Dr. Ansari v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 22ND DAY OF FEBRUARY 2017/3RD PHALGUNA, 1938** **Crl.MC.No. 916 of 2016 () --------------------------** **(AGAINST THE ORDER/JUDGMENT IN CC 2015/2015 of J.M.F.C.-I, KANNUR CRIME NO. 1506/2013 OF KANNUR TOWN , KANNUR)** **PETITIONER(S)/ACCUSED: ---------------------** **DR.ANSARI, AGED 54 YEARS, S/O.KHADER KUNHI, MINI HOME, FORT ROAD, KANNUR.** **BY ADVS.SRI.P.RAJAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V** **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **STATE OF KERALA,** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, (IN THE MATTER OF CC NO.2015/2015 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT - I, KANNUR AND CRIME NO.1506/2013 OF KANNUR TOWN POLICE STATION), ERNAKULAM - 31.** **ADDLR2.E.MASHOOD, RUBAIDAS,THILANNOOR, POST THAZHE CHOVVA, KANNUR 670018. (ADDL.R2 IS IMPLEADED AS PER ORDER DATED 27/9/2016 IN CRL.M.A NO.5024/2016 IN CRL.M.C. NO. 916/2016.)** **R1 BY ADV. PUBLIC PROSECUTOR SRI.M.R.DHANIL R2 BY ADV. SMT.M.M.DEEPA R2 BY ADV. SMT.MEERA DEVI R2 BY ADV. SRI.K.C.SANTHOSHKUMAR R2 BY ADV. SMT.M.S.SHEETHAL** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 1402-2017, THE COURT ON 22/2/2017 PASSED THE FOLLOWING:** **Crl.MC.No. 916 of 2016 () --------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------ANNEXURE-I: TRUE COPY OF THE CERTIFICATE OF THE PETITIONER IN DOCTOR OF MEDICINE (MD) IN PEDIATRICS** **ANNEXURE-I(A): TRUE COPY OF THE CERTIFICATE OF REGISTRATION BEFORE TRAVANCORE COCHIN COUNCIL OF MODERN MEDICINE OF THE PETITIONER** **ANNEXURE-2: CERTIFIED COPY CHARGE SHEET, FILED BY THE KANNUR TOWN POLICE IN CRIME NO.1506/2013 ALONG WITH THE COMPLAINT AND FIR, NOW PENDING AS CC NO.2015/2015 ON THE FILE OF JFCM-I, KANNUR, AGAINST THE PETITIONER** **ANNEXURE-3: TRUE COPY OF THE CASE SHEET RELATING TO THE NEW BORN BABY KEPT AT MOTHER AND CHILD HOSPITAL, (IP NO.9332).** **ANNEXURE-3(A): TRUE COPY OF THE REPORT OBTAINED BY THE POLICE FROM DISTRICT MEDICAL OFFICER, KANNUR.** **RESPONDENT(S)' EXHIBITS** **-----------------------nil** **/true copy/ PS TO JUDGE.** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.M.C.No.916 of 2016** - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of February, 2017 ## **O R D E R** The petitioner herein stands arrayed as the sole accused in CC No.2015/2016 of the Judicial First Class Magistrate1,Kannur,for offence punishable under Section 338 of IPC. 2. The facts constituting the case is that, on 30/7/2012 morning, one woman gave birth to a child in a hospital at Kannur, where the petitioner herein was working as a pediatrician. He is holding an MD in pediatric. The delivery was under the supervision of the gynecologist of the hospital. The petitioner herein had attended the child as a consultant pediatrician. On 1/8/2012, mild yellow colour was noticed on the body of the child and on petitioner's recommendation, photo therapy treatment was given to the child. Apart from that, serum bilirubin test was directed to be conducted. Since bilirubin in blood of the child was found as 14.3mg as per the result, on the next day also repeat bilirubin test was conducted which disclosed 17 mg. The doctor suggested to continue the photo theraphy. Since abnormality was later noticed by the doctor, he referred the child to another hospital on 2/8/2012 at 7 p.m. It was alleged that the jaundice which the child had contracted, had effected his brain and affected his hearing Crl.M.C.No.916/2016 2 capacity. 3. A complaint was laid by the parents of the child before the Consumer Redressal Form claiming compensation. On the basis of another complaint submitted to the District Collector,which was forwarded to the Superintendent of Police, crime was registered as Crime No.1506/2013. After investigation, final report was laid for offence punishable under Section 338 IPC and the petitioner stands arrayed as the sole accused. 4. The contention of the petitioner herein is that, when mild yellow colour was noticed, he himself had suggested serum bilirubin test. The baby was shifted to NICU and started double served photo therapy. Sepsis screening test was also conducted. On 2/8/2012, he himself referred to the child to another hospital with more facilities for expert management. According to the petitioner, it was later detected that the baby had Rh incompatibility. According to the petitioner herein, he had done all possible treatment, which the situation warranted and had taken all care and precaution expected from any person placed in his situation. Hence, the petitioner contended that the case of criminal negligence cannot be attributed to the petitioner herein. Hence, he sought to quash the proceedings. 5. The law regarding the criminal negligence proceedings against a doctor is almost well settled by a catena of decisions. While dealing with the offence under section 304A, this court in Crl.M.C.No.916/2016 3 **Prabha G.Nair v.Mohanan (2002 (1) KLT 733)** had held that, the negligence is the failure to take reasonable care and it is not possible to ascertain whether a person was negligent or not in doing a thing by any abstract standard. It was held that,negligence cannot be understood to mean absolute carelessness or indifference, but it means want of such a degree of care as is required in particular circumstances. 6. The Hon'ble Supreme Court in **Jacob Mathew v. State of Punjab (2005 (3) KLT 965(SC)** had occasion to deal with an identical situation under section 304A. It was held that, any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed,or, he did not exercise with reasonable competence in 4 Crl.M.C.No.916/2016 the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. The apex court cautioned that, it was only emphasizing the need for care and caution in the interest of society. At the same time, there is a need for protecting doctors from frivolous or unjust prosecutions. 7. The Hon'ble Supreme Court in **Martin F.D' Souza v. Mohd.Ishfaq (2009 (2) KLT SN 57)** had occasion to discuss in detail the concept of medical negligence. It was held that a doctor is often called upon to adopt a procedure with element of higher element of risk,but he honestly believes as providing greater chance of success for the patient, rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case but a doctor cannot be penalized if he adopts the former procedure, even if it results in a failure. 8. The law is clear that it is not every case of failure in treatment that leads to an irresistible conclusion of negligence. It has also to be evaluated on the basis of the available materials. In the case at hand, Annexure A3 is the record which shows that the child was born on 30/7/2012 at 7 am. It was a normal delivery and the child was active and normal. On 1/8/2012, the petitioner had seen the child at 11.a.m. He had advised DSPT test. Initial Crl.M.C.No.916/2016 5 bilirubin test and the repeated test indicated the increase in bilirubin contents. On 2/8/2012 at 7 pm, the doctor was called, who had seen the child on instructions. At 8 pm, the doctor advised the child to be shifted to another hospital and the concerned doctor was addressed by him. There is an allegation that,the blood group of the mother was O negative and that of the child was O positive. It is alleged by the prosecution that, in such case the doctor should have recommended for DCT (Direct Coombs Test) . The failure to perform it indicated the gross negligence on the part of the petitioner, contended the prosecution. Evidently, the doctor alone had treated the child and had suggested the medicines. 9. The question whether the petitioner had taken up reasonable care and caution and had taken prudent steps to protect the interest of the mother and the child till the child was ordered to be shifted, had been meeting the child at regular intervals, are all matters to be arrived at on the basis of the materials to be gathered in evidence. The allegation against the petitioner is sought to be proved mainly through medical records as well as the oral testimony of the persons involved. Hence, the question largely depends on the facts which need to be carefully weighed. Hence, it cannot be said that the prosecution is proceeding without any material. Whether the DCT was required to be done, what were the medicines prescribed by the doctor, what ought to have been 6 Crl.M.C.No.916/2016 reasonably given by any doctor in the same circumstance and whether reasonable and correct steps were taken by the doctor and whether criminal liability can be fastened on the doctor are the matters of evidence. Definitely criminal negligence require a higher degree of proof. 10. Having considered the above facts, I feel that contention of the petitioner herein that the case is liable to quashed cannot be accepted at this stage. Hence, I am not inclined to interfere in the above proceedings. In the result, Crl.M.C.fails and is dismissed,however reserving the right of the petitioner herein to move the court below with appropriate application including one for discharge. Sd/- **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge. Crl.M.C.No.916/2016 7