Orissa High Court: While hearing a case on medical negligence. S. K. Sahoo, J. started his judgment with a famous quote by author George Bernard Shaw- “We have not lost faith, but we have transferred it from God to medical profession.” Further emphasizing upon the value of doctor in a common man’s life, the confidence he has in a doctor and the duty of care that the doctor owes towards people because of his profession, he stated that a doctor is treated like Dhanvantari- Physician of gods and the God of Ayurveda.
The petitioner- a doctor filed a revision petition against the impugned order by SDJM in taking cognizance of offence under S. 304 Part-II of the Penal Code and issuance of process against him. The prosecution had alleged that the doctor was negligent in treating the pregnant wife of complainant and while her delivery. After due course of investigation and examination of witnesses, the investigating officer came to the conclusion that the deceased died due to the act of the petitioner who was the owner of Women’s Care Nursing Home. He concluded that the doctor though had no intention of causing death of the deceased but had sufficient knowledge that such bodily injury i.e. rupture of uterus caused due to pulling out the unborn baby forcefully by means of forceps was enough to accelerate the death and cause death in ordinary course of nature. Also, no proper measures were taken by him to take out the baby from the womb when it was alive.
The investigating officer was also of the opinion that the petitioner knowingly kept the deceased in the Nursing Home with assurance to the complainant for normal delivery. The counsel for the petitioner-accused contended that no post-mortem had been conducted on the dead body of the deceased to ascertain the truth of the accusation. It was contended that when the deceased was brought to the Nursing Home, she was diagnosed as a case of Abruptio Placentae causing concealed hemorrhage and the condition of the deceased was very low.
Ascertaining the situation objectively, the Judge came to the conclusion that the doctor prima facie appeared to have not exercised the skill with reasonable competence and did not adopt the practice acceptable to the medical profession of that day. The Court went on to explain that it it was the duty of the petitioner to explain the deceased or at least the complainant, chances of success and the risk of failure of the suggested treatment and inform them about the foreseeable risks and possible negative effects of the treatment keeping in mind the patient’s specific condition.
The Court referring to Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648 held that there were no prima facie materials for commission of an offence under Section 304 Part II IPC. However, the materials were sufficient under S. 304-A IPC. The petition was disposed of with the direction to trial court that it was free to assess the evidence which would come on record during trial. [Dr. Subas Chandra Dash v. State of Orissa, 2017 SCC OnLine Ori 132, decided on 27.02.2017]