Failure to conduct pre-anaesthetic check-up is gross negligence: HC refuses relief to anaesthetist booked under IPC 304A
Kerala High Court
New Delhi: Observing that failure to conduct a pre-anaesthetic check-up amounts to gross negligence, the Kerala High Court recently denied relief to an anaesthetist booked under Section 304 A of the Indian Penal Code (IPC).
Referring to the findings of the post-mortem report and the expert panel, the HC bench comprising Justice G. Girish observed, "...the findings in the postmortem report, as well as the report of the expert panel, are to the effect that the surgery of the deceased lady was conducted without pre-anesthetic check-up which the petitioner was bound to conduct before proceeding with the application of anesthesia upon her. If it is found that no pre-anesthetic check-up was done upon the deceased lady, it would definitely point to gross negligence on the part of the petitioner."
The accused doctor filed the plea before the HC bench, challenging the order dated 21.03.2019 of the Additional Assistant Sessions Court, Palakkad, framing charges against him under Section 304A I.P.C, and forwarding the case to the Judicial First Class Magistrate Court-III, Palakkad, under Section 228 Cr.P.C for trial.
The petitioner doctor is an Anaesthetist in a private hospital. A 23-year-old patient, who delivered a baby on 11.09.2014, had undergone Post-Partum Sterilization (PPS) surgery in that hospital on 13.09.2014. The petitioner was the Anesthetist who attended her during that time.
After the surgery was performed, the concerned patient died due to peripartum cardiomyopathy caused by primary pulmonary hypertension. Initially, an F.I.R was registered under Section 174 Cr.P.C in connection with the aforesaid death.
Later, the treating gynaecologist and anaesthetist were booked under Section 304 IPC. After considering the report of the District Level Expert Committee of Doctors, the Investigating Officer laid the final report against the petitioner alone, for the commission of offence under Section 304 I.P.C., in connection with the aforesaid death of that lady after PPS surgery. It was alleged that the petitioner had failed to conduct pre-anaesthetic check-up and it resulted in the complications leading to the death of the patient.
The petitioner filed plea before the learned Additional Assistant Sessions Judge, seeking discharge from criminal prosecution. After hearing both sides, the learned Additional Assistant Sessions Judge concluded that the offence under Section 304 I.P.C was not attracted, in the facts and circumstances of the case. However, it was found that there were prima facie materials to proceed against the petitioner for the commission of offence under Section 304 A I.P.C. Accordingly, the learned Additional Assistant Sessions Judge framed charges under the aforesaid Section, and passed the order under Section 228 Cr.P.C forwarding the case to the Judicial First Class Magistrate concerned for proceeding with the trial. This order was challenged by the accused doctor before the High Court.
While considering the matter, the HC bench noted that gross negligence in administering treatment was attributed to the petitioner, stating the reason that he gave anesthesia to the deceased lady, without conducting pre-anesthetic check-up, prior to her PPS surgery. According to the prosecution, the said omission was the cause of death of that 23-year-old lady, who delivered a female child without any medical complications, two days prior to her death.
The prosecution relied on the report of the District Level Expert Committee consisting of five Senior Medical Officers including Specialists in Gynaecology and Paediatrics and the D.M.O. Further, the prosecution also referred to the findings in the postmortem report to contend that the petitioner displayed gross negligence by his failure to conduct pre-anaesthetic check-up upon the deceased lady before proceeding with the process of anaesthesia.
Strongly disputing the allegation about his failure to conduct a pre-anaesthetic check-up upon the lady, who lost her life due to peripartum cardiomyopathy after the PPS procedures, the petitioner submitted that the hospital records would reveal that he had conducted the aforesaid check-up.
Taking note of the submissions, the HC bench observed that the matter mainly concerned a dispute of fact as to whether the petitioner had conducted pre-anaesthetic check-up upon the deceased, before proceeding with the process of giving anaesthesia to her.
The Court also took note of the report of the expert panel consisting of the District Medical Officer and four other Specialist Doctors of Gynaecology, Paediatrics, Surgery and Forensic Medicine. In the aforesaid report, it has been stated in unequivocal terms that the hospital case records and the postmortem report would disclose that pre-anesthesia check-up, which is the essential part before a surgery, was not done upon the deceased lady. For this reason, the panel of expert doctors unanimously found that the Anesthetist was negligent in that respect.
At this outset, the HC bench observed,
"As matters stand now, the findings in the postmortem report, as well as the report of the expert panel, are to the effect that the surgery of the deceased lady was conducted without pre-anesthetic check-up which the petitioner was bound to conduct before proceeding with the application of anesthesia upon her. If it is found that no pre-anesthetic check-up was done upon the deceased lady, it would definitely point to gross negligence on the part of the petitioner."
"The question whether the complaints of primary pulmonary hypertension leading to peripartum cardiomyopathy could have been detected in a pre-anesthetic check-up, is a different aspect. What could be understood from authoritative medical text books is that a pre-anesthesia check-up can raise suspicion or detect it if symptoms or signs of the aforesaid complaints were present in the patient. If such a medical condition could have been detected from any symptoms or signs of the patient, then definitely adequate precautionary measures could have been taken to save the life of the patient. When viewed in the above perspective, the failure to conduct pre-anesthetic check-up would definitely amount to gross negligence, even though such a check-up could have averted casualty only in such cases where the primary pulmonary hypertension and peripartum cardiomyopathy were symptomatic in the patient. The question whether the deceased lady had any such symptoms indicative of the aforesaid ailments could be ascertained only after the examination of the medical officers concerned who had the occasion to observe that lady prior to the delivery and also immediately after delivery. Thus, the aforesaid factual aspect is also a matter to be looked into by the Trial Court at the stage of evidence," it further noted.
Accordingly, the Court denied relief to the accused doctor and refused to discharge him from the criminal prosecution. It noted,
"At any rate, it is not possible for this Court to invoke the revisional powers to terminate the prosecution proceedings against the petitioner, since the documents on record point to the failure of the petitioner to conduct pre-anesthetic check-up upon the deceased lady before giving anesthesia. As a conclusion to the above discussion, I find that the prayer of the petitioner to discharge him from the criminal prosecution for the commission of offence under Section 304A I.P.C, cannot be allowed."
To view the order, click on the link below:
https://medicaldialogues.in/pdf_upload/2026/04/10/kerala-hc-section-304a-340875.pdf
