Kerala High Court Quashes Proceedings Against Aster Medcity, Doctors Accused Of Flouting Organ Transplantation Protocol

The Kerala High Court on Tuesday quashed the criminal proceedings against Aster Medcity and nine doctors who had been accused of violating the provisions of the Transplantation of Human Organs and Tissues Act, 1994.

Justice Ziyad Rahman A.A. passed the order. 

Factual Background

The case arose from a complaint filed by Dr. S. Ganapathy against Aster and the accused doctors alleging that the provisions of the Act,1994 were violated while performing organ transplant at the hospital.

The matter pertains to the declarations of brain death made by the medical practitioners in Aster Medcity, with with the help of the other doctors empaneled by Appropriate Authority constituted under the provisions of the Act, 1994, of a 19 year old patient named Ajay Johny, and a lawyer Adv. Suresh, and the transplantation of liver of the said Johny initially to Suresh, and later to another patient.

Johny, who was injured in a car accident, was admitted to the 1st petitioner hospital in March, 2019. The complainant alleged that the doctors attempted to transplant the liver of Johny to Adv. Suresh, who had been admitted there earlier for liver cirrhorsis, even before confirming the Johny's brain stem death. The complainant alleged that the doctors knew that Adv. Suresh did not require liver transplantation and was leading a normal life, and the doctors, by compelling him to undergo such transplant, had committed the offence of cheating. It was alleged that Adv. Suresh was informed of the brain death of Johny 12 hours before the declaration of the latter's brain death, thereby violating the provisions of the Act, 1994, and various rules thereunder. The complainant pointed out certain shortcomings in carrying out the tests for the purpose of declaration of brain death of Johny, and averred that the accused persons had hatched a conspiracy to carry out the transplantation. 

However, subsequently, Adv. Suresh passed away due to certain medical complications, and the complainant alleged that Adv. Suresh's wife was also persuaded by one of the accused doctors at the hospital to donate the organs of her husband. The complainant alleged that Adv. Suresh had been declared dead 16 hours before the actual declaration of brain death. The complainant thus alleged that the hospital and the accused doctors had flouted the protocols for certifying brain death and harvesting the organs for transplantation.

Judicial First Class Magistrate Court, Ernakulam, had taken cognizance of the matter in November 2021, and issued summons to the accused persons..

It is against the same that the petitioners filed the present plea before the High Court seeking to quash the proceedings against them, claiming they had adhered to the rules and protocols while certifying the brain death of the deceased.

Findings of the Court 

The Court noted that certain Government Doctors had also been named as accused persons in the case, since they were members of the Board of Medical Experts in their capacity as empanelled doctors for the conduct and certification of the brain death test of Advs. Suresh and Johny. It was contended on behalf of these doctors by their counsel that sanction under Section 197 Cr.P.C. ought to have been obtained before cognizance was taken, which was not complied in the present matter. The Court in this aspect, rejected the argument of the complainant that sanction is required only in respect of public servants not removable from their office save by or with the sanction of the Government, and the Government Doctors in the present case would not come within the ambit of the same. It also noted that anything done by a public servant in the discharge of his duty or in the purported discharge of the duty would come under the protective umbrella of Section 197 Cr.P.C. 

"The offences alleged to have been committed by them while they were in discharge of the said duties, and therefore, they are entitled to protection as contemplated under section 197 of the Cr.P.C. In this case, admittedly, the learned Magistrate has taken cognizance of the offences against the said accused without obtaining permission from the Government under section 197 of the Cr.P.C. Therefore, the order of taking cognizance is without following the mandatory requirement of section 197 and hence all further proceedings against the accused Nos 8,11 and 13, are liable to be quashed on that sole ground," the Court observed. 

The Court observed that the Offence under Section 18 of the Act, 1994 ('Punishment for removal of human organ without authority') would not be attracted in the present case since the transplantation was done in a Hospital having registration under Section 15 of the Act, the tests as contemplated under the Act and rules by the Board of Experts was conducted, and the same was also certified in Form 10 and signed by all the members of the Board of Experts. The Court could not find any reasonable grounds for attracting the offence under Section 18, as had been highlighted by the complainant. 

The Court also found force in the contention advanced by the petitioners that merely because Adv. Suresh had been informed in advance, anticipating the brain death declaration of Johny, the offence under the Act, 1994 could not be attracted. "This is mainly because the complainant does not have a case that the procedure for removal of the liver of Ajay Johny and transplantation of the same to Adv. Suresh were commenced before the brain death certification process of Sri. Ajay Johny was over," the Court observed while adding that there was nothing to indicate that no tests had been carried out, and the organ had been removed before conducting the tests. 

The Court went on to state that even if there were some minor discrepancies in the conduct of Apnoea tests, the same did not warrant prosecution for any of the provisions under the Act, 1994. 

As regards the offences of cheating and forgery alleged to have been committed by the petitioners also, the Court could not find any ground to indicate that the said offences had been committed by the petitioner accused persons. 

Medical Professionals Require 'Different Treatment' When Being Prosecuted

Relying on Jacob Mathew Case, the Court was of the opinion that medical professionals deserve a different kind of treatment when being prosecuted, because of the the peculiar nature of their profession, by which they are bound to explore and experiment, with the ultimate object of ensuring the welfare of the patient.

"More often, they will have to take momentarily decisions under distressed conditions and take risks, depending on their skills and abilities. There may not be much time to think before taking the decisions, and they have to proceed further on mere calculations. So long as such decisions are intended for the ultimate betterment of the patient, no prosecution can be permitted against them, even if something goes wrong during the said process," the Court noted. 

The Court thus observed that unless the materials based on which such allegations raised against medical practitioners are examined by the expert persons in the subject, it would not be proper to initiate further proceedings by the court on its own.

The Court added in this light that as per the Act, 1994, the right to prosecute is vested with the Appropriate Authority constituted under section 13 of the Act, which is an expert body of medical professionals. 

"Even though an individual is also permitted to file a complaint under the said provision, the said right can be exercised, only after giving a notice of his intention to do so, to the Appropriate Authority. Thus, the important role assigned to the Appropriate Authority in the matter of prosecution, clearly indicates the protection intended to be given to the Medical Professionals in respect of the prosecution of the offences contemplated under the Act. The said aspect also indicates the emphasis on the need to have a preliminary assessment of the allegations by a body of independent professionals having expertise, before a complaint is filed for criminal prosecution and the medical professionals are brought before the court of law as part of such prosecution," it added. 

The Court noted that in the present case, the Appropriate Authority had conducted an enquiry and submitted a report, wherein no malpractices had been found. Hence, the Court discerned that the scope for prosecution on the matters already considered by the Appropriate Authority, is limited and such a prosecution could only be permitted if the findings of the Authority were patently illegal and perverse. 

It is on these grounds that the Court quashed the criminal proceedings against the accused petitioners. 

Case Title: Aster Medcity & Ors. v. State of Kerala & Ors. and other connected matters

Citation: 2023 LiveLaw (Ker) 355

Counsel for the petitioners: Advocates P. Jayabal Menon, Rekha Agarwal, Laya Mary Joseph, Ajay Ben Jose, Harikrishnan S., O.V. Maniprasad, Jose Antony S., Shiv Shankar, Cherian Chacko Manayath, Anita Ann George, Ajit Joy, Aneesh James, and Sayujya

Counsel for the respondents: Senior Public Prosecutor Vipin Narayan, Public Prosecutor Seena C., and Advocates R. Renjith, Santhan V. Nair, Christeena P. George, Manjusha K., Smitha Philipose, Soumya Francis, Darsan Somanath, and P.R. Jayasankar

Click Here To Read/Download The Order