State of M. P vs Bharati Patidar and Others

C. K. Prasad, J.

Criminal Revision 192/93 has been filed by the State of M. P. and Misc. Cr. Case No. 2330/93 (Rajendra Prasad Dixit v. Dr. Bharati Patidar & others) has been filed by the petitioner. Rajendra Prasad Dixit, both of them being aggrieved by the order dated 17.5.1993 passed by the Second A. C. J. M. Indore in Criminal Case No. 3433/92, whereby the learned Magistrate had directed for discharge of the non-applicant''s for offence u/s. 304-A I. P. C.

This order shall also govern Misc. Criminal Case No. 2430/93 Rajendra Prasad Dixit v. Dr. Bharti Patidar and others).

I proceed with this judgment remembering what Lord Denning said in Roe v. Minister of Health and another (1954 II) Q. B. 66).

One final word. These two men have suffered such terrible consequences that there is a natural feeling that they should be compensated. But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for every thing that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.

A lady, Sharmila, was admitted in Ajinkya Nursing Home on 3.10.1991. On examination by the doctor her blood pressure was found to be 100/31. She was pregnant at the time of admission and her expected date of delivery was 2.11.1991. Due to foetal distress, on the advice of the doctor, she was subjected to Lower Segment Caserian Section (L. S. C. S. Surgical Operation). The aofresaid operation was done under spinal anasthesia which led to breathing complication. Attempt was not made by the doctors to resuscitate the patient nor she was sent to intensive care unit. In fact, the relations of the deceased were kept in dark and all the time her family members were told that she is in senses. The Nursingh Home did not have Boyles apparatus and even abmubag. As Nursing Home where Sharmila was admitted did not had any facility for crisis management she was shifted to the intensive care unit of the Choithram Hospital on 7.10.91 where she died at 11.00 p. m. on 17.10.91. The police after investigation submitted charge sheet against the accused persons u/s 304-A of the I. P. C. Non-availability of Ambubag i.e. the equipment necessary for venlillation, and consequently the doctors failure to resuscitate the patitent, ultimately leading to her death, were considered to be negligent act.

The non-applicants No. 3 and 4 are doctors and owners of Ajinkya Nursing Home. The non-applicant No. 1 is the Surgeon, who performed the operation and the non-applicant No. 2 is the Anasthesist.

The learned Magistrate while passing the order of discharge came to the conclusion that the statement of the witnesses recorded during the course of investigation do not suggest that the deceased was subjected to surgical interference without consent and as such accused persons were protected u/s 92 of the Indian Penal Code. The learned Magistrate was also of the view that it has not established that excess doses of anasthesia was administered to the patient and she went on to say that the patient''s sensivity might have been on the higher side and as treatment is meted out on standard dose, it cannot be presumed that the act of the accused persons were negligent.

Shri Mukati, Shri Sethi, Shri Sharma and Shri Jaisingh represented T. N. A. Nos. 1 to 4 respectively.

Shri S. Kulshreshtha, appearing on behalf of the petitioner in Misc. Cr. Case No. 2330/93 and Shri G. Desai, Govt. Advocate, appearing on behalf of the petitioner in Criminal Revision No. 192/93 have submitted as follows :

(1) That the learned Magistrate has passed the order of discharge without even referring to the evidence collected during the course of investigation;

(2) Whether the doctors are protected u/s 92 IPC is a matter of trial and the learned Magistrate ought not to have discharged the accused persons on this ground.

Shri Desai in addition has urged that the four doctors who were in one way or the other connected with the operation of the deceased, are throwing blame on each other, itself shows that this is a fit case, which must go to trial.

Shri Sharma appearing on behalf of the respondent No. 3 submitted and to use his own words "the present Nursing Homes cannot be compared with that of Beach Candy and Appolo Nursing Home etc. " and Boyles ventilation machine is a costly machine and its non-avilability in the Nursing Home will not ipso facto indicate negligence. In the submission of Shri Sharma Boyles ventilation machine is a sophisticated equipment and the same is available only in best Nursing Homes and Hospitals of the country.

Shri Singh and Shri Sharma laid emphasis that the decision of surgical interference with the patient or a particular mode of treatment is required to be judged solely by the medical experts and no negligence can be attributed in the present case when the doctors decided to go for surgical interference as the patient was in foetal distress.

Shri Mukati representing respondent No. 1 has submitted that she was informed at 12 noon for surgical interference and what has happened prior to that was not her responsibility. It is also submitted on her behalf that the condition of the patient during the course of surgical interference is to be looked after by the Anasthesist and it was the responsibility of the Anasthesist/Nursing Home to see that equipment of ventilation i.e. Ambubag or Boyles ventilation machine were available and in case they had failed to provide for the same, she cannot be held responsible. It has been further submitted that functioning of the vital function of the body during the course of surgery is to be looked after by the Anasthesist and not the Surgeon. Therefore, it is submitted on her behalf that she cannot be held responsible for non-availability of Ambubag or Boyles machine, which deprived the patient''s ventilation immediately, ultimately leading her death.

My attention has also been drawn to the opinion of the expert as also the report of the Director Medicolegal Institute which indicate that the Surgeon was not responsible.

Statement of one Sadashiv recorded by the police during the coruse of investigation indicates that the Nursing Home did not had stretcher, operation table, and in the name of oxygen they had empty oxygen cylinders. Boyles ventilation machine was not there, not even Ambu Bag. That was obtained from another nursing home after the patient had breathing trouble because of spinal anasthesia.

Rakesh in his statement during the course of investigation has stated that the deceased was taken inside the Nursing Home on 7.10.1991 at 1.30 p.m. when the operation was going on. a compounder hurriedly came out from the O. T. and asked the said witness for key of the scooter. On enquiry being made by this witness the compounder has stated to him that he has to go to another Nursing Home. The said witness went along with him and the compounder asking him not to stop the engine of the scooter, went inside another Nursing Home and brought a Ambu Bag. Similar statement of procuring Ambu Bag, after the petitioner was surgically interfered has come in the statement of Narendra Prasad also. The compounder Kailash of Suyog Nursing Home from where Ambu Bag was procured, has also stated in his statement during the course of investigation that he handed over the same to a person of Ajinkya Nursing Home at about 2.30 p. m. and the same was returned to him at 7.30 p.m. on the said day itself. Ashutosh Dighe presented as Nurse in the Nursing Home has stated that she has passed the Higher Secondary Examination and has no qualification required for nurse, but working as such, in the Nursing Home.

Statement of Doctor Ashok Bajpai, recorded during the course of investigation is relevant. He has stated that in spinal anasthesia, the lower part of the body becomes numb and in case the anasthesia goes above i.e. towards survical it mainly causes respiratory arrest. However, if the same is revived within 2 to 3 minutes immediately then brain is not damaged and for revival immediate ventilation is required and for that Boyles machine or ambu bag is necessary.

The report of the Director Medicolegal Institute was also obtained by the police during the course of investigation. The Director in his report has stated as follows:

It is true deceased was given spinal anasthesia and nearly after anasthesia whole complications developed. Spinal anasthesis can give all the complications which are seen in General Anasthesia but there is one specific difference i.e. "direct effect on the respiratory centre and circulatory centre by direction action this is danger in patient in labour "(SCAR- BOROUGH 1958, VANDAM AND TRIPPS 1960 GRADOL Legal Medicine IIIrd Edition page 456).

The reading of the report of the doctor suggest that there was negligence on part of some one connected with the operation. However, he opined to take into consideration the detailed circumstantial evidence.

During the course of investigation the Investigating Agency has also obtained a report given by three doctors of M. Y. Hospital, Indore, and those are Professor and Head of Department of Surgery, Reader and Head of the Department of Anastheology and Lecturer and Head of the Department of Forensic Medicines and Toxicology. In their Joint report they have stated as follows:

As per record Ambubag was used for ventilating the patient. It is used where Boyles Anasthesia machine is not available. No doubt Boyles Anashesia machine is not available. No doubt Boyles Anasthesia Machine is superior method for ventilation to protect.

Having considered the submissions of the learned counsel I do not have the slightest hesitation in accepting the proposition that it is the doctors who are the hest judge in the matter as to whether a patient requires surgical interference or not, of course, the same has to he taken bona fide and with caution. Therefore, no grievance can be made against the doctors for undertaking surgery.

True it is, that India is a poor country and its citizens are poor and are not expected to have an ideal situation of a Nursing Home, but at the same time, one cannot loose sight of the fact that whenever a patient is admitted, in a place called Nursing Home, it must possess the basic minimum facility, and I am firmly of the view that stretcher, operation table, oxygen cylinder, equipment of ventilation etc., are the basic requirements of a Nursing Home, which the present Nursing Home lacked.

Statements of the aforesaid persons recorded during the course of investigation do prima facie suggest that spinal anasthesia was given to the patient and surgical interference made when there was no abmubag. which is required for ventilating a patient. It is also relevant here to state that in a spinal anasthesia respiratory problem requiring ventilation may not be common but it is not so uncommon also. To overcome that ventilation is made by either Boyles anasthesia machine or in case of its non-availability by ambu bag.

The expert committee went on to say that whatever resuscitation machines were available at Ajinkya Nursing Home were used which has resulted into return of spontaneous cardiac and respiratory functions. During the course of investigation it was projected that the patient was ventilated by ambubag. However, from the statement of the witnesses recorded during the course of investigation, to which I have referred to above, it is prima facie established that the Nursing Home did not had Ambu Bag and after the surgical interference was made and the patient went into distress the Compounder was sent to have it from another Nursing Home and the same was obtained by 2.30 p.m. The record of Ajinkya Nursing Home suggest that the process or surgical interference started at 2.00 p.m. Therefore, I am of the view that the Ambu Bag was not available during the course of surgical interference and it was only brought after the patient went into respiratory depression. The attending doctors themselves got in distress and searched for Ambu Bag. The in-door sheet of the Nursing Home indicates that after the spinal anasthesia the patient started difficulty in breathing and she went into respiratory arrest.

As I have stated earlier, the Nursing Home did not possess the equipment for ventilation and the claim made by them prima farce seems to be incorrect. The In-door Sheet even went to claim that after the ventilation the petient resusciated with pulse of 120 per minute and B. P. 140/110 was found to be incorrect by the Director of Medico Legal Institute, who has staled that claim made in the operation note that respiration came at 3.00 p.m. does not seem to be correct. This also prima facie suggest that the petient was not immediately ventilated and the reason therefore was non-availability of ventilating equipment.

The material collected during the course of investigation and referred to above depicts a very sorry state of affairs in a Nursing Home in the Town of Indore. Indore, the Industrial Capital of the State, had a Nursing Home called Ajinkya Nursing Home, which did not had operation table, oxygen cylinder, equipments for ventilation, trained nurse and not even a stretcher. Patients are admitted and surgical interference made but it did not possess Boyles Machine, not have even ambubag, the equipment required for ventilation.

From the facts enumerated above, what can be safely inferred that when the patient was surgically interferred in the Nursing Home, owned by non-applicants Nos. 3 and 4 did not had the equipment for ventilation and in case of spinal anasthesia, respiratory problem being known, the Nursing Home owned by non-applicants No. 3 and 4 as also the Anasthesist i.e. non-applicant No. 2 had the responsibility to keep ventilation equipment in readiness. It has come to light during the course of investigation that whole respiratory problem started after spinal anasthesia was administered and the patient was not ventilated immediately. As such they cannot escape the liability and they are liable to be tried for negligence. However, in view of the materials collected during the course of investigation negligence cannot be attributed to the Surgeon non-applicant No. 1. Nothing has been brought to my notice showing negligence on part of the Surgeon non-applicant No. 1.

For the reasons stated above, the order of the learned Magistrate so far it relates to non-applicants No. 2 to 4, is set aside. The order of discharge in relation to non-applicant No. 1 is maintained for the reasons enumerated herein before. The learned Magistrate is directed to proceed against non-applicants Nos. 2 to 4 in accordance with law. Any observation made in the case, shall not prejudice any party.