Dismissed

Deepak Jindatta Achalare and Anr. v. Navnath Dnyaneshwar Survase and Anr.

Bombay HC5 Dec 2012APPLN/2018/2010

Case brief

AI extract

What is this about?

This bench considered an application challenging the lower court's order issuing process against accused doctors for alleged medical negligence. Relying on Jacob Mathew guidelines, the court examined if prima facie evidence established negligence under criminal law rather than civil tort. Finding the Additional Sessions Judge's conclusion on the evidence reliable, the court dismissed the objection

What did the court decide?

The criminal application challenging the issuance of process under section 304A IPC was dismissed on merits with observations reserved.

Deepak Jindatta Achalare and Anr. Vs Navnath Dnyaneshwar… — Medical Negligence | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO.2018 OF 2010

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Dr Deepak Jindatta Achalare and anr. ...Applicants v/s

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Navnath Dnyaneshwar Survase and anr. ...Respondents

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Mr A.P. Mundargi, Sr. Counsel i/b Mr Amit Shete for Applicants.

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Mr Shahaji Waghmode i/b Mr H.G. Wakshe for Respondents.

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Ms A.T. Jhaveri, APP for State.

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CORAM : K.U. CHANDIWAL J.

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DATED : 5TH DECEMBER 2012.

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P.C. :-

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The submissions of learned Senior Counsel

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for applicants (accused) completed. The learned

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counsel for respondent (original complainant) says,

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the learned counsel on record is not available,

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matter is serious and hence to be accommodated.

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The matter reveals to so called medical

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negligence by the applicants purportedly Eye Surgeon, practicing at Pandharpur or at Pune in

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respect of operation carried on 12^th June 2002 at the hospital / clinic of applicant No.1 Dr Deepak and thereafter on 2^nd July 2002 at the hospital / clinic of applicant No.2 in which the complainant (respondent No.1) held that the operation to Navnath, then minor carried by the applicants was an act of negligence. The applicant No.1 did not possess expertise in the field. He deceived the complainant by collecting monies, even did not inform of carrying the operation by fixing date of operation, it was only on 16^th February 2002 – post operation, it revealed that the cataract was not detached which was accepted by the applicant No.1.

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The learned Senior Counsel read complaint

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and also evidence of witnesses Dr Suhas S. Sarawade, M.S. (Ophthalmologist), a Professor at Medical College, Solapur, having examined the patient Master Navnath on 2^nd April 2004.

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Reading the nature of contentions canvassed, it is not in controversy that Master

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Navnath was operated on 12^th June 2002 initially by applicant No.1 and later on by applicant No.2 on 2^nd July 2002. The examination by Dr S. Sarawade illustrate that Navnath was operated on his left eye, his eyelids of left eye were normal, conjunctiva was normal, cornea was bright, anterior chamber was normal, posterior chamber intra ocular lens was seen, his fundus of left eye showed faint glow and details could not be visualised, his visual acquity of the left eye had no perception of light. Thus, primarily it illustrates that left eye sight of the patient Master Navnath was not visual, it was completely damaged.

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The learned Senior Counsel submits, in the light of opinion of Dr Suhas Sarawade who has certified that in his view, Dr Deepak – applicant No.1 has not acted negligently for providing treatment to the patient, is sufficient to highlight that there was no negligence on the part of the applicants in treating the patient.

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The learned Senior Counsel criticized order

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of issuance of process, confirmation of the same by the learned Additional Sessions Judge on the ground that both the Courts have blankly followed general law, without looking niceties in the matter. He was doubtful about conduct of the complainant by informing that it was the complainant's subjective satisfaction as the experts - applicants have failed to deliver expected results. The

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prosecution, according to the learned counsel, is abused and warrants interference.

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The learned Senior Counsel exhaustively read celebrity judgment in the matter of Jacob Mathew v/s State of Punjab and anr., reported in (2005) 6 SCC 1 wherein the three Hon'ble Judges of the Supreme Court have dealt with earlier decision in the matter of Dr Suresh Gupta and the view expressed for reference by a Larger Bench. The Apex Court also considered the phenomenon of negligence

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as a tort and as a crime to the effect of recklessness on the part of the doer of the act

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when amounts that there is something in the circumstances that would have drawn abandonment enough to the possibility that his act of negligence was capable of harmful consequences. The principles of res ipsa loquitur are literally mean 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. The case under section 304A of IPC cannot be solely decided by applying this rule and the same was discussed in paragraph 27 of the said judgment.

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There cannot be contest and quarrel on the

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legal proposition enunciated by the Supreme Court in the matter of Jacob Mathew, thereafter followed in series of judgments by the Hon'ble Supreme Court as could be seen in the matters of INS Malhotra v/s A. Kriplani and others, reported in 2009(5) Mh.L.J. 17, Kusum Sharma and others v/s Batra Hospital and

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Medical Research Centre and others, reported in (2010) 3 SCC 480.

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Basically, the observations in the

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judgments referred above were after full-fledge trial and the guidelines were indicated in the matter of Jacob Mathew to avoid prosecution of medical practitioners leaning to a persecution and for ill-motives by the aggrieved persons.

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The conclusions summed up by the Hon'ble

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Supreme Court in the matter of Jacob Mathew relevant for the present case can be seen in paragraph 48 clauses (1), (3) and (7) which reads as under :-

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“(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

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person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.

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(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.

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(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.”

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In paragraph 52, the Hon'ble Supreme Court

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has indicated formulation of statutory rules or executive instructions from either the State

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Government or the Government of India and till then

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it is observed a private complaint may not be

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entertained unless the complainant has produced prima facie evidence before the Court in the form of

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credible opinion given by any competent doctor to support the charge of rashness or negligence on the

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part of the accused doctor. The Investigating

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Officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain

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an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can

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normally b e expected to give an impartial and unbiased opinion applying the Bolam test to the

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facts collected in the investigation.

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Thus, reading clause (1), it is explicit

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negligence which is breach of a duty caused by

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omission to do something which a reasonable man

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guided by those considerations which ordinarily

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regulate the conduct of human affairs would do, or

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doing something which a prudent and reasonable man

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would not do.

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The narration of the complainant in the

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complaint application coupled with the evidence of doctor illustrate there was no precaution followed primarily as was expected of the applicants being medical practitioners. Dr Suhas says no negligence by applicant No.1 but he is silent for applicant

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No.2. The act of negligence is a matter of record

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and could be proved on evidence. The complainant is not expert in the field, it cannot be treated that

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it was his subjective satisfaction but the manner in which patient's condition deteriorated was indicative of the fact that on 12^th June 2002

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precautionary measures as were expected were not

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followed. Applicant No.1 failed primarily to discharge his obligations. The learned Additional Sessions Judge, on available material, observed in

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paragraph 10 that “It appears that the accused had

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used the equipments, instruments, machinery etc.

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though not having special knowledge and expertise.

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This resulted into grievous injury to the eye of

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Navnath.” This observation is based on primary

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material, need not be read in fractured manner.

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stage of the matter, there cannot be a minute dissection of available material to hold that there is no sufficient grounds to frame charge against the

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accused applicants. The material in the view of complainant's narration, evidence of medical officer primarily indicts for infraction of section 287, 338, 411 of IPC. Application lacks merits,

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dismissed. The observations are not concluded

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determination of the facts.

Deepak Jindatta Achalare and Anr. v. Navnath Dnyaneshwar Survase and Anr.

Case brief

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Deepak Jindatta Achalare and Anr. v. Navnath Dnyaneshwar Survase and Anr.

Case brief

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What did the court decide?

What the court decided

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