded in the medical literature, therefore, there is no justification for filing the complaint or invoking Section 304(II) of IPC as the ingredients of that provisions are not made out. The petitioners counsel contended that the doctor‟s duty is to try and cure and there is no element of certainty in the treatment. Since there is an absence of commission of any cognizable offence the order dated 2nd March, 2007 and 17th March, 2007 ought not to have been passed. 15. Learned counsel for petitioners has relied on Jacob Mathew v. State of Punjab & Another (2005) 6 SCC 1; Dr. G.S. Chandraker v. State & Another (2007) 3 JCC 2407; Tula Ram and Others v. Kishor Singh (1977) 4 SCC 459; Mohd. Yousuf v. Afaq Jahan (Smt.) & Another (2006) 1 SCC 627; State of Assam v. Abdul Noor and others (1970) 3 SCC 10; Crl.M.C. No.831/2008 titled Dr.Narendra Nath v. State and Another CRL.M.C.No.2445/2008 Page 14 of 36 decided on 8th April, 2008; and S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd. and Others (2008) 2 SCC 492, to contend that there is no medical negligence attributable to the petitioner and since the Magistrate had taken cognizance by order dated 2nd March, 2007, he could not proceed under Section 156(3) of the Criminal Procedure Code and the option left with the Magistrate was to proceed under Chapter 15 of the Criminal Procedure Code. 16. Per contra, learned counsel for the respondents No.1 and 2 has relied on Sanjay Bansal & Another v. Jawaharlal Vats & Others Air 2008 SC 207 and Dilawar Singh v. State of Delhi AIR 2007 SC 3234 to contend that for taking cognizance, the Magistrate must not only apply his mind to the contents of the petition but after doing so must proceed in a particular way as indicated in Chapter 15 and thereafter send it for inquiry and report under Section 202. Where Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of Chapter but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, it cannot be inferred that he had taken cognizance of the offence. Learned counsel also relied on Mohanan v. Prabha G. Nair and Another AIR 2004 SC 1719, to contend that the respondents No.1 and 2 are entitled for full opportunity to produce evidence before the Magistrate regarding the negligence of the doctor CRL.M.C.No.2445/2008 Page 15 of 36 which could be ascertained only by allowing the respondents to produce evidence to negate the allegations by the petitioners. 17. It is no more res integra that negligence in law means a failure to do some act which a reasonable man in the circumstances would do or the doing of the same act which a reasonable man in the circumstances would not do; and if that failure or the doing of the act results in injury, then there is a cause of action. In an ordinary case, it is generally judged by the action of an ordinary man, however, where special skill or competence is required, the test is not the action of an ordinary man but it is the test of the ordinary skilled man exercising and professing to have that special skill. The duty of care required of a physician or a surgeon or one possessing special skills was considered by McNair, J., in Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582 in the following terms: “I must tell you what in law we mean by „negligence‟. In the ordinary case which does not involve any special skill, negligence in law means a failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is generally said you judge it by the action of the man in the street. He is the ordinary man. In one case it has been said you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But 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 CRL.M.C.No.2445/2008 Page 16 of 36 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 that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. I do not think that I quarrel much with any of the submissions in law which have been put before you by Counsel. Mr Fox-Andrews put it in this way, that in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if he conforms with one of those proper standards, then he is not negligent. The test enunciated in Bolam (supra) was also followed and approved by the Apex Court in Jacob Mathew (supra) in the following terms: 24. The classical statement of law in Bolam case9 has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before the courts in India and applied as a touchstone to test the pleas of medical negligence. In tort, 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 a defendant charged with negligence acted in accord 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