IMPORTANT POINTS
(1) Criminal negligence is a greater failure and a greater falling below standard of care and renders a man guilty criminally – Degree of negligence should be much higher for an act to amount to criminal negligence.
(2) Every death of a patient cannot, on face of it, be medical negligence – Death should be direct or proximate result of negligent act alleged.

JUDGMENT

Though doctors’ aura of Godliness and holiness is a myth, they are volunteers who take the risk of dealing with the most intricate, delicate, and complex machine on earth - the human body. Any surgical procedure or medical intervention on this highly compound machine carries some inherent risk. There is always the chance that the treatment does not go as planned. When things go wrong, it is not always the fault of the doctor. A complication by itself does not constitute negligence. There is a big difference between an adverse or untoward event and negligence. However, there is a growing tendency to accuse the doctor of an adverse or untoward event. Nothing can be more professionally damaging and emotionally draining than being arrayed as an accused in any such action. A surgeon, under fear of facing criminal prosecution in the event of failure for whatever reason – whether due to his fault or not- cannot perform at his best. The Judicial Forums, in the process of fixing parameters of liability in the cases of medical negligence, must aim at striking a careful balance between the autonomy of a doctor to make judgments and the rights of a patient to be dealt with fairly, recognizing the complexity of the human body, inexactness of medical science, the inherent subjectivity of the process, and genuine scope for error of judgment. However, while dealing with criminal prosecution for medical negligence, the trial courts often ignore these principles. The subject matter of these appeals is one such typical case.

2. One Smt. Mini Philip, a young lady aged 37 years, walked to the operation theatre at Deen Hospital, Punalur, on 25 /9/2006 at 3.30 p.m. to undergo sterilization by laparoscopy, a procedure that provides permanent birth control, with the hope that she could safely return home after few hours. But destiny had something else in store for her. After the surgery, she developed respiratory complications and was put under oxygen support. Though she was shifted to Poyanil Hospital, Punalur, at 9.00 p.m. and then to Ananthapuri Hospital, Thiruvananthapuram, at 11.30 p.m. for expert management, her life could not be saved. She breathed her last on the next day at 5.30 p.m. at Ananthapuri Hospital.

3. On 26/9/2006, the Vanchiyoor Police registered a crime under section 174 of Cr.PC based on Ext.P1 FI statement given by the uncle of the deceased (PW 1) alleging medical negligence on the part of the doctors who conducted surgery and administered anesthesia as well as the nurses who assisted them. Later Punalur Police reregistered the case as Crime No.590/2006 and conducted the investigation. PW17, the investigating officer, in accordance with the direction of the Apex Court in Jacob Mathew v. State of Punjab and Another (AIR 2005 SC 3180), requested the District Medical officer, Thiruvananthapuram, to constitute an Expert Panel and to give their views on the allegation of medical negligence. Accordingly, a five-member Expert Panel was constituted, and the committee forwarded Ext.P4 report on 16/6/2007. The matter was again referred to the Apex Body, and two reports of the Apex Body marked as Ext.P15 dated 3/8/2010 and Ext.D9 dated 20/4/2009 were obtained. Based on the reports, PW17 incorporated the offences under sections 304 and 201 r/w 34 of IPC. After investigation, final report was filed at the Judicial First-Class Magistrate Court III, Punalur, against the accused, six in number, who are the doctors and nurses at Deen Hospital. The learned Magistrate, after complying with the statutory formalities, committed the case to the Additional Sessions Court V, Kollam (for short ‘the court below’) for trial and disposal.

4. All the accused appeared at the court below and they faced trial for the offences punishable under sections 304 and 201 r/w 34 of IPC. After full-fledged trial, the court below found that the offence under section 304 of IPC was not attracted. However, it found that there is evidence to show that the accu