INDIRA RAO, OBSTETRICIAN AND GYNECOLOGIST Vs. STATE OF KARNATAKA REPRESENTED BY SUPERINTENDENT OF POLICE

JUDGEMENT

(1.) These petitions are heard and disposed of together, as the primary, ground of challenge to the pending proceedings against the petitioners are identical.

(2.) The petitioner in the petition in Cri.P 3686/ 2013 is a Gynaecologist & Obstetrician, she is arrayed as accused No. 1 and has been charge-sheeted for offences punishable under Sections 304A, 201,315 read with Sec. 34 of the Indian Penal Code, 1860. (Hereinafter referred to as the 'IPC' for brevity) in case No. CC 24548/2011, on the file of the Court of XI Additional Chief Metropolitan Magistrate, Bangalore. The case has been committed to the Court of Sessions and is numbered as SC 1544/2011. The petitioners have sought that the charge sheets filed, the committal order by the Magistrate and further proceedings before the Sessions Court be quashed. The petitioner's application seeking discharge, under Sec. 227 of the Code of Criminal Procedure, 1973, (Hereinafter referred to as the 'CrPC', for brevity) having been rejected, the petitioners have not chosen to question the same in the present petitions. However, there is a general prayer that all further proceedings be quashed. The petitioner in the writ petition in WP 12723/2015 is a Radiologist by profession and he is arrayed as accused No. 7 in the very case involving the petitioner in the first of these petitions. His application seeking discharge also having been rejected by the Sessions Court, the present petition is filed. The facts and circumstances of the case, as stated, are as follows. The complainant, Parikshit Dalai, had filed a complaint before the Pulakeshinagar Police, Bangalore, as on 16-4-2010, to the effect that he had admitted his wife, Kapali Patne to Santosh Hospital for elective Caesarean Sec. on the same day. That at about 9.30 a.m., the patient was taken to the Operation Theatre (OT). At about 10.15 a.m., while he was waiting outside the OT, he noticed that suddenly there was a flurry of activity and all the senior doctors of the hospital, including the Chief Medical Officer, appeared to rash into the OT. On enquiring with one of the personnel attending, the complainant is said to have been informed that the operation was yet to commence. It is stated that at about 10.40 a.m., Dr.Indira Rao, the petitioner in the first of these petitions, is said to have called the complainant to a room adjoining the OT and had informed him that they had administered a general anaesthetic drag to his wife and though it was a one in a million case of adverse reaction, the patient is said to have reacted violently and that she had a severe anaphylactic attack and frantic efforts were being made to revive her and that they would be shortly moving her into an Intensive Care Unit (ICU). Dr Rao is also said to have informed the complainant that the patient's heart beat was very low. The patient was said to have been taken to the ICU at about 10.50 a.m. At about 12.10 p.m., the Complainant is said to have been informed that both the mother and child (in her womb) could not be saved. The complainant is said to have lodged a police complaint alleging that the doctors, staff and management, including these petitioners were responsible for the untimely death of his wife and unborn child. The police having registered a case and after investigation having charge-sheeted the petitioners and after further proceedings as already noted, the present petition is filed. Incidentally, the complainant has also approached the Karnataka Medical Council seeking action against the petitioner and other doctors. The said proceedings which had commenced have, however, been stayed in view of the complainant himself having preferred a writ petition before this court in WP 1336-1337/2012, and by virtue of an order of stay granted therein. The said petition is pending consideration. The Complainant has also filed a claim for compensation in a sum of Rs.24.91 Crore against the hospital, pending before the National Consumer Disputes Redressal Commission. In the above background, the primary contention in these petitions is that on the face of it, the allegations attributed to the petitioners even if accepted to be true, can at best be described as a negligent act for want of due care and precaution. For the said act of negligence, the petitioners may be liable in tort.. But the alleged carelessness or want of due attention and skill cannot be described as being so reckless or grossly negligent as to make her criminally liable. It is further elaborated that the charges levelled against Dr. Rao, as seen in the summary of the charge-sheet, is that she and other accused persons had negligently allowed the patient to fall off the stretcher or the operation table, resulting in a fracture and internal bleeding. And in not readily providing efficacious treatment. Secondly, that she had failed to conduct a post-mortem Caesarean Section, within 4 to 5 minutes of cardiac arrest, to save the intra uterine foetus. And in conspiracy with others having tampered with and altered the medical records particularly with reference to the time at which particular action was taken or as to the condition of the patient, during the crucial period of the attempt to revive the fast sinking patient, and to make it seem that the patient died at 11.50 a.m.

(3.) It is contended that it is the settled legal position that in circumstances such as are alleged, even if the charges levelled against the accused are accepted as true, they would not constitute criminal acts - in the light of the law laid down by the Apex Court in the case of Dr. Suresh Gupta Vs. Govt, of NCT of Delhi, AIR 2004 SC 4091 and which position of law has been affirmed subsequently by a three Judge Bench of the Apex Court in the case of Jacob Mathew Vs. State of Punjab, (2005) 6 SCC 1 : (AIR 2005 SC 3180). It is contended, given that the petitioner, Dr. Rao, could not be criminally prosecuted even if all the allegations were true, a prima facie perusal of the admitted medical reports and documents on record would disclose the complete innocence and lack of liability both in civil and criminal law, on facts. It is pointed out that as seen from the medical records, Dr. Rao was present when the patient's vital parameters started to fail, Dr. Rao was actively assisting in the resuscitation process, the team was joined by several senior doctors, even according to the complainant. It is asserted that the complications had manifested on the administration of the anaesthetic drug and induction agents and certainly be- . fore the intervention by Dr. Rao, the Obstetrician. The anaesthetist was frantically managing the patient with the assistance of senior doctors, including a Physician, yet another anaesthetist, medical staff and the Chief Medical Officer of the hospital. In other words, the patient was in the hands of appropriate specialists and particularly the anaesthetist, who was primarily responsible for management of the patient after onset of complications which was before the intervention by the Obstetrician. And unless the patient was resuscitated and the anaesthetist indicated the patient's fitness for intervention by the Obstetrician, she could not have intervened even to save the unborn child's life at the cost of the mother's safety. It is sought to be emphasised that the record indicates the manner in which the anaesthetist had sought to manage the patient to resuscitate her, till she was ultimately declared dead at 11.50 a.m. And from the notes made by Dr.Rao, it is seen that she had called the ultrasonologist at 11.30 a.m., by way of prudence to confirm her diagnosis that there was no foetal heart sound. Hence, it is contended that it could not be expected of Dr.Rao to intervene during the desperate bid to save the patient, and to attempt to deliver the unborn child, when saving the patient's fife was the foremost object. Therefore, there was no occasion to deliver the child prior to 11.50 a.m. In other words, the allegation that the petitioner had failed to save the unborn child, which she could have done within 5 minutes of the death of the mother, was a possibility. But given the circumstances, the petitioner had no window of opportunity, as the baby had died before the mother had been declared dead. In the circumstances, it is contended that the allegations as against Dr. Rao, could at best be described as an accident and an error of judgment and would not call for criminal prosecution.