Justice G. Girish noted that the hospital had the status of a 'day surgery centre' at the time of the petitioner's complex surgery and felt that a re-investigation was necessary on certain aspects to determine whether there was criminal negligence on the part of the accused persons running the hospital.

The Court directed the formation of a SIT to investigate the matter and expeditiously complete the same within 6 months. The SIT is to focus on three aspects:

1. Whether a plastic surgeon of ordinary prudence would undertake such a complex surgical procedure in a 'day surgery centre';
2. (ii) Whether conducting such a surgery in a 'day surgery centre' could be termed as a practice unacceptable to the reasonable and prudent course expected to be followed by a medical practitioner of similar stature;
3. (iii) Whether the failure of the accused to get the petitioner immediately admitted and examined when her blood pressure went alarmingly low within hours of discharge is amounted to gross negligence.

Facts

The petitioner, a 31-year-old woman, who was working as a Software professional, underwent cosmetic surgery on a Saturday at Cosmetiq Hospital, Thiruvananthrapuram. She was discharged the next morning and within hours of discharge, she suffered hypotension, vomiting dizziness and abdominal pain.

When she contacted the hospital and mention the complications, the nurses said that the doctors were unavailable since it was a Sunday and she can come the next day. She was advised to take salted rice water and to monitor blood pressure. On Monday, she was taken to the said hospital in the morning and on finding that her blood pressure was abnormally low, she was administered intravenous fluids and blood transfusion. However, her condition worsened and she was shifted to another hospital by that night.

Shortly afterwards, she suffered a cardiac arrest and had to undergo medical procedures. She also had a bacterial infection and suffered kidney failure, forcing her to undergo life-saving treatments. She further suffered digital gangrene with the amputation of nine fingers along with other serious complications to her internal organs.

Police investigation and medical committee reports

As a result, she approached the police alleging gross negligence on the part of doctors at Cosmetiq Hospital. She also contended that the said hospital is not a medical establishment registered under the Kerala Clinical Establishment (Registration and Regulation) Act, 2018 and therefore, the protection afforded is not applicable to them.

The investigating officer requested a medical expert committee to ascertain if there was criminal negligence on the part of the accused persons. The committee reported that it is unable to arrive at a final conclusion. The State Level Apex Committee reported that the petitioner received adequate and reasonable medical care. However, it was reported that the committee only considered the culpable criminal negligence, not civil liability.

While the matter was present plea was pending, the police filed a refer report before the jurisdictional magistrate in respect of the offence under Section 125 BNS [Act endangering life or personal safety of others].

Petitioner's arguments

It was contended that culpable negligence was there at the very beginning since the accused persons proceeded with the petitioner's treatment despite not being a registered medical establishment. Moreover, the hospital did not have the necessary basic infrastructure or equipment to conduct a complicated surgery. It even did not have an ambulance since she was shifted to the next hospital in a car even in critical condition.

Contentions raised by the accused persons

It was pointed out that registration of the hospital as per the 2018 Act could not be done since the authorities had informed that registrations were not being carried in view of a plea before the High Court challenging the provisions of the Act. Immediately after the High Court had upheld the provisions, the authorities granted them the requisite registration certificate. They, thus, contended that non-registration of the hospital at the time of the petitioner's surgery cannot be raised as an instance of negligence.

Court's findings

The Court perused the certificate of permanent registration of the hospital and noted that at the time of the petitioner's surgery, the hospital was a day care centre and got the status of a single specialty hospital only in 2026.

“Needless to say, irrespective of the non-registration of the hospital…under the provisions of the Act, 2018, the conduct of the above respondents undertaking the surgery of '360 Degree Vaser Liposuction with Abdominoplasty combined with Brazilian Butt Lift (BBL) and Hip Dip Correction' in that hospital having the status of day care centre only, itself constituted abhorrent violation of medical protocol with scant regard to the health safety and well being of the patient,” it added.

The Court also noted that the accused nor the staff gave any instructions to the petitioner to immediately get herself admitted even after they were informed about the abnormally low blood pressure within hours of the surgery. It remarked that surgical negligence could have been a reason for the bacterial infection and ensuing complications, and that failure to immediately diagnose her complications could also amount to negligence. However, since there was no convincing evidence regarding the cause of infection, the accused persons cannot be attributed with criminal negligence at present.

It thus felt that re-investigation by SIT is the best course to be adopted and allowed the petitioner's plea.

Counsel for the petitioner: T.M. Raman Kartha, Manju R. Kartha, Keerthi S. Nair, Revathy M.A., Sneha Brigit Prince

Counsel for the respondents: Shyam Padman (Sr.), Laya Mary Joseph, Vinod V. (Edappunathil), C.M. Andrews, Ashwathi Shyam, Swathy Sudhir, Shimleel Ibrahim T., S. Anupama, Githesh R. - Sr. Public Prosecutor