caselaws
Supreme Court of India
Dr. Jayshree Ujwal Ingole vs State Of Maharashtra & Anr on 6 April, 2017Bench: Madan B. Lokur, Deepak Gupta
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 636 OF 2017
[Arising out of SLP (Crl.) No. 7186 of 2014]
Dr. Sou Jayshree Ujwal Ingole . . . . Appellant(s)
Versus
State of Maharashtra & Anr. . . . Respondent(s)
J U D G M E N T
Deepak Gupta, J.
Leave granted.
2. The appellant herein is a doctor and has challenged the Order dated
18.06.2014 passed by the High Court of Judicature of Bombay, Nagpur Bench
in Criminal Application (APL) No. 354 of 2012, whereby the petition filed
by the appellant under Section 482 CrPC for quashing the criminal
proceedings initiated against her under Section 304-A IPC was dismissed.
3. Briefly stated the facts of the case are that one Shrikrishna Gawai
(hereinafter referred to as the ‘deceased’) was admitted on account of
injuries suffered in a road accident, in the Irvin Hospital, Amravati on
29.08.1997 for medical treatment. It is the admitted case of the parties
that the deceased was suffering from Haemophilia, a disease in which there
is impairment of blood clotting. Therefore, special attention was required
to be paid during the treatment of the patient. It is not disputed that
one Dr. Manohar Mohod was on duty as an Emergency Medical Officer. On
29.08.1997 the patient was treated both by the appellant and Dr. Mohod. On
30 & 31.08.1997, the deceased was attended upon by Dr. Dhirendra Wagh.
Thereafter also, the deceased remained in the Hospital under the treatment
of the appellant and Dr. Mohod.
4. Dr. Mohod, the Emergency Medical Officer attended upon the deceased
on 05.09.1997 at 9.00 p.m. and found that he was suffering from abdominal
pain and, thereafter, a call was sent to the appellant, who was Surgeon on
Call. It is not disputed that the appellant went to the Hospital on being
called. She attended upon the deceased and made a note that a Physician be
called. Thereafter, she left the Hospital. In the morning on
06.09.1997, the condition of the deceased worsened and he died.
5. The main allegation against the appellant is that after having called
for a Physician, she did not wait in the hospital and did not attend upon
the patient, especially when the patient was suffering from Haemophilia.
The Physician, Dr. Avinash Choudhary, who is accused No. 1, did not turn up
in the hospital. Even next morning on 06.09.1997, when Dr. Mohod again
attended upon the deceased, the Physician Dr. Choudhary was not present
and, unfortunately, the patient died. Thereafter, a complaint was lodged
in the police station, wherein it was alleged by the brother of the
deceased that the deceased died as a result of negligence of the three
doctors. The complaint was investigated as Crime No. 317 of 1997 which
was initially filed against Dr. Avinash Choudhary only but, later on, the
names of the appellant Dr. Jayshree Ujwal Ingole and Dr. Manohar Mohod were
also included.
6. A separate Departmental Enquiry was also carried out and, in that
enquiry, all the three doctors were held negligent in performing their
duties. Dr. Mohod was debarred from an annual increment as penalty; the
appellant Dr. Jayshree Ingole was permanently prohibited from entering
Irvin Hospital, Amravati, and Dr. Avinash Choudhary was transferred. It
would be pertinent to mention that Dr. Mohod was discharged in the criminal
case on the ground that no case of negligence was made out against him.
7. The appellant herein filed a petition for quashing the charge against
her, but this petition was rejected by the learned Single Judge of the High
Court of Bombay at Nagpur mainly on the ground that the question whether
inaction of the appellant in leaving the deceased at about 11.00 p.m. and
not waiting for the Physician to turn up, amounted to a rash and negligent
act on her behalf, would be decided during trial.
8. We have heard learned counsel for the parties. Learned counsel for
the appellant has placed reliance on the judgment of this Court in Jacob
Mathew v. State of Punjab & Anr.[1], wherein this Court held that the court
should be circumspect before instituting criminal proceedings against a
medical professional. This Court has held that negligence comprises of (i)
a legal duty to exercise due care on the part of the party complained of;
(ii) breach of the said duty ; and (iii) consequential damage. It was held
that in cases where negligence is alleged against professionals like
doctors the court should be careful before instituting criminal
proceedings. It is not possible for any doctor to assure or guarantee that
the result of treatment would invariably be positive. The only assurance
which a professional can give is that he is professionally competent, has
requisite skill and has undertaken the task entrusted to him with
reasonable care. It would be pertinent to quote the following relevant
observations made in Jacob Mathew’s case (supra):
26. No sensible professional would intentionally commit an act or omission
which would result in loss or injury to the patient as the professional
reputation of the person is at stake. A single failure may cost him dear in
his career. Even in civil jurisdiction, the rule of res ipsa loquitur is
not of universal application and has to be applied with extreme care and
caution to the cases of professional negligence and in particular that of
the doctors. Else it would be counter-productive. Simply because a patient
has not favourably responded to a treatment given by a physician or a
surgery has failed, the doctor cannot be held liable per se by applying the
doctrine of res ipsa loquitur.
xxx xxx xxx
28. A medical practitioner faced with an emergency ordinarily tries his
best to redeem the patient out of his suffering. He does not gain anything
by acting with negligence or by omitting to do an act. Obviously,
therefore, it will be for the complainant to clearly make out a case of
negligence before a medical practitioner is charged with or proceeded
against criminally. A surgeon with shaky hands under fear of legal action
cannot perform a successful operation and a quivering physician cannot
administer the end-dose of medicine to his patient.
29. If the hands be trembling with the dangling fear of facing a criminal
prosecution in the event of failure for whatever reason — whether
attributable to himself or not, neither can a surgeon successfully wield
his life-saving scalpel to perform an essential surgery, nor can a
physician successfully administer the life-saving dose of medicine.
Discretion being the better part of valour, a medical professional would
feel better advised to leave a terminal patient to his own fate in the case
of emergency where the chance of success may be 10% (or so), rather than
taking the risk of making a last ditch effort towards saving the subject
and facing a criminal prosecution if his effort fails. Such timidity forced
upon a doctor would be a disservice to society.
30. The purpose of holding a professional liable for his act or omission,
if negligent, is to make life safer and to eliminate the possibility of
recurrence of negligence in future. The human body and medical science,
both are too complex to be easily understood. To hold in favour of
existence of negligence, associated with the action or inaction of a
medical professional, requires an in-depth understanding of the working of
a professional as also the nature of the job and of errors committed by
chance, which do not necessarily involve the element of culpability.
After discussing the entire law on the subject, this Court concluded as
follows:
“48. We sum up our conclusions as under:
(1) Negligence is the breach of a duty caused by 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. The definition of negligence as
given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh),
referred to hereinabove, holds good. Negligence becomes actionable on
account of injury resulting from the act or omission amounting to
negligence attributable to the person sued. The essential components of
negligence are three: “duty”, “breach” and “resulting damage”.
(2) Negligence in the context of the medical profession necessarily calls
for a treatment with a difference. To infer rashness or negligence on the
part of a professional, in particular a doctor, additional considerations
apply. A case of occupational negligence is different from one of
professional negligence. A simple lack of care, an error of judgment or an
accident, is not proof of negligence on the part of a medical professional.
So long as a doctor follows a practice acceptable to the medical profession
of that day, he cannot be held liable for negligence merely because a
better alternative course or method of treatment was also available or
simply because a more skilled doctor would not have chosen to follow or
resort to that practice or procedure which the accused followed. When it
comes to the failure of taking precautions, what has to be seen is whether
those precautions were taken which the ordinary experience of men has found
to be sufficient; a failure to use special or extraordinary precautions
which might have prevented the particular happening cannot be the standard
for judging the alleged negligence. So also, the standard of care, while
assessing the practice as adopted, is judged in the light of knowledge
available at the time of the incident, and not at the date of trial.
Similarly, when the charge of negligence arises out of failure to use some
particular equipment, the charge would fail if the equipment was not
generally available at that particular time (that is, the time of the
incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the two
findings: either he was not possessed of the requisite skill which he
professed to have possessed, or, he did not exercise, with reasonable
competence in the given case, the skill which he did possess. The standard
to be applied for judging, whether the person charged has been negligent or
not, would be that of an ordinary competent person exercising ordinary
skill in that profession. It is not possible for every professional to
possess the highest level of expertise or skills in that branch which he
practices. A highly skilled professional may be possessed of better
qualities, but that cannot be made the basis or the yardstick for judging
the performance of the professional proceeded against on indictment of
negligence.
(4) The test for determining medical negligence as laid down in Bolam vs.
Friern Hospital Management Committee (1957) 1 WLR 582 at p. 586 holds good
in its applicability in India.
(5) The jurisprudential concept of negligence differs in civil and criminal
law. What may be negligence in civil law may not necessarily be negligence
in criminal law. For negligence to amount to an offence, the element of
mens rea must be shown to exist. For an act to amount to criminal
negligence, the degree of negligence should be much higher i.e. gross or of
a very high degree. Negligence which is neither gross nor of a higher
degree may provide a ground for action in civil law but cannot form the
basis for prosecution.
(6) The word “gross” has not been used in Section 304-A IPC, yet it is
settled that in criminal law negligence or recklessness, to be so held,
must be of such a high degree as to be “gross”. The expression “rash or
negligent act” as occurring in Section 304-A IPC has to be read as
qualified by the word “grossly”.
(7) To prosecute a medical professional for negligence under criminal law
it must be shown that the accused did something or failed 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. The hazard
taken by the accused doctor should be of such a nature that the injury
which resulted was most likely imminent.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain
of civil law, specially in cases of torts and helps in determining the onus
of proof in actions relating to negligence. It cannot be pressed in service
for determining per se the liability for negligence within the domain of
criminal law. Res ipsa loquitur has, if at all, a limited application in
trial on a charge of criminal negligence.”
9. Applying the law laid down in Jacob Mathew’s case (supra), we are of
the view that this is not a case where the appellant should face trial
especially when 20 years have already elapsed. The only allegation
against the appellant is that she left the patient. We must remember that
the appellant was a Surgeon on Call. She came to the hospital when she was
called and examined the patient. As per her judgment, she could find no
evidence of bleeding or injury and, therefore, she had noted that a
Physician be called. Thereafter, she left the hospital at about 11.00 p.m.
True it is that she did not wait for the Physician to come, but it can be
assumed that she would have expected that the Physician would come soon.
This may be an error in judgment but is definitely not a rash and negligent
act contemplated under Section 304-A IPC. It is nobody’s case that she was
called again by the Nursing staff on duty. If the condition of the
patient had worsened between 11.00 p.m. and 5.00 a.m., the next morning,
the Nursing staff could have again called for the appellant, but they did
not do so. Next morning, the doctor on Emergency Duty, Dr. Mohod attended
upon the patient but, unfortunately, he died.
10. In the facts and circumstance of this case, it cannot be said that
the appellant is guilty of criminal negligence. At best it is an error of
judgment.
11. In view of the above discussion, we are of the view that no case of
committing a rash and negligent act contemplated under Section 304-A IPC is
made out against the appellant. Her case is similar to that of Dr. Mohod
who has been discharged. We, accordingly, allow the appeal, set aside the
judgment dated 18.06.2014, passed by the learned Single Judge of the High
Court of Bombay, Nagpur Bench in Criminal Application (APL) No.354 of 2012
and quash the criminal proceedings initiated against the appellant vide
order dated 28.02.2001, passed by the Judicial Magistrate, First Class,
Court No.6, Amravati in Regular Criminal Case No. 310 of 1999 in FIR Crime
No.317 of 1997. Pending application(s), if any, stand(s) disposed of.
…………………………..J.
(MADAN. B. LOKUR)
…………………………..J.
(DEEPAK GUPTA)
New Delhi,
April 06, 2017.
ITEM NO.1A COURT NO.5 SECTION IIA
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 7186/2014
(Arising out of impugned final judgment and order dated 18/06/2014 in CRA
No. 354/2012 passed by the High Court of Bombay at Nagpur)
DR. Sou JAYSHREE UJWAL INGOLE Petitioner(s)
VERSUS
STATE OF MAHARASHTRA & ANR. Respondent(s)
Date : 06/04/2017 This petition was called on for
pronouncement of judgment today.
For Petitioner(s) Mr. Shirish K. Deshpande, AOR
Mr. Mohit Gautam, Adv.
For Respondent(s) Mr.Gagan Sanghi, Adv.
Mr. Rameshwar Prasad Goyal, AOR
Mr. Nishant Ramakantrao Katneshwarkar, AOR
Hon’ble Mr. Justice Deepak Gupta pronounced the reportable judgment
of the Bench comprising Hon’ble Mr. Justice Madan B. Lokur and His
Lordship.
The appeal is allowed in terms of the signed reportable judgment.
(Meenakshi Kohli) (Sharda Kapoor)
Court Master (SH) Court Master (NS)
[Signed reportable judgment is placed on the file]
———————–[1]
[2] (2005) 6 SCC 1,
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