IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 5881 of 2009 Date of Decision: 5.5.2011. Dr. H.S. Pannu & others --Petitioners Versus Registrar, Punjab & Haryana High Court, Chandigarh & another --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. M.S. Khaira, Sr. Advocate with Mr. D.S. Randhawa, Advocate for the petitioners. Mr. P.S. Hundal, Sr. Advocate with Mr. Dinesh Trehan, Advocate for respondents. *** PERMOD KOHLI.J (ORAL) Petitioners in this petition are all qualified doctors in various disciplines. Petitioner no.1 is a Senior Cardiac Surgeon and is Former Head of Cardiac Surgery, Escorts Heart & Super Speciality Institute, Amritsar. Petitioner no. 2 is a Senior Cardiologist and Former Head of Interventional Cardiology, Escorts Heart & Super Speciality Institute, Amritsar. Petitioner no.3 is a Professor of General Surgery and retired Head of Department of General Surgery, Medical College, Amritsar. He is presently Director of Surgical Wing of Parvati Devi Hospital, Amritsar. Petitioner no.4 is presently working as Medical Superintendent & Head of Non-Invasive Cardiology in Escorts Heart & Super Speciality Institute, Amritsar. Through the medium of this petition petitioners have sought quashing of complaint (Annexure P-6) filed by respondent no.2, the complainant in the court of Judicial Magistrate, Amrtisar titled as S. Sarabjit Singh Bhullar, Advocate, District Courts, Amrtisar Vs. Dr. H.S. Pannu & others as also order dated 11.2.2009 (Annexure P-8), whereby petitioners CWP. No. 5881 of 2009 -2- have been summoned to appear before the Magistrate to face the trial under Section 304-A of I.P.C. Briefly stated, the facts leading to the filing of the present petition are being noticed hereunder:- Wife of respondent no.2 was earlier admitted in Dhingra Hospital, Amritsar, wherefrom she was referred to Nayyar Hospital, Amritsar and admitted there on 14.2.2006. She was again shifted to Escorts Heart & Super Speciality Institute, Amritsar on 22.2.2006. The patient died on 14.4.2006 at 9.15 P.M. After the death of the patient, respondent no.2 made an application dated 16.5.2006 to the S.S.P.,Amritsar for registration of a case against the doctors (petitioners herein) for causing death of his wife by negligence. It is stated that the S.S.P marked an inquiry on the application of respondent no.2 to the Principal Govt. Medical College, Amritsar who constituted an Inquiry Committee vide letter dated 23.11.2006. This inquiry was conducted by a team of three doctors i.e. Dr. Mrs. J.P.K. Shergill, Professor & Head, Department of Surgery, Dr. K.S. Sidhu, Professor & Head Cardio Thoracic Surgery and Dr. P.S. Sandhu, Professor, Department of Medicines. This Committee after obtaining written statements from the doctors, accused of alleged negligence, after examining the record of the treatment of the patient and making inquiries at various levels of the employees etc. vide its report dated 4.4.2007 recorded following findings and conclusion:- “ CONCLUSION The Committee has gone through the medical records, the written statements of doctors and clarifications sought from the concerned. The Committee is of the view that treatment given was on standard medical and on right scientific lines during her course of stay in the hospital. It appears that family was under severe emotional stress due to chronic and CWP. No. 5881 of 2009 -3- prolonged illness of their patient. The attendants of the patient were well informed at any stage about the treatment being given by the doctors on daily basis during their stay in hospital. The treatment was given in consultation and coordination by various specialists concerned. There seems to be no delay or deficiency in the services provided nor any lack of competency at any level. There was no act of negligence or rashness of any type by the doctors during the course of stay of patient in the hospital. The doctors concerned did their best and put in all their effort in order to save the life of the patient. The death of the patient had probably led the family and the relatives to believe that doctors concerned were negligent. The committee expresses its sympathies with the family and relatives of the patient but at the same time the doctors, Dr. Puneet Verma, Dr. H.S. Pannu, Dr. H.P. Singh, Dr. B.S. Sidhu can not be accused of any negligence. Sd/- Dr. Mrs. J.P.K. Shergill M.S. Prof. & Head Deptt. Of Gen Surgery & Principal, GMC Amritsar (Chairperson) Sd/- Dr. K.S. Sidhu M.S. M.Ch.,DNB Prof. & Head Deptt. Of CTVS GMC Amritsar (Member) Sd/- 4.4.2007 Dr.P.S. Sandhu M.D. Professor Deptt. Of Medicines G.M.C. Amritsar (Member)” It seems that respondent no.2 was not satisfied with the opinion of the Committee of Doctors and filed a criminal complaint in the court of Judicial Magistrate Ist Class, Amritsar alleging negligence against the treating doctors. This complaint was filed under sections 304-A, 465, 471 and 120-B of the I.P.C. Learned Magistrate recorded the statements of complainant (respondent no.2 herein),one Suresh Chander, Junior Assistant from the Escorts Heart & Super Speciality Hospital, Amritsar, who brought the summoned record, Gurpreet Kaur daughter of the complainant and one Dr. Rajinder Bansal and summoned the petitioners to face the trial under CWP. No. 5881 of 2009 -4- Section 304-A of I.P.C vide the impugned order dated 11.2.2009 (Annexure P-8). Respondent no.2 has filed the detailed written statement to this petition and the petitioners have even filed a replication thereto. Respondent no.2 had also filed a consumer complaint, however, the fate of the same is not disclosed in the pleadings. The relief claimed in this petition is only in respect to initiation of criminal proceedings against the petitioners by the respondent no.2, the complainant. It is admitted position between the parties that the patient was admitted on the intervening night of 21/22.6.2006 at about 12:23 A.M in Escorts Heart & Super Speciality Institute, Amritsar with the complaint of minor brain stroke on the same night. Patient was shifted to Bed No.307 on 23.2.2006. It is alleged that on the evening of 28.2.2006 one of the petitioners namely Dr. Puneet Kumar Verma insisted for Angiography upon the patient and asked for consent of the patient's daughter namely Gurpreet Kaur, who was present in the hospital and such consent was obtained on a blank paper through the nurse, though, patient was conscious and was in a position to give consent herself. It is further alleged that the patient was taken to Cath Lab. at about 5:30 P.M on the same day. On the same evening Dr. Puneet Verma told the daughter of the complainant that stunting is to be done which will cost approximately Rs.2 lacs. It is alleged that again at 8:30 P.M Dr. Verma again called Gurpreet Kaur and asked for an additional arrangement of Rs.2 lacs for performing bye pass surgery due to change of the decision by the doctors. When the complainant, his daughter and son reached the Cath Lab., Dr.Sonika Thakral, Anaesthesiologist was coming out of the Lab. It is alleged that she was nervous and in a perplexed condition. She, however, told the complainant that the condition of the CWP. No. 5881 of 2009 -5- patient is OKAY. It is further alleged that after a few minutes Dr. Puneet Verma and Dr. H.S. Pannu came out of the Cath Lab and told the children of the complainant that some problem had emerged during insertion of the artificial pacing wire in the right ventricle of the heart and due to wrong insertion of the wire internal bleeding has started. They asked for the consent for further procedures. Initially oral consent was given, however, subsequently a written consent was signed by the daughter and son of the complainant. It is alleged that on 11.3.2006 the condition of the patient deteriorated and she was again put on ventilator and became unconscious. The doctors failed to assign any reason, though, it was explained that due to lowering of blood pressure the oxygen did not reach the brain of the patient which caused damage to the brain. The patient remained unconscious till 14.4.2006 when she breathed her last at 9:15 P.M. It has been further alleged in the complaint that one Dr. Bhola Singh Sidhu was also called in the hospital to perform some surgery due to damage caused to the liver of the patient. Complainant met Dr. Bhola Singh Sidhu on 29.4.2006. A statement is attributed to Dr. Bhola Singh that he has admitted that injury was caused to the liver while performing the procedure. It is further alleged that doctors have forged and fabricated the hospital record by making certain bogus entries and they also destroyed the real evidence by doing so. According to the complainant, one Dr. T.S. Kaler, Doctor of Escorts Hospital, Okhla, New Delhi examined the patient on 1.4.2006 and declared that hypoxic injury is not ruled out and it is due to the negligence of the doctors. It is further alleged that on 6.4.2006 Dr. Rajinder Bansal, Neuro Surgeon, D.M.C., Ludhiana also visited Amritsar and also declared that the brain of the patient is damaged and patient is on a critical stage. CWP. No. 5881 of 2009 -6- In the written statement the complainant has reiterated the allegations made in the complaint, whereas in the replication filed the petitioners have not only denied the allegations but also explained the circumstances under which the urgent surgery on the patient was required. It has also been disclosed that the patient needed urgent surgical intervention but the respondent no.2 interfered in the treatment of the patient and refused to given consent. Petitioner no.2, thus talked to the District Magistrate (Deputy Commissioner) and with his nod proceeded with the treatment of the patient. Both the sides have relied upon various judgements. In a case reported as AIR 2005 SC 3180 titled as Jacob Mathew V. State of Punjab and another the Hon'ble Supreme Court was examining the question of criminal negligence of a doctor and his culpability. While defining the expression “negligence”, following three constituents of negligence have been laid down:- “ 11. (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage.” After examining the various duties of a professional, his competence and skill the Hon'ble Supreme Court summed up its conclusion in para 49 of the judgement as under:- “ 49. (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 CWP. No. 5881 of 2009 -7- 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. 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. (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. CWP. No. 5881 of 2009 -8- (6) The word 'gross' has not been used in Section 304-A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304-A of the IPC has to be read as qualified by the word 'grossly'. (7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.” After laying down the above parameters to determine the culpability of a doctor for a criminal offence, Hon'ble Supreme Court further depricated the practise of entertaining a private complaint without prima facie evidence before the Court in the form of a credible opinion from a doctor qualified in the same branch. Relevant observations are as under:- “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 Bolam's test to the facts collected in the investigation.” In a latter judgement reported as AIR 2009 SC 2049 titled as Martin F.D'Souza v. Mohd. Ishfaq the Hon'ble Supreme Court reiterated its view on medical negligence and observed as under:- “ 41. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgement in choosing one reasonable course of treatment in preference to another. He would be liable only where his CWP. No. 5881 of 2009 -9- conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Maharashtra & others, AIR 1996 SC 2377, or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.” Judgement in Jacob's case has been followed in a subsequent case reported as (2010) 3 SCC 480 titled as Kusum Sharma and others Vs. Batra Hospital and Medical Research Centre and others. Again considering the question of negligence to be attributed to a doctor while discharging his professional duties, the Hon'ble Supreme Court noticed almost the entire law on the subject right from the famous decision of Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582: (1957) 2 AII ER 118 (Queen's Bench Division-Lord Justice McNair. Privy Council in case of John Oni Akerele v. The King AIR reported as AIR 1943 PC 72 recorded its conclusion as under:- “ In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.” It will be useful to refer observations of the Hon'ble Supreme Court in case of Poonam Verma Vs. Ashwin Patel & Ors. reported as 1996 (4) SCC 322, where the Hon'ble Supreme Court observed about the nature of negligence in treating the patient. The relevant observations are as under:- CWP. No. 5881 of 2009 -10- “40. Negligence has many manifestations-it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazarduous negligence, active and passive negligence, wilful or reckless negligence or negligence per se.” In the judgement of Privy Council in John Oni Akerele v. The King reported as AIR 1943 PC 72 the Privy Council while considering the question of criminal culpability on account of alleged negligence by a doctor observed as under:- “ (i) That a doctor is not criminally responsible for a patient's death unless his negligence or incompetence went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State; (ii) That the degree of negligence required is that it should be gross, and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation...There is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime. (iii) It is impossible to define culpable or criminal negligence, and it is not possible to make the distinction between actionable negligence and criminal negligence intelligible, except by means of illustrations drawn from actual judicial opinion...The most favourable view of the conduct of an accused medical man has to be taken, for it would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck.” Similarly in a case reported as 1965 (2) SCR 622 titled as Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra, the Hon'ble Supreme Court while considering the culpability under section 304-A observed as under:- “To impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the CWP. No. 5881 of 2009 -11- proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non.” It may be noticed here that in case of Martin F. D'Souza Vs. Mohd. Ishfaq reported as (2009) 3 SCC 1 the Hon'ble Supreme Court made observations about the frivolous nature of complaints against doctors. The relevant observations are as under:- “ 102. While this Court has no sympathy for doctors who are negligent, it must also be said that frivolous complaints against doctors have increased by leaps and bounds in our country particularly after the medical profession was placed within the purview of the Consumer Protection Act. To give an example, earlier when a patient who had a symptom of having a heart attack would come to a doctor, the doctor would immediately inject him with morphia or pethidine injection before sending him to the Cardiac Care Unit (CCU) because in cases of heart attack time is the essence of the matter. However, in some cases the patient died before he reached the hospital. After the medical profession was brought under the Consumer Protection Act vide Indian Medical Assn. V. V.P. Shantha, doctors who administer morphia or pethidine injection are often blamed and cases of medical negligence are filed against them. The result is that many doctors have stopped giving (even as family physicians) morphia or pethidine injection even in emergencies despite the fact that from the symptoms the doctor honestly thought that the patient was having a heart attack. This was out of fear that if the patient died the doctor would have to face legal proceedings. 103. Similarly in cases of head injuries (which are very common in roadside accidents in Delhi and other cities) earlier the doctor who was first approached would start giving first aid and apply stitches to stop the bleeding. However, now what is often seen is that doctors out of fear of facing legal proceedings do not give first aid to the patient and instead tell him to proceed to the hospital by which time the patient may develop other complications. CWP. No. 5881 of 2009 -12- 104. Hence courts/Consumer for a 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.” A similar view has been expressed by the Hon'ble Supreme Court in case of Indian Medical Association v. V.P. Shantha & others reported as (1995) 6 SCC 651, wherein following observations have been made:- “ 22. In the matter of professional liability professions differ from 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. In devising a rational approach to professional liability which must provide proper protection to the consumer while allowing for the factors mentioned above, the approach of the Courts is to require than professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services. (see Jackson and Powell on Professional Negligence, 3rd Edn. Paras 1-04, 1-05 and 1-56).” In a case reported as (2009) 9 SCC 221 titled as Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and others following various precedents, the Hon'ble Supreme Court observed as under:- “ 136. Negligence is strictly nonfeasance and not malfeasance. It is the omission to do what the law requires, or the failure to do anything in a manner prescribed by law. It is the act which can be treated as negligence without any proof as to the surrounding circumstances, because it is in violation of statute or ordinance or is contrary to the dictates of CWP. No. 5881 of 2009 -13- ordinary prudence. 181. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence