IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 Crl.MC.No. 3404 of 2011() ------------------------------------ CC.1293/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT, KARUNAGAPPALLY .................... PETITIONER/ACCUSED --------------------------------- DR. ANNA MOHAN, MANJADIVILAKATHU, HARISREE NAGAR NO.1, NEAR SANKER HOSPITAL, KOLLAM. BY DR.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE, ADV. SRI.M.CHANDRA BOSE, SRI.A.RAJASIMHAN. RESPONDENT/COMPLAINANT --------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.RAJESH VIJAYAN. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs Crl.MC.No. 3404 of 2011 APPENDIX PETITIONER'S ANNEXURES:- ANNEXURE A1 : CERTIFIED COPY OF THE FIR IN CRIME NO.545 OF 2006 OF KARUNAGAPPALLY POLICE STATION. ANNEXURE A2 : CERTIFIED COPY OF THE FINAL REPORT IN CC NO.1293/09 BEFORE JFMC, KARUNAGAPPALLY. ANNEXURE A3 : TRUE COPY OF THE POST MORTEM CERTIFICATE. ANNEXURE A4 : TRUE COPY OF THE REPORT OF THE EXPERT PANEL. ANNEXURE A5 : TRUE COPY OF THE APPEAL. ANNEXURE A6 : TRUE COPY OF THE REPORT OF THE APEX BODY DTD.18.1.2010. ANNEXURE A7 : TRUE COPY OF THE COVERING LETTER DTD.6.3.2010. RESPONDENT'S ANNEXURES:- NIL. //TRUE COPY// P.A. TO JUDGE rs N.K. BALAKRISHNAN,J. ------------------------------------ Crl.M.C.No. 3404 of 2011 ------------------------------------------ Dated this the 7th day of December, 2011 ORDER A crime was registered by Karunagappally police against the petitioner alleging offence under Section 304 r/w 34 IPC. After investigation, the charge sheet was laid against the accused/petitioner alleging offence under Section 304-A IPC. One Shakeela, aged 23 years, was admitted in the hospital. The allegation is that due to lack of proper treatment, the condition of Smt. Shakeela who was pregnant became worsened. The petitioner did not provide expert treatment to the patient and it resulted in the death of the child in the womb at 04:00 a.m. on 3.5.2006. Excess dose of Pitocin injuction was given to the patient which resulted in amniotic fluid embolism and as a consequence where of Shakeela later breathed her last. Therefore, according to the prosecution the petitioner, the doctor, who attended the patient is guilty of culpable negligence as she had not taken reasonable care as was expected of a reasonable and prudent doctor and hence she Crl.M.C.No. 3404 of 2011 -: 2 :- has committed offence under Section 304-A IPC. 2. The petitioner contends that there was absolutely no negligence or recklessness on her part. The deceased had a normal vaginal delivery 4 years back and her expected date of confinement was 03.05.06 and on that date at 08:30 a.m. Pitosin drip with 5 units was started and at 10.30 a.m. artificial rapture of amniotic membrane was done as the patient had a previous normal delivery and since she was progressing in labour the petitioner decided to wait for normal vaginal delivery. The relatives of the patient were informed and they also wanted to wait for vaginal delivery. According to the petitioner, the patient developed fits at 02:15 p.m. There was cardio respiratory arrest and immediate resuscitative measures were taken. The Cardiologist, Physicians and senior most Gynaecologist were also informed. The team of doctors decided to do caesarian section and after informing the patient's relatives, lower segment caesarian section was done. As the patient Crl.M.C.No. 3404 of 2011 -: 3 :- continued to be in shock and also developed disseminated intra ocular, coagulation, hysterectomy was done. The petitioner further contends that at about 07:00 p.m. the patient developed cardiac arrest from which the medical team could not revive her and so at 07:00 p.m. she was declared dead. Thus according to the petitioner there was no rashness or negligence in treating the patient. 3. According to the prosecution, there was negligence on the part of the petitioner, the gynaecologist who attended the patient in delaying the caesarian section. Minutes of the meeting of the expert panel which was constituted for forming expert opinion were also obtained for that purpose. That expert committee was of the opinion that there was negligence on the part of the gynaecologist. It was observed that had it been done in time, the baby could have been salvaged. It was observed that ideal dose of Pitocin for a second gravid was 2.50 units. But the dose seen administered in the instant case was 5 units. It was Crl.M.C.No. 3404 of 2011 -: 4 :- observed that high dose of Pitocin could have accelerated or precipitated amniotic fluid embolism in the mother which was found to be the cause of death. Hence the committee opined that there was want of reasonable skill and care in the administration of Pitocin and subsequent management of the case. The learned counsel for the petitioner submits that an appeal was referred by the petitioner to the Apex Committee/State Expert Panel. The opinion of the Apex Committee is as stated below: “The cause of death is identified as Amniotic Fluid Embolism developed in the mother. The quantity of Pitocin administered is found within the limit and also as per the protocol. Some delay is noticed in conducting the caesarian section. But there cannot be found any wilful negligence on the part of the Gynaecologist who conducted the caesarian section. The patient's monitoring chart during and immediately after the surgery was not seen prepared. This may be looked into.” 4. The learned Public Prosecutor submits that the Apex Committee also found that the patient monitoring chart during and immediately after the surgery was not seen prepared and so it would evidently make it clear that the Crl.M.C.No. 3404 of 2011 -: 5 :- petitioner deliberately did not prepare the monitoring chart or even if any such chart was there, it was conveniently removed by the petitioner as otherwise the said chart would have thrown light as to the culpable negligence of the petitioner. It is also pointed out that the Apex Committee has also noticed the delay in conducting the caesarian section. Simply by saying that the petitioner had consulted other doctors she cannot wriggle out of the liability. But the learned counsel for the petitioner would submit that the Apex Committee has made it clear that there was no wilful negligence on the part of the gynaecologist who conducted the caesarian section. Following the dictum laid down in Jacob Mathew 's case (2005) 6 SCC Page - 1 it was held by the Apex Court in Martin D'souza (2009) 3 SCC Page 1. “We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer Crl.M.C.No. 3404 of 2011 -: 6 :- the matter to a competent doctor or committee of doctors, specialised in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the doctor/hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew case, otherwise the policemen will themselves have to face legal action.” 5. Thus the learned counsel for the petitioner would submit that in order to fasten the criminal liability on the petitioner, the prosecution must show that there was gross culpable negligence and not mere negligence which may not be sufficient to fasten criminal liability on the wrong doer. It is contended by the petitioner that in the commotion or tumult which ensued on the death of the patient, certain persons tress-passed into the ward and destroyed certain articles and removed papers and that was the reason why the chart was seen missing. Thus according the petitioner, in fact a chart was prepared and it is not a case where it was deliberately not prepared. The learned Crl.M.C.No. 3404 of 2011 -: 7 :- counsel submits that even if it is accepted that no chart was prepared that alone may not be sufficient to hold the accused liable for criminal offence, for, non-preparation of a chart cannot be a negligent act so as to invoke the penal provision under Section 304-A IPC. 6. The decision in Suresh Gupta vs. Govt. of NCT of Delhi (2004) 6 SCC 422 can also be referred to here. That was a case where the doctor while conducting the operation for removal of the nasal deformity gave incision in a wrong part and due to that blood seeped into the respiratory passage and because of that patient collapsed and died. Even in such a context the court held that the doctor may be liable in a civil case but it cannot be described to be so reckless or grossly negligent so as to make him liable in a criminal case. It was observed that for conviction in a criminal case, the negligence or rashness should be of such a high degree which can be described as totally apathetic towards the patient. Crl.M.C.No. 3404 of 2011 -: 8 :- In the light of the decisions cited above and in the light of the findings of the Apex Committee, I find that there are no sufficient materials to put the accused to suffer ignominy of a protracted criminal trial. Hence this petition is allowed. Proceedings in CC.1293/2009 of JFCM, Karunagappally stands quashed. N.K. BALAKRISHNAN, JUDGE smvd