Sanjeevan Medical Research Centre (Private) Ltd. and Others vs State of NCT of Delhi and Another

Shiv Narayan Dhingra, J.—By this petition, the Petitioners have assailed order dated 4th June, 2010 passed by the learned MM taking cognizance of the offence u/s 304A IPC against the Petitioners on complaint made by Respondents Dr. D.K. Satsangi and Mrs. Poonam Satsangi. Dr. D.K. Satsangi is father of deceased who, it is alleged, died due to medical negligence of Dr. Anupam working with Petitioner No. 1.

A complaint was filed before the learned MM u/s 156(3) Code of Criminal Procedure and after taking cognizance learned MM directed Director of All India Institute of Medical Sciences, Ansari Nagar to constitute a medical board comprising of doctors specialized in the field for examining the matter and giving their opinion if there was a medical negligence on the part of the accused persons in treating Rahul Satsangi or not. This Board was constituted by AIIMS. The Respondent/complainant had simultaneously approached The National Consumer Disputes Redressal Commission and the Commission also gave directions to the Board of Doctors of AIIMS to give its opinion about the medical negligence.

The issue of medical negligence was initially referred by the police to Directorate of Health Services, Govt. of NCT Delhi on receiving a complaint from the complainant. The Directorate of Health Services had constituted a Committee consisting of three doctors viz. Dr. S. Bhattacharjee, Director Services Dr. L.C. Thakur, Expert Member, Professor Neurology, GTB Hospital and Dr. S.V. Madhu, Expert Member, Professor Medicine, GTB Hospital. Dr. S. Bhattacharjee was the Chairman. The Board constituted by Directorate of Health Services had given its opinion on 17th February, 2010 and in opinion of the Board the treatment and management given to the patient was appropriate and prima facie there was no rashness/negligence/omission involved in the treatment of the patient.

The AIIMS Board gave its opinion on 26th October, 2010 to the following effect "There is no evidence to suggest that there was any gross negligence on the part of the Treating Doctor/Hospital in the treatment of late Mr. Rahul Satsangi in the said matter". The Board of Doctors of AIIMS consisted of Dr. Rita Sood, Chairperson and six more doctors. The Board had gone through entire treatment record of the patient.

It is submitted by Counsel for the Petitioner that in view of the opinion of the two Boards - one of Directorate of Health Services and other of All India Institute of Medical Sciences, both being independent bodies, and in view of judgments of Supreme Court no case for medical negligence could proceed against the Petitioners and the complaint against the Petitioners be quashed. On the other hand, learned Counsel for the Respondent submitted that the two Boards have not considered the relevant documents and history of the patient and the opinion given by the Medical Board was not reliable and the Respondents should be given an opportunity to prove that the patient was treated with utmost negligence. The other factor on which the Respondents have relied is the order dated 3rd November, 2010 of Delhi Medical Council holding Dr. Anupam guilty of negligence and taking disciplinary action against him.

I have gone through the order of Medical Council and the same is silent about the opinions given by other two Boards and has not discussed these opinions at all. The order also does not show as to who, on behalf of Delhi Medical Council considered the issue of Medical negligence of Dr. Anupam. In any case, Delhi Medical Council has given its own reasons which are contradictory to the reasons given by the other two Boards.

On medical negligence Supreme Court has laid down certain precautions to be taken while summoning doctors, in judgments Jacob Mathew Vs. State of Punjab and Another, , Martin F. D''Souza Vs. Mohd. Ishfaq, and Kusum Sharma and Others Vs. Batra Hospital and Medical Research Centre and Others, . The basic and underlying principle of these three judgments and other similar judgments is that every careless act of a 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. It has been emphasized by Court that mere error of judgment or an accident does not involve criminal liability or mere inadvertence or some degree of want of adequate care would not create criminal liability though it may create civil liability. It has been ruled that a private complaint may not be entertained unless complainant has produced prima facie evidence before the Court in the form of credible opinion given by another competent doctor. The investigating officer should, before proceedings against the doctor, accused of rash and negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service. It was held by Supreme Court in Martin F. D''Souza v. Mohd. Ishfaq (supra):

We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the doctor/hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew case, otherwise the policemen will themselves have to face legal action.

In Kusum Sharma v. Batra Hospital (supra) Supreme Court observed that negligence cannot be attributed to a doctor so long as he performs his duty with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

In the present case, two Boards independent of each other; one of AIIMS and other of Directorate of Health Services have given clean chit to the Petitioners. In view of opinion of two expert bodies exonerating Dr. Anupam for gross negligence and in view of Supreme Court holding that Court cannot be an expert in such cases and the opinion regarding medical negligence given by an independent board shall have more credibility, I consider that no useful purpose shall be served in proceeding against the Petitioners.

I therefore allow this petition. The criminal complaint filed against the Petitioners is hereby quashed.