Gujarat HC upholds criminal prosecution of 2 orthopaedic surgeons, says patient consent doesn't cover negligence

The case concerned an IAS officer who filed a criminal complaint with the local magisterial court alleging that his left leg got shorter following surgery on his injured hip. The officer sought the prosecution of the two doctors under Section 338 of IPC for causing grievous hurt by rash and negligent acts that endanger life.

The complainant got injured and fractured his hip while probing an encounter. He was admitted to a private hospital where the two orthopaedic surgeons performed an operation on him in July 2012. However, after the surgery, the patient developed lurching gait. He would sway to his left, causing difficulty in walking due to poor balance.

He continued his follow-up treatment with one of the surgeons until he allegedly did not get desired results and went for a second opinion. He was informed that the surgery was not been conducted properly, and he would need another surgery to correct the problem.

After examining the matter, the lower court, in April 2014, ordered the prosecution of the doctors for their alleged negligence.

Challenging the lower court order, the doctors moved the high court, claiming that there was no negligence on their part and that such a section could be invoked only if their action was gross and reckless, which it was not.

They further submitted that on the patient's complaint before the national consumer forum, a panel of 7 doctors from the All-India Institute of Medical Sciences (AIIMS) investigated the case and absolved the two doctors. However, the document was not available for HC's perusal.

The doctors' lawyers also repeatedly contended that the patient had signed a consent form.

Also Read: NCDRC Exonerates Orthopedic Surgeon, Holds No Medical Negligence In Treating Hip Bone Fracture

Meanwhile, the senior counsel, I H Syed, for the patient submitted that the hip screw, which was fixed, was at an angle different from the normally recommended protocol. This caused the patient's left leg to shorten by three-fourths of an inch. The hip screw had been implanted at an upward tilt of approximately 10 degrees. Moreover, the doctors realized this the day after surgery but did nothing to rectify the mistake. Thus, doctors were prima facie guilty of negligence.

After hearing the case, Justice Nikhil Kariel rejected the doctors' petitions and permitted their prosecution, observing that the act of improper fixing of an implant resulted in deformity and this was an immediate and natural consequence of the negligent act. Instead of rectifying the erroneous fixing, the doctors appeared to have misguided the complainant by informing him that all was well. It noted;

"...the acts on part of the doctors reveal a culpable state of mind and whereas the negligence and recklessness being very clear and palpable given the overwhelming material showing the error committed by them, clearly points out to the fact that the negligence and recklessness are of a higher degree and which could come under the ambit of criminal negligence."

TOI reports, taking note of the point raised by the doctors' lawyers of the patient signing a consent form, the court observed that the consent was for the operation, where doctors would exercise the requisite skill and knowledge possessed by them. Had the implant failed, the case would not have fallen in the ambit of negligence but

"the scope of consent for the operation could not be and ought not to be permitted to be enlarged to cover even negligent and reckless acts on part of the petitioners".