Case Study

Error of Judgment is not “Criminal Negligence”

Dr. Sou Jayshree Ujwal Ingole  v. State of Maharashtra

Criminal Appeal No. 636 of 2017; Decided by the Supreme Court of India on 6-4-2017.

Facts: One Shrikrishna Gawai was admitted on account of injuries suffered in a road accident, in the Irvin Hospital, Amravati on 29-08-1997 for medical treatment, and 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. 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 and 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.

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 a call was sent to the appellant, who was Surgeon on Call. 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. 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.

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. Dr. Mohod was discharged in the criminal case on the ground that no case of negligence was made out against him. The appellant filed a petition for quashing the charge against her, but 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.

Observations: Applying the law laid down in Jacob Mathew’s case, 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.

Held: 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. 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.-6-2014, 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 28-2-2001, 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

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