Bombay High Court

Dr. Saroja Dharmapal Patil vs The State Of Maharashtra on 12 October, 2010

Bench: V.R. Kingaonkar

                                                                         (1)                                 CRI.APP.  2502.2005


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD




                                                                                                               
                          CRIMINAL APPLICATION NO. 2502 OF 2005




                                                                                
    Dr. Saroja Dharmapal Patil
    Age : 30 years, Occu.: Medical 
    Practitioner, R/o Dhanvantri
    Hospital, Deoni, Tq. Deoni,




                                                                               
    Dist. Latur                              .. APPLICANT

           VERSUS
    1. The State of Maharashtra
       Through The District Superintendent




                                                            
       of Police, Latur
       

       Pleader, High Court Bench at
       Aurangabad)
                                  
       (Copies to be served on Govt.
                                 
    2. Husain Tahersab Shaikh,
       Age : 50 years, Occu.: Business,
       R/o Deoni, Tq. : Deoni,
       Dist. Latur                           .. RESPONDENTS
      


                               ...
    Mr. S.M. Godsay, Advocate for the Applicant
   



    Mr. N.H. Borade, APP for the respondent-State
    None present for the respondent no.2 though served
                               ...





                                                CORAM : V.R. KINGAONKAR, J.

DATED : 11TH & 12TH OCTOBER, 2010

ORAL JUDGMENT:-

1. This is an Application under section 482 of

the Code of Criminal Procedure.

2. The Application is being finally disposed

of by consent of the learned Advocates for the

(2) CRI.APP. 2502.2005

applicant and learned APP. For, this Application

is pending since 2005 and interim relief was already

granted while admitting the Application as per the

order dated 20.10.2005.

3. The applicant is a Private Medical

Practitioner. She is Gynecologist and Ayurvedic

practitioner. She runs the private hospital styled

as "Dhanvantri Hospital", Deoni. She is B.A.M.S.

and commenced medical practice since 1998 at Deoni,

which is a village under Udgir Tahsil. The

applicant attended a patient by name Yasmin w/o

Pasha Miya Gousuddin Momin during course of

pregnancy of the latter. The pregnant woman used to

frequently visit private hospital of the applicant

for few months before the delivery. On 1.9.2003 the

patient-Yasmin was brought to the hospital of the

applicant. The clinical examination revealed that

the patient was suffering from labour pains. The

applicant informed the condition of the patient to

her father and told him that as a first measure it

would be appropriate to await for normal delivery

and only in case it is so required delivery by

(3) CRI.APP. 2502.2005

adopting caesarean method could be undertaken. The

patient-Yasmin was taken to the labour room. The

father of the patient gave consent to the treatment.

By about 1.40 pm Yasmin delivered a male infant. It

was normal delivery through vertex. Still, however,

the applicant noticed that there was profuse

bleeding from the private part of Yasmin after the

placenta had come out from the vagina. Inspite of

immediate treatment, the bleeding could not be

stopped. The applicant immediately instructed the

father and other relatives of the patient-Yasmin to

shift her to Civil Hospital at Udgir. Her relatives

insisted to give a reference letter to Private

Medical Practitioner by name Dr. Lohiya and,

therefore, such letter was issued by the applicant.

The applicant assisted the patient while shifting

her to the private hospital of Dr. Lohiya by making

suitable arrangement to provide the supply of saline

and also making arrangement to depute Pathologist

with her in the private vehicle. Though, the

patient was shifted to the private hospital of

Dr. Sandeep Lohiya at Udgir yet, the prognosis

(4) CRI.APP. 2502.2005

continued and the flow of bleeding could not be

controlled inspite of medical treatment given by

Dr. Lohiya. He thereafter referred her to the Civil

Hospital at Latur. In the same noon the patient-

Yasmin was taken to the Civil Hospital at Latur.

She was admitted in the Civil Hospital while she was

unconscious. On clinical examination, the Medical

Officer informed her father and other relatives that

Yasmin was no more. The father thereafter gave

statement to the Police to the effect that he had no

grievance against anyone. It appears however that

after couple of days on 3.9.2003 father of deceased

Yasmin lodged a report at the Police Station, Deoni

alleging that deceased Yasmin died as a result of

negligence of the applicant while treating her. He

alleged that the applicant had assured to attend the

patient and to cure her by giving 100% guarantee.

He further alleged that the applicant committed

delay in informing that she was unable to give

medical treatment to the patient-Yasmin and,

therefore, due to excessive bleeding and the fact

that there was inversion of the uterus, the patient-

(5) CRI.APP. 2502.2005

Yasmin lost her life. It is this FIR lodged by the

father of deceased Yasmin which is subject matter of

challenge in the present Application. The applicant

also seeks quashing of the chargesheet filed in

pursuance of the said FIR.

4. Heard learned Advocate for the applicant

and learned APP for the State. None appears for the

respondent no.2 i.e. the complainant.

The question involved in this Application

is as to whether the applicant can be held liable

for commission of "gross negligence" on the face of

the allegations made in the FIR? The question is

whether the allegations in the FIR and the

investigation papers, even if are considered to bear

ring of truth, would sufficiently provide for

material to proceed against the applicant for the

trial of offence punishable under section 304-A of

the Indian Penal Code?

6. At the outset, it is pertinent to notice

that the applicant was a treating doctor and was

attending the pregnant woman i.e. Yasmin since much

(6) CRI.APP. 2502.2005

before the date of her delivery. It is also

important to notice that at the first blush the

respondent no.2 gave statement to the Police that he

had no grievance against anyone about the death of

said Yasmin. In other words, the respondent no.2

(complainant) was not dis-satisfied in the context

of medical treatment given to Yasmin at the time of

her delivery. It was only after two days of her

death that he lodged FIR on basis of his perception

about the alleged negligence caused by the

applicant. The FIR purports to show that the

applicant informed him that a male infant was born

but there was inversion of the uterus and,

therefore, there was profuse bleeding. The applicant

allegedly assured the respondent no.2 that he would

give treatment and will cure the patient and,

therefore, kept the patient as well as her relatives

waiting for a considerable period till about 2:30

pm. There is no other allegation in respect of any

malafide conduct of the applicant or lack of medical

treatment to the patient.

(7) CRI.APP. 2502.2005

7. The death of the patient is the ultimate

result of the prognosis which occurred after the

delivery. In such a case, it is very much essential

to examine whether the medical practitioner is

responsible for the death of the patient on account

of his/her gross negligence committed by his act or

omission. The expression "negligence" means lack of

due care expected from an expert in the given

circumstances. The provision of section 304-A does

not specifically show that the negligence ought to

be of any particular kind. What section 304-A, if

considered in plain terms, would imply is that if by

any rash or negligent act, the death has occurred

then the author of such rash or negligent act may be

held criminally liable.

8. There cannot be duality of opinion that the

medical practitioners intend to cure the patients.

However, section 304-A or section 279 of the I.P.C.

do not require any mens-rea. Naturally, the

intention of the medical practitioner hardly is of

much significance in such a case.

(8) CRI.APP. 2502.2005

9. The fact situation in the present case would

make it amply clear that the deceased Yasmin gave

natural birth to the male infant and there were no

complications in the delivery. The applicant has

filed copy of histo-pathological report (Annex 'D'

to the Application). The functioning of the liver,

spleen, kidney, brain, heart and uterus did not show

any abnormality as such. The record does not show

any specific reason for the hemorrhage caused after

the delivery of the infant. The medical case papers

drawn by the applicant would show that the necessary

treatment was immediately given including the

administration of pitocin drops required for

stoppage of profuse bleeding. The applicant stated

that since the bleeding was not being controlled,

the relatives were informed that Yasmin was to be

referred for further treatment alongwith IV

heameecul drip. The record further shows that the

Investigating Officer obtained opinion from the

Civil Surgeon. The opinion of the independent

medical authority purports to show that the

(9) CRI.APP. 2502.2005

applicant gave necessary treatment to the patient-

Yasmin while conducting the delivery. The opinion

of independent medical expert purports to show that

the applicant was duly trained for conducting

delivery and, therefore, was competent to undertake

the work of conducting delivery of deceased-Yasmin.

The opinion further shows, in clear terms, that

medicines administered by the applicant to the

patient-Yasmin were proper and correct treatment was

given by her. The opinion of the Civil Surgeon,

Latur (Annex 'F' to the Application) further shows

that there was no undue delay committed by the

applicant in referring the patient to obtain

treatment at the higher centre when the hemorrhagic

flow could not be stopped inspite of the immediate

treatment. Needless to say, the opinion of the

medical expert, who is an independent authority

attached to the District Civil Hospital supports the

case of the applicant.

10. The post-mortem report goes to show that

deceased-Yasmin was aged about 20 years and the

cause of death was hemorrhagic shock. It was

(10) CRI.APP. 2502.2005

noticed by the autopsy surgeon that there were no

external injuries on the body of the patient. Both

the lungs were pale. The excessive bleeding from

the vaginal outlet was accompanied by inversion of

the uterus and, therefore, there was prognosis in

the condition of the patient-Yasmin.

11. The entire record and the investigation

papers do not show any prima facie material to infer

that the applicant committed overt act of negligence

which is not expected from the ordinary and prudent

Medical Practitioner in the given circumstances.

The expression negligences means "failure to

exercise the standard of care that a reasonably

prudent person would have exercised in a similar

situation." The negligence may be caused due to

inadvertence or heedlessness by which the negligent

party is unaware of the results which may follow

from the act. In case of criminal negligence, it

must be proved that the negligence was of such a

degree that it could be termed as recklessness. It

must be proved to be a gross negligence so extreme

that it can be made punishable as a crime. This is

(11) CRI.APP. 2502.2005

particularly necessary when a criminal charge is

levelled against the Medical Practitioner.

12. In "Dr. Suresh Gupta V. Govt. of N.C.T. of

Delhi and anr. 2004 AIR SCW 4442" the Apex Court

held that where the medical practitioner failed to

take appropriate steps viz. "not putting a cuffed

endotracheal tube of proper size" so as to prevent

aspiration of blood blocking respiratory passage,

the act attributed to him may be described as

negligent act but not so reckless as to make him

criminally liable. The Apex Court held that such

criminal proceedings were liable to be quashed. The

law regarding medical negligence is further

elaborately clarified in case of "Jacob Mathew Vs.

State of Punjab and anr. 2005 AIR SCW 2685 " . The

Apex Court issued certain guidelines while dealing

with the cases of criminal negligence attributed to

Medical Practitioners. The test and guidelines may

be reproduced as follows:-

"49. We sum up our conclusions as under:-

                         (1)     Negligence   is   the   breach   of   a   duty 





                                                                          (12)                                 CRI.APP.  2502.2005

caused by omission to do something which a reasonable man guided by those

considerations which ordinarily regulate the conduct of human affairs would do, or

doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of

Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence

becomes actionable on account of injury

resulting from the act or omission amounting to negligence attributable to the

person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.

(2) Negligence in the context of medical

profession necessarily calls for a treatment with a difference. To infer

rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from

one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he

(13) CRI.APP. 2502.2005

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 to that practice or procedure which the accused followed. When it comes to the failure of

taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to

be sufficient; a failure to use special or

extraordinary precautions which might have prevented the particular happening cannot

be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is

judged in the light of knowledge available at the time of the incident, and not at the

date of trial. Similarly, when the charge of negligence arises out of failure to use

some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is

suggested it should have been used.

(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have

(14) CRI.APP. 2502.2005

possessed, or, he did not exercise, with reasonable competence in the given case,

the skill which he did possess. The standard to be applied for judging, whether

the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that

profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which

he practices. A highly skilled

professional may be possessed of better qualities, but that cannot be made the

basis or the yardstick for judging the performance of the professional proceeded against on indictmnet of negligence.

(4) The test for determining medical

negligence as laid down in Bolam's case (1957) 1 W.L.R. 582 holds good in its applicability in India.

(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law

may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of means rea must be shown to exist. For an act to amount to criminal negligence, the degree of

(15) CRI.APP. 2502.2005

negligence should be much higher i.e. gross or of a very high degree. Negligence which

is neither gross nor of a higher degree may provide a ground for action in civil law

but cannot form the basis for prosecution.

(6) The word 'gross' has not been used

in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of

such a high degree as to be 'gross'. The expression 'rash or negligent act' as

occurring in Section 304A of the IPC has to be read as qualified by the word 'grossly'.

(7) To prosecute a medical professional for negligence under criminal law it must

be shown that the accused did something or

failed to do something which in the given facts and circumstances no medical professional 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.

(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot

(16) CRI.APP. 2502.2005

be pressed in service for determining per se the liability for negligence within the

domain of criminal law. Res ipsa loquitur has, if at all, a limited application in

trial on a charge of criminal negligence."

The Apex Court categorically held that the word

"gross" has not been used in section 304-A of the

I.P.C., yet it is settled that in criminal law

negligence or recklessness, to be so held, must be

of such a high degree as to be "gross". The Apex

Court held that the expression "rash or negligent

act" as used in section 304-A of the I.P.C. has to

be read as qualified by word "gross". In other

words, the word "grossly" is required to be prefixed

with the words "rash or negligent act" while

examining the case of medical negligence in the

context of section 304-A of the I.P.C. The Apex

Court further held that the maxim "Res Ipsa

Loquitur" (Things speaks for itself) cannot be

pressed in service for determining per-se liability

for negligence within the domain of criminal law.

It is held that the maxim has limited application in

such a case.

(17) CRI.APP. 2502.2005

13. In "Kusum Sharma and others Vs. Batra

Hospital and Medical Research Centre and others

(2010) 3 SCC 480", the Apex Court reiterated the

legal position after taking survey of catena of

case-law. In the context of issue pertaining to

criminal liability of a medical practitioner,

Hon'ble Mr. Justice Dalveer Bhandari speaking for

the Bench, laid down that the prosecution of a

medical practitioner would be liable to be quashed

if the evidence on record does not project

substratum enough to infer gross or excessive degree

of negligence on his/her part. The observations may

be usefully quoted as follows:-

"89. On scrutiny of the leading cases of medical negligence both in our country

and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical

negligence. While deciding whether the medical professional is guilty of medical negligence following well-known principles must be kept in view:

                          I.         Negligence   is   the   breach   of   a  duty 





                                                                          (18)                                 CRI.APP.  2502.2005

exercised by omission to do something which a reasonable man, guided by those

considerations which ordinarily regulate the conduct of human affairs, would do, or

doing something which a prudent and reasonable man would not do.

II. 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.

III. The medical professional is expected

to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest

nor a very low degree of care and

competence judged in the light of the particular circumstances of each case is what the law requires.

IV. A medical practitioner would be liable only where his conduct fell below

that of the standards of a reasonably competent practitioner in his field.

V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional

(19) CRI.APP. 2502.2005

doctor is clearly not negligent merely because his conclusion differs from that of

other professional doctor.

VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which

he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but

higher chances of failure. Just because a

professional looking to the gravity of illness has taken higher element of risk to

redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

VII. Negligence cannot be attributed to a

doctor so long as he performs his duties with reasonable skill and competence.

Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was

acceptable to the medical profession.

VIII. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.

                                                                          (20)                                 CRI.APP.  2502.2005




                          IX.                   It   is   our   bounden   duty   and

obligation of the civil society to ensure that the medical professionals are not

unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.

X. The medical practitioners at times also have to be saved from such a class of

complainants who use criminal process as a

tool for pressurising the medical professionals/hospitals, particularly

private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against

the medical practitioners.

XI. The medical professionals are entitled to get protection so long as they

perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the

medical professionals."

14. The recent trend appearing from the

authoratative pronouncements of the Apex Court is

that the criminal liability cannot be fastened on

(21) CRI.APP. 2502.2005

the Medical Practitioner unless the negligence is so

obvious and of such high degree that it would be

culpable by applying the settled norms. The Apex

Court held that the Medical Practitioner would be

liable only where his conduct falls below that of a

reasonably competent doctor. It is further held

that divergence of opinion with other doctors by

itself is not sufficient to infer negligence. The