SUPREME COURT OF INDIA
Dr. Suresh Gupta
Vs
Government of N.C.T. of Delhi
Criminal Appeal No. 778 of 2004
(Y. K. Sabharwal and D. M. Dharmadhikari)
04/08/2004
JUDGMENT
DHARMADHIKARI, J.
1. Leave to appeal is granted.
2. 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 is 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.
3. 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)
4. 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 by prevent seepage of blood down the respiratory passage which
resulted in asphyxia. The opinion of the Special Medical Board it 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." *
5. 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.
6. Reliance is placed on the House of Lords decision in the case of R.vs.
Adomako 1994 Indlaw HL 16; Suleman Rehaman
Mulani vs. State of Maharashtra ) and Laxman Balkrishna Joshi vs. Trimbak
Bapu Godbole .
7. 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.
8. It is settled position in law that the inherent power of the High Court
under section 482 Criminal Procedure Code of 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 proceeding (See Municipal
Corporation of Delhi vs. Ram Kishan Rohtagi ); and Drugs Inspector vs.
B.K. Krishnaiah .
9. 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."
*
10. 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. Slavash 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, Chairman
Sd/- Dr. Rizvi, Member
Sd/- P.L. Dhingra, Member" $ *
(Emphasis supplied)
11. One of the members of the doctors team Proof. 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 - an aesthesia
during the surgical procedure under the general anaesthesia.
However, both anesthetics 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 transport the patient
under manual ventilation (supporting respirations) and shifted the patient to
Ganga Ram Hospital's ICU.
(Dr. Jagannatham)
15.11.1995" *
12. 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." *
13. 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.
14. 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." *
15. 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.
16. 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."
17. 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.'
18. 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.
19. 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." *
20. 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. #
21. 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.
22. 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. #
23. 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 to 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.
24. 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.
25. 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.
26. 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 opt
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 doctorine 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." *
27. 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 appellate before us.