Dr. Sreejoy Pattnaik vs State Of Odisha
2023 Latest Caselaw 6080 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                     CRLMC No.52 of 2020

  Dr. Sreejoy Pattnaik                  ....              Petitioner
                                   Mr. Partha Mukherji, Advocate


                              -Versus-


  State of Odisha                       ....         Opposite Party
                              Mr. T.K. Praharaj, Standing Counsel
            CORAM:
            JUSTICE R.K. PATTANAIK

              DATE OF JUDGMENT:16.05.2023

1.

By invoking the inherent jurisdiction under Section 482 Cr.P.C, the petitioner has filed the instant petition for quashing of the impugned order under Annexure-1 and also the entire of the proceeding in G.R. Case No. 482 of 2015 on the grounds inter alia that the learned J.M.F.C. (City), Cuttack failed to appreciate the matters on record in reaching at a conclusion directing him to face the trial despite a view that the IO ought to have obtained an expert opinion with regard to the alleged medical negligence.

2. A written report dated 21st March, 2015 was lodged by the informant alleging therein regarding rashness and negligence on the part of the petitioner, while carrying out surgical operation on her husband, who died thereafter. On the F.I.R. being lodged, Mangalabag P.S. Case No. 65 dated 21st March, 2015 was registered under Section 304-A I.P.C. for the negligence by the petitioner due to the death of the informant's husband, who was under his treatment. Finally on completion of investigation, chargesheet was filed against the petitioner under the alleged offence. Later to it, the learned Court below, on being moved by an application under Section 239 Cr.P.C. by the petitioner,

Dr. Sreejoy Pattnaik Vrs. State of Odisha

declined to discharge him and passed the impugned order dated 20th September, 2019 in G.R. Case No. 482 of 2015 and fixed the hearing to the next date for framing of charge. Being dissatisfied, the petitioner has knocked the doors of this Court seeking its indulgence by exercising power under Section 482 Cr.P.C on the ground that not only the impugned decision but also the entire proceeding which is based on no expert opinion vis-à-vis the medical negligence is unjustified and liable to be quashed.

3. Heard Mr. Mukherji, learned counsel for the petitioner and Mr. Praharaj, learned counsel for the State.

4. Mr. Mukherji, learned counsel for the petitioner submits that the learned court below committed gross error while rejecting the application filed under Section 239 Cr.P.C despite a conclusion that the guidelines of the Apex Court not being followed by calling upon the IO to furnish a report and to explain as to why the case was not referred to an expert body for opinion on medical negligence before submission of the chargesheet. According to Mr. Mukherji, the deceased was admitted in the hospital on 2nd January, 2015 with a complaint of abdominal pain with vomiting and fever and was diagnosed with chronic liver disease leading to jaundice caused by stricture of Common Bile Duct (CBD) and Pancreatitis but after his condition was stabilized and restored to normalcy with medication, he underwent an endoscopic procedure on 20th January, 2015 and ERPC with biliary stenting, whereby, the stricture in the CBD was corrected by implanting a stent to clear the blockage. It is further submitted that the surgical intervention was done to the bile duct and not in the heart as believed and claimed and be that as it may, on 25th January, 2015, after complete recovery and as he was found normal, was discharged with medical advice and after a gap of one and a half month, again visited the hospital complaining of

Dr. Sreejoy Pattnaik Vrs. State of Odisha

fever and hence, was admitted on 8th March, 2015 after diagnosed with acute Cholecystitis and on 9th March, 2015, the petitioner was operated for removal of stones from the gall bladder but despite proper care and surgical intervention, he died on 21st March, 2015 and the post-mortem revealed the cause of death due to be Septicemic shock and not due to any fault in surgery. While claiming so, Mr. Mukherjee refers to a copy of the PM report as at Annexure-4 and further explains that the patient had a weak immune system and therefore, he could not fight back the infections and succumbed to it on 21st March, 2015 but his relatives and the informant lodged the report out of pique. Interestingly, the learned Court below though held and formed a view that medical opinion was required to be solicited before submission of the chargesheet and even called for a report from the I.O., as according to Mr. Mukherjee, the petitioner, to his utter dismay, was directed to appear for framing of charge, which is not sustainable in law particularly, in absence of any opinion of an expert body on medical negligence. In support of such contention, Mr. Mukherjee cited the following decisions, such as, Jacob Mathew Vrs. State of Punjab & Another (2005) AIR SC 3180; Dr. Manish Bansal Vrs. State of Haryana (CRM-M No.19672-2014 (O& M)) disposed of on 30th January, 2019 of the Punjab & Haryana High Court; Anjana Agnihotri & Another Vrs. The State of Haryana & Another (Criminal Appeal No.770 of 2009) disposed of on 6th February, 2020; Dr. S.K. Jhunjhunwala Vrs. Mrs. Dhanwanti Kumar & Another decided in Civil Appeal No. 3971 of 2011 and disposed of on 1st October, 2018 and finally, V.Kishan Rao Vrs. Nikhil Super Specialist Hospital And Another (2010)5 SCC 513.

5. On the other hand, Mr. Praharaj, learned counsel for the State submits that after the F.I.R was lodged by the informant, it was enquired into and investigated upon by the I.O and ultimately,

Dr. Sreejoy Pattnaik Vrs. State of Odisha

on a subjective satisfaction being arrived at, the chargesheet was submitted under Section 304-A, I.P.C., a decision which is based on evidence with reference to the PM report as it is clearly revealed from Annexure-3 and hence, even in absence any such expert opinion, the learned Court below did not commit any serious wrong and rightly rejected the application under Section 239 Cr.P.C and proceeded to frame the charge with the conclusion that an error in investigation cannot be the reason to let the petitioner off the hook when there exists a reasonable apprehension regarding deviation from the normal procedure and doubt is cast upon the surgery. In other words, Mr. Praharaj justified the impugned order under Annexure-1 and submits that the petitioner should face the trial for the alleged medical negligence, which can be examined and deliberated upon during the trial on receiving evidence received from both the sides.

6. The F.I.R. was lodged on 21st March, 2015 and therein, the informant described the circumstances under which her deceased husband was admitted in the private hospital on the advice of the petitioner. It has been alleged that on the instruction of the petitioner and since the deceased was earlier under his treatment, he was admitted in the hospital and on 9th March, 2015, a surgery was conducted, which was not by laparoscopic and it was without her consent and of in-laws and after about 12 days, the deceased died and it was due to the negligence of the petitioner. In fact, Annexure-2 suggests that the petitioner was the doctor, who had treated the informant's husband before and later, on his advice, the treatment was administered. It is made to reveal that the deceased had surgical operation on 9th March, 2015 and sometime thereafter, he died. With the above allegation, when the F.I.R was lodged, the IO registered the case under Section- 304-A I.P.C, conducted investigation during which he held inquest over the dead body and after receiving the PM report, submitted

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the chargesheet with the conclusion that a case of medical negligence to have been prima facie made out. Whether it is a case of medical negligence or not and for any such culpability, the petitioner is liable for a prosecution under Section 304-A I.P.C. is to be examined by the Court.

7. In Jacob Mathew (supra), the Apex Court while dealing with a case of medical negligence summed up the conclusion in the following words:

(1) Negligence is the breach of a duty 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 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

Dr. Sreejoy Pattnaik Vrs. State of Odisha

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 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 indictment of negligence.

(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 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 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 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 304-A of 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.

Dr. Sreejoy Pattnaik Vrs. State of Odisha

(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 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.

In view of the principles laid down hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr. Suresh Gupta's case (2004) 6 SCC 422 and re- affirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh Gupta's case. We may not be understood as having expressed any opinion on the question whether on the facts of that case the accused could or could not have been held guilty of criminal negligence as that question is not before us. We also approve of the passage from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Suresh Gupta's case (noted vide para 27 of the report).

Guidelines re: prosecuting medical professionals. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.

We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for

Dr. Sreejoy Pattnaik Vrs. State of Odisha

or unjust compensation. Such malicious proceedings have to be guarded against.

It has also been held therein that the IO and the complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the medical professional amounts to rash or negligence within the domain of criminal law. In the said decision, it has also been observed that the criminal process once initiated subject to the professionals to serious embarrassment and sometimes harassment.

8. In Dr. Manish Bansal (supra), while dealing with a case of medical negligence, the Punjab & Haryana High Court referred to the decision in Jacob Mathew and also another decision of the Supreme Court in the case of Dr. Sou Jayshree Ujwal Ingole Vrs. State of Maharashtra and Another 2017(2) R.C.R.(Criminal) 549 and considering the fact that doctor therein had performed several operations and possessed of necessary qualifications, considered it appropriate to quash the proceeding exercising jurisdiction under Section 482 Cr.P.C and furthermore, held that he being a Government doctor, sanction under Section 197 Cr.P.C was necessary as the alleged act was committed in due discharge of official duty. The view of the Apex Court stands reiterated by a later judgment in Anjana Agnihotri & Anr. Vrs. The State of Haryana & Another and reached at a conclusion that the professional negligence is not gross to fall within the ambit of the guidelines laid down in Jacob Mathew (supra). The classic exposition of law on medical negligence has been enunciated by the Queen's Bench (QB) in the case of Bolam Vrs. Friern Hospital Management Committee (1957) 2 All ER 118 (QBD) and it would be apposite to extract the view expressed therein and reproduce and the same is hereunder:

"Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has

Dr. Sreejoy Pattnaik Vrs. State of Odisha

been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill.... It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art".

The aforesaid principle of law was reiterated and explained by Bingham L.J. in Eckersley Vrs. Binnie (1988) 18 Con LR 1.

In Dr. S.K. Jhunjhunwala (supra), the Apex Court also observed that a surgeon cannot and does not guarantee that the result of surgery would be beneficial much less to the extent of 100 % of the person operated on and the only assurance which he can give is that requisite skill is possessed by him to deal with the complication and while undertaking the performance or the task entrusted to be discharged with the skill and reasonable competence. In the aforesaid decision, the Supreme Court concluded that judged by the above standard, a professional may be held liable for negligence on the findings that either he was not having the requisites skill professed to have possessed, or he did not exercise, with reasonable competence in the given case, the skill which he did possess. Further held that it is also not possible for every professional to possess the highest level of expertise or skill in a particular branch, which he practices and therefore, referring to the observations in Hucks Vrs. Cole (1968)118 New LJ 469 held that a case of medical negligence is to be vested in principle of law discussed therein.

9. In Hucks (supra), it was held that a medical practitioner was not to be made liable simply because things went wrong for mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to an another and a professional could be held liable only where his conduct found below that of the standard of a reasonably

Dr. Sreejoy Pattnaik Vrs. State of Odisha

competent practitioner in his field. The above are the decisions so to say which have been relied upon by Mr. Mukherjee laying down the principle of law on medical negligence and the case of Bolam (supra) being the judgment legal classicus.

10. Quite interestingly, the learned court below was aware of the settled legal position and discussed majority of the above decisions, however, finally concluded that the petitioner should face the trial. In the F.I.R., it has been alleged by the informant that neither her nor in-laws consent was obtained for the surgical operation and thereafter for the cause of the negligence and complications arising therefrom, the deceased died. However, it is made to suggest that consent was obtained before the deceased was subjected to surgical procedure on 9th March, 2015. Irrespective of any such consent or otherwise of the informant or in-laws for that matter, the further question is, whether, the medical negligence was of such nature that the petitioner was needed to be chargesheeted to face the prosecution under Section 304-A I.P.C. As it seen, the IO considering the opinion in PM report and other attendant circumstances surrounding the surgery of the deceased concluded that a case of medical negligence to be made out. There is no denial to the fact that the petitioner is a qualified professional and not a novice. Whether it was a decision for laparoscopic or an open surgery, with or without one's consent by itself, in the considered and humble view of the Court, without any material revealing negligence of gross nature would not be sufficient to direct the petitioner to face the criminal prosecution. A case of gross medical negligence has to be made out against a professional. No professional in any field would ever intentionally commit any act or omission which may result in loss or injury to his customer as his reputation would be at stake. So, therefore, to attribute medical negligence, one must be doubly sure that there is gross negligence by the professional and for that

Dr. Sreejoy Pattnaik Vrs. State of Odisha

an expert opinion is always advisable and readily acceptable. In the case at hand, for the reason best known, the IO did not take any such opinion of a doctor or body of expert before concluding about medical negligence. The hostile circumstances at times persuades a layman to reach at a conclusion that a negligence has taken place but to invite a prosecution against a professional, whether it would be a case of gross rashness or negligence, in view of the settled law expound by the Apex Court in Jacob Mathew (supra), before closing the investigation, an Investigating Officer is obligated to reach out for an expert opinion. Merely by referring to the PM report with the injuries ante mortem in nature consistent with the surgical laparoscopic conducted over the deceased, it would be too a risky proposition to conclude about medical negligence. Having said that, the Court reaches at a final conclusion that the learned court below ought to have discharged the petitioner when expert opinion was not sought for to make out a case of gross medical negligence. Hence, it is ordered.

11. In the result, the CRLMC stands allowed. As a necessary corollary, the impugned order under Annexure-1 and the proceeding in connection with G.R. Case No. 482 of 2015 pending in the file of the learned J.M.F.C. (City), Cuttack are hereby quashed vis-à-vis the petitioner.

(R.K. Pattanaik) Judge

Balaram

Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-May-2023 12:48:34