Child's death during hernia surgery: HC refuses to quash IPC 304 against caretaker of hospital

Allahabad: Responding to a petition filed by a doctor who was challenging an FIR against him under IPC 304, the Allahabad HC has refused to give him relief.

The concerned petitioner, who claimed to be the caretaker of a private hospital in Varanasi and got booked under IPC 304 for diagnosing Hernia in a patient and advising surgery which was performed without proper consent by the treating doctors at the hospital.

Denying to quash the criminal proceedings against the caretaker, the HC bench of Justices Anjani Kumar Mishra and Ms. Nand Prabha Shukla observed, "The contention of the learned counsel for the petitioner that he is a care taker, is merely his defence, which is not to be considered in a writ petition which seeks quashing of the FIR."

However, the bench denied commenting on the merits of the case and noted, "The investigation is at the inceptive/nascent stage. Material has to be collected whether the offence is culpable or is a case of gross negligence. It is too early to conclude whether the petitioner could avail and seek the protection in the light of the guidelines/parameters as laid down by the Hon'ble Supreme Court in Jacob Mathew Vs. State of Punjab & Another..."

These observations have come from the High Court bench while considering a plea seeking quashing of the First Information Report (FIR) registered under Section 304 IPC.

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The petitioner, who is the Caretaker of Varanasi-based Medicity Neuro & Critical Care Hospital, allegedly diagnosed the informant's son suffering from Hernia and advised surgery. Accordingly, the informant deposited the money for treatment. However, the doctors allegedly operated on the child without seeking written consent from the parents/natural guardian and the child died during the treatment.

The counsel for the petitioner contended that the petitioner did not operate on the informant's son and he is merely the Caretaker of the hospital. Claiming that the petitioner has been falsely implicated for ulterior purposes, the petitioner's counsel relied upon the judgment and order passed in the case of Dr. P. Kumar VS. State of U.P. And Another, where the top court bench had stated that the medical practitioner should not be prosecuted in every such case where due to critical condition a patient expires.

Further, the petitioner's counsel argued that the Supreme Court has laid down the guidelines with regard to the cases of medical negligence and has issued direction that in such cases the matter should first be referred to a competent doctor or committee of doctors specialist in the relevant field and when such a doctor or committee reports that there is prima facie case of medical negligence, only then notice should be issued to the doctor or hospital concerned.

It was also pointed out that the top court bench has also warned the police officers against arresting or harassing the doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case.

On the other hand, the counsel for the State asserted that the petitioner diagnosed and advised surgery to the informant's son suffering from Hernia. The gross negligence on the part of the petitioner is that the surgery/operation took place without seeking consent of the natural guardian/father/first informant of the deceased, who was available at the time of the incident.

Referring to the consent letter, the State counsel contended that the said consent has been procured from the uncle and grandmother of the patient despite the natural guardian being present at the place of the incident. 

Taking note of the FIR, the bench denied relief to the petitioner and observed,

"From the bare reading of the First Information Report, it is apparent that the son of the first informant died during the treatment/surgery undergone for Hernia. The impugned First Information Report has been registered under Section 304 IPC and the petitioner being a care taker was supposed to be responsible for providing medical care. The contention of the learned counsel for the petitioner that he is a care taker, is merely his defence, which is not to be considered in a writ petition which seeks quashing of the FIR."

"The investigation is at the inceptive/nascent stage. Material has to be collected whether the offence is culpable or is a case of gross negligence. It is too early to conclude whether the petitioner could avail and seek the protection in the light of the guidelines/parameters as laid down by the Hon'ble Supreme Court in Jacob Mathew Vs. State of Punjab & Another reported in 2005(5) Supreme 297, in regard to medical negligence. The criminal prosecution cannot be thwarted as from a bare reading of the FIR, the allegations disclose commission of a cognizable offence," it further noted.

To read the order, click on the link below:

https://medicaldialogues.in/pdf_upload/allahabad-hc-order-211040.pdf

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