Back
2007 Supreme(P&H) 1989
2008(1) LAW HERALD (P&H) 610
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice A.N. Jindal
Criminal Misc. No.17345 M OF 2007
Jitender Singh Tewatia
v.
State of Haryana
{Decided on 15/11/2007}
For the Petitioner:Mr. Raj Mohan Singh, Advocate.
For the Respondent No. 4 & 5:Mr. H.S.Mattewal, Sr. Advocate with Mr. D.S.Rawat, Advocate.
Mr. K.S.Godara, DAG, Haryana.
IMPORTANT POINT
Death by Negligence--Medical negligence--Doctors advised the patient either to go in for by pass surgery or angioplasty, however, the patient left the hospital against medical advise--No criminal negligence is made out
Headnote:`(A) Penal Code, 1860, Section 304-A--Death by Negligence--Medical negligence--Doctors at Metro Hospital advised the patient either to go in for by pass surgery or angioplasty, however, the patient left the hospital against medical advise--The record of the Escorts Hospital reveals that he was admitted in the hospital at 10:30 PM on 08-06-06--And left the hospital on 09-06-06 against the medical advise – Again he was admitted in the Escorts Hospital on 10-06-06 and expired after an unsuccessful operation--Patient did not die during this period when the patient was left unattended rather the records reveal that the patient left the hospital against the medical advice on 09-06-06 and again came to the hospital on 10-06-06--Previous conduct of the patient also goes against him as he left the Metro Hospital against the medical advice and thereafter he left the Escorts Hospital against the medical advise on 09-06-06--No mens rea could be attributed to the doctors for taking the life of their esteemed patient--The Principle of res-ipsa loquitur also is not attracted in this case--Nothing has been alleged against the Doctors that omission on their part stood infected with mens rea ill motive or evil design--The alleged omission on their part cannot be termed as gross or of such a higher degree so as to bring the case within the purview of criminal negligence– No criminal negligence is made out against respondent Nos. 4 and 5 so as to initiate the criminal proceedings against them. (Paras 7, 13, 14, 15, 16 & 18)
(B) Penal Code, 1860, Section 304-A--Death by Negligence--Medical negligence–Doctors advised the patient either to go in for by pass surgery or angioplasty, however, the patient left the hospital against medical advise--Deceased himself also recorded while leaving the hospital:-“ Main daud lagaunga or theek ho jaunga”--No criminal negligence is made out against respondent Nos. 4 and 5 so as to initiate the criminal proceedings against them. (Paras 17 & 18)
(C) Penal Code, 1860, Section 304-A--Death by Negligence--Medical negligence–Civil/Criminal Law–What may be negligence in civil law may not necessarily be negligence in criminal law--For negligence to amount to an offence, the element of mens rea must be shown to exist--For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree--Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. (Para 12)
A.N.Jindal, J:- Petitioner has invoked provisions of Section 482 of the Code of Criminal Procedure directing respondent No.2(SP Faridabad) to initiate criminal action against two doctors namely Dr. Vikas Chopra and Dr.Rishi Gupta (hereinafter referred to as the respondent Nos.4 and 5) for committing criminal negligence for not attending a patient Rajan Chauhan of Escorts Hospital, Faridabad for not attending him since 08.06.06, 10P.M till 09.06.06, 9A.M and also directing the Medical Board Committee consisting of Civil Surgeon Faridabad for enquiring into the conduct of respondent Nos. 4 and 5 in the episode leading to the death of Rajan Chauhan.
2. The facts as in the back drop are that Rajan Chauhan having developed some heart problem was admitted in Metro Heart Institute, Sector 16, Faridabad. After angiography was conducted on him on 08.06.06 showing 100% blockage in LAD. He was advised to go in for surgery. The angiography diagnosed the coronary artery(significant single vessel) disease. Right dominant System. The doctors in Metro Heart Institute recommended for primary PTCA with stenting to LAD. Thereafter, deceased was shifted to Escort Hospital and Research Centre Ltd., Faridabad where he was admitted on 08.06.06 at 10 PM. However respondent Nos. 4 and 5 who were on duty in the hospital did not attend the deceased and he was discharged on 09.06.06 at 9A.M whereas as per record, the deceased left against the medical advise. The deceased could not sleep properly and was again admitted in the Escorts hospital at 10.06.06 at 10 AM for angioplasty and accordingly the payments were also deposited along with consent form.
3. Despite repeated requests of the petitioner and other relatives respondent Nos. 4 and 5 did not take any action nor any angioplasty was performed during the whole day. The petitioner was not even allowed to see the patient. At about 7.50 PM, the petitioner and other relatives were informed that the patient is no more. Doctors claimed that angioplasty was done and they are having full recording of the same. Original CD was not given to the petitioner and other family members rather a CD containing small clipping of 5 seconds was given, which was totally a manipulated affair of the Escorts Hospital, Faridabad.
4. On filing of the complaint against the Doctors the Dy. Commissioner referred the matter to Civil Surgeon, Faridabad to get the episode enquired. The Civil Surgeon constituted Medical Board of 4 doctors comprising of Dr. Ravinder Mathur, S.M.O, Dr. S.K.Manocha, S.M.O, Dr. B.D.Pathak, M.O, Dr. Lokveer, M.O for conducting the enquiry into the episode leading to death of Rajan Chauhan. The Board of Doctors in their report concluded as under:-
“After going through records submitted by the Escorts Hospital, Faridabad and statement of Dr. concerned and patient attendant, following facts have been noticed by the members of the committee.
That patient Mr. Rajan Chauhan was admitted in Metro Hospital on dated 08.06.06 at 5.00 PM. Coronary angiography was performed at Metro Hospital which showed complete blockage LAD at the ostium and patient was recommended emergent PCI (EXB. no.1). As per statement of patient’s brother in law Mr. Jitender Singh s/o Sh. Nathu Singh, Patient was taken to Escorts Hospital, Faridabad for the same procedure (PCI) after consulting with their family physician at Palwal. Patient was brought to Escorts Hospital at 10:15 PM on 08.06.06 (exhibit to patient’s attendant statement).
After scruting all the papers(III-A, III-B, III-CI,IIII-C2 and upto III-L). The patient was attended by Dr. Rishi Gupta, Cardiologist at 10:00 AM on 09.06.06. It appears that patient was not attended by any cardiologist(Dr. Vikas Chopra/Dr. Rishi Gupta and no cornary intervention was done on the night of 08.06.06/09.06.06 for which the patient was shifted from the Metro Hospital. However, Dr. Rishi Gupta in his statement has stated that he attended the patient at 11.30 PM on 08.06.06 and did not perfor
