Very high degree of negligence is needed for doctors conviction: Bombay HC absolves 3 doctors of IPC 304 A
Mumbai: Ruling that a very high degree of negligence is needed for a doctor's conviction, the Bombay high court has upheld the acquittal of 3 doctors including a surgeon and anesthesiologist, who were accused of IPC 304 A (Causing death by negligence) r/w Section 34 of the Indian Penal Code.
The trio was booked by the Kolhapur police in the year 2001 after a 14-year-old girl died after a tonsillectomy. The bench, upholding the judgment of the trial court that had acquitted three medical practitioners, referred to an earlier Apex Court judgment that had mentioned "For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as "gross negligence" or recklessness."
The single-judge bench of Justice K.R. Shriram, in the order dated 12.03.2021, has further mentioned that "there is a presumption of innocence in favor of respondent and such presumption is strengthened by the order of acquittal passed in his favor by the Trial Court."
The case concerned a 14-year-old girl who had visited the one of the accused doctors on 30/04/2001 to get tonsillectomy performed on her. However, following the operation, the girl allegedly suffered from profuse bleeding and died eventually.
Following this, the family brought charges against the three doctors- one was the main surgeon, another was assisting him, and the third one was an anesthesiologist. The police arrested the doctors and they were released on bail afterward.
In the trial court, the doctors had contested the claims of the family and had pleaded not guilty. The prosecution had mainly relied on the evidence and statement of the two doctors- one of them had conducted the postmortem on the deceased girl and another one had been a member of the committee constituted to give opinion about the cause of death of the deceased.
After testing the pieces of evidence, the trial court had acquitted the three doctors and that judgment dated 22.02.2005 was challenged before the High Court bench.
While addressing the evidence of the two doctors who conducted a postmortem on the girl and examined the cause of her death, the Bombay High Court bench noted that the first doctor had opined that the death of the girl was due to "haemorrhagic shock due to post-tonsillectomy bleeding, however, viscera preserved". The other doctor who had examined the cause of the girl's death had also supported this statement.
The counsel for the petitioner i.e. the State of Maharashtra had submitted before the HC bench that the statement by the doctor conducting postmortem meant that the death had been "due to heavy bleeding caused after operation of the tonsils of the patient."
However, the doctor who conducted the autopsy had also stated during the cross-examination that she couldn't tell whether the blood mentioned in buccal cavity was of post-operation bleeding or after death passive bleeding. She also agreed that "bleeding is common post-operation when surgery is performed on tonsil."
The doctor who examined the cause of the girl's death had also stated during his cross-examination before the HC that the questionnaire that had been answered by the committee was prepared by presuming that the death was due to heavy bleeding. He also admitted that the committee was not asked whether the death was caused by hemorrhage shock or some other reason. Finally, he informed the court that the "death of patient may be caused due to hemorrhagic shock or may be caused due to laryngeal spasm."
Meanwhile, during the cross-examination the father of the deceased and a relative had also agreed that the treating doctors had been attentive throughout the procedure. They gave the patient injections immediately to stabilize her condition, gave her oxygen support, and also sought help from specialist doctors, including a heart specialist.
While listening to all the arguments by both the parties, the Bombay HC bench also referred to the Supreme Court judgment in Dr. Suresh Gupta V/s. Govt. of NCT of Delhi and Another. There the Apex Court had opined, "For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as "gross negligence" or recklessness". It is not merely lack of necessary care, attention and skill."
"Thus a doctor cannot be held criminally responsible for patient's death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State," mentioned the Apex Court judgment.
The Bombay HC had further referred to another Apex Court judgment which included the factors to be kept in mind by the Appellate Court while hearing an appeal against acquittal. The judgment had noted that the accused should be presumed to be innocent until proven guilty. It further mentioned that "The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so."
Keeping all these factors in mind and after testing all the evidence, the Bombay HC in the recent judgment observed, "I do not find anything palpably wrong, manifestly erroneous, or demonstrably unsustainable in the impugned judgment. From the evidence available on record, there is nothing to substantiate the charge leveled against accused."
"To convict the doctors, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care or precaution or attention or inadvertence may create civil liability but not a criminal liability," the bench observed.
"There is an acquittal and therefore, there is double presumption in favor of accused. Firstly, the presumption of innocence available to accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed, and strengthened by the Trial Court. For acquitting accused, the Trial Court rightly observed that the prosecution had failed to prove its case," observed the HC bench agreeing at the same time that unfortunately, the parents had lost their child who was only 14 years of age.
Thus, the HC denied interfering with the acquittal order passed by the Trial Court and dismissed the appeal stating, "the opinion of the Trial Court cannot be held to be illegal or improper or contrary to law".
To view the original court order, click on the link below...