Dr. S. Gurumani v. The Lieutenant Governor And ORS.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] ...

Present:

THE HON'BLE JUSTICE GAURANG KANTH WPA/867/2022 Dr. S. Gurumani ... Petitioner Vs.

The Lieutenant Governor & Others ... Respondents For the Petitioner :

Mr. Prohit Mohan Lal For the Respondents :

Mr. Shatadru Chakrborty Mr. Dibesh Dwivedi Heard on :

July 09, 2024 Judgment on :

July 09, 2024 GAURANG KANTH, J.

1.

The petitioner in the present writ petition is challenging the finding of the inquiry report submitted by the medical committee constituted as per the direction of the learned Chief Judicial Magistrate at Port Blair in Miscellaneous case No. 34 of 2022 titled as Anil Kumar and Anr. Versus Dr. S. Gurumani and Dr. Priya Krishna and Others wherein it has been recorded that the petitioner is guilty of medical negligence. 2.

The facts leading to the present case is as follows:-

2 | P a g e 3.

The petitioner is working as Professor and Head of Department under the Andaman and Nicobar Institute of Medical Science (ANIIMS) since 2019. On 19.06.2021, a patient named Nikhil reported to the ENT OPD with complaints of throat pain and difficulty in swallowing. He was diagnosed with Acute pharygotonsillitis. The petitioner was given capsule Augmentin analgesics and antiseptic gargle. On 20.06.2021, the petitioner received a phone call in the evening around 8.30 p.m. from the mother of the said patient. The petitioner advised her to report to the ENT OPD the next day early in the morning or take the patient to the casualty ward. The patient was admitted to the hospital on 21.06.2021 and was undergoing his treatment. After obtaining the report of the CT scan on 24.06.

2021, the petitioner was treated with a neck incision and drainage of diffuse neck swelling. Later in the day the petitioner collapsed in the ENT ward and was shifted to the medical ICU. The medical department diagnosed him with septic shock and changed his antibiotics. On the same day, he was examined by Dr. Saji Vargheese, Director of Health Services, Andaman & Nicobar Islands who was also known to the patient's family. Dr. Saji Vargheese suggested incision and drainage under general anaesthesia. Since the said procedure was risky at that stage, the petitioner refused to do the same. Hence, another colleague of the petitioner, Dr.

3 | P a g e shifted on the ventilator. On 28.06.2021, the patient suffered multiple cardiac arrest and was declared dead at 6.45 p.m. 4.

After the death of the patient, the father filed a complaint on 12.07.2021 against the petitioner and Dr. Priya Krishna before the Lieutenant Governor. Based on the said complaint of the patient's father, an expert committee was constituted with Dr. S.S. Singh, Senior Consultant, Medical Specialist as Chairman and Dr. Meena Maruti, Associate Professor (ENT) and Dr. Saji Vargheese, Senior Surgical Specialist as member. However, later as per the request of the petitioner, the said expert inquiry committee was reconstituted by replacing Dr. SS Singh and Dr. Saji Vargheese. Hence, a new committee was constituted with new members. The said committee submitted his report dated 28.07.2021 to MS, G. B. Pant Hospital.

As per the report, it was observed that the procedure adopted by the petitioner was "inadequate and there was need to address this deep neck abscess with incision and drainage in major operation set up under general anaesthesia". Based on the said observation, the first committee issued advisory memo to the petitioner advising him to take precautionary measures to avoid any such untoward incident in future.

5.

The father of the deceased thereafter initiated a proceeding under Section 156 (3) of Code of Criminal Procedure, before the Court of Chief Judicial Magistrate at Port Blair. The learned Chief Judicial Magistrate directed the investigating agency to hold an inquiry based on the

4 | P a g e guidelines of Jacob Mathew - versus - State of Punjab report as 2005

(6) SCC 1. In pursuance of the said direction of the learned Chief Judicial Magistrate, the concerned SHO asked the Director of Health Service to conduct a fresh inquiry with regard to the death of late Nikhil and submit a report indicating whether there was any medical negligence on the part of the alleged doctors.

6.

Hence, based on the judgment of the Hon'ble Supreme Court, on 03.08.2022 the respondents constituted a second committee with Dr. Saji Vargheese as Chairman and Dr. Narayan Rajaram, Dr. Julie Abraham, Dr Ashwini Kumar and Dr. Krishna Priya as members. The said second committee submitted its report on 12.08.2022, concluding that the petitioner is guilty of medical negligence. Thereafter an FIR No. 128/2022 under Section 304 (A) of Indian Penal Code was lodged on 18.08.2022. 7.

Being aggrieved by the said second committee report, the petitioner has preferred the present writ petition.

8.

Learned counsel for the petitioner submits that the second committee report was prepared without following the principles of natural justice. It is the submission of the learned counsel for the petitioner that the inquiry committee ought to have comprised of ENT expert who were in the grade of Professor. Further, the members in the said committee should have been independent members. However, Dr. Saji Vargheese, the Chairman of the second committee was known to the family of the complainant and was involved in providing treatment to the deceased.

5 | P a g e The only ENT Specialist in the said committee was a private practitioner and was a junior doctor without having adequate experience and qualification. Further, another member of the committee, Dr. Julie Abraham was also involved in the treatment of the deceased Nikhil. Hence, according to the petitioner, the committee which prepared the second report was not an independent one. Learned counsel for the petitioner submits that the first committee had exonerated the petitioner, however, the second committee constituted by the respondents have held the petitioner to the negligent without any valid reason. Petitioner also pointed out that no post-mortem was conducted and the actual cause of death could not be ascertained. In view of the same, the petitioner prays for setting aside of the second committee report. 9.

Learned counsel for the respondents submits that the second committee was constituted as per the direction of the learned Chief Judicial Magistrate and the same was constituted based on the judgment of Jacob Mathew (Supra). An FIR No. 128 of 2022 dated 18.08.2022 under Section 304 (A) of Indian Penal Code has been registered against the petitioner. Further, learned counsel for the respondents submits that even the first committee report had highlighted the negligence on the part of the petitioner and that was a reason a advisory memo was issued against the petitioner. It is further submitted by the counsel for the respondents that the question whether medical negligence committed by the petitioner amounts to criminal negligence or not is a matter to be

6 | P a g e decided by the criminal Court. In view of the said submission, the learned counsel for the respondents prays for dismissal of the present writ petition.

10.

This Court has heard the arguments advanced by both the parties and has perused the record.

11.

From the perusal of the record, it reveals that the second medical committee was constituted as per the direction of the criminal Court wherein it had directed the constitution of the medical board in accordance with the judgment of the Hon'ble Apex Court in Jacob Mathew- (Supra). As per the said judgment, the investigating officer should obtain an independent and competent medical opinion preferably from a doctor in Government service from the same branch of medical practice. It is expected that an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation shall be done. An independent and competent medical opinion is required to find out if there was any medical negligence committed by the concerned doctor. The term medical negligence has been elaborated by the Hon'ble Supreme Court in the said judgment:- "Para 48 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

7 | P a g e 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." 12.

In the present case the respondents constituted the second medical committee as per the direction of the Hon'ble Supreme Court. The duty of the said committee was to find out whether the petitioner has committed medical negligence in terms of the above said judgment. 13.

The second committee was constituted with Dr. Saji Vargheese as Chairman and Dr. Narayan Rajaram, Dr. Julie Abraham, Dr. Ashwini Kumar and Dr. Krishna Priya as members.

8 | P a g e 14.

While constituting the first committee, Dr. Saji Vargheese was originally named as a member of the said committee. However, the petitioner raised an objection regarding Dr. Saji Vargheese since he was known to the deceased's family and was also part of the team of doctors who treated the deceased. Considering the objection raised by the petitioner as valid, the respondents had reconstituted the first medical committee, removing Dr. Saji Vargheese from it. However, while constituting the second medical committee, the respondents included Dr. Saji Vargheese as Chairman of the said committee. Further, Dr. Julie Abraham was also part of the team of doctors who treated the deceased earlier and was also part of the first committee. Though, the petitioner had not raised any objection regarding Dr. Julie Abraham. 15.

The team of doctors who treated the deceased had already formed an opinion regarding the course of treatment adopted by the petitioner. As far as Dr. Saji Vargheese is concerned, at the time of treatment, he was of the opinion that the course of treatment adopted by the petitioner was not correct. According to him, the petitioner ought to have conducted the incision and drainage under general anaesthesia. However, it was the stand of the petitioner that the said procedure was risky at that stage and hence, he did not perform the same. It is expected from the second committee to evaluate the two opinions and arrive at an independent conclusion as to whether the said procedure adopted by the petitioner

9 | P a g e amounts to negligence as explained by the Hon'ble Supreme Court in Jacob Mathew's (Supra) case.

16.

Since Dr. Saji Vargheese was already of the opinion that the procedure adopted by the petitioner was faulty, the respondents ought not to have included him as part of the second medical committee. Secondly, Dr. Saji Vargheese was not an independent person since he was known to the family of the deceased and was also involved in treating the deceased. Due to this fact he was removed from the first committee. Now to make him the Chairman of the second committee does not inspire confidence of an independent member in the committee. This being the position, this Court is of the considered view that the constitution of the second medical committee was not in accordance with the mandate of the Hon'ble Supreme Court in Jacob Mathew's (Supra) case. 17.

In view thereof, the present writ petition is allowed and the constitution of the second medical committee and its report dated 12.08.2022 are hereby quashed.

18.

The respondents are directed to constitute a fresh medical committee within a period of four weeks from the receipt of this order, strictly in accordance with the judgment of the Hon'ble Supreme Court in Jacob Mathew's (Supra) case. The said medical committee should comprise of independent and impartial doctors who were not part of the team of doctors who had treated the deceased or were members of the first committee.

10 | P a g e 19.

It is also made clear that this Court has not expressed any opinion qua the medical expertise, or independence or impartiality of Dr. Saji Vargheese or any other doctor who were part of the second medical committee. The newly constituted medical committee should examine whether the petitioner has committed any medical negligence in terms of the judgment of the Hon'ble Supreme Court in Jacob Mathew's (Supra) case.

20.

With the above direction, the present writ petition is disposed of. 21.

Parties to act on a server copy of this order duly collected from the official website of the Hon'ble High Court at Calcutta. (Gaurang Kanth, J.)