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CASE NO.:

Appeal (crl.) 778 of 2004

PETITIONER:

Dr. Suresh Gupta

RESPONDENT:

Govt. of N.C.T. of Delhi & Anr.

DATE OF JUDGMENT: 04/08/2004

BENCH:

Y. K. Sabharwal & D. M. Dharmadhikari

JUDGMENT:

J U D G M E N T

(Arising out of SLP(Crl.) No. 2931 of 2003)

Dharmadhikari J.

Leave to appeal is granted.

The appellant who is a Doctor (Plastic Surgeon) is in the dock as an

accused on the charge under Section 304 A of the Indian Penal Code [for

short the 'IPC'] for causing death of his patient on 18.4.1994. The patient

was operated by him for removing his nasal deformity. It may be mentioned

at the outset, that the Anesthetist who was assisting the surgeon in the

operation was also made co-accused but it is reported that he died pending

the trial. The proceedings, therefore, stand abated against him.

The appellant urged before the Magistrate that the medical evidence

produced by the prosecution, does not make out any case against him to

proceed with the trial. The learned magistrate in deciding to proceed with

the trial recorded following reasons in the impugned order dated

28.11.1998 passed by him :-

"Postmortem report is very categorical and very clear and it has been

clearly mentioned therein that death was due to the complication

arising out of the operation. That operation was conducted by both

the accused persons. It is also clear from the material on record that

deceased was young man of 38 years having no cardiac problem at all

and because of the negligence of the doctors while conducting

minor operation for removing nasal deformity, gave incision at

wrong part due to that blood seeped into the respiratory

passage and because of that patient immediately collapsed

and died and it was also attempted to show by the accused persons

that he was alive at that time and was taken to Ganga Ram Hospital

for further medical attention.

It is clear from the record that patient had actually died at the clinic of

the accused and therefore, I am of the opinion that there are sufficient

grounds on record to make out a prima facie case against both the

accused for commission of offence under Section 304A IPC. Let notice

be served accordingly."

[Emphasis supplied]

As the Magistrate decided to proceed with the trial, the doctor

approached the High Court by petition under Section 482 of the Code of

Criminal Procedure. The High Court refused to quash the criminal

proceedings and upheld the order of the Magistrate, although it records that

the Metropolitan Magistrate was obviously wrong, in the absence of any

medical opinion, in coming to a conclusion that the surgeon had given a cut

at wrong place of the body of the patient at the time of operation leading to

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blood seeping into the respiratory passage and blocking it resulting in his

death. The High Court, however, declined to quash the proceedings against

the doctor for the alleged criminal liability. In the impugned order dated

1.4.2003, it recorded its reasons thus :-

"In the present case two doctors who conducted the post-mortem

examination have taken an emphatic stand which they have reiterated

even after the Special Medical Board opinion, that death in this case

was due to 'asphyxia resulting from blockage of respiratory

passage by aspirated blood consequent upon surgically incised

margin of nasal septum.' This indicates that adequate care was

not taken to prevent seepage of blood down the respiratory

passage which resulted in asphyxia. The opinion of the Special

Medical Board is not free from ambiguity for the reasons already given.

Such ambiguity can be explained by the concerned doctors when they

are examined during the trial."

Learned senior counsel Shri Ashok Desai appearing for the doctor,

has taken us through the contents of the medical opinions produced by the

prosecution with the complaint and some medical books and decided cases

to submit that accepting the entire case of the prosecution, as has been laid

before the trial magistrate, to be true, no case for convicting the doctor for

criminal negligence under section 304A IPC has been made out. He submits

that in the larger interest of medical profession, the criminal proceedings

instituted against his client deserve to be quashed.

Reliance is placed on the House of Lords decision in the case of

R. vs. Adomako [1994 (3) All E. R. 79]; Suleman Rehman Mulani vs.

State of Maharashtra [1968 (2) SCR 515] and Laxman Balkrishna

Joshi vs. Trimbak Bapu Godbole [1969 (1) SCR 206].

We have also heard learned senior counsel Shri Harish Chandra for

the prosecution, who supported the view taken by the Magistrate and the

High Court that the surgeon was guilty of gross negligence in giving an

incision at the wrong place and did not take necessary precautions in the

course of surgical operation to prevent seepage of blood down the

respiratory passage of the patient and the resultant death by asphyxia.

It is settled position in law that the inherent power of the High Court

under section 482 Criminal Procedure Code for quashing criminal

proceedings can be invoked only in cases where on the face of the

complaint or the papers accompanying the same no offence is made out for

proceeding with the trial. In other words, the test is that taking the

allegations and the complaint, as they are, without adding or subtracting

anything, if no offence is made out, the High Court will be justified in

quashing the proceedings [See Municipal Corporation of Delhi vs. Ram

Kishan Rohtagi (AIR 1983 SC 67); and Durgs Inspector vs. B.K.

Krishnaiah (AIR 1981 SC 1164)]

To decide whether on the basis of the complaint and the medical

opinion produced along with it, any offence is made out or not, it is

necessary to examine the papers produced with the complaint. The patient

died in the course of surgical operation on 18.4.1994, but the post-mortem

was conducted on 21.4.1994. By that time rigor mortis had almost passed

off. The post-mortem report gave opinion on the cause of death by

recording thus :-

"Asphyxia resulting from blockage of respiratory passage by aspirated

blood consequent upon surgically incised margin of nasal septum. The

cause of death to the best of my knowledge and answers to the

question put by IO."

A Special Medical Board of four eminent doctors was constituted by

the investigating agency out of which three recorded their unanimous

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opinion as under :-

After the perusal of all the documents produced before the Committee,

we are of the view that the death of Mr. Siavash Karim Arbab,

occurred due to sudden cardiac arrest, the direct cause of which

(Cardiac Arrest) cannot be ascertained. However, possible cause

leading to cardiac arrest can be as follows :-

1. Hypotension due Head-up-Position

2. Adverse drug reaction

3. Hypoxia

Death due to Asphyxia resulting from blockage of air passage

secondary to ante-mortem aspiration of blood from the wound

is not likely in the presence of cuffed endo-tracheal tube of

proper size (8.5), which was introduced before the operation

and remained in position till the patient was declared dead in

Sir Ganga Ram Hospital, as per statements of members of the

operating team and available records. In the post-mortem report

there is presence of clotted fluid blood in respiratory passage, which

invariably occurs ante-mortem due to aspiration from operation site.

However, the presence of fluid and clotted blood in the

respiratory passage, as noted in the post-mortem report, due

to trickling of decomposition bloody fluid and some clot present

in the nostril from the site of incision in the nose, cannot be

ruled out after the tube is taken out. It is worth mentioning in the

present case that the death occurred on 18.4.1994 at 2.30 p.m. and

the post-mortem was conducted on 21.4.1994 at 12.20 p.m. when

sufficient degree of decomposition had started.

Sd/- Dr. Bharat Singh Sd/- Dr. Rizvi Sd/- P.L. Dhingra

Chairman Member Member

[Emphasis supplied]

One of the members of the doctors team Prof. Jagannatham gave a

separate report which reads as under :-

"After going through he relevant papers/documents and surgery and

anaesthesia notes, it was observed that, what medical care was

actually extended to the patient from 5 a.m. to 8.30 a.m. on

18.4.1994 at Delhi Plastic Surgery Clinic. It is surprising that the

patient's physical status belonged to ASA Grade-I. The actual cause of

cardiac arrest on the table noticed immediately after the start of

operation, was not clear and it still stands as enigmas whether the

surgeon had given any adrenaline infiltration to the patient or

originally planned to do the surgery under local anaesthesia could not

be decided. There is no mention about the use of inhalation

anaesthesia during the surgical procedure under the general

anaesthesia.

However, both anaesthetics and the surgeon immediately noticed the

cardiac arrest and started resuscitative measures well-in time to save

the patient's life. With all good intentions and team spirit, they

transported the patient under manual ventilation (supporting

respirations) and shifted the patient to Ganga Ram Hospital's ICU.

Sd/-

(Dr. Jagannatham)

15.11.1995"

It is on these medical papers produced by the prosecution, we have

to decide whether the High Court was right in holding that criminal liability

prima facie has arisen against the surgeon and he must face the trial. The

legal position is almost firmly established that where a patient dies due to

the negligent medical treatment of the doctor, the doctor can be made

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liable in civil law for paying compensation and damages in tort and at the

same time, if the degree of negligence is so gross and his act was reckless

as to endanger the life of the patient, he would also be made criminally

liable for offence under section 304A of IPC.

Section 304A of IPC reads thus :-

"304A. Causing death by negligence. \026 Whoever causes the death

of any person by doing any rash or negligent act not amounting to

culpable homicide, shall be punished with imprisonment of either

description for a term which may extent to two years, or with fine, or

with both."

On behalf of the doctor learned counsel referred to section 80 and

section 88 of the IPC to contend that in various kinds of medical treatment

and surgical operation, likelihood of an accident or misfortune leading to

death cannot be ruled out. A patient willingly takes such a risk. This is part

of doctor patient relationship and mutual trust between them.

Section 80 and 88 read as under :-

"80. Accident in doing a lawful act. Nothing is an offence which is

done by accident or misfortune, and without any criminal intention or

knowledge in the doing of a lawful act in a lawful manner by lawful

means and with proper care and caution.

88. Act not intended to cause death, done by consent in good

faith for person's benefit. Nothing which is not intended to cause

death, is an offence by reason of any harm which it may cause, or be

intended by the doer to cause, or be known by the doer to cause, or

be known by the doer to be likely to cause, to any person for whose

benefit it is done in good faith, and who has given a consent, whether

express or implied, to suffer that harm, or to take the risk of that

harm."

Applying the laid down test for quashing or refusing to quash the

criminal proceedings under section 482 of the Criminal Procedure Code, we

have to find out whether from the complaint and the accompanying medical

papers and by accepting the entire case alleged by the prosecution to be

true, an order of conviction of the doctor for offence under section 304A of

IPC can be passed.

The operation was performed on 18.4.1994 and the patient is alleged

to have died on the same day. The post-mortem was performed after three

days i.e. on 21.4.1994. According to the post-mortem report, the cause of

death was : "blockage of respiratory passage by aspirated blood consequent

upon surgically incised margin of nasal septum."

The medical experts constituting the Special Medical Board set up by

the investigation have opined that "the blockage of air passage was due to

aspiration of blood from the wound and it was not likely in the presence of

cuffed endo-tracheal tube of proper size being introduced before the

operation and remained in position." The team of experts also opined that

'presence of fluid and clotted blood in respiratory passage is likely, as it

invariably occurs ante-mortem due to aspiration from operation site.' But

they also opined that 'presence of fluid and clotted blood in the respiratory

passage, as noted in the post-mortem report, due to trickling of

decomposition bloody fluid and some clot present in the nostril from the site

of incision in the nose, cannot be ruled out after the tube is taken out.'

Dr. Jagannatham, one of the members of the Special Medical Team

constituted during investigation has, however, given separate opinion, the

details of which we have quoted above. It seems to be to some extent in

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favour of the accused surgeon. From the post-mortem report and the

opinion of the three medical experts of the medical team specially

constituted, the case of the prosecution laid against the surgeon is that

there was negligence in 'not putting a cuffed endo-tracheal tube of proper

size' and in a manner so as to prevent aspiration of blood blocking

respiratory passage.

For fixing criminal liability on a doctor or surgeon, the standard of

negligence required to be proved should be so high as can be described as

"gross negligence" or recklessness". It is not merely lack of necessary care,

attention and skill. The decision of the House of Lords in R. Vs. Adomako

(Supra) relied upon on behalf of the doctor elucidates the said legal

position and contains following observations :-

"Thus a doctor cannot be held criminally responsible for patient's death

unless his negligence or incompetence showed such disregard for life

and safety of his patient as to amount to a crime against the State."

Thus, when a patient agrees to go for medical treatment or surgical

operation, every careless act of the 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. Where a patient's death results merely from error of

judgment or an accident, no criminal liability should be attached to it. Mere

inadvertence or some degree of want of adequate care and caution might

create civil liability but would not suffice to hold him criminally liable.

This approach of the courts in the matter of fixing criminal liability on

the doctors, in the course of medical treatment given by them to their

patients, is necessary so that the hazards of medical men in medical

profession being exposed to civil liability, may not unreasonably extend to

criminal liability and expose them to risk of landing themselves in prison for

alleged criminal negligence.

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.

No doubt in the present case, the patient was a young man with no

history of any heart ailment. The operation to be performed for nasal

deformity was not so complicated or serious. He was not accompanied even

by his own wife during the operation. From the medical opinions produced

by the prosecution, the cause of death is stated to be 'not introducing a

cuffed endo-tracheal tube of proper size as to prevent aspiration of blood

from the wound in the respiratory passage'. This act attributed to the

doctor, even if accepted to be true, can be described as negligent act as

there was lack of due care and precaution. For this act of negligence he

may be liable in tort but his carelessness or want of due attention and skill

cannot be described to be so reckless or grossly negligent as to make

him criminally liable.

Between civil and criminal liability of a doctor causing death of his

patient the court has a difficult task of weighing the degree of carelessness

and negligence alleged on the part of the doctor. For conviction of a doctor

for alleged criminal offence, the standard should be proof of recklessness

and deliberate wrong doing i.e. a higher degree of morally

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blameworthy conduct.

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.

See the following concluding observations of the learned authors in

their book on medical negligence under the title 'Errors, Medicine and the

Law' [by Alan Merry and Alexander McCall Smith at pg. 247-248]. The

observations are apt on the subject and a useful guide to the courts in

dealing with the doctors guilty of negligence leading to death of their

patients :-

"Criminal punishment carries substantial moral overtones. The doctrine

of strict liability allows for criminal conviction in the absence of moral

blameworthiness only in very limited circumstances. Conviction of any

substantial criminal offence requires that the accused person should

have acted with a morally blameworthy state of mind. Recklessness

and deliberate wrong doing, levels four and five are classification of

blame, are normally blameworthy but any conduct falling short of that

should not be the subject of criminal liability. Common-law systems

have traditionally only made negligence the subject of criminal

sanction when the level of negligence has been high a standard

traditionally described as gross negligence.

Blame is a powerful weapon. When used appropriately and according

to morally defensible criteria, it has an indispensable role in human

affairs. Its inappropriate use, however, distorts tolerant and

constructive relations between people. Some of life's misfortunes are

accidents for which nobody is morally responsible. Others are wrongs

for which responsibility is diffuse. Yet others are instances of culpable

conduct, and constitute grounds for compensation and at times, for

punishment. Distinguishing between these various categories requires

careful, morally sensitive and scientifically informed analysis."

After examining all the medical papers accompanying the complaint,

we find that no case of recklessness or gross negligence has been made out

against the doctor to compel him to face the trial for offence under section

304A of the IPC. As a result of the discussion aforesaid on the factual and

legal aspect, we allow this appeal and by setting aside the impugned orders

of the Magistrate and of the High Court, quash the criminal proceedings

pending against the present doctor who is accused and appellant before us.