Disposed

Dr Bishwajith Bandopadyay And Ors. v. The State Of Jharkhand And Anr.

Jharkhand HC17 Dec 2019Cr.M.P./118/2018

Case brief

AI extract

What is this about?

Petitioners challenged an FIR under Section 304-A IPC regarding a baby's death. The High Court held the case involved medical negligence and directed the investigating officer to strictly follow Jacob Mathew guidelines by obtaining an independent medical opinion before proceeding.

What did the court decide?

Directed Investigating Officer to obtain independent competent medical opinion following Jacob Mathew guidelines before proceeding; supervision by Senior Superintendent of Police Ranchi.

Dr Bishwajith Bandopadyay And Ors. Vs The State Of… — Medical Negligence | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr.M.P. No. 118 of 2018

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Dr. Bishwajith Bandopadyay

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Dr. Ritahjyoti Sengupta

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Dr. Suresh P V

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Dr. Euden Bhutia

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Dr. Abhinav Agarwal

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Dr. Shaik Amira Ali

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Mrs. Madhvi @ Madhuri 8. Mrs. Geetha 9. Mrs. Shilpa 10. Ms. Somya 11. Mr. Chnadrsekhar 12. Mr. Bidesh Chandra Paul 13. Dr. Devi Prasad Shetty 14. Dr. Aushutosh Raghuvanshi 15. Mr. Prateek Jain ............... Petitioners. -Versus1. The State of Jharkhand 2. Mr. Vikash Gupta .. ….. …. Opp. parties.

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CORAM: HON'BLE MR JUSTICE ANANDA SEN.

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….. For the Petitioners : Mr. Manoj Kumar, Advocate. For the State : Mr. Ravi Prakash, A.P.P. For Opp. Party No. 2 : Mr. Vikash Gupta (in person).

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O R D E R

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Order No. 12/

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Reserved On:15.10.2019 Pronounced on: 17/12/2019

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By way of filing this petition under Section 482 Cr.P.C., the petitioners have prayed for quashing the First Information Report in connection with Ranchi Sadar P.S. Case No. 643 of 2017, corresponding to G.R. No. 6647 of 2017, registered under Section 304-A of the Indian Penal Code.

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In the FIR, it has been inter alia alleged that baby of opposite party No. 2 was not taking food properly, as a result of which, the baby was taken to Dr. Vinod Kumar, pediatrics at Ranchi, who diagnosed that the baby was suffering from cough, cold and fever. Even after some treatment, the baby did not improve. Thus, the baby was taken to another Child Specialist, Dr. Krishna Kumar, but inspite of his treatment, the baby did not improve. The opposite party No. 2 thus concluded that both the doctors could not diagnose properly and the baby was again taken to Dr. Rajesh Kumar, Ranchi, whose treatment was not much help to the baby. Opposite party No. 2 thereafter made one Dr. Shailesh Chandra who advised him to give Nebulization, but the same was also not any help. The baby was admitted in hospital and after x- ray, it was concluded that there is issue with heart and some advanced investigation was necessary. The baby was then referred to Rabindranath Tagore International Institute of Cardiac Sciences, Kolkata, where the baby was treated and discharged on 28.6.2017. Again on 11.8.2017 the baby was not feeding properly and when

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Doctor of Kolkata i.e. petitioner No. 1 herein advised opposite party No. 2 to meet with doctor at Ranchi. When the opposite party No. 2 refused, the doctor at Kolkata advised them to reach at Kolkata. Thereafter the baby was advised for re-admission in hospital and it was done.

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It is alleged that petitioner No. 1 stated that the condition of the baby is improving and thereafter the baby was released. Opposite party No. 2 thereafter took the baby to Narayana Institute of Cardiac Science for expert advice and the baby was treated under Dr. Suresh P.V. The baby was admitted therein the hospital but ultimately the baby was put on ventilator. Opposite party No. 2 alleges that since the baby was put on ventilator with high asthemia, thus, he presumed that they operated the baby and some organs were taken for selling and ultimately the baby died. On these background, the present FIR has been lodged for the offence under Section 304A of the Indian Penal Code against the petitioners.

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The petitioner Nos. 1 to 6 are the doctors and petitioner Nos. 7 to 12 are non-medical staff of the hospital of Kolkata and Bangalore.

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Learned counsel for the petitioners submits that the baby was suffering from disorder of dilated cardiomyopathy, which is an incurable disorder and the survival rate of the baby was less than 50%. It is the case of the petitioners that three doctors of two hospitals have conducted the investigation of the baby independently and found that the baby died because of said disorder and there is no allegation of medical negligence. in paragraphs 9 and 10 of this petition, it has been stated as follows;

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“ 9. That the baby was first diagnosed with DCM at RTIICS after an echocardiogram (ECHO) was done at the OPD on 12.7.2017 which revealed hugely dilated globular left ventricle (LV) with global dyskinesia. The petitioner No. 1 herein recommended readmission in ITU-2 with treatment by Dobutamine and Levosimendan Infusion. Blood transfusion was also suggested as the baby looked pale. The respondent No. 2 was informed not only the severe left ventricular dysfunction with impaired contractility of the heart, but also of the life risk the baby was under despite all medical efforts.

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10. That subsequently, on 16.7.2017 at about 6:45 p.m. a follow up ECHO was done in order to ascertain the condition of the heart. The ECHO report revealed hugely dilated LV with severe global dyskinesia with an LVIDs of 43 mm, LVIDs of 40 mm and an Ejection Fraction (EF) of 10-15% (which should normally be above 60%). This clearly indicates the critical condition the baby was in despite best medical efforts. There could not have been any scope for 11 months-old baby to service with such severe heart condition. The respondent No. 2 was fully aware of the condition the baby was in.”

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It is also mentioned that the doctors are highly qualified and high reputed in the field rather petitioner No. 13 (Dr. Devi Prasad Shetty) was conferred with ‘Padma Shri’ and ‘Padma Bhushan’ award and he was also conferred with Dr. B.C. Roy National Award under the category of “Eminent Medical Person”. It has been mentioned that opposite party No. 2 also sent a complaint and a report was furnished to the District Health Officer, Bangalore Urban, Bangalore and it was found that the

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baby was admitted in critical medical conditions for expert management and treatment was provided as per medical management protocol. It is further mentioned that the Karnataka Medical Council too investigated the matter on the complaint and found that there was no need to register any complaint. Basing on the aforesaid facts, the counsel for the petitioners submitted that the registering the FIR is nothing but it is abuse of process of Court and the same is against the judgment rendered in the case of Jacob Mathew Vs. State of Punjab and Others reported in (2005) 6 SCC 1 .

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Opposite party No. 2 who appears in person submits that there was utter medical negligence on the part of the petitioners. He further submits that the Hon’ble Supreme Court of India in the case of Lalita Kumari Vs. Government of Utter Pradesh and Others reported in (2014) 2 SCC 1 has held that when a cognizable offence is made out, it is mandatory to register an FIR and to investigate the matter. He further submits that since the offence is made out, an FIR should have been instituted for investigation. He also submits that there is no illegality in registering the FIR and its investigation.

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I have heard the parties and perused the record. As per allegation, I find that the baby of opp. Party No. 2 was suffering from some ailment for which, he was treated at Ranchi by several doctors, but as the position of the baby did not improve, the baby was taken to Bangalore where the baby was treated and kept in hospital and thereafter unfortunately died during course of treatment. Upon the complaint, when an enquiry was conducted by two member committee constituted by two doctors at Bangalore and also by Karnataka Medical Council. Both the reports suggest that the condition of the baby was critical and was suffering from dilated Cardiomyopathy. The allegation of selling of organs of baby was not established by the Enquiry Committee, as no postmortem was done. The Hon’ble Supreme Court in the case of Jacob Mathew Vs. State of Punjab and Another, reported in (2005) 6 SCC 1 while dealing with the case of medical negligence registered under Section 304-A IPC in paragraphs 48, 51 and 52 held as under;

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“ 48. We sum up our conclusions 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 & 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'.

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(2) Negligence in the context of 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

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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.

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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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(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, at page 586 holds good in its applicability in India.

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(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.

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(6) The word 'gross' has not been used in Section 304A of 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 304A of the IPC has to be read as qualified by the word 'grossly'.

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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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(8) Res ipsa loquitur is only a rule of evidence and operates in the

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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.

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51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.

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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 Bolam's test 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 investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.”

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From the aforesaid paragraphs, specially paragraph 52, it is evident that 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(s). It is also quite clear that the Investing Officer should be very cautious in proceeding with the investigation and has strictly follow the direction given by the Hon’ble Supreme Court of India in para 52 of the Jacob Mathew (Supra) case.

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In this case, as the FIR was challenged in which, the Investing Officer is still investigating the case as to whether the doctors are negligent or not? Thus, the Investigating Officer should before proceeding against the doctor(s)- accused of rash or negligent act or omission, obtain an independent and competent medical opinion

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preferably from a doctor in government service, qualified in that branch of medical practice. The documents and enquiry report which the petitioners have relied upon should be produced by them to the Investigating Agency.

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In view of the facts stated in the FIR as well as considering the guidelines and principle laid down in the judgment rendered in the case of Jacob Mathew (Supra) , I direct the Investigating Officer to investigate the allegations in the FIR strictly following the guidelines issued by the Hon'ble Supreme Court. It is made clear that the supervision will be done by the Senior Superintendent of Police, Ranchi, in this case.

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Accordingly, this petition is disposed of .

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(ANANDA SEN, J.)

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Anu/C.P.-3

Dr Bishwajith Bandopadyay And Ors. v. The State Of Jharkhand And Anr.

Case brief

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Dr Bishwajith Bandopadyay And Ors. v. The State Of Jharkhand And Anr.

Case brief

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