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2004(5) Supreme 604
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
Y.K. Sabharwal & D.M. Dharmadhikari, JJ.
Dr. Suresh Gupta -Appellant
versus
Govt. of N.C.T. of Delhi & Anr. -Respondents
Criminal Appeal No. 778 of 2004
(Arising out of SLP (Crl.) No. 2931 of 2003)
Decided on 4-8-2004
Counsel for the Parties :
For the Appellant : Ashok H. Desai, Sr. Advocate, Aloke Kumar Sengupta, Ms. Sushma Sharma, Meghalee Barthakur, Mrinal Kanti Mandal, Ms. Anindita Sengupta, Rajan Narain and Suraj Prakash, Advocates.
For the Respondents : Harish Chandra, Sr. Advocate, S. Wasim A. Qadri, Vineet Malhotra, Mrs. Anil Katiyar and Nikilesh Ramachandran, Advocates.
Held : 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. (Para 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. 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. (Paras 21 to 26)
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 (Paras 28)
(ii) Criminal Procedure Code, 1973 -Section 482-Indian Penal Code, 1860-Section 304A-Medical Negligence-Quashing of prosecution-Petition filed by the doctor-High Court refused to quash criminal proceedings and upheld order of Magistrate-However, it records that the Magistrate was wrong, in absence of any medical opinion, in coming to a conclusion that the surgeon had given a cut at wrong place of body of the patient at the time of operation leading to blood seeping into respiratory passage-Whether High Court was right in sustaining prosecution of the doctor-(No).
Held : 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. (Para 8)
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. (Para 12)
JUDGMENT
Dharmadhikari, J.-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 304A 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.
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 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."
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.
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