HC remands Gynaecologist's medical negligence case against Mumbai's Hospital head to trial court, orders bench to consider evidence
Mumbai: The case alleging medical negligence against the head of Ashirwad Heart Hospital in Mumbai will once again be considered by the trial court as the Bombay High Court recently remanded the matter back to the trial court bench ordering it to consider the evidence including answers given during cross-examination.
A gynaecologist had accused Dr Shah, who runs Ashirwad Heart Hospital, of medical negligence while providing treatment to her father suffering from a Transient Ischemic Attack. While undergoing treatment at the hospital, the patient died in 1993.
Although the trial court had exonerated Dr. Shah, the HC bench opined that the matter required a re-evaluation as the trial court had inadequately addressed critical evidence and testimonies in its initial judgment.
"The judgment passed by the Court of the Metropolitan Magistrate, 49th Court, Vikhroli dated 14/05/2013 in Case No. 43/S/1994 is set aside...The matter is remanded to the said Court and let the trial Court start from the stage of hearing the arguments of the Parties," ordered the HC bench comprising S. M. Modak.
However, the High Court has set a time limit to resolve the case. Both parties have been given time to inform the Court about the evidence within 15 days. The Complainant will have 15 days to finish arguments and the accused will get another 15 days to finish his arguments. Thereafter, the complainant will be given seven days to give a reply to the arguments of the accused. Then, let the trial Court deliver the judgment within a time limit permissible by law, according to the bench order.
The history of the case goes back to 1993 when the patient, after experiencing the symptoms of a Transient Ischemic Attack (TIA), was admitted to Ashirwad Heart Hospital. Initially, the complainant, who is a doctor herself had noted that her father was perspiring and having difficulty balancing. She consulted Cardiologist Dr. Desai and Neurologist Dr. Panchal, who after diagnosing that the patient had suffered from TIA had recommended the ICU admission. However, while undergoing treatment, the patient died on March 26, 1993.
As per the hospital, the patient had died due to a "Cervical active cardiac respiratory attack". The doctor also mentioned the immediate causes as 'brain stem infarct' and antecedent caused as hypertension and diabetes mellitus. However, the complainant filed the case accusing the doctor of medical negligence.
Initially, the Metropolitan Magistrate's Court acquitted Dr. Shah from the charges of negligence. Noting that there was no material on record to prove the negligence on the part of the accused, the trial court had dismissed the plea by the complainant. Challenging this decision, the doctor appealed before the Bombay High Court.
The counsel for the complainant doctor argued before the HC bench that the trial court had failed to consider substantial evidence, including testimonies and medical documents. He pointed out several acts of omission- such as failure to hook the patient to a cardiac monitor, ignoring the history of stroke, and continuing drugs that are harmful in heart attack patients. He also submitted that the trial court did not even refer to the evidence including the admissions made by the accused during cross-examination.
While considering the matter, the HC bench perused the entire judgment of the trial court and noted that there was an emphasis on examining the patient by various doctors, emphasis on the fact that the Complainant was from the medical fraternity, there was an emphasis on the advice taken by the Complainant after her father died and also on the different in liability in criminal and civil prosecution.
The HC bench observed that there cannot be any dispute about the preposition that there could be judgment of the acquittal or conviction, but "issue is trial Court is bound to consider the evidence adduced by the Parties. No doubt that evidence is very much available before the trial Court, but it needs to be dealt with in the judgment, because it gives an opportunity to the Appellate Court to ascertain the correctness of the findings."
"But in this case at no point of time trial court has dealt with evidence of the Complainant, the medical case papers produced by her and evidence of the accused. After dealing with them, the trial Court could have come to the conclusion that no case of negligence as contemplated under Section 304-A of the Indian Penal Code is made out. But it is lacking in this case," further observed the Court.
The Court noted that whatever references were there about the factual observations, not a single incident of omission was referred by the trial court. "The accused has cross-examined the Complainant but trial Court could have dealt with the answers given during cross-examination also. It is same for evidence of the accused also. The accused is not required to enter into witness box but if he has entered, then the trial Court is required to consider that evidence including answer given during cross-examination," it observed.
With this observation, the HC bench decided to remand the matter back to the trial court noting that "There has to be finding by the trial Court after considering the materials and after giving reasoning. I find both are absent in this case. I thought it proper not to give any findings on the basis of the available evidence, because the Parties will lose one opportunity to challenge those findings."
"After the remand, the trial court is required to hear the arguments of both the sides. It is made clear that this Court has not given any liberty to both the Parties to adduce evidence. The trial Court has to start with the proceeding from the stage of hearing the argument. It is true that matter is old. So certain time limit needs to be fixed for those stages. There has to be some time limit for completing the arguments," further stated the judgment. The High Court directed both the parties to appear before the trial court on 22nd July, 2024.
To view the order, click on the link below:
https://medicaldialogues.in/pdf_upload/bombay-hc-order-244266.pdf
