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CASE NO.: Appeal (crl.)  778 of 2004

PETITIONER: Dr. Suresh Gupta

RESPONDENT: Govt. of N.C.T. of Delhi & Anr.

DATE OF JUDGMENT: 04/08/2004

BENCH: Y. K. Sabharwal & D. M. Dharmadhikari

JUDGMENT: J U D G M E N T

(Arising out of SLP(Crl.) No. 2931 of 2003)

Dharmadhikari J.

       Leave to appeal is granted.  

       The appellant who is a Doctor (Plastic Surgeon) is in the dock as an  accused on the charge under Section 304 A of the Indian Penal Code [for  short the ’IPC’] for causing death of his patient on 18.4.1994. The patient  was operated by him for removing his nasal deformity. It may be mentioned  at the outset, that the Anesthetist who was assisting the surgeon in the  operation was also made co-accused but it is reported that he died pending  the trial. The proceedings, therefore, stand abated against him.  

       The appellant urged before the Magistrate that the medical evidence  produced by the prosecution, does not make out any case against him to  proceed with the trial. The learned magistrate in deciding to proceed with  the trial recorded following reasons in the impugned order dated  28.11.1998 passed by him :-  "Postmortem report is very categorical and very clear and it has been  clearly mentioned therein that death was due to the complication  arising out of the operation. That operation was conducted by both   the accused persons. It is also clear from the material  on record that  deceased was young man of 38 years having no cardiac problem at all  and because of the negligence of the doctors while conducting  minor operation for removing nasal deformity, gave incision at  wrong part due to that blood seeped into the respiratory  passage and because of that patient  immediately collapsed  and died and it was also attempted to show by the accused persons  that he was alive at that time and was taken to Ganga Ram Hospital  for further medical attention. It is clear from the record that patient had actually died at the clinic of  the accused and therefore, I am of the opinion that there are sufficient   grounds on record to make out a prima facie case against both the  accused for commission of offence under Section 304A IPC. Let notice  be served accordingly."

[Emphasis supplied]

As the Magistrate decided to proceed with the trial, the doctor  approached the High Court by petition under Section 482 of the Code of  Criminal Procedure. The High Court refused to quash the criminal  proceedings and upheld the order of the Magistrate, although it records that  the Metropolitan Magistrate was obviously wrong, in the absence of any  medical opinion, in coming to a conclusion that the surgeon had given a cut  at wrong place of the body of the patient at the time of operation leading to

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blood seeping into the respiratory passage and blocking it resulting in his  death. The High Court, however, declined to quash the proceedings against  the doctor for the alleged criminal liability.  In the impugned order dated  1.4.2003, it recorded its reasons thus :-  "In the present case two doctors who conducted the post-mortem   examination have taken an emphatic stand which they have reiterated  even after the Special Medical Board opinion, that death in this case  was due to ’asphyxia resulting from blockage of respiratory  passage by aspirated blood consequent upon surgically incised  margin of nasal septum.’ This indicates that adequate care  was  not taken to prevent seepage of blood down the respiratory  passage which resulted in asphyxia. The opinion of the Special  Medical Board is not free from ambiguity for the reasons already given.  Such ambiguity can be explained by the concerned doctors when they  are examined during the trial."

Learned senior counsel Shri Ashok Desai appearing for the doctor,  has taken us through the contents of the medical opinions produced by the  prosecution with the complaint and some medical books and decided cases  to submit that accepting the entire case of the prosecution, as has been laid  before the trial magistrate, to be true, no case for convicting the doctor for  criminal negligence under section 304A IPC has been made out. He submits  that in the larger interest of medical profession, the criminal proceedings  instituted against his client deserve to be quashed.  

       Reliance is placed on the House of Lords decision in the case of  R. vs. Adomako [1994 (3) All E. R. 79]; Suleman Rehman Mulani vs.  State of Maharashtra [1968 (2) SCR 515] and Laxman Balkrishna  Joshi vs. Trimbak Bapu Godbole [1969 (1) SCR 206].  

       We have also heard learned senior counsel Shri Harish Chandra for  the prosecution, who supported the view taken by the Magistrate and the  High Court that the surgeon was guilty of gross negligence in giving an  incision at the wrong place and did not take necessary precautions in the  course of surgical operation to prevent seepage of blood down the  respiratory passage of the patient and the resultant death by asphyxia.  

       It is settled position in law that the inherent power of the High Court  under section 482 Criminal Procedure Code for quashing criminal  proceedings can be invoked only in cases where on the face of the  complaint or the papers accompanying the same no offence is made out for  proceeding with the trial. In other words, the test is that taking the  allegations and the complaint, as they are, without adding or subtracting  anything, if no offence is made out, the High Court will be justified in  quashing the proceedings [See Municipal Corporation of Delhi vs. Ram  Kishan Rohtagi (AIR 1983 SC 67); and Durgs Inspector vs. B.K.  Krishnaiah (AIR 1981 SC 1164)]

       To decide whether on the basis of the complaint and the medical  opinion produced along with it, any offence is made out or not, it is  necessary to examine the papers produced with the complaint. The patient  died in the course of surgical operation on 18.4.1994, but the post-mortem  was conducted on 21.4.1994. By that time rigor mortis had almost passed  off. The post-mortem report gave opinion on the cause of death by  recording thus :-  

"Asphyxia resulting from blockage of respiratory passage by aspirated  blood consequent upon surgically incised margin of nasal septum. The  cause of death to the best of my knowledge and answers to the  question put by IO."  

                A Special Medical Board of four eminent doctors was constituted by  the investigating agency out of which three recorded their unanimous

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opinion as under :-  

After the perusal of all the documents produced before the Committee,  we are of the view that the death of Mr. Siavash Karim Arbab,  occurred due to sudden cardiac arrest, the direct cause of which  (Cardiac Arrest) cannot be ascertained. However, possible cause  leading to cardiac arrest can be as follows :-  

       1.      Hypotension due Head-up-Position         2.      Adverse drug reaction          3.      Hypoxia

Death due to Asphyxia resulting from blockage of air passage  secondary to ante-mortem aspiration of blood from the wound  is not likely in the presence of cuffed endo-tracheal tube of  proper size (8.5), which was introduced before the operation  and remained in position till the patient was declared dead in  Sir Ganga Ram Hospital, as per statements of members of the  operating team and available records. In the post-mortem report  there is presence of clotted fluid blood in respiratory passage, which  invariably occurs ante-mortem due to aspiration from operation site.  However, the presence of fluid and clotted blood in the  respiratory passage, as noted in the post-mortem report, due  to trickling of decomposition bloody fluid and some clot present  in the nostril from the site of incision in the nose, cannot be  ruled out after the tube is taken out. It is worth mentioning in the  present case that the death occurred on 18.4.1994 at 2.30 p.m. and  the post-mortem was conducted on 21.4.1994 at 12.20 p.m. when  sufficient degree of decomposition had started.  

Sd/- Dr. Bharat Singh   Sd/- Dr. Rizvi  Sd/- P.L. Dhingra         Chairman             Member                  Member [Emphasis supplied]  

        One of the members of the doctors team Prof. Jagannatham gave a  separate report which reads as under :-  "After going through he relevant papers/documents and surgery and  anaesthesia notes, it was observed that, what medical care was  actually extended to the patient from 5 a.m. to 8.30 a.m. on  18.4.1994 at Delhi Plastic Surgery  Clinic.  It is surprising that the  patient’s physical status belonged to ASA Grade-I. The actual cause of  cardiac arrest on the table noticed immediately after the start of  operation, was not clear and it still stands as enigmas whether the  surgeon had given any adrenaline infiltration to the patient or  originally planned to do the surgery under local anaesthesia could not  be decided. There is no mention about the use of inhalation  anaesthesia during the surgical procedure under the general  anaesthesia.  

However, both anaesthetics and the surgeon immediately noticed the  cardiac arrest and started resuscitative measures well-in time  to save  the patient’s life. With all good intentions and team spirit, they  transported the patient under manual ventilation (supporting  respirations) and shifted the patient to Ganga Ram Hospital’s ICU.

Sd/-  (Dr.  Jagannatham) 15.11.1995"

       It is on these medical papers produced by the prosecution, we have  to decide whether the High Court was right in holding that criminal liability  prima facie has arisen against the surgeon and he must face the trial. The  legal position is almost firmly established that where a patient dies due to  the negligent medical treatment of the doctor, the doctor can be made

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liable in civil law for paying compensation and damages in tort and at the  same time, if the degree of negligence is so gross and his act was reckless  as to endanger the life of the patient, he would also be made criminally  liable for offence under section 304A of IPC.  

       Section 304A of IPC reads thus :-  

"304A. Causing death by negligence. \026 Whoever causes the death  of any person by doing any rash or negligent act not amounting to  culpable homicide, shall be punished with imprisonment of either  description for a term which may extent to two years, or with fine, or  with both."

       On behalf of the doctor learned counsel referred to section 80 and  section 88 of the IPC to contend that in various kinds of medical treatment  and surgical operation, likelihood of an accident or misfortune leading to  death cannot be ruled out. A patient willingly takes such a risk. This is part  of doctor patient relationship and mutual trust between them.  

       Section 80 and 88 read as under :-  

"80. Accident in doing a lawful act. Nothing is an offence which is  done by accident or misfortune, and without any criminal intention or  knowledge  in the doing of a lawful act in a lawful manner by lawful  means and with proper care and caution.  

88. Act not intended to cause death, done by consent in good  faith for person’s benefit.  Nothing which is not intended to cause  death, is an offence by reason of any harm which it may cause, or be  intended by the doer to cause, or be known by the doer to cause, or  be known by the doer to be likely to cause, to any person for whose  benefit it is done in good faith, and who has given a consent, whether  express or implied, to suffer that harm, or to take the risk of that  harm."

       Applying the laid down test for quashing or  refusing to quash the  criminal proceedings under section 482 of the Criminal Procedure Code, we  have to find out whether from the complaint and the accompanying medical  papers and by accepting the entire case alleged by the prosecution  to be  true, an order of conviction of the doctor for offence under section 304A of  IPC can be passed.  

       The operation was performed on 18.4.1994 and the patient is alleged  to have died on the same day. The post-mortem was performed after three  days i.e. on 21.4.1994. According to the post-mortem report, the cause of  death was : "blockage of respiratory passage by aspirated blood consequent  upon surgically incised margin of nasal septum."

       The medical experts constituting the Special Medical Board set up by  the investigation have opined that "the blockage of air passage was due to  aspiration of blood from the wound and it was not likely in the presence of  cuffed endo-tracheal tube of proper size being introduced before the  operation and remained in position." The team of experts also opined that  ’presence of fluid and clotted blood in respiratory passage is likely, as it  invariably occurs ante-mortem due to aspiration from operation site.’  But  they also opined that ’presence of fluid and clotted blood in the respiratory  passage, as noted in the post-mortem report, due to trickling of  decomposition bloody fluid and some clot present in the nostril from the site  of incision in the nose, cannot be ruled out after the tube is taken out.’  

       Dr. Jagannatham, one of the members of the Special Medical Team  constituted during investigation has, however, given separate opinion, the  details of which we have quoted  above. It seems to be to some extent in

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favour of the accused surgeon. From the post-mortem report and the  opinion of the three medical experts of the medical team specially  constituted, the case of the prosecution laid against the surgeon is that  there was negligence in ’not putting a cuffed endo-tracheal tube of proper  size’ and in a manner so as to prevent aspiration of blood blocking  respiratory passage.  

       For fixing criminal liability on a doctor or surgeon, the standard of  negligence required to be proved should be so high as can be described as  "gross negligence" or recklessness". It is not merely lack of necessary care,  attention and skill. The decision of the House of Lords in R. Vs. Adomako  (Supra) relied upon on behalf of the doctor elucidates the said legal  position and contains following observations :-  

"Thus a doctor cannot be held criminally responsible for patient’s death  unless his negligence or incompetence showed such disregard for life  and safety of his patient as to amount to a crime against the State."

       Thus, when a patient agrees to go for medical treatment  or surgical  operation, every careless act of the medical man cannot be termed as  ’criminal’. It can be termed ’criminal’ only when the medical man exhibits a  gross lack of competence or inaction and wanton indifference to his  patient’s safety and which is found to have arisen from gross ignorance or  gross negligence. Where a patient’s death results merely from error of  judgment or an accident, no criminal liability should be attached to it. Mere  inadvertence or some degree of want of adequate care and caution might  create civil liability but would not suffice to hold him criminally liable.  

       This approach of the courts in the matter of fixing criminal liability on  the doctors, in the course of medical treatment given by them to their  patients, is necessary so that the hazards of medical men in medical  profession being exposed to civil liability, may not unreasonably extend to  criminal liability and expose them to risk of landing themselves in prison for  alleged criminal negligence.  

       For every mishap or death during medical treatment, the medical  man cannot be proceeded against for punishment. Criminal prosecutions of  doctors without adequate medical opinion pointing to their guilt would be  doing great disservice to the community at large because if the courts were  to impose criminal liability on hospitals and doctors for everything that goes  wrong, the doctors would be more worried about their own safety than  giving all best treatment to their patients. This would lead to shaking the  mutual confidence between the doctor and patient. Every mishap or  misfortune in the hospital or clinic of a doctor is not a gross act of  negligence to try him for an offence of culpable negligence.  

       No doubt in the present case, the patient was a young man with no  history of any heart ailment. The operation to be performed for nasal  deformity was not so complicated or serious. He was not accompanied even  by his own wife during the operation. From the medical opinions produced  by the prosecution, the cause of death is stated to be ’not introducing a  cuffed endo-tracheal tube of proper size as to prevent aspiration of blood  from the wound in the respiratory passage’. This act attributed to the  doctor, even if accepted to be true, can be described as negligent act as  there was lack of due care and precaution. For this act of negligence he  may be liable in tort but his carelessness or want of due attention and skill  cannot be described to be so reckless or grossly negligent as to make  him criminally liable.  

       Between civil and criminal liability of a doctor causing death of his  patient the court has a difficult task of weighing the degree of carelessness  and negligence alleged on the part of the doctor. For conviction of a doctor  for alleged criminal offence, the standard should be proof of recklessness  and deliberate wrong doing i.e. a higher degree of morally

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blameworthy conduct.

        To convict, therefore, a doctor, the prosecution has to come out with  a case of high degree of negligence on the part of the doctor. Mere lack of  proper care, precaution and attention or inadvertence might create civil  liability but not a criminal one. The courts have, therefore, always insisted  in the case of alleged criminal offence against doctor causing death of his  patient during treatment, that the act complained against the doctor must  show negligence or rashness of such a higher degree as to indicate a  mental state which can be described as totally apathetic towards the  patient. Such gross negligence alone is punishable.  

       See the following concluding observations of the learned authors in  their book on medical negligence under the title ’Errors, Medicine and the  Law’ [by Alan Merry and Alexander McCall Smith at pg. 247-248]. The  observations are apt on the subject and a useful guide to the courts in  dealing with the doctors guilty of negligence leading to death of their  patients :-  

"Criminal punishment carries substantial moral overtones. The doctrine  of strict liability allows for criminal conviction in the absence of moral  blameworthiness only in very limited circumstances. Conviction of any  substantial criminal offence requires that the accused person should  have acted with a morally blameworthy state of mind. Recklessness  and deliberate wrong doing, levels four and five are classification of  blame, are normally blameworthy but any conduct falling short of that  should not be the subject of criminal liability. Common-law systems  have traditionally only made negligence the subject of criminal  sanction when the level of negligence has been high a standard  traditionally described as gross negligence.

Blame is a powerful weapon. When used appropriately and according  to morally defensible criteria, it has an indispensable role in human  affairs. Its inappropriate use, however, distorts tolerant and  constructive relations between people. Some of life’s misfortunes are  accidents for which nobody is morally responsible. Others are wrongs  for which responsibility is diffuse. Yet others are instances of culpable  conduct, and constitute grounds for compensation and at times, for  punishment. Distinguishing between these various categories requires  careful, morally sensitive  and scientifically   informed analysis."  

       After examining all the medical papers accompanying the complaint,  we find that no case of recklessness or gross negligence has been made out  against the doctor to compel him to face the trial for offence under section  304A of the IPC. As a result of the discussion aforesaid on the factual and  legal aspect, we allow this appeal and by setting aside the impugned orders  of the Magistrate and of the High Court, quash the criminal proceedings  pending against the present doctor who is accused and appellant before us.