Doctor cannot be held negligent simply because patient did not favourably respond to treatment: Kerala HC junks 304A against doctors

Ernakulam: The Kerala High Court bench recently stated that simply because a patient did not respond favourably to the treatment, the doctor cannot be held negligent.

Setting aside the conviction order of three nurses and three doctors under sections 304A and 201 read with Section 34 of India Penal Code, 1860 for medical negligence, the High Court bench observed "simply because a patient has not favourably responded to a treatment or a surgery has failed, the doctor cannot be held negligent per se for the offence under section 304A of IPC unless the prosecution establishes beyond reasonable doubt the culpable and gross negligent act on his part. That act must be the proximate or direct cause of death of the patient. Such a shred of evidence is lacking in this case. None of the witnesses and documents discussed in the above paragraphs points the gross or culpable negligence on the part of any of the accused."

Those medical professionals sentenced to simple imprisonment for a year for the offence under section 304A r/w 34 of IPC and simple imprisonment for three months for the offence under section 201 r/w 34 of IPC after the patient undergoing sterilization by laparoscopy died after the surgery.

Acquitting them, the HC bench of Justice Kauser Edappagath noted, "That act must be the proximate or direct cause of death of the patient. Such a shred of evidence is lacking in this case. None of the witnesses and documents discussed in the above paragraphs points the gross or culpable negligence on the part of any of the accused."

"There is always the chance that the treatment does not go as planned. When things go wrong, it is not always the fault of the doctor. A complication by itself does not constitute negligence. There is a big difference between an adverse or untoward event and negligence. However, there is a growing tendency to accuse the doctor of an adverse or untoward event. Nothing can be more professionally damaging and emotionally draining than being arrayed as an accused in any such action," the HC bench noted in the order.

Also Read: Emergency Circumstances: NCDRC exonerates Surgeon, Hospital from negligence for conducting C-Section without Anesthetist

The matter goes back to 2006 when a young lady of 37 years, was undergoing sterilization by laparoscopy at Deen Hospital. The concerned medical procedure provided permanent birth control. While the patient had hoped to return home after a few hours, post-surgery she developed respiratory complications and was put under oxygen support.

Even though she was shifted to Poyanil Hospital, Punalur and later to Ananthapuri Hospital, Thiruvananthapuram for better management, her life could not be saved.

Consequently, the doctors, gynaecologist and the nurses involved had been booked under Section 174 of Cr.PC. Thereafter, in compliance with the Supreme Court directives, the investigating officer requested the District Medical Officer, Thiruvananthapuram for setting up an Expert Panel and submitting their views on the allegations of medical negligence.

After taking note of the report of the committee, the Additional Sessions Court V, Kollam found that even though offence under section 304 of IPC was not attracted, it opined that there was evidence e to show that the accused have committed the offences punishable under sections 304A and 201 r/w 34 of IPC. Accordingly, the altogether six doctors and nurses of the hospital were sentenced to undergo simple imprisonment for one year for the offence under section 304A r/w 34 of IPC and simple imprisonment for three months for the offence under section 201 r/w 34 of IPC.

Challenging this order, the doctors and the nurses of Deen Hospital approached the High Court bench. After taking note of the submissions made by both the parties, the High Court noted that the accusations against the nurses and the doctors included- the anesthesiologist was not unqualified and incompetent, spinal anesthesia had been given instead of general anesthesia, there were lapses in the pre-operative and post-operative management of the patient and the treating doctors were not trained in laparoscopy, and the surgery and nurses' notes were not kept properly.

"Negligence, simply put, is a breach of duty of care resulting in injury or damage. Per se, carelessness is not culpable or a ground of legal liability, except in those cases where the law has imposed a duty of carefulness," opined the High Court bench.

Referring to several previous judgments on medical negligence, the HC bench further noted,

"Every death of a patient cannot, on the face of it, be medical negligence. There must be sufficient evidence to prove that the death is due to the alleged medical negligence. The death should be the direct or proximate result of the negligent act alleged. A medical professional cannot be held liable simply because things went wrong from mischance or misfortune. A mere deviation from normal professional practice is not necessarily negligence. Nor could mere accident or untoward incident be termed negligence, also an error of judgment is not negligence per se. To convict a medical professional for criminal negligence, the prosecution must prove culpable and gross negligence beyond a reasonable doubt. It must also be shown that the medical professional did or failed to do something which, in the given facts and circumstances of the case, no ordinary skilled medical professional would have done or failed to do."

After taking note of the medical qualification of the Anesthetist, the HC bench also perused the Expert Panel report and noted that "After scrutinising various rules and regulations relating to the prescribed qualification for an anesthetist, it was reported that a doctor who has passed MBBS and has training in anesthesiology is qualified to give anesthesia to a patient. The Apex Body, on perusal of various records, concluded that the accused No.1, after his MBBS, had undergone one-year Senior House Surgency in anesthesia at Medical College, Thiruvananthapuram, and he had the requisite qualification for giving anesthesia to the patient."

In this regard, the HC bench also referred to the Minutes of the meeting of the Council of Modern Medicine held on 22nd November 2007, where it was resolved that the doctors with MBBS registration are qualified to give anesthesia.

"Thus, in fact, as per the said resolution, the Council of Modern Medicine was recognizing the qualification of doctors with MBBS registration to administer anesthesia irrespective of their date of degree or certificate of registration," noted the bench.

Further referring to the decision of the doctor to administer spinal anesthesia, the bench noted, "Apart from the testimony of PW9, there is absolutely nothing on record to suggest that what was administered by accused No.1 was spinal anesthesia and not general anesthesia. Even PW9 only deposed that accused No. 1 might have administered spinal anesthesia. She was not sure whether spinal anesthesia was administered...PW9 admitted that laparoscopic sterilization could be done either under spinal anesthesia or general anesthesia...Thus, laparoscopic sterilization can be done under general anesthesia or spinal anesthesia. So long as it is found that the procedure/treatment adopted was accepted by medical science, the medical practitioner cannot be held negligent merely because he chose to follow that treatment/procedure and the result was a failure."

"A medical practitioner cannot be held criminally liable simply because things went wrong through an error of judgment in choosing one reasonable course of procedure/treatment in preference of another. A medical practitioner can only be held liable for criminal negligence if he fails to adopt a usual and normal course of treatment and the course adopted by him is one no professional man of ordinary skill would have taken had he been acting with ordinary care. Thus, accused No.1 cannot be found at fault in administering spinal anesthesia even if the prosecution’s version that spinal anesthesia was administered is believed to be true," the bench further observed.

"To impose criminal liability under section 304A of IPC, it is necessary that the death should have been the direct result of a rash or negligent act of the accused. That act must be the proximate and efficient cause without the intervention of another's negligence. The liability under this section is created on the assumption of foreseeability of consequences that could result from a wrongful act. Thus, for fastening the liability of criminal negligence on the accused, the administration of anesthesia, be it general or spinal, must be the direct or proximate cause of death," it further noted at this outset.

Referring to the report of the Expert Panel, the bench noted that the one of the reports only mentioned that the pre-operative workup, including pre-anesthesia workup, was not done properly at the Deen Hospital.

"Even though the Expert Panel found that there was no preoperative evaluation, there is absolutely no evidence on record, or even the prosecution does not have a case that it was on account of the said lack of proper pre-operative evaluation that the complication developed to the patient and the death has occurred," noted the High Court bench.

"In the absence of any material on record to suggest that the alleged lapses in the pre-operative or postoperative management of the patient at the Deen Hospital were the direct or proximate cause of death, findings in Exts.P15 and D9 assume no significance," it added.

Regarding the issue that surgery notes had not been maintained by the nurses of the hospital, the HC bench observed, "Mere failure to maintain surgery notes, nurses’ notes or case sheets properly cannot be construed as intentional, causing the disappearance of evidence. Thus, the materials on record are insufficient to prove the allegation of the offence under section 201 of IPC."

"There is no convincing evidence to connect the accused with the alleged incident. At any rate, the accused are entitled to get the benefit of doubt. Hence, the conviction and sentence under sections 304A and 201 r/w section 34 of IPC cannot be sustained," it further noted.

However the bench also noted that the State Consumer Court has allowed a compensation of Rs 7 lakh to the complainant and the matter is already pending before the NCDRC bench.

"That apart, the acquittal of the accused under section 304A of IPC will not have any bearing on the appeal pending before the National Commission since there exists a clear distinction between negligence incurring civil liability and criminal liability," clarified the HC bench as it set aside the conviction of the doctors and the nurses and the sentences passed by the Trial Court.

To read the order, click on the link below:

https://medicaldialogues.in/pdf_upload/kerala-hc-no-medical-negligence-200752.pdf

Also Read: Report Violence Against Doctors directly to court: Kerala HC to HCPs