Is mere presence during surgery enough to prosecute? HC Clears Gynaecologist in Alleged Kidney Removal Case

Patna: Granting relief to a gynaecologist, the Patna High Court recently quashed all criminal proceedings against her in a medical negligence case dating back to 2003, where a patient had alleged that his right kidney was removed without consent by the treating doctors.

After taking note of the report by PGI Chandigarh, the HC bench comprising Chandra Shekhar Jha set aside the order dated 23.02.2025 by the Sessions Judge, Patna, which had dismissed the application for discharge filed by the petitioner under Section 227 of the Cr.PC.

The history of the case goes back to 2000, when the complainant was suffering from abdominal pain, and later he alleged that his right kidney was removed without consent during treatment by Dr. Sinha, a surgeon. He alleged that due to this, he due was suffering from various medical complications. Dr. Sinha's wife, a gynaecologist, was present during the surgery as a part of the medical team, and later she was also named a co-accused in the case.

Taking note of the complaint, the Jurisdictional Magistrate committed the case before the trial court under Section 209 of the Cr.P.C. for the trial. When the trial court dismissed the application for discharge filed by the gynaecologist, she approached the High Court challenging the order.

The counsel for the petitioner submitted that the petitioner is a gynaecologist by profession and there was no need for her presence during the operation, where it had been alleged that the complainant's right kidney was removed. It was further submitted that the operation was conducted by the petitioner's husband, who is a surgeon. However, out of oblique motive, the petitioner was made an accused in this case.

Further, the counsel pointed out that the petitioner had earlier moved before the court for constituting a Medical Board to seek an expert opinion regarding the alleged medical negligence and it was rejected by the order dated 11.10.2010.

He also submitted that for further testing to ascertain that it was a case of kidney removal or absence since birth, a Medical Board was constituted under the Chairmanship of the HoD, Nephrology, PGIMER, Chandigarh, where after going through CT Pyelography/Cystoscopy, it was categorically stated that the right kidney of the complainant was not removed, rather, it was found shrunken and severely atrophic.

On the other hand, the complainant's counsel submitted that the petitioner's husband had categorically recorded that the complainant's right kidney was present before surgery in 2000. The complainant was treated for “Chyluria”, where the pyelolymphatic duct was operated for milky discharge of urine. It is submitted that after operation, the complainant developed "pain and, thereafter, he was treated with another physician. During the treatment, he came to know that his right kidney was not visible and later the report of AIIMS New Delhi and Mahavir Cancer Sansthan, Patna also suggested that the right kidney was not visible.

While considering the matter, the HC bench perused the medical report of Postgraduate Institute of Medical Education and Research, Chandigarh dated 16.03.2016, which recorded that "In view of findings on cystoscopy, retrograde ureteropyelography and CT Pyelography, the committee concluded that the right kidney of Mr. *** was not removed. However, it is shrunken and severely atrophic."

Taking note of this, the HC bench observed, "The aforesaid report of P.G.I., Chandigarh suggests that the complainant left the test for a long period and has made himself available only in the year-2016 to get it concluded. It also appears that none of the radiological tests prior to P.G.I., Chandigarh suggests that it was a case of kidney removal rather it only suggest that the right kidney of O.P. No.2 is not visualized."

Referring to the previous orders passed by the Supreme Court, the HC bench observed that the petitioner gynaecologist, was only present during the operation and therefore all criminal proceedings against her were liable to be dismissed.

"Considering the aforesaid factual and legal submissions and by taking note of facts, as admittedly the petitioner is the wife of Dr. *** Sinha, who conducted the operation upon O.P. No.2 on 13.09.2000, where petitioner was only said to be present and further by taking note of the report of P.G.I., Chandigarh, which is a document of unimpeachable character, therefore, taking note of Devendra Nath Padhi case, Bhajan Lal Case and other legal reports as discussed, this Court is of the opinion that the impugned order dated 23.02.2024 as passed by learned Additional Sessions JudgeX, Patna in Sessions Trial No.440 of 2023 arising out of Complaint Case No.1750(c) of 2003 along with all its consequential proceedings qua petitioner is fit to be set aside/quashed to secure the ends of justice," ordered the Court.

"Hence, the impugned order dated 23.02.2024 with all its consequential proceedings qua petitioner as passed by learned Additional Sessions Judge-X, Patna in Sessions Trial No.440 of 2023 arising out of Complaint Case No.1750(c) of 2003, is hereby set aside/quashed," it further noted.

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/patna-hc-order-285020.pdf

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