Delhi High Court
Dr. T.S.Kler vs Govt. Of Nct Of Delhi & Anr. on 23 February, 2011
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 27th January, 2011
Date of Order: 23rd February, 2011
+ W.P. (Crl.) 725 of 2007 with Crl. M.A. 6199 of 2007
% 23.02.2011
DR. T.S. KLER ..... Petitioner
Through: Mr. Anupam S. Sharma, Advocate
Mr. Sandeep Sethi, Sr. Advocate with
Mr. Rohit Puri, Advocate
versus
GOVT. OF NCT OF DELHI & ANR. ..... Respondent
Through: Ms Meera Bhatia, ASC along with SI
Ichha Ram, P.S. N.F. Colony
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
1. This petition under Article 226 & 227 of the Constitution of India read
with Section 482 Cr. P.C. was filed by the petitioner for quashing of
summoning order, dated 3rd June, 2006, passed by learned MM, in the
complaint case of medical negligence against the petitioner whereby he was
summoned as an accused.
2. The petitioner was working as Senior Consultant and Director,
Interventional Cardiology, at Escorts Heart Institute and Research Centre and
had treated Mr. D.B. Bhasin. The patient was advised to undergo
Angiography as he was suffering from unstable angina. He was admitted in
the hospital and his Angiography was conducted by the petitioner with a team
of Doctors. After the Angiography, the patient complained of pain in his chest.
He was prescribed and administered medication. Thereafter the patient was
advised to undergo Angioplasty and three Stents were advised to be
implanted to open the arteries. On 14th September, 2000 ECG was conducted
on patient and Angioplasty was carried at about 3.30 pm. Entire process of
implanting Stents and conducting of Angioplasty was video recorded and
preserved. The patient, however, did not survive and died on 23 rd September,
2000 and the respondent filed a complaint about medical negligence. The
learned MM during pre-summoning evidence recorded statement of
complainant and of Dr. Kapil Kumawat, Department of Cardiology, AIIMS. Dr.
Kapil Kumawat stated that according to Angioplasty report given to the
patient, two Stents were implanted in total. But according to Escorts Heart
Institute and Research Centre (EHIRC) they had implanted two Stents in one
artery and one Stent in another artery. This fact regarding implant of three
Stents could be confirmed only after watching the CD recorded of Angioplasty
procedure. The learned MM on the basis of this testimony came to
conclusion that prima facie there was sufficient material to take cognizance of
the offence that with an intention to cheat three Stents were stated to be
implanted while only two Stents were actually implanted and it was also a
case of medical negligence. He, therefore, summoned the petitioner under
Section 420, 491, 304A with Section 34 IPC.
3. During pendency of this petition this Court on 9 th April, 2010 observed
that the main dispute between the parties was whether three or two Stents
were used in Angioplasty procedure performed on late Mr. D.B. Bhasin.
While the petitioner contended that three Stents were implanted, the
contention of the respondent was that only two Stents were implanted and the
complainant was wrongly billed for three Stents. Since the entire procedure of
Angioplasty was duly recorded and the CD of this recording had been filed in
the court, this Court with the consent of the parties, passed following
directions:
"(i) The petitioner hospital will send a copy of the CD of
the Angioplasty procedure recording to the Director, All India
Institute of Medical Sciences and a copy of the CD will be
given to the respondent-complainant.
(ii) The Director, All India Institute of Medical Sciences
will ask the Head of the Department of Cardiology to
examine the CD and opine whether three Stents or only two
Stents were implanted at the time of Angioplasty procedure.
(iii) In order to ensure that the CD is of the patient
concerned i.e. late Mr. D.B. Bhasin, a photocopy of the
original medical file along with contrary Angioplasty report
will be sent. Copy of the Register enclosed at page No. 133
and 135 will be also sent.
(iv) The aforesaid CD and papers/documents will be sent
within a period of two weeks. The Director, All India Institute
of Medical Sciences is requested to send a report within a
period of four weeks from the date CD and
documents/papers are received by them. Copy of the AIIMS
report will be furnished to the petitioner and the respondent-
complainant."
4. After these directions CD and the necessary material was sent to
AIIMS and a report was received from AIIMS vide letter dated 4 th May, 2010
wherein it was stated that after reviewing the CD it was found that three
Stents were implanted, two Stents in left Circumflex and one Stent in the left
anterior descending artery.
5. After receipt of this report, the counsel for petitioner argued that as the
report makes it abundantly clear that three Stents were implanted, the
allegations of implanting only two Stents and cheating and showing medical
negligence did not stand and the summoning order should be quashed.
6. Counsel for respondent, however, argued that there was no surety that
the report given by AIIMS was based on examination of correct CD. There
was possibility that the petitioner had got sent another CD showing
implantation of three Stents.
7. I consider this argument must fail. The Court had taken enough
precaution to ensure that only record of deceased patient was forwarded to
the AIIMS for opinion. Even CW-2 Dr. Kapil Kumawat had, in his testimony,
opined that exact number of Stents could be known only after examining the
CD.
8. In view of the fact that entire basis of complaint was that only two
Stents have been implanted instead of three Stents, as claimed by EHIRC,
and since it was been established on record from the opinion given by AIIMS
after reviewing the CD that three Stents were implanted, I consider that this
petition is to be allowed. The order dated 3 rd June, 2006, passed by learned
MM is hereby quashed.
FEBRUARY 23, 2011 SHIV NARAYAN DHINGRA, J.
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