Criminal liability for medical negligence necessitates proof of gross negligence, beyond mere lack of care.

ORDER :

V.G. ARUN, J.

Petitioner is the 1^st accused in Crime No.10 of 2021 of the Crime Branch, CU-II Unit, Ernakulam registered for the offence punishable under Section 304A of IPC. The case originated on the death of a patient named Shafiq at the Government Medical College Hospital, Kottayam. The petitioner was the night duty on-call Medical Officer of the Neuro Surgery Department when Shafiq was admitted in the Medical College Hospital. The essential facts are as under;

Shafiq, a remand prisoner, suffered seizures on 11.01.2021 while undergoing judicial custody in the Sub Jail, Kakkanad. The next day, i.e. 12.01.2021, at about 12:27 pm, Shafiq suffered another seizure and fell down, resulting in injuries to his head. He was then taken to the Taluk Hospital, Tripunithura and from there to the General Hospital, Ernakulam, by about 08:12 pm, on 12.01.2021. A CT-Scan conducted at the General Hospital revealed sub-dural haemorrhage and temporal bleeding in Shafiq's brain, making in-patient treatment unavoidable. However, as beds were not available at the General Hospital, Shafiq was referred to the Government Medical College Hospital, Kottayam. He was then brought to the Medicine Department Casualty in the Medical College at 12:40 am on 13.01.2021. From the Medicine Casualty, the Duty Medical Officer referred Shafiq to the General Surgery Department for further examination and thereafter, to the Orthopaedics Department since the patient had complained of pain in his hands. After consultation by the General Surgeon and the Orthopaedics Department, Shafiq was admitted to the Medicine Department at 02:31 am on 13.01.2021. Thereafter, at about 4 am, Shafiq suffered another seizure and by 04:50 am, he was referred for Neurosurgery consultation. Immediately, the Senior Resident on duty in the Neurosurgery Department examined the patient and intimated the petitioner about the patient’s condition over phone at 05:20 am, he being the on-call Medical Officer. After discussing with the Senior Resident, petitioner advised for a repeat CT-scan and pre-operative investigations in order to be prepared for emergency surgery after reviewing the scan report. The scan report was received by about 07:45 am on 13.01.2021. Thereupon, the Senior Resident on day duty informed the petitioner that the report showed brain stem contusion, in addition to increase in size of the previous haemorrhage. The petitioner then advised emergency surgery and the patient was posted for emergency decompressive craniectomy. As the petitioner’s duty ended at 8 am on 13.01.2021, Dr.Girish K.M. (2^nd accused) assumed charge as the on-call Duty Medical Officer for the next 24 hours. Although petitioner had advised emergency surgery for Shafiq, it could not be conducted as another patient was undergoing surgery in the only available operation theatre and the surgery of yet another patient had already been scheduled from 01:10 pm onwards. Unfortunately, Shafiq breathed his last at 03.25 pm on 13.01.2021 while waiting for the surgery. Pursuant to Shafiq's death, an FIR was registered at the Info Park Police Station, Ernakulam under Section 174 Cr.P.C. When news about Shafiq's death came out, there was wide spread protest alleging that death was due to custodial torture. Hence, the investigation of the case was entrusted with the Crime Branch. Thereupon, the investigating officer referred the case to the Expert Panel constituted to investigate complaints against Doctors for acts of commission or omission in the medical care of patients. Accordingly, the Expert Panel conducted enquiry and submitted Annexure A18 report, opining that Shafiq had not received the reasonable standard of care while undergoing treatment in the Government Medical College Hospital, Kottayam. This resulted in the petitioner and Dr.Girish K.M being arraigned as accused, alleging commission of the offence under Section 304A of the IPC.

2. Advocate Vishnu Jayapalan, appearing for the petitioner contended that, ev