Dr. Vasumathy v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **TUESDAY, THE 23RD DAY OF JUNE 2020 / 2ND ASHADHA, 1942** **Crl.Rev.Pet.No.696 OF 2011** **AGAINST THE JUDGMENT DATED 28.10.2010 IN CRL.A.NO.508/2008 OF COURT OF SESSIONS, ERNAKULAM** **AGAINST THE JUDGMENT IN C.C. NO.604/2001 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE , ERNAKULAM** ## **PETITIONER/APPELLANT/ACCUSED:** **DR.VASUMATHY, ARATHY HOUSE, THIRUVANKULAM DESOM, THIRUVANKULAM.** **BY ADVS.SRI.SAJEEVU MATHEW SRI.VPK.PANICKER** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-682031.** ## **OTHER PRESENT:** **BY ADV.K.B.UDAYAKUMAR- P.P** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16-06-2020, THE COURT ON 23-06-2020 PASSED THE FOLLOWING:** **Crl.R.P.No.696 of 2011** ## **:-2-:** **Dated this the 23[rd] day of June, 2020** ## **O R D E R** The revision petitioner is a doctor in gynecology working in Athira Clinic Private Hospital in Thiruvamkulam Village. She was convicted of offence punishable under Section 304A IPC in C.C.No.604/2001 and sentenced to undergo a day's imprisonment till rising of court and pay compensation of Rs.3 lakhs to PW1 who is the husband of the deceased Viji, failing which she was directed to undergo simple imprisonment for six months. Though she preferred an appeal challenging the conviction and sentence, Crl.A.No.508/2008 was dismissed by Court of Sessions, Ernakulam, confirming the impugned judgment of the trial Magistrate. 2. She has now preferred this criminal ## **Crl.R.P.No.696 of 2011** ## **:-3-:** |revision challenging the concurrent finding of| |---| |guilty, sentence and award of compensation.| |3.<br>Deceased Viji was under the treatment of| |the revision petitioner since the month of May,| |1998 in connection with pregnancy. The prosecution| |allegation is that, though she had twin pregnancy,| |the revision petitioner failed to detect it either| |by scanning or other test available in the| |hospital. On 3.10.1998 at 6 a.m., the lady was| |admitted for delivery on complaint of labour pain.| |At 1 p.m. of the day, she delivered a still born| |baby. After 20 minutes, she delivered another child| |alive and then began bleeding profusely. PW1,| |husband of Viji was demanded to collect and bring| |blood which he after all the efforts taken,| |arranged by 3.00 p.m. But Smt.Viji breathed her| |last at 3.30 p.m.| |4.<br>The accusation against the revision| ## **Crl.R.P.No.696 of 2011** **:-4-:** petitioner is that she by her rash and negligent act caused death of Smt.Viji and child, committing an offence punishable under Section 304A IPC. 5. Prosecution examined Pws.1 to 11 and admitted in evidence Exts.P1 to P12. No defence evidence was adduced by the revision petitioner. She contended that she had been treating the deceased very carefully and death of the mother and child was not out of any medical negligence on her part. It was further contended that inspite of all earnest steps taken for saving their life, they succumbed for no fault of her. 6. Both the courts below on consideration of the entire evidence before them, found that she was grossly negligent and reckless in treating the deceased in connection with pregnancy and delivery. 7. In Ext.P2 case sheet, the cause of death of Smt.Viji noted was suspected amniotic fluid ## **Crl.R.P.No.696 of 2011** ## **:-5-:** embolism. This was, however, ruled out during postmortem and it was revealed in Ext.P8 postmortem certificate that the death was due to acute respiratory distress following delivery. The postmortem examination of the child revealed that it was still born. This conclusion arrived at by PW7 and PW8, the Professors in Forensic Medicine is unassilable and the concurrent finding of both the courts below is also to the same effect. 8. The sole question arising in this revision petition is whether the death allegedly caused to the mother and child could be said to be on account of the rash and negligent act of the revision petitioner. 9. The finding in Ext.P8 postmortem report as to cause of death is acute respiratory distress following delivery. The chance for cause of death due to amniotic fluid embolism was ruled out by ## **Crl.R.P.No.696 of 2011** **:-6-:** postmortem. Acute respiratory distress could be due to variety of reasons. Medical negligence cannot be imputed for that sole reason. In order to unearth the specific cause for death, Ext.P8 postmortem report has to be read along with Ext.P5 opinion expressed by the Medical Board led by PW3, DMOErnakulam. He explained on the basis of the postmortem report, the case sheet and other hospital records that death was due to hemorrhage following delivery. He stated that though postpartum bleeding started at 1.30 p.m. on 3.10.1998, blood was transfused only at 3 p.m. for no good reasons for the delay. Even then only one unit of blood was given and the occurrence of delay is one of the reasons of death of Smt.Viji. 10. The first question is whether the above finding of the Medical Board is right and supported by materials and convincing evidence. The two ## **Crl.R.P.No.696 of 2011** ## **:-7-:** courts below accepted the medical opinion and found that the revision petitioner was indeligent and acted negligently in giving blood to the patient in time. In my view also, this appears to be correct in the light of the oral evidence on record. PW1 the husband of the deceased said that he was asked to collect blood at 12.30 p.m. He went to IMA, Ernakulam, and brought the blood by 3 p.m. The death of his wife occurred after his arrival and half an hour at 3.30 p.m. The time of death is not a disputed fact in this case. Same thing was said by PW2, the co-sister of the deceased also. She also said that after arrival of PW1 with blood in the hospital, the patient died. There is nothing to indicate that blood was transfused to the body of the deceased immediately after he started bleeding. In every private hospital where surgery is performed, there ought to be adequate arrangements ## **Crl.R.P.No.696 of 2011** ## **:-8-:** for blood transfusion in case of an emergency. There is no explanation by the revision petitioner as to why the transfusion of blood was delayed in the case of the deceased. Even otherwise also, as indicated in Ext.P5, only one unit of blood was given to her, which by all means was insufficient. PW3 who led the Medical Board explained that there was contraction of spleen and the internal organs were pale, thereby meaning that uninterrupted bleeding was a major cause for death. I concur with the finding of both the courts below that this conduct of the revision petitioner amounted to rash and negligent act. 11. Another conduct of the revision petitioner amounting to negligence is referred to in Ext.P5 as having led to the death of Smt.Viji. It is stated that revision petitioner failed to diagnose twin pregnancy and classify it as high risk pregnancy. ## **Crl.R.P.No.696 of 2011** ## **:-9-:** This must be correct also. Relevant portion of the medical opinion in Ext.P5 is extracted below; “Postmortem bleeding started at 1.30 p.m. on the same day. Blood transfusion was given by 3 p.m. Only one unit seems to have been given. Postmortem certificate also shows the death was due to bleeding due to the contracted spleen and pale internal organs. Attending Dr failed to diagnose twin pregnancy and classify it as high risk pregnancy. Blood transfusion was started late and only one unit was seen given. There is negligence on the part of the attending Dr.” It is an undisputed fact that the deceased had been under the treatment of the revision petitioner for more than five months prior to her death. It is surprising that still twin pregnancy was not detected by the doctor. It could have been easily detected either by scan or other test ordinarily followed in the hospital. It is not explained by the revision petitioner as to why the deceased was not subjected to scanning. The revision petitioner raised a very faint defence that the patient did not co-operate for a scanning though it was ## **Crl.R.P.No.696 of 2011** **:-10-:** recommended. There is no convincing evidence to support this contention and even if it is assumed that there was reluctance on the part of the deceased also, it was the duty of a doctor to subject the patient to scanning to ensure that the life condition of the patient continued to be safe till the time of delivery. The appellate court, in my opinion, rightly concluded that the revision petitioner had an option to refer the patient to a government hospital if she was in any impecunious situation. As indicated in Ext.P5, an early detection of dual pregnancy would have prevented all the casualities. Therefore, I agree with the concurrent finding of both the courts below that failure to detect twin pregnancy in appropriate time amounted to a rash and negligent conduct of the revision petitioner. 12. The learned counsel for the revision ## **Crl.R.P.No.696 of 2011** **:-11-:** petitioner submitted that in order to fasten criminal liability on a medical practitioner on the charge of negligence, mere proof of negligence may not sufficient. It was argued that in the absence of adequate proof as to gross negligence or recklessness, a medical practitioner cannot be found guilty of offence punishable under Section 304A IPC. In this respect the learned counsel, cited two decisions of the Honourable Supreme Court reported in **Suresh Gupta v. N.C.T. of Delhi [2004(3)KLT 14 (SC)]** and **Jacob Mathew v. State of Punjab [2005(3) KLT 965 (SC)]** . 13. I find that both the courts below have also understood and considered the legal position in the right perspective and on facts and evidence, they concurrently held that the revision petitioner was grossly negligent. There is no reason for me to take a different view since the conclusion arrived ## **Crl.R.P.No.696 of 2011** ## **:-12-:** at appears to accord with facts, evidence and law. The impugned judgments of conviction and sentence have not been shown to be perverse, irregular or illegal. The failure to detect twin pregnancy at the appropriate time and also the delay caused in transfusion of blood are not matters which could be lightly taken in the absence of any plausible explanation of the revision petitioner. The negligence that occurred on the part of the revision petitioner cannot be excluded from the category of gross negligence in the facts and circumstances of this case. I fully concur with the findings arrived at by the trial as well as the appellate court. The impugned judgments are therefore are only to be confirmed. In the result, this criminal revision petition fails and it is dismissed. The revision petitioner will surrender before the trial court to suffer the ## **Crl.R.P.No.696 of 2011** **:-13-:** simple imprisonment for a day till rising of the court. She will deposit the amount of compensation as already ordered by the courts below, failing which, she will undergo the default sentence. The amount of compensation if deposited, shall be immediately released to the persons entitled thereto, without causing any delay in the matter. All pending interlocutory applications are closed. Sd/- **T.V.ANILKUMAR JUDGE** ami/