Background Of The Case A Writ Petition (Criminal) under Article 226 of the Constitution of India read with Section 482 Cr.P.C. has been filed on behalf of the petitioner for issuing writ of Mandamus or any other writ/directions/order directing for transfer of investigation in respect of death of Athar Rasheed (brother of the petitioner) to CBI or any other independent agency. [Para 1] |
Facts of Case In brief, Athar Rasheed, aged about 35 years is stated to have expired due to sole negligence during the process of hair transplantation undertaken at United Hair Studio, House No.223, Pocket 26, Sector 24, Rohini, New Delhi. It is averred that after Athar Rasheed returned back on taking treatment, he developed serious pain over his scalp followed by swelling on the face and shoulders and had to be admitted at Escorts Heart Institute and Research Centre. [Para 2] On 26.06.2021, Athar Rasheed passed away during the course of treatment. It is also submitted that none responded from the concerned Centre and the accused appear to have fled. Complaint before Police As per the status report filed by the prosecution, a complaint was filed by the petitioner on 06.07.2021 against the United Hair Studio having its office at H- 223, Pocket 26, Sector 24, Rohini. It was alleged that pursuant to treatment for hair plantation, his brother developed shooting pain on his scalp, followed by swelling on his face and shoulder and passed away on 26.06.2021 at Escort Heart Institute and Research Centre, Okhla Road due to hypotension with Edema over scalp and laboured breathing on presentation. Petitioner telephoned the studio several times but no response was received. [Para 2] Further, no action was taken by the police despite a complaint being made on 06.07.2021 and running from pillar to post. [Para 2] Role of Medical Council /Delhi Medical Council Learned ASC further submitted that as per the Supreme Court’s judgment, the FIR cannot be registered without approval from medical council. He further submitted that all documents have been sent to the medical council for their approval and further two weeks-time is sought to file additional status report. Delhi High Court asked for additional status report to be filed by the State. Role of Escort Heart Institute and Research Centre As per the treatment records of Escort Heart Institute and Research Centre, cause of death was Septic Shock with multi-organ failure in case of Stevens- Johnson Syndrome. Fortis Escorts Heart Institute further replied that it did not warrant any intimation to police since the death was due to septic shock with Stevens - Johnson syndrome [1-5]. Action Taken Report In the aforesaid background, vide order dated 30.03.2022, Action Taken Report was called from the DCP. The status report has been filed whereby it was informed that case FIR No.339/2022 dated 21.04.2022 under Sections 304/34 IPC and Sections 26/27 of Delhi Medical Council Act has been registered at Police Station Begampur and the investigation has been taken up. It is further submitted that during the course of investigation, accused Shivam Verma was arrested who disclosed that he along with one Harish Sharma and other associates were running United Hair Studio and were managing the day-to-day activities in its clinic. An amount of Rs. 30,000/- is also stated to have been received in Paytm account from deceased Athar Rasheed against hair transplantation which was done by technicians namely Mohit and Vijay. Further, at the instance of accused Shivam Verma, the technician Vijay was also arrested and the instruments used for hair transplantation were also seized. It was revealed that accused Vijay was not having any certificate of clearance of hair transplant. It is also stated that co-accused Mohit could not be traced and the NBWs have been obtained against him. [Para 4] Observations of Delhi High Court On the face of record, there appears to be gross negligence as it is only pursuant to the filing of the writ petition and directions issued by this Court that the criminal process has been set into motion in respect of death of deceased Athar Rasheed who faced severe complications due to treatment at the hands of unqualified professionals. [Para 4] The matter has larger ramifications as number of such treatment Salons are mushrooming wherein the self- proclaimed technicians are rendering the service of hair transplantation/aesthetic surgery which is completely in teeth of medical ethics and in defiance of standard protocol to be followed for the purpose of hair transplantation/ aesthetic surgery. [Para 5] Hair transplantation being an aesthetic surgery needs to be performed by qualified dermatologists or trained surgeons with informed consent of the patient. It is critical to evaluate the risk benefit ratio from the medical perspective. It is imperative on the persons performing the transplantation surgery to be aware of the medico legal issues. The fact that hair transplantation surgeries are being carried out in the Salons with the aid of technicians is a matter of great concern since neither they are fully qualified nor any such procedures can be carried except under supervision of a trained surgeon or dermatologist. The case points out not merely a dereliction or negligence or standard of care required in such medical procedures but a complete medical malpractice, as the hair transplantation was not carried under medical supervision of trained and qualified professionals. The concern of High Court remained that no harm befalls on innocent patients undertaking such procedure without being aware that the same needs to be carried by professionals with requisite competence and knowledge of hair transplantation. In the present case, neither there was informed consent of deceased, nor was the risk involved in the hair transplantation disclosed to the deceased, which resulted in acute complications finally resulting in the death of the deceased. This case also highlights the issues of medical negligence as well as medical malpractice which continue for want of any check of such Salons by the competent authorities. Medical malpractice needs to be checked even if the harm was not intentional, since the same was carried under unprofessional hands by merely delegating it to the technicians. The criminal liability in such circumstances is writ large and is much more than gross negligence or recklessness. Even if it is assumed that patient autonomy is to be accepted, it is writ large that most of the patients are still unaware that the process needs to be carried by the qualified professionals. In absence of professional medical supervision at Salons, the process may be a great risk which may lead to irreversible damage or even loss of life, as in the present case. The public at large needs to be made aware as to the implications if one proceeds with hair transplantations along with standard protocols which are needed to be followed in this regard. The process may even require consultation and management with other specialists in case one has been suffering from co- morbidities or any other risk bearing complications. Filling up of the consent form in such cosmetic surgeries, as such, may be important to ensure that patients give an informed consent and are aware of the procedures to be followed. [Para 6] Delhi High Court considering the facts and circumstances, observed that it is imperative that necessary steps are taken by the Ministry of Health and Family Welfare, Government of India as well as Govt. of NCT of Delhi to ensure that such mushrooming Salons carrying hair transplantation procedures under unprofessional hands without requisite qualification and in absence of medical supervision, are checked. Requisite safeguards need to be ensured for safety of the persons who undertake the aforesaid treatment. Also, the public at large needs to be made aware that such hair transplantation procedures/ aesthetic surgeries can be fatal at the hands of unqualified professionals, which require strict medical supervision. Delhi High Court advised that in case any such medical protocols have not been established for guidance of medical practitioners, the same need to be framed at national level, in view of upcoming aesthetic surgeries and hair transplantation procedures. Delhi High Court directed that necessary action in this regard be also taken up by the Commissioner of Police, Delhi to ensure that similar incidents of medical malpractice are not repeated and action is taken against such Salons. A copy of High Court order forwarded to the Secretary, Ministry of Health and Family Welfare, Government of India as well as Secretary (Health), Government of NCT of Delhi, National Medical Commission, Delhi Medical Council and Commissioner of Police, Delhi for necessary action and filing of status report before the next date of hearing. [Para 7] Case is still pending for final adjudication. Top |