Indore: Granting relief, the Indore bench of Madhya Pradesh High Court recently quashed criminal proceedings against a doctor who was earlier accused of leaving a sponge inside the stomach of a patient during a childbirth operation in 2016.
The HC bench of Justice Subodh Abhyankar opined that there was no document on record to demonstrate that the time for which the sponge remained in the patient’s stomach was relatable to the time when the doctor operated on her. Therefore, the bench opined that no purpose would be served to allow the trial to proceed further against the petitioner doctor.
Back in 2016, the patient, with labour pain, was taken to the Government Hospital Shujalpur and the concerned doctor, posted as a gynaecologist at the hospital, initially advised the family to admit her to a private hospital. However, since the complainant’s family insisted, the doctor operated on the patient on 27.12.2016 and consequently, she was discharged a few days later.
After giving birth to the child, as she was suffering from constant pain, she got herself examined through various investigating agencies and her CT scan was also conducted. It was found that she had some foreign body lying in her stomach. So, she was again operated on 11.03.2017 by Dr. Jain of SNG Hospital.
It was alleged that the second doctor found that cotton (sponge) was left behind in the earlier operation, which had been contained and had started to rot. The patient claimed that after the surgery, she had been continuously suffering from various problems and she was also required to defecate through an artificial outlet, which resulted in serious suffering on the part of the complainant.
Therefore, she lodged an FIR against the first treating doctor under Sections 269, 337, 336 and 308 of the Indian Penal Code, 1860 and the consequent criminal proceedings arising out of Crime No.134/2017. Challenging the criminal case, the doctor filed a plea under Section 482 of the Cr.P.C. and approached the Madhya Pradesh High Court seeking relief. Back then, the petitioner had pleaded that the Investigating Officer had not adhered to the decision rendered by the Supreme Court in the case of Jacob Matthew.
The Court allowed and disposed of the plea on 04.09.2017 directing the investigating officer to adhere to all the documents available in the record of the hospital related to the disputed operation and strictly follow the direction of the Court passed in the case of Dr.B.C. Jain and Jacob Mathew. Later, the petitioner doctor filed another plea seeking intervention from the court.
Subsequently, as per the court order, a Medical Board was formed and in the report dated 24.04.2018, the Board opined that although, it was found that a sponge was indeed left in the petitioner’s stomach at the time of her delivery, it could not be said positively whether it was left in the first pregnancy or the second pregnancy.
The report also referred to the medical test by Dr. K.K. Agarwal and other doctors, in which it was stated that a sterilized sponge can remain in the stomach without any difficulty for years together and it can cause problems after the subsequent operation and had there been any FSL report, it would have been helpful to fix the liability of the petitioner and in the absence of the same, no positive opinion could be submitted.
Relying on the report, the doctor’s counsel submitted that the medical team comprising three senior doctors clearly opined that it was not possible to find out if the negligence was of the petitioner or of the other doctor who had operated upon the petitioner during her first pregnancy and in such circumstances, no purpose would be served to prosecute the petitioner. It was further argued that a case under Section 308 of IPC would not be made out since the petitioner doctor had no intention to cause such injury to the complainant.
While considering the matter, the Court observed that there was no dispute regarding the fact that some sponge was left in the complainant’s stomach, which resulted in extreme pain to the patient. Therefore, the only question was whether the petitioner, who was the treating doctor of the complainant in her second pregnancy, could be prosecuted for the offences alleged against her.
The Court took note of the medical opinion given by the Medical Board of Ujjain and the Medical Board, Indore on 08.04.2020. Referring to the report by the Ujjain Medical Board, the HC bench observed, “It is found that in the earlier report, only a possibility has been expressed that such sponge might have been left by the petitioner, although it was also stated that it is not possible to opine as to how old was the sponge and the sponge be sent for forensic report, which was taken out by Dr. *** Jain in a surgery, which took place on 11.03.2017 and as per the Histopathology report, it was found to be a sponge whereas, the report prepared by the Medical Board at Ujjain is a detailed report also emphasizing that as per the medical journals that a sterilized sponge can remain in the stomach without any difficulty for years together, however, it can cause trouble in the subsequent operation and it could have been verified only in the FSL report and in the absence of the same, it is difficult to give any positive opinion.”
“Thus, in both the reports, the doctors have emphasized on requisitioning the FSL report, which admittedly, is not available on record, as the sponge was never sent to the forensic laboratory,” the Court noted.
The Court observed that in order to fix the criminal liability on the petitioner, it was required to note whether there was sufficient material available on record to bring home the charges levelled against her. At this outset, the bench referred to the Supreme Court’s decision in the case of Jacob Mathre (Supra), where the Apex Court also dealt upon the degree of proof in civil and criminal liability.
Perusing the records, the High Court observed that after the investigation, the charge-sheet was filed on the premise that the negligence to leave the sponge in the complainant’s stomach was on account of negligence of the petitioner.
“…however, in the absence of the FSL report of the sponge, it is impossible to establish that the sponge was left behind by the petitioner after operation of the complainant,” the Court observed.
Therefore, the Court opined that the charges framed against the petitioner would not be made out. It noted,
“In such circumstances, this Court is of the considered opinion that the charges so framed against the petitioner would not be made out even assuming the case of the prosecution to be correct as the Medical Board in its report dated 24.04.2018, after citing various journals has clearly opined that a sterilized sponge can remain in stomach for years together without any complication to the patient, however, it may cause trouble in the second operation. The Board has also opined that had the specimen obtained from the petitioner’s stomach been sent to FSL, in that case, the period of time for which the sponge was left in the stomach could have been ascertained, however, in the absence of the FSL report, such finding is not possible and not justifiable.”
Opining that no purpose would be served to allow the trial to proceed further against the petitioner,
“In such facts and circumstances of the case, this Court is of the considered opinion that no purpose would be served to prosecute the petitioner when the prosecution itself has not filed any document on record to demonstrate that the time for which the sponge remained in the complainant’s stomach was relatable to the time when the petitioner performed operation on the complainant. In such circumstances, even though various allegations have been levelled by the complainant in the FIR, this Court is of the considered opinion that no purpose would be served to allow the trial to proceed further against the petitioner.”
Allowing the plea, the High Court bench quashed the FIR dated 31.03.2017 lodged at Crime No.134/2017 at Police Station Shujalpur, District Shajapur under Sections 269, 337, 336 and 308 of the Indian Penal Code, 1860, along with the charge-sheet and consequent criminal proceedings.
However, the bench allowed the complainant to avail the civil remedies and ordered, “… this Court is also of the considered opinion that the degree of proof in criminal trial which is beyond reasonable doubt is much more stringent than the degree of proof as is required in a civil case, which is preponderance of probability. In such circumstances, liberty is reserved to the complainant to proceed against the petitioner by taking recourse of the civil remedies available to her under law, if not already initiated, in which, the time spent in prosecuting the criminal proceedings shall stand excluded from the period of limitation.”
To view the Court order, click on the link below:
https://medicaldialogues.in/pdf_upload/mp-high-court-238154.pdf
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