This Court quashed criminal proceedings against two doctors alleging medical negligence causing patient death. Relying on Jacob Mathew and subsequent precedents, the Court held that since the Expert Committee found no negligence and the treatment was standard, criminal liability cannot lie.
All further proceedings in C.C.No.531 of 2017 are quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 18TH DAY OF OCTOBER 2022 / 26TH ASWINA, 1944
CRL.MC NO. 394 OF 2018
CRIME NO.325/2011 OF AMBALAPPUZHA POLICE STATION, ALAPPUZHA CC 531/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
AMBALAPUZHA
PETITIONERS/ACCUSED NO.1 & 2:
2 DR. SAM VARKEY, ASSISTANT PROFESSOR, PAEDIATRIC SURGERY, MEDICAL COLLEGE HOSPITAL, VANDANAM, ALAPPUZHA.
BY ADVS. DR.S.GOPAKUMARAN NAIR (SR.) SRI.K.ARJUN VENUGOPAL SMT.V.A.HARITHA SRI.JEEVAN RAJEEV SRI.P.A.MOHAMMED SHAH SMT.MARY RESHMA GEORGE SMT.P.M.MAZNA MANSOOR SRI.R.NANDAGOPAL SRI.SOORAJ T.ELENJICKAL
RESPONDENTS/COMPLAINANTS:
1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURTOF KERALA, ERNAKULAM, KOCHI.31
BY SRI.G.SUDHEER, P.P.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
2
CRL.MC NO. 394 OF 2018
O R D E R
This Crl.M.C. has been preferred to quash all further proceedings in C.C.No.531 of 2017 on the files of the Judicial First Class Magistrate Court, Ambalappuzha (for short 'the court below').
alleged against the petitioner is punishable under Section 304A of IPC.
and as Assistant Professor in Paediatric Surgery respectively at the Government T.D.Medical College Hospital, Vandanam.
3
CRL.MC NO. 394 OF 2018
examination and ultra sound of abdomen were suggestive of acute appendicitis with possibility of perforation. She was taken for an emergency surgery on 01.04.2011 itself. The surgery was conducted. Following the surgery, she was shifted to post operative ICU. She was administered medicines. However, she had intermittent fever on subsequent days. She was put on higher antibiotic injection namely Ceftazidime on 06/04/2011. Test dose for injection Ceftazidime was given at 10 p.m. and full dose was given at 10.30 p.m. Following full dose, the patient became restless and went into shock. The patient was intubated, shifted to the adjoining surgical ICU and then put on ventilator. Ultimately, the patient expired on 07/04/2011 at 12.45 a.m.
statement before the Ambalappuzha police station on 07/04/2011 alleging medical negligence on the part of the petitioners. Annexure-A1 is the FIS. Based on Annexure-A1, a crime was registered on the same day
4
CRL.MC NO. 394 OF 2018
itself. Annexure-A2 is the FIR. An Expert Committee was constituted as per the order of the Director of Medical Education to enquire into the death of the patient. The Expert Committee submitted an enquiry report attributing no negligence on the part of the petitioners. Relying on the said report as well as the postmortem findings, the investigating officer in Annexure-A2 crime filed a refer report on 10/05/2012. Annexure-A4 is the refer report. Aggrieved by Annexure-A4, the 2nd respondent preferred a protest complaint at the court below. The court below after conducting enquiry u/s 202 of Cr.P.C, took the complaint on file as C.C.No.531 of 2017 u/s 304A of IPC and process was issued to the petitioners. It is thereafter, the petitioners have approached this Court to quash the entire proceedings in C.C.No.531/2017 invoking S.482 of Cr.P.C.
5
CRL.MC NO. 394 OF 2018
notice has been issued to the 2nd respondent, there is no appearance.
Punjab [2005 (3) KLT 965] held that so long as the 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. In paragraph 53 of the said judgment, it is specifically stated that a private complaint alleging medical negligence 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. It was further held that
the Investigating Officer should before proceeding against the Doctor accused of rash or negligent act or
6
CRL.MC NO. 394 OF 2018
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 be an impartial and unbiased opinion applying Bolam test to the facts collected in the investigation.
Mohd. Ishfaq [2009 (3) SCC 1] held that whenever a complaint is received against a Doctor or Hospital by the Consumer Fora or by the Criminal Court, then before issuing notice to the Doctor or the Hospital against whom
the complaint was made, the Consumer Forum or Criminal Court should first refer the matter to a competent Doctor or Committee of Doctors, specialized in the field relating to which the medical negligence is attributed, and only after that, if the Doctor or Committee reports that there is prima facie case of medical negligence, notice should be issued to the concerned Doctor/Hospital.
The Full Bench of this Court in Suvarna v. Dr. Renil
7
CRL.MC NO. 394 OF 2018
Philip and others [2014 (1) KHC 112] has held that when
medical negligence is alleged against the Doctors, the Investigating Officer has to immediately refer the case to an expert opinion and duty is cast on the Investigating Officer to consider the views expressed by the Expert Panel before continuing the further investigation. It was further held that, the Investigating Officer can seek additional expert opinion, if situation demands.
referred to the Expert Committee of Doctors consisting of three Doctors and they conducted enquiry and filed a report. In the said report, it is stated that the patient was given the accepted standard treatment by the Doctors. As per the said report, there is absolutely no negligence on the part of the petitioners in administering injection or giving treatment to the patient. In the postmortem report also, the cause of death has been shown as 'Peritonitis'. As against Annexure-A3 report, no further
CRL.MC NO. 394 OF 2018
report has been obtained to suggest that there is any negligence on the part of the petitioners. Still, the court below took cognizance of the offence. It is in violation of the guidelines settled by the Apex Court in Jacob Mathew 's case (supra).
The Crl.M.C. is allowed.
DR.KAUSER EDAPPAGATH, JUDGE
AS
CRL.MC NO. 394 OF 2018
9
APPENDIX OF CRL.MC 394/2018
PETITIONERS' ANNEXURES:
| ANNEXURE A1 | TRUE COPY OF THE FIRST INFORMATION STATEMENT. |
|---|---|
| ANNEXURE A2 | TRUE COPY OF F.I.R NO.325/2011 REGISTERED BY THE AMBALAPUZHA POLICE ON 07.04.2011 |
| ANNEXURE A3 | TRUE COPY OF THE ENQUIRY REPORT. |
| ANNEXURE A4 | TRUE COPY OF THE "MISTATE OF FACT" FILED BEFORE THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, AMBALAPUZHA.` |
| ANNEUXRE A5 | TRUE COPY OF THE PROTEST COMPLAINT FILED BY 2ND RESPONDENT DATED NIL BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, AMBALAPUZHA. |
2 issues framed by the court
Whether criminal proceedings against doctors for allegations of medical negligence should be quashed in light of expert committee reports finding no negligence.
Whether the lower court violated Apex Court guidelines by taking cognizance without independent expert opinion contrary to Bolam test standards.
Colour shows how this judgement treated each authority
Jacob Mathew v. State of PunjabExplained¶38
Jacob Mathew v. State of Punjab [2005 (3) KLT 965]
Martin F. D'Souza v. Mohd. IshfaqExplained¶45
Martin F. D'Souza v. Mohd. Ishfaq [2009 (3) SCC 1] · Who else cites this
Suvarna v. Dr. Renil PhilipExplained¶51
Suvarna v. Dr. Renil Philip and others [2014 (1) KHC 112]
2 provisions across 2 enactments
DR.S.SETHUNATH
DR. SAM VARKEY
STATE OF KERALA
RANGARAJAN
KAUSER EDAPPAGATH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
