Doctors cannot be put to criminal prosecution for negligence during the Pandemic: Chhattisgarh High Court

 1 AFRHIGH COURT OF CHHATTISGARH AT BILASPURW.P.(C) No. 26521Sanjay Ambastha S o. Mohan Gopal Ambastha Aged About 51 Years R o. Suman Sadan Darripara Ambikapur District Sarguja Chhattisgarh. PetitionerVersus 1.State Of Chhattisgarh Through Secretary Health And Family WelfareDepartment Govt. Of Chhattisgarh Raipur Chhattisgarh. 2.The Nodal Officer Ram Krishna Care Hospital Regional Transport Office Raipur Chhattisgarh. 3.The District Collector District Raipur Chhattisgarh. 4.D.H.O. cum Inquiry Officer Office Of Chief Medical And Health Officer District Raipur Chhattisgarh. 5.Ram Krishna Care Medical Science Pvt. Ltd. Through The Management Aurobindo Enclave Pachpedhi Naka Dhamtari Road District RaipurChhattisgarh. RespondentsFor Petitioner :Mr. Shakti Raj Sinha Advocate For State :Mr. Alok Bakshi Addl. A.G. Hon ble Shri Justice Goutam BhaduriORDER02.07.2021Heard1.The facts as pleaded the petitioner s mother aged about 69 years wasadmitted to hospital named Ram Krishna Care Medical Science Pvt. Ltd.on 22.09.2020 with an infection of Jaundice and no symptom of Covid 19.Subsequently she was put in a Covid ward after she was tested covidpositive at the time of admission. It is stated that the mother wasadministered with Remdesivir Injection and due to wrong treatment ofadministrating injection her health got deteriorated from 26.09.2020.Subsequently after deterioration Remdesivir injection was stopped.Further on 29.09.2020 RTPCR test was conducted wherein she wasfound covid negative but still she was kept with the covid patient and on 2 02.10.2020 the mother of the petitioner died due to post covidcomplication. Further it is stated that the dead body was delivered to thepetitioner without following the safety protocol and it was transportedthrough the Ambulance without safety measures. Consequently violationof guidelines issued by the Central and the State Government wascommitted by the respondent No.5 hospital for which they are liable to beprosecuted. With such pleading the two fold prayer is made. The hospitalis responsible for the negligent treatment and another one that the hospitaldid not follow the covid protocol norms in handling the dead body therefore the hospital is liable to be prosecuted. 2.Learned counsel for the petitioner would submit that the mother of thepetitioner when admitted was tested Covid 19 positive and though sherecovered from covid but eventually died on 02.10.2020. Before the dateof death the RTPCR test was carried out of patient for covid and it wasfound that she was negative thereby recovered from covid but diedsubsequently. It is stated though the mother of the petitioner died becauseof covid complication yet after her death the dead body was handed overwithout following the guidelines issued by the Government of India Ministry of Health & Family Welfare6 SCC 1 4referred tohereinabove holds good. Negligence becomes actionableon account of injury resulting from the act or omissionamounting to negligence attributable to the person sued.The essential components of negligence are three: duty breach and resulting damage .Negligence in the context of medical professionnecessarily calls for a treatment with a difference. To inferrashness or negligence on the part of a professional inparticular a doctor additional considerations apply. A caseof occupational negligence is different from one ofprofessional negligence. A simple lack of care an error ofjudgment or an accident is not proof of negligence on thepart of a medical professional. So long as a doctor followsa practice acceptable to the medical profession of thatday he cannot be held liable for negligence merelybecause a better alternative course or method oftreatment was also available or simply because a moreskilled doctor would not have chosen to follow or resort tothat practice or procedure which the accused followed.When it comes to the failure of taking precautions whathas to be seen is whether those precautions were takenwhich the ordinary experience of men has found to besufficient a failure to use special or extraordinaryprecautions which might have prevented the particularhappening cannot be the standard for judging the allegednegligence. So also the standard of care while assessingthe practice as adopted is judged in the light ofknowledge available at the time of the incident and not atthe date of trial. Similarly when the charge of negligencearises out of failure to use some particular equipment thecharge would fail if the equipment was not generallyavailable at that particular timeat which it is suggested it should have beenused.(3)…..xxx.....xxx....(4)…..xxx.....xxx....(5)The jurisprudential concept of negligence differs incivil and criminal law. What may be negligence in civil lawmay not necessarily be negligence in criminal law. Fornegligence to amount to an offence the element of mensrea must be shown to exist. For an act to amount tocriminal negligence the degree of negligence should bemuch higher i.e. gross or of a very high degree.Negligence which is neither gross nor of a higher degreemay provide a ground for action in civil law but cannotform the basis for prosecution. (6)….xxx......xxx....(7)….xxx.....xxx....(8)….xxx.....xxx....”8.This fact cannot be loose site that India is the second most populouscountry in the world. It being a developing economy increasedurbanization rapid deforestation little or no check on pollution level makethe people more prone to tropical diseases couple with equally densepopulation. Therefore naturally the health condition in the country cannotbe the best. In the urban area too the average of doctors as against thepatient are less which outbreak of pandemic all over the world it is notnormal and easy to handle. This condition worsened and aggravated asany amount of effort by the medical would not be made satisfactory for thepressure of population and patient specially during covid pandemic. Thepandemic have returned after 100 years no medicine is invented assuch the doctors to the best of their ability and understanding haveadministered different injection to the Covid 19 infected patients. This maybe attended by risks one has to understand the fact that the system cannot take benefits without taking the risks and every advance in technique 6 and experience is also attended by risks. The Doctors like the rest of us have to learn by experience and experience often teaches in a hard way.Therefore putting the Doctors to a criminal prosecution for negligencewould lead to create a lot of emotional disturbance at the time ofpandemic when the doctors have served the ailing besides the factdoctors patient ratio has miserably failed and doctors made their besteffort to revive the ailing one no criminal negligence can be attached onany individual opinion. Under these circumstances one has to indicatetrust in the system and cannot be allowed to abuse the conditions may bea self certified bonafide. 9.With respect to the second aspect of the complaint that the dead body wasnot handled according to the covid protocol guidelines issued by theCentral and State Government this Court in exercise of power underArticle 226 of the Constitution can not go into the roving enquiry in asmuch as the nature of complaint as has been stated that the dead bodywas handed over without any zipped body bag is a matter of enquiry. ThisCourt therefore would refrain itself to go into the exercise of investigation.Serving certain problem requires multi pronged approach and they wouldpersist if viewed through narrow lens and the petitioner therefore cannotaccept ill conceived exercise by this court to substantiate the fact andallegation. 10.In view of the aforesaid discussion I am not inclined to admit this petition.According it is dismissed. Sd (Goutam Bhaduri)JUDGEAks 

Summary: Doctors have put themselves through extraordinary situations to treat and serve people during a situation of chaos amidst the ongoing Covid-19 Pandemic. Decisions which are taken as a last resort to save lives cannot be held against these doctors as ‘medical negligence’. This was ruled by Hon’ble Shri Justice Goutam Bhaduri in the case of Sanjay Ambastha Vs. State of Chhattisgarh, Through Secretary, Health and Family Welfare Department [W.P.(C) No. 2653 of 2021] on the 02nd of July before the Hon’ble High Court of Chhattisgarh at Bilaspur. The brief facts of the case are, the petitioner’s mother, aged about 69 years, was admitted to hospital named Ram Krishna Care Medical Science Pvt. Ltd. on 22.09.2020 with an infection of Jaundice and no symptom of Covid-19. Subsequently, she was put in a Covid ward after she was tested Covid positive at the time of admission. She was administered with ‘Remdesivir’ Injection and due to wrong treatment of administrating injection her health got deteriorated from 26.09.2020. Subsequently after deterioration Remdesivir injection was stopped. Later, an RTPCR test was conducted wherein she was found covid negative but still she was kept with the covid patient. The mother of the petitioner died due to post covid complication. Further, it is stated that the dead body was delivered to the petitioner without following the safety protocol and it was transported through the Ambulance without safety measures. The petitioner has filed the present petition claiming that the hospital is responsible for the negligent treatment and did not follow the covid norms in handling the dead body. The counsel for the petitioner submitted that, the remedesivir injection was wrongly administered and thus the mother died. It was also submitted that although the mother of the petitioner died because of covid complication, her death the dead body was handed over without following the guidelines where, the Hospital was required to give the body in a double layer leak proof zipped body bag and to be handed over to the transport employee. Whereas, in respect of case of mother of petitioner, it was handed over to the petitioner. The counsel for the respondent however opposed the arguments claiming that, the patient was covid negative and thus, the protocols regarding the dead body need not be followed. The court heard the submission of both counsels and observed the case in the light of the huge burden on the shoulders of these doctors to save lives amidst the pandemic. The argument of medical negligence was dismissed by the court citing the judgement in the case of Dr. Suresh Gupta v. Govt. of NCT of Delhi and Another AIR 2004 SC 4091 wherein it was held that, “the bonafide medical practitioners should not be put through unnecessary harassment. The court observed that Doctors would not be able to save lives if they were to tremble with the fear of facing criminal prosecution. In such a case, a medical professional may leave a terminally ill patient to his own fate in an emergency where the chance of success may be 10% rather than taking the risk of making a last-ditch effort towards saving the subject and facing criminal prosecution if the effort fails. The court held that simple lack of care, error of judgment, or an accident is not proof of negligence on the part of a medical professional and that failure to use special or extraordinary precautions that might have prevented a particular incidence cannot be the standard for judging alleged medical negligence”.  The concept of medical negligence was further analyzed throwing light to the judgement held by the supreme court in Jacob Mathew v. State of Punjab &amp; Another [(2005) 6 SCC 1] wherein “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 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).”