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Thursday, August 05, 2004

Doctors Not to be Arrested Supreme Court Appeal (crl.) 778 of 2004

Appeal (crl.) 778 of 2004

Dr. Suresh Gupta

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


Y. K. Sabharwal & D. M. Dharmadhikari


(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
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
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

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.

(Dr. Jagannatham)

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
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.  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

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
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 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.

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