IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE 28th DAY OF OCTOBER, TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY CRIMINAL PEITTION Nos.6368 AND 6506 OF 2007 Criminal Petition No.6368 of 2007:- Between: Dr.Surjit Dan … Petitioner And The state of Andhra Pradesh, represented by its Public Prosecutor and another … Respondents Criminal Petition No.6506 of 2007:- Dr.A.S.V.Narayana Rao. … Petitioner And The state of Andhra Pradesh, represented by its Public Prosecutor and another … Respondents This Court made the following: HON'BLE SRI JUSTICE A.GOPAL REDDY CRIMINAL PEITTION Nos.6368 AND 6506 OF 2007 COMMON ORDER: - These two petitions under Section 482 Cr.P.C. are filed by the petitioners, who are accused Nos.1 and 3 respectively, to quash the proceedings initiated against them in C.C.No.600 of 2006, pending on the file of XIV Additional Chief Metropolitan Magistrate, Nampally for the offence punishable under Section 304A IPC. The 2nd respondent/de facto complainant lodged a complaint stating that the complainant’s husband expired due to the negligence of A1-cardiologist working at Image Hospital-A4 and who was also relative of the complainant. On 21.04.2002, the complainant’s husband Divakar got a chest pain and approached A1 for check up. On 22.04.2002 A1 admitted him in the Intensive Care Unit (I.C.U.) of Image Hospital, Ameerpet and rang up to the house of the complainant and informed her that her husband got mild heart attack and was admitted in I.C.U. When the complainant rushed to the hospital and saw the deceased in I.C.U., at that time A1 told her and the mother of the deceased that Angiogram would be conducted on 23.04.2002 and were asked to pay a sum of Rs.5,000/- apart from Rs.50,000/- towards operation. On 23.04.2002, the brothers of the deceased Divakar and his wife i.e., the complainant went to the hospital at 09:30 A.M. as the Angiogram was scheduled at 10:00 A.M. The doctors conducted the Angiogram at 03:00 P.M. and the complainant was informed that the Angiogram showed three blocks and one of the blocks was 95% and they have not attempted to Angioplasty as they wanted to decide whether to conduct Angioplasty or to conduct by-pass operation. Later after consultation it was informed that Angioplasty would be done on 25.04.2002 at 09:30 A.M. When the mother and relatives of the deceased went to the hospital, the deceased was taken to the Cath Lab for Angioplasty and informed that it would take an hour or so for the Angioplasty to be completed. At 01:30 P.M. Dr.A.S.V.Narayana Rao-A1 came out and said that the Angioplasty had failed and the stent did not go in as the block was calcified and that by pass surgery will be conducted at 04:00 P.M. as it was an emergency and called upon to pay Rs.50,000/- and arrange for blood and platelets. The brothers and friends of the deceased made necessary arrangements for blood and the money was also paid. At 03:30 P.M. the Cardio thoracic surgeon Dr.Surajit Dan-A3 conducted the by-pass surgery in the presence of Dr.Raj Mohan Rao, anesthetist-A2. After the operation it was informed that the operation was so far proceeded smoothly, the critical period would be next 36 to 48 hours. The brother-in-law of Divakar, who is also a doctor at Vijayawada, also came down to Hyderabad at 11.00 P.M. and the patient was under constant visit by all concerned and on 27.04.2002 the doctors informed that a pneumatic patch i.e., infection was seen in the lungs. As he was not breathing, the patient was put on ventilator and started antibiotics. By evening the doctors informed that the pneumatic patch was developed and on the next day they informed that the patient developed jaundice. The doctors started giving up hope and warned that the patient’s condition was deteriorating. The brother-in-law of Divakar had a doubt about the efficiency of the Doctors and on enquiry he came to know that there was only one surgeon and anesthetist who were rotating duties to look after the patient and suspected that the pneumatic patch was not an infection. He sought the help of a pulmonologist (Lung specialist) from another hospital. The pulmonologist examined the patient and informed them that it was not a pneumatic patch, but Odema. He also told them that the ventilator adjustment was not properly done. Meanwhile, the relatives brought an intensive care specialist from another hospital and he used to visit every day and advised treatment. The said advise was not followed by the Doctors at Image Hospital on 08.05.2002, when they were informed that the B.P. was falling down. On consultation with another cardiologist of another hospital, he came and examined the patient and remarked that the B.P. had started to fall two days back and medication was given for raising it. He prescribed a medicine for raising the B.P., but he expressed his anguish that it ought to have been given two days back. The said patient died on 09.05.2002 around 02:45 P.M. The hospital, which is having intensive care unit, has no facilities like dialysis unit, Oxy-metre Echo cardiogram machine. The ratio of doctors like intensive care specialist, urologist, pulmonologists should be maintained. When the patient was in a critical state, the hospital should have brought in senior cardiologist and specialists with more experience to revive the patient. The failure on the part of the hospital authorities and the Doctor, who has conducted the Angioplasty, for not taking proper care to assess the condition of the patient earlier, amounts to negligence. On the basis of the complaint lodged by the complainant, the Magistrate forwarded the same to the police on which basis a crime was registered in crime No.416 of 2002 by Panjagutta police station and investigation was taken up. During the course of investigation they recorded the statement of the complainant and defence. A final report was filed stating to refer the matter as lack of evidence. On filing the final report, basing upon the protest petition filed by the complainant and on recording the sworn statement of the complainant and the brother-in- law of the patient Dr.P.V.N.Rao, the Magistrate took the case on file for the offence under Section 304A IPC against A1 to A4. To quash the proceedings, A1 filed Criminal Petition No.6506 of 2007 and A3 filed Criminal Petition No.6368 of 2007. Learned counsel for the petitioner/A1 in criminal petition No.6506 of 2007 contends that the complaint given by the complainant against the petitioner and others to the A.P.Medical counsel, was perused by the ethical and malpractices committee. The said committee sought the opinion of another Cardiologist of Gandhi Medical College, Cardio Thoracic Surgeon and Dr.A.Sarat Chandra, Professor of Cardio Thorasic surgery. They have examined the C.D. of Angiogram and Angioplasty and X-rays and gave their opinion that treatment given to the patient was appropriate and in order. General body of A.P.Medical Counsel accepted their recommendations and found there was no negligence on the part of the Doctors. Therefore, the prosecution of the petitioner for the offence under Section 304A IPC is nothing but an abuse of process. The Hon’ble Supreme Court held that a private complaint should not be entertained unless the complainant has produced prima facie evidence before the Court in the field of credible opinion given by another competent Doctor. Therefore, taking cognizance of the case on the basis of the sworn statement of Dr.P.V.N.Rao, who is not a cardiologist and not competent to speak about the treatment, is nothing but an abuse of process and the same is liable to be quashed. For the said proposition, Reliance is placed on Jacob Mathew v. State of Punjab[1]. Learned counsel for the petitioner/A3 in criminal petition No.6368 of 2007 contends that the entire complaint allegations justify that it is A1, who has not taken due care and not anticipated the complications; without consulting the anesthetist; and without surgical stand, conducted the Angioplasty surgery. A3, who was in Delhi and who was called upon to conduct the operation on emergency basis, cannot be proceeded, as the complaint allegations and the sworn statement does not disclose any deficiency of service or negligence on the part of A3. The so-called negligence is only against A1 and A4. Hence, the proceedings initiated against A3 cannot be continued and the same are liable to be quashed. Per contra learned counsel for the 2nd respondent/ complainant contends that the principles laid down by the Hon’ble Supreme Court in Jacob Mathew’s case (1 supra) in the judgment referred to above, do not apply to the facts of the present case. Section 304-A IPC deals with the punishment for causing death by negligence: 304A-Causing death by negligence:-- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.] The complaint allegations and the sworn statement of the complainant clearly disclose that A1 failed to perform Angioplasty to the deceased properly, which was failed by 11:00 A.M. on 25.04.2002. But he did not inform the same to the patient relatives till 01:30 P.M. and at 01:30 P.M. he informed that operation is required and he was going to conduct operation on the same day and called upon the relatives to arrange blood and platelets and to deposit the amount. A3 Surgeon is not available at the Image Hospital at the relevant time on the previous day as he was in New Delhi and returned to Hyderabad on 25.04.2002 and immediately he attended the operation to the deceased at 04:30 P.M. and informed that 48 hours is required to say the condition of the patient. Thereafter the complications have been developed. The sworn statement of Dr.P.V.N.Rao also discloses that A1 without consulting the Anesthetist and without a surgical stand conducted Angioplasty, which should be done by the Surgeon, as the surgeon was out of station which fact he came to know through the Anesthetist. The operation was delayed by 5 hours due to want of surgeon who has to come from New Delhi, which clearly shows the negligence on the part of A1. Further as the patient was a chronic smoker he should be prepared before undertaking Angioplasty and the Cardiac Anesthesian should be consulted for fitness of the patient before conducting the same. The entire record adduced does not indicate as to whether A1 assessed the condition of the patient on consultation of the cardio Anasthesian and obtained the fitness certificate for doing Angioplasty on the patient. The Hon’ble Supreme Court elaborately dealt with the issue in Jacob Mathew’s case (1 supra), wherein it was held that 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. A doctor accused of rashness or negligence, may not be arrested in a routine manner. Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld. Considering the facts of the above case it was held that where there was no allegation that the Doctor was not qualified to treat the patient whom he agreed to treat either because of hospital having failed to keep available a gas cylinder or because of the gas cylinder being found empty, then probably the hospital may be liable in civil law, but the Doctor cannot be proceeded against under Section 304A IPC on the parameters of Bolam’s test. The above case was decided entirely on different facts. The Bolam’s test discussed in the above judgment have to be taken into consideration by the court basing upon the evidence adduced by the parties to prove the negligence on the part of the Doctor, but cannot rule out the prosecution for the offence. Since the complaint allegations and the sworn statement of the complainant makes out a prima facie case to be proceeded against A1 and the hospital authorities i.e., A4 only, the complainant should be given an opportunity to prove the negligence of A1 and A4. As the entire sworn statement and the complaint allegations do not indicate any negligence on the part of the Doctor-A3, who was on requisition on emergency basis to conduct operation, the proceedings initiated against him cannot be continued and his case clearly falls under illustration 5 enumerated by the Apex Court in the State of Haryana v. Bhajan Lal[2]. Therefore, the proceedings can be quashed against A3, but not against A1. In the result, the Criminal Petition No.6368 of 2007 is allowed and the Criminal Petition No.6506 of 2006 is dismissed. __________________ A.GOPAL REDDY, J 28th October 2010 lmv [1] AIR 2005 SC 3180(1) [2] AIR 1992 SC 604