Prosecution for medical negligence under Section 304-A IPC requires proof of gross negligence, while the trial court has discretion to consider delayed filings under Section 473 Cr.P.C.

ORDER

This Criminal Original Petition is filed to quash the private complaint in C.C.No.640 of 2022 on the file of the learned Judicial Magistrate No.II, Salem, filed against the petitioner, who is a medical practitioner, for the offence under Section 304-A IPC , for causing death of the wife of the de facto complainant/respondent due to medical negligence, when she was admitted in the hospital for delivery of her second child.

2.The crux of the private complaint is as follows :

2.1.On 21.09.2008, the wife of the de facto complainant delivered a male child through caesarian. During the second pregnancy, the wife of the de facto complainant got medical advice from the petitioner and the petitioner assured his wife that, despite previous delivery performed by C- Section, she can give normal delivery of second child by a method called Vaginal Birth After prior Caesarean (VBAC). Accordingly, from March, 2016, till admission in the hospital for delivery of second child on 07.11.2016, the wife of the de facto complainant was regularly attending the hospital of the petitioner. On 05.11.2016, the de facto complainant's wife was admitted in the hospital at 04.30 p.m. On 06.11.2016, being a Sunday, no medical officer was available in the hospital. On 07.11.2016, the wife of the de facto complainant developed labour pain at 04.30 a.m. Therefore, she was admitted in the ICU. Thereafter, the de facto complainant left for his home at 7.55 a.m. At 09.00 a.m., the de facto complainant was informed by his mother that his wife was in serious condition. When he came to the hospital, the petitioner informed the de facto complainant that there are some complications in delivery and therefore, they had to resort to C-Section surgery for delivery and thereby, a female child was delivered at 08.37 a.m. He was informed that his wife had developed breathlessness during surgery and that they have sought medical opinion from a neurologist. Thereafter, the wife of the de facto complainant was taken to Neuro Foundation Hospital for taking CT Scan at around 11.30 a.m., where she was declared dead.

2.2.It is the case of the de facto complainant that, only while declaring the death, consent was obtained from the mother-in-law of the deceased. Prior to the surgery, no consent, whatsoever, has been obtained from the deceased or her mother-in-law. Thereafter, after cremation of the body, on 09.11.2016, when the de facto complainant and his relatives went to the hospital and sought for case sheets, the hospital authorities refused to give the case sheets. As the case sheets were not handed over to the de facto complainant, he entertained a doubt about the treatment.

2.3.It is the contention of the complainant that, before undertaking VBAC, consent of the patient has to be obtained. However, no such consent has been obtained either from the deceased or her mother-in-law. Further, no anaesthetist was present in the hospital at the time of surgery and child specialist was also not present. In this regard, a committee was constituted by the State Government to enquire and report about the maternal death and accordingly, enquiry was conducted by Dr.Shanthi, DGO and Dr.Rajan, Senior Assistant Surgeon. The experts have submitted a report dated 20.12.2016, stating that the wife of the de facto complainant died due to the negligent act of the petitioner. In the report, it is clearly held that anaesthetist should have been present in the hospital during surgery, however, no such anaesthetist was present at the time of surgery and no specialist was also present in the hospital at the time of conducting surgery. Furth