Delhi High Court

Dr. Ganesh Mani vs Shikha Saini on 19 May, 2009

Author: S. Muralidhar

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Reserved on: April 17, 2009
                                            Date of decision: May 19, 2009

                           CRL. REV. P. No. 218 of 2008

         DR. GANESH MANI                      ..... Petitioner
                      Through: Mr. Siddharth Aggarwal with
                      Mr. Simon Benjamin, Advocates.

                  versus

         SHIKHA SAINI                                   ..... Respondent
                                Through: Mr. P.K. Malik, Advocate.


         CORAM:
         HON'BLE DR. JUSTICE S.MURALIDHAR

         1. Whether Reporters of local papers may be
             allowed to see the judgment?                         No
         2. To be referred to the Reporter or not?                Yes
         3. Whether the judgment should be reported in Digest? Yes

                                 JUDGMENT

19.05.2009

S. Muralidhar, J.

CRL. M.A. No. 4750 of 2008 (condonation of delay)

For the reasons stated in the application, the delay in filing the petition

is condoned.

The application is disposed of.

CRL. REV. P. No. 218 of 2008 & CRL. M.A. No. 4749 of 2008

(stay)

1. This revision petition is directed against an order dated 19th

December 2007 passed by the learned Metropolitan Magistrate

(„MM‟), New Delhi holding that there was material on record to charge

the Petitioner and other accused for the offences under Sections

336/337/471 read with 34 IPC.

2. The case of the prosecution is that the complainant Satish Kumar

Batra retired as Secretary, Social Welfare, Government of Delhi, in

1994. He had a cardiac problem and was admitted to the National

Heart Institute („NHI‟), East of Kailash, Delhi on 24th May 1998. He

was advised a bypass surgery by the NHI. It was thought that the

Apollo Hospital (A-2) which is run by the Indraprastha Medical

Corporation Ltd. (A-1) would be a safer place. On 30th May 1998 the

complainant the complainant was shifted to Apollo Hospital for his

surgery. The Petitioner Dr. Ganesh Mani (A-3), along with Dr.

S.K.Gupta, Senior Cardiologist (A-4) and Dr. A.M. Dua (A-5) decided

that the bypass surgery would be done on 1 st June 1998. The bypass

surgery performed on that day resulted in the complainant having to

spend an aggregate sum of Rs.2,22,123.03 as fees and Rs.36,750 for

medicines. On 11th June 1998 the complainant was discharged having

been found fit. The complainant alleges that the discharge report dated

11th June 1998 was false. Inter alia, it is alleged that there were 70

entries regarding blood pressure in the medical chart of the

complainant for the period 8th to 11th June 1998 and the blood pressure

touched 120/80 only once in the intervening night of 8 th/9th June 1998.

It was 110/70, 100/64 and 90/65 on 8th, 9th and 10th May 1998

respectively. According to the complainant the discharge report

nevertheless reflected his blood pressure to be 120/80 as if it was for a

normal person. The other criticism of the discharge summary was that

it failed to indicate the ejection fraction, the TLC (which was a

measure of infection), information about sputum infection and was

generally deficient in all vital signs including blood cholesterol. The

allegation is that at the time of discharge the complainant had sputum

infection and was suffering from fever. According to the complainant

A 3 to A5, in failing to indicate the above factors in the discharge

summary, acted in a rash and negligent manner as to endanger the life

and personal safety of the Petitioner.

3. According to the complainant he suffered low-grade fever on 17th

and 23rd June 1998 and consulted A-5. On the advice of A-3 and A-5

he was again admitted to Apollo Hospital on 29th June 1998 and was

discharged on 30th June 1998. The complainant paid Rs.33,760 to A-2

but did not get any relief during this treatment. It is alleged that A-3 to

A-5 were criminally negligent in discharging the complainant on 30th

June 1998 without recording the sputum infection and another vital

signs and suppressing the fact that TLC was about 15,000.

4. It is then claimed that from 30th July 1998 to 19th February 1999 the

complainant had 16 consultations with A-3 to A-5 during which a

number of investigations were got done. All these tests were negative

for TB but A-5 falsely attributed the infection at the time of bypass

surgery on 1st June 1998 to TB. Consequently they started the Anti

Tuberculosis Treatment („ATT‟) which was unwarranted. This

produced severe allergic reactions. On 23rd September 1998 A-5 noted

chest inflammation and sought the opinion of A-3 who prescribed a

certain course of antibiotics. Chest inflammation had by 5th October

1998 become a wound and A-3 dressed the wound and prescribed

antibiotics. It is claimed that despite clear sign of sternum infection A-

3 to A-5 wrongly continued with the ATT and ultimately this was

discontinued only on 7th November 1998. It is alleged that there was

persistent discharge from the place of sternum incision. Antibiotics

continued to be prescribed. A-3 to A-5 instead of treating the root

cause tried to suppress the infection with antibiotics. Ultimately on

19th February 1999 A-3 to A-5 diagnosed that the sternum wires were

the cause of infection. They persuaded the complainant to get admitted

for a third time to Apollo Hospital for another operation for removal of

sternum wires. This was done on 20th February 1999 and complainant

was informed by A-3 that all the sternum wires exposed and removed.

The complainant was discharged on 29th March 1999 and a sum of

Rs.30,242 was charged from him for removal of sternum wires. The

operative and post-operative notes regarding the removal of sternum

wires were written by A-3 himself.

5. It is alleged that despite the admission of the complainant for the

third time to the Apollo Hospital the pus from the wound restarted and

the complainant consulted A-3 and also met A-5. He was admitted for

a fourth time to the Apollo Hospital between 22nd and 25th March 1999.

He was charged Rs.10,000. It was certified that all investigations were

found to be normal. According to the complainant his discharge report

was also "another piece of injurious falsehood and deceit by A-5."

There are several allegations against A-5 thereafter in the complaint.

6. It is stated that since the condition of the complainant did not

improve and he was experiencing aggravated condition of weakness,

loss of appetite, loss of weight, discharging sinus and low blood

pressure. He was admitted to Ram Manohar Lohia Hospital („RML‟)

on 29th April 1999 and discharged on 18th May 1999. Thereafter he

was admitted to the All India Institute of Medical Sciences. The

ejection fraction in both the hospitals was noticed as 17 %. Before the

surgery it was 40% and after the surgery it was 16%. According to the

complainant the most grievous hurt caused to the complainant was that

the heart of the complainant was crippled beyond repair and its

ejection fraction was brought down from 40% to 16%. This was not

mentioned in the discharge reports dated 24th February 1999 and 26th

March 1999 or any of the prescriptions thereafter. It is further claimed

that the statement in the discharge report that all sternum wires had

been removed was false. In course of one of the dressings undergone

by the complainant at the RML Dr. Panigarhi, a surgeon, had detected

an end of one of the sternum wires which was ejecting out. This was

in fact a five inches long wire. In the course of another dressing in

May 2000 an end of another wire was detected. On pulling out, a part

of it came out but the wire was knotted at the other end. Half an inch

of wire was seen ejecting out of the sternum in the middle of the

discharging sinus. It is claimed that there was still some sternum wire

and one of them was still visible. As per the MRI reports dated 31st

July 2001 of the Institute of Nuclear Medicine & Allied Sciences

(„INMAS‟), two sternum wires which were ejected were found

embedded.

7. The precise allegation in the complaint against A-3 to A-5 is that

they had falsely pretended to have performed a surgery, which was

consented to on their advice and for which they were paid a sum to

which they were not entitled. It is alleged that A 3 to A 5 had

knowledge that all sternum wires had not been removed and exposed

but they intentionally induced the complainant to believe that all the

sternum wires have been exposed and removed thereby deceiving him

and causing damage to the body and property of the complainant.

8. It was further alleged that A 3 to A 5 wilfully misrepresented facts

in the discharge summary, which was manipulated and fabricated with

intention to defraud the complainant. It A-2 to A-5 had prepared false

post operative notes and discharge notes for the purposes of cheating

the complainant and leading him into believing that he was in a normal

condition at the time of discharge when the correct results were

actually suppressed. It is alleged that A-3 to A-5 had voluntarily

caused grievous hurt to the complainant "for the purpose of making

money from him to the tune of more than three and a half lakh rupees.

It is stated that the complaint filed by the complainant before the

National Consumer Disputes Redressal Commission (NCDRC), New

Delhi on 7th October 2002 was pending.

9. The complainant examined himself on 17th January 2003 before the

earned MM at the pre-summoning stage as CW-1. His daughter

Shikha Saini was examined as CW-2 on 5th May 2005. She stated that

the complainant Shri S.K. Batra had expired on 25 th September 2004

and that she had been authorised to continue the case. With the

permission of the court this witness was cross-examined by the learned

counsel for A-3. Although during her examination-in-chief CW 2 had

spoken on several aspects of the treatment, in her cross-examination

she admitted that she was not aware of the factors that went into

conducting a CABG. She also stated that she had filed a complaint

with the Medical Council of India („MCI‟) apart from the one before

the NCDRC.

10. Dr. Malika Batra, another daughter of the complainant was

examined on 6th August 2005 as CW 3. She had completed MBBS in

1999 from Kasturba Medical College, Bangalore and her DNB in 2004

from the Ganga Ram Hospital, Delhi. At the cross-examination on 31st

January 2007 CW-3 stated that the complaint filed before MCI which

was in turn referred to the Delhi Medical Council (DMC) has been

rejected by and the doctors involved, including A-3, had been held not

to be negligent. The communication dated 4th August 2005 to this

effect from the DMC had been received by the family of the deceased

complainant. No appeal had been filed against the said finding. This

witness admitted that "we do not have any opinion of any body of

medical expert to indicate that the Doctors accused are guilty of

negligence."

11. The learned MM heard the arguments on charge. It was argued on

behalf of the accused that even if the allegations in the complaint were

taken to be true it would only prove medical negligence. The failure to

examine any doctor as an expert meant that the offence of criminal

negligence was not even prima facie established. The learned MM

negatived this argument by referring to the testimony of Malika Batra.

It was opined that "merely that she is the daughter of the

deceased/complainant does not affect adversely her testimony which

also touches prima facie the medical aspects related the present case."

After noticing that the complainant had been repeatedly admitted to the

hospital for treatment within a span of one year, the learned MM held

that this itself "reflects otherwise that complainant had never gained

good health after each discharge so, prima facie it cannot be ruled out

that the discharge summary was not manipulated." It was further held

that "no explanation has been forwarded why accused was treated for

ATT despite no diagnosis for TB." The conclusion reached by the

learned MM was as under:

"I think there is sufficient material on record which prima facie establishes the negligence

in the treatment of complainant done by accused no.3 to 5 on behalf of accused no.1.

Further, whether the reports/discharge summary was that of a healthy person or the facts therein were manipulated to show an unhealthy person as a healthy person could only be established if the matter proceeds for trial.

In these circumstances accused no.1, 3, 4 and 5 are hereby charged for the offences u/s 336/337/471/ 34 IPC."

12. This Court has heard the submissions of Mr. Siddarth Aggarwal,

learned counsel for the Petitioner and Mr. P.K. Malik, learned counsel

appearing for the Respondent. Learned counsel for the Petitioner

referred to the report dated 4th August 2005 of the DMC which showed

that the DMC heard Dr. Malika Batra (CW 3) and Shikha Batra nee

Saini (CW 2), the daughters of the complainant. The DMC also heard

A-3 to A-5. The DMC formed the opinion that "it was commendable

on the part of the Apollo doctors to have taken a risk of operating him

at a time when it was obvious that without surgery he would not have

survived." The conclusion was that the subsequent complications are

known to occur in such situations and do not amount to medical

negligence. It is submitted that this report of the DMC was placed

before the learned MM and even admitted by CW-3 Dr. Malika Batra

herself. However, the learned MM made no reference whatsoever to

the DMC‟s report. The learned MM therefore erred in directing the

framing of charge by overlooking a relevant material. Reliance is also

placed on the judgments in Dr. G.S. Chandraker v. State 145 (2007)

DLT 262, Jacob Mathew v. State of Punjab (2005) 6 SCC 1, Dr.

Suresh Gupta v. Govt. of NCT of Delhi (2004) 6 SCC 422 and the

recent decision of the Supreme Court in Martin F.D'Souza v. Mohd.

Ishfaq (2009) 3 SCC 1 to urge that, in the absence of independent

expert evidence by a competent medical professional to substantiate

the allegations of criminal medical negligence, there was no case made

out for even a suspicion, leave alone grave suspicion, against the

petitioner for the offence in question.

13. It is further submitted that the facts alleged do not make out even a

prima facie case against the petitioner for the offences under Sections

420 and 471 IPC. There was no dishonest intention on the part of the

Petitioner right from the beginning to induce the complainant into

parting with money for his treatment. Although the post-operative

notes were in the handwriting of A 3, reflected the true state of affairs

of the complainant at the time of his discharge. The sentence that "all

sternum wires were removed" actually reflected the position that all

sternum wires which were required to be removed had indeed been

removed. In the absence of independent evidence of an expert, it would

be unsafe to come to the conclusion that offence under Section 471

IPC was attracted ion the facts and circumstances.

14. On behalf of the respondent Mr.Malik, learned counsel does not

dispute that the only medical evidence on record is that of CW 3 who

is the daughter of the deceased. It is also not disputed that she could

not be considered to be an expert to talk about heart bypass surgeries.

Nevertheless, it is urged that this is sufficient material to form a grave

suspicion against the petitioner. It was repeatedly urged by learned

counsel for the respondent that the case was not so much about

criminal medical negligence as of cheating and fabrication of records.

15. The submissions of counsel have been considered. The scope of the

present proceedings is to determine if there exists material on record to

form a grave suspicion against the petitioner for the commission of the

aforementioned offences. The principal offence alleged is that of

criminal medical negligence. Relevant to this, it is noticed that the

DMC has by a detailed order dated 4th August 2005 come to the

conclusion that there was no medical negligence in the case. A very

detailed analysis has been done of what happened with the complainant

at the Apollo Hospital. A reference has also been made to the removal

of the sternum wires. The precise observations of the DMC are as

under:

"Twenty three days after the surgery he developed mild breathlessness and low grade fever with normal counts for which short hospitalization was done. Mild grade fever continued for the next 2½ months and hence a trial of anti tubercular treatment was given which is an accepted professional practice in

any low grade fever when external source of infection is not visualized. 5 months after the operation first discharge was noted from the sternum for which multiple treatment options were tried including change of antibiotics, excision and curettage of infected sternal wires. It is observed that as per the discharge summary (Date of Discharge 24-02-99) of Indraprastha Apollo hospital only the infected sternal wires were removed "underwent excision & curettage of discharging sternal sinus with removal of sternal wires... The Council is of the opinion that it is a standard practice to remove only the infected sternal wires. The Council appreciates that patient was a high risk patient for cardiac surgery which was done successfully without any complications. He had preoperative significant infection in the body. A count of 18900 TLC indicates that infections had spread into the blood."

16. On further analysis the following conclusions were arrived at by

the DMC:

"The very fact the sternal wound did not heal in spite of treatments at multiple hospitals and by multiple specialists it indicated an unusual type of infection. Regarding echocardiography reports it is known that ejection fraction is not a standard criterion for judging the severity of illness. His preoperative ejection fraction was low and

remained low throughout his illness except for one report where the ejection fraction was labeled to be 40%. The reliability of that report is questionable as it had four different values of ejection fraction and did not have the required details of systolic and diastolic functions. The Council is of the opinion that it was commendable on the part of Apollo doctors to have taken a risk of operating him at a time when it was obvious that without surgery he would not have survived. He was operated even in the presence of infection, on balloon life support and knowing very well that patients who have suffered from pulmonary edema and has revived from serious ventricular tachycardia from electric shock and dependent on intra aortic balloon pump have a very high immediate mortality and late morbidity. All his subsequent complications are known to occur in such situations and do not amount to any medical negligence on the part of Dr. S.K.Gupta, Dr. Ganesh K. Mani, Dr. J.M. Dua." (emphasis supplied)

17. In the face of the above expert opinion of the DMC, unless there

was some strong evidence, the way of an independent medical expert it

would be unsafe to straightway draw a conclusion that there is a case

of grave suspicion against the Petitioner for committing the offence of

criminal medical negligence. The law in this regard has been

succinctly stated by the Supreme Court in Jacob Mathew in the

following words (SCC, p.35):

"A private complaint may 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. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam test [Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118 QBD)] to the facts collected in the investigation." (emphasis supplied)

Further in Jacob Mathew the Supreme Court held:

"50. To fasten liability in criminal proceedings e.g. under Section 304A IPC the degree of negligence has to be higher than the negligence which is enough to fasten liability in civil proceedings. Thus for civil liability it may be enough for the complainant to prove that the doctor did not exercise reasonable care in accordance with the principles mentioned above, but for convicting a doctor in a criminal case, it must also be proved that this negligence was gross amounting to recklessness."

The Court went on to remind (SCC, p.33):

"(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 mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of

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 304-A 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 304-A 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."

18. In its recent judgment in Martin D'Souza after recapitulating the

earlier law the Supreme Court observed as under:

"41. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

........

43. It is not enough to show that there is a body of competent professional opinion which considers that the decision of the accused professional was a wrong decision, provided there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances.

.......

47. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse." (emphasis supplied)

19. Applying the aforementioned law to the facts of the present case it

is seen that the minimum requirement of the law as regards

independent evidence of a competent medical expert has not been

satisfied. In fact at one stage of the argument learned counsel for the

complainant conceded that the complainant may not have been able to

prove the medical negligence or criminal medical negligence against

A-3. The reliance placed by learned MM on the evidence of Dr.

Malika Batra CW-3 was not appropriate. She admits that she

completed her MBBS course only in 1999 so she had no knowledge of

the procedures performed by A-3 to A-5 who are experts in their

respective fields. For instance, the point made about there being a

practice of allowing some sternum wires, not considered unsafe, to

remain cannot be tested in the absence of a medical expert in that field.