Operating surgeon best judge of procedure- SC quashes criminal proceedings against paediatric surgeon in toddler's orchidectomy case
Supreme Court of India
New Delhi: Granting relief to a paediatric surgeon who performed an orchidectomy on a toddler, the Supreme Court quashed the criminal proceedings against the doctor. The apex court observed that no malice could be attributed to the doctor and that the procedure adopted by the doctor was one of the alternatives recognised to meet such a medical exigency.
The child’s father had alleged that he had consented only to orchidopexy for his son’s undescended testicle; however, the surgeon performed an orchidectomy (removal of the testicle) without consent and later manipulated the consent form.
On this, the Division Bench Justices PS Narasimha and Manoj Misra noted that the Medical Board had opined that orchidectomy is a recognised alternative procedure in such cases to prevent future malignancy.
The Court further observed that a consent form was obtained prior to surgery, which included both orchidopexy and orchidectomy as options, and even the Director of Medical and Rural Health Services found no fault with it.
The case originated from a complaint filed by the father of a one-and-a-half-year-old child. He alleged that his son was admitted to a hospital for treatment of an undescended testicle. According to him, consent was given only for an Orchidopexy procedure (a surgery to move the testicle into the scrotum), and not for Orchidectomy (removal of the testicle).
The complainant also alleged that prior to the surgery, the operating surgeon had explained that in 99 percent of such cases, there is no need to remove the testicle. Therefore, specific consent for Orchidectomy was neither sought nor given. Yet, Orchidectomy was performed, and in the consent form, by interpolation, Orchidectomy was inserted, which amounted to an offence of forgery.
Based on the aforesaid allegations, an FIR was registered on 08.08.2006 under Sections 312, 325, 426, 120-B, 406, 465, 468, 471 and Section 501 (1) & (2) of the Indian Penal Code.
Following the investigation, the police filed a charge sheet against the operating surgeon. The Magistrate took cognisance of the case and registered it as C.C. No. 13 of 2008.
Subsequently, two petitions were filed before the High Court under Section 482 CrPC - one by the complainant seeking constitution of a Medical Board for an independent opinion, and the other by the surgeon seeking quashing of the proceedings. These petitions were disposed of by the High Court on March 19, 2013.
The appellant’s counsel argued that both the Medical Board report and the Investigating Officer’s final report do not find any negligence on the doctor’s part, and that performing an orchidectomy was medically appropriate in the case.
The counsel submitted that the main dispute, according to the complainant, is only about whether proper consent was obtained from the child’s father. It was submitted that a signed consent form already existed, which clearly mentioned "Bilateral Orchidopexy/Orchidectomy." The allegation that "orchidectomy" was later added is unfounded, as the document was examined by the Director of Medical and Rural Health Services, who found nothing suspicious.
Additionally, the counsel stated that there was no forensic evidence to prove any interpolation in terms of ink or handwriting. Therefore, the counsel contended that the consent form is valid, and the High Court erred in refusing to quash the criminal proceedings despite medical evidence supporting the doctor.
However, the State’s counsel argued that even if there was no negligence in performing the orchidectomy, the doctor was required to obtain prior consent for that specific procedure.
It was stated that since the complainant alleged that he had not consented to an orchidectomy, it is a matter of trial whether such consent was there or not. In such circumstances, whether there was a valid consent or not, and whether the consent letter has been manipulated or not, can best be determined in a trial. Hence, the state's counsel stated that the order of the High Court calls for no interference.
Similarly, the complainant submitted that during the surgery, the doctor had called him to seek permission for performing an orchidectomy, warning that not removing the testicle could carry a future risk of malignancy. However, he claimed that he clearly refused consent at that time and stated he would decide later about removal.
Despite this, he alleged that the doctor had removed the testicle without his approval. He further alleged that the consent form was later manipulated to indicate that consent for orchidectomy had been given falsely.
Aggrieved by the charge-sheet and the consequential proceedings, which continued even after the additional reports of medical experts, the appellant approached this court seeking the quashing of the entire proceeding pending against him after Madras High Court refused to quash the case and instead directed that the trial be expedited.
After examining the case, the Court noted that although the complainant alleged a lack of consent for orchidectomy, records show that a consent form was indeed obtained before surgery.
It also noted that the question of whether the consent was limited only to orchidopexy. The appellant argued that due to limited space in the form, “orchidectomy” was added below “orchidopexy” with a slash.
"What is important is that the consent form was sent by the Investigating Officer to the Director of the Medical and Rural Health Services for his opinion. The Director had not found any fault in the consent form. Rather, the Medical Board opines that Orchidectomy is an alternative procedure which may be undertaken to obviate chances of malignancy in future. Thus, in the opinion of the Medical Board the procedure adopted was appropriate. Moreover, the operating surgeon is the best judge of which one of the two procedures is to be adopted. Therefore, the only issue which requires consideration is whether there was any interpolation in the consent form to add the alternative procedure (i.e., Orchidectomy)," the court held.
Regarding the High Court's refusal to quash the criminal proceedings, the Apex Court said,
"Ordinarily, an issue of tampering/ interpolation in a document being a question of fact is to be determined in a trial based on evidence led therein and, therefore, courts must be loath to examine such issues in a summary proceeding, like the one under Section 482 Cr.P.C. However, there can be no absolute bar on High Court’s power to consider questions of fact in exercise of jurisdiction under Section 482 Cr.P.C., particularly when such consideration is necessary to prevent the abuse of the process of the court or to secure the ends of justice."
Based on the evidence and the opinions of the Medical Board, the court held,
"In the instant case, no malice is attributed to the doctor, and there is no dispute that the consent form was executed for undertaking a medical procedure. Further, the medical opinion is to the effect that the procedure adopted by the doctor was one of the alternatives recognized to meet such a medical exigency. No doubt, the Medical Board's opinion indicates that such a procedure should be carried out after obtaining consent, but there is nothing to indicate that the consent form already obtained was not in order or that no consent was obtained. Besides, the consent letter has been brought on record. A perusal thereof would indicate that in the column where the nature of proposed surgery is to be mentioned, both types of surgery i.e., Orchidopexy and Orchiectomy, are mentioned by putting a slash (/), which means that the other surgery, namely, Orchidectomy, was one of the options available."
It further observed,
"Taking a conspectus of all the facts and circumstances as also that there is no material on record that alternative surgery, namely, Orchidectomy, was entered by a different ink or in a different handwriting, and having regard to the Medical Board’s opinion that in such medical situations Orchidectomy is a normal alternative, we are of the view that continuance of criminal proceeding against the appellant would be nothing but abuse of the process of the court and, therefore to secure the ends of justice, the same is liable to be quashed."
To view the court order, click on the link below:
