SUJOY DAS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The applicant, a part time general Surgeon working for E. S. I. Hospital in Margao, Goa has invoked the extraordinary jurisdiction of this Court under section 482 of the Code of Criminal Procedure, 1973 to quash and set aside the process issued against him under Section 304-A, I. P. C. for having caused the death of ganpati Keni.

(2.) The undisputed facts are as follows: the said Ganpati Keni, 26 years of age, was examined by the applicant on 25. 3. 03 and the examination disclosed that the said ganpati Keni was having right inguinal hernia after the anesthetist certified the said patient was fit to undergo surgery, the said patient was advised admission on 26. 6. 03 for operation/surgery on 27. 6. 03. After admission the patient was pre-operatively examined by dr. Martha Fernandes and on 27. 6. 03 the said patient was operated by the applicant under spinal anesthesia for right hernioplasty and after about half an hour the patient was shifted to the ward. At about 2. 30 p. m. the patient's B. P. was 110/80 but at about 4. 30 p. m. the patient's mother complained to the nurse on duty Mrs. Ninnette that her son was complaining of pain and she was told that the said pain was due to surgery but as the pain did not subside, the matter was reported to Dr. Vijayraj Desai, the Medical Officer on duty and Dr. Desai found that the patient was in severe pain, bleeding at the side of the surgery and there was swelling of scrotum and penis. Dr. Desai, therefore, informed the patient's mother that he was unable to do anything. The patient also complained to Dr. Desai about the pain in the abdomen but Dr. Desai found that his pulse and blood pressure were normal but since he found that there was a deep haematoma at the site of operation, Dr. Desai ordered a haemoglobin test to be done and he also told the mother of the patient that there was bleeding inside and the patient might have to undergo a second surgery. Coming back to the doctor's room, Dr. Vijayraj Desai informed the applicant and the applicant told Dr. Desai that nothing would go wrong because the haemotoma was self-limiting i. e. the bleeding would stop on its own and the applicant instructed Dr. Vijayraj to give compression bandage over the incision site, give injection and two more bottles of IV fluid which instructions he passed on to the staff nurse. He again examined the patient at about 11. 00 p. m. and found that the patient's pulse rate was rising and since he felt that the bleedings was continuing, he requested the applicant to come to the hospital and that he would send an ambulance to fetch him, if required, but the applicant told him that he was a bit busy and could not come and the applicant also told Dr. Desai that the patient need not be transferred anywhere else and that he would come in the morning and examine the patient. Probably because the patient's mother was a bit apprehensive, dr. Desai informed the applicant to speak to her but the applicant chose not to speak to her. Dr. Desai examined the patient at about 12. 00 midnight and found his blood pressure was normal and the pulse was 116/min. Dr. Desai examined the patient again the next morning i. e. at 6. 00 a. m. on 28. 6. 03 and his condition was the same as it was found at midnight. He examined him again at 8. 00 a. m. and at this time the pulse had increased to 120/min. and the blood pressure was lower than what it was at 6. 00 a. m. Dr. Pravin Bhat joined duty and replaced Dr. Desai and by then the haemoglobin report of the patient was received and was found to be normal. It appears that the applicant after having spoken to Dr. Vijayraj desai at about 11. 00 p. m. , spoke to Dr. Anita naik, the anesthetist and informed her that there might be a need for opening the operation of the patient Ganpati Keni and that she should be ready to come to the hospital if required, in case he received another call from the hospital.

(3.) The applicant examined the patient at about 10. 00 a. m. on 28. 6. 03 and at about 10. 50 a. m. the patient was operated again and Dr. Anita Naik was the anesthetist at the time. As the patient was conscious but sedated and responded to oral commands, he was shifted from the recovery ward to the male ward. The patient was monitored and blood transfusion was started at about 12. 45 noon. At about 6. 45. p. m. Dr. Francis pereira informed the anesthetist Dr. Anita naik that the patient was not conscious although he was put on oxygen and by 8. 00 p. m. or so the patient was also not responding to deep painful stimuli and his pulse was 109 beats/ min. , respiratory rate was 24/min but the blood pressure was 110/80 and the applicant as well as the physician Dr. Vibhav Gude were informed. The patient had an episode of convulsion and it appears that the applicant as well as the physician were unable to understand why the condition of the patient was deteriorating. By 9. 30 p. m. the patient was diagnosed as a case of intra-cerebral haemorrhage and advised CT scan and as this facility was unavailable he was sent to Goa Medical College, Bambolim accompanied by the said Dr. Anita Naik and the nurse Mrs. Ninnette. On admission, the patient was examined by the casualty Medical Officer and the senior Residents in Surgery and Medical, a CT Scan was taken which disclosed that the patient had bilateral symmetrical hypodensities in both high parietal areas suggestive of ischemia. An ultrasound was done which was normal. The patient was provided with conservative treatment but at about 9. 00 a. m. on 29. 6. 03, the patient's was found not to be recordable, beating was laborious and the condition of the patient deteriorated further. At about 4. 00 p. m. on 29. 6. 03, the patient was referred to anesthesia resident for transferring to ICU and to be put on the ventilator but there was no vacant ventilator available. The conservative treatment continued and the condition of the patient continued to deteriorate gradually and ultimately the end came at 5. 55 a. m. on 30. 6. 03 The patient's body was shifted to the mortuary for autopsy which was performed by Dr. Silvano Sapeco and who opined that the death of the patient was due to hemorrhagic shock as a sequel to planned operation for repair of right inguinal scrotal hernia.