Complications from Anaesthesia before Surgery: Gujarat HC comes to rescue of Spinal Surgeon, facing criminal proceedings under IPC 304A
Ahmedabad: Granting major relief, the Gujarat High Court bench recently dismissed an FIR against a spinal surgeon in a case of alleged medical negligence. The court ordered in favour of the surgeon after it noted that the patient, who had a history of asthma, suffered respiratory distress after the administration of the anaesthesia and the treating surgeon did not even commence the operation.
It was opined by the HC bench comprising Justice Sandeep N Bhatt that there was no criminal liability on the part of the treating surgeon, who, at best, could have taken extra care of the patient by keeping some physician present at the time of the surgery as the patient has a history of asthma.
However, the bench also noted that when complications developed after the administration of anesthesia, the treating surgeon immediately called a doctor to attend to the patient.
"...even otherwise, before such surgery, it transpires that either the physician and anesthetist has to make necessary inquiries with the said patient and after giving opinion either by the anesthetist or physician, such surgery can be performed and in the present case, the anesthetist has already given opinion with a view to perform surgery," noted the Court.
The concerned doctor filed the plea under Section 482 of the Code of Criminal Procedure, 1973 with a prayer to quash and set aside the FIR registered against him by the husband of the patient, who died while undergoing treatment.
Further, the doctor also urged the court to put a stay on the further proceedings of the criminal case registered and pending before Chief Judicial Magistrate First-Class at Gandhinagar.
The matter goes back to 2013 when the complainant's wife, an Asthma patient, was taken to the hospital of the concerned doctor as she was having pain in her left leg.
Consequently, the patient was admitted to the hospital to undergo the required operation. Allegedly, before the operation, the complainant had informed the treating doctor and the anesthetist about the bronchitis and asthma of the patient.
On 03.06.2013, the patient was taken to the operation theatre at around 2 o'clock. However, the condition of the patient worsened and doctor informed that the patient was required to be taken to a hospital having ventilator therefore, she was taken to Indus Hospital in Sabarmati. However, her condition worsened further and she was shifted to BAPS hospital, Shahibaug. Ultimately, the patient expired on 09.06.2013.
The complainant alleged that before the operation for Spinal Cord, Pulmonary Function Test was required but it was not done. It was also alleged that the ventilator facility was required to be kept ready while conducting the operation of such patient. However, no such facility was made available.
Besides, the complainant also alleged that the treating Anesthetist Dr. Shah did not remain present at the time of the operation and service of some other anesthetist was taken. Therefore, the complainant lodged a complaint and alleged that his wife died due to the negligence committed by the treating doctor. However, approaching the High Court, the concerned doctor prayed for the dismissal of the complaint.
The doctor's counsel pointed out that the complaint was filed under Sections 304A and 114 of the Indian Penal Code. Referring to the provisions of Section 304A of the IPC, the counsel argued that the doctor did not perform any rash or negligent act that would hold him liable for negligence.
He further argued that the Anesthetist Dr. Shah, after considering the medical papers and bed-side PFT reports of the patient opined that, the anaesthesia could be administered to the patient and the operation could be performed. Therefore, there was no negligence on the part of the treating doctor.
It was further submitted that a doctor, who was in the team of Dr. Shah, administered the anaesthesia. The treating doctor's counsel further argued that since no surgery was done and the respiratory problem occurred soon after the anaesthesia, the applicant was not liable for any negligent act.
Reliance was also placed on the Post Mortem report which mentioned that the cause of death was cardio-respiratory arrest due to lung edema and not due to any complication of surgery as she suffered heart problem before the surgery and there were no surgery marks in the Post Mortem report also.
Further, the counsel also referred to the report of the committee, where there was no opinion about the negligence that can be said to be gross negligence or any negligence which entails criminal liability. On the contrary, the report opined that the anaesthetist could have taken more care when the patient is suffering from asthma.
Regarding the lack of a ventilator facility, it was submitted that the anaesthesia was equipped with ventilators and in many cases, they are capable of providing life-sustaining mechanical ventilation to patients with respiratory failure. The counsel informed the court that the patient was shifted to a hospital having an ICU facility based on the advice given by the cardiologist Dr. Chaudhary. The doctor's counsel argued that he could not be held liable for the act of the anesthetist and there could not be vicarious liability in criminal law.
While considering the matter, the HC bench noted that the complainant filed a consumer complaint before the Consumer Forum, Gandhinagar, which dismissed the complaint after considering various judgments and by giving detailed reasons on the aspect of negligence in medical science. However, the order of the consumer court has been challenged before the Consumer Commission, where the appeal is still pending.
After taking note of the medical record, factual aspects and considering the judgments which are cited, the Court opined that "...prima facie, no mens rea or culpable negligence of the present applicant can be found which can attract the penal provisions against the present applicant."
"It is undisputed fact that there is no allegation that due to surgery or operation performed by the present applicant, the patient has died but the complication has occurred due to anesthesia administered to the patient. Therefore, at the best, there can be some negligence which can be attributed to the anesthetist but vicarious liability of the applicant cannot be fastened in the criminal law," the HC bench further noted at this outset.
Therefore, after considering all these aspects, the Court, prima facie, opined that the case is made out to exercise powers under Section 482 of the Code "as continuation of the present proceedings pursuant to the FIR will amount to abuse of process of law against the present applicant."
Apart from this, the bench also considered several other aspects including the criminal liability, monetary liability, disciplinary action, and the factors that constituted medical negligence.
The court also relied upon the judgments in the cases of Martin F D’Souza V/s Mohd.Ishfaq, Kusum Sharma And Others V/s Batra Hospital and Medical Research Centre and Others, and especially the Supreme Court order in the case of Jacob Mathew (supra) and noted that the "...doctors and nurses respectively who are professionals cannot be fastened with `negligence’ under the criminal law because the degree of negligence was not high enough or in fact there was not any negligence on their part so as to foist charges under Sections 304A and 114 of the IPC."
Further relying on the Supreme Court order in the case of Jacob Mathew Vs State of Punjab & Anr and other relevant judgments and law relating to medical negligence, the HC bench noted that no criminal liability could be fastened against the treating doctor, who has not performed any operation or surgery.
"Considering the judgments referred to above, the case of the present applicant is required to be considered for quashing of the FIR as no criminal liability can be fastened against the professional, more particularly, when the present applicant has not performed any operation or surgery. At the best, he could have taken extra care by keeping some physician present at the time of surgery as patient was having history of asthma but when the complication was developed after administration of anesthesia and as some respiratory complication developed, it transpires that the applicant has immediately called physician/cardiologist Dr.Kamlesh Chauhan for attending patient and even otherwise, before such surgery, it transpires that either the physician and anesthetist has to make necessary inquiries with the said patient and after giving opinion either by the anesthetist or physician, such surgery can be performed and in the present case, the anesthetist has already given opinion with a view to perform surgery," note the Court.
Further, the Court observed that the complaint was filed after a delay of eight months and the Supreme Court has held in a number of judgments that such delay is required to be explained which is not done in the present case. "...therefore on that count also, the complaint is required to be quashed and the present petition is required to be considered," noted the Court.
"Considering the overall aspects, factual and legal, as discussed hereinabove, and more particularly, considering the fact that the present applicant has not committed any gross negligence or any criminality can be attributed to the present applicant who has admittedly not performed any surgery and such complication has occurred prior to performance of such surgery, I am of the opinion that the present application is required to be allowed by exercising powers under Section 482 of the Code," the Court ordered.
"Accordingly, this application is allowed. The impugned complaint being CR No.I-46 of 2014 registered with Chandkheda Police Station for the offence punishable under sections 304A and 114 of IPC and the charge sheet filed in respect to the said FIR being Charge Sheet No.153 of 2014 and all other consequential proceedings arising out of the FIR being CR No.I-46 of 2014 read with Chandkheda police station are hereby quashed and set aside qua the applicant. Rule is made absolute. Direct service is permitted," it further mentioned.
To view the order, click on the link below:
https://medicaldialogues.in/pdf_upload/gujarat-hc-229157.pdf
