|Year : 2010 | Volume
| Issue : 3 | Page : 275-277
Thiopentone - Medicolegal views
AL Meenakshi Sundaram
GC Member, ISA National… Chairman, National Legal Aid for Anesthesiologists,
|Date of Web Publication||10-Jul-2010|
A L Meenakshi Sundaram
GC Member, ISA National… Chairman, National Legal Aid for Anesthesiologists
|How to cite this article:|
Meenakshi Sundaram A L. Thiopentone - Medicolegal views. Indian J Anaesth 2010;54:275-7
Judgment delivered by The Honourable Mr. Justice S. Nagamuthu in the High Court of Judicature at Madras Dated: 13.04.2010
Crl. R.C.No.1287 of 2005
1. Dr. D. Rajendran
2. Dr.R.Vijaya Nirmala
3. The Inspector of Police, Grand Bazar Police Station ...Respondents
| Order|| |
2. The facts of the prosecution case in brief are as follows:- The respondents 1 and 2 are registered medical practitioners. The 1st respondent is a surgeon and the 2nd respondent is an anaesthetist. The deceased in this case was one Kanniyakumar. He was admitted at "xxxxx Nursing Home" at Pondicherry on 27.02.2002 for treatment for stone in gall bladder. He was advised to undergo surgery. About 1.30 p.m., he was taken to the operation theatre. The 2nd respondent herein administered general anaesthesia. The 1st respondent was to conduct surgery. But, even before the surgery could be commenced, the said Kanniyakumar collapsed on the table and died. In respect of the death of the deceased, on the complaint by the petitioner, the case was registered by the 3rd respondent under Section 174 of the Code of Criminal Procedure. During investigation, it was found that the death was due to the presence of anaesthetic drug known as sodium thiopental. The blood samples were taken from the dead body and sent for chemical analysis. According to the analyst's report, there was 14.5 micro gram of thiopental / ml of blood. The Doctor who conducted post-mortem opined that the death was due to the said drug. Alleging that the anaesthetic drug administered was excess in quantity and that it amounts medical negligence, charge sheet was laid by the 3rd respondent against both the 1st respondent (Surgeon) and the 2nd respondent (Anaesthetist). The respondents 1 and 2 denied the accusations.
3. P.W.9 is the Chemical Analyst. On examining the blood samples of the deceased, he gave opinion that 14.5 micro gram of thiopental / ml of blood was found in the blood. P.W.8 is the Doctor who conducted autopsy on the body of the deceased. He has opined that the death in this case was due to the presence of 14.5 mcg of thiopental / ml of blood.
4. Having considered all the above materials, the trial Court acquitted the respondents 1 and 2. P.W.1, the de facto complaint is aggrieved by the same. That is how he is now before this Court with this revision.
5. The primary contention of the learned counsel appearing for the revision petitioner is that the evidence of P.Ws. 8 and 9 would clearly establish that the death of the deceased was due to administration of excess volume of anaesthetic drug viz., thiopental by the 2nd respondent. Thus, according to him, the prosecution has proved its case beyond reasonable doubt. But, the trial Court has overlooked the evidences of P.Ws. 8 & 9 and thus it has committed apparent error in acquitting the respondents, he contended.
6. Per contra, the learned senior counsel appearing for the respondents 1 and 2 would submit that the power of this Court in respect of revision against acquittal is very limited. He would point out that unless it is found that the trial Court has either committed a serious procedural irregularity resulting in miscarriage of justice or that the material evidence has been either overlooked or misread by the trial court, it is not permissible for this Court to reappraise the evidence and to substitute its own conclusion in the place of the conclusion arrived at by the trial court. He would further submit that P.Ws. 8 and 9 are not at all specially skilled experts in the field of anaesthesia and therefore, the opinion offered by them cannot be taken into account for any purpose. In this regard, he would rely on a judgement of the Hon'ble Supreme Court in State of Himachal Pradesh v. Jai Lal and others, AIR 1999 SC 3318. He would further add that in so far as the allegations of medical negligence are concerned, it has now been well settled by the Hon'ble Supreme Court in 2005 (6) SCC 1 and 2009(3) SCC 1, wherein the Hon'ble Supreme Court has held that unless the prosecution establishes the gross negligence on the part of the Doctors, they cannot be held guilty for medical negligence so as to convict them under Section 304-A of IPC.
8. The prosecution relies only on the evidences of P.Ws.8 & 9 to prove the alleged negligence on the part of the respondents 1 and 2. So far as P.W.9 is concerned, he is not a professional Doctor and he is only a Chemical Analyst in terms of Section 45 of the Evidence Act. Since he is an expert only in chemical analysis, he can offer opinion only in respect of the results of the chemical analysis conducted by him. But, not stopping with that he has gone further to offer yet another opinion to say that the presence of 14.5 mcg of thiopental / ml of blood would cause the death of an individual. To offer this opinion, he is not a specially skilled person and therefore he is not an expert.
9. Applying the said principles, if the facts of the present case are analyzed, P.W.9 is not an expert to speak about the cause of death. Therefore, the opinion of P.W.9 in this regard is not at all admissible in evidence as he does not satisfy the requirements of Section 45 of the Evidence Act. Thus, the said opinion of P.W.9 is liable to be rejected.
10. Now, coming to the evidence of P.W.8, the learned senior counsel for the accused would submit that though is he a Forensic Expert, he is not an expert in the field of anaesthesia and therefore, the opinion offered by him that the death in this case was due to the presence of 14.5 mcg of thiopental/ml of blood should be rejected. It is because P.W.9 has opined, P.W.8 has only reiterated the same. Thus, a close reading of evidence of P.W.8 would go to show that it is not at all his opinion and instead, it is the opinion of P.W.9 which he has only reiterated. Since P.W.9 himself is not an expert and since his opinion is liable to rejected, consequentially, the opinion of P.W.8 is also liable to be rejected.
12. There is yet another reason to reject the evidence of P.W.8. An expert is expected to give an opinion using his skill in the subject. Then only his evidence will be primary evidence and relevant under Section 45 of the Evidence Act so as to be admitted. If the opinion is borrowed from someone else, his evidence is either hearsay or secondary in nature. It is not his opinion at all. If it is so, his evidence is not relevant as it is not his opinion, but the opinion of someone else. For this reason also, the evidence of P.W.8 is liable to be rejected.
14. Now, the question is whether a Doctor, who has got expertise knowledge in Forensic Medicine can be termed as an Expert in the field of Anaesthesia also.
15. During the course of argument, the learned counsel appearing on either side submitted that they have got no objection for this Court summoning the expert in the field of anaesthesia and to get his opinion based on the medical records available. Since this Court felt that ultimate endeavour is only to find out the truth and render justice, it is necessary to summon such an expert suo motu in exercise of power under Section 391 of the Code of Criminal Procedure. Accordingly, one Professor of Anaesthesiology from Chennai, was summoned and examined as a court witness [C.W.1] on 09.04.2010. On going through the case sheet pertaining to the treatment given to the deceased, post-mortem certificate and the chemical analysis report, the Professor has deposed, inter alia, as follows:-
"In the case on hand, 14.5 micro gram per ml of thiopental was found which according to me is well within the permissible level of drug to be administered to produce anaesthesia. Going by the level of thiopental found in the blood of the deceased in this case, I am sure that 14.5 micro gram of thiopental / ml found in the blood of the deceased could not have caused the death at all. I differ from the opinion offered by the Doctor who had given opinion on conducting post-mortem in respect of cause of death. In my definite opinion, the cause of death in this case, surely was not due to the presence of 14.5 mcg of thiopental / ml of blood.
When his definite opinion is that the cause of death was not due to administration of thiopental , I find no other evidence to hold the respondents 1 and 2 guilty of medical negligence.
To prosecute a medical professional for negligence under criminal law, it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent..
21. In view of all the above, I do not find any infirmity in the order of acquittal recorded by the trial court warranting interference at the hands of this court.
22. In the result, the criminal revision fails and the same is accordingly dismissed.