DR. (MRS.) PRAMILA GUPTA, WIFE OF DR. A.K. GUPTA v. The State of Bihar & Ors

first time on 13.12.2005 for check up and she was advised some pathological tests and medicines were prescribed. She again came on

7.3.2006 and never cared to come for further check up in between

13.12.2005 and 7.3.2006. On that date, she was advised for some tests - 4 - and medicines were prescribed and she was advised admission in the clinic and on 8.3.2006 caesarean section was performed for post dated pregnancy of 11 days and foetal distress in order to save the life of the mother and the child and at 1.06 P.M. a healthy baby was delivered. Negligence and carelessness in course of the operation has been denied. Following the operation the mother and the child appeared to be relatively fine till the evening but suddenly at around mid night the patient developed shock in view of the Post Partum haemorrhage (PPH) which was immediately managed by stopping the bleeding and the patient recovered from the shock. During this management drugs like oxygen inhaler with two pints of blood was given to the patient in accordance with the prescribed method of management of PPH and generally used by the fraternity of surgeons. It has been specifically submitted that the appearance of PPH usually occurs due to the physical condition of the patient and is not resultant of any rash and negligent act of the surgeons and can neither be termed as a culpable offence or criminal act. It has further been submitted that at around 4.30 A.M. on 9.3.2006 the blood pressure of the patient again started falling whereupon Dr. A.K. Yadav, erstwhile Head of Department of Surgery, NMCH and other Senior Surgeons again performed an operation on the patient which was not by choice but was an emergency. Following the second operation the patient became stable for few hours but again her condition started deteriorating and it was on the request of the family members, husband and the complainant that the patient was referred to the PMCH for further management where the third operation was performed on the patient but - 5 - she did not survive later on. Opposite party no.2, the complainant has appeared and contested the application and has filed a counter affidavit. It was submitted on behalf of the complainant that from the complaint petition itself a clear case of negligence on the part of the petitioner doctor has been made out and the cognizance taking court was fully justified in taking cognizance based on the materials which have cropped up in course of the inquiry made under Section 202 Cr.P.C. In support of her submission reliance has been placed on Annexure-A which is the personal opinion of the Dr. L.P. Yadav dated 18.11.2006 wherein he opined that death which had occurred due to haemorrhage and shock and multiple organ failure could have been controlled if the second operation had been done by mid night instead of 6 A.M. next day. Reliance has also been placed on Annexure-„2‟ series which happens to be the guidelines of preventive measures to be taken and is extracted from the text book by D.C. Dutta. To decide whether on the basis of the complaint and the medical opinion produced by O.P. No.2 herein, any offence is made out or not, it is necessary to examine the papers produced. Apparently, Dr. L.P. Gupta, who has given his opinion, had not personally examined the victim girl and her conditions at any point of time. That apart, although he states that there had been negligence some where by the Surgeon operating on the patient, he does not state which of the Surgeons who performed the three operations on the victim girl was negligent while operating. He has also stated that the multiple organ failure which was - 6 - the cause for death could have been controlled if the second operation would have been done by mid night instead of 6 A.M. next day. This unfortunately happens to be his personal opinion and that too without in any way examining the patient and appears to have been founded on the facts narrated to him by either the complainant or her associates. In Dr. Suresh Gupta Vs. Government of NCT of Delhi reported in (2004)6 SCC page 422, it has been observed that for fixing criminal liability on a doctor or surgeon the standard of negligence required to be proved should be so high as can be described as “gross negligence” or “recklessness” and it is not merely lack of necessary care, attention and skill. Their Lordships , in this connection, relied on the decision of the House of Lords in R Vs. Adomako, reported in (1994)3 All ER 79 (HL) illustrated legal position and contains the following observations : “Thus a doctor cannot be held criminally responsible for patient‟s death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State.” The Hon‟ble Apex Court in the aforesaid decision further held that for every mishap or death during medical treatment the medical man cannot be proceeded against for punishment. Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large because if the courts were to impose criminal liability on hospitals and doctors for everything that goes wrong the doctors would be more worried about their own - 7 - safety than giving all best treatment to their patients. This would lead to shaking the mutual confidence between a doctor and the patient. Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an offence of culpable negligence. The Bench categorically observed that for conviction of a doctor for alleged criminal offence, the standard should be proved of recklessness and deliberate wrongdoing, i.e., a higher degree of morally blameworthy conduct. Mere lack of proper care, precaution and attention or inadvertence might create civil liability and not a criminal one. It also observed that in cases of alleged criminal offence against the doctor causing death of his patient during treatment, the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Then again in Jacob Mathew Vs. State of Punjab, reported in 2005(4) PLJR 213 (SC), it was observed that a private complaint would not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. As stated above, the opposite party has produced the opinion of the Dr. L.P. Gupta who does not appear to be a qualified surgeon and has been given in connection with Consumer Complaint Case No.200 of 2006 and his opinion is based merely on perusal of the Bed Head Ticket and the post-mortem report but he does not appear to have examined the patient at any point of time. Therefore, his opinion appears to be based - 8 - on mere presumption rather than on the factual medical and physical condition of the patient and on examination of the said patient. Even otherwise he does not say that the action taken by the petitioner was improper or incorrect. He merely opined that the action ought to have been taken earlier. This by itself cannot be said to be an act of negligence since the time factor happens to be the personal opinion of the individual. In the entire complaint petition, there is no allegation that the doctor alleged to have caused the death of the patient was not a doctor qualified to treat the patient or to perform surgical intervention. That apart there appears to have been three surgical interventions on the person of the deceased, one by the petitioner, the second by Dr. A.K. Yadav and the third at the P.M.C.H. and in the said circumstances, it is difficult to fasten the liability of rashness or carelessness on any of the three doctors. In the aforesaid circumstances and the discussions made above, the prosecution of the petitioner would be an abuse of the process of the court. Accordingly, the criminal prosecution of the petitioner and the impugned order, so far as the petitioner is concerned, is hereby quashed and the application is allowed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 24th of June, 2009. Pradeep Srivastava/A.F.R.