When The Patient/Family Members Give Consent For Operation, They Give Consent To Bear Its Consequences Too: Allahabad HC [Read Judgment]

The Allahabad High Court quashed criminal proceedings for medical negligence against two doctors and opined that "risk is always involved and when the patient/family members give consent for being operated, they give consent for such kind of operation to be conducted and to bear the consequences".

The matter was placed before Justice Dinesh Kumar Singh-I in an appeal filed by Dr. Md. Azam Hasin and Dr. Adil Mahmud Ali, through Advocate Bhanu Bhushan Jauhari. They sought quashing of proceedings initiated against them under Section 304A of IPC, pending in the court of Additional CJM.

The complaint was filed by the family of a deceased, who was admitted to the J.N. Medical Hospital after a road accident, but died after 23 days when Dr. Adil Mahmud Ali along with a nurse was in the process of cutting the tube which was installed in the chest of the patient.

As per the FIR, the doctor tried to cut the tube with the assistance of a blade in the presence of the patient's mother and sister and as soon as the same was cut, blood oozed out profusely, which the doctor could not stop and the patient was ultimately, pronounced dead.

The Appellants opposed the said FIR and contended that the charge-sheet was filed in routine manner, without making thorough investigation. It was further submitted that:

1. Dr. Hasin was dragged into the matter without any role in the entire incident and he could not be held accountable for the said death vicariously, as there is no such concept in criminal case of imposing liability vicariously.
2. Dr. Adil made his best efforts to take care of the patient/deceased, but he could not succeed in his effort, which resulted into the death of the deceased and the same could, at the most, attract civil liability and not criminal liability.
3. As per the Inquiry Committee of AMU, "such death occurs in very rare cases and it should not be expected from a junior doctor to think of such an uncommon procedural complication". Thus, Dr. Adil being a junior doctor could not be made liable for the mishap.
4. As per the report of Ethical Committee of the Uttar Pradesh Medical Council, in a case of rare complication, it would be unfair on the part of the junior doctor to expect of him to think of such an uncommon procedural complication. This clearly indicates that Dr. Adil, who was a junior doctor, could not be held liable for any intentional negligence, which resulted into the death of the deceased.
5. There was material contradiction between the FIR, as per which the patient died due to removal of chest tube, and the post-mortem report, as per which the cause of death was septicemic shock.
6. As per the law laid down by Apex Court in Martin F. D' Souza v. Mohd Ishfaq, (2009) 3 SCC 1, no court can issue process against a doctor before referring the matter to a competent doctor or a committee of doctors specialized in the field, relating to which the medical negligence is attributed. However, in the instant case, no committee of experts was constituted and the Inquiry Committee constituted by the order of Vice Chancellor of A.M.U. nowhere implied that Dr. Hasin could be held liable for criminal negligence.

The Govt. Advocate, S. P. S. Chauhan submitted on the other hand that:

1. The same Inquiry Committee of AMU clearly revealed that there was negligence on the part Dr. Adil because he conducted the procedure of Inter-coastal chest drain without taking proper care, in a private ward, in the absence of any nurse/para-medical staff and without there being any life-saving drugs with him to face any such eventuality. He also ought to have kept in mind the consequences in such kind of cases and should have explained them to the attendants of the patient.
2. The patient/deceased was being treated under the supervision of Dr. Hasin and it was he who had sent the junior doctor to remove the said tube from the chest of the patient/deceased and therefore, it cannot be denied that even he was rightly charge-sheeted for criminal negligence.

Findings

The court took into account the principles to be applied in a case of criminal negligence as set out by the Apex Court in Kusum Sharma & Ors. v. Batra Hospital and Medical Research Centre & Ors., (2010) 3 SCC 480, and held that no criminal liability appears to be made out against the Appellants.

It was stated that "for fixing criminal liability on a doctor or a surgeon, the standard of negligence required to be proved should be so high as can be described as "gross negligence" or "recklessness". Merely, lack of necessary care, attention or skill or mere inadequacy of some degree or want of adequate care and caution would not suffice to hold him criminally liable". Reliance was placed on Dr. Suresh Gupta v. Govt. of NCT of Delhi and Anr., (2004) 6 SCC 422, to state that a layman's opinion, that death was a result of gross negligence, could not be not strong enough to hold the Appellants criminally liable.

"There is no doubt that when a patient agrees to undergo medical treatment or surgical operation, every careless act of the medical man cannot be termed as "criminal". It can be termed "criminal" only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patient's safety and which is found to have arisen from gross ignorance or gross negligence. Where a patient's death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable", it was lastly stated. 

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