Gynecologists to face Criminal Trial for Fetal Death due delayed Delivery : Allahabad High Court : Adv. ROHIT ERANDE ©

 Gynecologists to face Criminal Trial for Fetal Death : Allahabad High Court. 

Case Details :- APPLICATION U/S 482 No. - 28703 of 2008 

 Dr. Ashok Kumar Rai (Applicant) V/s.  State of U.P. and another (Opponents) 

Facts in Short :

1. This case is of the year 2008 !! It has been alleged that the patient was admitted to the Opponent's hospital on 28.07.2007 at 10.30 A.M. for her delivery. At around 11 O’Clock on 29.07.2007 the applicant called O.P. No.2 and checked up the patient and told her relatives that it is necessary for the patient to undergo surgery and asked for their consent. The same was immediately given, however, the surgery was not carried out in time. In the meanwhile, condition of the patient kept deteriorating and it is only at about 5.30 P.M. the patient was taken into the operation theatre. After operation, the informant was informed that the foetus has died.

2. It was also alleged that  when objection was raised by the family members of the patient, and then they were beaten up by the employees of the doctor (applicant) and his associates. The doctor has also taken 8700/- for the ₹8700/- for the surgery and asked the informant to deposit another 10,000/-. Even no ₹8700/- for the discharge slip was given to the patient. After registration of the FIR, post mortem examination was conducted on the dead body of the child. 

3. A compliant was lodged with the then CMO against the Applicant Doctor and in his Statement before CMO the Doctor denied all the allegations and rather alleged that the Doctor was already for the C Section considering the symptoms of the patient and the Fetal health, however her relatives did not allow him to do so and at last @ 5.30 pm they allow, but it was too late to save the baby, but the Mother could be saved. Based on the compliant and the Applicant's version, the CMO constituted the Expert medical Board, which after gave a clean-chit to the Applicant and based on this CMO Wrote a letter to the IG Police Gorakhpur stating that the applicant is not at fault   . However, the Post mortem Report was not submitted to the Medical Board. 

4. Feeling aggrieved by the Medical Board's decision, the complainant filed protest petition on 15.03.2008 in which it is specifically stated that the consent for surgery was given at 11 O’Clock on 29.07.2007. However, surgery was not carried out. It was only at 5.30 P.M. the patient was taken to O.T. Thereafter, husband of patient made to sign on some papers, and soon, thereafter staff of the applicant announced that the foetus as dead.  An FIR was lodged on the same day i.e. 29.07.2007 at 22.45 P.M., however, the patient was not discharged and she was discharged only after intervention of f Bar Association, Deoria.

5. The informant was not given discharge summary and only when the pressure was applied, in front of police officers, some fabricated documents were given and no detail case summary was given as the same was deleted from the computer. The Anesthetist Dr. Chandra Shekhar Azad,   specifically stated in his statement  that the applicant had called him at 3.30 P.M. and asked him to come immediately so that the operation may be carried out. This shows that the applicant had not taken steps for conducting operation from 12 O’Clock to 3.30 P.M. though consent was given at around 12 O’clock.

6. The Applicant therefore approached the  High Court to quash summoning order dated 15.09.2008 passed by A.C.J.M., Court No.19, Deoria under Section 304A, 315, 323and 506 IPC as well as the entire proceedings of Case No.17 of 2008.

7. Both the Parties argued extensively. The Applicant tried to took the the shelter under the Celebrated judgments of Hon. Apex Court Jacob Mathew vs. State of Punjab and another - (2005) 6 SCC 1 and (2004) 6 SCC 422 Dr. Suresh Gupta vs. Govt. of N.C.T. of Delhi & Another and also took reliance on medical Board report. . On the other hand the AGP stressed more on the facts and harped on the delay caused in carrying out the Delivery.

Held ;

1. His Lordship Hon'ble Prashant Kumar, J. in his detailed judgment reproduced the facts. Admittedly The Applicant, who is a doctor having M.B.B.S. and D.G.O. degree, attended the patient and suggested for caesarean.

2. The Hon. Court observed that the reason for the death, as stated by the applicant, is because the family members of the patient did not agree for surgery at the right time and the aforesaid statement of the doctor is contrary to the FIR wherein the timings are quite different and do not match with the other evidences. Further, The allegation of the informant is that the doctor had taken consent for operation at about 12 O’ clock but surgery could not be carried out as the nursing home did not have the anesthetist . It is only after the arrival of the anesthetist that the patient was operated.

3. The Court further observed that a bare perusal of the post mortem report of the foetus D.G.O. degree, attended the patient and suggested for caesarean shows that cause of death was “Prolonged Labour”. However, there is nothing on record to show that the post mortem report was placed before the Medical Board and even the report of the Medical Board does not talk anything about the post mortem. It also came on record that there were 2 OT Notes prepared and Court held there was no reason for any doctor to prepare two O.T. notes.

4. The Court relied upon the celebrated judgment of  a three-Judges’ Bench of Hon’ble Supreme Court in the matter of Bhalchandra alias Bapu and another vs. State of Maharashtra - AIR 1968 SC 1319 wherein it carved out a distinction between Negligence and Criminal Negligence, the Court held that while Negligence is breach of duty caused by omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do. However, 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.

5. the Court also opined that it is true that the Medical Professionals should be protected from the allegations that for every death in the hospital, Doctors should be blamed.   However, this protection has to be balanced as per the ratio laid down in several judgments, this protection can only be applied if the medical professional has carried out its duty skillfully, as any other doctor would have done in the given circumstances. 

6. The Court further held,  in the instant matter qualification of the Doctor is not under the clog. . However, the instant matter hinges on the second aspect as to whether the applicant had exercised reasonable care in providing medical service in time, or he had acted carelessly. In this matter, though consent was taken around 12 O’Clock but the operation was conducted at 5.30 P.M. Delay in conducting the surgery was non availability of the anesthetist, which resulted in death of the child. 

7. This is a case of pure misadventure where the doctor has admitted the patient and after taking go ahead for operation from the patient’s family members, did not perform the operation in time as he was not having the requisite doctor (i.e. anesthetist ) to perform the surgery. In fact, as per the statement of the anesthetist he got a call at 3.30 P.M. This delay (medical negligence) can only be attributed to the applicant.  In this case there is a contradiction of time of admission, time of consent and time of operation. And there have been two O.T. notes and a post mortem report and the court further held that as all the documents were not produced before the Medical Board  the opinion of the Medical Board would have no credence in this matter. 

8. the hon. Court made a bold statement that it is common knowledge that the private hospitals/nursing homes have started treating the patients as guinea pig/ATM machines only to extort money out of them.

9. Lastly the Court also held that any medical professional, who carries out his profession with due diligence and caution, has to be protected but certainly not those doctors who have opened nursing home without proper facilities, doctors and infrastructure and enticing the patients just to extract money out of them. The instant case is a classic case where consent of the family members. The post mortem report shows that the foetus died because of the prolonged labour. This clearly shows malafide intention of the doctor/applicant in cheating the patient.  Hence the Court dismissed the Petition and now the Doctor has to face the Trial, unless this order is stayed by the Higher court. 

Conclusion : 

This case is a classic example of travesty of justice for both - the Complainant and the Accused. After 17 years, the simple case for challenging FIR was quashed and now full trial would start !!

Let it be. But this Case also teaches some lessons to the Medicos. If you are running a Pvt. set -up, keep it well equipped or if you think you cannot handle it better to transfer it to higher Center. 

Expert opinion is not binding :

In any Medico-legal case, otherwise the expert opinion plays important role. however this case yet again has emphasized the basic principle of Law that "any expert opinion" is not binding upon the Court.  

Tampering of Record :

The Creation of two OT Notes has clearly put a clog on the defense of the applicant. Hence it is not advisable. Whatever your records are, put it upright. always remembers "Poor Record is Poor Defense and No Record is No Defense" 

Thanks and Regards

(Adv. Rohit Erande)©