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TMI Blog2013 (9) TMI 1189X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant has challenged the judgment of the High Court, by way of present appeal. 3. To give a glimpse of the episode at the outset, we may mention that one Smt. Leela Singhi (hereinafter to be referred as the patient ), wife of Shri Padamchandra Singhi, the complainant, was suffering from Cancer for which she was under medical treatment since the year 1977. As her condition did not improve and rather deteriorated over a period of time, in 1987 she was taken to America and was treated in Sloan Kettering Memorial Hospital in New York. However, it did not yield any positive results. The doctors in that hospital declared her beyond surgical treatment and she was sent back to India on 29.11.1987. In India, she had been under the medical supervision of Dr. A.K. Mukherjee, for a long time, who started -- administering the medication prescribed by the doctors in U.S.A. Within few days, the patient started suffering from vaginal bleeding because of which Dr. A.K. Mukherjee advised her for hospitalization. She was admitted to Bombay Hospital on 9.12.1987. After a few days of hospitalization, she was examined by the appellant who advised Exploratory Laparotomy (surgery) , in order to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell as offence punishable under Section 338 of the I.P.C. Since, there was no overt act on the part of the appellant, as the surgical procedure was performed by Dr. A.K. Mukherjee, charge of abetment under Section 109 of I.P.C. was also leveled against the appellant. Dr. A.K. Mukherjee was also made accused in the said complaint. However, at a later stage, Dr. A.K. Mukherjee was dropped from the proceedings at the instance of the complainant. 6. It is on the aforesaid allegations, purportedly proved through oral and documentary evidence, that the conviction of the appellant is returned by the courts below. 7. On the complaint of the complainant, Maharashtra Medical Council initiated disciplinary action against the appellant and found him guilty of professional mis-conduct under Para 15 of the Warning Notice of the Maharashtra Medical Council s Code of Ethics and Para 3 of the disciplinary action of the Medical Council of India s Code of Ethics. It resulted in issuance of warning under Section 22(1) of the Maharashtra Medical -- Council Act, 1965 vide orders dated 11.2.1991 passed by the Maharashtra Medical Council. The appellant did not challenge the findings of the disciplinary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence against him. On the contrary, the complainant in his testimony (P.W.1) gave glowing compliments to Dr. A.K. Mukherjee, praising his skills both as a doctor and a surgeon. In such circumstances, argued Mr. Harish Salve the question of abetment did not survive and, therefore, the case warranted closure even against the appellant as well, after dropping Dr. Mukherjee from the prosecution. 13. Without prejudice to the aforesaid submissions, further arguments of Mr. Harish Salve were that, in any case, the ingredients of Section 338 of I.P.C had not been established. It was merely a case of negligence projected by the prosecution. It could not be held, ipso facto, that the essential ingredients of the offence contained under Section 338 of I.P.C. were fulfilled. - 14. Mr. Harish Salve endeavored to demonstrate that the decision of the appellant to advise the operation, in question, namely Exploratory Laparotomy could not even be treated as unreasonable or an act of negligent advice. Once it was accepted that the appellant was a renowned Oncologist with great experience, his opinion to conduct the aforesaid procedure/ surgery, after examining the patient, was an exper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned senior counsel projected the theory that illegal omissions could result in causing hurt cannot have any application to a doctor who has not performed a surgery where the primary allegation is that the performance of the surgery constituted the infliction of hurt. Whatever may be the legal consequences of reneging on an assurance to perform a surgery, if the surgery is performed by a duly qualified professional, the surgeon who did not perform the surgery could not possibly be guilty of causing hurt. A fortiori, where the surgeon who did perform the surgery is duly qualified, and is blame free, there is no question of charging, under Section 338 of I.P.C., some other surgeon who may have been engaged to perform the surgery, but did not do so. 17. Mr. Harish Salve also sought to distract the charge of abetment under Section 109 of the I.P.C. by attempting to highlight that as per the charge framed by the Trial Court, the act was attributed to Dr. A.K. Mukherjee and the primary charge against the appellant was only that of abetment. With the dropping of Dr. A.K. Mukherjee from the prosecution, the charge of abetment no more survived, more so when no overt act is attri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uest Dr. Desai to come and attend to Mrs. Singhi. Dr. Desai came to OT 2 and by standing at a distance of 6 feet, instructed Dr. Mukherjee to stitch the abdomen as the case was inoperable. He did not touch the patient, leave alone stitching the abdomen by himself. The patient remained in the Hospital for over three months and for about initial one month she required dressing every one hour because of the bleeding from the stitches. This pain and suffering of the patient could have been avoided/ reduced if Dr. Desai himself had stitched the abdomen. After the wound was stitched and till the patient was discharged on 5.4.1998, Dr. Desai did not, even once, attend to Mrs. Singhi and the patient missed the healing touch of the surgeon who was authorized to operate her. f) After the patient s husband (PW.1) started writing complaints, Dr. Desai flatly denied that Mrs. Singhi was his patient. And Dr. Desai continued the denial even till the end of the trial despite the fact that the Maharashtra Medical Council had held him guilty after a full fledged enquiry under Section 22 of the Maharashtra Medical Council Act, 1965 and warned him, so also three witnesses from the hospital i.e. PW. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant and the omissions attributable to him, form the part of the same offence viz., an offence under Section 338 of causing grievous hurt by rash and negligent acts/ omissions. The said offence is not attributable to a single act or omission but it denotes a series of omissions/ acts as a single omission/ act. - 20. According to the learned State Counsel even the offence under Section 109 of I.P.C. was proved, notwithstanding the fact that Dr. Mukherjee was dropped from the proceedings. He referred to Section 107 of I.P.C. which defines Abetment of a thing - by stating that a person abets a doing of a thing who, inter alia, intentionally aids, by any act or illegal omission the doing of that thing. As per Section 109 of I.P.C. whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by the I.P.C. for the punishment of such abetment, be punished with punishment provided for the offence. Thus, the offence under Section 109 is an independent offence but the punishment is related with other offence. In the instant case, with the offence punishable under Section 338, as the appellant instructed Dr. Mukherjee to o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, the appellant could not be allowed to argue to the contrary. Mr. Gonsalves also referred to the findings of the Maharashtra Medical Council, as argued by the State Counsel, to buttress his submission that the guilt of the appellant stood proved. 23. We have given our deep thoughts to the aforesaid submissions made by the learned Senior Counsel appearing for different parties. The provisions of Section 338 IPC have already been reproduced in the earlier part of this -- judgment. A perusal thereof would clearly demonstrate that before a person is held guilty of the offence, following ingredients need to be established: a) Causing grievous hurt to a person. b) Grievous hurt should be the result of an act. c) Such act ought to have been rash and negligent. d) The intensity of commission of such an act ought to endanger human life or the personal safety of others. 24. Before we find out as to whether these essential ingredients have been satisfied in the present case or not, another aspects needs discussion, viz., whether Smt. Leela was the patient of the appellant or not. The Established Facts To find an answer to this question, let us revert to thos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eela was the patient of the appellant and it was his responsibility to take care of his patient. 25. The answer can also be founded on the nature of professional duty which appellant owed to the patient. Usually before the operation, consent form is required to be signed by the patient for agreeing to the risks involved. The documentary medical records of surgical operation pointed to the appellant as the operating surgeon, the oral and documentary proof both impliedly and explicitly leads to the creation of contractual agreement between the patient and the appellant. - 26. In Lambert v. California ( 355 U.S 225 (1957), the Supreme Court of United States seems to recognize the unfairness of imposing liability where an actor is unaware of a duty to act. Similarly the Indian Constitution mandates under Articles 20(1) 21 of the Constitution of India that the due process of law requires that everyone who is tried under any law before court must have some awareness of, or at least a reasonable opportunity to become aware of their legal owed duty towards its recipient. In this case, at hand, the appellant was aware of his duty towards the patient - Smt. Leela as the appellant was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of omission is indispensable at the juncture. An omission is sometimes called a negative act, but this seems dangerous practice, for it too easily permits an omission to be substituted for an act without requiring the special requirement for omission liability such as legal duty and the physical capacity to perform the act. Criminal liability for an omission is also well accepted where the actor has a legal duty and the capacity to act. It is said that this rather fundamental exception to the act requirement is permitted because an actor s failure to perform a legal duty of which he is capable, satisfies the purposes of the act requirement or at least satisfies them as well as an act does. Specifically these two special requirements for omission liability help to exclude from liability cases of -- fantasizing and irresolute intentions, important purposes of the act requirement. 31. However, a failure to act, by itself does nothing to screen out mere fantasies. It is the actor s failure to act in the light of his capacity to do so that suggests the actor s willingness to go beyond mere fantasizing and to have the harm or evil of the offence occur. Even then, however, the scree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... profession? If the offence is capable of being committed by omission, who all were under a duty to act? Who owed the primary duty? What are the criteria for selecting the culprit? Where the definition of the crime requires proof that the actor caused a certain result, and can he be said to have caused that result by doing nothing? These questions cannot be completely separated and sometimes few or all three of them would arise in the same material which follows. Each of them, perhaps, also gives rise to yet another question: Is actor s conduct properly categorized as an omission, or an act? Indeed section 338 of the I.P.C does recognize unambiguously that the particular offence can be committed by omission. More so, the medical profession is included in it. The offence under section 338 of the I.P.C is capable of being committed by omission. 34. We reiterate that we have stated, explained and clarified the meaning of expression act occurring in Section 338 IPC, to include acts of omission as well. Its applicability in the instant case has been discussed elaborately at the relevant portion of this judgment so as not to lose the continuum. 35. As we find that omission on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entrusts himself to the doctor and that doctor agrees to do his best, at all times, for the patient. Such doctor-patient contract is almost always an implied contract, except when written informed consent is obtained. While a doctor cannot be forced to treat any person, he/she has certain responsibilities for those whom he/she accepts as patients. Some of these responsibilities may be recapitulated, in brief: (a) to continue to treat, except under certain circumstances when doctor can abandon his patient; (b) to take reasonable care of his patient; (c) to exhibit reasonable skill: The degree of skill a doctor undertakes is the average degree of skill possessed by his professional brethren of the same standing as himself. The best form of treatment may differ when different choices are available. There is an implied contract between the doctor and patient where the patient is told, in effect, Medicine is not an exact science. I shall use my experience and best judgment and you take the risk that I may be wrong. I guarantee nothing. - (d) Not to undertake any procedure beyond his control: This depends on his qualifications, special training and experience. The doctor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and breached his duty to take care of the patient. Such a duty which a doctor owes to the patient and if not rendered appropriately and when it would amount to negligence is lucidly narrated by this Court in Kusum Sharma and others v. Batra Hospital and Medical Research Centre and Others; (2010) 3 SCC 480 . The relevant discussions therefrom are reproduced hereinbelow: 45. According to Halsbury s Laws of England, 4th Edn., Vol. 26 pp. 17-18, the definition of negligence is as under: 22. Negligence.-Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient. 46. In a celebrated and oft cited judgment in Bolam v. Friern Hospital Management Committee (Queen s Bench Divis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the following manner: 10. The jurisprudential concept of negligence defines any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well stated in the Law of Torts, Ratanlal Dhirajlal (24th Edn., 2002, edited by Justice G.P. Singh). Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property . The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former s conduct within the scope of the duty; (2) breach of the said; and (3) consequential damage. Cause of -action for negligence arises only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting recklessly if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it. 13. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do not occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimising violations, -- may be motivated by thrill-seeking. These are clearly reckless. 14. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rthiness. This is because in civil law two questions are at issue: Was the defendant negligent? If so, should the defendant bear the loss in this particular set of circumstances? In most cases where negligence has been established, the answer to the second question will be in the affirmative, unless the doctrine of remoteness or lack of foresee ability militates against a finding of liability, or where there is some policy reason precluding compensation. The question in the civil context is, therefore, not about moral blame, even though there will be many cases where the civilly liable defendant is also morally culpable. (5) Criminal Liability : When attracted 45. It follows from the above that as far as the sphere of criminal liability is concerned, as mens rea is not abandoned, the subjective state of mind of the accused lingers a critical consideration. In the context of criminal law, the basic question is quite different. Here the question is: Does the accused deserve to be punished for the outcome caused by his negligence? This is a very different question from the civil context and must be answered in terms of mens rea. Only if a person has acted in a morally culpabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... swered by identifying what was nature of act owed by the appellant towards the patient. 51. In the case at hand, the concern revolves around the acts of omission and commission which amounted to an act so rashly or negligently as to have had endangered the life of Smt. Leela constituting an offence punishable under Section 338 of the I.P.C. Since, there was no overt act on the part of the appellant - as the surgical procedure was performed by Dr. -- A.K. Mukherjee, charge of abetment under Section 109 of I.P.C. was also leveled. . Dr. A.K. Mukherjee was also made accused in the said complaint. However, at a later stage, Dr. A.K. Mukherjee was dropped from the proceedings at the instance of the complainant. 52. We would also like to make another aspect very explicit. The appellant was leveled a specific charge which was framed against him. The prosecution was required to prove that particular charge and not to go beyond that and attribute rash and negligent acts which are not the part of the charge. Culpability is specifically related to the act committed on 22.12.1987 at about 9 a.m. in the hospital viz., the act of performing surgical procedure. It is, thus, this act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant herein. (b) The patient was repeatedly suffering from vaginal bleeding and bodily pain and as such the patient was unable to follow her ordinary pursuits irrespective of the surgical procedure advised by the appellant herein. (c) The formation of a fistula is a complication which may or may not arise out of surgical procedures and the advice for surgical procedure was tendered with a view to alleviate her suffering rather than endanger her life. - 55. During trial, Dr. Gajanand Hegade (DW.2) has endorsed the opinion of the appellant and has gone to the extent of saying that it was the best possible option for the treatment of the patient. Moreover, Dr. Mukherjee has also accepted/ agreed that the advise tendered by the appellant on the basis of CT Scan Report, and, that the call to operate was unanimous . Thus, even Dr. Mukherjee endorsed the opinion which appears to be his opinion as well. In this scenario, it cannot be said that advise of the appellant for taking the surgical procedure was an act of wanton negligence. Dilemma of a doctor, in such circumstances, is beautifully explained by this Court in Kusum Sharma (Supra), in the following words: 89(V) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of merely advising surgery which was inspite of the opinion of cancer specialists from U.S.A, ought to have voluntarily taken more interest and personally seen the situation faced by Dr. A.K Mukherjee which he did not do so. Since the appellant has not challenged the findings of the Medical Council who had found him guilty of misconduct, those findings does provide the legal fortification and along with the oral and documentary evidences adduced before court below speaks much on the professional duty which the appellant owed to the patient. 59. Thus, one thing is crystal clear. Failure to act on the part of the appellant, in conducting surgical procedure, and not taking care thereafter as well, established his negligence in tort law i.e. in civil domain. We refer to and rely on the judgment of this Court in Jacob s Case once again, where -- the Court explained as to under what circumstances professional can be liable for negligence. It is necessary for this purpose that one of the two findings, as set out therein, should be established. 18. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons profess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at various stages, as observed by the courts below, he was held to be negligent by the Maharashtra Medical Council and thus found to be guilty of committing professional misconduct. 61. Thus, it was the appellant s duty to act contractually, professionally as well as morally and such an omission can be treated as an act . We again clarify that undoubtedly, within the realm of civil liability, the appellant has breached the well essence of duty to the patient. - 62. Having reached this conclusion, we proceed to the next stage viz., the criminal liability of the appellant. However, we once again emphasize that the question of criminal liability has also to be examined in the context of Section 338 of I.P.C. which is the real issue. To recapitulate some important aspects, we have concluded that decision of the appellant advising Exploratory Laparatomy was not an act of negligence, much less wanton negligence, and under the circumstances it was a plausible view which an expert like the appellant could take keeping in view the deteriorating and worsening health of the patient. As a consequence, opening of the abdomen and performing the surgery cannot be treated as causing gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, it was found, that there was a lot of discharge from fistula and surgery was not possible. The appellant advised Dr. Mukherjee to close the abdomen. No doubt, he did not do it himself but it is not the case of the prosecution that Dr. Mukherjee did not do it deftly either. It is because of the deplorable condition of the patient, the surgery could not be completed as on the opening of the abdomen other complications were revealed. This would have happened in any case, irrespective whether abdomen was opened by Dr. Mukherjee or by the appellant himself. On the contrary, the -- complainant s own case is that Dr. Mukherjee s performance was not lacking; nay, it was of superlative quality. 66. The appellant s omission in not rendering complete and undivided legally owed duty to patient and not performing the procedure himself has not made any difference. It was not the cause of the patient s death which was undoubtedly because of the acute chronic cancer condition. In such a scenario, it is enough to keep off the clutches of criminal law. 67. The negligent conduct in the nature of omission of the appellant is not so gross as to entail criminal liability on the appellant under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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