Dr. Prasitha Kumari v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 28TH DAY OF JUNE 2019 / 7TH ASHADHA, 1941** ## **Crl.MC.No.3393 of 2016** **CC NO.420/2016 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-II, KOCHI CRIME NO.98/2014 OF PALLURUTHY POLICE STATION, ERNAKULAM** ## **PETITIONER/1ST ACCUSED:** **DR. PRASITHA KUMARI, W/O. DR.PRADEEP KUMAR, SHANTHI NIVAS, CC/20/2783, PALLURUTHY P.O., KOCHI.** **BY ADVS. SRI.B.RAMAN PILLAI (SR.) SRI.M.SUNILKUMAR SRI.R.ANIL SRI.R.ARUN (PALLURUTHY) SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM (NILACKAPPILLIL)** ## **RESPONDENTS/COMPLAINANT & DE FACTO COMPLAINANT:** **1 STATE OF KERALA, (CRIME NO.98/2014 OF PALLURUTHY POLICE STATION), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 JOSE, S/O. GEORGE, MANGALATH VELI VEEDU, VADAKKAKATH BHAGAM, EZHUPUNNA-688 537, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.ANTONY SHYJU SRI.AJITH GEORGE** **SRI.M.S.BREEZ, SR. PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.3393 of 2016 2 ## **ORDER** The petitioner herein is an Obstetrician and Gynecologist. She has been arrayed as the 1[st] accused in C.C.No.420 of 2016 pending on the files of the Judicial First Class Magistrate Court-II, Kochi, in which case, she is accused of having committed offence punishable under Section 304A r/w. Section 35 of the IPC. 2. In the statement given to the police based on which the crime was registered, it is alleged that Smt.Anna Joji, a near relative of the informant, was admitted in the Fathima Hospital, Perumpadappu, on 22.1.2014 for delivery. At about 8.30 p.m. on the next day, the bystanders were asked to shift the patient to a higher centre. An ambulance was also arranged for the same. However, the hospital authorities did not provide the service of a doctor or a nurse to accompany the patient. While proceeding in the vehicle, the informant and another relative, who were accompanying the patient, raised alarm as they felt that an expert should accompany the patient with life saving equipment. Hearing the hue and cry, the ambulance driver and two other hospital employees stopped the ambulance and took to their heels. The police were alerted and they reached the spot and shifted the lady to the Medical Trust Hospital. By the time they Crl.MC.No.3393 of 2016 3 had reached the hospital, the condition of the patient had worsened and she was declared dead. Alleging medical negligence, the law was set in motion. A crime was registered under Section 304A of the IPC. After completion of investigation, final report was laid before the jurisdictional court on 30.9.2015. 3. Sri.K.Gopalakrishna Kurup, the learned Senior counsel, as instructed by Sri.Gilbert George Correya, the learned counsel appearing for the petitioner, submitted that the Apex court in **Jacob Mathew v. State of Punjab and Another** [AIR 2005 SC 3180] had laid guidelines which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. It was held that before proceeding against the doctor, who is accused of criminal negligence, an independent and competent medical opinion should be obtained by an expert body. In terms of the directions, the Government had issued instructions, as per which, the investigating officer is bound to refer the case to a panel and seek their opinion. If there is difference of views between the panel members, the case can be referred for the opinion of an Apex body. It is urged that in the instant case, the Assistant Commissioner of Police, Mattancherry, had referred the case to the expert body and the said body, after considering the materials, came to the conclusion that Crl.MC.No.3393 of 2016 4 medical negligence component was absent. However, the panel noticed that no evidence was produced by the hospital authorities to show that emergency arrangements were made by the hospital authorities while shifting the patient from Fathima Hospital, Perumpadappu to the Medical Trust Hospital, Kochi. It is further argued that the records reveal that the Anesthetist, Dr.Pradeep Kumar, and the staff of the hospital were entrusted with the responsibility to shift the patient to the Medical Trust Hospital, Kochi, in an ambulance. Even from the F.I. Statement, it is discernible that when the ambulance proceeded to a distance of about 150 metres from the hospital, the bystanders, who were in the ambulance, tried to manhandle the driver and others. At the instance of the driver, Crime No.114 of 2014 of the Palluruthy Police Station was registered, inter alia, under Section 323 of the IPC. Reliance is placed on the decisions of the Apex court in **Martin D'souza v. Mohd.Ishfaq** (2009(3) SCC 1), **Kusum Sharma v. Batra Hospital & Medical Research Centre** ( 2010 (3) SCC 480), and **V.Kishan Rao v. Nikhil Super Speciality Hospital and another** (2010(5) SCC 513) and it is argued that when the Medical Board found that there was no medical negligent component, the continuation of prosecution based on the final report is illegal and, therefore, it is liable to be quashed. Crl.MC.No.3393 of 2016 5 4. Sri.Antony Shyju, the learned counsel appearing for the 2[nd] respondent, has opposed the prayer. He would contend that it was the responsibility of petitioner herein to accompany the patient and her failure to do so would amount to criminal negligence on her part. At any rate, the proceedings are not liable to be quashed in exercise of powers under Section 482 of the Cr.P.C., submits the learned counsel. 5. I have considered the submissions advanced. It appears from the records that Smt.Anna Joji, fourth gravida, with history of two full term normal deliveries and one ectopic gestation was undergoing prenatal check up at the Fathima Hospital from 21.10.2013. During the 3[rd] trimester of her pregnancy, she was treated for respiratory infection and she was admitted for safe confinement on 22.01.2014. Induction of labour was done on 23.01.2014 during the early hours and she delivered a child later in the evening. Immediately, after delivery, she developed postpartum hemorrhage and was shifted to the operation theater. Under anesthesia, exploration and suturing of cervical tear were carried out. She was also administered 10 packed cell transfusion. However, immediately thereafter, she went into Disseminated Intravascular Coagulation (DIC) and she was decided to be shifted to a higher centre. Crl.MC.No.3393 of 2016 6 6. The prosecution attributes negligence firstly on the allegation that the treatment imparted was negligent. It is also alleged that the patient was shifted to a higher centre without providing emergency arrangements. Some negligence is also attributed to the driver of the ambulance for ditching the patient while she was being taken to the higher centre and for causing the delay. 7. It appears from the records that based on the request of the Assistant Commissioner of Police, Mattancherry, a Medical Board was constituted with the District Medical Officer as Chairman, a Senior Consultant, Obstetrics and Gynecology of the General Hospital, Ernakulam, as the expert. The Professor and Police Surgeon, T.D. Medical College, Alappuzha and the District Government Pleader, Ernakulam, were the committee members. After perusing the records, they had submitted a report on the following lines. “While going through the case records and related documents, we found that, during the transit of patient from Fathima Hospital, Perumpadappu to Medical Trust Hospital, Kochi whether required emergency arrangements made or not (like oxygen, inhalation, expert personnel follow with patient) is not documented, no other medical negligence component noticed as per this records. To contradict the complainants versions, there is no evidence produced by the hospital authorities, so concluded as the doctor is responsible person to accompany and proper experts along with the patient and that is not done.” Crl.MC.No.3393 of 2016 7 8. In other words, the expert body did not notice any medical negligence component after perusing the hospital records. A professional can be held liable for negligence only in those cases, where it is shown that he was not possessed of the requisite skill which he professed to have possessed or did not exercise with reasonable competence in the given case, the skill which he did not 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. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. In the case on hand, the report of the medical board clearly shows that the petitioner herein cannot be held liable for negligence. In view of the report of the expert panel, the investigating agency was not justified in concluding that the petitioner was liable to be proceeded with for negligence. 9. Insofar as the failure to provide emergency arrangements is concerned, it is the case of the petitioner that the bystanders of the Crl.MC.No.3393 of 2016 8 patient became violent and they insisted that the patient should be shifted to a higher centre without delay. According to the petitioner, the services of Dr.Pratheep, an Anesthetist, were provided, but he was pushed away. The records also reveal that while the patient was being taken to the hospital, some incident involving the driver of the ambulance and the bystanders, who were in the vehicle, took place. A crime has also been registered at the instance of the driver arraying the de facto complainant and the husband of Anna Joji as the accused. The petitioner herein cannot be held responsible for the incident which took place inside the ambulance. 10. As cautioned by the Apex Court in _**Jacob Mathew**_ (supra), the criminal process once initiated subjects the medical professional to serious embarrassment and harassment. If, at the conclusion of proceedings, the professional is acquitted or discharged, the loss that he suffers cannot be compensated. Having considered the entire facts, I am of the view that this is a fit case, wherein the criminal proceedings initiated against the petitioner herein can justifiably be quashed invoking the inherent powers of this Court under Section 482 of the Cr.P.C. In the result, this petition is allowed. Annexure-V final report and all proceedings pursuant thereto against the petitioner now Crl.MC.No.3393 of 2016 9 pending as C.C.No. 420 of 2016 on the file of the Judicial First Class Magistrate Court-II, Kochi are quashed. ## **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** IAP Crl.MC.No.3393 of 2016 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE I** **TRUE COPY OF THE STATEMENT DTD.24.1.2014 GIVEN BY JOSE, BROTHER-IN-LAW OF THE DECEASED, BEFORE THE INSPECTOR OF POLICE, PALLURUTHY POLICE STATION.** ## **ANNEXURE II** **TRUE COPY OF THE FIRST INFORMATION REPORT DTD.24.1.2014 IN CRIME NO.98/2014 OF PALLURUTHY POLICE STATION.** **ANNEXURE III** **TRUE COPY OF THE POST-MORTEM CERTIFICATE DTD.24.1.2014 ISSUED BY THE ALAPPUZHA MEDICAL COLLEGE.** **ANNEXURE IV TRUE COPY OF THE REPORT OF THE COMMITTEE DTD.25.5.2015.** **ANNEXURE V** **CERTIFIED COPY OF THE FINAL REPORT DTD.4.3.2016 IN CRIME NO.98/2014 OF PALLURUTHY POLICE STATION.** **ANNEXURE VI** **TRUE COPY OF THE ANAESTHETICS RECORD OF FATHIMA HOSPITAL, PERUMPADAPPU, KOCHI, DTD.23.1.2014.** **ANNEXURE VII TRUE COPY OF THE COMPLAINT AND THE FIR DTD.28.1.2014 IN CRIME NO.114/2014 OF PALLURUTHY POLICE STATION.** **RESPONDENTS' EXHIBITS:** NIL