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Jayshree Ujwal Ingole v. State of Maharashtra and Ors. - (Supreme Court) (06 Apr 2017)

An ‘error of judgment’ by doctor does not make him guilty of criminal negligence under section 304-a of IPC

MANU/SC/0386/2017

Criminal

Appellant herein is a doctor and has challenged order passed by High Court of Judicature of Bombay, whereby Petition filed by Appellant under Section 482 of Code of Criminal Procedure, 1973 for quashing criminal proceedings initiated against her under Section 304-A of Indian Penal Code, 1860 was dismissed.

In facts of present case, deceased was admitted on account of injuries suffered in a road accident, i.e. Irvin Hospital, Amravati for medical treatment. 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 patient. Main allegation against Appellant is that after having called for a Physician, she did not wait in hospital and did not attend upon patient, especially when patient was suffering from Haemophilia. Physician, who is Accused No. 1, did not turn up in hospital. Even next morning, when Dr. Mohod again attended upon deceased, Physician Dr. Choudhary was not present and, unfortunately, patient died. Thereafter, a complaint was lodged in police station, wherein it was alleged that, deceased died as a result of negligence of the three doctors. Complaint was investigated which was initially filed against Dr. Avinash Choudhary only but, later on, names of Appellant Dr. Jayshree Ujwal Ingole and Dr. Manohar Mohod were also included. A separate Departmental Enquiry was also carried out and, all the three doctors were held negligent in performing their duties. Dr. Mohod was debarred from an annual increment as penalty; Appellant Dr. Jayshree Ingole was permanently prohibited from entering Irvin Hospital, and Dr. Avinash Choudhary was transferred. It would be pertinent to mention that Dr. Mohod was discharged in criminal case on ground that, no case of negligence was made out against him. Appellant herein filed a petition for quashing charge against her, but this petition was rejected by Single Judge of High Court of Bombay at Nagpur mainly on the ground that, question whether inaction of Appellant in leaving the deceased at about 11.00 p.m. and not waiting for Physician to turn up, amounted to a rash and negligent act on her behalf, would be decided during trial.

Supreme Court in Jacob Mathew v. State of Punjab and Anr., has held that, 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 part of party complained of; (ii) breach of said duty; and (iii) consequential damage. It was held that, in cases where negligence is alleged against professionals like doctors, Court should be careful before instituting criminal proceedings. It is not possible for any doctor to assure or guarantee that, 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 task entrusted to him with reasonable care.

Supreme Court applied the law laid down in Jacob Mathew's case and observed that this is not a case where Appellant should face trial especially when 20 years have already elapsed. Only allegation against Appellant is that she left the patient. It must be remembered that, Appellant was a Surgeon on Call. She came to hospital when she was called and examined 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 hospital at about 11.00 p.m. True, it is that she did not wait for Physician to come, but it can be assumed that she would have expected that, 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 of Indian Penal Code. It is nobody's case that she was called again by nursing staff on duty. If condition of patient had worsened the next morning, nursing staff could have again called for Appellant, but they did not do so. Next morning, doctor on Emergency Duty, Dr. Mohod attended upon patient but, unfortunately, he died. In the facts and circumstance of this case, it cannot be said that, Appellant is guilty of criminal negligence. At best it is an error of judgment.

Supreme Court is of view that, no case of committing a rash and negligent act contemplated under Section 304-A of Indian Penal Code is made out against Appellant. Her case is similar to that of Dr. Mohod who has been discharged. Judgment passed by Single Judge of High Court of Bombay, is set aside and criminal proceedings initiated against Appellant are quashed.

Relevant : Jacob Mathew v. State of Punjab and Anr.  MANU/SC/0457/2005 : (2005) 6 SCC 1

Tags : NEGLIGENCE   PROCEEDINGS   QUASHING  

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