IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.04.2010 CORAM: THE HON'BLE MR.JUSTICE C.T. SELVAM Crl.O.P.No.20443 of 2008 1. Christian Medical College and Hospital rep. By its Medical Superintendent 2. Dr. D.J.Christopher 3. Dr. Debashish Danda 4. Dr. Alice George 5. Dr. V. Surekha ..Petitioners/ Accused 1 to 5 Vs. 1. State rep. by Inspector of Police Vellore North (L&O) Police Station, Vellore. ..Respondent/Complainant 2. P. Joybell ..2nd Respondent (2nd Respondent impleaded as per Order of this Court dated 20.01.2009 in MP.No.4 of 2008) PRAYER: This Petition is filed under Section 482 of the Code of Criminal Procedure, praying to call for the records in STC.No.224 of 2008 on the file of Judicial Magistrate IV, Vellore and quash the same. (Prayer amended as per Order of this Court dated 28.08.2008 in MP.No.3 of 2008) For Petitioners : Mr. V.T. Gopalan, SC Mr. V. Abudukumar Rajarathnam For Respondents : Mr. J.C. Durairaj, GA (Crl.side)for R1 Mr. M. Ajmal khan for R2 https://hcservices.ecourts.gov.in/hcservices/ O R D E R This petition seeks to quash the charge sheet in case pending in STC No.224/2008 on the file of the Judicial Magistrate, Vellore. The first petitioner is Christian Mission Hospital, Vellore represented by its Medical Superintendent and the petitioners 2 to 5 are the Doctors attached thereto. The second respondent is the de- facto complainant. 2. The case against the petitioners is summed up in the final report filed by the first respondent and it is best to reproduce the same. “The marginally noted accused A1 is the Christian Medical College and hospital situated on the Ida Scudder Road, Vellore and represented by its Medical Superintendent. A2 to A4 are the Doctors working in the said Hospital in medicine department in Medicine Units II and III. A5 is working as a Doctor in the said hospital in O.G. Unit No.III. A6 since deceased was working as a Doctor in the said hospital in O.G.Unit No.I. The informant Joybell is the resident of D.No.50/73, Rajamanyapuram, Arumuganeri, Thoothukudi District and she is the regular patient of the A1 Hospital assigned with patient card No.218854-B for taking treatment for her disease Systemio Lupus Erythematosus (SLE) with small versal vaxulities from 22.08.1994 in medicine unit No.II under the accused A2. During the treatment in medicine Unit No.II, the said A2 negligently abandoned the follow up treatment for SLE and advised the informant to take B-Flex fort tablets. Due to the above said acts of the accused A2 resulted in non- healing of ulcer over both legs of the informant with tropic changes and again raising the limits of SLE. During the course of the same transaction while the said informant approached the A1 Hospital the said A3 without applying his mind on the previous medical report negligently recommended to the said informant to take Cyclophophamide 100 mg tablets daily and wysolone 50 mg tablets on alternative days along with some other drugs from 13.11.1997 which ultimately resulted in an early menopause to the said informant. During the course of the same transaction while the said informant approached the A2 Hospital, the said A3 referred the said informant to the O.G.for treatment of early menopause on 30.09.1999 as general patient. Since the FSM value was estimated very high according to blood test the informant made private appointment with the accused A6 since deceased. The said since deceased accused A6 https://hcservices.ecourts.gov.in/hcservices/ negligently under the due threat of fracture of bones started hormones replacement therapy (HRT) for the said informants for early menopause complication with Premarin 0.625 mg tablets and meprapte 2.5 mg tablets once daily. The said since deceased accused A6 at the time of starting HRT treatment neither informed the informant about the risk of the breast cancer nor advised to take mammogram periodically to check the development of the breast cancer nor advised to self check her breast for lumps and negligently omit in exercising the due care and caution in starting HRT treatment. During the course of the same transaction while the informant approached the A1 hospital on 17.04.2000 the accused A4 and the since deceased accused A6 without evaluating the treatment condition of the said informant, they negligently continued the HRT treatment without suggesting mammogram periodically and advised the informant to take HRT till her 50 years of age. Thereafter the said accused A3 and A5 negligently directed the said informant to continue her treatment as General Patient in O.G. General department doctors (name not known) and as per the negligent direction of A3 and A5 they mechanically continued the HRT treatment. The said accused A3, A5 along with name not known doctors of the O.G General have committed gross negligence in continuing HRT treatment without taking mammogram. The above said accused who treated the said informant are duty bound to make HRT to have mammogram compulsorily done every year to rule out the complication due to therapy HRT. Due to the negligent act of the above said accused shall resulted in cancer and thereby in danger to the life of the said informant like infiltrating duct carcinoma grade II in the right breast and lost her right breast. Thus on the above said facts, the accused A1 to A6 appears to have committed an offence punishable u/s.337 and 338 IPC.” 3. I have heard Mr. V.T. Gopalan, learned senior counsel appearing on behalf of Mr. V. Abudukumar Rajarathnam for the petitioner, Mr. J.C. Durairaj, Government Advocate (Criminal side) for the first respondent and Mr. M. Ajmal Khan for the second respondent and also have perused the available materials. 4. The contention of the learned Senior Counsel for the petitioners is as follows: https://hcservices.ecourts.gov.in/hcservices/ The second respondent had preferred a complaint to the first respondent on 02.11.2005. Aggrieved by the inaction of the first respondent thereon, the second respondent had moved Crl. O.P. No. 19634 of 2006 before this Court, which under orders dated 24.01.2007, after placing reliance on the decision of the Apex Court in Ramesh Kumari v. State (NCT of Delhi) & Ors., 2006 (2) Supreme 243 for the preposition that it was the mandatory duty of the police officer to register the case on a complaint if a cognizable offence be made out thereon, observed as follows: "6. It is also made clear that in the event of the registration of the case as the second respondent satisfies that the allegation contained in the complaint constitutes cognizable offence, it is the duty of the second respondent to obtain independent and competent medical opinion preferably from a Doctor in Government service qualified in that branch of medical practice who can given an impartial and unbiased opinion in respect of the alleged medical negligence of the Doctors as per the guidelines of the Hon'ble Supreme Court of India, as held in JACOB MATHEW V. STATE OF PUNJAB reported in 2005 SCC (CRI.) 1369 that, '52. .... The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam test to the facts collected in the investigation ....' 7.In the event of registering the case, after satisfying that the allegation contained in the complaint constitutes cognizable offence, the second respondent police is directed to file the final report as expeditiously as possible and more particularly within a period of three months from the date of receipt of copy of the copy of this Court.” It was thereupon that first respondent registered a case in Cr.No.73/2007 for offences u/s. 336, 337 and 338 IPC. After investigation a charge sheet has been filed and as informed supra. 5. Learned senior counsel submitted that opinions and perceptions regarding an ailment and the manner of treatment thereof would vary from one Doctor to another. If in the ultimate analysis it was found that a particular course adopted by a Doctor had not got the desired effect or had given an adverse effect still, the Doctor could not be proceeded against and prosecuted on the charge of having https://hcservices.ecourts.gov.in/hcservices/ been criminal in his conduct. It was submitted that a strict guideline had been issued by the Hon'ble Apex Court for prosecution on grounds of medical negligence since otherwise it would be impossible for a medical man to mete out good treatment to a patient. The Hon'ble Apex Court in Jacob Mathew v.State of Punjab & Anr., (2005) 6 SCC 1, had referred in paragraph 29 as follows : "29. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason – whether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being the better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to society.” 6. Learned Senior Counsel for the petitioners, placed heavy reliance on the Jacob Mathew's case as also on the decision of the Hon'ble Apex Court in Martin F.D'Souza v. Mohd. Ishfaq, (2009) 3 SCC 1 and dealt at some length on the said decisions and placed special emphasis on distinguishing negligence that would be actionable in tort and that which would constitute criminal negligence. It was further submitted that as held by the Apex Court in Jacob Mathew's case, negligence to constitute that it would be punishable as a crime had to be gross or of a very high degree. In this regard, reference was made to paragraph 19 of the said case. "19. An of quoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair, J. in Bolam v. Friern Hospital Management Committee, WLR at p.586 in the following words (All ER p.121 D-F) '[W]here 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 the 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.” https://hcservices.ecourts.gov.in/hcservices/ 7. Having made submissions as above, learned senior counsel referred to the order passed by the Medical Council of India on 16.06.2008, wherein it specifically had been found that no case of medical negligence can be substantiated in the present case. It was submitted that the Hon'ble Apex Court in paragraph 104 of Martin F.D'Souza v. Mohd. Ishfaq, (2009) 3 SCC 1's case, has laid down: “104. Hence courts/ Consumer fora should keep the above factors in mind when deciding cases related to medical negligence and not take a view which would be in fact a disservice to the public. The decision of this Court in Indian Medical Assn. v. V.P. Shantha should not be understood to mean that doctors should be harassed merely because their treatment was unsuccessful or caused some mishap which was not necessarily due to negligence. In fact in the aforesaid decision it has been observed, '22. In the matter of professional liability professions differ from other occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control.'” 8. The further contention of the learned Senior Counsel is that, in the instant case the memo of evidence filed along with charge sheet shows that one Dr.C.Vetrivel was to speak of the negligence of the Doctor who treated the second respondent/ defacto complainant. Admittedly, he was the family doctor of the defacto complainant and his field of specialisation is Paediatric care. His opinion necessarily would have to give way to that of the Medical Council of India, which had formed its opinion upon a detailed investigation. The first petitioner Hospital had done its best towards its patient the second respondent/ defacto complainant and neither it nor the Doctors working in it could be held to have committed offences as alleged. In the instant case, it was true that the second respondent/ defacto complainant had developed breast cancer, as a consequence of which a breast had to be removed. But there absolutely is no material to show that such ailment or consequent suffering was the direct result of the treatment given to her. 9. Learned senior counsel also submitted that the second respondent/defacto complainant had first gone to the first petitioner hospital in 1994 and had been treated by such hospital of and on upto 2005. The second respondent/ defacto complainant had been irregular and failed to report to the first petitioner hospital though she was directed to do so and carry out a papsmear and Mammogram test. She had reported after a very long period, when a Mammogram test was taken and symptoms of breast cancer were found. A biopsy test https://hcservices.ecourts.gov.in/hcservices/ conducted on 18.03.2005 had shown 'infiltrating duct carcinoma i.e. suspicious malignancy'. It was only in 2005 that the medical world came to know that prolonged HRT for more than 5 years for persons aged more than 50 years may cause coronary diseases, ovary cancer and breast cancer of lobular type. There are innumerous causes for cancer and the type of cancer caused to the second respondent/ defacto complainant was infiltrating duct in her breast. It cannot be stated that she was affected with breast cancer only because of her treatment with HRT. There was a marked distinction between breast cancer of the lobular type and that of infiltrating duct in the breast. In the circumstances, the prosecution of the petitioners would be an exercise of futility and result in undue harassment of the petitioners. 10. Learned senior counsel further contended that resort to criminal proceedings were misplaced and the same had been taken with the oblique motive of extracting money from the petitioners. In fact, the second respondent/ complainant had moved C.C.No.18/07 before the State Consumer Disputes Redressal Commission and such was the proceeding in which she would have to agitate her grievance and rights, if any. 11. Sri.Abudukumar, learned counsel represented that the primary allegation in the charge sheet was against the 6th accused, who is now deceased and as such no useful purpose would be served through the prosecution of the case. 12. Learned counsel for the second respondent/ defacto complainant would submit that the treatment accorded to her was such, which no medical professional would have provided, that the second respondent had not been put on notice by the first petitioner or the concerned doctor about the likely effects of HRT treatment. No periodical Mammogram had been taken and it was because the second respondent had been put on HRT treatment from 1999 onwards that she had developed cancer, resulting in the loss of a breast. Learned counsel drew the attention of this Court to paragraph 51 and 52 of the judgment of the Apex Court in Jacob Mathew's case wherein, it has sought to introduce a rule of caution in prosecuting medical practitioners on grounds of negligence. There was no absolute bar and the requisites set out in such decision viz., that before proceeding against the doctors/ accused for rash or negligent action or omission of treatment, medical opinion ought to be obtained, had been met in the instant case. It was wrong to state that the second respondent/ complainant had failed to heed the advice of the doctors. In fact the records produced would show that she regularly had been attending at the first petitioner hospital. 13. Learned counsel placed reliance on the decision of the Apex Court in V.Jeganathan & Ors. 2009(1) SCC (Cri.)597, wherein, in paragraph 28 it was observed as follows: https://hcservices.ecourts.gov.in/hcservices/ “28. Keeping in view the facts and circumstances of this case, we are of the opinion that it cannot be said that the materials brought on record by the complainant, even if given face value and taken to be correct in their entirety do not disclose an offence. We say so because there are two sets of opinions; one in favour of the complainant and another in favour of the appellants. Which opinion would ultimately prevail is essentially a question to be determined by the learned trial Judge upon considering the evidence adduced by the parties hereto in their entirety.” Paragraph 24 of such judgment also was relied upon by the learned counsel. "24. The question is as to whether the High Court should have interfered with the order summoning the appellant at this stage. It is now a well-settled principle of law that at the stage of quashing of an order taking cognizance, an accused cannot be permitted to use the material which would be available to him only as his defence. In his defence, the court would be left to consider and weigh materials brought on record by the parties for the purpose of marshalling and appreciating the evidence. The jurisdiction of the courts, at this stage, is limited as whether a case of reckless/gross negligence has been made out or not will depend upon the facts of each case.” 14. Learned counsel contended that, as regards the findings rendered by the Medical Council of India, such body was seized with the issue of non-furnishing of medical records by the first petitioner which was covered by rule 1(3)(2) of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002 and not the merits of the instant case. The present was a case of reckless negligence and when once cognizance had been taken it would be for the petitioners to prove their innocence at the trial. It was further submitted that the statement recorded by the Investigating Officer from one Dr.V.Thirunavukkarasu, Reader and Head of Department in Dermatology, Government Medical College and Hospital, Vellore reveals that the present was that clearly a case of medical negligence. Learned counsel also would submit that the medical Council is not the final authority and the decision of such authority stands challenged in W.P.No.5944/2008, which is now pending. 15. In reply to the submissions made on behalf of the respondent, learned senior counsel would state that it was the duty of the Investigating Officer to obtain opinion of the medical expert in the concerned field as held by the Hon'ble Apex Court in Jacob https://hcservices.ecourts.gov.in/hcservices/ Mathew's case. The primary complaint of the second respondent is of cancer and the consequences viz. loss of breast on account thereof, the investigating officer had recorded the statement of two doctors. One, a Government Doctor in the field of Dermatology and the other is the personal physician of the second respondent/defacto complainant whose field of specialisation was child care. This hardly would suffice. Even after detection of the cancer, the second respondent/ defacto complainant had the breast removal done only at the first petitioner hospital. Right upto such period, there had been not so much as a murmur from the second respondent/ complainant. 16. I have considered the rival submissions. It is necessary to state that the contentions of Mr.Abudukumar, though brief are quite relevant. From a reading of the charge sheet it is clear that the primary allegations of negligence are against the sixth accused, who now is no more. It is the sixth accused who started the petitioner on HRT treatment and it is against him that it is alleged that necessary warnings and information was not afforded to the complainant. The other accused doctors have followed up on the treatment that was commenced by the sixth accused. Be that as it may, it is to be seen if the opinions obtained by the investigating officer in the instant case satisfy the parameters laid down by the Honourable Apex Court in Jacob Mathew’s case. As has been pointed out, one opinion obtained is that of the family doctor of the complainant, whose field of specialisation is child care and the other is that of a dermatologist. What we are concerned with the instant case is whether the complainant came to suffer breast cancer owing to the negligence of the doctors accused. Clearly, the investigating officer has not obtained the opinion of the specialist in the particular field. While so, it cannot be said that the primary requirements set forth by the Apex court in Jacob Mathew’s case have been met. As against this, we find the decision of the Ethics Committee of the Medical Council of India that no case of medical negligence can be substantiated against the Dr.Anand Job, previous Medical Superintendent or any other doctor of CMC Hospital, Vellore. This decision of the ethics committee has been arrived at after hearing either side and on the detailed consideration of the matter. This decision has been communicated under letter dated 16.06.2008. The question that next arises for consideration is whether this Court could act upon the same given the position that the charge sheet in the case has been filed earlier on 2.5.2008. This court would consider it appropriate to place reliance upon the finding of the Hon'ble Apex Court in Rukmani Narvekar v. Vijaya Satardekar & Ors. (2008) 14 SCC 1, wherein it is held that in proceedings under Section 482 CrPC the Court is free to consider materials that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained, towards avoiding undue hardship to the petitioners herein. The contention that there absolutely is no material to find that the incidence of breast cancer suffered by the complainant was the direct effect of the treatment meted out to her https://hcservices.ecourts.gov.in/hcservices/ by the accused, merits acceptance. It is a different matter that the complainant has chosen to challenge the findings of the ethics committee of the medical Council of India. To require the petitioners to await the outcome of the proceedings wherein the finding is under challenge would be to permit the Damocle’s sword to hang over the head of the petitioners, which again is against the intent of the Honourable Apex court conveyed in Jacob Mathew and Martin D’souza cases. 17. For the reasons stated above, this petition shall stand allowed. The proceedings in STC.No. 224 of 2008 on the file of Judicial Magistrate IV, Vellore shall stand quashed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar avr To 1. The Judicial Magistrate No.IV, Vellore. 2. -do- Through The Chief Judicial Magistrate, Vellore. 3. The Inspector of Police, Vellore North (L&O) Police Station, Vellore. 4. The Public Prosecutor, High Court, Madras. + 1 c.c. to Mr. Abudukumar Rajarathinam, Advocate. S.R.No.24311. + 1 c.c. to Mr. M. Ajmal Khan, Advocate. S.R.No.23342. Crl.O.P.No.20443 of 2008 RSM (CO) GSK 21.04.2010. https://hcservices.ecourts.gov.in/hcservices/