Madhya Pradesh High Court quashes case against gynaecologist accused of leaving sponge in patient’s stomach

The Madhya Pradesh High Court recently quashed a criminal case against a doctor accused of leaving a sponge inside the stomach of a woman during her child birth operation in 2016 [Dr Asharani vs The State of Madhya Pradesh & Another]..Justice Subodh Abhyankar said that it was impossible to establish that the sponge had been left behind by the accused, in absence of the forensic laboratory report. The Court also took into account the opinion of a Medical Board which had stated that a sterilised sponge can remain in the stomach for years without any complication to the patent, even though it may cause trouble during 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,” said the Court..The patient Preeti Nema had been admitted to a government hospital in December 2016 after she developed labour pain. She was operated upon there and gave birth to a child. This was her second delivery. Later, it was found that some foreign body was lying in her stomach.When she was operated again, it was found that a sponge had been left behind in her stomach during the earlier operation and it had become contaminated and started to rot. In her complaint, Nema accused Dr. Asharani of leaving the cotton in her stomach during the childbirth procedure. The complaint led to registration of a First Information Report (FIR)..On the gynaecologist's challenge against the FIR, the High Court in 2017 directed Investigating Officer to follow the procedure laid down by the Supreme Court in medical negligence cases.Subsequently, a Medical Board opined that a sponge was indeed left behind in the patient’s stomach at the time of her delivery but cannot be positively determined whether it was done during her first pregnancy or second which was done by Dr. Asharani..Dr. Asharani sought quashing of the case, stating that the medical board had clearly opined that it was not possible to find out whether it was her or the other doctor - the one who operated upon Nema during the first pregnancy - who had left behind the sponge.It was also submitted that the offence under Section 308 (attempt to culpable homicide) of Indian Penal Code was not made out..Considering the submissions, the Court noted that two medical boards, which had looked into the case, had emphasised the requisitioning of the forensic lab report, but the same was not available as the sponge was never sent for examination. “In such circumstances, when the criminal liability is required to be fixed on the petitioner, it has to be seen whether there is sufficient material available on record to bring home the charges levelled against her,” the Court said..The chargesheet against Dr Asharani had been filed only on the premise that it was her negligence to leave the sponge in the patient’s stomach, the Court said. However, it was not possible to establish the same without the FSL report, the Court underscored.“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,” the single-judge said..Thus, the Court quashed the FIR against the doctor. However, it also clarified that the complainant can proceed against Dr. Asharani by taking recourse to civil remedies. The degree of proof in a 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, it observed.“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,” the Court ruled. .Advocate Manish Yadav represented the accused.Advocate Mukesh Sharma represented the State.Advocate Piyush Shrivastava represented the complainant.[Read Judgment]