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2012 Supreme(Mad) 3407
High Court of Judicature at Madras
S. NAGAMUTHU, J.
J.S. Rajkumar & Another
Versus
Assistant Commissioner of Police, Cyber Crime Cell, Chennai & Another
Criminal Original Petition No.8284 of 2009
Decided On : 03-08-2012
Advocate Appeared:
For the Petitioners:B. Kumar, Senior Counsel, Xavier Felix, Advocate.
For Respondents:R1, M. Maharaja, Additional Public Prosecutor, R2, Sathish Parasaran, Advocate.
The main legal point established in the judgment is the need for unbiased medical opinion and protection of doctors from unscrupulous prosecution in cases of medical negligence.
Headnote:
MEDICAL NEGLIGENCE - IPC Section 304-A - [Section 304-A IPC] - The court discussed the legal position regarding medical negligence warranting prosecution for offence under Section 304-A of IPC. The court referred to the Constitution Bench judgment of the Hon'ble Supreme Court in Jacob Mathew v State of Punjab, (2005) 6 SCC 1 and highlighted the distinction between ordinary negligence and gross negligence, emphasizing the need for materials to show gross negligence to maintain the prosecution of a medical practitioner. The court also discussed the directions issued in Martin F. D' Souza v. Mohd. Ishfaq (2009) 3 SCC 1 and V.Krishna Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513, emphasizing the need for obtaining opinion from a committee of competent doctors before entertaining any complaint regarding medical negligence. The court concluded that the law has been well settled by the Hon'ble Supreme Court in respect of medical negligence, highlighting the need for unbiased medical opinion and protection of doctors from unscrupulous prosecution.
Fact of the Case:
The deceased, suffering from abnormal obesity, underwent weight loss surgery conducted by the 1st petitioner. Post-surgery, the deceased developed complications, leading to severe infection and ultimately death. A complaint was made alleging gross medical negligence on the part of the 1st petitioner, leading to the registration of a case under Section 304-A IPC.
Finding of the Court:
The court found conflicting opinions from expert doctors, with some opining gross negligence on the part of the 1st petitioner, while others opined no negligence. The court held that the conflicting opinions should be left to the trial court to decide, and the case cannot be quashed at this stage. The court also quashed the case against the 2nd petitioner due to lack of evidence.
Ratio Decidendi: The court held that the conflicting medical opinions should be left to the trial court to decide, and the case cannot be quashed at this stage. The court also emphasized the need for unbiased medical opinion and protection of doctors from unscrupulous prosecution.
Final Decision: The case against the 2nd petitioner was quashed, while the case against the 1st petitioner was not quashed and the trial court was directed to proceed against the 1st petitioner in accordance with law. The trial court was also directed to expedite the trial.
1. This is a case of medical negligence. The 1st petitioner is a surgeon. The 2nd petitioner is the hospital of which, the 1st petitioner is the Managing Director. They face prosecution for offence under Section 304-A I.P.C. Seeking to quash the said proceedings, the petitioners are before this Court with this petition.
2. The case of the prosecution is as follows:- The 2nd respondent had a son by name Vignesh, who was then aged 20 years. He was a B.Com., graduate. Unfortunately, he was suffering from abnormal obesity and his weight was 211 Kgs. The deceased was advised by one Doctor J.S.Roy that he could undergo a surgery known as "weight loss surgery". He was also informed that the 1st petitioner was competent to do the said surgery. Thereafter, the deceased approached the 1st petitioner in his hospital and sought for his opinion. The 1st petitioner, after having conducted preliminary examinations, advised him to undergo the said surgery which is of two stages. The first stage of the surgery is known as "bariatric surgery". The deceased was informed that within a period of three to six months after the first stage of surgery, he would lose at least 50 Kgs of weight. He was also informed that the said surgery did not involve any complication and it would be enough for him to stay in the hospital as inpatient for a week's time. He was also informed that the cost of the surgery would be around 3.25 lakhs. The 2nd respondent namely, the father of the deceased, the deceased and the other family members were convinced by the words of the first accused and so, they agreed for surgery proposed by the first accused. Accordingly, the deceased was admitted in the 2nd petitioner hospital on 04.04.2006 by the 1st petitioner. It was planned to have the surgery on the morning of 5th April, 2006. Accordingly, on 05.04.2006, the 1st petitioner conducted the surgery viz., "duodenal switch gastrectomy". He informed the deceased and his parents that the second procedure viz., "duodenal laparoscopic sleeve gastrectomy" might not be needed for for the patient. After the surgery, Mr.Vignesh was moved to the Intensive Care Unit and was later shifted to the ward on 06.04.2006 and he was under the care of the first accused.
3. On 08.04.2006, Vignesh complained of severe abdominal pain. The 1st petitioner examined him and suspected that there was fluid collection in the abdomen. But the cause for the fluid collection could not be diagnosed. Therefore, he wanted to go for "exploratory laparatomy" surgery to find out the cause for leakage. Accordingly, on 08.04.2006, the first accused conducted "exploratory laparotomy" and in the said process, he drained the fluid collection in the abdomen cavity. The first petitioner later told that he had noticed a perforation in the stomach and the same was closed by appropriate stitching. He also told that the perforation was due to punching of staple.
4. After the said surgery was over, the condition of the patient became some what critical. He was maintained in the Intensive Care Unit for support of vital parameters. On 11.04.2006, the patient had septic shock. The treatment continued for reducing the septic shock. On 21.04.2006, tracheotomy was done and the patient was put on ventilation.
5. On 22.04.2006, it was diagnosed that even after the second surgery, there was intra abdominal leak from the anatomosis or staple line. On 25.04.2006, the relatives of the patient were informed by the 1st petitioner that the leak was persistent as the patient was suffering from "gastric fistula" for which he needed a morphine, a cleaning up procedure on the operation theater for about 45 minutes which would help him to recover faster. It was actually planned for a third surgery to explore the cause for the leakage and the fluid collection in the abdominal cavity. But the Anesthetist, after having examined him, opined against giving anesthesia to the patient. Therefore, the plan to go in for third surgery was give
