1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 21 OF 2009 1 Dr. Prasanna s/o Sudhakarrao Deshmukh.. age 34 years, occ. Medical Practice r/o BD-6, Kasliwal Angan, Ulka Nagari Aurangabad Dist. Aurangabad. 2 Sunita d/o Bansi Bhalerao age 23 years, occ. Service r/o Gautam nagar, Opp. Govt. Milk Dairy Aurangabad. 3 Madhav s/o Trimbak Chavan age 27 years, occ. Service r/o Aurangabad. .. PETITIONERS VERSUS 1 State of Maharashtra 2 Amar s/o Wamanrao Deshmukh age 19 years, occ. Education r/o c/o Dr. P.A. Deshmukh, Khokadpura, Aurangabad. .. RESPONDENTS Shri V.J. Dixit, Senior Counsel holding for Shri S.Y. Mahajan, Advocate for the petitionres. Shri V.H. Dighe, APP for the State. Shri S.J. Salunke, Advocate holding for Shri V.D. Salunke, Advocate for respondent no. 2. ===== 2 CORAM : R. M. BORDE, J. DATE : 25 th June, 2009. ORAL JUDGMENT : 1 Heard Shri V.J. Dixit, learned Senior Counsel holding for Shri S.Y. Mahajan, learned counsel for the appellants, Shri V.H. Dighe, learned APP for the State and Shri S.J. Salunke, learned counsel holding for Shri V.D. Salunke, learned counsel for respondent no. 2. 2 Petition was taken up for admission on 28-4-2009. After hearing the arguments for some time, it was agreed by the parties that the petition can be disposed of at admission stage. As such, the matter came to be posted to 15-6-2009. Today the petition is taken up for final hearing. Rule. Rule made returnable forthwith. With the consent of the parties, the matter is taken up for final disposal at admission stage. 3 Petitioner no. 1 is a Medical Practitioner and is a director of Sai Hospital and Critical Care Unit situate in Samarth Nagar, Aurangabad. He holds post graduate degree in medicine and is also an intensivist. Other petitioners are the employees of the Sai Hospital. Petition is presented seeking relief in respect of quashment of the criminal proceeding initiated against the petitioner on registration of Crime No. 555/2008 at Kranti Chowk police station, Aurangabad for offences punishable under section 304-A, 201 r/w section 34 of the Indian Penal Code. It is alleged in the First Information Report that patient by name Shweta Wamanrao Deshmukh was referred to the hospital for treatment by one Dr. Shahpurkar who had diagnosed her as suffering from falciparum malaria. Dr. Shahpurkar is also a post graduate 3 degree holder in medicine. On pathological examination, he has reached the diagnosis that the patient is suffering from falciparum malaria. On admission of the patient, it is contended that she was prescribed medicine quinine tablet. However, she refused to take the drug. As such, it was noted on the case paper accordingly. It transpires that during the night time, quinine was injected to her. However, she developed symptom of Cardiac Toxicity. She was moved to Intensive Care Unit. However, she expired at 1.45 hours. 4 Complainant is the brother of the deceased who has alleged that deceased was sensitive to anti-malarial drug i.e. quinine and had refused to take the tablet. Doctors have exhibited callousness and negligence in administering quinine through intra venous mode. According to the informant, the drug quinine was administered to the patient by the nurse through intra venous mode. Doctor was not present when the drug was administered. After the death of patient, the doctors advised against conducting post mortem examination. As such, no post mortem examination was conducted. It is alleged that death of the patient is as a result of negligence on the part of the doctors. Death of the patient occurred on 14-9-2008 whereas the First Information Report is lodged by brother of the deceased on 5-12-2008. It is stated that police have completed the investigation and the charge sheet is also presented to the court. 5 Copy of the report submitted by the Expert Committee conducting enquiry in respect of the circumstances leading to the death of deceased 4 Shweta is placed on record. The Committee consists of three medical professionals. On perusal of the papers, the Expert Committee has concluded that the patient was suffering from Falciparum malaria and at the time of admission of the patient her vital parameters were normal. The Committee reached conclusion that the patient was not suffering from cerebral Malaria and the death certificate issued in that behalf does not appear to be correct. It is noted in the report that the case papers reveal that at 1.40 pm doctor issued instructions for administering quinine injection 600 mg in 1. slowly over 6 hours. However, after administration of drug, the patient became serious and died at 1.45 am. At the stage of hearing of the petition, final report of Enquiry Committee is also placed on record on which reliance is placed by the respondent. In the final report also the Committee of doctors have confirmed the initial diagnosis that the patient was suffering from falciparum malaria and was not having cerebral malaria. Death of the patient can be attributed to administration of drug quinine. The Committee has opined that there occurs reaction to the drug quinine in rare circumstances, but such possibilities cannot be overlooked totally. The Committee could not conclude as to whether the drug was administered through drip or was pushed by intra venous mode as contended by the relatives of the petitioner. However, if the drug is pushed by intra venous mode, it may result in death of the patient. 6 Shri Dixit, learned senior counsel appearing for the petitioner has vehemently contended that the petitioner no. 1, physician administering the treatment, was qualified and was competent to administer the treatment. Diagnosis of the patient was also correct and the available mode of 5 treatment for treating malaria is administration of drug quinine. It is contended that even if it is assumed that the patient was not suffering from cerebral malaria, however, the mode of treatment does not change. The prescribed drug for treating falciparum malaria as well as cerebral malaria is quinine. The drug quinine may also cause Cardiac Toxicity which has also been noted by the Expert Committee. However, the patient is likely to react to a drug in different manner and if the death of the patient in the instant matter even if assuming is attributable to administration of anti malaria drug i.e. quinine by intra venous mode, no gross negligence can be attributed to the physician. He further contends that there is difference between ‘civil liability’ and ‘criminal negligence’. It is contended that in order to attract culpability under section 304-A of the Indian Penal Code, it is to be demonstrated that negligence and recklessness is of such a high degree so as to term as ‘gross’. The expression ‘rash and negligent act’ as occurring in section 304-A of the Indian Penal Code is to be read as qualified by word ‘grossly’. He contends that a medical professional can be held liable for negligence on one of the two findings; either he does not possess all the requisite skill which he professed to have possessed or, he does not exercise with reasonable competence in the given case the skill which he possesses. In the instant matter, the petitioner is a qualified medical practitioner possessing post graduate degree in medicine. Diagnosis of the patient was correct so also the line of treatment adopted also cannot be termed erroneous. In such circumstances, it is contended that no negligence is attributable to the petitioner. He further contends that even if liability is required to be fasten, it may be under civil law. A professional may be liable under civil law (or may not be) but the accused / petitioner cannot be 6 prosecuted under section 304-A of the Indian Penal Code on the parameters of Bolam’s case. 7 Per contra, it has been urged by learned counsel appearing for the complainant that the petitioner has not exhibited the degree of professional skill as is expected from a medical professional. According to him, deceased was a student of first year BAMS course and she had informed the doctor that she is sensitive to drug quinine. However, inspite of this fact, administration of drug quinine to the patient, amounts to culpable negligence. It is contended that the drug was pushed through vein and, the petitioner no. 1, treating physician was not present when the drug was administered. This, according to the learned counsel for the complainant, amounts to gross negligence, and, as such, the petitioners are liable to be prosecuted. 8 In order to appreciate the arguments advanced by the learned counsel, it would be appropriate to refer to the judgments laying down the principles in respect of medical negligence requiring prosecution of the medical professional. . In the mater of Dr. Suresh Gupta vs. Govt. of N.C.T. Of Delhi and another reported in 2004 AIR sCW 4442, initiation of criminal proceeding against the medical professional was questioned and quashment of the proceeding was sought taking recourse to provisions of section 482 of the Code of Criminal Procedure. In the reported matter the patient, a young man not having history of heart ailment was subjected to operation 7 performed by Dr. Suresh Gupta for nasal deformity. The operation was neither complicated nor serious. The patient died. On investigation, the cause of death was found to be “not introducing a cuffed endotracheal tube of proper size” so as to prevent aspiration of blood blocking respiratory passage. The court found that the act attributable to the doctor even if accepted to be true, can be described as an act of negligence as there was lack of due care and precaution. For this act of negligence, he may be liable in tort, as carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent so as to make him criminally liable. Taking parallel from Gupta’s case (cited supra) it is canvassed that in the given set of facts, a medical professional may be liable in tort but cannot be made criminally liable. Reliance is placed on the observations of the Apex court in paragraph nos. 20 to 26 of the judgment : 20 For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as “gross negligence” or recklessness.” It is not merely lack of necessary care, attention and skill. The decision of the House of Lords in R. v. Adomako (supra) relied upon on behalf of the doctor elucidates the said legal position and contains following observations :- . “Thus a doctor cannot be held criminally responsible for patient’s death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State.” 21 Thus, when a patient agrees to go for medical treatment or surgical operation, every careless act of 8 the medical man cannot be termed as ‘criminal.’ It can be termed ‘criminal’ only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patient’s safety and which is found to have arisen from gross ignorance or gross negligence. Where a patient’s death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable. 22 This approach of the Courts in the matter of fixing criminal liability on the doctors, in the course of medical treatment given by them to their patients, is necessary so that the hazards of medical men in medical profession being exposed to civil liability, may not unreasonably extend to criminal liability and expose them to risk of landing themselves in prison for alleged criminal negligence. 23 For every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment. Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large because if the Courts were to impose criminal liability on hospitals and doctors for everything that goes wrong, the doctors would be more worried about their own safety than giving all best treatment to their patients. This would lead to shaking the mutual confidence between the doctor and patient. Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an offence of culpable negligence. 24 No doubt in the present case, the patient was a young man with no history of any heart ailment. The 9 operation to be performed for nasal deformity was not so complicated or serious. He was not accompanied even by his own wife during the operation. From the medical opinions produced by the prosecution, the cause of death is stated to be ‘not introducing a cuffed endo-tracheal tube of proper size as to prevent aspiration of blood from the would in the respiratory passage.’ This act attributed to the doctor, even if accepted to be true, can be described as negligent act as there was lack of due care and precaution. For this act of negligence he may be liable in tort but his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable. 25 Between civil and criminal liability of a doctor causing death of his patient the Court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offfence, the standard should be proof of recklessness and deliberate wrong doing i.e. A higher degree of morally blameworthy conduct. 26 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 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. 10 . In this context, reference can be made to a leading judgment of the Apex court concerning the subject in the matter of Jacob Mathew vs. State of Punjab and another reported in AIR 2005 Supreme Court 3180. In the reported matter also criminal proceedings for commission of offence punishable under section 304-A of the Indian Penal Code were initiated against the medical professional on the allegations that the informant’s father was admitted as patient in a private ward of CMC Hospital, Ludhiana. On 22-2-1999 at 11.00 pm he felt difficulty in breathing. Complainant’s elder brother contacted the duty nurse who in turn called the doctor to attend the patient. However, the doctor did not turn up for 20 to 25 minutes. Then Dr. Jacob Mathew and other doctor came to the room of the patient. Oxygen cylinder was brought and connected to the mouth of the patient but the breathing problem increased further. The patient tried to get up but the medical staff asked him to remain in the bed. Oxygen cylinder was found to be empty. There was no other gas cylinder available in the room. One Vijay went to the adjoining room and brought gas cylinder. Thus, there was no arrangement to make the gas cylinder functional and in between 5 to 6 minutes time was wasted. By the time, another doctor came who declared the patient as dead. According to the complainant, the treating doctors were negligent and as such were liable to be prosecuted under section 304-A r/w section 34 of the Indian Penal Code. While dealing with the matter, the Apex court has drawn distinction between ‘negligence as tort’ and ‘negligence as crime’. The Apex court has extensively dealt with all the aspects of negligence by the professionals and has laid down that every type of negligence is not actionable in criminal law. In order to prosecute a 11 medical professional even if section 304-A of the Indian Penal Code does not refer to the word ‘gross’ the same is to be read into section and the expression rash or negligent act occurring in section 304-A of the Indian Penal Code is to be read as qualified by word ‘grossly’. The Apex court has also ruled that the principle of res ipsa loquitur cannot be pressed in service for determining per se liability for negligence within the domain of criminal law. The points those arose for consideration before the Apex court were i) is there difference in civil and criminal law on the concept of negligence and; ii) whether a different stand is applicable for recording a finding of negligence when a professional, in particular a doctor is to be held guilty of negligence. Negligence is defined in Law of Torts, Ratanlal & Dhirajlal (Twenty fourth Edition 2002) as : . “Negligence is the breach of a duty caused by the 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. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.----- . The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the pat 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. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort.” 12 12 According to Charlesworth & percy on Negligence (Tenth Edition, 2001), in current forensic speech, negligence has three meanings. They are : (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings. (Para 1.01) The essential components of negligence, as recognized, are three: “duty”, “breach” and “resulting damage”, that is to say :- 1 the existence of a duty to take care, which is owed by the defendant to the complainant; 2 the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and 3 damage, which is both causally connected with such reach and recognized by the law, has been suffered by the complainant. . The Apex court has observed in paragraph no. 15 of the judgment thus : 15. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his 13 speech in Andrews v. Director of Public Prosecutions, [1937] AC 576, stated, “Simple lack of care – such as will constitute civil liability is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established.” Thus, a clear distinction exists between “simple lack of care” incurring civil liability and “very high degree of negligence” which is required in criminal cases. Lord Porter said in his speech in the same case -- “A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability. (Charlesworth & Percy, idbi, Para 1.13) . While dealing with the concept of negligence by a medical professional, the Apex court has observed in the judgment thus : 26 A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, ore are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent now-a-days is to obtain the consent of the patient or of the person incharge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be 14 found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure. 27 No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter productive. Simply because a patient has not not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur. 28 Res ipsa loquitur is a rule of evidence which in reality belongs to the law of torts. Inference as to negligence may be drawn from proved circumstances by applying he rule if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. In criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies on the prosecution. Such ingredient cannot be said to have been proved or made out by resorting to the said rule (See Syad Akbar v. State of Karnataka (1980) 1 SCC 30). Incidentally, it may be noted that in Krishnan and Anr. v. State of Kerala (1996) 10 SCC 508 the Court has observed that there may be a case where the proved facts would themselves speak of sharing of common intention and while making such observation one of the learned judges constituting the Bench has in his concurring opinion merely stated “res ipsa loquitur”. Nowhere it has been stated that the rule has applicability in a criminal case and an inference as to an essential ingredient of an offence can be found proved 15 by resorting to the said rule. In our opinion, a case under Section 304A IPC cannot be decided solely by applying the rule of res