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TMI Blog1999 (3) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... eatre on some reason for a short duration leaving the third accused and after the administration of anesthesia by A1, as a result of which the patient died of acute respiratory failure. Therefore, all the three doctors being neglect in their duties are liable to be punished for the offence under Section 304-A of I.P.C. 3. Mr. Karuppan, the counsel for the petitioner (A3) would mainly contend that the charge as against the petitioner under Section 304-A I.P.C. is not made out, since he was in no way connected with the cause of death, which is said to have caused out of complications that had arisen due to spinal anaesthesia administered by Dr. Parthasarathy (Al) who is an Anaesthetist. He would also submit that the post-mortem report did not specify that the cause of death was due to any negligence on the part of any one involved in the operation except for stating that the cause of death was due to lung shock. He would also point out that the second opinion which was sought from Dr. Celia, Head of the Department of Forensic Sciences would certify that the cause of death was due to acute respiratory failure-a sequel to spinal anaesthesia administration and that therefore, the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esence of Dr. Rajagopal and Dr.L. Prakash. Both of them were preparing the patient for the operation. (c) At this juncture, one of the theatre attendants, Staff Nurse Shakuntala suddenly had chest pain. Immediately, both Dr. Rajagopal and Dr. Prakash attended on her and soon she became normal. Thereafter, Dr. Prakash under the guidance of Dr. Rajagopal commenced the operation by surgically cutting open below the right knee for about 4 cms. length. Just when they observed that bleeding was not normal, and the blood was clotted inside, both the Surgeons A2 and A3 enquired with Dr. Parthasarathy (Al) about the condition of the patient after anaesthesia. On being checked up, it was found that there is a slow drop in blood pressure, which was at that stage 100/60 mg. Dr. Parthasarathy attempted certain medical steps to revive the patient, but then the pulse rate started coming down vigorously. Dr. Rajagopal and Dr. Prakash (A2 and A3) immediately summoned a Cardiologist to check up the heart beat of the patient and to revive the same. Accordingly, Dr. Vijayalakshmi, Cardi-ologist came and examined the patient and found that he was dead. Thereafter, both Dr. Rajagopal and Dr. Prakash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ug. Then, Dr. Prakash under the guidance of the Dr. Rajagopal prepared to commence the operation after cleaning and positioning the patient. At that point of time, the Staff Nurse assisting Dr. Rajagopal, suddenly had chest pain and Swooned. On seeing this, both Dr. Prakash and Dr. Rajagopal attended on her. However, the said Staff Nurse became normal soon. Thereafter, operation was commenced. Now, the opinion given by the doctors is that the death was due to the lung shock and the acute respiratory failure - a sequalae to spinal anaesthesia administration. So, the cause of death is directly attributed to the act of A1. 9. It is also the case of the prosecution that Dr. Parthasarathy failed to check up during the pre-operative anaesthesia test as to whether the patient would withstand 3 ml. of local anaesthesia drug Sensorcaine which was given through spinal cord to the patient, who met with an accident sustaining injuries not only on leg but also on the head. 10. In the light of the above fact situation, the counsel for the petitioner would contend that the petitioner, who has no connection in relation to the death of the deceased, could not be an accused of having acted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a term which may extend to two years, or with fine, or with both. 18. The reading of the above section would show that the following ingredients are required to be established to prove an offence under Section 304-A I.P.C: (i) death of the person in question; (ii) accused caused such death; and (iii) such act of the accused was rash or negligent, although it did not amount to culpable homicide. 19. In the instant case, we are concerned with the criminal negligence, as there is no indication with reference to the rashness. This section, like other sections of the Indian Penal Code, requires a mens rea or guilty mind and the negligence must be such as can fairly be described criminal. Mere carelessness and simple lack of care may constitute civil liability and it cannot be treated to be enough to prove a charge of homicide by negligence. 20. In order to perform an operation, surgical interference is necessary. In the instant case, the surgical interference by A3, the petitioner who commenced the operation has not been attributed as the reason of the death. 21. Negligence is acting without the awareness that harmful or mischievous consequences will follows, but i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormant Sethuraman, the father of the patient himself would state in his statement that his family members had taken similar treatment from Dr. Rajagopal previously. It is also an admitted fact that Dr. Prakash, the petitioner, the son-in-law of A2, Dr. Rajagopal has been practicing orthopaedics for more than 11 years. 28. It is not the case of the prosecution that the accused doctors A2 and A3 are the incompetent Surgeons and the preparation made by these doctors for commencement of the operation on the patient would not have been made by the other competent doctors. In this situation, it could not be said that A3 Dr. Prakash, the petitioner, commenced operation under the supervision of A2 Dr. Rajagopal with criminal negligence. 29. It shall be noted in this context that the doctor is not presumed to have given guarantee to cure. He is required to exercise the degree of care and skill expected of a reasonable and prudent medical practitioner. It is a matter of common sense that a medical practitioner is not obliged and can never be expected to achieve success in all cases. His duty like other professionals is to exercise reasonable care, caution and skill. If he is found fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rues to A3 would also be applicable to A2. Therefore, the proceedings, as indicated earlier, as against A2 and A3 are hereby quashed. 35. The trial Court is directed to go on with further proceedings as against Al. However, it is made clear that any of the observations made by me in the above paragraphs as against Al would not influence the mind of the trial Court in considering A1's case after trial is over. The trial Court is also directed to consider the materials placed before it during the course of trial both by the prosecution and the defence as regards Al and decide the case in its own way in accordance with law. 36. With the above observations, the petition is allowed. Consequently, no separate order is necessary in Crl.M.P.No. 10727 of 1998. 37. However, it is to be mentioned that the allowing of this petition and quashing of the proceedings as against A2 and A3 would not preclude the first informant, the father of the deceased from approaching proper forum to claim damages from all the doctors (Al to A3) by invoking civil law on the basis of the negligence attributed to these doctors in handling the patient who died at the operation theatre. 38. Before pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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