Telangana High Court

Mrs.Gunjan Sonthalia, vs The State Of Telangana, Rep., By Its ... on 6 November, 2024

Author: G. Radha Rani

Bench: G. Radha Rani

          * THE HON'BLE Dr. JUSTICE G. RADHA RANI

               + CRIMINAL PETITION No.12429 of 2017

% 07.06.2022

# Bollineni Bhaskar Rao S/o.late B. Ramanaiah Naidu,
Aged:64 years, Occ: C.T. Surgeon and M.D. & CEO of Krishna
Institute of Medical Sciences Ltd., C/o.KIMS Hospital,
Ministers Road, Secunderabad and others.
                                                              .... Petitioners
             Vs.

$ The State of Telangana,
Through Public Prosecutor of
High Court at Hyderabad and others
                                                             ..... Respondents

!Counsel for the Petitioners     : Mr. Vivek Jain

Counsel for the Respondents      : Public Prosecutor,
                                   Mr. Maheswar Rao Kunchem

<Gist :

>Head Note:

? Cases referred:
      1. (2005) 6 SCC 1
      2. (2008) 14 SCC 479
      3. (2010) 3 SCC 480
      4. (2009) 3 SCC 1
      5. (2009) 9 SCC 221
      6. (2004) 6 SCC 422
      7. (2010) 3 SCC 480
      8. (2009) 9 SCC 221
                                      2
           THE HON'BLE Dr. JUSTICE G. RADHA RANI

              CRIMINAL PETITION No.12429 OF 2017

ORDER:

This criminal petition is filed by the petitioners/A1 to A3 under

Section 482 Cr.P.C to quash the charge sheet in C.C.No.40 of 2017 on the

file of XI Additional Chief Metropolitan Magistrate, Metropolitan

Criminal Courts at Secunderabad which was transferred to the Court of

XIV Additional Judge cum XVIII Additional Chief Metropolitan

Magistrate at Secunderabad and was renumbered as C.C.No.499 of 2018.

2. The case of the prosecution as per the charge sheet filed by the Sub-

Inspector of Police, Ramgopalpet Police Station, Secunderabad was that on

18.12.2015 at 03:00 P.M, the complainant lodged a report before the police

station alleging that on 01.11.2015 his brother Junnoothula Narsimha

Reddy aged 65 years resident of Godisaala Village of Karimnagar District

was admitted in Aaditya Nursing Home at Karimnagar for treatment of

stomach ache. The doctors after conducting medical tests confirmed that

he was suffering with Acute Pancreatitis and advised to shift the patient to

KIMS Hospital at Secunderabad for better treatment. On the advice of the

doctors, the patient was shifted to KIMS hospital at Secunderabad and was

admitted on 04.11.2015 at 12:15 hours. The hospital management

informed to pay Rs.40,000/- before admission and the complainant

deposited an amount of Rs.45,000/- on the same day and treatment was

started. While undergoing treatment at KIMS hospital, his brother J.

Narsimha Reddy expired on 05.11.2015 at 10:00 hours. The KIMS

hospital management splashed a bill of Rs.3,11,217/- for 34 hours

treatment towards cost of blood and blood plates, room charge, dialysis for

24 hours and doctors' charges. He further alleged that the patient was

given 77 injections abnormally resulting in the death of his brother. Basing

on the said complaint, the Investigating Officer registered a case vide

Crime No.304 of 2015 under Section 304-A IPC.

3. During the course of investigation, the Investigating Officer

collected medical report of the patient at KIMS Hospital and submitted the

same to the Superintendent, Gandhi Hospital, Secunderabad and sought to

constitute a Medical Board to examine the cause of death of the patient

J. Narsimha Reddy to know whether there was any medical negligence.

The Superintendent constituted a Medical Board with the Professor &

Head of Department (HOD) Gastroenterology and the Professor & Head of

Department (HOD) of General Surgery and they after examining the

medical record of the patient opined that though the patient was very

critically ill, the dose of the Inotropes used was unusually high and

similarly the amount of I.V. fluids given was also on higher side, keeping

in view of severe LV dysfunction. Basing on the said opinion given by the

expert team of doctors, the Investigating Officer filed charge sheet against

A1 to A3, Managing Director of KIMS Hospital and the doctor who

treated the deceased and the management of the KIMS hospital for the

offence under Section 304-A read with 109 IPC.

4. Heard the learned counsel for petitioners Sri Vivek Jain and learned

counsel for the respondent No.2 Sri T. Govinda Rajulu.

5. Learned counsel for the petitioners submitted that, no prima facie

case was made out against the accused to prosecute them for the offence

under Section 304-A read with 109 IPC, even if the allegations in the

charge sheet were taken on their face value to be true. A reading of the

complaint would disclose that the main grievance of the complainant was

charging of amounts and excessive billing which was not an offence under

Section 304-A read with 109 IPC. There was no specific assertion in the

complaint against the petitioner No.2 or other doctors alleging negligence

in treatment. The entire charge sheet was built on surmises and conjectures

without actual investigation and the investigating agency did not even

examine the cause of death. The deceased was suffering from multi organ

failure and his chances of survival were very bleak, less than 10% to 15%.

The report of the Expert Medical Board would not conclude that the

doctors or the management were medically negligent. In the absence of

any material evidence as to the cause of death and no reasons recorded in

the report of the expert board as to the cause of death, no case was made

out against the petitioners for the offence under Section 304-A read with

109 IPC. He further contended that the conclusions arrived by the expert

board on the dosage of noradrenaline/norepinephrine (inotropes) was

vague and unsubstantiated. The dosage of the drug varies significantly

depending on the patient's condition. It would be unscientific to state that a

fixed dose without considering the patient's condition could be

administered to all patients. The dosage required would be significantly

higher than that was stated by the expert board for critically ill patients. As

per medically accepted literature, the dosage of noradrenaline was

dependent upon the criticality of the patient condition and the body weight.

Adequate fluid resuscitation (I.V. fluids) was necessary and crucial to

avoid the increased risk of adverse events. The doctors administered

proportionate I.V. fluids to ensure that vasopressor (noradrenaline) was

delivered to the body as intended.

7. He relied upon the judgments of the Hon'ble Supreme Court in

Jacob Mathew v. State of Punjab1, Mahadev Prasad Kaushik v. State

of U.P.2, Kusum Sharma v. Batra Hospital3, Martin F. D'Souza v.

Mohd. Ishfaq4, Malay Kumar Ganguly v. Dr. Sukumar Mukherjee5

and Suresh Gupta (Dr.) v. Govt. of NCT, Delhi6.

8. Learned counsel for the 2nd respondent contended that basing on the

expert opinion and the evidence on record, the Investigating Officer filed

charge sheet against the accused. As per the observation of experts, the

treatment given to the deceased in respect of dose of the inotropes and I.V

fluids was improper and would amount to gross negligence. The Telangana

Medical Council also found fault with the accused regarding treatment

given and noted the discrepancies. The expert opinion was material under

Section 45 of Indian Evidence Act and would play a key role. To avoid

trial, the accused preferred this petition and prayed to dismiss the petition.

9. Perused the record and the complaint filed by the defacto

complainant/respondent No.2 herein. The respondent No.2 in his complaint

stated that his brother J.Narsimha Reddy complained pain in his stomach

(2005) 6 SCC 1

(2008) 14 SCC 479

(2010) 3 SCC 480

(2009) 3 SCC 1

(2009) 9 SCC 221

(2004) 6 SCC 422

and he was admitted in Aditya Nursing Home at Karimnagar on

01.11.2015. After conducting tests, it was confirmed that his brother was

suffering from Acute Pancreatitis. Aiming to arrange better treatment, he

brought his brother to KIMS Hospital situated at Minister Road,

Secunderabad on 04.11.2015. The reason behind opting for this hospital

was that in a TV interview telecasted in ABN channel, the CEO of KIMS

Hospital Mr.B.Bhaskar Rao stated that their hospital offered better

treatment with 25% lesser cost compared to all hospitals. At the time of

admission, the doctors informed him that patient was suffering seriously

from ailment and informed that the cost of expenditure would be

Rs.40,000/- per day. As per their demand, he deposited Rs.45,000/- on the

same day i.e., on 05.11.2015 at 10:00 hours. After being under treatment

for 34 hours, his elder brother died. The hospital billed him Rs.3,11,217/-.

He arranged the money from his relatives and paid. After completing

funeral rights, suspecting high billing, he showed the case sheet and the

hospital bills to some doctors acquainted with him and all the said doctors

informed him that there were several irregularities in the bill. For raising

BP, Adrenaline was injected in 2 ml quantity. Only two or three injections

should have been given irrespective of the seriousness the patient was

suffering from, but the hospital had given 77 injections. Because of

injecting such a high dosage, the patient died. The hospital charged

Rs.33,600/- for 24 hours dialysis @ Rs.1,400/- per hour. But on

observation of the case sheet, the doctors recommended dialysis for 12

hours only and they obtained consent at 4:00 PM in the evening on

04.11.2015 and the patient died at 10:00 AM in the morning of

05.11.2015, which would indicate that his brother died 18 hours after

giving consent, whereas the hospital billed for 24 hours treatment. The

hospital had shown in the case sheet that 11 packets of fresh frozen blood

was injected, but there were only 7 stickers in the case sheet and in the

case sheet it was mentioned that 12 numbers of random donor platelets

were injected, but only 10 stickers were shown in the case sheet that too

with high rates. The cost of fresh plasma in Usha Mullapudi Hospital was

Rs.600/-, Asian Gastroenterology Hospital was Rs.1,200/- and in KIMS

Hospital they charged Rs.2,150/-. The hospital also billed for 6 numbers of

urine pipes, foley's cather 8F, 10G, 14G, 16G, whereas only one was

needed. They billed for 220 gloves (110 pairs) as had been used in 34

hours. The fees for Anesthetist doctor was charged at Rs.14,000/- per day

and Gastroenterologist doctor Sharath @ Rs.14,000/-. For duty doctors,

the charges were extra and drug administration charges were billed at

Rs.10,944/-. The CEO of the Hospital Bhaskar Rao and other doctors had

not treated his elder brother properly and used unnecessary medicines,

injections and blood and became responsible for the death of his elder

brother.

10. Thus, the above allegations would disclose that the complainant was

mainly aggrieved for charging excessive billing. Simultaneously, he also

made some assertions about the negligence of the doctors while treating his

brother. The case was registered under Section 304-A IPC. To prove the

offence under Section 304-A IPC, it was necessary that the death should

have been the direct result of rash and negligent act of the accused and the

said act must be the proximate cause of the death of the deceased. No post

mortem was conducted to know the cause of death. The complaint was

lodged after completing funeral rights of the deceased with a delay of 13

days after the death of the deceased. Hence, the investigating officer only

relied upon the expert opinion to charge the petitioners/accused. As per the

report of the expert, the deceased was admitted on 04.11.2015 with clinical

diagnosis and he was suffering with the following:

i. Acute on chronic calcific pancreatitis with MODS (Multi Organ Dysfunction Syndrome also referred to as Multi Organ failure).

        ii.     Severe LV (Left Ventricular) Dysfunction.
       iii.     AKI (Acute Kidney Injury also loosely referred to as Kidney

failure) CRRT (Continuous Renal Replacement Therapy, which is an advanced form of dialysis)

iv. CAD post CABG and CRHD MVR 1 (Coronary Artery Disease, post Coronary Artery Bypass Grafting and Chronic Rheumatic Heart Disease Mitral Valve Replacement) year ago on acitrom.

v. Severe Coagulopathy (Deranged blood clotting), Persistent Hypoglacemia Metabolic Acidosis.

vi. UGI (Upper Gastro Intestinal) bleed.

11. The expert report would disclose that the patient was very critically

ill, the dose of the injection used was unusually high and similarly the

amount of I.V. fluids given, keeping in view of severe LV dysfunction,

was also on higher side. Rest of the treatment was as per emergency

protocols. The expert report would not disclose whether they have

examined the case sheet of the deceased.

12. The contention of the learned counsel for the petitioner was that the

case sheet would show that the deceased had severe acute chronic

pancreatitis, was in a state of shock, suffered from failure of multiple

major organs and required extensive artificial organ support. Failure of

blood clotting system was evidenced by very high INR reading (INR was a

blood test performed to detect problems with blood clotting and

consequent bleeding). Low platelets also contributed to internal bleeding

which required multiple blood, platelets and plasma product tranfusions.

Failure of respiratory system (lungs) was evidenced by disturbed gas

exchange and the need for supplemental oxygen which required ventilator

support in view of respiratory failure. Kidney failure was evidenced by a

high serum creatinine level and low urine output. As a result the patient

was referred to nephrology (kidney specialist team under Dr.Ravi E) for

treatment of his acute failure. Patient was treated with dialysis and CRRT

(an advanced technique of dialysis) for treatment of kidney failure.

Circulatory failure or shock was evidenced by low volume of poor pulse,

low blood pressure resulting in reduced major organ perfusion (blood

supply) and organ failure, particularly effecting organs like the kidney.

Circulatory failure required fluids, blood transfusions and inotropes (drugs

such as "noradrenaline" to increase blood pressure and maintain blood

supply to vital organs). The circulatory failure or shock was due to sepsis

(widespread infection) and changes in blood cells reported on the blood

tests. Deranged liver function was evidenced by the blood test reports.

Severe metabolic acidosis (disturbance of metabolism that causes

disturbance of acid base balance) was evidenced by a blood Ph below 7.3,

high cLac levels (lactic acid), and reduced ChCo3 (Bicarbonate) level on

arterial blood gas analysis. Metabolism referred to the essential continuous

chemical reactions in the body cells that were required to convert food into

energy. All the above would demonstrate that the basic life maintenance

system was severely disturbed in the patient. The case sheet would clearly

demonstrate that the deceased was suffering from a syndrome of multi

organ failure. He further contended that the patient's acute physiology and

chronic health evaluation (APACHE) score around the time of admission

to KIMS hospital was 36, which would amount to a predicted mortality

(risk of death) around 85%. APACHE score was a general measure of

disease severity based on current physiological measurements, age and

previous health conditions and was measured during the first 24 hrs. of

ICU admission. A score of over 35 would represent a predicted mortality

of 80%. That is even if the patient received the best medical treatment

available, he still had less than 15% chance of survival. The petitioners

were faced with emergency situation and tried their best to redeem the

deceased out of his suffering.

13. He further contended that the Expert Medical Board report could not

be relied upon since it did not deal with the complete patient condition.

Apparently the board had not based its decision or conclusions in relation

to the patient condition as borne out from the case sheet but in fact its

observations were general in nature. The Expert Medical Board had not

gone into the aspect of dosage required with regard to septic shock, blood

reports and condition of the deceased. It had not considered the fact that

adequate I.V fluids were required for treating critically ill patients as

recommended by leading international journals. When the patient was

suffering from every possible organ failure and he was on artificial

breathing support, had internal bleeding, hypotension and septic shock, the

scope of the doctor's interference was very limited. Yet the petitioners

tried their best to revive the patient to the best of their ability. The

endeavor of the petitioners was to revive the patient from the critical

situation where noradrenaline was used. It was not the case of the medical

experts that noradrenaline was not the correct drug. The expert report was

unreliable as it did not assert as to what was the alternative treatment, or

what was the correct dosage which would help to revive the patient. He

contended that the dosage range of noradrenaline for acute hypotension

was prescribed at 8-12 micrograms (mcg)/minute with an average maintain

dose of 2-8 micrograms (mcg)/minute. It was considered as the correct

dose by the expert board. However, it was used to treat acute hypotension

which would simply refer to a state of low blood pressure, but did not

include critical conditions such as multiple organ failure or septic shock. In

case of sepsis/septic shock, the average dosage would range from 0.01-3.0

micrograms (mcg)/kg/minute.

14. He relied upon the literature "Inotropes and Vasopressors Review of

Physiology and Clinical Use in Cardiovascular Disease" published by

Circulation Journal of the American Heart Association internal page 1049.

He further contended that the books discussing noradrenaline further

would acknowledge that the dosage ranges of 0.005-3 micrograms

(mcg)/kg/minute might need to be exceeded to achieve adequate response.

(High - Risk IV Medications in Special Patient Populations - Published by

Springer, Internal Page 83. He further contended that dosage ranges

prescribed in the Expert Medical Board Report were incorrect, uninformed

and would suffer from non-application of mind as they failed to consider

key medical observations made by the petitioners regarding the deceased

medical state which would change the dosage considerations of the drug

administered.

15. He further contended that dosage of noradrenaline maintained by the

petitioners was 1.2 micrograms (mcg)/kg/minute. Considering the weight

of the patient estimated to be 60 kgs, the dosage of 1.2 micrograms

(mcg)/kg/minute or 73 micrograms per minute, was well within the

prescribed limits as per medically accepted literature. As per medical

expert report, doses of 100 micrograms (mcg)/minute were typically

required in patients with refractory shock/circulatory failure. Medical

experts would opine that there was no well-established minimum dose of

noradrenaline. Several studies had concluded better tissue perfusion when

higher doses of noradrenaline were used up to 350 micrograms (mcg)/min.

(Use of Vasopressors and Inotropes published by Up TO Date Inc, Internal

Pages 12 and 13). He further submitted that the dosage of noradrenaline

administered by the petitioners to the deceased was well within the

prescribed dosage range from 100 mcg/minute to 350 mcg/minute. The

deceased was under treatment for around 35 hours at the petitioner's

hospital. Taking lower dosage of 100 micrograms (mcg)/minute the

amount of noradrenaline that could be typically administered to the patient

as per accepted medical literature would be 100 (mcg) x 60 (minutes) x 35

(hours) = 210000 micrograms (mcg) or 210 milligrams (mg) overall. The

deceased was given 77 ampules of noradrenaline during 35 hours of

treatment. The treatment provided to the deceased was well within

protocol.

16. He further submitted that in combination with noradrenaline

(inotropes), adequate fluid resuscitation (I.V fluids) was necessary and

crucial to avoid the increased risk of adverse events (References: 1] High -

Risk IV Medications in Special Patient Populations - Published by:

Springer, Internal Page 83, 2} Use of Vasopressors and Inotropes -

Published by: Up To Date Inc, Internal page no.3). In order to ensure the

effectiveness of noradrenaline, it was imperative that the doctors

(petitioners herein) administered proportionate I.V fluids to ensure that the

vasopressor (noradrenaline) was delivered to the body as intended.

Furthermore, the Expert Medical Board Report made only an observation

that the I.V fluids used were on the higher side but nowhere concluded that

the quantity of I.V fluids administered was the cause of death of the

deceased.

17. The Hon'ble Apex Court in Suresh Gupta (Dr.)'s case (6 supra)

held as under:

23. For every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment. Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large because if the courts were to impose criminal liability on hospitals and doctors for everything that goes wrong, the doctors would be more worried about their own safety than giving all best treatment to their patients. This would lead to shaking the mutual confidence between the doctor and patient. Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an offence of culpable negligence.

26. To convict, therefore, a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The courts have, therefore, always insisted in the case of alleged criminal offence against doctor causing death of his patient during treatment, that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable.

18. The Hon'ble Supreme Court in Jacob Mathew's case (1 supra),

held as under:

"(2) Negligence in the context of the 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 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 case 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 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."

The Hon'ble Apex Court in the above judgment further held that:

"28. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason -- whether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being the better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to society."

19. The Hon'ble Apex Court in Martin F. D'Souza's case (4 supra)

held as under:

29. Before dealing with these principles two things have to be kept in mind :

(1) Judges are not experts in medical science, rather they are lay men. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, Judges have usually to rely on testimonies of other doctors which may not necessarily in all cases be objective, since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence. The testimony may also be difficult to understand, particularly in complicated medical matters, for a layman in medical matters like a Judge; and

(2) A balance has to be struck in such cases. While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter productive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation.

34. 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. For instance, he would be liable if he leaves a

surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC 2377 or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.

38. The higher the acuteness in an emergency and the higher the complication, the more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and has to choose the lesser evil. The doctor 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. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case but a doctor cannot be penalized if he adopts the former procedure, even if it results in a failure. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not in a position to give consent before adopting a given procedure.

42. When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.

43. 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.

20. In the present case also, the patient was admittedly intubated at the

time of admission, had severe abdominal pain and was in critical condition.

21. The Hon'ble High Court in Kusum Sharma v. Batra Hospital7

held that:

"It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals."

In the same judgment it was further held that:

"89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially 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 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 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.

(2010) 3 SCC 480

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.

IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary 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 pressurizing 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."

21. The Hon'ble Apex Court in Malay Kumar Ganguly v. Sukumar

Mukherjee8, held as under:

"133. It is noteworthy that standard of proof as also culpability requirements under Section 304 -A of Indian Penal Code stands on an altogether different footing. On comparison of the provisions of Penal Code with the thresholds under the Tort Law or the Consumer Protection Act, a foundational principle that the attributes of care and negligence are not similar under Civil and Criminal branches of Medical Negligence law is borne out. An act which may constitute negligence or even rashness under torts may not amount to same under section 304 - A.

157. There cannot be, however, by any doubt or dispute that for establishing medical negligence or deficiency in service, the courts would determine the following:

(i) No guarantee is given by any doctor or surgeon that the patient would be cured.

(ii) The doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill.

(iii) Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution would not constitute any negligence.

(2009) 9 SCC 221

(iv) Failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute a negligence. However, a medical practitioner must exercise the reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence.

(v) In a complicated case, the court would be slow in contributing negligence on the part of the doctor, if he is performing his duties to be best of his ability.

Bearing in mind the aforementioned principles, the individual liability of the doctors and hospital must be judged."

22. Considering the rationale of the above judgments and as the opinion

of the Expert Board was vague as it was given without referring to the case

sheet of the deceased who was in critically ill condition and the report also

would not disclose that the cause of death of the deceased could be solely

attributed to a presumed high dosage of a single drug in a patient requiring

extensive treatment including artificial organ support and the expert board

did not conclusively stated that the doctors had been negligent, the

petitioners could not be attributed with any negligence, as the deceased

also had only 85% chance of mortality and was administered Inotropes and

I.V fluids as per emergency protocols within permissible dosage range.

23. The record also would disclose that a complaint was given by the 2nd