SHAMBHOOLAL KHATTAR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India has been filed by the petitioner challenging inaction on the part of respondent Nos. 2 and 3 in not registering the case against the Doctors of Ashish Hospital, which according to the petitioner, were responsible for the death of the son of the petitioner (hereinafter referred to as the patient).

(2.) The facts giving rise to this petition are that the son of the petitioner was admitted in Ashish Hospital, Jabalpur on 27/1/2022 at about 11:15 AM for the purpose of surgery of stone. On 27/1/2022, at about 8:00 PM, the surgery was conducted for about one hour and after the surgery, the patient was shifted to normal ward and at that time the Blood Pressure of the patient was 150/90, which was not normal. On 29/1/2022 at about 7:00 AM, the patient started feeling pain in his chest and fell down. The patient was not provided any emergency medical back, therefore, the patient died due to cardiac arrest. It is further averred in the petition that after performing the last rites of his son, the petitioner went again to Ashish Hospital and asked for Fitness Test Report, ECG report and CBC Test and all other documents relating to the patient but the same were not provided to him. Thereafter, when the petitioner made communications dtd. 3/3/2022, 15/3/2022 and 29/3/2022 to the Authorities of the Ashish Hospital, the ECG report was provided to him and thereafter he came to know that the ECG number mentioned is not the same as the ECG No. mentioned previously and the patient ID number in the ECG is also different as compared and mentioned in the Admission Card. Thereafter on 21/5/2022, the petitioner again made a communication to respondent Nos. 2 and 3 to register a case against the concerned Doctors of the said hospital. Respondent Nos. 2 and 3 refused to register a case on the ground that they would first seek expert's advice as regards the said issue. Subsequently on 9/5/2023, an expert report of two Doctors of the Victoria Hospital, Jabalpur was provided to the petitioner wherein no negligence on the part of the Doctors of Ashish Hospital was found. The petitioner produced the said report and other documents before the Medical Board, Umaria, which was contrary to the report submitted by two Doctors of Victoria Hospital, Jabalpur. It is submitted that inspite of High Blood pressure, the surgery of the patient was conducted, which amounted to medical negligence and comes within the purview of offence under Sec. 304-II of the Indian Penal Code. By referring the above opinion of the Medical Board, Umaria, the petitioner again wrote a letter to respondent No. 2 for registering the case against the Doctors involved but to no avail. Hence, this petition has been filed.

(3.) Learned senior counsel for the petitioner contends that it is a case where the patient, who was the son of the petitioner, was done to death on account of gross negligence at the behest of the Doctors of the Ashish Hospital, therefore, in view of the law laid down by the Supreme Court in the case of Jacob Mathew Vs. State of Punjab and another - (2005) 6 SCC 1 , the case ought to have been registered against them for the offence punishable under Sec. 304-II of the Indian Penal Code. It is further contended that in the present case, the patient was hospitalized on 27/1/2022 in the Ashish Hospital, Jabalpur for the purpose of removal of stone from kidney and his registration number was 159350. It is submitted that the Blood Pressure of the patient on 27/1/2022 was 140/90, which is evident from Annexure P-2, then 150/94 as per Annexure P-3 and 150/90 as per Annexure P-4. The surgery was conducted on 27/1/2022 and after the surgery, the patient was shifted to normal ward. Suddenly, on 29/1/2022, the patient complained pain in chest, fell down and died due to cardiac arrest. It is contended that in the present case, there is ECG report (Annexure A-6) of the patient, which contains different ID No. 3445 whereas it was not the ID of the son of the applicant. The ID of the patient was 159350 and no such ID, which was mentioned in the ECG report, was provided to the patient. It is contended that in the present case, the petitioner made complaint to Chief Medical and Health Officer, Jabalpur and on the said complaint, a report was submitted by the committee of two Doctors. However, the question raised by the petitioner remained unanswered as there was no explanation as regards different ECG IDs. The said report was not submitted by the expert Doctors. It is also contended that the petitioner produced the documents before the Medical Board at Umaria and the Medical Board, Umaria also gave a report wherein it was opined that in the cases of high Blood Pressure, the surgery should not be performed and at the time of cardiac arrest, the process of Thrombolysis is required to be performed and there has to be consultation with the specialists. No such procedure has been adopted in the present case. It is also contended that as the surgery of kidney was to be performed, therefore, opinion of a Nephrologist was required to be taken, which in the present case has not been done. Thus, in view of the laid down by the Supreme Court in Jacob Mathew (supra), a case is required to be registered against the concerned Doctors. Learned senior counsel has also placed reliance on the decision of the Apex Court in Lalita Kumari Vs. Government of Uttar Pradesh and others - (2014) 2 SCC 1 to submit that the Authorities were duty bound to register a First Information Report against the accused persons under Sec. 304-II of the Indian Penal Code.