No medical negligence- HC quashes criminal proceedings against gynaecologist, notes patient returned to same doctor despite similar injury to firstborn
Calcutta High Court
Kolkata: Granting relief to a Kolkata-based Gynaecologist, who was accused of medical negligence during a caesarean delivery resulting in the scalp injury of the newborn, the Calcutta High Court recently dropped the case against her.
Perusing the case records, proceedings before the West Bengal Medical Council, and the doctor's explanation, the HC bench observed that the minor suffered a scalp injury "which occurred at the time of scissor and delivery" and "it was properly managed".
Apart from this, the court also took note of the fact that no complaint was made regarding the newborn's health condition and the wound not being sufficiently healed. Further, the bench observed that the complainant couple went back to the same doctor and hospital even though four years back, their baby girl had suffered a similar nature of injury mark.
"It is found from his own case that the minor baby girl was delivered by the same gynaecologist at the same hospital when similar nature of injury mark suffered by the baby girl long four years back, and despite that, the patient came before the same doctor and definitely, she was under the treatment of the present petitioner till birth of the baby which manifest the faith on the doctor /petitioner herein as well as had no grievance against the service provided by the hospital for which for the second time came before the same hospital and admitted under the same doctor," observed the HC bench comprising Justice Chaitali Chatterjee Das while exonerating the doctor.
Case Background:
The plea before the High Court was filed by the petitioner doctor who pursued her MBBS from RG Kar Medical College and obtained her Master of Surgery in Ob-Gyn from Kasturba Medical College.
As per the case details, the original complainant lodged a written police complaint against the petitioner and another doctor, alleging medical negligence and mismanagement during the Caesarean birth of his newborn at Woodland multi-speciality Hospital in Alipore.
In connection with the said criminal proceeding, the petitioner surrendered before the Court of Chief Judicial Magistrate, 24 Parganas South at Alipore and thereafter, based on such criminal proceeding, an enquiry was conducted by the enquiry committee of the Deputy Director of Health Services, Government of West Bengal. The petitioner could not satisfy the enquiry committee, and the police authorities submitted a charge sheet against her under Section 338 IPC. The learned court took cognisance of the said charge sheet, and it supported the documents supplied to the petitioner under the provisions of Section 207 of the Code of Criminal Procedure, 1973.
Another complaint was filed before the West Bengal Medical Council, and the Council had asked the doctor to submit her explanation. Accordingly, the petitioner submitted her reply, and the matter was thereafter referred to the panel and the ethical cases committee of the State Council, where, after recording deposition of witnesses, including the petitioner, it was concluded by the council that the fatal scalp injury which had occurred inadvertently during the Caesarean delivery was promptly managed. Necessary steps were taken for the care of the wound by the accused doctors and the baby was discharged after healing of the wound, in a healthy and satisfactory condition. Therefore, the council had opined that there was no medical negligence on the part of the treating doctor and recommended closing the case.
However, at the time of taking cognisance, the learned Magistrate did not consider the same, and the investigating authority did not enquire in the court of investigation about the complaint lodged before the Medical Council and its outcome. Therefore, in view of the subsequent observation made by the Medical Council, it was evident that the investigation was perfunctory, and hence the proceeding is not maintainable in the eye of law, argued the petitioner's counsel.
On the other hand, the counsel for the complainant argued that when the child was shown to them, they found an injury on the head of the baby and the doctor only explained it as a minor cut mark and on stitching, it would be cured within a few days. It was further contended that the first baby was delivered by the same doctor at the same hospital about four years back and the baby girl of the couple after delivery also had a similar nature of injury almost on the same place, a hairless spot on the middle side of the head and on asking same reply came from her being about a minor mistake and it would be cured and the hair would come on the spot. However, the counsel argued that the child was still suffering. Therefore, it was contended that when similar nature of mistakes happen by the same doctor in the same hospital, certainly it would suggest that there was medical negligence. After filing the charge sheet, it had been primarily well established and for this, the petitioner should face the trial, argued the complainant's counsel.
High Court's observations:
After perusing the documents, the HC bench observed, "The document filed by the petitioner in his revisional application consist of the explanation given by her as called for from the West Bengal medical Council and their doctor the order passed by the council and all other materials and it is evident from that the minor suffered a scalp injury which occurred at the time of scissor and delivery and it was properly managed. The opposite party no. 2 has also not lodged any complaint about the post Caesarean medical care given to the minor of the mother and he was discharged with the baby healthy and in satisfactory condition."
Further, the HC bench noted that the Supreme Court discussed a number of Judicial pronouncements where the question of medical negligence was considered in the context of treatment of a patient including the case of Jacob Matthew versus State of Punjab, where it was held that “higher the acuteness in emergency and higher the complication, more at the chances of error of judgement”.
The High Court noted that in this case, the charge sheet was submitted under Section 338 of IPC. At this outset, it observed,
"Essential ingredient to attract this offences is that the accused must did it rashly or negligently and the act was such as to endanger, human life, or personal safety of others and give us how it was caused in consequence of such act. In the case of Jacob Mathew versus State of Punjab it is held that only until the committee constituted as per direction, given its report about the medical negligence of the doctor, the doctors should not be prosecuted. It was held in this case that whenever a complaint is received against a doctor or hospital by the consumer forum,(weather, it is District, State or National) or by criminal Court, but before issuing a notice to the doctor or hospital against whom the complaint was made, the consumer forum or the court must first refer the matter to a competent doctor or committee of doctors specified in the field relating to which the medical negligence is attributed, and only after that, the doctor or the report that there is prima facie case of medical negligence should issue the notice to the doctor/Hospital concerned. This is to avoid harassment. Further, it was observed that private complaint may not be undertaken unless the complaint has produced prima facie evidence in the form of credible opinion by another competent doctor."
On a close scrutiny of the written complaint, the Court observed that nowhere did it appear that there was any rashness or negligence to endanger human life or the personal safety of others.
"In this case a procedure was adopted by the petitioner or being a doctor having sufficient experience in the field and while doing so there is an injury or over the scalp area at the time of Caesarean delivery and subsequently all the necessary steps were taken since no allegations of negligence in not taking appropriate steps were raised or assailed by the opposite party No.2 (complainant), and thereafter the patient was discharged in satisfactory condition. Subsequently, also, no complaint was made by the opposite party no. 2 regarding the health condition or the wound was not being sufficiently healed. It is found from his own case that the minor baby girl was delivered by the same gynaecologist at the same hospital when similar nature of injury mark suffered by the baby girl long four years back, and despite that, the patient came before the same doctor and definitely, she was under the treatment of the present petitioner till birth of the baby which manifest the faith on the doctor /petitioner herein as well as had no grievance against the service provided by the hospital for which for the second time came before the same hospital and admitted under the same doctor," it noted.
Further, it observed that the order of the medical council was not made a part of the investigation and the charge sheet was submitted much before the opinion was given by the medical council.
"However, the investing officer in course of investigation ought to have enquire about the fate of the complaint forwarded before the medical council when under the Bengal Medical Act of 1914, there is a provision for enquiry with regard to any such complaint against any doctor about medical negligence. The opposite party has not filed any proceeding before the consumer court about any deficiency of service or medical negligence, but lodged criminal complaint against the petitioner over which the case started and charge sheet has been submitted," held the HC bench.
The Court observed that it is a settled proposition of law that since negligence amounts to criminal offence, the element of mens rea must be shown to exits against the petitioner.
"In the case of Jacob Mathew versus State of Punjab it was observed by the Hon’ble Supreme Court that a case of occupational negligence is different from one of the professional negligence .So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort that practice or procedure which the accused followed. It was held in the said decision that to prosecute a medical professional for negligence under something which in the given facts and circumstances no medical professionals in his ordinary senses and prudence would have done or failed to do, the hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent," it noted.
Accordingly, the bench concluded that there was no medical negligence on the part of the treating doctor. "Therefore, on careful consideration of the fact and circumstances of the case, and the discussions made herein above this court do not find that the petitioner /doctor was not a qualified doctor to treat the patient or any negligence was there on her part in following the procedure," it observed.
"This Court hence is of the view that the power of the court under section 482 Cr.P.C should be exercised as if the proceeding is allowed to be continued, would be a sheer of abuse of the process of law...The entire proceeding pending before the learned Court is hereby quashed qua the petitioner and is discharged and be released forthwith from the bail bond," it ordered.
To view the court order, click on the link below:
https://medicaldialogues.in/pdf_upload/2026/06/17/calcutta-hc-c-section-354460.pdf
