DHARMENDRA Vs. STATE

JUDGEMENT

(1.) The petitioners herein are Doctors by profession. They are facing trial in C.C.No.1486/2019 on the file of Judicial Magistrate-II, Coimbatore, for alleged negligence endangering the life by their act of omission to remove the gauze (3x3c.m) from the operation site of the patient's body after completion of surgery performed to the minor boy Master Vishnu son of Mr.K.Vinoth Kumar held on 08/09/2017. Subsequently, on coming to know that he/defacto complainant, had approached the police and lodged a criminal complaint that they called the parents of the minor boy to their hospital on 20/01/2018 and threatened them.

(2.) Contending that, the criminal proceedings initiated by the defacto complainant with a malafide intention to put pressure on the petitioners to settle the claim petition for Rs.90,00,000.00 (Rupees Ninety Lakhs) pending on the file of State Consumer Disputes Redressal Commission, Chennai and moreover, the alleged act of negligence will not fall within the scope of Sec. 337 of I.P.C since the non-removal of the foreign body (gauze) from the patient was not intentional. The Left cohen's trigonal ureteric reimplantation surgery performed to the minor boy aged 4 1/2 years old was a complicated and it took about 2 1/2 hours to complete. The foreign body (gauze) kept in the tissue to wipe the blood oozing at the time of surgery since it was difficult to differentiate the tissue and the gauze soaked in blood. In the course of investigation, the field Experts opinion was obtained and in the opinion of the Experts, the alleged act of omission will not amount to criminal negligence. In spite of the clear opinion by the committee of Experts, the Trial Court had taken cognizance of the final report and proceed with the trial.

(3.) The Learned Counsel for the petitioner, relying upon the judicial pronouncements on criminal prosecution for medical negligence, submitted that, the unjust prosecution of the petitioners are not sustainable in view of the dictum laid in Jacob Mathew's v. State of Punjab reported in (2005) 6 SCC 1 by the Hon'ble Supreme Court applying the Bolem's test, (i.e.,) to prosecute a medical professional for negligence under criminal law, it must be shown that the accused persons have done or omitted to do something, which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.