medical negligence jacob mathew vs state of panjab.

IN THE HIGH COURT OF KERALA

IN ITS EXTRA-ORDINARY ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 25747OF 2017

Dr.Jilse George  … Petitioner

  Versus

State of Kerala and others  … Respondents

ARGUMENT NOTES SUBMITTED BY SHRI MATHEWS J. NEDUMPARA, ADVOCATE, ON BEHALF OF MS. SHAMNA TASNEEM, A SECOND YEAR MEDICAL STUDENT OF GOVT MEDICAL COLLEGE, KALAMESSERY WHOSE LIFE WAS KNOCKED OUT DUE TO THE NEGLIGENCE OF THE PETITIONER IN THE ABOVE WRIT PETITION.

RESPECTFULLY SHEWETH:

1.   The question whether the above Writ Petition at the hands of the Petitioner, who is accused of causing the death of Ms. Shamna Tasneem, a second year medical student of Government Medical College, Kalamessery on account of the gross negligence and want of due care on his part, seeking a mandamus that the investigating officer shall not act or rely on Exhibit P9 report of State Level Apex Body in the matter of investigation in Crime No 152/CR HHW-II EKM/2016, Crime Branch (Criminal Investigation Department ) ,Hurt and Homicide Wing –II , Ernakulam, because  the report by the State Level Apex Body is biased , and against all natural Justice and contrary to guideline  issued  by the Supreme Court in Jacob’s case etc is a question of large public importance, not merely of the immediate relatives of Ms. Shamna who oppose the Writ Petition by seeking to implead themselves.

2.  Every crime, in law, is considered to be an offence against the sovereign, the State.  Every citizen, no matter whether he is privately affected or not, therefore, has a constitutional and legal right to ensure that the crime is investigated with objectivity, impartiality and efficiently and the culprit is brought to book, while no innocent man is put to any harassment or jeopardy.

3.  It cannot be gainsaid that in the eyes of the common people our criminal justice delivery system has completely broken down; that the investigating agencies have largely failed to investigate offences on time impartially, efficiently and independently and bring to book the culprits; that our Courts too have failed to ensure expeditious, just and a fair trial so that no innocent person is convicted and, equally, that no guilty person is allowed to escape punishment taking advantage of the loopholes and deficiencies of our justice delivery system.  The jubilation of the common man coming out in millions in the different parts of the country bursting fire crackers and distributing sweets the moment the news broke out that the four accused who allegedly raped and murdered a veterinarian in Hyderabad speaks volumes about the anguish, pain and concern of the public at large over the failure of our justice delivery system.  There are innumerable reasons for the total breakdown of the criminal justice delivery system which, undoubtedly, is the perception of the common man, and one of the main reasons is the judicial interference invoking Article 226 of the Constitution.  The instant is a classic example.  Before I delve into the facts of the case, let me state briefly what is the scope of the jurisdiction which this Hon'ble Court enjoys under Article 226 of the Constitution in a case as the instant one.

4.  The King as the ultimate founder of justice intervened and granted prerogative writs when the common law Courts failed to do justice.  With large number of subjects coming to the King with grievances against the Courts established by him, a new system of Courts called Chancery Courts came into existence, giving predominance to equity over law with a Court of Appeal as an appellate Court and the House of Lords, the Parliament, as the supreme judicial Tribunal.  At least from the days of Chief Justice Coke, namely, in the regime of King James I , two streams of justice administration came into existence, both streams flowing side by side without its waters ever getting mixed.  However, with the enactment of the Civil Procedure Act of 1873 and 1875 the two streams of administration of justice merged into one and thereafter there existed no Chancery Court or of Equity stricto sensu.  In a sense, the Acts of 1873 and 1875 meant an end to the concept of prerogative writs, although the said terminology continues to be in existence and such writs are continued to be granted.

5.  The High Courts of Calcutta, Bombay and Madras, the chartered High Courts, came to be established under the Letters of Patent granted by the Crown. These High Courts were conferred with the jurisdiction to grant prerogative writs, which was not the case with the other High Courts.  Such jurisdiction to grant prerogative writs was granted only to protect the interest of the British citizens residing within residency towns and not beyond.  For instance, the Madras High Court was empowered to issue prerogative writs within the territorial limits of the province of Madras and not Madurai, which would mean that prerogative writ will not be extended to the city of Madurai.  When the Constituent Assembly was debating about the framing of the Constitution of independent India and of the powers of the High Courts, it was suggested as to why no prerogative writ jurisdiction, which was available to the aforesaid three chartered High Courts be not extended to all the High Courts.  During the British times, writ jurisdiction was not available to declare an Act of legislature or a statutory instrument as unconstitutional; that jurisdiction was in the exclusive province of the Civil Courts.  However, after the Constitution of India came into force, merely because the writ jurisdiction was extended to all the High Court’s; so too to the Supreme Court under Article 32, the said Articles, namely, Articles 226 and 32, came to be understood as conferring jurisdiction to declare even an Act of Parliament as unconstitutional and to adjudicate upon any controversy under the sun.  It is in the background of the said misconception of the writ jurisdiction that the relief sought for in the instant Writ Petition is to be examined.

6.  The prerogative writs, as briefly dealt with above, are directed against judicial and quasi-judicial Tribunals to keep them functioning within their legitimate domain and to act according to the judicial procedure, otherwise known as judicial review of judicial and quasi-judicial functions.  Prerogative writs were never granted against the sovereign, the executive and the legislature.  However, now a days, the writ jurisdiction is abused to such a great extent that Acts of Parliament and even constitutional amendments are set aside invoking the said jurisdiction, though the Supreme Court in Charanjitlal Choudhary v. Union of India, AIR (38) 1951 SC 41, soon after the Constitution of India came into force, in unmistakable terms held that nothing of the nature of a declaratory remedy can be granted under Article 32.  It is a fundamental principle of judicial review that matters which fall within the exclusive province of the legislature or the executive are not amenable to judicial review at all.  Way back in _________ the Privy Council made it abundantly clear that the judiciary, which exercises the sovereign function of the State, is sovereign in its domain and, likewise, the executive also is sovereign in its domain.  The police too, is absolutely sovereign in its domain as to the question whether or not a crime reported to it be investigated and, if yes, the manner in which, when and where it should be investigated. The only caveat is that the executive/police shall be functioning bona fide.  So long as the police acts honestly and within the four walls of the law in a matter like the instant one, namely, an investigation into the death of a young medical student resulting from the negligence of the Petitioner, which is a criminal offence, there is no scope or room for any sort of judicial interference.

7. The challenge to the report of Apex Body, which was a multi member specialized body consisting of experts such as the Director of Health Service as Convener, Director of Medical Education, Director General of Prosecution and Additional DHS (Vigilance) as its members is not justiciable in a proceeding of this nature, and this court cannot go into the factual conclusions arrived by the Apex Body which would amount to nullifying the contention drawn by the apex body based on medical records. There is no scope for judicial review of the opinion given by the expert body. Further the body is competent to enter into the question of criminal negligence since the Director General of Prosecution is included in the panel and it was expected to answer intrinsic legal aspects directly linked with medical issues also. Moreover, there is a rider in the circular dated 16.6.2008) issued by the Government that the expert panel /Apex body shall not in any manner interfere with or impede with the smooth investigation of any case by the police. 

8. The scope of Expert panel and Apex body is clear from the memorandum of circular and the decision of this Hon’ble Court in  Suvarna Vs Dr. Reni Philip and others (2014(1) KHC 112) the expert body is to give “ its views “ on the question , which may involve complicated  medical issues. The Hon’ble Supreme Court in Jacob Mathews case though did not explain in wide terms the scope of the medical opinion to be obtained but has clearly stated that medical opinion should be to give an independent and competent medical opinion applying Volam’s test (Volam Vs Friern Hospital management committee (1957 (1) WLR 582) to the facts collected in the investigation. This was explicitly explained in Suvarna case cited above, wherein it was held that investigating officer should be equipped with sound knowledge to take proper decision as to whether a criminal prosecution will lie or not against a doctor which will be possible with the aid of an expert panel.

9. The finding of the Apex body is that the death of the deceased is due to anaphylactic reaction following Ceftriaxone injection. Anaphylaxis is a serious allergic reaction that is rapid in onset and may cause death, the common causes for anaphylaxis include insect bites and sting food and medications. Davidson’s Principles and practice Medicine (22ndEdition) which refers to Anaphylaxis as a potentially life- threatening, systemic allergic reaction, caused by the release of histamine and other vasoactive mediators from mast cells. The risk of death is increased in patients with pre-existing asthma. The materials available on record show that, the patient collapsed immediately (2 minutes) after administering the antibiotic.

10. With regard to specific averments in the two Writ Petitions filed by the doctors, there is clear contradiction in the versions put forward by the petitioners. Going by paragraph No 6 of W.P 25747/17, it can be seen that the petitioner was informed of the condition of Shamna by the Principal of the medical college when he was about to reach his home and then and there he rushed to the hospital. But the timing of when he got the telephone call and the time he reached back the hospital is conspicuously absent all throughout pleadings in the writ petition, and this has been done to suppress his latches and negligence. Admittedly the petitioner had left the hospital at 2.40 PM and came back much after the crucial time by 4.45 only.

11. On the other hand in paragraph no 4 of W.P 26395/17 filed by Dr Krishna Mohan, it is claimed that he has alerted duty anesthetist, hospital superintendent, Cardiologist, M2 Unit Chief and Dr.Jilse George. Further it is stated that all of them except Dr.Jilse George reached the ICU immediately. Thereafter the petitioner goes on to say that Dr. Jilse George reached the MICU by 5 pm and he immediately instructed Dr. Bino Joseph to complete the case records form which shows his unfair dealing and abetment to create and manipulate case records as per his wish after the unfortunate incident had happened. A conjoint reading of the two Writ Petitions filed by the doctors would clearly show the gross negligence of Dr. Jilse George and Dr.Krishna Mohan beyond doubts

Furthermore, a conjoint reading of two departmental enquiry reports, i.e. Exhibit P-3 and P6, conducted after elaborate interview and recording of statements from all stake holders including the petitioners herein, would expose the total failure of the system and the culpable negligence on the part of the doctors who treated the deceased and in short, it would be a clear charge sheet against the erring doctors herein. It is clearly stated in Exhibit P3 report that ‘‘a casual indifferent dealing if not callousness was very palpable at every stage in the care and treatment given to Shamna Thasneem’’ 

It is also recorded in Exhibit P6 report that in the two written reports submitted to the enquiry committee (Documents No.11 and 12) Dr.Jilse George repeatedly tried to substantiate that everything happened after his duty hours on 18.7.16 and hence he is not directly responsible. But there is a clear finding in the report that the duty roster signed by him shows that he is on “on call duty” on 18/7/16 from 2.PM on wards. Moreover, on admission days, Chief of the Unit is on duty for 24 hours. It is also recorded that in several occasions, he had put blame on many others which shows his real nature. 

12. There is clear indictment against Dr Jilse Geroge in paragraph no 10 of W.P 26395/17 filed Dr.Krishna Mohan by quoting an extract from Exhibit P2 (same is marked as Exhibit P6 in W.P 25747/17) report by Joint DME that ”……….In the system here there is grave inadequacy of the training and mentoring for the H.S as well as the P.G student. There is lack of training for the P.G student in diagnosing and managing in acute emergency. Patients coming to causality may not be getting adequate care and necessary skill in their management is not executed. Training of H.S and P.G students in the department is the responsibility of the HoD and also of the administration’’. This shows the irresponsible and callous attitude of Dr. Jilse George which is evident all throughout the case at hand. 

13. Similarly in the departmental enquiry report by Dr.Suma T.K (Page 45 in Exhibit P-6 of W.P 25747/17) it is recorded that ‘’ even though Ms Shamna came to the causality twice on 17/7/16 with symptoms, she was  not  examined by the duty medical officer and was seen by house surgeon and sent back to the hostel. The explanation given by the house surgeon and DMO Dr. Fincy K.P were different. This clearly shows the functioning of the causality and ward.’’ In this regard it is pertinent to note that as per MCI guidelines, no house surgeons should dispose off any patient without the supervision of a senior registered doctor. All H.S are directly under the control of Unit Chief who holds responsibility over their functioning and who usually gives guideline as to how they should function. Whereas in the case of Shamna, the house surgeon who treated her did not mention his name in causality slip nor even attempted to consult or inform the duty MO Dr. Fincy K.P, Junior Resident regarding the treatment given to Shamna even though she was a MBBS student of that institution which is highly irregular and illegal.

14.  Without going into other intricacies on this aspect, it suffices to say that whether the death of Ms. Shamna is the result of the gross negligence on the part of the Petitioner and the hospital, it is for the police to investigate into it and find out the truth.  That is their exclusive province.  So long as the police acts fairly, impartially and independently and not on extraneous or illegal considerations, nobody has jurisdiction, including this Hon'ble Court under Article 226 of the Constitution, to interfere therewith.  The order dated 03/08/2017 passed by this Hon'ble Court upon the plea of the Petitioner that the police could not have acted on the medical report of a State level Apex body constituted in terms of the Government Circular (Exhibit P4 to the above petition), which constitutes to be a guideline in the matter of investigation of medico-legal cases, amounts to interference with the investigation of a criminal case, which is in the exclusive province of the police, and  now the investigation is stalled  form 3/8/2017 onwards.

15.  The ground on which a mandamus was sought by the Petitioner directing the police not to investigate the death of Ms. Shamna in terms of the guideline/Circular (Exhibit P4 to the above petition), which was issued by the Government of Kerala in compliance with the directions of the Supreme Court in Jacob Mathew Vs State of Punjab is that one of the doctors of the apex body is biased.  It is the Petitioner’s plea that the District level Committee did not consider it to be a case of medical negligence, except for the dissent of Dr.Liza John, the forensic expert, who alone is really independent – the others in the Panel being closely connected to the Petitioner and that since the District level Committee did not refer to the Apex Body, even if the difference of opinion recorded by the forensic expert, the Apex Body could not have examined the question as to whether or not the death of Ms. Shamna was due to negligence on the part of the Petitioner.

16.  On the aforesaid two grounds the above Writ Petition came to be instituted and the relief therein was sought for. The interim injunction granted by this Hon'ble Court staying the investigation into the offence has meant interning with bones the very case of offence itself; it has no foundation in law but has resulted in grave injustice, undermining the public faith in the criminal justice delivery system.  Nothing could have been a more affront to reason, irrational and contrary to the first principles of jurisprudence than the assertion of the Petitioner that the police should not investigate the offence and find out whether the death of Ms. Shamna is due to medical negligence and, if yes, who all are responsible for the same.  It is submitted with utmost respect that the Circular (Exhibit P4), which has been issued in the purported compliance with the judgment of the Supreme Court in Jacob Mathew Vs State of Punjab is wholly unconstitutional; it amounts to an obstruction against the police from discharging its sovereign function, investigation of a crime and bring the offenders to book.  The Criminal Procedure Code, the time-tested Code, provides the manner in which investigation of an offence is to be conducted and the person found guilty to be prosecuted.  To state at the cost of repetition, the police ought to have absolute freedom to decide whether or not an offence is to be investigated and, if yes, the manner in which, when and where it should be investigated, as held in:

1. King Emperor v. Khawaja Nazir Ahmed, 1945 Privy Council, 18

2. State of West Bengal v. S.N. Basak, (1963) 2 SCR 52;

3. State of Bihar v. JAC Saldanha, (1980) 1 SCC 554

4. D. Venkata Subramanian v. M.K. Mohana Krishnamachari, (2009) STPL Web 31 SC 1

 The Circular (Exhibit P4) is not a statutory instrument but an administrative instruction, which the State Government was left with no choice than to issue in view of the judgment of the Supreme Court in Jacob Mathew Vs State of Punjab, which, it is respectfully submitted, is a judicial legislation.

17.  Doctrine of Bias:-It is a fundamental principle of natural justice that justice should not only be done but it should undoubtedly and manifestly be seen to be done [Lord Hewart in R v. Sussex Justices, (1924) 1 KB 256] and that Judges, like Caesar’s wife, should be above suspicion (Justice Bowen in Leeson v. General Council of Medical Education, 1886-90 All ER 78).  It is said that justice must be rooted in confidence and the confidence is destroyed when right-minded people go away thinking “the Judge was biased” [Lord Denning in Metropolitan Property Company v. Lannon, (1969) 12 KB 577.  “The question is not whether in fact he (the Judge) was or was not biased. … Public policy requires that there should be no doubt about the purity of the administration, any person who is to take part in it should not be in such a position that he might be suspected of being biased” [Lord Asher in Alison v. General Council, (1894) 1 QB 750, and Ranjit Thakur v. Union of India, AIR 1987 SC 2386]. The test is not the actual bias, not even the possibility of bias, but reasonable suspicion that bias might infect a decision. (R v. Sussex Justices, cited supra). The Court does not look and see if there was a real likelihood that he would or did, in fact, favour one side at the expense of the other.  The Court looks at the impression which would be given to other people. (Metropolitan Property Company, cited supra).  Therefore, even if this Hon'ble Court were to decide the issue fairly and objectively, it would not have been seemed to be so. The principle ‘nemo debet esse judex in propria causa -no one can be judge in his own cause, nay, nemo potest esse simul actor et judex- no one can be at once suitor and judge’ is applicable only to a judicial proceedings and can have no application to a proceeding which is purely administrative in nature. For instance, a Collector empowered with an administrative function can get it executed through his subordinates.  There is no obligation to perform the function all by himself if he can delegate it to a subordinate in whom he has absolute faith. Investigation of an offence may require an action in disguise, even of a camouflage, sometime an investigating officer conducts the investigation disguising himself as a beggar or a sanyasi or a trader. It is inconceivable that in a writ petition instituted through a lawyer a plea has been raised that the inquiry, which is purely of an administrative nature, a mere precaution so as to ensure that doctors who perform a job requiring great expertise are not unnecessarily subjected to criminal prosecution, is vitiated because the principles of natural justice are not observed when observance of such principles could in no way be contemplated.

18. There is a clear distinction between investigation and trial. I beg to respectfully submit that there are only two principles of natural justice, namely, audi alteram partem-hear the other side, and nemo debet esse judex in propria cause-no one can be judge in his own cause to be observed in a judicial proceeding, in the trial which is to ensue once the investigation is complete and the trial to be commence. It is submitted at the cost of repetition that the inquiry committee at the apex level, so too at the district level, contemplated in furtherance of the circular dated 16.06.2008. issued by the state govt. which is not mandated by law, but was required to be issued in terms of the judgment of the Supreme Court in Jacob Mathew case is no judicial or quasi judicial proceeding, it is only a mechanism intended to protect doctors from being subjected to unjust prosecution, the offence of medical negligence alleged against them requiring certain amount of expertise which the investigating agencies often lack. To canvass that even such a mechanism, a safety wall, which falls in the exclusive domain of the executive, an administrative function, is also amenable to challenge on the ground of bias would mean that it is impossible to investigate an offence of medical negligence alleged against a doctor, which would also scuttle the process of investigation of crimes. That the investigation into the offence stands stayed for more than two years i.e from 03.08.2017 onwards because of the interim order at the hand of this Hon’ble court on a plea of bias, a plea without  legs to stand, is a classic example of the extent to which the prerogative writ jurisdiction has been abused.

19. Before parting with, I beg to bring to the notice of this Hon’ble Court the ridiculous extent to which the doctrine of precedent has been abused in the name that under Article 141 of the constitution the judgments of the Supreme Court are laws of the land. It is unfortunate that in this country the doctrine of res judicata and precedent are grossly misunderstood. The concept of precedent is founded on the common law principle of stare decisis et non quieta movere “ to stand by decisions and not disturb the undisturbed. What was important was the principle namely, the reason for the decision which a judge would have evolved for the first time to resolve a controversy before him because there was none available to do so. The concept of ratio decidendi, the reason for the decision, is undoubtedly a very useful source of law. In employing the doctrine of stare decisis, the only consideration was the utility of the principle evolved and when that principle is repeatedly used by different judges, having found the said principle to be a worthy one to be adopted, it become a settled principle of law, a binding authority. Often the question was asked, who evolved the principle? Only the stature of the judge and the reason behind the principle were considered as the relevant aspect.

20. There can be no quarrel as to the utility of the concept of precedent, had it been put in practice what it actually meant to be. However, as G.W. Paton and many other jurists had lamented, in America, India and other common law countries, with the reported judgments running into thousands and thousands of pages, judgments being read as statues, nay, in substitution thereof, we have reached a situation where the concept of precedent, a tool employed by courts to apply the correct law, has made the law into a riddle. Today in India nobody knows what is the law, despite every conceivable aspects of law being subjected to legislation. It is difficult to say that the Supreme Court in its existence for almost 70 years had evolved one single principle which should act as a precedent inasmuch as the court had evolved a principle for the resolution of an issue which was before it for which no principle was available, the reason for the said decision, namely, the principle to be a precedent to be applied in future cases. The only principle which it has evolved, which could be said to be a precedent, is the concept that fundamental rights can be abrogated, but not the ‘basic structure of the constitution’, a proposition which is contrary to the first principle of jurisprudence, namely, ubi jus ibi remedium- where there is a right there is a remedy, right, remedy and forum. To innovate the ‘basic structure’ theory, the Full Court of the Supreme Court, in Kesavananda Bharati v. the state of Kerala (1973) Supp.SCR 1, took six months. I am reminded of the words of Horace “parturient montes, nascetur ridiculus mus” mountains will be in labour, and an absurd mouse will be born (all that work and nothing to show for it). One could point out innumerable examples where a well-drafted statute is reduced to a wholly unworkable one, a calamity, because the Supreme Court happened to decide a case erroneously. It s said “even Homer (sometimes) nods’’ therefore judge cannot be faulted for erring, for, to err is human.

21. Everywhere in the world the legal system is pyramidical with at its bottom, the fact-finding authority, above it the appellate authority, with a further appellate or revisionary authority. The legal system, everywhere in the world, is founded on the concept of estoppels or res judicata. The cause of action is a disputed evidence, when it is subjected to adjudication it transforms into a decree of  a Court or Tribunal and ceases to be in existence, which is called transit in rem judicatam or cause of action estoppels or re judicata – the cause of action is changed into matter of record, which is  of a higher nature, and the inferior remedy is merged in the higher. There could be any number of examples to be cited for the ridicules extent to which the concept of precedent, otherwise a very useful legal concept, is reduced to be because we understand Article 141 of the constitution has given power to the Supreme Court to legislate, travelling away from the concept of stare decisis et non quieta movere.

it is respectfully submitted that the reliefs sought for in the above writ petition are wholly untenable and the writ petition deserves to be dismissed. It is prayed accordingly 

Dated this the 13th day of December 2019

   MATHEWS J NEDUMPARA

Counsel for the Addl.7th respondent