This petition has been filed by the petitioners to call for the records pertaining to the complaint in C.C.No.14 of 2012 on the file of the Judicial Magistrate-I, Kuzhithurai and quash the same.
2.It is a most unfortunate case, where a father lost his two years old child due to alleged medical negligence. Hence, he filed a complaint before the Judicial Magistrate-I, Kuzhithurai. Challenging the said complaint, the doctors and the staff members of the hospital have filed this petition under Section 482 of Civil Procedure Code.
3.The brief facts of the case to file this criminal original petition as follows :-
(1) The first and the second petitioners are husband and wife and they are running a hospital at Marthandam in the name and style of Sugam Hospitals, which stands in the name of one Mrs.Vasantha. The first petitioner is a Pediatrics in the Government Hospital, Thakkalai and the second petitioner is a lecturer in the Government Medical College, Arasipallam.
(2) On 08.06.2011, the respondent's two years old daughter namely, Ms.Karthika was brought to the said hospital for attending to her daughter who was running a fever. Since, the temperature was high, the child was under the treatment continuously. On 12.06.2011, the child was brought to the hospital again for a treatment, but, the same medicine was prescribed to the child, but the fever did not come down. Again on 15.06.2011, the respondent's wife brought her daughter to the first and second petitioners' hospital. Even then, the doctors did not advise for the laboratory test. However, on 16.06.2011, the respondent's wife again brought her child for admission due to vomiting and diahorrea. Thereafter, on 17.06.2011, the first petitioner advised the respondent's wife to go for a blood test and through the report the doctors came to know that the child was suffering from Dengu fever, but then the condition of the child was worse. Thereafter, the child was shifted to Jayasekharan Hospitals & Nursing Home, Nagercoil by the respondent in order to save his daughter. After thorough examination, they found that the child was severely affected by the Dengu fever for more than a week. However, on 17.06.2011 at about 1.10 p.m., the child was died. Aggrieved by the same, the affectionate father filed a complaint before the learned Judicial Magistrate No.I, Kuzhithurai.
4.The learned counsel appearing for the petitioners denied the averments made in the complaint, stating that the first and the second petitioner did not give proper treatment to the child. The first petitioner is a pediatrics and the child was admitted in his hospital and treatment was given as per his advise. However, the building was leased out in favour of one Dr.Vasantha and the second petitioner is no way connected with the allegation levelled against her and absolutely there is no fault on the petitioners. The child was under continuous treatment for six days. There was no possibility symptoms for Dengu fever. However, the petitioners conducted a test only on 17.06.2011 early morning. Thereafter, the respondent was not satisfied with the treatment given by the petitioners, shifted the child was to another hospital, hence, the petitioners are no way responsible for the death of the child. The petitioners did not commit any offence as alleged by the complaint. The alleged offence against the petitioners is not arisen, as per the decision of the Honourable Supreme Court in JACOB MATHEW VS. STATE OF PUNJAB AND ANOTHER reported in 2005 M.L.J (Crl)1077 and another Judgment in Martin F.D'Souza Vs. Mohd.Ishfaq reported in (2009) 1 SCC (Cri) 958 and this Court reported in (2009) 2 MLJ Crl 127 reported in Dr.N.Rangabashyam Vs. Ms.Zeenath Begaum.
5.Per contra, the learned counsel appearing for the respondent after disputing the entire facts stated supra would submit that the child was admitted as early as on 08.06.2011. However, the Dengu was diagnosed only on 17.10.2011 and thereafter, not being satisfied with the treatment given by the petitioners, the child was shifted in an another hospital. However, the respondent had lost his affectionate child, where it is a clear case of medical negligence on the part of the petitioners, who had failed to treat the child properly and not diagnosed the Dengu fever at the earliest, as the child was under their care for continuous six days. It is only due to the negligence on the part of the petitioners, the Dengu fever was not diagnosed in time. If the same would have been diagnosed at the earliest, the child would have been saved.
6.I have given my anxious consideration to the submissions made by the learned counsel for the petitioners, as well as the learned counsel for the respondent.
7.Admittedly, a large number of medical negligence have arisen in the year 2000. The entire matters were referred by the decision of the Hon'ble Supreme Court in its judgment reported in 2005 M.L.J (Crl)1077 (cited supra), which reads as follows:-
?48.Conclusions summed up: We sum up our conclusions as under: (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 and 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 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 consideration 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 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 (I.e., 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 V.Friern Hospital Management Committee, ((1957) 1 W.L.R.582:(1957)2 All.E.R.118, (Q.B.D), 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, I.P.C., 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, I.P.C., 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.
(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.
52.Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and /or the State Governments in consultation with the Medical Council of India. So long as it is NOT done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in Government Service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam V.Friern Hospital Management Committee, (1957) 1 W.L.R582:(1957)2 All.E.R.118, to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.?
8.On a perusal of the above said judgment, the Hon'ble Supreme Court, in the case, where the oxygen cylinder was not provided at the relevant point of time, had directed the parties to approach the Court for medical negligence. However, the Hon'ble Supreme Court had observed that it is open to the parties to work out their remedy before the civil law. Particularly private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor. Thereafter, the another judgment reported in (2009) 1 Scc (Cri) 958 reads as follows:
?106.We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer for a (whether District, State or National) or by the criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal Court should first refer the matter to a competent doctor or committee of doctors, specialised in the filed relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the doctor/hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew case1, otherwise the policemen will themselves have to face legal action.?
9.On a perusal of the above said judgments, the Hon'ble Apex Court made it clear, that the Court should finally refer the matter to a competent doctor or a committee of doctors and after that only notice can be issued to the doctor / hospital concerned. In view of the above direction, this Court is inclined to follow the decision rendered by the Hon'ble Apex Court in the decisions cited supra.
10.Accordingly, a direction is issued to the Lower Court, who in turn, shall refer the matter to the District Medical Board, Madurai. This has to be done within a period of two weeks from the date of receipt of a copy of this order. The District Medical Board, Madurai, shall conduct a detailed investigation, after hearing the necessary parties and perusal of the entire documents submitted by the parties and file a report before the concerned Court, within a period of eight weeks. After a full fledged investigation based on the outcome of the Medical report, the learned Magistrate shall proceed with the matter, in accordance with law. Thereafter, the learned Magistrate is directed to take cognizance, if it is necessary and proceed the case in accordance with law.
11.Since this Court has referred the matter to the Medical Board, the cognizance taken by the Lower Court is hereby set aside. However, after the outcome of the Medical report, the learned Judicial Magistrate is directed to proceed with the matter in accordance with law.
12.In the result, this criminal original petition is allowed on the above terms and the cognizance taken in complaint in C.C.No.14 of 2012, on the file of the learned Judicial Court No.I, Kuzhithurai is set aside.
To
1.The Judicial Magistrate-I, Kuzhithurai
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.