Delhi High Court
Sanjeevan Medical Research ... vs State Of Nct Of Delhi & Anr. on 11 February, 2011
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 17th January , 2011
Date of Order: 11th February, 2011
+ Crl.M.C.No. 2358/2010
% 11.02.2011
Sanjeevan Medical Research Centre
(Private) Ltd. & Ors. ... Petitioners
Through: Mr. K.T.S.Tulsi, Sr. Advocate with
Mr. Gaurave Bhargava, Advocate
Versus
State of NCT of Delhi & Anr. ... Respondents
Through: Mr. Sunil Sharma, APP for the State
Mr. S.D.Singh & Mr. Rahul Singh, Advocates for
the complainaint
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
By this petition, the petitioners have assailed order dated 4th
June, 2010 passed by the learned MM taking cognizance of the offence under
Section 304-A IPC against the petitioners on complaint made by respondents
Dr. D.K.Satsangi and Mrs. Poonam Satsangi. Dr. D.K.Satsangi is father of
deceased who, it is alleged, died due to medical negligence of Dr. Anupam
working with petitioner no. 1.
2. A complaint was filed before the learned MM under Section
156(3) Cr.P.C. and after taking cognizance learned MM directed Director of
All India Institute of Medical Sciences, Ansari Nagar to constitute a medical
board comprising of doctors specialized in the field for examining the matter
and giving their opinion if there was a medical negligence on the part of the
accused persons in treating Rahul Satsangi or not. This Board was
constituted by AIIMS. The respondent/complainant had simultaneously
approached The National Consumer Disputes Redressal Commission and the
Commission also gave directions to the Board of Doctors of AIIMS to give its
opinion about the medical negligence.
3. The issue of medical negligence was initially referred by the
police to Directorate of Health Services, Govt. of NCT Delhi on receiving a
complaint from the complainant. The Directorate of Health Services had
constituted a Committee consisting of three doctors viz. Dr. S.Bhattacharjee,
Director Services Dr. L.C.Thakur, Expert Member, Professor Neurology, GTB
Hospital and Dr. S.V.Madhu, Expert Member, Professor Medicine, GTB
Hospital. Dr. S.Bhattacharjee was the Chairman. The Board constituted by
Directorate of Health Services had given its opinion on 17 th February, 2010
and in opinion of the Board the treatment and management given to the
patient was appropriate and prima facie there was no
rashness/negligence/omission involved in the treatment of the patient.
4. The AIIMS Board gave its opinion on 26th October, 2010 to the
following effect "There is no evidence to suggest that there was any gross
negligence on the part of the Treating Doctor/Hospital in the treatment of late
Mr. Rahul Satsangi in the said matter". The Board of Doctors of AIIMS
consisted of Dr. Rita Sood, Chairperson and six more doctors. The Board
had gone through entire treatment record of the patient.
5. It is submitted by Counsel for the petitioner that in view of the
opinion of the two Boards - one of Directorate of Health Services and other of
All India Institute of Medical Sciences, both being independent bodies, and in
view of judgments of Supreme Court no case for medical negligence could
proceed against the petitioners and the complaint against the petitioners be
quashed. On the other hand, learned Counsel for the respondent submitted
that the two Boards have not considered the relevant documents and history
of the patient and the opinion given by the Medical Board was not reliable and
the respondents should be given an opportunity to prove that the patient was
treated with utmost negligence. The other factor on which the respondents
have relied is the order dated 3rd November, 2010 of Delhi Medical Council
holding Dr. Anupam guilty of negligence and taking disciplinary action against
him.
6. I have gone through the order of Medical Council and the same
is silent about the opinions given by other two Boards and has not discussed
these opinions at all. The order also does not show as to who, on behalf of
Delhi Medical Council considered the issue of Medical negligence of Dr.
Anupam. In any case, Delhi Medical Council has given its own reasons which
are contradictory to the reasons given by the other two Boards.
7. On medical negligence Supreme Court has laid down certain
precautions to be taken while summoning doctors, in judgments Jacob
Matthew v. State of Punjab (2005) 6 SCC 1, Martin F. D'Souza v. Mohd.
Ishfaq (2009) 3 SCC 1 and Kusum Sharma v. Batra Hospital (2010) 3 SCC
480. The basic and underlying principle of these three judgments and other
similar judgments is that every careless act of a medical man cannot be
termed as "criminal". It can be termed "criminal" only when the medical man
exhibits a gross lack of competence or inaction and wanton indifference to his
patient's safety and which is found to have arisen from gross ignorance or
gross negligence. It has been emphasized by Court that mere error of
judgment or an accident does not involve criminal liability or mere
inadvertence or some degree of want of adequate care would not create
criminal liability though it may create civil liability. It has been ruled that a
private complaint may not be entertained unless complainant has produced
prima facie evidence before the Court in the form of credible opinion given by
another competent doctor. The investigating officer should, before
proceedings against the doctor, accused of rash and negligent act or
omission, obtain an independent and competent medical opinion preferably
from a doctor in government service. It was held by Supreme Court in Martin
F. D'Souza v. Mohd. Ishfaq (supra):
106. We, therefore, direct that whenever a complaint is
received against a doctor or hospital by the Consumer Fora
(whether District, State or National) or by the criminal court
then before issuing notice to the doctor or hospital against
whom the complaint was made the Consumer Forum or the
criminal court should first refer the matter to a competent
doctor or committee of doctors, specialized in the field
relating to which the medical negligence is attributed, and
only after that doctor or committee reports that there is a
prima facie case of medical negligence should notice be
then issued to the doctor/hospital concerned. This is
necessary to avoid harassment to doctors who may not be
ultimately found to be negligent. We further warn the police
officials not to arrest or harass doctors unless the facts
clearly come within the parameters laid down in Jacob
Mathew case, otherwise the policemen will themselves have
to face legal action."
8. In Kusum Sharma v. Batra Hospital (supra) Supreme Court
observed that negligence cannot be attributed to a doctor so long as he
performs his duty with reasonable skill and competence. Merely because the
doctor chooses one course of action in preference to other one available, he
would not be liable if the course of action chosen by him was acceptable to
the medical profession.
9. In the present case, two Boards independent of each other; one
of AIIMS and other of Directorate of Health Services have given clean chit to
the petitioners. In view of opinion of two expert bodies exonerating Dr.
Anupam for gross negligence and in view of Supreme Court holding that
Court cannot be an expert in such cases and the opinion regarding medical
negligence given by an independent board shall have more credibility, I
consider that no useful purpose shall be served in proceeding against the
petitioners.
I therefore allow this petition. The criminal complaint filed against the
petitioners is hereby quashed.
February 11, 2011 SHIV NARAYAN DHINGRA, J.
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