A complication by itself does not constitute negligence and Doctors cannot be held liable merely a patient dies due to complication - Adv. ROHiT ERANDE.©
Important Case indeed for Medicos. Thanks to Hon. Kerala High Court.
A Case where, Surgeons, Anaesthetists and nurses were framed under the charges of murder of a patient, dismissed.
“A complication
by itself does not constitute negligence and Doctors cannot be held
liable merely a patient dies due to complication”
Case details :
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT
Coram : THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
Delivered on : THURSDAY, THE 2ND DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944
Case no. CRL.A NO. 22 OF 2014 AGAINST CP 97/2008
OF JUDICIAL MAGISTRATE OF FIRST CLASS
DR. BALACHANDRAN
V/s. State of
Kerala
Judgment Link :
The Judgment starts
with the relieving words for Doctors :
1. The
judgment starts with the wordings that while dealing with criminal
prosecution for medical negligence, the trial courts often ignore the
following principles :
“
Though doctors’ aura of Godliness and
holiness is a myth, they are
volunteers who take the risk of dealing with the most intricate, delicate, and complex machine on earth - the human body. Any surgical
procedure or medical
intervention on this highly
compound machine carries some
inherent risk. There is always
the chance that the treatment does not go as planned. When things go wrong, it is not always the fault of the doctor.
A complication by itself does not
constitute negligence. There is a big difference between an adverse
or untoward event and negligence. However, there is a growing
tendency to accuse the doctor of an
adverse or untoward event. Nothing can be more
professionally damaging and emotionally draining
than being arrayed
as an accused in any such action.
A surgeon, under
fear of facing criminal
prosecution in the event of failure for whatever reason – whether due to his fault or not- cannot perform at his best. The Judicial Forums,
in the process of fixing
parameters of liability in the cases of medical
negligence, must aim at striking a careful balance
between the autonomy
of a doctor to make judgments
and the rights of a patient to be dealt with fairly, recognizing the complexity of the human body, inexactness of medical science, the inherent subjectivity
of the process, and genuine scope for
error of judgment...”
Facts
in short :
2.
One Smt.Mini
Philip, a young lady aged 37 years, walked
to the operation theatre at Deen Hospital, Punalur, on 25/9/2006 at 3.30 p.m. to undergo sterilization by laparoscopy,
a procedure that provides permanent
birth control, with the hope that she could
safely return home after few
hours. But destiny had something else in store for her and after the surgery, she developed
respiratory complications and was put under oxygen support.
3.
Though she was shifted
to Poyanil Hospital,
Punalur, at 9.00 p.m. and then to
Ananthapuri
Hospital, Thiruvananthapuram, at 11.30 p.m. for
expert management, her life could
not be saved. She breathed
her last on the next day at 5.30
p.m. at Ananthapuri Hospital.
4.
On 26/9/2006, the
Vanchiyoor Police registered a crime under
section 174 of Cr.PC based on Ext.P1 FI statement given by the uncle of the deceased (PW 1) alleging
medical negligence on the part of the
doctors who conducted surgery and administered
anesthesia as well as the nurses who
assisted them. Later Punalur
Police reregistered the case as Crime No.590/2006 and conducted the investigation. PW17, the investigating officer, in accordance with the direction
of the Apex Court in Jacob Mathew v. State of Punjab and Another (AIR
2005 SC 3180), requested the District
Medical officer, Thiruvananthapuram, to constitute an Expert Panel and to give their views on
the allegation of medical negligence. Accordingly, a five-member Expert Panel was constituted, and the committee
forwarded Ext.P4 report on
16/6/2007. The matter was again referred to the Apex Body, and two reports of the Apex Body marked as Ext.P15 dated 3/8/2010 and Ext.D9 dated 20/4/2009 were obtained. Based on the reports, PW17 incorporated the offences under sections 304 and 201 r/w 34 of IPC. After investigation, final report was filed at the Judicial
First-Class Magistrate Court III,
Punalur, against the accused, six in number, who are the doctors and nurses at Deen Hospital.
The learned Magistrate, after complying with
the statutory formalities, committed the case to the Additional Sessions
Court V, Kollam (for short ‘the court below’) for trial and disposal.
5.
All the accused
appeared at the court below and they faced trial for
the offences punishable under
sections 304 and 201
r/w 34 of IPC. After full-fledged
trial, the court below found that the offence under
section 304 of IPC was not attracted. However, it found that there is evidence to show that the
accused have committed the offences
punishable under sections
304A and 201 r/w 34 of IPC,
and they were convicted for the said offences. All of them were sentenced
to undergo simple imprisonment for one year for the offence under section 304A r/w
34 of IPC and simple imprisonment for three months for the offence under section 201 r/w 34 of IPC. The Trial Court held that :
(i)
The accused No.1
was not a qualified anesthesiologist and
thus incompetent to administer anesthesia to the deceased.
(ii)
The accused
No.1 gave spinal anesthesia instead
of general anesthesia, and the defective
anesthesia administration ultimately resulted in the death of the patient.
(iii)
There were lapses in the pre-operative and post-
operative management of the patient.
(iv)
The doctors
involved in the procedure were not trained in
laparoscopy, and the hospital had no accreditation to conduct laparoscopic surgery.
(v)
The surgery and nurses’
notes were not kept properly.
Challenging the conviction and sentence, the Doctors approached
the high Court.
I have heard Sri.S.Sreekumar, the learned Senior Counsel
appearing for the accused No. 1, Sri. Jayanth Muthuraj, the learned Senior Counsel appearing for the accused No.2, Sri.
P. Vijayabhanu, the learned Senior Counsel appearing
for the accused No.3, Sri. S. Ananthakrishnan, the learned Counsel
appearing for the accused Nos. 4 to 6, the learned Amicus Curiae Sri. V. Vinay and Smt.T.V.Neema, the learned Senior Public Prosecutor.
6.
The learned
counsel for the accused impeached the findings
of the court below on appreciation of evidence and the resultant finding as to the guilt. They submitted that in the absence
of any evidence on record to prove culpable negligence against the accused, the court below grossly erred in convicting them. The learned
Senior Public Prosecutor Smt.T.V.Neema, on the other hand, supported the findings and verdict handed
down by the court below and argued that necessary
ingredients ofsections 304A and 201 r/w 34 of IPC had been established.
Held :
7.
This is an unfortunate case where a
37-year-old healthy lady lost her life following
a simple procedure for laparoscopic
sterilization. The records show that the complication developed immediately after the surgery,
and despite earnest
efforts, her life could not be saved.
The prosecution attributed negligence
to the doctors who were part of the surgical team as well as the nurses who assisted them. The accused No.3 is the doctor who did the procedure, and the
accused No.1 is the doctor who
administered anesthesia. The accused Nos.4 to 6 are the nurses who assisted
accused Nos.1 and 3. Even as per the prosecution version, accused No.2, the
gynaecologist, was in no way involved
in the surgical procedure. The role
attributed to her is that the deceased
consulted her a week ago, and she admitted
the deceased to the hospital for laparoscopic sterilization. As against accused
No.3, there is no specific allegation of negligence. The accused
No.4 is a qualified nurse,
and the accused Nos. 5 and 6 are nursing
assistants who only assisted the
accused Nos.1 and 3.
It has been observed that “The prosecution has no case
that they did something or failed to
do something which ought to have caused the death of the deceased”. The
main allegation is against accused
No.1. It is alleged that accused No.1 is not a qualified anesthesiologist, and he administered spinal
anesthesia instead of general anesthesia.
8.
Negligence,
simply put, is a breach of duty of care resulting
in injury or damage. Per se,
carelessness is not culpable or a
ground of legal liability, except in those cases where the law has imposed a duty of carefulness. The
duty of care implies the responsibilities
of individuals towards others within society.
The duty of care may be understood as a legal obligation imposed
on an individual requiring adherence
to a standard of reasonable
care while doing any act, particularly when lack of care could cause harm to someone else. When there is a legal duty not to do a thing on purpose, there
is commonly a legal duty to take care not to do it accidentally.
Difference between Civil and Criminal
negligence :
9.
In civil law, a duty of care is a legal obligation imposed on an individual requiring
that he/she exercises
a reasonable standard of care while performing any act
that could foreseeably harm others. In medical practice, the law has imposed a
duty of care on the doctors for
treating patients. The duties that a doctor owes
to his patient are clear. They
include a duty of care in deciding whether
to undertake the case, a duty of care in deciding
what treatment to give, and a duty of care in the administration
of that treatment. A breach of any of these duties gives the patient
a right of action for negligence.
10.
The jurisprudential concept of negligence differs in civil law and criminal law. Ordinary negligence is such failure to use care as would render a person civilly
but not criminally liable. Criminal negligence is a greater
failure and a
greater falling below the standard of care and renders a
man guilty criminally. The degree of
negligence should be much higher for an act to
amount to criminal
negligence. Negligence not of such a high degree may provide a ground for action in
civil law but cannot form the basis
of criminal prosecution. The factor of grossness or degree does assume significance while drawing a distinction between
negligence actionable in tort and negligence punishable as a crime.
11.
The medical negligence jurisprudence in India is characterised by a reliance
on the “Bolam
test”. Bolam v. Friern Hospital Management Committee {[1957] 1 W.L.R. 582}, a landmark English case on medical negligence, laid
down
the principle that “A Doctor is not guilty of negligence
if he has acted in accordance with a
practice accepted as proper
by a responsible body of
medical men skilled in that particular art...”. This principle has been widely accepted as decisive of
the standard of care expected
from medical practitioners. The courts in India,
including the Apex Court, invariably applied Bolam Rule
as a touchstone to test the pleas of medical negligence. In Jacob Mathew
(supra), a three-judge Bench of the Apex Court upheld the standard of the ordinary
competent medical practitioner exercising an ordinary
degree of professional skill, as enunciated in Bolam (supra). It was held that the standard of care must be in accordance with ‘general and approved
practice’. The Apex Court affirmed
the judgment in Jacob Mathew
(supra) in State of
Punjab v. Shiv Ram and Others [(2005) 7 SCC 1], Nizam's Institute of Medical
Sciences v. Prasanth
S. Dhananka [(2009) 6 SCC 1] and Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and
Others (AIR 2010 SC 1050).
12.
The question
of degree has always been considered relevant to fasten criminal liability on
medical negligence. The Privy Council
in John Oni Akerele v. The King (AIR 1943 PC 72) put the
standard for fastening criminal liability on a high pedestal and required the medical negligence to be
“gross”. It was held that a doctor is not criminally
responsible for a patient's death unless his negligence or incompetence went beyond a mere matter of compensation between subjects and showed such disregard
for the life and safety of others as to amount to a crime against the State. The Apex Court in Syad Akbar v. State of Karnataka (1980 KHC 527) opined
that where negligence is an essential ingredient of the offence,
the negligence to be established by the prosecution must be
culpable or gross and not the negligence merely based upon an error of judgment.
In Bhalchandra Waman Pathe v.
State of Maharashtra
(1968 Mh. LJ 423), it
was held that while negligence is an omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs,
would do, or doing something
which a prudent and reasonable man would not do; criminal
negligence is the gross and culpable neglect or failure to
exercise that reasonable and proper
care and precaution to guard against injury either to the public generally or to an individual in particular,
which having regard to all the circumstances out of which the charge
has arisen, it was the
imperative duty of the accused person to have
adopted. In Dr. Suresh
Gupta v. Govt.
of NCT of
Delhi [(2004) 6 SCC 422], the Apex Court held that the degree of negligence required should be gross or
reckless. A mere lack of necessary care, attention, or skill was considered insufficient
to hold one criminally liable for negligence. It was observed
that mere inadvertence or
want of a certain degree of care might create
civil liability but will not be sufficient to attract criminal liability. The soundness of this view of the Apex Court was subsequently doubted, considering that
word “gross” is absent in section 304A IPC and that different
standards cannot be applied to actions of the negligence of doctors
and others. Consequently, the matter was placed for reconsideration before a Bench of
higher strength. Three-judge Bench (Bench strength in Dr. Suresh Gupta was two) in Jacob Mathew (supra) on a
reconsideration endorsed the approach of the high degree of negligence being the
prerequisite for fastening criminal liability as adopted in Dr. Suresh Gupta (supra). It was held that “In order to hold the existence
of criminal rashness
or criminal negligence,
it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard
was of such a degree that injury was most likely imminent.” It was observed that the subject of negligence in
the context of the medical profession necessarily calls for a treatment
with a difference.
13.
Every
death of a patient cannot, on the face of it, be medical negligence. There
must be sufficient evidence to prove that
the death is due to the alleged medical negligence. The death should
be the direct or proximate
result of the negligent act alleged. A medical professional
cannot be held liable simply because things went wrong from mischance
or misfortune. A mere deviation
from normal professional practice is not necessarily negligence. Nor could mere accident or untoward incident be termed negligence, also an error of judgment
is not negligence per se. To convict a medical professional for criminal negligence, the prosecution must prove culpable
and gross negligence beyond a reasonable doubt. It must also be shown that the medical professional did or failed to do
something which, in the given facts and circumstances of the
case, no ordinary skilled
medical professional would
have done or failed to do.
14.
The Anesthetist was saved, read how…
a.
The court below
heavily relying on the oral evidence of PW
9 and Exts. P4, P6 and P19 found that accused No.1 was not qualified or competent to give anesthesia,
and he wrongly gave spinal anesthesia instead of general
anesthesia, which led to complications and the death of the patient,
which was opposed by the Ld. Counsel for the Petitioners.
b.
Per contra, the learned Senior
Public Prosecutor Smt.
T.V. Neema as well
as the learned Amicus Curiae Sri. V.Vinay relying on the observations in Jacob Mathew (supra), vehemently
argued that any task which is required to be performed with a special skill
by a medical professional
would generally be undertaken to be performed
only if he/she possesses the requisite qualification and skill for performing that task and a medical professional
can be held liable for criminal
negligence if he/she
was not possessed of the requisite skill which he/she
professed to have possessed. According to them,
an Anesthesiologist who has a
post- graduation or Diploma in
Anesthesiology alone is qualified to administer
anesthesia and since accused No.1 did not possess either of these qualifications, he was incompetent to administer anesthesia
to the deceased.
c.
It was submitted by the Prosecution that the evidence on record
establishes that the wrong administration of
anesthesia by an incompetent person resulted in the death
of the patient.
d.
The Court further observed : Admittedly the accused
No.1 is only having an MBBS degree.
He does not have either
a diploma or a post-graduation in anesthesia. However,
the documents on record would show that he had undergone sufficient training in
anesthesiology and had vast experience in administering anesthesia. Ext.D2, the proceedings of the Principal, Medical
College, Trivandrum and Ext. D3, the certificate issued by the Principal, Medical
College, Trivandrum, establish
that he was selected in the branch of anesthesia for Senior House Surgency, and
he underwent it successfully.
e.
The Court relied
upon the certificate issued by the Professor of Anesthesia, Department of Anesthesia, Medical
College, Trivandrum on
31/10/1980, stating that the accused No.1 had
worked as a Senior House Surgeon from 31/10/1979 for a period
of one year; he has proved himself
reliable and can
manage cases independently
and confidently.
f.
The Court also
relied upon another certificate dated 1/11/1980
issued by the Associate Professor, Department of
Anesthesiology, Medical College, Trivandrum, certifying that accused No.1 had intensive training in all
the routine and special techniques in anesthesiology. Ext.D7 certificate and Ext.D8 seriescase list would show that he had administered anesthesia to several
patients.
15.
The Trial court
below relied the information given by the Medical Council of India under the RTI Act which only says that a graduate
of MBBS is required to complete an MD degree in the specialty of anesthesia or
a Diploma in the specialty
of anesthesia to be qualified
as an anesthesiologist. There
is no quarrel with the proposition that to be qualified
as an anesthesiologist, an MBBS graduate should either obtain an MD degree in anesthesia or a Diploma
in anesthesia.
16.
The Court concluded that after scrutinising various rules and regulations relating to the prescribed qualification for an anesthetist, it was reported that a doctor who has passed MBBS and has training
in anesthesiology is qualified to give anesthesia to a patient.
The Apex Body, on perusal
of various records,
concluded that the accused No.1, after his MBBS, had undergone one-year Senior House Surgency in
anesthesia at Medical College, Thiruvananthapuram,
and he had the requisite qualification for giving anesthesia to the patient.
17.
The High Court
also observed that the ld. Trial Court ought to have considered the copy of the
minutes of the meeting of the Council of Modern Medicine
held on 22nd November 2007. Considering the representation given by the Indian Medical
Association wherein it was resolved that doctors with MBBS registration are qualified to give
anesthesia, even though said Resolution was passed after the incident, as the representation moved by the Indian Medical
Association was to define the practice of anesthesia. Accordingly, it was resolved
that the doctors with MBBS registration are
qualified to give anesthesia.
Not only Qualified Anesthetists, but Trained Anesthetists are also
allowed to administer anesthesia for
electro laparoscopic sterilization
The Court further
observed that the Quality Assurance Manual
for Sterilization published by
the Government of India in 2006 nowhere states that anesthesiologists alone are
considered qualified to administer anesthesia
for electro laparoscopic services. On the other hand, what is stated
is that trained anesthetists are qualified to administer
anesthesia for electro laparoscopic surgeries.
It was observed that there is no
dispute that the accused No.1 is a trained anesthetist and allowed to
administer Anesthesia if we consider the testimony of PW6, the Kollam District
Medical Officer and member of the Expert Panel, who has admitted that an
MBBS graduate who has undergone four months of training
in anesthesiology is competent to administer anesthesia and thus the finding of
the court below that the accused No.1 was not qualified and competent to administer anesthesia cannot be sustained.
The Court rejected
the finding of Forensic Medicine Expert who held that deceased was administered
with spinal anesthesia and not the general anesthesia on the sole basis that injection mark reaching the spinal
canal was found in autopsy !.
The Court held that
it has come out in evidence that to ascertain
whether spinal anesthesia was administered, the best and sure test is to collect and analyze Cerebro Spinal Fluid (CSF),m
which was admittedly not done and thus it was held that without adopting the sure test for spinal anesthesia, the
mere injunction mark is insufficient to conclude that spinal anesthesia
was administered.
It is the choice
of the Anesthetist to decide whether to administer general anesthesia or spinal
anesthesia for Laparoscopic
sterilization:
PW9 admitted that
laparoscopic sterilization could be done either under spinal anesthesia or general anesthesia. In Ext.P16, it is
stated that local anesthesia is the preferred choice for a tubectomy operation. Thus, laparoscopic sterilization can
be done under general anesthesia or
spinal anesthesia. So long as it is found that the procedure/treatment
adopted was accepted by medical science,
the medical practitioner cannot be held negligent merely because he chose to follow that treatment/procedure and the result was a failure. A medical
practitioner cannot be held criminally liable simply because things
went wrong through an error of judgment in choosing one reasonable course of procedure/treatment in preference of another. A medical practitioner can only be held liable
for criminal negligence if he fails to adopt a usual and normal course of treatment
and the course adopted by him is one no professional man of ordinary skill would have taken had he been acting with ordinary care Thus, accused No.1 cannot be found at fault in administering spinal anesthesia even if the prosecution’s
version
that
spinal anesthesia was administered is believed
to be true.
When 304A of IPC
can be attracted ?
18.
To impose
criminal liability under section 304A of IPC, it is necessary that the death should have been the direct result
of a rash or negligent act of the accused. That act must be the proximate
and efficient cause without the intervention
of another's negligence. The liability under this section is created on the assumption of foreseeability of consequences that
could result from a wrongful
act. Thus, for fastening the liability of criminal
negligence on the accused, the administration of anesthesia, be it general
or spinal, must be the direct or proximate cause of death.
The Court ruled
out the cause of death as wrong anesthesia !
19.
The cause of death
stated is the combined effect of
Brain Hypoxia and Adult Respiratory Distress Syndrome (ARDS) and the Prosecution witness answered that spinal anesthesia
could not cause ARDS.. In Ext. D10 report/Medical Audit Performa prepared
by DW2 under the instruction from the DMO, the cause of death was shown as pulmonary oedema. It was found in the said
report that after extubation, the
patient developed pulmonary oedema. All these
circumstances completely rule out the theory projected
by the prosecution that the
administration of spinal anesthesia caused ARDS/Hypoxia, which in turn resulted in the death of the patient.
Fallacy of Expert Reports :
20.
None of the Expert
Panel Reports specifically attributes negligence to the surgeon, anesthetist or nurses who were part of the surgical team.
It is only stated that the pre-operative workup, including pre-anesthesia workup, was not done properly
at the Deen Hospital. In Ext.D9, the conclusion was that there were some lapses in the pre- operative
and post-operative management. Even though the Expert Panel found that there was no pre- operative evaluation, there is absolutely no evidence on record, or even the prosecution does not have a
case that it was on account of the
said lack of proper pre-operative evaluation that the complication developed to the patient
and the death has
occurred. Admittedly, the Deen Hospital did not have a ventilator facility. The patient was shifted to
Poyanil Hospital only after 3½ hours. The prosecution alleged
that this was a crucial
time and the patient could have been referred to a
higher centre having better
facilities much before. But, the evidence on record would show that immediately after the complication developed, the doctors at Deen Hospital did their best to
save the patient. It has come out in
evidence that two anesthetists and a cardiologist from other hospitals came to Deen Hospital and examined the patient.
PW14 deposed that when he visited Deen Hospital at 6.30 p.m., he found that shifting the
patient to a higher centre was
dangerous. In the absence of any
material on record to suggest that the alleged
lapses in the pre-operative or post- operative management of the patient at the
Deen Hospital were the direct or proximate cause of death, findings assume no significance.
21.
No doubt, this is an unfortunate case. But simply because a patient has not favourably responded to a treatment
or a
surgery has failed,
the doctor cannot be held negligent per se for the offence
under section 304A of IPC unless the prosecution establishes beyond reasonable doubt
the culpable and gross negligent
act on his part. That act must be
the proximate or direct cause
of death of the patient. Such a shred of evidence is lacking in this case. None of the witnesses
and documents discussed in the
above paragraphs points the gross or culpable negligence on the part of any of the accused.
Allegations of evidence disappearance also rejected :
22.
Section 201 IPC deals with causing
the disappearance of evidence of an offence or giving
false information to screen the offender.
It was held that mere failure to maintain
surgery notes, nurses’
notes or case sheets properly
cannot be construed as intentional, causing the disappearance of evidence. Thus, the materials on record
are insufficient to prove the allegation of the offence
under section 201 of IPC.
Conclusion :
His Lordship was pleased to conclude that the prosecution has failed to prove the
offences alleged against the accused beyond a reasonable doubt. There is no convincing evidence to
connect the accused with the alleged incident. At any rate, the accused are entitled to get the benefit of doubt. Hence, the conviction and sentence under
sections 304A and 201 r/w section
34 of IPC cannot be sustained.
Why Sec.304 of IPC not attracted :
a.
Section 304 of IPC has two parts. Both parts deal with culpable homicide, not amounting to
murder. The first part of section
304 of IPC deals with
culpable homicide not amounting to murder when the act is done with the intention to cause death or bodily injury as is likely to cause
death.
b.
The second
part deals with culpable
homicide not amounting
to murder when the act is done without any intention to cause death or bodily injury as is
likely to cause death but with the knowledge that his act
is likely to cause death. A person responsible for a reckless
or rash negligent act that causes death which he had knowledge as a reasonable man that such act was dangerous
enough to lead to some untoward thing
and the death was likely to be caused, may be
attributed with the knowledge of the consequence and may be fastened
with the culpability of homicide not
amounting to murder punishable under section 304 Part
II of IPC.
c.
It is settled that the knowledge contemplated under
sections 299 and 304 of IPC is of a
higher degree. Knowledge of the mere
possibility that the act may cause death is
not the knowledge
envisaged. Viewed from the
nature of the evidence adduced, it can safely be concluded that the accused did not have the degree of knowledge to the extent that their act may likely cause the
death of the patient. That apart, I have already
found that the prosecution
failed to prove gross or culpable negligence on the part of the accused. In these circumstances, section 304 of
IPC is also not attracted.
This judgment
is very important. As it has dealt with many issues which Doctors may face
daily.
With kind
regards
Adv. ROHiT
ERANDE.
Pune.
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