Penal Code, 1860 – Section 304A – Medical Negligence – Indiscriminate prosecution of medical professional – In case of administering treatment with medicine, if two views are accepted by medical science, and if he applies one of them instead of using other drug and due to his such choice if the patient dies, should the doctor be penalized? Held, doctor who administers a medicine known to or used in a particular branch of medical professional impliedly declares that he has knowledge of that branch of science and if he does not in fact possess that knowledge, he is prima facie acting with rashness and negligence.
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Present : The Hon’ble Mr. Justice Siddhartha Chattopadhyay
Judgment Delivered On : 20.07.2016.
C.R.R No. 1027 of 2013
Dr. Sudhir Kumar Thakur -Vs.- The State of West Bengal & Ors.
For the Petitioner : Mr. Tapas Midya Ms. Sabarni Midya, Mr. Subhodip Majumder. For the State : Mr. Manjit Singh, Ld. P.P. Mr. Pawan Kumar Gupta, Mr. Anand Keshri. For the O.P. No. 2 to 4 : Mr. Sekhar Bose, Mr. Siladitya Sanyal, Mr. Arindam Jana, Mr. Sujan Chatterjee, Ms. Sreyashi Bhowmik, Mr. Sougata Banerjee, Mr. Soumajit Chatterjee.
Siddhartha Chattopadhyay, J.:
Challenging the legal pregnability of the Order dated 30.07.2012 passed by the Judicial Magistrate, 2nd Court Sealdah, South 24 Parganas, the petitioner-complainant has filed this revisional application under Section 401/482 of the Cr.P.C. read with Article 227 of the Constitution of India.
2. Grievance as ventilated by the applicant in this application is such that his brother S.N.Thakur died in Apollo Gleneagles Hospital due to medical negligence. In the interest of effective adjudication factual aspects needs to be revisited. The case of the defacto complainant in a capsulated form is such that his brother S.N.Thakur since deceased was admitted in Apollo Gleneagles Hospital on 07.04.2012 at 11:15 p.m. with complaints of multiple black patches on skin and bleeding from mouth. The victim patient was immediately taken to the emergency ward, where the doctor in-charge-of emergency department being assisted by a supervising nurse made an initial observation which revealed that the patient was suffering from ecchymotic patches and bleeding from oral cavity. That deceased was accompanied by one Dr. Abhijit Sarkar, who is the doctor of Employer Company. At the time of his admission in Apollo Gleneagles Hospital, the deceased was having a blood report which speaks:-
1. Platelet count – 17000/cmm
2. Neutrophil – 6%
3. Blast cell – 34%
4. RBC Morphology – Normocytic & Hypochromic
3. Condition of deceased patient was highly alarming and the doctor on duty had made a diagnosis that he was suffering from Chronic Myeloid Leukaemia and for immediate management they have administered injection Raciper and Zofar as the patient complained of nausea and vomiting.
4. The consultant Dr. Soumya Bhattacharya over telephone advised the doctor on duty to admit the patient and also advised a series of tests. No immediate treatment was given to the patient nor any such advice was given except certain clinical tests. He specifically averred that such type of patient ought to have given platelets infusion as per accepted medical procedure in a case where there as subcutaneous bleeding and low platelet count can lead to intra cranial bleeding. The progress report maintained by Dr. Nabanita Ghosh speaks the patient complained of pain in the right side of the brain to which he was given only paracetamol. Neither the consultant doctor was informed nor CT scan and admission to ICU was advised. On the next morning when the patient was found unconscious, consultant Dr. Soumya Bhattacharya was informed and he advised for infusion of four units of platelets and also for shifting the patient to ICU. Accordingly the patient was shifted to ICU after significant delay of 1 hour 45 minutes and platelet infusion was given at 12.20 p.m. Although the patient was admitted at 11:15 p.m. of previous day, but the consultant doctor for the first time examined the patient at 10:00 a.m. i.e. almost after lapse of 11 hours. It is specifically complained of that if instant platelet infusion and CT scan were made, there were chance of his survival. Dr. Sanjoy Bhowmik, Dr. Harsh Jain, Dr. Suresh Rama Subba visited the patient at 10:30 a.m. and made observation of decerebrate rigidity which indicates cerebral haemorrhage. CT scan report also speaks that. At 5:30 p.m. when the defacto complainant visited the patient at that time the patient was already having brain dead. Biological death of the patient was declared on 09.04.2012 at 3:40 p.m. It is also alleged that there is some tampering in the progress report of the patient and it was tampered by the hospital authority.
5. After lodging the F.I.R. police took up the investigation and submitted charge-sheet. Case diary reveals that Investigating Officer has taken statement of available witnesses and sent some documents to questioned document examination bureau, who opined that the said report was tampered and a medical board was constituted on the basis of a complaint and the said medical report speaks that there was some sort of negligence on the part of the hospital authority. These are the sum and substance of the prosecution case.
6. At the time of hearing learned Counsel appearing on behalf of the petitioners contended that there is serious medical negligence on the part of the doctors as well as the hospital authority and for their such rashness and negligent act caused untimely departure of his kith. He has referred to the certain points as appeared in the case diary and the history sheet along with bed head ticket. According to him, the impugned order by which the learned Court below stopped the proceeding is unheard of and bad in law.
7. Learned Counsel appearing on behalf of the accused respondent has submitted that there is no iota of evidence by which the present accused petitioner can be brought to book and the impugned order passed by the learned Court below does not suffer from any infirmity and it does not require any interference.
8. After hearing rival submission of the parties and on perusal of the case diary, it appears to me that there is no significant incriminating material appearing against the present opposite party No. 2 namely Dr. Sanjoy Bhowmik, Dr. Suresh Rama Subba, Dr. Harsh Jain. But the case diary speaks that Rossy M. Joseph who was nurse in charge of that ICU is not above board. When she was in ICU, she was supposed to look after the deceased patient but in spite of that the patient had fallen from the bed to the floor. So therefore, prima facie allegation regarding her negligent act can well be deciphered.
9. In fact, there is no evidence collected by the Investigating Officer that Dr. Suresh Rama Subba and Dr. Harsh Jain had given any effective medical treatment to the victim patient. Dr. Sanjoy Bhowmik had given a direction for his surgery. Medical board was constituted by the Government of West Bengal to ascertain the actual cause of death of Sambhu Nath Thakur and the said board opined “the patient presented with history of bleeding manifestation with blood report suggestive of Acute Leukaemia and this type of case always runs the risk of intra cranial of any other fatal haemorrhage at any time. He should be given platelet support as early as possible to save the life of the patient. There was delay in 1st visit of the consultant after admission and also delay in part of investigation specially CT scan brain and blood transfusion also. There might be certain kind of deficiencies in services given on the part of the hospital along with the attending physician and the staff should take more precaution while treating such kind of patient but unfortunately some degree of negligence (which were mentioned in discussion) was there during the time of treatment.” From the said report it reveals that there was certain kind of deficiencies in services given on the part of the hospital along with the attending physician and the staff and they should take more precaution while treating such kind of patient. The medical board concluded that there is some degree of negligence during the time of treatment.
10. The said medical board did not label any accusation against the Dr. Sanjoy Bhowmik, Dr. Harsh Jain and Dr. Suresh Rama Subba. Platelet transfusion was not done promptly which was very much required for imparting better treatment. Certain tests were prescribed but those were not done in time. The specialist doctor namely Dr. Harsh Jain and Dr. Suresh Rama Subba had advised for surgery too. But before the said surgery takes place the victim patient breathed his last. But role of Soumya Bhattacharya speaks prima facie that there was some sort of negligent act on his part which resulted in the death of the victim. From the case diary it appears particularly from the statement of Dr. Joy Basu, that Dr. Nabanita Ghosh has tampered the history sheet of the patient. It appears from the case diary that Dr. Suresh Rama Subba had attended the patient. On a close scrutiny of the case diary it appears to me that Dr. Suresh Rama Subba and Dr. Harsh Jain, after seeing the condition of the patient, advised for surgery and this surgical operation was supposed to be done by Dr. Sanjoy Bhowmik. But before the said surgery takes place the victim expired. Therefore, there is no lapse on the part of Dr. Harsh Jain, Dr. Suresh Rama Subba and Dr. Sanjoy Bhowmik. Case diary also reveals that Rossy M. Joseph nurse of that hospital had been attending the patient in the night shift. In spite of that the patient fell down from the bed to the floor, which goes to suggest that there is negligence on the part of the attending nurse i.e. Rossy M. Joseph.
11. Learned Counsel appearing on behalf of the petitioner has referred to a decision reported in AIR 1985 SCC 1285 (Bhagaban Singh -Vs.- Commissioner of Police) and submitted that before hearing the application under Section 258 of Cr.P.C., he should have been informed. This judgment relates to provision of under Section 173 (2) of Cr.P.C. Hon’ble Apex Court held that the Investigating Officer is under an obligation under Section 2 (ii) of Section 173 to communicate the action taken by him to the informant and the report forwarded by him to the Magistrate under the said section. Obviously the reason is that the informant, who sets machinery of investigation into motion by filing the F.I.R. must know the result of the investigation initiated on the basis of his F.I.R. In this instant case, charge-sheet has been submitted and so the same analogy cannot be applied in this particular case. Yes, state has appeared on behalf of the prosecution before the learned Trial Court but the defacto complainant was unaware of the fact of filing application under Section 258 of Cr.P.C. In 173 (2) of Cr.P.C. it is mandatory to inform the defacto complainant. But there is no such mandate under Section 258 of Cr.P.C. that the complainant has to be informed. Therefore, the defacto complainant cannot claim the benefit of 173 (2) of Cr.P.C. when the petition was heard under Section 258 of Cr.P.C. as of right. He has also cited another unreported decision in connection with Aruna Ramchandra Shanbaug -Vs.- Union of India & Ors., which was in connection with ‘euthanasia’. In that judgment Hon’ble Apex Court held that a decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient. That judgment is squarely applicable in this case because the patient came with a serious condition and clinical tests were not done within the shortest possible time and when he was having ‘brain dead’, there was no option left with by the doctor concerned to withdraw the life support. So it cannot be said that the act of the doctors were not bona fide. Learned Counsel appearing on behalf of the petitioner also relied on the decision reported in (2009) 9 SCC 221 (Malay Kumar Ganguly -Vs.- Dr. Sukumar Mukherjee & Ors.) In the said judgment Hon’ble Apex Court dismissed the criminal appeal but allowed the civil appeal. In this case we have to consider the criminal negligence act and nothing more. Civil wrong, if any done by the doctors, that may be decided by the consumer forum court, if such application has been filed before that authority. In the said judgment Hon’ble Apex Court held that the doctor concerned not having requisite expertise and did not follow medical treatments protocols laid down by expert. Here the picture is completely different. Nobody raised his eyebrows regarding the qualification and expertise of the doctors concerned. The defacto complainant’s main case is that the deceased was not attended by doctor at the crucial point of time. It is true that consultant doctor Mr. Bhattacharya, without seeing the patient, over telephone had directed for certain pathological tests. But the said pathological tests were not done instantly and next morning the said consultant doctor came to see the patient and till then no laboratory test was done. Dr. Harsh Jain, Dr. Suresh Rama Subba were the visiting physicians and they have contacted with Dr. Sanjoy Bhowmik for the surgical operation of the victim patient. But before the surgical operation is done, the patient expired. Due to non-availability of the clinical test reports doctors cannot be blamed. It prima facie appears that the hospital authority did not respond to the grave situation, which they were supposed to do.
12. Learned Counsel appearing on behalf of the state has referred to a decision reported in 2003 Cr.L.J. 3327 (Neela Lohitha Dasan Nadar -Vs.- State of Kerala). Spirit of the said judgment speaks that it should not be forgotten that the normal rule is that both parties do get the opportunity to adduce evidence and the Court gives its verdict on the guilt or innocence of the accused based on the evidence in the case. The Court may invoke under Section 258 of Cr.P.C. in a case where the allegations against the accused even accepting them as true, do not constitute offence or on being satisfied that there exists serious defects in the prosecution case which go to the root the matter, thereby rendering further proceedings rather impossible or futile. The power to stop proceedings at any stage has to be sparingly used that too in an extremely exceptional cases. That judgment of the Hon’ble Apex Court has been accepted in many other cases i.e. guideline which has to be adhered to by all the Courts in the country. 13. Learned Public Prosecutor has also referred to a decision reported in AIR 2004 SCC 4674 (Adalat Prasad -Vs.- Rooplal Jindal). Here the case of Jacob Mathew was considered. So, I am of the view, that the decision of Jacob Mathew is also to be considered along with this judgment so far as Section 258 of Cr.P.C. is concerned. Reason for passing the judgment in regard to Jacob Mathew’s was as such: – (1) Jurisdiction of the Magistrate to issue process arises only if the complaint contents allegation involving the accused in the commission of a crime. (2) It is open to the summoned accused to approach the Court issuing summon and convince the Court that there is no such allegation in the complaint which requires his summoning. (3) No specific provision of law is required. (4) Since it is an interim order it can be varied. Finding of that case was examined by Hon’ble Apex Court in Adalat Prasad -Vs.- Rooplal Jindal case. Views expressed that once under Section 204 of Cr.P.C. is applied then the Court cannot come back to under Section 203 of Cr.P.C. and his only remedy is under Section 482 of Cr.P.C. Mainly Hon’ble Apex Court dealt with the provisions under Section 200, 202, 203 and 204 of Cr.P.C., Hon’ble Apex Court mainly focussed on Chapters XV, XVI of the Code. But scope of Section 258 of Cr.P.C. was not examined by the Hon’ble Apex Court because that was not placed before their Lordships for consideration i.e. in any summons case instituted otherwise than upon complaint i.e. police case but summons triable. Therefore, in this instant case ratio of Adalat Prasad’s case is not relevant. On the other hand Neela Lohitha’s case under Section 258 of Cr.P.C. was specifically considered and it was a police case instituted on the basis of F.I.R. The decision reported in Subramanium Sethuraman -Vs.- State of Maharashtra & Anr. reported in 2004 AIR Supreme Court 4711, is not applicable here because it was also in respect of a complaint case but the principles of Jacob Mathew’s case can be dealt with here in respect of other matters i.e. when Section 304A of Indian Penal Code can be invoked against a doctor. In that case Hon’ble Apex Court held to prosecute a medical professional for negligence under a criminal law it must be shown that the accused doctor did something or failed to do something which in the given facts and circumstances of this case no medical professional in his ordinary sense and prudence would have done or failed to do so. The hazard taken by the accused doctor should be of such a nature that injury which resulted was most likely eminent.
14. Doctor who administers a medicine known to or used in a particular branch of medical professional impliedly declares that he has knowledge of that branch of science and if he does not in fact possess that knowledge, he is prima facie acting with rashness and negligence.
15. After going through all the decisions referred to by the rival parties, I am of the view that it is perhaps needless to say that indiscriminate prosecution of medical professional of medical negligence is counter productive to the object and scheme. If during a surgical operation hands of a surgeon begins to tremoring due to apprehension of medical negligence and that ‘Sword of Damocles’ is on his neck, he cannot render his best to carry on life saving scalpel to perform an essential surgery. In case of administering treatment with medicine, if two views are accepted by medical science, and if he applies one of them instead of using other drug and due to his such choice if the patient dies, should the doctor be penalized? In my humble view, Section 304A of Indian Penal Code although does not bear the word ‘Gross’, but while dealing with such case Court must consider it, as ‘Gross’. It must be the causa causans otherwise doctor concerned would always be under the dangling fair of facing a prosecution and to refuse to treat the patient by referring the patient to some other hospital/nursing home, clinic, which eventually would lead to disservice to the society. Court should not encourage this approach.
16. Therefore, in my humble consideration there is no merit in this application under Section 401,482 of the Cr.P.C. read with Article 227 of the Constitution of India so far as opposite party No. 2 Dr. Sanjoy Bhowmik, opposite party No. 3 Dr. Suresh Rama Subba, opposite party No. 4 Dr. Harsh Jain are concerned. But there is apparent gross negligence on the part of the attending nurse Rossy M. Joseph and she cannot be discharged at this stage. Accordingly, this revisional application is allowed in part in respect of Rossy M. Joseph who was attending nurse of the victim. So far as proceeding against Dr. Sanjoy Bhowmik, Dr. Suresh Rama Subba and Dr. Harsh Jain are concerned, that be stopped.
17. Let a copy of this judgment and LCR be sent to the learned Court below for information and taking necessary action and to proceed with the case in accordance with law.
18. Urgent certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.