Allowed

Dr. Veerla Srinivas, v. The State of Andhra Pradesh

Telangana HC6 Jan 2012CRLP/6351/2008

Case brief

AI extract

What is this about?

The High Court quashed criminal proceedings against two doctors under Sections 304(A), 420, and 109 IPC. The court found no medical evidence linking the patient's death to the petitioners' negligence and noted an unexplained complaint delay, holding continuation of trial to be an abuse of process of law.

What did the court decide?

Proceedings in C.C.No.181 of 2008 filed under Section 482 Cr.P.C. were quashed and the criminal petition was allowed.

Dr. Veerla Srinivas, Vs The State of Andhra Pradesh — Medical Negligence | Telangana HC (2012)

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HON’BLE MR. JUSTICE R. SUBHASH REDDY

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Criminal Petition No.6351 of 2008

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th Date: 6 January, 2012

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Between:

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Dr. Veerla Srinivas, S/o. Veerla Laxmaiah and another

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... Petitioners

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And

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State of Andhra Pradesh, rep. by Public Prosecutor, High Court of A.P., Hyderabad and another

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… Respondents

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Order:

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This petition, under Section 482 Cr.P.C., is filed by the accused in C.C.No.181 of 2008 on the file of the Special Judicial First Class Magistrate, Mobile at Medak, for quashing of the proceedings therein. The aforesaid case is registered against the petitioners-accused for the alleged offences under Sections 304(A), 420 and 109 IPC.

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2. On 14.04.2006, the 2^nd respondent herein has lodged a complaint before the P.S., Ramayampet against the petitioners herein with the following allegations.

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His wife, Smt. Bharathamma, who was suffering from stomach pain was taken to Nizampet Hospital on 20.03.2005 and the 1^st petitioner, after conducting tests, advised that appendicitis operation has to be performed for which the expenditure would be around Rs.8,000/-. The complainant paid the said amount and admitted his wife on 31.03.2005 and on the same day, operation was performed and his wife was discharged on 08.04.2005. Even thereafter, as his wife was suffering from stomach pain, he took her to the hospital of the 1^st petitioner and she was referred to Medi Citi Hospital, where she has undergone treatment upto 08.06.2005. She was discharged from the said hospital and later she expired on

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15.09.2005 due to stomach pain. The 1^st petitioner is not qualified to perform operations; in spite of the same he has undertaken the operation and only on account of the negligence of the 1^st petitioner, his wife died.

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3. Based on the complaint, a case was registered in Cr.No.62 of 2006 on the file of P.S., Ramayampet and investigated.

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4. After completing the investigation, final report is filed alleging that the 1^st petitioner-medical practitioner runs a nursing home at Nizampet village in the name of Nizampet Nursing Home and he is not only ineligible to run the nursing home but also not authorized to practice allopathic medicine. It is stated that taking advantage of the practice of the 2^nd petitioner herein, the 1^st petitioner was performing operations and prescribing allopathic medicines to patients in the hospital and sometimes he was helping the 2^nd petitioner in performing operations. It is alleged that the 2^nd petitioner is qualified and authorized to perform surgeries and knowing that the 1^st petitioner is not registered and authorized to perform surgeries and to make money, the 2^nd petitioner abetted the 1^st petitioner and allowed him to perform surgeries on his name;

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therefore the 1^st petitioner has committed offences punishable under Sections 304(A) and 420 IPC and the 2^nd petitioner is liable for punishment under Section 109 IPC.

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5. Heard Sri C. Padmanabha Reddy, learned senior counsel, for petitioners, learned Addl. Public Prosecutor for the State and Sri B. Nalin Kumar for the 2^nd respondent-complainant.

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6. It is contended by the learned senior counsel appearing for petitioners that the allegations made against petitioners are false and engineered by one Sri Amarender Reddy, reporter in Eenadu Telugu daily newspaper, against whom the 1^st petitioner lodged a complaint for defamation, which is pending trial in C.C.No.2 of 2006 and for damages in O.S.No.11 of 2006 on the file of the Senior Civil Judge, Medak. The 2^nd petitioner is a visiting consultant in the 1^st petitioner’s hospital and is a qualified Doctor having rich experience in surgeries and he performed surgery on the wife of the 2^nd respondent-complainant and the allegations leveled against the petitioners are false and incorrect. In any event, there is no medical evidence on record opining that

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the wife of the 2^nd respondent-complainant died only on account of the negligence on the part of petitioners; therefore, allowing the proceedings against petitioners for the offences as alleged is nothing but gross abuse of process of law.

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7. In support of his contentions, learned senior counsel relied on the following decisions of the Hon’ble Supreme Court:

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Mahadev Prasad Kaushik v. State of Uttar Pradesh and Anr .^[1] Kusum Sharma and others v. Batra Hospital and Medical Research Centre and others^[2] Martin F. D’Souza v. Mohd. Ishfaq^[3]

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8. On the other hand, it is it is contended by the Addl. Public Prosecutor for the 1^st respondent and Sri B. Nalin Kumar, learned counsel for the 2^nd respondentcomplainant that, in this case, that though the 1^st petitioner is not qualified for performing surgeries, he has performed surgery on the wife of the 2^nd respondent on 31.03.2005 . It is submitted that the negligence on the part of the 1^st petitioner, who is not a qualified surgeon, resulted in the death of the wife of the 2^nd respondent and

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the 2^nd petitioner knowing that the 1^st petitioner is not registered and authorized to perform surgeries, abetted the 1^st petitioner to perform surgeries on his behalf; therefore having regard to the allegations made against the petitioners, it is a matter for trial and no case is made out to quash the proceedings in question.

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9. Firstly, I refer to the decisions of the Hon’ble Supreme Court, relied on by the learned senior counsel appearing for petitioners.

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In the case of Mahadev Prasad Kaushik (1 supra), the Hon’ble Supreme Court has held as under:

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“The Court observed that a physician would not assure the patient of full recovery in each and every case. He cannot and does not guarantee that the result of his treatment would invariably be beneficial much less to the extent of 100% for the person treated by him. The only guarantee which a professional can give or can be understood to have given by necessary implication is that he is possessed of requisite skill in that branch or profession which he is practising and while undertaking performance of the task entrusted to him, he would be exercising his skill with reasonable competence.

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In the light of the above test, the Court stated; Judged by this standard, a professional may be held liable for negligence on one of 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.”

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In the case of Kusum Sharma (2 supra), the Hon’ble Supreme Court has held as under:

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“Doctors in complicated cases have to take chance even if the rate of survival is low.

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The professional should be held liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. But, at the same time courts have to be extremely careful to ensure that unnecessarily professionals are not harassed and they will not be able to carry out their professional duties without fear.

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It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals.”

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In the case of Martin F. D’Souza (3 supra), the

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Hon’ble Supreme Court held as under:

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“A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa and Ors. v. State

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o f Maharashtra and Ors. MANU/SC/0600/1996 : [1996]2SCR881 or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.

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Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.”

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10. In the light of the aforesaid decisions, it is to be seen whether there is any medical evidence on record to attribute negligence on the part of petitioners which resulted in the death of the wife of the 2^nd respondentcomplainant. It is true that the 1^st petitioner is not qualified for performing surgeries. Undisputedly, 2^nd petitioner is a qualified Doctor to perform surgeries. Even in the complaint filed by the 1^st petitioner herein in C.C.No.2 of 2006, the 2^nd petitioner appeared before the learned Magistrate as P.W.3 and deposed that he himself has conducted surgery on the wife of the 2^nd respondent. A copy of the deposition of P.W.3 is placed on record along with this petition. Even a copy of the case sheet, which is shown at the time of arguments, indicates that the 2^nd

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petitioner has performed the surgery on the wife of the 2^nd respondent, but not the 1^st petitioner. The evidence referred to is not from any qualified Doctor to attribute any negligence on the part of the petitioners, which resulted in the death of the wife of the 2^nd respondent. Even as per the contents of the final report, it is to be seen that the wife of the 2^nd respondent was operated in the hospital of the 1^st petitioner on 31.03.2005, she was discharged on 08.04.2005 and thereafter she was also admitted in Medi Citi Hospital for some time and ultimately expired on 15.09.2005. But the complaint is lodged on 13.04.2006. There is no explanation at all for such delay. The unexplained delay in lodging the complaint coupled with the plea of the petitioners that the complaint is engineered by the accused in C.C.No.2 of 2006, which is registered basing on the complaint made by the 1^st petitioner for defamation against the reporter of a Telugu daily newspaper, gains significance. In the absence of acceptable medical opinion to attribute negligence on the part of the petitioners and also the unexplained delay in filing the complaint and further as the 2^nd petitioner himself as deposed in C.C.No.2 of 2006 to the effect that he himself has performed surgery on the wife of the 2^nd

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respondent, this Court is of the view that allowing the proceedings in C.C.No. 181 of 2008 will be nothing but an abuse of process of law and will result in miscarriage of justice. Further, the ratio laid down by the Hon’ble Supreme Court in the decisions relied on by the learned counsel for petitioners supports the plea of the petitioners.

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11. For the foregoing reasons, the proceedings in C.C.No.181 of 2008 on the file of the Special Judicial First Class Magistrate, Mobile at Medak, are quashed.

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12. Criminal Petition is allowed.

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______________________ (R. SUBHASH REDDY, J)

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6^th January 2012 MRR

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[1] (2008) 14 SCC 479

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[2] (2010) 3 SCC 480

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[3] (2009) 3 SCC 1

Dr. Veerla Srinivas, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

Dr. Veerla Srinivas, v. The State of Andhra Pradesh

Case brief

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