Criminal negligence in medical cases requires a higher degree of negligence than civil liability; sufficient prima facie evidence can justify prosecution without expert testimony.

Judgment

Mr. Deepak Gupta, J.

By way of this petition filed under Section 482 CrPC, petitioners pray to quash criminal complaint No.25 dated 10.06.2014 titled “Pooja Gupta Vs. Max Super Speciality Hospital and others” (Annexure P13), the summoning order dated 08.12.2014 (Annexure P25) passed by the Court of Ld. Chief Judicial Magistrate, SAS Nagar, Mohali and all consequent proceedings arising therefrom in the said complaint.

2.1 Complainant Pooja Gupta (respondent No.2 herein) filed the complaint Annexure P-13 arraigning Max Super Speciality Hospital, Mohali, through its Chairman, Director, Medical Superintendent as accused N: 1 (petitioner No.1 herein), Dr. Sudheer Saxena, Principal Consultant, Interventional Cardiology, working in Max Super Specialty Hospital as accused No.2 (petitioner No.2 herein); and one Dr. Pawan K. Kansal, MBBS, MD (Medicine), Cardiac Rehabilitation & Medical Central, H.No.3201, Sector 21-D, Chandigarh as accused N: 3 (not a party before this Court) seeking their prosecution for committing offences under Section 304A, 420 & 120B IPC.

2.2 It was submitted in the complaint that Shri Rishi Gupta (since deceased), the husband of complainant went to Dr. Pawan K. Kansal for a routine checkup on 17.09.2013. After initial diagnosis, Dr. Kansal advised the patient to opt for pacemaker surgery and referred him to accused N: 1 - Max Speciality Hospital and specifically instructed him to meet accused No.2 Dr. Sudheer Saxena. Accordingly, patient Sh. Rishi Gupta went to Max Speciality Hospital, where Dr. Sudheer Saxena, after certain diagnosis, prescribed surgery for implantation of pacemaker in the heart of the patient. The accused Dr. Saxena was well informed about the entire medical history of the patient. Dr. Sudheer Saxena, specifically suggested a bivent pacemaker manufactured by St. Jude Medical India Pvt. Ltd., the cost of which was around Rs. 4,50,000/-. Accused told that patient would have to take a four day package including the day of admission and that the entire surgery will cost of Rs.5.5 Lacs, including the cost of pacemaker. Sh. Rishi Gupta was accordingly admitted in the hospital. The bill related to the admission and initial deposit of Rs. 20,000/- made on 17.09.2013 is enclosed with the complaint. Subsequent to the admission, few tests and diagnosis, including angiography were performed on the patient under the instructions of accused Dr. Sudheer Saxena on the following day.

2.3 It is alleged that accused did not perform the surgery till 4th day of the admission. In fact, due to a casual attitude and non-cooperation amongst the concerned staff, the required pacemaker was not even arranged till then. In the morning of 20.09.2013, complainant was instructed by the hospital authorities to deposit Rs.3 lakh as part payment. Accused Dr. Sudheer Saxena informed the patient that on that day, his surgery will be conducted. Amount was accordingly deposited on 20.09.2013. Patient was taken for the surgery.

2.4 It is alleged that surgery was conducted on 20.09.2013 without having the actual, requisite and prescribed pacemaker available with Dr. Sudheer Saxena. At about 4:30 PM, accused Dr. Sudheer Saxena informed the complainant that surgery could not be completed, as they did not have the 3rd lead of the pacemaker. When the complainant and her relatives asked the Doctor as to why he had initiated the surgery without having the proper kit of the pacemaker, he did not give any reply and left the patient in that condition without even disclosing that at that stage, he did not have the actual pace maker to conduct the surgery.

2.5 Complainant alleged further that in fact on 20.09.2013, accused Dr. Sudheer Saxena implanted a wrong and cheap “Double Chamber Pacemaker” against his own instructions, though the patient had already paid for the superior pacemaker. It was done by accused No.2 in connivance with the other co-accused with a view to make extra money.