These observations were made by the HC bench while considering a case involving alleged medical negligence during the treatment of a pregnant woman. The accused doctor, who is the owner of a nursing home, had allegedly admitted a pregnant woman for surgery even in the absence of an anaesthetist. By the time the anaesthetist arrived, the foetus was found dead.
It was alleged that the patient was admitted to the hospital at 10:30 A.M. on 28.07.2007 for delivery. Even though the consent for the surgery was given on the morning of 29th July, the patient was taken into the operating theatre in the evening. After the surgery, the patient's husband was informed that the foetus had died. When the family objected, they were allegedly beaten up by the employees of the doctor and his associates. After filing an FIR, a post-mortem was conducted, a statement of the applicant was taken, and the CMO constituted a Medical Board to look into the issue.
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However, the complainant alleged that the Medical Board did not consider the post-mortem report. Aggrieved by the final report, the complainant filed a protest petition. It was filed to be a case of medical negligence. Further, the complainant claimed that the Medical Board did not carry out the investigation properly, and the statement by the patient's husband was not adduced.
In the protest case, after perusing the case diary and evidence on record, the concerned Magistrate concluded that a prima facie case is made out against the applicant appears to be a case of medical negligence, because of which, foetus had died. Accordingly, the final report was rejected, and the protest petition was allowed, and summons were issued against the accused doctor.
Challenging the summoning order as well as the entire proceedings of the case, the doctor filed a plea before the HC bench. The counsel for the doctor argued that the doctor had required qualifications (MBBS and Diploma in Gynaecology and Obstetrics) and the Medical Board had also concluded that no negligence had been proved against the doctor in providing treatment to the patient.
To argue his case, reliance was placed on the Supreme Court order in the case of Jacob Mathew vs. State of Punjab and another and the judgment in the case of Dr. Suresh Gupta vs. Govt. of N.C.T..
While considering the matter, the HC bench observed that as per the FIR lodged on 29.07.2007, the patient was admitted on 28th July at 10:30 A.M. However, the operation could not be carried out till 5.30 P.M. on 29th July for the absence of an anaesthetist. After registering the FIR, the I.O referred the matter to the C.M.O., who constituted a Medical Board. The Court noted that it was evident that the complainant was not given any opportunity to give a statement.
Further, the Court noted that the doctor himself appeared before the Medical Board and informed that he checked the patient at about 6.00 P.M. and again at 10.00 P.M. on 28th July and suggested surgery. Again, the patient was checked at 6 A.M. on the next morning, and it was found that the fetal heartbeat was high, and therefore the doctor suggested surgery, he said.
It was submitted that around 12 O'clock, the patient was re-examined, and it was found that the heartbeat of the foetus was missing and therefore, the doctor suggested immediate surgery. He had also informed the patient that, in case the surgery was carried out, it would become fatal. The doctor alleged that the foetus died because the family members of the patient did not agree for the surgery at the right time. The time of surgery was mentioned by the doctor as 4 P.M. However, the court observed that the timings were different in the FIR as opposed to what was stated by the doctor.
"A bare perusal of the post mortem report of the foetus, which has been annexed along with the supplementary counter affidavit, shows that cause of death was “Prolonged Labour”. However, there is nothing on record to show that the post mortem report was placed before the Medical Board and even the report of the Medical Board does not talk anything about the post mortem report," further observed the HC bench.
After referring to previous judgments on the issue of medical negligence, the HC bench noted that it is a common phenomenon that whenever there is death, there is a marked tendency nowadays to look for a human factor to blame the doctors. "In such condition, there has to be protection for the medical professionals. Unless and until protection is granted, the hands of a surgeon is going to shiver and he might not conduct the surgery out of fear of prosecution, if there is no protection," the Court noted at this outset.
"However, this protection has to be balanced as per the ratio laid down in several judgments, this protection can only be applied if the medical professional has carried out its duty skilfully, as any other doctor would have done in the given circumstances...A criminal liability occurs, if ordinary care is not taken by a doctor while treating the patient. In case of criminal liability, the ingredients of mens rea have to be seen. The true rest for establishing criminal negligence is to see whether the doctor was guilty of not acting with ordinary care," observed the HC bench.
The Court observed that this was not a case where the applicant did not possess the requisite qualification, but the question was whether the applicant had exercised reasonable care in providing medical service in time, or he had acted carelessly.
"In this matter, though consent was taken around 12 O’Clock but the operation was conducted at 5.30 P.M. Delay in conducting the surgery was non-availability of the anaesthetist, which resulted in death of the child," noted the Court.
The bench referred to the Supreme Court order in the case of Kusum Sharma and others vs. Batra Hospital & Medical Research Centre and others, where the top court held that in the case of medical negligence men's rea has to be seen as well as on the element of criminality, it has to be be seen whether the accused has done the act with recklessness or by indifference.
"In the case in hand, there was clear distinction between simple lack of care incurring civil liability and very high degree of negligence, which incurred criminal liability. As far as prosecution of the applicant in instant criminal case is concerned, there is difference between civil liability and criminal liability. It cannot be said that if action has been taken in civil liability, no criminal liability rises," noted the HC bench.
Terming this case as "pure misadventure", the Court noted that the doctor admitted that even after obtaining consent for the surgery from the patient's family members, he did not perform the surgery in time as he did not have an anaesthetist to perform the surgery. As per the statement of the anaesthetist, he got a call at 3:30 P.M. Therefore, the Court held that this delay (medical negligence) can only be attributed to the applicant doctor.
"In this case there is a contradiction of time of admission, time of consent and time of operation. And there have been two O.T. notes and a post mortem report. All the documents were not produced before the Medical Board and hence, opinion of the Medical Board would have no credence in this matter. This is a case where prima facie offence is made out against the applicant and there is no justification to invoke inherent powers for any interference in the impugned proceedings," it further observed.
Further, slamming the private hospitals for treating patients like ATMs to extort money out of them, the Court observed,
"No doubt, yes the medical practitioner had to be saved from the clutches of medical negligence otherwise that would cause trembling and dangling fear among doctors of commencing criminal prosecution of any failure in any operation/surgery. This is the fact that any medical professional, who carries out his profession with due diligence and caution, has to be protected but certainly not those doctors who have opened nursing home without proper facilities, doctors and infrastructure and enticing the patients just to extract money out of them."
The court noted that in this case, the consent was obtained at around 12 O'clock and thereafter the doctor suggested surgery, but the same was not carried out till 4/5 PM. and no reason was given by the doctor for the delay. The post mortem report also showed that the fetus had died due to prolonged labour.
"This clearly shows malafide intention of the doctor/applicant in cheating the patient," held the bench.
"The time of admission of the patient and the time of surgery and time of taking the consent from the family member of the patient are three crucial aspects in this case which has to be seen upon after adducing evidences. If the consent of the family members was given at around 12 O’ Clock why the operation was carried out at 4/5 P.M. There is no rationale for delay on the part of the doctor/nursing home/hospital. Such negligence can only be attributed to the doctor/applicant," it observed.
With this observation, the Court refused to quash the criminal proceedings against the doctor as it held, "It is only after the evidence and trial, it can be seen as to whether the offence, as alleged, has been committed or not."
To view the order, click on the link below:
https://medicaldialogues.in/pdf_upload/allahabad-hc-private-hospital-295747.pdf
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